Legislature(1993 - 1994)

03/16/1994 01:15 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  HB 376 - ASSIST & PROTECT VULNERABLE ADULTS                                  
  CONNIE SIPE, Executive Director of the Division of Senior                    
  Services, Department of Administration, testified that this                  
  legislation is a bill that has been worked through                           
  inter-agency as part of the Governor's package of reform                     
  bills.  Currently, we have an elder abuse reporting law and                  
  a mandatory reporting requirement for abuse of adults.                       
  House Bill 376 essentially combines them into one statutory                  
  section as an act protecting vulnerable adults.  She further                 
  stated that the bill would allow the department to make more                 
  of a distinction between those who can take care of                          
  themselves and those who need the intervention of the state.                 
  It would also streamline abuse reporting and reduce the                      
  duplication of state agencies who have had the jurisdiction                  
  to investigate abuse, especially in the nursing home, or a                   
  facility situation where we would have Family and Youth                      
  Services, the Nursing Home Certification Licensing people,                   
  and the long-term care ombudsman all having jurisdiction and                 
  all investigating the same incident of abuse.  Ms. Sipe                      
  indicated that 38 percent of the reports of abuse are                        
  actually requests for services from someone and this                         
  legislation would consolidate those requests.  This                          
  legislation would allow the department to handle a case to                   
  criminal authorities for prosecution despite a request to                    
  have the case dropped by a relative or nonvulnerable adult.                  
  MS. SIPE stated that amendments to the state's                               
  confidentiality law incorporated in the bill would allow                     
  agencies to share certain information, on a need to know                     
  basis, with the reporter of the abuse.  Also, this bill adds                 
  a section on surrogate decision makers.  This would allow                    
  for a circumstance where a person appears to be incapable of                 
  making decisions, which would qualify them eventually for a                  
  guardianship, or they're temporarily unable to consent,                      
  temporarily, to protective services.  This would allow a                     
  decision to be made for them, especially in an emergency                     
  situation.  She stated that it was only meant to be used for                 
  certain limited situations.                                                  
  MS. SIPE further stated HB 376 incorporated provisions that                  
  would spell out how the division could petition the court to                 
  carry out adult protective services when the case may arise.                 
  She indicated that major changes in HB 376 are in the                        
  definition section.  The definition of abuse was redefined                   
  to focus on intentional or reckless abuse.  Next, the                        
  definition of neglect was now defined to focus on                            
  intentional failure to provide care.  It can't be                            
  interpreted as just an inability to provide care.                            
  Additionally, a new definition of "exploitation" is created                  
  which includes exploitation against a person as well as                      
  PATRICIA DENNY, Executive Director of the Older Alaskans                     
  Commission, Department of Administration, testified in                       
  support of HB 376.  She further testified that the Older                     
  Alaskans Commission has been in support of this type of                      
  legislation for several years and she felt this was a new                    
  opportunity for services not covered in existing or previous                 
  REP. GREEN asked to explain the fiscal notes.                                
  MS. SIPE responded that the Division of Family and Youth                     
  Services was handling the caseload now and the function has                  
  never been funded, thus the fiscal notes would address this                  
  issue.  Further, Ms. Sipe indicated that training would be                   
  provided with funds in the fiscal note.  What the fiscal                     
  note shows is that all the resources in Family and Youth                     
  Services for adult protective services are going to be                       
  transferred to the Division of Senior Services.  So there is                 
  no new funding.                                                              
  REP. JAMES responded that the fiscal notes do not reflect                    
  that there are no increases or decreases in funding.                         
  MS. SIPE responded that what she has in her packet was a                     
  fiscal note from the Division of Senior Services which shows                 
  a total fiscal note cost in FY 95 of $559,600 and five                       
  full-time positions.  Then, there should be a zero fiscal                    
  note from the Pioneer Homes section which shows they are                     
  going to transfer empty positions.  There should be a fiscal                 
  note from Family and Youth Services showing a deletion of                    
  $559,600 from their budget to come over.                                     
  CHAIRMAN PORTER inquired whether on page 5, line 18, the                     
  vulnerable adult who is 60 years of age or older was to be                   
  left as is or did she want to cover all of them again?                       
  MS. SIPE responded that this was the section they struggled                  
  with to reduce the number of state agencies that go in.  She                 
  elaborated that by federal law and state statute that                        
  follows it, a long-term care ombudsman who has jurisdiction                  
  to look into any complaints that occur in our out of home                    
  care facilities such as a Nursing Home, a Pioneer Home, etc.                 
  But his jurisdiction only starts at age 60 by federal and                    
  state law.  So for people over 60 there are two, a long-term                 
  ombudsman and the medical and certification licensing for                    
  that nursing home who have authority.  For people under 60                   
  they have a licensing authority.                                             
  CHAIRMAN PORTER inquired on page 6, line 28, the sentence                    
  which begins with "the department or its designee shall                      
  conduct a face-to-face interview with the subject of the                     
  report unless that person is unconscious or the department                   
  or its designee has determined that a face-to-face interview                 
  could further endanger the vulnerable adult."  He asked, do                  
  you mean the subject to be the same person as the vulnerable                 
  adult in that sentence?                                                      
  MS. SIPE responded yes.                                                      
  CHAIRMAN PORTER referred to page 7, line 20, where it says                   
  "upon request a person who has made a report to the                          
  department under the reporting requirement regarding a                       
  vulnerable shall be notified of the status of the                            
  investigation," and asked if we are to presume that this                     
  status information is only going to go to these people who                   
  are listed who are required to report, or is this any person                 
  who happens to file such a report?                                           
  MS. SIPE responded that if they are the required reporters                   
  under AS 47.24.010(a), yes, but under AS 47.24.010(d) allows                 
  any other person from reporting cases of abandonment,                        
  neglect, abuse, harm, etc.  It is going to come to the                       
  attention of that person anyway, whether in their                            
  professional duty or because they are a neighbor or they are                 
  a family member, so this applies to everyone under 010.                      
  Required reporters and voluntary reporters can get the                       
  status of the investigation or the status of the case.  The                  
  statute, though, does allow the division discretion to not                   
  necessarily give out all the confidential facts of this                      
  person's life.  Status means telling if the person is now                    
  safe.  But the term covers any reporter.                                     
  CHAIRMAN PORTER then asked whether the division was                          
  interpreting this to change any existing confidentiality                     
  MS. SIPE responded that this was a slight change because                     
  previously it was not mandatory that they be given this                      
  information before this status report.  It has been the                      
  practice of the division to usually do it but it has not                     
  been stated in law.                                                          
  CHAIRMAN PORTER inquired as to whether the division would                    
  object to changing the language to make sure this is not a                   
  requirement to otherwise disclose confidential information.                  
  MS. SIPE responded yes.                                                      
  CHAIRMAN PORTER referred to page 9, line 10, where it says                   
  "notwithstanding (a) of this section, if the department                      
  determines that an emergency situation exists that                           
  necessitates provision of the protective services to a                       
  vulnerable adult, the department may provide the necessary                   
  protective services in a manner determined..." and stated,                   
  these would be temporary protective services, would they                     
  MS. SIPE responded yes.                                                      
  CHAIRMAN PORTER remarked that it may very well be that this                  
  would turn out to be sustained protective service, but there                 
  would be a commitment order.                                                 
  MS. SIPE responded yes.  Or there may consent obtained after                 
  the emergency situation passes.                                              
  CHAIRMAN PORTER asked if the division would object to                        
  "temporary protective services" on line 11.                                  
  MS. SIPE responded that would be fine.                                       
  CHAIRMAN PORTER inquired if page 11, line 9, "An employer or                 
  supervisor who makes a good faith report..." was a standard                  
  whistle blower provision and if it was really necessary.                     
  MS. SIPE responded that each whistle blower statute is                       
  usually tied to something and there was no general whistle                   
  blower statute that covers everything.                                       
  CHAIRMAN PORTER then asked whether there was some case law                   
  on defining "good faith report" from other statutes.                         
  MS. SIPE responded that there was a body of law out there.                   
  CHAIRMAN PORTER referred to page 11, line 13, where it says                  
  "the person making the report may bring a civil action for                   
  compensatory and punitive damages against an employer or                     
  supervisor who violates this subsection."  He asked why are                  
  we saying so and are we asking them to do that?                              
  MS. SIPE responded that you can have different rights under                  
  a statute.  Usually the statute will define whether you have                 
  a right to actually be compensated for a loss.  The law will                 
  also say whether you have a right to punitive damages, for                   
  instance, in a bad faith situation where an employee blows a                 
  whistle on a nursing home or something.  So unless the law                   
  says the level you have, the only alternative would be to                    
  ask the courts for an injunction reinstating me to my job                    
  and I couldn't get compensation for the lost wages, nor can                  
  I get any punitive damages.                                                  
  REP. GREEN stated on page 2 of the fiscal note analysis of                   
  the senior services administration it says "purchase                         
  protective services, adult/residential" and asked if that                    
  was  home.                                                                   
  MS. SIPE responded that it's not a home that's purchased.                    
  Adult protective services now, if it finds a person who                      
  can't live safely at home, and they have been the victim of                  
  abuse or neglect, and if they don't have the money to buy                    
  their own placement, we'll pay for them to be placed in an                   
  adult foster home or an adult foster care center.  They chip                 
  in their own monthly resources or income and then family and                 
  youth services makes up the difference, which maxes out now                  
  at $43.00 per day.  So this is the contract money currently                  
  used which is being transferred.                                             
  CHAIRMAN PORTER tabled discussion on HB 376 for a later date                 
  and brought HB 517 before the committee for discussion.                      

Document Name Date/Time Subjects