Legislature(2011 - 2012)CAPITOL 120
02/25/2011 01:00 PM House JUDICIARY
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HB 150 - PROTECTION OF VULNERABLE ADULTS/MINORS 1:13:02 PM CHAIR GATTO announced that the [only] order of business would be HOUSE BILL NO. 150, "An Act relating to the protection of property of persons under disability and minors; relating to the crime of violating a protective order concerning certain vulnerable persons; relating to aggravating factors at sentencing for offenses concerning a victim 65 years or older; relating to the protection of vulnerable adults; amending Rule 12(h), Alaska Rules of Criminal Procedure; amending Rule 45(a), Alaska Rules of Criminal Procedure; amending Rule 65, Alaska Rules of Civil Procedure; amending Rule 17, Alaska Rules of Probate Procedure; amending Rule 9, Alaska Rules of Administration; and providing for an effective date." 1:15:58 PM KELLY HENRIKSEN, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law (DOL), noting that the committee had previously received an explanation of Sections 1 - 7, relayed that Section 8 of HB 150 would add a definition of the word, "fraud" to Title 13's provisions pertaining to guardianships and conservatorships; this definition was taken from the statutes pertaining to the Office of Elder Fraud and Assistance - AS 44.21.415. Sections 9-11 would alter provisions of Title 18, and address financial protective orders; specifically, Section 9 would exclude the crime of violating an ex parte financial protective order from the list of crimes subject to warrantless arrest, and Sections 10 and 11 would add financial protective orders to the registry of protective orders maintained by the Department of Public Safety (DPS). MS. HENRIKSEN relayed that [Sections 12-41] pertain to AS 47.24, which governs [the Department of Health and Social Services' (DHSS's)] adult protective services, which - much like the Office of Children's Services - receives and investigates reports of harm to vulnerable adults and, when there is probable cause to believe that harm is occurring, files petitions for conservatorship or guardianship. Specifically, Section 12 would add an employee of an out-of-home residential or health care facility, and an educator or administrative staff member of an educational institution, to the list of mandatory reporters. 1:23:49 PM REPRESENTATIVE GRUENBERG noted that Section 12 would also add the term, "undue influence" to AS 47.24.010(a), and questioned why the term, "fraud" isn't being added there as well. MS. HENRIKSEN, mentioning that there had been discussion on that issue, explained that it's because Title 47 addresses the health and welfare of vulnerable adults, whereas Title 13 addresses fraud and financial matters as they relate to conservatorships and so warranted the inclusion of that term. Furthermore, [Section 41's proposed AS 47.24.900(21)] in part defines the term, "undue influence" as, "deceptively taking control over the decision making of the vulnerable adult, including decision making related to finances, property, residence, and health care"; therefore, the term, "undue influence" is intended to be a little bit broader than the concept of fraud. REPRESENTATIVE GRUENBERG acknowledged that point, but suggested that the term, "fraud" ought to be added to proposed AS 47.24.010(a) regardless, because doing so could be beneficial to those required to report [suspected harm}. MS. HENRIKSEN pointed out, though, that there are already many places in AS 47.24 where the term, "vulnerable adult" along with a description of the harm that makes someone vulnerable - abuse, neglect, exploitation, abandonment, or self neglect - is used, and so several sections of the bill are merely proposing to add the concept of "undue influence" to those provisions. In contrast, the term, "fraud" is considered to be an aspect of the already-used term, "exploitation". In response to a request and a question, she agreed to research the issue further, and again relayed that proposed AS 47.24.900(21) defines the term, "undue influence". That definition requires that the action be deceptive in nature, and although the question of whether someone is acting deceptively is subjective, if one believes that someone is exerting undue influence, then one should file a complaint with the DHSS's adult protective services, which would then determine whether such is actually the case. REPRESENTATIVE GRUENBERG, in response to an earlier question, noted that the term, "peace officer" - part of the existing statutory language in Sections 9 and 11 - is defined in AS 01.10.060(a)(7) as: (A) an officer of the state troopers; (B) a member of the police force of a municipality; (C) a village public safety officer; (D) a regional public safety officer; (E) a United States marshal or deputy marshal; and (F) an officer whose duty it is to enforce and preserve the public peace; 1:30:46 PM MS. HENRIKSEN - indicating that she would be skipping an explanation of the sections of the bill that would merely make conforming changes regarding the term, "undue influence" - went on to explain that [Section 13] would require a [mandatory] reporter to include the contact information of the vulnerable adult in his/her report. Section 15 would permit anyone to make a report of harm, including a mandatory reporter in his/her non- occupational capacity; this language was taken from the statutes pertaining to the Office of Children's Services (OCS) regarding mandatory reporting. Section 16 would require a public safety officer to notify adult protective services within 24 hours of having received a report of harm that involves an imminent risk of serious physical harm to a vulnerable adult. REPRESENTATIVE GRUENBERG expressed concern about Section 16's proposal to delete the words, ", at the earliest opportunity," from AS 47.24.010(e). He suggested that instead that language should be moved to where the proposed new language of, "within 24 hours of receiving the report of harm" is being inserted, such that that sentence would then in part read, "and shall notify the department at the earliest opportunity and within 24 hours". Such a change would ensure that the officer doesn't automatically delay notifying the department for 24 hours. CHAIR GATTO expressed agreement. MS. HENRIKSEN indicated that such a change would be acceptable and in keeping with the administration's goals. In response to questions, she explained that if a mandatory reporter fails to report that a vulnerable adult is being harmed, he/she could face criminal charges; that under existing AS 47.24.010(e), upon receiving a report, a law enforcement officer must take immediate action to protect the vulnerable adult, and so all Section 16 is doing with regard to that officer is requiring him/her to also notify adult protective services within 24 hours of receiving the report; that she's not seen any cases in which an officer, once having received a report of harm to a vulnerable adult, intentionally didn't take action to protect the person; and that she is unsure what penalty an officer would be subject to if he/she doesn't also notify adult protective services as required. 1:36:50 PM TRACI PAIGE, Supervisor, Adult Protective Services, Anchorage Office, Division of Senior and Disabilities Services, Department of Health and Social Services (DHSS), added that when a report is made after hours, the department can't respond until the next business day, and so a mandatory reporter should instead be reporting to a law enforcement officer, who would then, as required, take immediate action to protect the vulnerable adult. In response to comments, she explained that all of the DHSS's adult protective services' offices' phone messages state office hours and direct mandatory reporters to contact law enforcement in emergency situations arising after hours. In response to a question, she concurred that mandatory reporters who then don't follow those directions wouldn't be complying with the law. CHAIR GATTO noted that in Section 16, language on page 9, lines 3-5, says that if the reporting person cannot immediately contact the DHSS's adult protective services, then he/she is required to make the report to a law enforcement officer. REPRESENTATIVE GRUENBERG indicated that that language satisfied his concern. MS. HENRIKSEN then explained that Section 18 would add two new subsections to AS 47.24.010: proposed new subsection (i) would clarify that a mandatory reporter is still required to report to the DHSS's adult protective services regardless that he/she may have also made a report to his/her supervisor or a fellow employee; and proposed new subsection (j) would provide that a person who recklessly makes a false report would be civilly liable for actual damages suffered by the subject of the report. In response to comments and a question, she clarified that language in Section 16 regarding bringing an action for damages pertains to actions taken by a person or an entity attempting to do a good thing - attempting to help a vulnerable adult - and so the damages would be limited to only direct economic compensatory damages for personal injury; in contrast, Section 18's proposed new subsection (j) would pertain to the civil liability of a person doing a bad thing - making a false report - and so that person would be civilly liable for actual damages. In response to a further question, she indicated that proposed AS 47.24.010(j) applies to reckless behavior, rather than to mere negligent behavior, because the department doesn't want people hesitating to make a report. 1:48:32 PM MS. HENRIKSEN - relaying that Sections 19-24 would merely make conforming changes - explained that Section 25 would add seven new subsections to AS 47.24.015, which pertains to the department's investigatory power. Proposed new subsection (h) would require individuals and entities to provide [the department] access to the health and financial records of a vulnerable adult as part of its investigation. Proposed new subsection (i) would prohibit anyone from interfering in an investigation. Proposed new subsection (j) would allow [the department] to file a petition for an ex parte order granting access to records if no petition for guardianship or conservatorship has been filed, and would provide legal standards for obtaining such an order: there must be a report of harm, and it must be shown [that either the ex parte order is necessary in order to access the vulnerable adult, or] that the records are relevant to the investigation. Proposed new subsection (k) would allow adult protective services access to any departmental information necessary to assist in the case - this concept was borrowed from the statutes pertaining to certification and licensing. Proposed new subsection (l) would allow the department to audiotape or videotape an interview of a vulnerable adult if he/she has the capacity to give his/her consent and does so. Proposed new subsection (m) would require the department to provide training to its investigators. Proposed new subsection (n) would define the term, "financial records". MS. HENRIKSEN, in response to questions, explained that the question of whether a vulnerable adult has the capacity to give consent would be determined by the social worker handling the case; that without that consent, the vulnerable adult's interview cannot be taped; that Section 25's proposed subsection (h) would probably not violate the federal Health Insurance Portability and Accountability Act (HIPAA) because the HIPAA provides an exception allowing certain entities to disclose information to an agency charged with investigating reports of harm; that research of what other states are doing indicates that proposed subsection (h) would not cause any constitutional problems; and that proposed subsection (j) reflects the DHSS's desire to have the courts determine that an ex parte order is warranted in certain situations, instead of simply [obtaining] subpoena power. REPRESENTATIVE GRUENBERG expressed disfavor with the department having so much access to a person's financial and healthcare records. MS. HENRIKSEN indicated that the department is requesting these provisions because it is being stymied in its efforts to access the vulnerable adult's information when conducting investigations into reports of harm. The department needs access to those documents, and under provisions of the bill, it could seek an ex parte order without first having to create a court case. REPRESENTATIVE GRUENBERG questioned, though, whether there weren't already provisions in the Alaska Rules of Civil Procedure that allow for obtaining a subpoena without first filing a court case. MS. HENRIKSEN relayed that she was nescient regarding whether there were. REPRESENTATIVE GRUENBERG expressed concern that [the provisions of Section 25] would run counter to the Fourth Amendment. 2:00:23 PM RACHEL LEVITT, Director, Anchorage Office, Office of Public Advocacy (OPA), Department of Administration (DOA), agreed to research that issue, noted that the OPA's Elder Fraud and Assistance section already has the authority to access the financial records of elders who may be the victims of fraud and financial exploitation, and offered her understanding that [Section 25] would merely be providing that same power to the DHSS. MS. HENRIKSEN went on to explain that Sections 26-29 would update the statutes pertaining to surrogate decision-makers by adding new fiduciaries - attorneys-in-fact, trustees, and surrogates for health care decisions under AS 13.52.030 - to the list of those who may serve in that capacity. In response to a question, she explained that an attorney-in-fact is someone who holds power of attorney. In response to another question, she acknowledged that Section 26 would also delete language from AS 47.24.016(a) that precludes a spouse from being chosen as a surrogate decision-maker for a vulnerable adult if they aren't living in the same domicile, and indicated her understanding that this provision of Section 26 would address situations in which the vulnerable adult is in a nursing home or other health care facility, for example. CHAIR GATTO, noting that he doesn't live with his spouse during the legislative session, expressed favor with the deletion of that language. 2:04:32 PM JOANNE GIBBENS, Deputy Director, Central Office, Division of Senior and Disabilities Services, Department of Health and Social Services (DHSS), concurred with Ms. Henriksen's summation of Section 26, and that there could be a variety of reasons the vulnerable adult isn't living with his/her spouse, and offered her understanding that [other provisions of law] address situations involving domestic violence (DV) between a vulnerable adult and his/her spouse. REPRESENTATIVE GRUENBERG - commenting on the [potential] vagueness of the word, "domicile" - expressed favor with Section 26's proposed deletion. He suggested, though, that the phrase, "permanent separation" should be added to Section 26's proposed AS 47.24.030(a)(1), which currently precludes a spouse from being chosen as a vulnerable adult's surrogate decision-maker in situations where one of the parties has initiated divorce or dissolution proceedings. Observing, then, that existing AS 47.24.030(a)(2) uses the term, "lives with", he suggested that more research be conducted to ensure that the provisions of AS 47.24.030(a) are as flexible and inclusive as the DHSS would wish. For example, should the [grown] grandchild of a vulnerable adult be included in the list of people who could be chosen to serve as the vulnerable adult's surrogate decision- maker? REPRESENTATIVE HOLMES pointed out that paragraph (6) of proposed AS 47.24.030(a) allows either a close friend or a relative of the vulnerable adult to be chosen as a surrogate decision-maker, and so [grown] grandchildren, for example, are already addressed. CHAIR GATTO observed that under AS 47.24.030(a), because the word, "or" is used at the end of paragraph (5), the DHSS need choose only one of the people listed in paragraphs (1)-(6). MS. HENRIKSEN mentioned that generally what she has found, at least in Southeast Alaska, is that the department only gets involved with a vulnerable adult to begin with because he/she doesn't already have someone trustworthy to help him/her. In response to questions, she offered her understanding that the reason the person chosen to be a surrogate decision-maker must be at least 18 years old is because a minor doesn't have the legal authority to enter into contracts or make the kinds of decisions that would be required of a surrogate decision-maker; and that she would research whether an emancipated minor, a married minor, and a minor serving in the military ought to be included on the list as well. 2:12:40 PM MS. HENRIKSEN then explained that Section 30 would add family members, conservators, and trustees to the list of people who may be restrained via a court injunction from interfering with a vulnerable adult's receiving protective services. REPRESENTATIVE GRUENBERG asked why that list is limited and the provision doesn't simply apply to anyone who interferes with a vulnerable adult's receiving protective services. MS. HENRIKSEN surmised that it was probably the choice of the drafter to simply add the aforementioned three types of people to the current list rather than expand the provision to include everyone, but indicated the DHSS's interest in having this provision apply to everyone. REPRESENTATIVE LYNN questioned what would constitute a "family member" [for purposes of this provision]. MS. HENRIKSEN indicated that the department would be more concerned with the fact that the interference was occurring at all rather than with who was doing the interfering, and so would take action regardless. CHAIR GATTO, in response to a suggestion regarding how Section 30 could be changed, mentioned that a committee substitute (CS) would be a forthcoming. 2:17:14 PM MS. HENRIKSEN went on to explain that Sections [33-41] would all address [the definitions laid out in AS 47.24.900]; some sections add new definitions and some just clarify and update existing definitions to reflect the DHSS's current practice and understanding of how "these systems" work. Specifically, Section 33 would amend the definition of "abuse" in AS 47.24.900(2)(A) such that it would also include the infliction of emotional distress, and the infliction of fear - including coercion and intimidation. REPRESENTATIVE HOLMES asked why Section 33 is also proposing to delete the word, "wilful" from AS 47.24.900(2)(A). MS. HENRIKSEN explained that that change was recommended by Ms. Carpeneti of the DOL's Criminal Division and reflects that that term generally isn't used anymore and is for the most part subsumed by the already-included term, "intentional". REPRESENTATIVE HOLMES questioned what the difference is between mental distress and emotional distress, and what it would take to prove either of them. MS. HENRIKSEN, indicating that she would provide more information to the committee at a later date, relayed that the concept [of those two different states of being] was partly borrowed from other states' laws and partly borrowed from Alaska's OCS laws, and that this language was intended to be as inclusive as possible, though the DHSS would probably be amenable to having it altered. REPRESENTATIVE GRUENBERG questioned whether the phrase, "coercion and intimidation" should instead be, "coercion and duress", and suggested that Section 33 warranted further review. MS. HENRIKSEN - in response to comments and questions regarding Section 32 [which would make a conforming change to AS 47.24.130 regarding the term, "undue influence"] - noted that "treatment by spiritual means through prayer alone" must be consented to by the person, must be [that of the person's own church or religious denomination, and must be] administered by an accredited practitioner of the person's own church or religious denomination. REPRESENTATIVE HOLMES added her understanding that Section 32 merely clarifies that [AS 47.24] may not be construed to mean that a person is being unduly influenced, abused, neglected, self-neglected, vulnerable, unable to consent, abandoned, exploited, or in need of emergency or protective services simply because he/she chooses to receive treatment only through spiritual prayer. REPRESENTATIVE GRUENBERG questioned whether the protection afforded by AS 47.24.130 would also apply in situations where a person chooses to receive or not receive a particular medical treatment based on his/her philosophical beliefs. MS. HENRIKSEN explained that if a person has the capacity to make a particular health care decision, then [the State] cannot interfere, and that a person's surrogate is legally obligated to follow his/her known wishes. However, if there is conflicting information regarding what those wishes might be, then the DHSS's adult protective services can seek assistance from the courts. REPRESENTATIVE GRUENBERG mentioned that he would be reviewing Section 32 further. 2:36:03 PM MS. HENRIKSEN then explained that Section 34 would add an employee of an in-home care provider to the definition of the term, "caregiver". The existing definition only includes [family members,] volunteers, people working on contract, and people who are complying with a court order; employees of an in- home care provider don't necessarily have their own contract, and so Section 34 would bring the definition of "caregiver" up to date. Section 35 would add a definition of the term, "informed decision" to the definition of the term, "decision making capacity"; an "informed decision" would be defined as a decision made free from undue influence. Section 36 would amend the definition of the term, "exploitation" in order to capture the concepts of deception and undue influence. REPRESENTATIVE GRUENBERG, turning attention back to Section 35, opined that defining the term, "informed decision" to only mean a decision made free from undue influence doesn't go far enough; that term should instead be defined to mean a decision that is both free from undue influence and that is informed. MS. HENRIKSEN offered her belief that the existing definition of the term, "decision making capacity", meaning in part the ability to understand and appreciate the nature and consequences of a decision, doesn't make sense unless there is the assumption that the person has been informed. REPRESENTATIVE GRUENBERG pointed out, though, that that concept is not specifically included in the definition of the term, "informed decision", and again opined that it should be, since one could be free of undue influence but still be ignorant of the essential facts. 2:38:38 PM MS. HENRIKSEN remarked that "the only way we could assess whether they ... appreciate the nature and consequences of that specific decision is if ... they've been given the information." She offered her belief, though, that the administration wouldn't object to such a change. REPRESENTATIVE LYNN pointed out, though, that some people may not want to be informed about certain facts; for example, some people may not wish to know they have a terminal disease. MS. HENRIKSEN then acknowledged that someone's ability to assess and understand the consequences of his/her decision could be assessed [by the DHSS] without the person having a specific piece of information. CHAIR GATTO remarked that a person could make a decision about a specific course of action he/she wants taken in the future, while stating that he/she doesn't want to be informed about the details surrounding that course of action whenever it finally is undertaken. REPRESENTATIVE GRUENBERG said, "That may be satisfied when the definition of 'informed consent' means, 'informed of all the essential elements', and in that case, it would be irrelevant in the legal sense, because it wouldn't make a difference." MS. HENRIKSEN clarified that Section 35 - rather than addressing the specific level of information a person must have - is intended to ensure that no one is pressuring a person to do a particular thing. REPRESENTATIVE GRUENBERG suggested, then, that the word, "means" as used on page 16, line 24, should be replaced with the word, "includes". MS. HENRIKSEN agreed that that wording would be more precise. 2:43:02 PM MS. HENRIKSEN went on to explain that Section 37 would clarify the definition of the word, "neglect". Section 38 would update the definition of the term, "protective services" by listing specific examples; "protective services" are services that alleviate the harm resulting from undue influence, abandonment, exploitation, abuse, neglect, or self-neglect, and that may be provided with the consent of the vulnerable adult, of his/her decision maker, or of the DHSS's adult protective services in an emergency. Section 39 would clarify the definition of the phrase, "unable to consent". Section 40 would amend the definition of the term, "vulnerable adult" such that it would track specific language in the statutes pertaining to guardianships and to conservatorships that set out the legal standard for the appointment of a guardian or conservator. MS. HENRIKSEN, in response to a question about Section 40 and its use of the term, "chronic", explained that with regard to how a mandatory reporter would know when to report, if he/she suspects that a person is vulnerable, the best thing would be for the mandatory reporter to report it; doing so but being mistaken won't result in any penalties, whereas neglecting to do so would. In response to comments, she agreed to provide the committee with definitions of [the terms, "chronic" and "advanced age"]. 2:48:00 PM MS. HENRIKSEN then explained that Section 41 would provide definitions for the terms, "deception", "fiduciary duty", "financial institution", "person who stands in a position of trust or confidence", and "undue influence". The remaining sections of the bill, Sections 42-47, address proposed changes to uncodified law and establish an effective date. In response to a question regarding Section 41, she indicated that the proposed definition of the term, "financial institution" was taken from existing Alaska statute, and that the definitions for the other terms were gleaned from other states' [laws]. REPRESENTATIVE GRUENBERG turned attention to Section 41's proposed definition of the term, "undue influence", and pointed out that although it specifies that the term means a person has acted deceptively, not all instances of undue influence involve deception. Furthermore, Section 36's proposed addition to the definition of the term, "exploitation" uses both the term, "under influence" and the term, "deception". He suggested that those definitions be revisited to ensure that they satisfy the administration's intentions. MS. HENRIKSEN acknowledged those points. REPRESENTATIVE GRUENBERG expressed concern regarding the language that would be added to the Alaska Rules of Criminal Procedure via Section 42, and suggested that the "120-day rule" pertaining to continuances [in criminal cases] warranted further review as does the similar rule in the Alaska Rules of Civil Procedure. "If you're changing rules, make sure that they're all changed and that they're changed right," he concluded. CHAIR GATTO, in response to a suggestion and upon determining that there were no objections, assigned HB 150 to a subcommittee chaired by Representative Gruenberg.