Legislature(2005 - 2006)CAPITOL 120
04/11/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB14 | |
| HB12 | |
| SB105 | |
| HJR9 | |
| HB150 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 246 | TELECONFERENCED | |
| = | HB 14 | ||
| * | HB 257 | ||
| + | HJR 9 | TELECONFERENCED | |
| += | HB 150 | TELECONFERENCED | |
| HB 53 | |||
| += | HB 12 | TELECONFERENCED | |
| += | SB 105 | TELECONFERENCED | |
| += | HB 96 | TELECONFERENCED | |
HB 14 - DISCLOSURES BY FOSTER PARENTS CHAIR McGUIRE announced that the first order of business would be HOUSE BILL NO. 14, "An Act relating to disclosure of information about a child or a child's family to a legislator or a member of a legislator's staff; and making conforming changes." [Before the committee was CSHB 14(HES).] 1:14:45 PM HEATHER NOBREGA, Staff to Representative Norman Rokeberg, Alaska State Legislature, sponsor, said on behalf of Representative Rokeberg that HB 14 came about after constituents relayed to him that foster parents are not currently permitted to discuss with legislators confidential information regarding their foster children. This precludes foster parents from seeking legislative help in matters pertaining to those children. House Bill 14 will allow foster parents to contact their legislator and speak with him/her or his/her staff about their foster children. She mentioned that it has been brought to the sponsor's attention that language in HB 14 might conflict with federal law, and so she asked that the bill be held over so that that issue can be addressed. 1:16:50 PM TAMMY SANDOVAL, Acting Deputy Commissioner, Office of Children's Services (OCS), Department of Health and Social Services (DHSS), concurred that HB 14 proposes to allow foster parents of children who are in State custody to disclose privileged and confidential information to a legislator or a member of his/her staff for review or use in the legislator's or legislative staff's official capacity. However, subsequent to the bill being reported from the House Health, Education and Social Services Standing Committee, the OCS learned that adding foster parents to the list of those able to disclose confidential information to a legislator or legislative staff member would cause the OCS to be in violation of federal law, specifically "title IV-E," and thus jeopardize approximately $29.7 million in federal reimbursements for fiscal year 2006 (FY 06). She mentioned that members' packets include a copy of the federal language. MS. SANDOVAL went on to say: Absolutely, for the record, I just want to say ... [that] we want to be responsive to the needs of foster parents, [and] that we believe that existing [AS 47.10.080(q)] clearly defines and limits what specific information foster parents are entitled to. They are entitled to the child's case plan; ... medical, mental health, and educational information regarding the child to assist them in providing the proper care for that child; [and] ... information to help assure the safety of the child and their own family's safety. The same statute clearly requires foster parents to maintain confidentiality of records regarding a child placed in their home except when the disclosure of the records is necessary to obtain medical and education services for the child - for example, providing information to physicians. We believe that there are several avenues by which foster parents can ... get their needs met through our system. Foster parents are a part of the regular case review system, which allows them to express concerns they have about the plan and/or services being provided for children in their care. They're allowed and encouraged to attend court hearings, provide testimony to the judge; they're welcome to contact their licensing specialist, the assigned worker ..., [and] their ... social worker's supervisor. And then there are other levels as well: the staff manager, the regional children's services manager, and just this morning I responded to a concern. So there are several lines of communication by which we hope that foster parents can get their needs met through us. Additionally, foster parents have access to a formal grievance process and the ombudsman's office if they feel the issues they have with the department are not being resolved. For that reason, the department opposes HB 14. 1:20:35 PM REPRESENTATIVE COGHILL asked what can a foster parent currently discuss with his/her legislator. MS. SANDOVAL said: I think that there's a number of things that ... foster parents can say. What we're concerned about is confidential information. ... It seems like specifically what we want to be able to do is talk to you about our process rather than specific information about a child; [we'd] rather talk about our policies and procedures and the normal process. ... And you alerting us is one thing, what's being said and what we can say back is another. REPRESENTATIVE GARA asked what is the law currently with regard to what information a foster parent can discuss with a legislator. 1:22:10 PM STACIE KRALY, Senior Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law (DOL), said that theoretically, all information in a child in need of aid (CINA) proceeding is confidential, adding that AS 47.10.092(c) provides criminal penalties for violating the confidentiality provisions pertaining to CINA cases. She elaborated: A foster parent who has access to confidential information should ... not call their legislator and divulge that confidential information, and doing so would potentially subject them to criminal penalties. The question ... [becomes one of] reciprocity, if you will. If a foster parent calls a legislator and says, "I've got a problem with the Office of Children's Services and 'X'" - whatever the issue may be - as long as it's not a confidential communication, then the legislature can call the Office of Children's Services and say, "We've got this issue," and we can talk about the process. It's just getting into the underlying confidential information - the case plan, information about the parents, information about the children, what sort of services they're receiving - that information is confidential and, theoretically, if divulged by anybody, even by the Office of Children's Services, [they would be] subject to ... potential criminal penalties. ... REPRESENTATIVE GARA opined that if a foster parent sees a child being abused by the natural parent, he/she ought to be able to discuss this with the OCS even if "that evidence" was also an aspect of the CINA proceeding. "It seems to me that the law couldn't be interpreted to mean you can't talk to somebody about what you saw once it becomes part of the confidential proceeding; you just can't talk about the things that you only know because they've gone on in a confidential proceeding, right?" he asked. MS. KRALY concurred, adding that nothing within "this construct of what we're talking about" would preclude anybody, let alone a foster parent, from making a report of harm to the OCS or to a legislator in his/her legislative capacity. CHAIR McGUIRE remarked that the issue is probably not as clear- cut as that, particularly in CINA situations involving ongoing abuse. 1:26:26 PM MS. KRALY agreed. She opined, however, that the distinction being made within the context of the statute is whether the information has been independently received or whether it was received solely due to the fact of being a foster parent and thus having access to the confidential information. If the latter were the case and the foster parent were to call a legislator and divulge that information, he/she would basically be waiving a [biological] parent's privacy rights and well as the child's privacy rights. The issue becomes one of ensuring that the information a foster parent has is kept in the highest of confidence, and if a foster parent has a concern and calls a legislator for assistance, of course the OCS wants to know about the concern and be given a chance to address it, but the question then becomes one of just how much information the OCS can exchange with a legislator in response to a concern brought forth by a foster parent. The main concern is that if the changes proposed by HB 14 take place, and the confidential aspects of a CINA case are divulged without first obtaining a waiver from the [biological] parent, the OCS risks losing federal funding. CHAIR McGUIRE noted that CSHB 14(HES) no longer contains reference to the confidential information about the child's family. She mentioned that although she would trust Ms. Kraly and Ms. Sandoval to provide legislators with the information they need to assist constituents, there is no guarantee that the same could be said of future departmental employees; sometime things fall through the cracks, and [the current limitation] on the kinds of information a foster parent can share with a legislator could be construed as interfering with a foster parent's ability to go to his/her legislator and seek assistance in the same way a biological parent could. 1:29:49 PM REPRESENTATIVE DAHLSTROM relayed that in the few cases that she has been involved with, the [biological] parents were willing to sign a confidentiality waiver and that is all that was needed in order for her to assist her constituents. She said that she was reassured that departmental employees were not just giving out confidential information but were instead making sure that she did actually have a waiver. She added that she is comfortable with the concept that information in CINA cases be kept confidential. CHAIR McGUIRE noted that the House Health, Education and Social Services Standing Committee showed bipartisan support for the bill. REPRESENTATIVE DAHLSTROM surmised that whether one supports the bill or not depends on how the issue is phrased. If the issue is looked upon as simply striving towards what is in the best interest of the child, then the proposed change might be viewed in a favorable light, but if the issue is looked upon with the knowledge that not all citizens use information in the correct way or for the betterment of the child - and sometimes even have ulterior motives - then the concept of using caution when releasing confidential information could seem to be the better choice. REPRESENTATIVE GARA said he has mixed feelings about [the issues raised by the bill], referred to a case that came to light the previous summer, and surmised that the bill came about in response to that case. He said that absent some showing that the OCS is acting abusively or incompetently, he is not willing to alter the current confidentiality provisions. 1:34:33 PM REPRESENTATIVE COGHILL made mention of a bill that he has sponsored. He opined that parents have a "natural supremacy," but because sometimes parents do things that they ought not do, foster parents have been called upon to take over the parents' duties. A frustration arises when legislators are called upon to act as watchdogs over some of the department's actions, he remarked, adding that he is satisfied with just having the ability to discuss issues of process. Issues involving confidential information will just have to be decided by the courts. He mentioned that he struggles with the issues raised by the bill because he gets a lot of calls by people who are looking for help in navigating the system. CHAIR McGUIRE indicated that one of the issues that has recently arisen is that of providers being able to share information with each other, and noted that yet another bill will be addressing that issue. She mentioned that one of her constituents has mentioned to her that if state agencies know that certain children in state custody have behavioral problems, that information should be disclosed to school officials in order to ensure the safety of all the children in the school system. REPRESENTATIVE DAHLSTROM relayed that she is familiar with the aforementioned case, and noted that media portrayals of those involved in that case were not accurate, but the OCS was unable address the accusations that were made against it because of the current confidentiality provisions in state law. She went on to say she has never had any conversations with OCS employees wherein they indicated that they were unwilling to take steps to improve the current system. 1:41:29 PM REPRESENTATIVE GRUENBERG referred to AS 47.10.092(c), and noted that it says, "A person who violates a provision of this section is guilty of a misdemeanor, and upon conviction is punishable by a fine of not more than $500 or by imprisonment for not more than one year, or by both.". He relayed that he would be offering an amendment that would alter AS 47.10.092(c) such that it would say a violation of it would also be a violation of AS 24.60.060(a), which says: A legislator or legislative employee may not knowingly make an unauthorized disclosure of information that is made confidential by law and that the person acquired in the course of official duties. A person who violates this section is subject to a proceeding under AS 24.60.170 and may be subject to prosecution under AS 211.56.860 or another law. REPRESENTATIVE GRUENBERG asked whether there is currently any requirement for a legislator or legislative staff member to sign a statement of confidentiality. MS. KRALY offered her understanding that AS 47 requires temporary assistance information to be kept confidential and provides a form that must be signed by legislators before they receive that confidential information, and said this type of form is also being used by the OCS to ensure that information released to legislators under AS 47.10 is kept confidential, though in such instances the form is not statutorily required. REPRESENTATIVE GRUENBERG opined that it should be. MS. NOBREGA clarified that the bill was not introduced in response to the aforementioned case; instead, it was introduced in response to a situation involving a foster parent who was being dissuaded by OCS staff from contacting his/her legislator's office regarding difficulties he/she was having in obtaining reimbursement from the OCS. CHAIR McGUIRE relayed that CSHB 14(HES) would be held over.
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