Legislature(2001 - 2002)
04/15/2002 01:28 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 124 - NURS.HOME/ASSISTED LIV. EMPLOYEES/VISITOR Number 0639 CHAIR ROKEBERG announced that the last order of business would be HOUSE BILL NO. 124, "An Act prohibiting nursing facilities and assisted living homes from employing or allowing access by persons with certain criminal backgrounds, with exceptions." [Before the committee was CSHB 124(HES).] Number 0629 REPRESENTATIVE COGHILL moved to adopt the proposed committee substitute (CS) for HB 124, version 22-LS0087\R, Lauterbach, 4/3/02, as a work draft. There being no objection, Version R was before the committee. Number 0592 CHRISTOPHER KNIGHT, Staff to Representative Andrew Halcro, Alaska State Legislature, sponsor, said, on behalf of Representative Halcro, that the impetus for HB 124 came from senior advocacy groups that were interested in "putting 'barrier crimes' into statute." He noted that a number of senior long- term care advocates and nursing facility advocates have been worried about individuals who have [committed] serious offenses being hired to work in such facilities. He added that [Version R] defines what constitutes a serious offense. He explained that currently, the Department of Administration (DOA) and the Department of Health & Social Services (DHSS) have the statutory authority to adopt "regulations for 'barrier crimes.'" After numerous years, he added, one department has done so. MR. KNIGHT noted that Version R adds the requirement that potential employees provide a sworn statement that they have not been convicted of any offenses in which the victim was a resident of a nursing facility and/or a long-term care facility. He added that by requiring a sworn statement, "we've removed the fiscal note." CHAIR ROKEBERG asked Mr. Knight what he means by "barrier crime." MR. KNIGHT said: We call this the "'barrier crimes' legislation," and the idea is that those individuals who've been convicted of heinous crimes - serious offenses - should not ... [be allowed] to work in our long-term care facilities and nursing facilities. And [I] think it's [an] important measure ...; protection and care of our elders should be of the highest priority. CHAIR ROKEBERG again asked what is meant by the term 'barrier crime.' MR. KNIGHT said: It's kind of just a colloquial word used when we put into statute preventative measures from higher and/or -- I guess just limit one's abilities concerning their criminal record. Number 0448 ALISON ELGEE, Deputy Commissioner, Office of the Commissioner, Department of Administration (DOA), remarked that she is speaking on behalf of both the DOA and the Department of Health & Social Services (DHSS). She said: We certainly support the general concept that Representative Halcro is trying to address here. However, we do have some concerns over the language that is used in the proposed committee substitute for HB 124. We have made copies ... of what has been adopted in a joint regulation project by the Department of Administration and the Department of Health & Social Services for our assisted-living licensing function. Now, these do not apply to nursing homes, but the nursing home certification and licensing staff have said that they are interested in adopting corresponding regulations for the nursing home industry, so that we've got a similar regulation format for both environments of long-term care. They simply have not gotten those regulations adopted yet because of the numerous other projects they've got on their plate right now. One of the things that we've done, in terms of adopting these regulations, is we've taken an approach where we have some crimes that ... create a permanent bar for employment in the long-term care industry, and those are listed ... as "Absolute Barrier Crimes," and you'll see that in the spreadsheet. So somebody who's convicted [of] one of these crimes can never ever be employed in a long-term care environment or in an assisted living environment, which is what these regulations apply to. We have then, after identifying the absolute barriers, ... identified barriers that are time-barred. So, if you have committed the crimes that are listed under "10-Year Barrier Crimes" within the past 10 years, you're not eligible for employment in an assisted living environment. There are crimes where you're time-barred for five years, and there [are] a couple of crimes that are listed as two-year bars. Number 0280 MS. ELGEE continued: This allows [some discretion for] people who have committed crimes, and ... the case you'll find most frequently is somebody who's committed a crime in their youth, and ... 20 years later there's been no criminal history in between that youthful offense and today. And the language that's contained in the committee substitute for [HB 124] would not distinguish; it would make most of the crimes that we have put into our barrier-crime regulations permanent barriers. And that is by virtue of the language that is contained in both sections; first, in the nursing home section on page 2, line 14: "a serious offense, as defined in AS 12.62.900". This makes that serious offense a permanent bar to employment. [Alaska Statute] 12.62.900 is any felony offense. So we would not have that opportunity to differentiate between the degree of time, or the length of time, since that crime was committed. We also are aware of ... an article ... regarding a Pennsylvania court ruling, (indisc. - coughing) published in January of this year. [The] state of Pennsylvania attempted to adopt similar legislation that just had this broad-sweeping "any criminal offense, you never can work in long-term care" kind of approach. And the courts in Pennsylvania ruled that as being too broad, and said, essentially, that there ... needed to be a nexus between the crime and the employment environment in order for you to be able to bar somebody permanently from ever being able to participate in that employment environment. I've checked with our attorneys, and they believe that [with] a permanent bar, such as proposed in HB 124, that our courts would rule very similarly to the Pennsylvania courts. Number 0102 MS. ELGEE concluded: That said, we have no objection to the language that is in [HB 124] requiring the sworn statement that the crimes have never been [committed]; this would allow us to put a zero fiscal note on this bill. And if the legislature wants to actually embody in statute more explicit direction in barrier crimes, we would suggest that you model the statutory language after the regulations that we have adopted. CHAIR ROKEBERG inquired: "You're not suggesting we should adopt, by reference, your regulations in statute?" MS. ELGEE replied: "I think that's backwards, Mr. Chairman; I was suggesting that you actually write into statute ... permanent barriers and list all the crimes ..." CHAIR ROKEBERG interjected, remarking that were they to do that, the bill would become very long. MS. ELGEE concurred. She went on to say: We're very happy, Mr. Chairman, just maintaining this definition in regulation; we think this works very well. And when Representative Halcro started this particular legislation, we had not finished the [adoption] of regulations. But we have, since that time, actually gotten these regulations adopted; they were in a public hearing process last year when this [bill was started]. TAPE 02-49, SIDE A Number 0001 CHAIR ROKEBERG mentioned that it took the sponsor three months to request that the bill be heard in the House Judiciary Standing Committee. REPRESENTATIVE JAMES said that she agreed with Ms. Elgee that youthful indiscretions should not become a permanent bar to employment. She mentioned that some people, early in life, have had alcohol or drug problems, but have since turned their lives around, and those people should not automatically be barred from working in this field. "We have a tough time getting people to work in these jobs; they're not easy, [and] you've got to have a lot of compassion," she added. She noted that after quickly looking over the list provided by Ms. Elgee, she did not see any problems with it. Number 0114 LISA CARESS-BEU, President, Center for Advocacy and Rights of the Elderly (CARING), testified via teleconference in support of HB 124. She said: As president of Alaska's only citizen advocacy group for [protection of the rights] of the elderly, I urge you to support this bill. Alaska currently has no law that prohibits nursing homes and assisted living homes from employing and retaining individuals with criminal backgrounds.... How has Alaska allowed this situation to continue unanswered? Now is the time to raise the bar of expectation when it comes to the care of the vulnerable elderly in our state. Residents in long- term care facilities are often incapable of communicating situations of abuse, neglect, or financial misappropriation. They're depending on us to provide for their safety. Individuals with a history of criminal activity that may be working in or seeking employment in Alaska's nursing and assisted living homes must not be allowed to prey on our most vulnerable senior citizens. Administrators of long-term care facilities have complained that to prohibit individuals with criminal backgrounds from working in their homes shrinks an already depleted labor pool to a point where acceptable staffing ratios are impossible to maintain. This is a nationwide problem; good caregivers are increasingly difficult to attract. However, this is no excuse for employing persons ... [with] known criminal histories. Under no circumstances should a person that is no longer able to communicate their needs be subject to [receiving] intimate care from a person with a known criminal history.... Number 0241 MS. CARESS-BEU concluded: A 1999 ... legislative audit done on the Alaska [Pioneers'] Home system [shows] that they employed four people that had been convicted of sexual abuse. Would you want one of those employees to be responsible for bathing your mother or father? You would never consider allowing a person with such [a] history to be employed in [the] care of our children. Why are our frail elders less deserving of our protection? It's frightening to know that assisted living homes and nursing homes in Alaska currently employ people who've been terminated from previous jobs for substantiated abuse ... [of] long-term care residents. Must residents and their families continue to suffer the employment of people with criminal convictions? Please take this opportunity to help protect Alaska's residents of long-term care from predators roaming the halls of the place that they are to think of as their home. I applaud Representatives Halcro, Hayes, Dyson, and Stevens for taking a stance to protect Alaska's long-term care residents; I ask the rest of this committee to join them and pass HB 124. Thank you. Number 0318 AILEEN HERRING, Vice President, Center for Advocacy and Rights of the Elderly (CARING), testified via teleconference in support of HB 124. She said: I believe that [HB 124] will provide added protection to ... vulnerable elderly adults living in ... nursing and assisted living homes from predators working as caregivers. My late father, Frank Y. Swanson, was a resident of the Sitka and Anchorage [Pioneers'] Homes for five years. Currently there is no law to prohibit nursing and assisted living homes from employing individuals with criminal backgrounds. The 1999 legislative audit lists four individuals employed by the [Pioneers'] Homes that have been convicted of sexual assault. Logic would tell us that we do not want our children cared for by individuals with convictions of theft, rape, pedophilia, or abuse. Why don't we offer the same protection to the vulnerable elderly adult? House Bill 124 will not place any additional financial burden on the state, and would help ensure that the rights and safety of the residents would be protected. I have a personal interest in [HB 124] being passed and implemented so that the frail and ... vulnerable residents in ... nursing and assisted living homes who often have no voice in their care are assured a safe environment in their declining years. My father died under suspicious circumstances at APH [Anchorage Pioneers' Home], and the suspected caregiver is still employed as a caregiver. I just want to urge you to pass [HB 124]; it's a very critical bill, and any crime against the elderly in a nursing or assisted living home is totally unacceptable. Thank you. CHAIR ROKEBERG mentioned that he remembered Ms. Herring's father. MR. KNIGHT, commenting on points raised by Ms. Elgee, said: She says this is a broad-sweeping measure. If you look at the definition of serious ... offense, which is ... currently in statute, we talk about ... any felony ... offense. We currently require that if you want to vote, you can't be convicted of any felonies, so that is a barrier crime that's currently within our statutes. Crime involving domestic violence, crimes involving sexual assault/sexual abuse of a minor, incest, unlawful exploitation of a minor, indecent exposure, contributing to the delinquency of a minor, distribution of pornography, prostitution - these are all serious crimes, they're not broad-sweeping measures. We're not talking about reckless driving misdemeanor B or C charges. We're talking about pretty serious crimes. Number 0532 If you've been convicted of these, you certainly shouldn't be allowed to work in a nursing facility where you have vulnerable adults. And that's all we're trying to get across here. Our senior advocates are very concerned about regulations; regulations are not permanent measures.... They can be changed next week, next year.... As we all know, ... regulations come and go as administrations come and go, and we feel that we need to have something within the statute that has some substance - some teeth - and it's important to get something in there. The regulations that the Department of [Health & Social Services] adopted took five years in the making. They had the statutory authority five years ago; it took five years to get ... something into regulation. The Department of Administration, for nursing facilities, has yet to adopt regulations; granted, with the threat of this (indisc.) legislation, they certainly want to get regulations into place, but I think ... we need to take some measures here. CHAIR ROKEBERG asked whether it is the sponsor's intent to have a higher level of barrier than the departments have. MR. KNIGHT said he would not comment on that issue. He added: "I do know that if you look at the regulations, and I'm not going to waste the committee's time as far as ... trying to look for parallels within the regulations and serious crime offense ..." CHAIR ROKEBERG interjected to say that he was looking at "5-Year Barrier class C felony 'failure to register as a sex offender or child kidnapper in the first degree'." He noted that with this "failure to register" crime, it can be presumed that one has already committed a sex offense. MR. KNIGHT agreed. He added: "We're trying to put some teeth in this statute ...; ... the regulations that the department has adopted will not be negated by our adoption of the statutes." Both would be in effect, he remarked; the [departments] would still have the authority to change their regulations. CHAIR ROKEBERG remarked to Mr. Knight that he appeared to be in direct opposition to the department. MR. KNIGHT disagreed. CHAIR ROKEBERG said that instead of sending HB 124 to a subcommittee, he would rather give Mr. Knight and the sponsor time to work with the departments to develop something acceptable to all parties. Number 0683 REPRESENTATIVE JAMES mentioned that she has known people who have made terrible mistakes in their youth. She also reminded members that she has often spoken against jumping to make people felons at a young age. Making someone a felon when he/she is young can destroy that person's life rather than fixing it, she added. She mentioned that she was raised to believe in the concept of forgiveness, and that considering the low number of people who are even willing to work in this field, she did not want to say that [every felon] is automatically permanently barred from that type of employment. She said, "You've got to make that evaluation on who they are today, what they have been doing over the last number of years, and what their behavior is like." She also said: Drugs and alcohol make a big change in people's lives, and when they can get over that, and many of them do ..., there's a complete change in their behavior. I don't want to rule them out and tell them that their life is no good. So, I would rather have something that is a little more ... permissive in some certain cases.... When we need a lot of people to treat ... [elderly] people compassionately and take care of them in their vulnerable age, I agree that we need to have people who are serious about doing it and doing it right, but I don't want to exclude [people] to the point that we don't ... have anybody to do it. REPRESENTATIVE BERKOWITZ asked whether including an element of discretion in HB 124 would assuage some members' concerns. REPRESENTATIVE JAMES said it certainly would, adding, "I just don't want to write people off if they've worked really hard to rehabilitate themselves." REPRESENTATIVE BERKOWITZ said: "So, you could do it with unlocking presumptions, then." Number 0832 MR. KNIGHT said: I've got a grandmother currently that has Alzheimer's, ... and she lives in a nursing facility back in South Carolina. And ... we come from a good Christian family, she was a good Christian lady growing up, and ... on a personal level, I'd have some serious issues with someone who'd been convicted of sexual assaults and sexual abuse of a minor working with my grandmother who's mentally impaired.... That raises some serious concerns for me, and I know some of that's covered - there are some parallels - within current existing regulations, but I think that we have an opportunity to put something in statute that's going to be lasting. REPRESENTATIVE JAMES acknowledged that she has the same concerns, but added that when [the crime] of domestic violence is included, it raises a whole different issue. CHAIR ROKEBERG asked Ms. Elgee to recap the current status regarding the adoption of the aforementioned regulations. MS. ELGEE said: The regulations for the assisted living environment, which cover both the Department of Administration and the Department of Health & Social Services, were adopted last August. And I would like to clarify that even ahead of this absolute laundry list, so that everybody ... knew what the ground rules were, we were conducting criminal background checks. It was just that we did not have a black and white list that says "yes" to this one, and "no" to that one. CHAIR ROKEBERG announced that the HB 124 [Version R] would be held over.
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