Legislature(2003 - 2004)
02/04/2004 01:32 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 201-HOME & RESPITE CARE: CRIMINAL RECORDS
MS. VIRGINIA STONKUS, Division of Public Health, Department of
Health and Social Services (DHSS), testified that the department
was in support of the bill and that she was available to answer
questions. She noted fiscal notes from both DPS and DHSS.
MR. BRIAN HOVE, Staff to Senator Ralph Seekins, testified that
SB 201 solves a problem that occurred during the prior
administration. He referenced home care providers Title 47,
noting that AS 12.62.035(a) was repealed; SB 201 corrects that
gap.
SENATOR LYDA GREEN mentioned that 201 is somewhat of a Revisor's
Bill.
CHAIR DYSON inquired about the practical applications of SB 201,
asking, "What difference does it make?"
MR. HOVE responded that the bill allows home care providers to
access certain records available through public law. He said
Jerry [Luckhaupt] would speak to the bill's technical
applications.
CHAIR DYSON asked if home care providers' ability to perform
criminal background checks would be inhibited without this bill.
MR. HOVE responded he understood this to be so.
CHAIR DYSON asked if SB 201 originated in [Senate] Judiciary.
MR. HOVE explained that Senator Seekins was the primary sponsor;
the bill came through [former] Senator Robin Taylor's office,
the prior chair of Judiciary.
CHAIR DYSON clarified that Version H, which was before the
committee, was from Judiciary, not Senator Seekins.
MR. HOVE confirmed this was correct.
JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Research and Legal Services, testified that the
revisor discovered the problem in statutes and contacted the
Judiciary chair who decided to sponsor the bill rather than
making it a technical amendment to the Revisor's Bill. Home
health care providers and nursing facilities, before being
issued a license and before allowing employees to work, are
required to perform certain background checks of employees; that
refers to a statute that was repealed in a governor's bill about
five years ago. Basically this leaves no direction regarding
which convictions employers are allowed to check. There is also
a federal law requiring home health care providers and nursing
facilities to perform background checks, thereby giving them
access to federal records. Mr. Luckhaupt continued that he
looked to the federal law, Public Law 105-277, noting that it
requires certain criminal records of employees to be checked.
Right now, checks are being required under a state statute that
doesn't exist; this doesn't make much sense.
CHAIR DYSON referenced the letter from James Crawford included
in the committee packet.
MR. LUCKHAUPT explained that as assistant revisor, he was
pointing out the problem that existed.
CHAIR DYSON asked if Mr. Crawford was suggesting that the
Legislature provide a more substantive solution than what Mr.
Luckhaupt was proposing.
MR. LUCKHAUPT explained that Mr. Crawford was pointing out that
the reason this couldn't be included in the Revisor's Bill was
because the Legislature's intent was not known. The section had
just been repealed. Because there was no way to discern the
Legislature's intent in this area, when the governor's bill was
adopted four or five years ago, Mr. Crawford's letter to the
Judiciary Chair at the time was basically [indisc.].
CHAIR DYSON confirmed that the bill was basically a response to
the problem. He said he assumed that Judiciary would do a good
job of reviewing the judicial aspects, while this committee's
focus should be on the safety and health of the homes.
MR. LUCKHAUPT said that Public Law 105-277, a copy of which was
in the committee packet, requires home health care providers and
nursing facilities to perform background checks on employees
within five days of their going to work. Federal law requires
that the employer review the criminal history record and make a
hire/fire decision, so the onus is on the employer to make a
decision.
MR. LUCKHAUPT remarked that several other states have gone this
route in the past few years, noting a brochure from Wisconsin's
attorney general on this subject and mentioning both Wyoming and
North Carolina. He said that home health care provider agencies
and nursing facilities have a specific law that does not apply
to any other group; it gives those employers specific access to
these criminal history records. He said he understood that DPS
would like to make an addition to the bill, and he didn't have
any problem with that. He said that in addition to Public Law
105-277, DPS wants to refer to [Alaska's] own criminal history
record AS 12.62, so that these employers could access both state
and federal databases.
MR. HOVE said the CS [committee substitute] tacks AS 12.62 on to
Public Law 105-277 and is Version I.
CHAIR DYSON asked if [Senator Seekins's] office approved of the
CS and received non-verbal confirmation that this was the case.
SENATOR GREEN questioned whether this would be above the normal
standard. She asked if this took Alaska to "where we should be
in the securing of employees" for these facilities.
MR. LUCKHAUPT responded that this was correct. He explained
that this was simply "plugging in federal law" - that federal
law requirements are not currently reflected in Alaska's
statutes. Employers are being required to perform background
checks based upon a state law that no longer exists; this leaves
a lack of direction. Citing this federal law appears to answer
the question, "What is required?"
CHAIR DYSON told members that he had a concern that was slightly
off subject, and mentioned that providers who serve vulnerable
folks have raised the question of perpetrators who perpetrated
their crimes while they were juveniles. Because of there being
no access to juvenile records, he asked if it were true that
there would be no way to access that information if, for
example, an applicant at 18 or 21 years of age had done
horrendous things.
1:46 p.m.
MR. LUCKHAUPT responded that this was true in most instances.
He explained that juvenile offenses are not crimes, per se, and
in most cases those offenses wouldn't be in federal, FBI, or in
most state's databases. He said he wasn't sure how to get to
those records and suggested that LeeAnn [Lucas] might have
further information about how the state compiles or keeps track
of that information. He confirmed that dealing with the
delinquency area is problematic because of it not being treated
as criminal in the usual sense. He said if a person is 16 and
commits certain heinous crimes - murder, sexual assault, or
things like that - he/she is automatically treated as an adult.
For most other crimes, the Legislature has chosen to say, "These
people don't have the criminal capacity to commit a crime."
CHAIR DYSON stated that this information shouldn't impact the
committee and asked if there were any further questions,
testimony or discussion of SB 201. He asked for the wish of the
committee.
SENATOR GREEN said she would move the CS after distribution.
MR. HOVE explained the change would add AS 12.62 to all four
sections of the bill.
CHAIR DYSON asked if there was objection to adopting Version I
[23-LS0118/I, Luckhaupt, 2/3/04] as the CS and the working
document.
CHAIR DYSON, upon seeing and hearing no objection, announced
that the working document was the CS for SB 201, Version I. He
asked for the wish of the committee.
SENATOR GREEN moved that CSSB 201(HES) with individual
recommendations and accompanying zero fiscal note(s) be moved
from committee.
CHAIR DYSON asked if there was any objection. Seeing and
hearing none, it was so ordered.
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