02/16/1994 01:42 PM Senate HES

 CHAIRMAN RIEGER introduced  SB 248  (ASSIST & PROTECT VULNERABLE              
 ADULTS) as the next order of business before the committee.  He               
 offered his proposed amendment, Lauterbach 8-GS2001\A.1, as                   
 Amendment 1.  He explained that his amendment was a type of                   
 indemnification so that the state can provide services to                     
 vulnerable adults without creating additional liability.  Chairman            
 Rieger moved to adopt Amendment 1.                                            
                                                                               
 AMENDMENT 1                                                                 
                                                                               
 Page 3, line 25, after ".":                                                   
  Insert " A person may not bring an action for damages against               
  a police     officer, village public safety officer, the state,   te,  
  a political subdivision of the state based on a decision under               
  this subsection to take or not to take immediate action to                   
  protect a vulnerable adult.  If a decision is made under this                
  subsection to take immediate action to protect a vulnerable                  
  adult, a person may not bring an action for damages based on                 
  the protective actions taken unless the protective actions                   
  were performed with gross negligence or intentional                          
  misconduct; damages awarded in the action may include only                   
  direct economic compensatory damages for personal injury."                  
                                                                               
 Page 7, line 22:                                                              
  Insert new subsections to read:                                              
   "(e) A person may not bring an action for damages based                     
   on   a decision under this section to offer or not to offer               
   protective services to a vulnerable adult.                                  
   (f) A person may not bring an action for damages based on                   
   the provision of protective services under this section                     
   unless the action is based on gross negligence or                           
   intentional       misconduct.  The damages awarded in an actio   tio  
   under this section may include only direct economic                         
   compensatory damages for personal injury."                                  
                                                                               
 Hearing no objections, Amendment 1 was adopted.                               
                                                                               
 CONNIE SIPE, Director of the Division of Senior Services,                     
 introduced her February 15 markup of SB 248.  She discussed her               
 first amendment, Amendment 2, which would restore the language on             
 lines 1 and 2 of page 2.                                                      
                                                                               
                                                                               
 Number 093                                                                    
                                                                               
 CHAIRMAN RIEGER moved to adopt Amendment 2.                                   
                                                                               
  AMENDMENT 2                                                                
                                                                               
 Page 2, lines 1, after "AS 47.30.915(11)":                                    
  Insert "and including a marital and family therapist licensed                
  under AS 08.63"                                                              
                                                                               
 Hearing no objections, Amendment 2 was adopted.                               
                                                                               
 CONNIE SIPE explained that the next amendment, Amendment 3, gives             
 a degree of behavior to judge their harm against not a rectifiable            
 civil cause.                                                                  
                                                                               
 SENATOR MILLER stated that the problem was not corrected due to the           
 previous change of "shall" to " may "  on line 22 of page 3.  He            
 pointed out that Amendment 3 would specify "serious physical harm",           
 but the reporting to the police is still optional due to line 22.             
                                                                               
 CONNIE SIPE said that Kristen Bomengen of the Department of Law               
 felt that " may " should remain because that subsection refers to th    th  
 average citizen not a person who is required to report.  She                  
 proposed changing line 17 to "a person required to report under               
 this section" and the " may " would become "shall."                         
                                                                               
 SENATOR MILLER did not have a preference regarding this issue.  He            
 asked what the penalties are if those required to report do not.              
 CONNIE SIPE noted that there are no specific penalties, but there             
 is a penalty if a required reporter does not make the initial                 
 report.  If shall was put back in line 22, civil liability would              
 come into play.  She did agree that it would be acceptable to                 
 restrict line 17 to required reporters.                                       
                                                                               
 SENATOR MILLER preferred restricting the section to required                  
 reporters.  CONNIE SIPE stated that to restrict Subsection (e) to             
 required reporters, the language on line 1 of page 3 would be                 
 parallel to line 17.                                                          
                                                                               
 Number 170                                                                    
                                                                               
 SENATOR SALO expressed concern with changing line 17.  She                    
 explained that the change would speak twice to those required to              
 report and not at all to others who may report.  CONNIE SIPE stated           
 that Subsection (d) eliminates some of the elaboration on other               
 people reporting, but lines 6 and 7 are an invitation for others to           
 report.                                                                       
                                                                               
 SENATOR SALO questioned the difference in Subsection (c) and (e) if           
 line 17 is changed to speak to those required to report.  CONNIE              
 SIPE noted that Subsection (e) with the change of line 17 would               
 speak to those required to report in the event " of   serious physi   ysi  
 harm " when the department cannot be accessed.  In such a case those    se   
 required to report can report to the police who can take immediate            
 action to protect the vulnerable adult from the harm.  SENATOR SALO           
 said that this subsection was cumbersome.                                     
                                                                               
 CONNIE SIPE informed the committee that this subsection was the               
 result of insertions by the Legal Drafting.  She suggested breaking           
 the subsection into separate sentences to address the required                
 reporter with shall and the other persons with may.                           
                                                                               
 SENATOR MILLER suggested leaving the language as changed in                   
 Amendment 3, but that the individual's packet should explain the              
 options and requirements.                                                     
                                                                               
 Number 230                                                                    
                                                                               
 CHAIRMAN RIEGER moved to adopt   Amendment 3.                               
                                                                               
  AMENDMENT 3                                                                
                                                                               
 Page 3, line 19, after " risk ":                                            
  Insert " of serious physical harm "                                        
                                                                               
 Hearing no objection, Amendment 3 was adopted.                                
                                                                               
 CONNIE SIPE explained that Amendment 4 came about due to concerns             
 with the possibility that the state would have the ability to                 
 unduly take over these vulnerable adults based on the surrogate               
 decision maker.  She stated that Amendment 4 should explain the               
 limits of the surrogate decision maker.                                       
                                                                               
 SENATOR SHARP proposed changing the language of Amendment 4 from              
 " is no longer unable to consent " to "regains the ability to               
 consent."                                                                     
                                                                               
 CHAIRMAN RIEGER inquired if the phrase " regains decision-making             
 capacity " has some legal appropriateness and would be all that              
 should be used.                                                               
                                                                               
 CONNIE SIPE explained the differences in the legal meaning of                 
 decision-making capacity and the inability to consent.  She said              
 that both should remain, but that the amendment could be redrafted            
 as Senator Sharp had suggested.  SENATOR MILLER suggested changing            
 " no longer unable   to consent   " to "able to consent."               
                                                                               
 CHAIRMAN RIEGER suggested having the legal drafter correct the                
 phrase if Amendment 4 was adopted with the conceptual change.                 
                                                                               
 Number 287                                                                    
                                                                               
 SENATOR SHARP moved to adopt Amendment 4 with the conceptual                  
 change.                                                                       
                                                                               
  AMENDMENT 4                                                                
 Page 8, after line 27:                                                        
  Insert new subsection:                                                       
   "(d)     When the vulnerable adult regains the ability to                
   consent or decision-making capacity, the department may                     
   no longer use the consent given by the surrogate decision                   
   maker as a basis for continuation of protective services                    
   to the vulnerable adult."                                                  
                                                                               
                                                                               
 CHAIRMAN RIEGER objected and explained that SB 248 should have a              
 judicial referral due to the complexities that may be triggered               
 with the surrogate decision maker issue.  CHAIRMAN RIEGER removed             
 his objection.    Hearing no objections Amendment 4 was adopted.            
                                                                               
 SENATOR MILLER moved SB 248 as amended out of committee with                  
 individual recommendations.  Hearing no objections, it was so                 
 ordered.