Legislature(1995 - 1996)
04/10/1996 01:12 PM House JUD
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* first hearing in first committee of referral
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SB 211 - VULNERABLE PEOPLE:NEGLECT/ASSAULT/ABUSE Number 1511 CHAIRMAN PORTER introduced Senator Johnny Ellis as sponsor of SB 211 to testify. SENATOR JOHNNY ELLIS stated that he speaks for himself and a large number of senior citizens who are interested in this legislation. He noted that he had read a very disturbing article in the Anchorage Daily News last year about some terrible cases of abuse which were going on in a state licensed facility called Friendship Home in Anchorage. He was shocked to learn from the Department of Law that they do not currently have the appropriate statutory authority to prosecute the kinds of crimes which occur to vulnerable adults in these types of facilities. SENATOR ELLIS offered that the crimes of assault and reckless endangerment in statute now do not cover neglect or many kinds of abuse to vulnerable adults. Bills have been passed before where they thought these types of problems were taken care of but, this bill sets out to clarify the law regarding this issue. The definition of vulnerable adult does not include just senior citizens, but also include the developmentally disabled population and mentally incapacitated adults as well. SENATOR ELLIS noted that it is the law currently to report abuse and neglect, but the law "peters" out after that. The penalties proposed in this bill would make endangering the welfare of a vulnerable adult in the first degree becomes a Class C felony punishable by a jail term of up to five years and a $50,000 fine. Endangering the welfare of a vulnerable adult in the Second degree would become a Class A misdemeanor with a punishable jail term of up to a year and a $5,000 fine. Senator Ellis thought that this would be the "teeth," with which the law needs in order to go after the people who would do vulnerable Alaskans harm. 23 other states have abuse and neglect laws criminalizing these types of bad acts. SENATOR ELLIS said he brings this legislation at a time when Alaska has the fastest growing per capita senior citizen population in the nation. At a time when they encourage as part of state policy the formation of assisted living group homes, this kind of continuum of care for vulnerable adults between a time when they are no longer able to live independently in their own homes to the time when they go into more expensive and intensive nursing care is important. Assisted living is a growth industry in the state and the state licenses these facilities. People should be able to expect that when vulnerable adult family members go into these homes and a case of abuse or neglect transpires that the state will have the enforcement power to at least seek justice for the wrong done. Number 1665 REPRESENTATIVE TOOHEY asked if this legislation addressed abuses in the home or in nursing home care facilities. SENATOR ELLIS responded that this legislation addresses state licensed facilities, meaning nursing homes, assistant living homes and those types of facilities for care of vulnerable adults which the state has purview over. There had been suggestions that the legislation should expand to a broader application of situations covered. It would be extremely problematic if they said this applied to every care giving situation in the state or to situations which are not licensed by the state of Alaska. He used the example of someone checking in on an elderly neighbor next door who could meet the definition of a vulnerable adult. Once this person is checked on in a good samaritan arrangement, if that person was never checked on again, the good samaritan might be guilty of a crime of neglecting this vulnerable adult. He added that this legislation might discourage good samaritan behavior. Number 1820 REPRESENTATIVE JOSEPH GREEN asked why a section of this legislation specifically addressed situations where police officers sexually abuse someone. SENATOR ELLIS responded that this was not an original piece of his legislation. This language was offered as an amendment by Senator Halford on the floor of the Senate. There was no objection in the Senate to this amendment. Senator Halford sought to address some issues raised in a letter relating to a case which occurred on the Kenai Peninsula. This amendment strove to make more explicit in the law, the responsibility of police officers and they're relationship to underage people who might be under their authority. He thought it would be wise if someone else spoke to this issue someone who might be more familiar with the situation as referenced. Number 1887 REPRESENTATIVE TOOHEY referred to a document generated by the Statewide Division of Administration which clearly showed that 76 percent of the abusers of vunerable adults are family members. She noted that if this 76 percent is not being addressed it should be. CHAIRMAN PORTER noted that there might be a proposed amendment offered to address this issue. He asked Senator Ellis if he had seen this amendment. SENATOR ELLIS said he had not. He understood that a lobbyist had a proposal to make an amendment. Number 1955 CHAIRMAN PORTER again addressed Sections 3 and 4 dealing with sexual assault and police officers. He stated he was offended by the language and he stated if it didn't offend Senator Ellis, he said he would try to convince someone here to delete it. SENATOR ELLIS said he would leave this to Chairman Porter's good judgment. Number 1975 JACKIE ORTELLI, Representative for Denali Center; Home and Community Care, Fairbanks Community Hospital; License Guide Organization, Joint Commission Accredited; Chairman, Long Term Care Committee for Alaska State Hospital and Nursing Home Association (ASHNHA) testified on SB 211. She stated that she generally supported the bill, but thought it might be too narrow. Specifically, she was concerned about families who might hire caregivers as independent contractors, they might be certified as a nursing assistant or a personal care attendant. MS. ORTELLI stated that she was also concerned about independent homes which might not be licensed by the state and what might be going on in these home under the guise of care giving. With this in mind, she shared this information with the Alaska State Hospital and Nursing Home Association when reviewing the legislation. They decided to propose an amendment which would truly looked at the fact that people don't always live and stay in a nursing home. They don't always live in a skilled environment. They might eventually go back out into their communities. MS. ORTELLI believed that two pieces of this legislation needed to be looked at, she noted that a person is potentially vulnerable even if they don't live at Denali Center or in an unlicensed home. The other forms of care giving should not be excluded from the intent of this bill. She also referenced the definition of what a caregiver means. She made the argument that a standard of care should be consistent for homecare of less than tow individuals, the same that she would have to report when a person is in Denali Center or in a licensed home care program, however, if someone is in a home and the services are being rendered by a nurse, an aid, a personal care attendant, or someone who is not associated with a licensed agency, a person is still vulnerable. MS. ORTELLIS said that lastly there was a statute which talks about protective services and the definition of caregiver in this statute is someone who is providing care to a vulnerable adult as a result of a family relationship or who has assumed responsibility for the care of a vulnerable adult voluntarily, by contract, court order, or is an employee of an out-of-home care facility which provides care to one or more vulnerable adults. MS. ORTELLIS stated again that she was supportive of reporting abuse and of penalties to abusive situations, she just cautioned that the legislation is too narrowly focused by referencing licensed facilities and vunerable people don't always live in these facilities. Number 2160 REPRESENTATIVE BUNDE referenced the police officers clause and asked about the validity of this section. MS. ORTELLIS stated that she spoke more to the narrow scope of the legislation. REPRESENTATIVE TOOHEY stated that she'd like to see physician added to the list of providers outlined in the legislation. Number 2192 MS. ORTELLIS referred to current laws which govern nursing homes, these being the OPA regulations, state statute 42 CFR and they have an accountability to report whether there's a volunteer who comes into their facility under an abusive situation, whether a family member who walks in or a public person, whether a physician or staff are abusive, so their accountability of existing abuse clause includes physicians. She spoke to the direct caregivers providing service in communities that they may in all good faith want to protect vulnerable adults as the intent of bill sets out to do. MS. ORTELLIS went on to add that their responsibility is to report abuse and until it's been determined that abuse has taken place, this is called suspected abuse. They simply report their findings, they then internally do an investigation and they report to the Division of Senior Services. Number 2252 CHAIRMAN PORTER asked Ms. Ortellis about the concern of checking in on a next door neighbor who might become vulnerable to prosecution by not following up on what was a good samaritan act. MS. ORTELLIS noted that she was looking at the caregiver directly. If someone hires a caregiver in their home and the wife of the vulnerable person would want to know that they could call for an investigation if they need to. She said she was not suggesting that they should be everybody's keeper and to be spies, she was trying to bring to the committee's attention an avenue which is not included in the bill. CHAIRMAN PORTER wondered if she would say that someone who dropped in to check on their vulnerable next door neighbor and then went on a planned vacation has established some liability. MS. ORTELLIS stated that if they were working with a person in a home setting and they walk into this home, they suspect abuse then they're accountable to report this. REPRESENTATIVE TOOHEY asked about a situation where the vulnerable adult is being abuse by a family member, who would they report it to. MS. ORTELLIS said that currently they report to the Division of Senior Services. Their current policy has recently been revised by Division of Licensing and Certification. Number 2398 JANE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault testified on SB 211. She stated on behalf of the Council that they support this bill. She said there were questions about Section 3 & 4, although the Council doesn't have an opinion about these sections since they haven't had a chance to discuss them. Currently, law enforcement officers who use their position of authority in committing 3rd or 4th degree child sexual abuse can be charged presently. Their initial thoughts on this was that they didn't think these sections were necessary. MS. ANDREEN stated that overall, the council thought this legislation does an excellent job in expanding sexual assault cases and the definition of a caregiver who sexually abuses a vulnerable adult by making it anyone who operates under license by the state. MS. ANDREEN added that they support both Sections 5 and 6 with vulnerable adults and the penalties for abuse. Vulnerable adults are the elderly and people who are not capable of taking care of themselves. They are subject to a greater risk of abuse in their living situation, both sexually and physically. The council feels it's important to provide as much protection as possible. Number 2475 REPRESENTATIVE TOOHEY asked if there was any overlap of this legislation with current law. CHAIRMAN PORTER stated that he wanted to request that Anne Carpeneti come forward to testify on these types of questions. TAPE 96-48, SIDE B Number 000 ANNE CARPENETI, Assistant Attorney General, Department of Law came forward to answer questions regarding SB 211. She responded to Chairman Porter's concern of the sections of legislation dealing with sexual assault by a police officer. Ms. Carpeneti stated that she had read the letter which was apparently the impetus for this amendment on the Senate floor. Right now a police officer who doesn't use his or her position as a police officer as any sort of position of authority or influence over a person may have sexual relations with a 16 or 17 year old. If this relationship changes to a point where there is a belief a position of authority was used to influence this other people, this would be prosecutable presently under Alaska statute. Number 069 REPRESENTATIVE GREEN stated that he still had some concern about a police officer being spelled out specifically in this legislation. He asked if there was another place in law which specifically sets out other professions, such as doctors, medical assistants, etc. MS. CARPENETI responded that subsection A, page 3, line 6 prohibits a person being 18 years of age or older to engage in sexual penetration with a person who is 16 and at least three years younger than the offender. The offender must occupy a position of authority in relation to the victim. This position of authority is defined in Alaska's statutes. Number 121 REPRESENTATIVE BUNDE made a motion to remove Sections 3 and 4 from SB 211 and to renumber it according. There being no objection, it was so moved. MS. CARPENETI read the definition of a position of authority which currently exists in statute. Police officers are mentioned specifically in this definition because they have a higher level of responsibility when in custodial control. Number 195 REPRESENTATIVE BUNDE made a motion to move amendment number 2 which was offered by the Alaska State Hospital and Nursing Home Association. (The text of this amendment can be found in the bill packet.) Chairman Porter objected for discussion purposes. SENATOR ELLIS said that this amendment was a surprise to him. He stated that he hadn't had sufficient time to review it in depth. He said he sympathized with the impulse to try and cover everybody, but he thought that this was problematic for legal reasons. Senator Ellis said he would defer to Ms. Carpeneti to explain these problems. He did have a proposal for expanding the coverage to address some of the concerns raised. First, Ms. Carpeneti addressed the legal issues. Number 254 MS. CARPENETI stated that she hadn't either had much time to review this amendment, but her initial reaction was that this amendment was too broad. She had a policy concern that if this legislation allowed for criminal sanctions that a source of care to vulnerable adults would be cut off. REPRESENTATIVE TOOHEY made her point again about neglecting to include 76 percent of these vulnerable adults situations where abuse takes place in a private home which is not part of a nursing home or caregiver program. She asked if these situations might be provided for in other areas of law. MS. CARPENETI noted that these situations are not specifically covered by criminal law. Number 351 CONNIE SIPE, Division of Senior Services, Department of Administration testified on SB 211. She stated that the definition of caregiver which this amendment proposes is in the civil adult protective services statute passed two years ago, but it is only mentioned in two places in this act and it includes volunteers, family members, etc. It is in the list of people who are both required to report abuse of a vulnerable adult and by this requirement are given civil and criminal immunity for this report. If the volunteer reports on a family member abusing, because they are in the "required to report" section they also get the immunity. This statute was written for a purpose that was to encourage reporting of abuse. No where in the civil adult protective services statutes does it say that "this is a list of people who can be charged with adult abuse." It was written for a different purpose. She assumed that charges could be brought under assault, for example, but there wasn't clarity as to whether these licensed and certified professionals could be specifically prosecuted for neglect, failure to support or for abandonment. CHAIRMAN PORTER asked if all of these abusers could be civilly prosecuted. MS. SIPE noted that the civil adult protective services statute doesn't have civil prosecution allowances. If there is an allegation they can offer services, if what they find in the investigation are criminal in nature they can refer it to the District Attorney or they can sue for an injunction to keep this alleged perpetrator from further exploitation. CHAIRMAN PORTER more specifically wanted to know if a family member of the abused could sue civilly. MS. CARPENETI said she would like to research this more, but assumed that someone could bring a lawsuit under the theory of negligence and ask for monetary damages or an injunction. Number 490 SENATOR ELLIS acknowledged that there was a concern about non- licensed care giving facilities, but made the argument as a balance that to criminally prosecute family members for care giving would create a disincentive to care for vunerable adults. The state can't afford to take care of all senior citizens and vulnerable adults with government money. Where someone is taking care of less than two vulnerable adults in a private home, the state allows this type of small operation without licensure. A very simple amendment would significantly expand the coverage of this bill. SENATOR ELLIS referenced page 3 of the bill on line 30 and to suggested to add the phrase "by contract" in the already existing language, before the words "by authority of law." This amendment would read, "(A) by contract or by authority of law; or." He explained that there are people in this situation who are contracting with a caregiver to provide services. This language would cover these situations. Number 590 MS. SIPE responded to a question by Representative Toohey about how many adults can be cared for in a private home. Under the assisted licensing law passed two years ago there is voluntary licensure if someone as a homeowner bring one to two adults into their home, who are not their relatives and care for them for money. These providers don't have to be licensed. If they do opt to license themselves there are tax and workers compensation advantages to do so. SENATOR ELLIS referring back to his suggested amendment pointed out that it does provide broadening of coverage and it's relatively simple to do and the state allows this activity to occur and actually encourages it. This is why they don't provide licensure. This is the justification for the increased penalties and protections for vulnerable adults in licensed facilities because the state has a handle on these facilities and people expect that when the state licenses a facility that there will be sanctions for bad acts against the relatives. These small operations don't come under the state's purview, but there is a profit motive involved, they do want to encourage these types of contractual arrangements outside of government financing. Number 734 REPRESENTATIVE BUNDE withdrew the amendment as proposed by the Alaska State Hospital and Nursing Home Association and offered the amendment number 2 as outlined by Senator Ellis and additionally suggested to insert this same language on page 4, line 11 as well. There being no objection, it was so moved. REPRESENTATIVE BETTYE DAVIS made a motion to move CSSB 211(RLS) from the House Judiciary Committee as amended with individual recommendations and attached fiscal note. There being no objection, it was so moved. Number 800 MS. CARPENETI made the suggestion that the language regarding sexual abuse be removed from the title since it was added at the same time this bill was amended on the Senate floor, which was to allow for the language regarding police officers now deleted. It was decided after some discussion that this clause did not substantially affect the intent of the legislation to warrant removal.
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