Legislature(1993 - 1994)

02/09/1994 03:00 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HB 376 - ASSIST AND PROTECT VULNERABLE ADULTS                                
                                                                               
  Number 059                                                                   
                                                                               
  NANCY BEAR USERA, Commissioner, Department of                                
  Administration, testified in support of HB 376 and HB 377.                   
  She started by giving a brief overview of HB 376 and HB 377.                 
  She stated that the goal of the legislation was to foster                    
  independence and dignity for elderly and deal with them as                   
  individuals.  She continued to say that much of the proposed                 
  legislation resulted from input from the Elder Alaskan                       
  Commission and the Pioneer Advisory Board and other various                  
  senior organizations throughout the state.  Also, the                        
  Department of Health and Social Services (DHSS) and the                      
  Department of Administration (DOA) made a collaborative                      
  effort to put forth the legislation.                                         
                                                                               
  COMMISSIONER USERA said there are three initiatives, the                     
  first being consolidation of state provided senior services                  
  into a single division.  She stated there would be a single                  
  site of access where seniors could access a variety of                       
  programs.  She then addressed specifically HB 376, the adult                 
  protection bill.  She said adult protection services were                    
  being provided by DHSS, "where they were grouped together by                 
  the function.  It was the protective aspect of it and not                    
  the populations being served."  She stated that senior needs                 
  are unique and that they should not be grouped together with                 
  systems that also deal with children.                                        
                                                                               
  COMMISSIONER USERA stated that there is a large gap in the                   
  continuum of care.  She said that home care based services,                  
  senior housing services, and nursing homes are the only                      
  choices for seniors.  She inquired about people who only                     
  need help with daily living or people who don't need 24 hour                 
  nursing care, and if there were solutions to these                           
  situations.  She felt that the assisted living concept                       
  offers a wide range of opportunity for people to get the                     
  services they need in their communities and to have                          
  community-based services available to them.  She stated that                 
  it is a consumer-oriented program that will allow seniors to                 
  buy the appropriate services for themselves.  She further                    
  stated that the proposal would allow for licensing of                        
  facilities that offered services to the seniors.                             
                                                                               
  Number 310                                                                   
                                                                               
  CHAIR TOOHEY asked if the services would be obtainable by a                  
  senior who lives in his/her own home.                                        
                                                                               
  Number 322                                                                   
                                                                               
  COMMISSIONER USERA said that it was possible, but it was not                 
  the intent.  She said home care services are provided as                     
  part of Project Choice to Medicaid eligible Alaskans.  She                   
  said there are a number of other support services available,                 
  also.  She explained that generally the legislation would                    
  provide opportunities for people to move in to homelike                      
  facilities (facilities with four people or 40 people) and                    
  utilize the available services.                                              
                                                                               
  Number 372                                                                   
                                                                               
  CHAIR TOOHEY suggested the term "rooming house."                             
                                                                               
  Number 389                                                                   
                                                                               
  CONNIE SIPE, Director, Division Senior Services, Department                  
  of Health and Social Services, testified in support of HB
  376 and HB 377.  She stated that HB 376 is a revision of                     
  current law and it would transfer the authority for adult                    
  protective services from Dependent Family and Youth Services                 
  (DFYS) to the Department of Administration (DOA).  Ms. Sipe                  
  said that it was protection for all vulnerable adults above                  
  the age of 18 years old.                                                     
                                                                               
  MS. SIPE told the committee that HB 376 is a combination of                  
  two former bills, "an elder abuse reporting bill and a                       
  disabled abuse reporting bill."  She stated that the                         
  proposed legislation offers protection to vulnerable adults                  
  and tries to interfere less with capable adults whether they                 
  be elderly or handicapped.  The proposal, she said, would                    
  streamline abuse reporting and would reduce duplicate work                   
  done by state investigative agencies.  The legislation would                 
  allow for an investigation by the licensing agency and the                   
  long-term care ombudsman, hence decreasing the number of                     
  agencies involved in an investigation of an abuse report.                    
                                                                               
  MS. SIPE continued on by saying that a centralized                           
  information and referral office for vulnerable adults and                    
  care givers would be opened.  She said the proposal would                    
  enable the designation of local care providers as a                          
  preliminary outreach to the community.                                       
                                                                               
  MS. SIPE stated that the proposal would honor a competent                    
  adult's refusal of services or request to terminate an                       
  investigation of abuse.  Appropriate information on the                      
  status of an investigation would be shared with the reporter                 
  of the abuse.  She said that current confidentiality law is                  
  very strictly interpreted and many times the person or                       
  facility who reported the abuse finds it difficult to obtain                 
  information informing them that the abuse victim is safe or                  
  if the investigation is still continuing.                                    
                                                                               
  MS. SIPE said that HB 376 would allow family members as                      
  "surrogate decision makers" to consent to services if the                    
  vulnerable adult is temporarily or permanently incapable of                  
  making decisions.                                                            
                                                                               
  MS. SIPE further stated that the legislation would clarify                   
  when and for what relief the state may seek judicial                         
  intervention to protect a person, citing the domestic                        
  violence writ whereby an injunction may be obtained to stop                  
  a perpetrator from interfering with services to the                          
  vulnerable adult.                                                            
                                                                               
  Number 500                                                                   
                                                                               
  MS. SIPE indicated that some definitions would change with                   
  the new legislation.  Abuse would be redefined to focus on                   
  intentional or reckless, not accidental harm to adults.  She                 
  said that even accidental harm to a vulnerable adult must be                 
  reported, causing a "misuse of state resources."  She                        
  continued on and said that neglect would be redefined to                     
  focus on intentional failure to provide care, not inability                  
  to care.  Exploitation, she said, would include the                          
  exploitation of the victim's person as well as resources,                    
  giving an example of a caregiver helping a client deplete a                  
  bank account with numerous vacation trips.                                   
                                                                               
  MS. SIPE reminded the committee that any litigation would be                 
  in a civil context.  She said that the proposal is a new                     
  reporting system for abuse to vulnerable adults and that it                  
  allows for the state to interfere less with clients and                      
  offer more centralized services.                                             
                                                                               
  MS. SIPE stated that the final section of HB 376 would allow                 
  for a smooth transition and transfer between the                             
  departments.                                                                 
                                                                               
  Number 615                                                                   
                                                                               
  (CHAIR TOOHEY stated for the record that Rep.G. Davis                        
  arrived at 3:08 p.m. and Rep. Kott arrived at 3:18 p.m.)                     
                                                                               
  Number 632                                                                   
                                                                               
  REP. BUNDE asked what the financial impact would be on state                 
  revenues if HB 376 was enacted.                                              
                                                                               
  Number 642                                                                   
                                                                               
  MS. SIPE said that, "actually it's a total transfer.  The                    
  current resources now in Family and Youth Services are about                 
  $563,000 and those will transfer in total into the Division                  
  of Senior Services."  She added that there were "empty" job                  
  positions in the Division of Senior Services that would be                   
  filled and utilized for the new legislation.  Therefore,                     
  there would be no increase or decrease in state funding.                     
                                                                               
  Number 680                                                                   
                                                                               
  REP. VEZEY asked what the penalty would be for violating the                 
  proposed statute.                                                            
                                                                               
  Number 683                                                                   
                                                                               
  MS. SIPE responded that it would be a "Class B felony " if a                 
  professional fails to report an abuse.  She also said the                    
  failure to report could be reported to the professional's                    
  licensing board.  She reiterated that there would be no                      
  criminal action taken.                                                       
                                                                               
  Number 705                                                                   
                                                                               
  REP. VEZEY asked if Ms. Sipe knew if anyone had ever been                    
  prosecuted for failure to report an abuse.                                   
                                                                               
  Number 716                                                                   
                                                                               
  MS. SIPE replied that there have been investigations but                     
  that she knew of no prosecutions.                                            
                                                                               
  Number 724                                                                   
                                                                               
  CHAIR TOOHEY, speaking as a past medical provider, related                   
  how important it was to not only report any abuse but to                     
  follow through.  She also spoke of the obligation of the                     
  reporter to make sure that something was done.                               
                                                                               
  Number 725                                                                   
                                                                               
  REP. VEZEY felt that it may not be appropriate for the                       
  promotion of good health care for professionals to be put                    
  under the threat of a criminal penalty.                                      
                                                                               
  Number 748                                                                   
                                                                               
  MS. SIPE stated that along with the duty to report comes an                  
  immunity from being sued for reporting.  It is a balancing                   
  measure to ensure that people report but also that they feel                 
  protected against possible litigation.                                       
                                                                               
  MS. SIPE said that on page 3, line 5, of the proposal was                    
  the criminal penalty for failure to comply.                                  
                                                                               
  Number 782                                                                   
                                                                               
  REP. VEZEY asserted that the penalty was a violation and not                 
  a felony and was subject to a fine.                                          
                                                                               
  Number 786                                                                   
                                                                               
  MS. SIPE apologized and said that she should be using the                    
  word "misdemeanor" and not "felony."                                         
                                                                               
  Number 798                                                                   
                                                                               
  CHAIR TOOHEY stated that it was her intention to move HB 376                 
  out of committee, but she wanted Ms. Sipe to continue with a                 
  sectional analysis.                                                          
                                                                               
  Number 800                                                                   
                                                                               
  MS. SIPE stated that in fiscal 1993 there were a total of                    
  408 reports made to DFYS of harms done to vulnerable adults.                 
  Of those abuses, 200 were committed against elderly over the                 
  age of 60.  She said that over 38% were requests for                         
  services from concerned citizens within that person's                        
  community.  She further stated that 23% were reports of                      
  self-neglect (an elderly person not able to care for                         
  his/herself).  Economic abuse was 6% and physical abuse was                  
  20%.  She said that the statistics did not indicate a "huge"                 
  problem, but a growing problem.                                              
                                                                               
  Number 842                                                                   
                                                                               
  REP. BUNDE asked how many cases last year were there of                      
  persons guilty of failure to report?                                         
                                                                               
  Number 850                                                                   
                                                                               
  MS. SIPE said that, to her knowledge, there has been no                      
  prosecutions.                                                                
                                                                               
  Number 877                                                                   
                                                                               
  REP. BUNDE clarified by saying that the legislation was                      
  written in this case "to plug an eventual hole."                             
                                                                               
  Number 886                                                                   
                                                                               
  REP. B. DAVIS asked what kind of protection does the                         
  professional who reports an abuse have under the proposed                    
  legislation?                                                                 
                                                                               
  Number 902                                                                   
                                                                               
  MS. SIPE responded by saying that the two previous bills                     
  that have been combined, resulting in HB 376, have immunity                  
  and liability sections.  She said the statute provides                       
  immunity from liability and prohibition against legal                        
  retaliation.                                                                 
                                                                               
  Number 915                                                                   
                                                                               
  REP. B. DAVIS asked "who pays the bill?"                                     
                                                                               
  MS. SIPE answered by saying that the state would not cover                   
  that cost, but because of the broad protection of absolute                   
  immunity, there are few law suits.                                           
                                                                               
  Number 931                                                                   
                                                                               
  REP. B. DAVIS wanted to know specifically what support would                 
  be provided to the reporter, explaining that the burden of                   
  proof would lie with that person.                                            
                                                                               
  Number 938                                                                   
                                                                               
  MS. SIPE said that the legislation does not provide legal                    
  support for the person who reports an abuse.                                 
                                                                               
  Number 949                                                                   
                                                                               
  CHAIR TOOHEY asked if there was someone in the room who                      
  could further address the issue.  There was no one at that                   
  time.                                                                        
                                                                               
  Number 954                                                                   
                                                                               
  REP. B. DAVIS stated that she would like that information,                   
  but she would not hold up the bill for the requested                         
  information.                                                                 
                                                                               
  Number 957                                                                   
                                                                               
  MS. SIPE said that the first sections of HB 376 define the                   
  protected vulnerable classes.  She said the legislation                      
  amended the list of people who are required to report,                       
  including new definitions and additional persons who would                   
  have to report.  She said that reporters are also allowed                    
  under subsection E, page 3, line 17, to report abuse to a                    
  police officer.                                                              
                                                                               
  MS. SIPE stated that page 3, line 26, would streamline the                   
  procedure of reporting abuse.  The proposal would protect                    
  the reporter who may report an abuse to the wrong                            
  department.                                                                  
                                                                               
  MS. SIPE further stated that on page 4 of the proposal there                 
  were deletions of the immunity and retaliation sections that                 
  were combined and redefined in Section 6.                                    
                                                                               
  MS. SIPE said that Section 2, page 4, line 22, describes the                 
  duties of the Division of Senior Services and the amended                    
  law.  It outlines everything the department would be                         
  responsible for.  She indicated that page 5, lines 2-7,                      
  would allow other state agencies to serve as designees of                    
  the department.                                                              
                                                                               
  MS. SIPE said that page 5, line 8, would enable the                          
  reporting of abuse of persons over 60 years of age to be                     
  handled at two places -- the long term care ombudsman and                    
  the licensing branch in DHSS.  Reports of abuse to persons                   
  under age 60 would be reported to the licensing agency at                    
  DHSS.  Upon receipt of a report of abuse the ombudsman and                   
  DHSS would conduct an investigation, coordinate their                        
  investigations if jurisdiction overlaps, and provide results                 
  to the central information and referral service of the                       
  department (DOA) within 60 days.                                             
                                                                               
  MS. SIPE addressed the language on page 6, line 24.  She                     
  said it would allow the department to initiate a prompt                      
  investigation under appropriate guidelines.  She stated that                 
  subsection B, line 1, indicates the procedure the department                 
  would go through after the completion of an investigation.                   
  She added that a vulnerable adult who is the subject of a                    
  report may request at anytime that the department or                         
  designee terminate an investigation.  However, if the                        
  investigation, at that point, has resulted in reasonable                     
  cause for protection for the vulnerable adult, the                           
  department may petition the court for permission to give                     
  protective services for an injunction or the department may                  
  refer the report to the police for a criminal investigation.                 
                                                                               
  MS. SIPE continued on to say that page 7, line 23, would                     
  allow for surrogate decision makers for vulnerable adults.                   
  She said that after the department has determined that the                   
  vulnerable adult needs protective services, and for various                  
  reasons addressed within the bill the adult cannot consent,                  
  the department could select a suitable guardian listed on                    
  page 8, lines 1-27.                                                          
                                                                               
  Number 154                                                                   
                                                                               
  CHAIR TOOHEY said that "you're assuming that this person is                  
  surrounded by loving family."                                                
                                                                               
  Number 157                                                                   
                                                                               
  MS. SIPE stated that if they are not, then the department                    
  would go to the courts to obtain guardianship, which takes                   
  up to 90 days.                                                               
                                                                               
  MS. SIPE continued on with the analysis.  She said page 8,                   
  line 28, would assure that after it was determined that                      
  protective services were needed, the department would                        
  provide those services within ten working days after receipt                 
  of the report that indicated either abandonment,                             
  exploitation, abuse, neglect, or self-neglect.                               
                                                                               
  TAPE 94-12, SIDE B                                                           
  Number 000                                                                   
                                                                               
  MS. SIPE said that the legislation on page 9, line 16,                       
  stated that protective services are supposed to be delivered                 
  in a culturally relevant manner that would protect the                       
  vulnerable adult's right to the least restrictive                            
  environment and would maximize that person's own decision                    
  making capabilities.                                                         
                                                                               
  MS. SIPE stated that the guidelines for petitioning the                      
  court for certain protective services were contained on page                 
  9, line 20.  She further stated that the vulnerable adult                    
  could petition the superior court for an injunction that                     
  would restrain a caregiver or perpetrator from interfering                   
  with the provision of protective services to the vulnerable                  
  adult.                                                                       
                                                                               
  MS. SIPE stated that Section 3 ensures appropriate                           
  monitoring of the adult and that Section 4 ensures the                       
  confidentiality of all reports of abuse.  She said that                      
  Section 4 would allow other appropriate state agencies to                    
  obtain necessary information as it applies to the client.                    
                                                                               
  Number 100                                                                   
                                                                               
  MS. SIPE addressed subsection 5 of HB 376, stating that                      
  regulations must be provided to and reviewed by the Older                    
  Alaskans Commission.  She continued on, citing that Section                  
  6 would allow immunity from liability and the prohibition of                 
  retaliation.                                                                 
                                                                               
  MS. SIPE said that subsection 7 contains definitions and she                 
  highlighted the rewriting of definitions of abuse.  She                      
  stated the new definition of abuse as being "the willful,                    
  intentional, or reckless nonaccidental, and nontherapeutic                   
  infliction of physical pain, injury, or mental distress; or                  
  sexual assault..."  She said that currently abuse is the                     
  infliction of any physical pain.  In the proposed                            
  legislation, emotional pain was included.  She said it would                 
  protect the person who unintentionally causes pain and has                   
  never had a history of causing pain to a vulnerable adult.                   
                                                                               
  MS. SIPE informed the committee that protective services are                 
  defined on page 12, line 18.  She said that protective                       
  services "are those intended to prevent or alleviate harm                    
  resulting from abandonment, exploitation, abuse, neglect or                  
  self-neglect and that are provided to a vulnerable adult in                  
  need of protection."                                                         
                                                                               
  Number 200                                                                   
                                                                               
  MS. SIPE cited the circumstances under which vulnerable                      
  adults would be unable to consent pertaining to the                          
  guidelines of Section 7.  The vulnerable adult may be                        
  incapacitated, living under coercion or fear of reprisal                     
  from the perpetrator, dependent on the perpetrator for                       
  services, care or support, or the adult may not realize that                 
  the refusal of services may result in substantial death or                   
  irreparable harm to self or others.                                          
                                                                               
  MS. SIPE stated that Section 8 would ensure a gradual and                    
  smooth transition and that it would allow for an effective                   
  date of July 1, 1994.  She asked for questions from the                      
  committee.                                                                   
                                                                               
  Number 251                                                                   
                                                                               
  REP. VEZEY noticed that a substantial amount of existing                     
  statutes were being deleted and very similar wording was                     
  being inserted in other areas.  He asked what the reason was                 
  for that.                                                                    
                                                                               
  Number 261                                                                   
                                                                               
  MS. SIPE responded by saying there were two previous laws                    
  that had very similar language and HB 376 was a merging of                   
  those two laws.  Subsequently, part of one had to be deleted                 
  so the two could be combined.                                                
                                                                               
  Number 275                                                                   
                                                                               
  REP. VEZEY said he was unsure of the definition of abuse.                    
  He explained that the definition of abuse is very subjective                 
  and that he did not understand the term "therapeutic pain."                  
                                                                               
  Number 312                                                                   
                                                                               
  MS. SIPE answered that certain types of physical therapy                     
  necessary for rehabilitation could cause pain to the                         
  vulnerable adult.  There is pain involved, but it is                         
  therapeutic.                                                                 
                                                                               
  Number 369                                                                   
                                                                               
  REP. VEZEY stated that he would be in favor of family                        
  guardianship and not state guardianship.                                     
                                                                               
  Number 387                                                                   
                                                                               
  CHAIR TOOHEY asked for further testimony on HB 376.                          
                                                                               
  Number 397                                                                   
                                                                               
  PAT O'BRIEN, Division of Family and Youth Services,                          
  Department of Health and Social Services, testified in                       
  support of HB 376 and HB 377.  She said that on behalf of                    
  DFYS she strongly supported moving the role of adult                         
  protection services over to the Division of Senior Services.                 
  She felt that the needs of the community would be better                     
  served in the division.                                                      
                                                                               
  Number 435                                                                   
                                                                               
  CHAIR TOOHEY asked who would pay the legal costs for a                       
  reporter if perhaps the family of the vulnerable adult sues.                 
                                                                               
  Number 448                                                                   
                                                                               
  MS. O'BRIEN said there has never been a case like that and                   
  she did not know how it would be handled if that situation                   
  was to arise.                                                                
                                                                               
  Number 456                                                                   
                                                                               
  REP. B. DAVIS stated that there are people who are fighting                  
  cases where they have reported abuse and the family has sued                 
  because the report was unsubstantiated.  She said it was her                 
  understanding that there is no assistance from the                           
  department.                                                                  
                                                                               
  Number 470                                                                   
                                                                               
  MS. O'BRIEN said she was unaware of any such cases.                          
                                                                               
  Number 472                                                                   
                                                                               
  REP. B. DAVIS asked Ms. O'Brien to explain what would happen                 
  if that situation occurred under the proposed legislation.                   
                                                                               
  Number 475                                                                   
                                                                               
  MS. O'BRIEN replied that if an individual reported an abuse                  
  and subsequently experienced a law suit, she believed the                    
  current statute had a provision that would indemnify the                     
  reporter from being sued.  She said she would have to                        
  research it.                                                                 
                                                                               
  Number 488                                                                   
                                                                               
  REP. B. DAVIS asked what was meant by "indemnify" and would                  
  it pay the court costs for the reporter?                                     
                                                                               
  Number 500                                                                   
                                                                               
  MS. O'BRIEN said that she needed to research the issue                       
  further.                                                                     
                                                                               
  Number 506                                                                   
                                                                               
  REP. BUNDE stated that Section 6 says that reporters are                     
  immune from civil or criminal liability, indicating that the                 
  judge would have to "throw the case out."  He asked if                       
  immunity meant that a reporter cannot be sued, period.                       
                                                                               
  Number 621                                                                   
                                                                               
  MS. SIPE said that there was nothing that could keep someone                 
  from being sued.  She said that someone may try to address                   
  the issue of whether the caller was reporting in "good                       
  faith" or not.  In that situation a reporter might have to                   
  incur legal fees to testify that the report was made in good                 
  faith (and the case would be dismissed).  She didn't think                   
  that the state had a system to indemnify the reporter.                       
                                                                               
  Number 549                                                                   
                                                                               
  REP. VEZEY commented that he felt there was a big difference                 
  between immunity and indemnity.  He said, as he understood                   
  the proposal, that the reporter would be immune from civil                   
  or criminal liability, period, and that there is no                          
  indemnification but there is immunity.                                       
                                                                               
  Number 677                                                                   
                                                                               
  REP. B. DAVIS wanted to make sure that this legislation                      
  would be stronger than current law regarding liability                       
  versus indemnification.                                                      
                                                                               
  Number 696                                                                   
                                                                               
  MS. SIPE felt that the new legislation did not address Rep.                  
  B. Davis' concern.                                                           
                                                                               
  Number 601                                                                   
                                                                               
  MS. O'BRIEN asked if the cases Rep. B. Davis was referring                   
  to were in Anchorage and were in the adult-care field.                       
                                                                               
  Number 604                                                                   
                                                                               
  REP. B. DAVIS responded yes, and that Ms. O'Brien could                      
  contact her office for that information.                                     
                                                                               
  Number 614                                                                   
                                                                               
  CHAIR TOOHEY closed HB 376 to public testimony and asked for                 
  further questions from the committee.                                        
                                                                               
  Number 619                                                                   
                                                                               
  REP. KOTT stated that he was unclear as to what the  current                 
  law is for notifying agencies of child abuse, what the                       
  provisions are, and what are the penalties.  He said that                    
  those who would be guilty of committing a violation under                    
  the proposed legislation would incur a $250 fine.                            
                                                                               
  Number 636                                                                   
                                                                               
  MS. O'BRIEN said that she would have to research that                        
  specific issue.                                                              
                                                                               
  Number 643                                                                   
                                                                               
  MS. SIPE said, "I think it's probably the same."                             
                                                                               
  REP. KOTT referred to page 2, line 12, and asked why a                       
  member of the clergy would be listed as a person with a                      
  professional duty to report abuse.                                           
                                                                               
  Number 665                                                                   
                                                                               
  MS. SIPE said that it was the current law for both children                  
  and vulnerable adults stemming from the late 1980's.  She                    
  said there was an eventual determination by the legislature                  
  that members of the clergy be included.                                      
                                                                               
  Number 697                                                                   
                                                                               
  REP. B. DAVIS made a motion to move HB 376 out of committee                  
  with individual recommendations.                                             
                                                                               
  Number 700                                                                   
                                                                               
  CHAIR TOOHEY, hearing no objections, stated that HB 376 was                  
  so moved.  She indicated that in the committee bill packets                  
  were copies of a letter from the Homer Senior Citizens.  She                 
  then asked for testimony on HB 377.                                          

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