Legislature(2005 - 2006)BUTROVICH 205


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Heard & Held
Heard & Held
          SB 125-LICENSING MEDICAL OR CARE FACILITIES                                                                       
2:34:39 PM                                                                                                                    
DR. MANDSAGER,  Director, Division  of Public  Health, Department                                                               
of Health and Social Services  (DHSS), introduced SB 125 with the                                                               
following remarks:                                                                                                              
     Thank you for the opportunity  for to introduce SB 125,                                                                    
     a  bill to  consolidate  The Department  of Health  and                                                                    
     Social  Services  (DHSS) licensing,  certification  and                                                                    
     background   check  functions.   This  bill   has  been                                                                    
     introduced  by  the Governor  and  I  am privileged  to                                                                    
     introduce it for discussion.                                                                                               
     You have been provided  with some slides that summarize                                                                    
     some of  the issues that are  in this bill. I  am going                                                                    
     to speak  from that for a  few minutes and then  I will                                                                    
     be  available to  take  questions.  Why introduce  this                                                                    
     bill? It is complex; there  are lots of issues involved                                                                    
     with  it. What  is wrong  with leaving  things the  way                                                                    
     that  they  are?  The  answer   is  that  the  existing                                                                    
     statutory and regulatory environment  is a very complex                                                                    
     patchwork. There  are some places where  there are lots                                                                    
     of  details  and  there are  others  that  have  almost                                                                    
     nothing. Agencies  that deliver  more than one  type of                                                                    
     care  have  different  sets   of  regulations  for  the                                                                    
     different parts  of the work. The  department regulates                                                                    
     and licenses  many types  of facilities  with different                                                                    
     rules  that  have come  on  line  over the  decades  at                                                                    
     different  times.   Some have  rules  in statute,  most                                                                    
     have  rules  in regulation,  and  some  have almost  no                                                                    
     It does  not make sense  to continue to  maintain those                                                                    
     differences. It  is very  difficult for  the Department                                                                    
     of Law (DOL) to handle  appeals. It's hard for agencies                                                                    
     that are  applying for  licenses to  keep track  of the                                                                    
     different  standards and  regulations. In  some of  the                                                                    
     places where  we do have  some background  check rules,                                                                    
     we  can sometimes  pass them  when one  probably should                                                                    
     not. In other  places we have programs  that don't have                                                                    
     any  background  check  process in  place  to  look  at                                                                    
     someone's experience when they  are applying to work in                                                                    
     a  situation   in  which  they   are  taking   care  of                                                                    
     vulnerable people.                                                                                                         
     Because there are variable  requirements there are lots                                                                    
     of costs to the state and  to providers. A quote at the                                                                    
     bottom  of  slide two  from  Mathew  Jones who  is  the                                                                    
     Director of  Assets, says 'Recruiting and  hiring is an                                                                    
     area where  we can't  afford even  a single  failure of                                                                    
     the system.'  We are taking  care of  vulnerable people                                                                    
     and we should do the best job that we can.                                                                                 
     On slide  three there  are some  stories from  both our                                                                    
     state and in other states  of where there are instances                                                                    
     of abuse and neglect. The  first bullet is a story from                                                                    
     our  state last  summer where  a supported-living  home                                                                    
     provider  was misappropriating  funds from  a resident.                                                                    
     There is no  current requirement for those  homes to be                                                                    
     licensed; no  background check process is  required and                                                                    
     in this case none had been performed.                                                                                      
     In another case, an assisted  living home attendant was                                                                    
     fired from  his treatment: the facts  were presented to                                                                    
     law enforcement;  no charges were filled;  the case was                                                                    
     dropped  and this  person  is  currently available  and                                                                    
     eligible to work  as a care provider.  In another case,                                                                    
     three Alaskan  nurse aids were found  to be mistreating                                                                    
     residences  for  a nine  month  period  well after  the                                                                    
     mandatory reporting  time period. That is  one industry                                                                    
     where reporting is required, but  two of these findings                                                                    
     have not yet been entered  into any registry and one of                                                                    
     those two involved physical violence.                                                                                      
     2:38:36 PM                                                                                                               
     In another  state a person  was involved in  a stabbing                                                                    
     in a convenience store involving  someone who was later                                                                    
     identified  as  a  long-term   care  provider.  On  the                                                                    
     converse  side, if  someone is  working  as a  personal                                                                    
     care  attendant, they  are often  working for  multiple                                                                    
     agencies  and  they have  to  go  through a  background                                                                    
     check before they  apply for any agency  for which they                                                                    
     work.  So there  is a  multiplicity of  requirements on                                                                    
     that side.                                                                                                                 
     There are lots of gaps  in the oversight process. I was                                                                    
     struck  that we  currently have  19 different  programs                                                                    
     administered under  12 different statutory  schemes for                                                                    
     licensure under  the department. The goal  of this bill                                                                    
     is to simplify, standardize,  make things as uniform as                                                                    
     possible and  make it as understandable  as possible to                                                                    
     the provider community, to us  on the state side and to                                                                    
     the clients themselves.                                                                                                    
     Care provider's  work under a patchwork  of regulations                                                                    
     that  sometimes  conflict.   They  can  sometimes  have                                                                    
     employees  that  can  work   in  one  program  and  not                                                                    
     another. We  on the  licensing side  have to  learn all                                                                    
     those rules and  our staff must keep  them straight. It                                                                    
     makes it very difficult  to cross-train employees to be                                                                    
     able to  move from  licensing assisted living  homes to                                                                    
     evaluating other kinds of programs.                                                                                        
     Over the last year,  three licensing program units have                                                                    
     been  consolidated within  Department of  Public Health                                                                    
     but the  programs are stand-alone programs  because the                                                                    
     rules are  still separate. So, our  staff must maintain                                                                    
     expertise in the different rules.                                                                                          
2:40:05 PM                                                                                                                    
     Slide five  shows the  scope of  the project.  The blue                                                                    
     ovals  show  the  public   health  programs  that  have                                                                    
     already  come  into  a  centralized  certification  and                                                                    
     licensing  group. The  purple rectangles  are the  ones                                                                    
     that, over  the next  three years  or so,  would slowly                                                                    
     come  into a  centralized  certification and  licensing                                                                    
     unit on behalf of the department.                                                                                          
     When I started  last summer, I asked  the question; how                                                                    
     come  in  public  health?  Since   we  don't  make  any                                                                    
     payments  in public  health to  provide  some point  of                                                                    
     independence  within the  department,  rather than  the                                                                    
     divisions  that both  pay  services  and regulate.  The                                                                    
     regulation  function  is  being centralized  in  public                                                                    
     health to separate it from the payment side.                                                                               
     Slide  six shows  some  of  these different  regulatory                                                                    
     schemes.  You   can  see  several  colors   there  that                                                                    
     nominate  the  different  kinds of  programs  that  are                                                                    
     licensed or  certified within  the department.  When we                                                                    
     use the  word certified, it is  usually means certified                                                                    
     by CMS, with Medicare as a payer.                                                                                          
2:42:07 PM                                                                                                                    
     Supported  living homes  are currently  not subject  to                                                                    
     either background checks or  licensure and this statute                                                                    
     envisions that they would  become subject to background                                                                    
     checks.  There is an  attempt to make the definition of                                                                    
     'assisted living  home' more  straight forward  so that                                                                    
     we  don't  have  any  facilities  trying  to  skate  by                                                                    
     saying, 'We are  a supported living home We  are not an                                                                    
     assisted living home, we do not have to be licensed.'                                                                      
     Slide  seven gives  one an  idea of  the complexity  of                                                                    
     this bill. It  shows the various parts  of the statutes                                                                    
     that will be  maintained, the parts that  will be moved                                                                    
     to regulation, the parts that  will be repealed as they                                                                    
     are moved to regulation and parts that are amended.                                                                        
     Slide eight  discusses the content  of the  bill. There                                                                    
     is  an   addition  of  a  new   chapter  to  centralize                                                                    
     licensing and administration.  It defines what entities                                                                    
     must be licensed, the  licensed conditions, appeals and                                                                    
     complaints,    our    rights   and    responsibilities,                                                                    
     confidentiality protection  and criminal  penalties for                                                                    
     Section 17  is a  new article to  centralize background                                                                    
     checks  and registry  functions. In  some places  there                                                                    
     are  background checks,  but in  many places  there are                                                                    
     not.  This   will  define  who  is   required  to  have                                                                    
     background  checks.  It  provides  for  the  regulatory                                                                    
     definition  of barrier  conditions  of  those kinds  of                                                                    
     crimes  that  either  permanently   or  for  some  time                                                                    
     period,   prevents   someone   from   working   in   an                                                                    
     institution or  program that  is providing  services to                                                                    
     vulnerable  populations.  It   requires  a  centralized                                                                    
     registry  to  be  created  and  maintained  that  lists                                                                    
     people  that meet  those definitions,  individuals that                                                                    
     have committed barrier crimes.                                                                                             
2:44:10 PM                                                                                                                    
     Slide nine  talks about  the background  check process.                                                                    
     It defines  the barrier  conditions to employment  in a                                                                    
     consolidated  regulation  definition. It  will  include                                                                    
     some  differences  between  those programs  that  serve                                                                    
     children  as opposed  to those  that serve  adults. All                                                                    
     service  providers, including  volunteers, with  direct                                                                    
     patient contact will be  background checked. Charges of                                                                    
     a barrier crime are  sufficient to bar employment. That                                                                    
     is  a high  bar, a  high standard  that is  proposed in                                                                    
     this  bill. An  employee  misconduct  registry will  be                                                                    
     implemented,  a   standard  waivers  process   will  be                                                                    
     defined  and   a  standard  appeals  process   will  be                                                                    
     Finally, the last slide is  just one of dozens of pages                                                                    
     of comparisons  of these  differing programs  and their                                                                    
     differing rules.  This is only  to illustrate  that our                                                                    
     staff is  currently dealing with multiplicity  of rules                                                                    
     for different types  of programs. I am  told that there                                                                    
     are  about a  couple hundred  pages of  cross walk  for                                                                    
     trying  to   keep  track  of  the   variations  in  the                                                                    
     different programs.                                                                                                        
     If this  bill is to  be acted upon by  the Legislature,                                                                    
     then the other  part is what is  the regulation process                                                                    
     going  to look  like? We  are  trying to  have the  two                                                                    
     parts move ahead.  My thought about this  is that there                                                                    
     are two  industries that  have most  of their  rules in                                                                    
     statute, which  are the assisted  living homes  and the                                                                    
     Hospice group.  For most of  the other groups  that are                                                                    
     listed here,  their rules are  mostly in  regulation at                                                                    
     The final comment that I would  like to make is that we                                                                    
     are  already working  on amendments  and I  am assuming                                                                    
     that there  will be more questions  and more amendments                                                                    
     coming.   They  are not  ready for  introduction today;                                                                    
     they are here just to  give you some sense about issues                                                                    
     that have already  been raised since the  bill has been                                                                    
     One is  the implementation date  of the bill;  it calls                                                                    
     for the background check to  be implemented on July 1st                                                                    
     of  this year.  There is  no way  that that  can happen                                                                    
     even if the Legislature was  to act between now and May                                                                    
     10. There would  still have to be  a regulation process                                                                    
     and time for public comment, so that needs to change.                                                                      
     Another  question that  has surfaced  is  how does  one                                                                    
     deal  with an  employee  that has  been terminated  for                                                                    
     neglect,  abuse, or  exploitation, but  for whom  there                                                                    
     hasn't been  legal system adjudication. How  do we know                                                                    
     about  it  other  than  self-reporting?  Do  we  expect                                                                    
     people to self-report when they  go on to a registry or                                                                    
     do  they only  self report  when they  apply to  a job?                                                                    
     That is an issue that I  have been wrestling with and I                                                                    
     expect  that the  Legislature will  have questions  and                                                                    
     comments about it.                                                                                                         
     Another  is  the  list   of  organizations  subject  to                                                                    
     licensure.  Should  other   organizations  or  programs                                                                    
     providing invasive treatment  or diagnostic services be                                                                    
     subject to licensure in the  future? I personally think                                                                    
     that they  probably should be  and that we  should have                                                                    
     some flexibility to be able  to allow for the evolution                                                                    
     of  services in  the  future. We  are  trying to  think                                                                    
     about some kind of language  that could be proposed for                                                                    
     that.  With  that,  I  will stop  I  am  available  for                                                                    
2:48:46 PM                                                                                                                    
CHAIR DYSON encouraged the committee to consider the barriers to                                                                
employment that are listed on page 8. He said the requirement of                                                                
public  registry  for  people  who   fail  to  meet  the  barrier                                                               
conditions will raise some very  significant privacy and personal                                                               
liberties issues.                                                                                                               
CHAIR  DYSON  asked  Dr.  Mandsager   to  list  the  barriers  to                                                               
DR.  MANDSAGER  responded  some  examples  would  be  adjudicated                                                               
sexual abuse of  a minor or an adult, felony  assault and battery                                                               
and some misdemeanor crimes.                                                                                                    
CHAIR  DYSON   asked  whether  domestic   violence  would   be  a                                                               
sufficient charge.                                                                                                              
DR. MANDSAGER responded some types  of domestic violence would be                                                               
CHAIR  DYSON   asked  whether  a  driving   under  the  influence                                                               
conviction would be sufficient.                                                                                                 
DR. MANDSAGER responded it would,  but remarked there are varying                                                               
levels of exclusion. Some crimes  cause a barrier for five years,                                                               
some for  ten years and some  for fifteen years. It  would depend                                                               
on the severity of the crime.                                                                                                   
CHAIR DYSON asked whether there  were medical conditions that are                                                               
barrier conditions.                                                                                                             
DR. MANDSAGER said there are.                                                                                                   
CHAIR  DYSON  asked  whether  HIV,   Hepatitis  C,  and  sexually                                                               
transmitted  diseases that  do not  require  genital contact  for                                                               
transmission are barrier conditions.                                                                                            
DR. MANDSAGER was not prepared  to answer the question, but would                                                               
take it under advisement and answer it later.                                                                                   
SENATOR OLSON  asked why there  are different colors used  in the                                                               
outline of the Hospice system on slide six.                                                                                     
VIRGINIA STONKUS, Deputy Director,  Division of Public Health and                                                               
Social   Services,  said   there   are  two   types  of   Hospice                                                               
organizations in  the state, for-profit, which  are licensed, and                                                               
non-profit which are not.                                                                                                       
SENATOR OLSON  asked the effect  the bill would have  on private-                                                               
sector institutions that are providing many of the services.                                                                    
MS.  STONKUS replied:                                                                                                           
     The driving factor for  background checks has warranted                                                                    
     the federal  government to grant  funding for  which we                                                                    
     are recipients. The department has,  in this bill, made                                                                    
     a requirement  that any organization that  receives any                                                                    
     funding to  support these services  will be  subject to                                                                    
     background checks.  Of course,  there is also the life,                                                                    
     health  and  safety  of  those  in  our  care.  As  Dr.                                                                    
     Mandsager  said, it  is  a  high bar  to  set, but  the                                                                    
     concern  again  would  be that  these  individuals  are                                                                    
     entrusted to our  care, that we are paying  and that is                                                                    
     the extent that we are willing to go for them.                                                                             
SENATOR OLSON said:                                                                                                             
     So if  I am hearing  you correctly, this bill  is going                                                                    
     to  cause an  extra financial  burden on  those private                                                                    
     institutions that must comply with this statute.                                                                           
DR. MANDSAGER said:                                                                                                             
     Most  of the  changes should  make life  easier on  the                                                                    
     regulation side. On  the other hand, as  we have noted,                                                                    
     there  are  some  programs  that  are  not  subject  to                                                                    
     background checks  at present  and this would  create a                                                                    
     new cost  for them. The  question of how much  this new                                                                    
     cost will be over time  is really an unknown. The other                                                                    
     balance point  here is  to make  sure that  we maintain                                                                    
     providers in  all parts of  the state and we  don't put                                                                    
     such  a   barrier  to   either  program   integrity  or                                                                    
     employment  that we  can't keep  programs viable.  I am                                                                    
     looking forward  to working with the  legislature as it                                                                    
     works  through  this  and find  the  balance  point  to                                                                    
     protect  the vulnerable  populations on  the regulatory                                                                    
     side, but keep providers viable on the program side.                                                                       
SENATOR OLSON remarked the fiscal note might be incorrect since                                                                 
it reports a zero cost despite the hundreds of hours of attorney                                                                
time required to develop the bill.                                                                                              
DR. MANDSAGER  said there are two  parts to the fiscal  note. One                                                               
is a  federally funded background  check project, which  would be                                                               
used to  initiate the whole  process. It would  not be a  cost to                                                               
the state. He  said the department has not been  able to estimate                                                               
the cost of the new programs and of applying its regulations to                                                                 
employees that would be subjected to the bill if it is enacted.                                                                 
MS.  STONKUS said:                                                                                                              
     There  is  a   set  fee  that  agencies   pay  to  have                                                                    
     background  checks done  by the  FBI  then by  in-state                                                                    
     agencies. What we are hoping  to be able to do, through                                                                    
     the  funding that  we were  successful in  getting from                                                                    
     CMS, is  streamline our  background check  process even                                                                    
     further.  We  have been  working  with  several of  the                                                                    
     agencies that we  have in-house. We want to  be able to                                                                    
     emulate  the same  efficiencies  where  they exist  and                                                                    
     hold any  additional costs that  may be incurred  to an                                                                    
     absolute minimum wherever we possibly can.                                                                                 
2:56:17 PM                                                                                                                    
DR. OLSON asked:                                                                                                                
     What  effect  is this  going  to  have outside  of  the                                                                    
     federally  funded  facilities   for  example,  the  638                                                                    
DR. MANDSAGER replied:                                                                                                          
     I have  been thinking  about that  question and  I have                                                                    
     asked Myra Munson to think  about that question to. The                                                                    
     federal government has a  requirement for any providers                                                                    
     that  are providing  care to  women or  children to  be                                                                    
     subject to  a federal  set of  barrier crimes.  In that                                                                    
     system,  there  is  a  100  percent  lifetime  ban  for                                                                    
     committing one of those crimes.                                                                                            
     Having  experienced  that   system  during  my  federal                                                                    
     career, my  experience is that  there are  some crimes-                                                                    
     say for  example, a  nineteen year  old gets  drunk and                                                                    
     gets into  a bar fight  and an has assault  and battery                                                                    
     conviction  and twenty  years  later,  that person  has                                                                    
     been a responsible member of  society, has had a job. I                                                                    
     would argue that,  at that point, that  person has been                                                                    
     rehabilitated and should be able to be employed.                                                                           
     The exact  interplay of this  with a 638 provider  I am                                                                    
     waiting  for advice  from the  tribal  attorneys as  to                                                                    
         what they think about this. I asked them to be                                                                         
     watching for this when the bill was introduced.                                                                            
CHAIR DYSON  said he and  his wife, as  well as his  two children                                                               
are  licensed  foster  homes.  He said  that  might  represent  a                                                               
conflict of  interest. He did  not believe  it did and  would not                                                               
disqualify himself from the committee proceedings.                                                                              
SENATOR ELTON  asked whether there  is a distinction  between the                                                               
terms  "charged  with  and  acquitted"   and  "charged  with  and                                                               
pending"  as  they   are  used  the  analysis   provided  by  the                                                               
DR. MANDSAGER  said there are  perhaps two questions  embedded in                                                               
that question:  "What is a barrier  to registry?" and "What  is a                                                               
barrier to employment?"  He said the registry  would only include                                                               
information pertaining to  people that had been  adjudicated in a                                                               
legal  system. However,  if a  person were  charged with  certain                                                               
crimes, it  would be  a barrier to  employment, at  least pending                                                               
adjudication down the road.                                                                                                     
2:59:42 PM                                                                                                                    
SENATOR  ELTON  asked  whether fingerprinting  was  part  of  the                                                               
registry process.                                                                                                               
DR. MANDSAGER  responded fingerprinting  is part of  a background                                                               
check, but the fingerprints would  not be on the registry itself.                                                               
He asked his associate to confirm that this is correct.                                                                         
MS.  STONKUS  said it  is  partially  correct. The  registry  was                                                               
originally envisioned to prevent  individuals suspected of having                                                               
committed  specific  crimes  and  who  had  resigned  from  their                                                               
caretaker jobs from being hired to similar caretaker positions.                                                                 
3:01:44 PM                                                                                                                    
She said the assumption is that  any employer would be subject to                                                               
finger printing as  a background check; so  ultimately, to answer                                                               
the question, it would be part of that process.                                                                                 
SENATOR ELTON  said the  provision says on  page 27,  Section 17,                                                               
       Information contained in the registry is a public                                                                        
        record that is subject to public discussion and                                                                         
He said  he would  like to  know the kind  of information  in the                                                               
DAN BRANCH, Department of Law, said:                                                                                            
     It  is my  understanding that  the privacy  information                                                                    
     would  be redacted  before the  entry would  be entered                                                                    
     into  the  registry.  That being  said,  obviously  the                                                                    
     names   of  people   who  were   adjudicated  to   have                                                                    
     neglected, abused  or exploited  a child  or vulnerable                                                                    
     adult  would   be  in  there.   I  envision   that  the                                                                    
     information would be  the name and then  what they were                                                                    
     adjudicated  to have  done,  but not  the  name of  the                                                                    
     victim  or any  other  information. There  would be  no                                                                    
     information for anyone other than the wrongdoer.                                                                           
3:03:21 PM                                                                                                                    
SENATOR  ELTON asked  whether the  name of  an employee  would be                                                               
placed  on  the  registry  simply because  he  was  suspected  of                                                               
wrongdoing and subsequently left his employment.                                                                                
MR.  BRANCH  said the  identifying  information  provided in  the                                                               
registry would only pertain to persons  who have been judged by a                                                               
court to have had committed acts of wrongdoing.                                                                                 
SENATOR  ELTON asked  whether  he is  correct  in believing  that                                                               
identifying information  would not be available  in a centralized                                                               
registry to future employees in all cases without adjudication.                                                                 
MR. BENCH answered:                                                                                                             
     That has been  a subject of intense  internal debate. I                                                                    
     think that it's fair to say  that some of us are not in                                                                    
     agreement at  present, that we can't  get anything into                                                                    
     the  registry  that  would  accommodate  that  kind  of                                                                    
     information.   I  understand   the   DOL's  view   that                                                                    
     somebody, like  you and Virginia talked  about, who has                                                                    
     not  been adjudicated,  who has  not  had due  process,                                                                    
     should  not be  placed on  the registry.  On the  other                                                                    
     hand,  if we  are going  to have  a registry  and don't                                                                    
     include them, I  am wondering what value  it would have                                                                    
     other  than making  it simpler  to look  at adjudicated                                                                    
     cases. I  am looking for  advice about this  subject as                                                                    
     we get into this discussion.                                                                                               
3:05:43 PM                                                                                                                    
CHAIR DYSON asked whether it could  be the case that some charges                                                               
dropped as part of a bargain  would not be listed in the registry                                                               
if non-adjudicated charges are not listed in the registry.                                                                      
3:07:07 PM                                                                                                                    
DAN BRENCH responded:                                                                                                           
     The  registry that  we are  talking about  doesn't talk                                                                    
     about criminal  law. But I  understand your  question I                                                                    
     used  to be  a defense  attorney  and I  know how  that                                                                    
     works. A  lot of  times you  try to  plead in  order to                                                                    
     avoid the impact  of a statute. I don't  have an answer                                                                    
     for you now, but I  think I understand the question. We                                                                    
     can talk about it and see  if there is something in the                                                                    
     bill that meets  your concerns. If not, we  can look at                                                                    
     putting something in there.                                                                                                
DR.  MANDSAGER said  if the  bill were  to be  passed as  written                                                               
today,  a  person who  falsely  denies  having committed  certain                                                               
crimes would be liable for falsification.                                                                                       
CHAIR DYSON said he would like  to know the effect the bill would                                                               
have on the CON process and on abortion facilities.                                                                             
SENATOR OLSON  remarked the bill  would likely have an  impact on                                                               
private sector providers. He would  like to see a balanced amount                                                               
of input from the private and public sectors.                                                                                   
CHAIR  DYSON  encouraged  the  committee  to  provide  notice  to                                                               
persons who  may have an interest  in the bill. He  remarked that                                                               
challenges the  committee to weigh important  civil rights issues                                                               
with the importance of protecting vulnerable members of society.                                                                
3:11:49 PM                                                                                                                    
ROD  BETIT,   President,  Alaska  State  Hospital   Nursing  Home                                                               
Association  (ASHNHA), presented  a  letter from  his agency  and                                                               
     Nursing  homes  and  hospitals  have  been  under  very                                                                    
     strict laws and  licensure for a long time,  so this is                                                                    
     a practice that  we are very familiar with.  It is very                                                                    
     laborious,  but   it  has  been  very   important  with                                                                    
     improving patient  care in those  two settings.  Now it                                                                    
     will spill  over into  a number of  other areas  in the                                                                    
     community and looking at the  possible fiscal impact is                                                                    
     a very wise thing to do.                                                                                                   
     Generally  we  support  what this  bill  is  trying  to                                                                    
     accomplish but  I want to  point out a few  things that                                                                    
     you ought  to take a  serious look at. Page  6, Section                                                                    
     47.32.060,  subparagraph C,  lines  13 to  16, this  is                                                                    
     basically a technical  issue in my mind.  It deals with                                                                    
     license renewal and the time  frame that the department                                                                    
     has to respond to that.                                                                                                    
     Early  in that  part of  the chapter  it says  that you                                                                    
     need to file  within 90 days in order to  have a timely                                                                    
     review done.  When you get to  lines 13 to 16,  it says                                                                    
     that  if you  file  and the  department can't  complete                                                                    
     your review  by the expiration date,  you automatically                                                                    
     get renewed for an additional period of time.                                                                              
     My question here  is, what is the  incentive for filing                                                                    
     early?  If you  can file  the day  before your  license                                                                    
     expires of if you can  file 90 days before your license                                                                    
     expires,  and you  are treated  the same,  why wouldn't                                                                    
     you  wait,  especially  if  you are  coming  out  of  a                                                                    
     facility with  problems, until the last  minute so that                                                                    
     you could  come under the protection  of the extension.                                                                    
     I don't know what that incentive  ought to be. I am not                                                                    
     suggesting that  people not be continued  because there                                                                    
     is important business  to be conducted, but  if you are                                                                    
     going to have a time  frame, it seems that there should                                                                    
     be some sort of distinction.                                                                                               
     Further, if  you go to section  47.32.140, subparagraph                                                                    
     A on page 8, lines 29  through line 3 on the next page,                                                                    
     this  talks about  when the  department would  actually                                                                    
     stop  a provider  from doing  business  by revoking  or                                                                    
     suspending  his license.   This  is pretty  heavy stuff                                                                    
     and there is nothing in  this area that talks about how                                                                    
     that  would be  done. I  would make  the point  that if                                                                    
     that is  ever going to  be done,  it should be  done by                                                                    
     the Commissioner,  in writing,  with clear  findings to                                                                    
     suggest that  operating the service  is a  greater risk                                                                    
     to the people being served than stopping it.                                                                               
     Once that  decision is  made, it must  be clear  who is                                                                    
     responsible for  the care of  the patients. If  you are                                                                    
     talking  about  assisted  living or  children  you  are                                                                    
     talking about  certain settings. It must  be clear that                                                                    
     the provider  no longer has  legal authority  to direct                                                                    
     that  care. The  department must  immediately designate                                                                    
     somebody  to  assume  that responsibility  as  well  as                                                                    
     responsibilities  associated   with  daily  operations,                                                                    
     financial  liabilities  and   liability  for  any  care                                                                    
     problems that arise during that  period of time. I have                                                                    
     done this here and in Utah,  so I know what it entails.                                                                    
     It  is  pretty  difficult   country  to  be  navigating                                                                    
     without any kind of guidelines  as to how you are going                                                                    
     to do it.                                                                                                                  
3:16:04 PM                                                                                                                    
SENATOR  OLSON asked  whether  there have  been  problems in  the                                                               
aforementioned area in the past year.                                                                                           
MR. BETIT replied  it has not been a problem  in the recent past.                                                               
Creating  a broader  pool of  licensed  providers requires  solid                                                               
guidelines in the previously mentioned areas.                                                                                   
SENATOR   OLSON  asked   what  happens   when  an   investigation                                                               
vindicates the licensee.                                                                                                        
MR. BETIT  answered the state  would only act in  instances where                                                               
it had  a well-developed case,  but he  said the state  should be                                                               
liable for any  economic damage that occurs to the  provider as a                                                               
result of its action.                                                                                                           
SENATOR OLSON  asked what  would happen if  a provider  is driven                                                               
out of business.                                                                                                                
MR.  BETIT responded  that while  it  is difficult  to restart  a                                                               
business,  the  managers  of  the   business  should  still  have                                                               
recourse against the state.                                                                                                     
SENATOR OLSON responded:                                                                                                        
     With all  due respect,  actions against the  state have                                                                    
     not been  necessarily in the private  sector's favor in                                                                    
     the  proceedings that  I have  seen, especially  in the                                                                    
     Legal Department. That  is just a point that  I want to                                                                    
MR. BETIT said:                                                                                                                 
     I agree with  you. Later on I do speak  to that and say                                                                    
     that it would be our  position that if it is determined                                                                    
     that  the   state's  action  was  too   excessive,  the                                                                    
     provider should  have recourse  against the  state. You                                                                    
     can't write that out via this bill.                                                                                        
He continued the next point of  his letter concerns how the state                                                               
should take action against care  providers while ensuring that no                                                               
one is  hurt in the  process. He said  the intent of  the section                                                               
was  to  help  the  state  understand  that  it  assumes  a  huge                                                               
responsibility in giving the department that kind of power.                                                                     
MR. BETIT  said AS 47.32.170, on  page 13, lines 16  to 18, talks                                                               
about immunity for state agents  and state employees. He said his                                                               
agency  would oppose  the immunity  provision of  the bill  if it                                                               
allows the possibility  that a vindicated provider  could have no                                                               
recourse  against the  state after  it  suffered great  financial                                                               
damages as  a result of the  state's action. The state  should be                                                               
liable  for  any  injuries  caused by  its  failure  to  properly                                                               
supervise the  transfer of care  from a facility that  it ordered                                                               
to close.                                                                                                                       
MR. BETIT said:                                                                                                                 
     With respect  to protecting employees, one  can be sued                                                                    
     in  one's  personal  capacity  as   well  as  in  one's                                                                    
     professional  capacity. One  cannot  break those  apart                                                                    
     and  bring  one's  personal  component  back  into  the                                                                    
     professional job  that one  is doing.  One is  on one's                                                                    
     own  as far  as the  personal part  because most  state                                                                    
     rules don't permit  the state to defend  an employee on                                                                    
     the personal side  of what they are doing.  I have been                                                                    
     there a few  times and it is  a hair-raising experience                                                                    
     until things are sorted out.                                                                                               
     3:21:38 PM                                                                                                               
     It might  be advantageous, given that  these are people                                                                    
     that are  making very  difficult decisions,  to provide                                                                    
     some  coverage for  counsel to  sort  through that.  It                                                                    
     doesn't give  them protection  against damages  if they                                                                    
     are ultimately  proven to  be outside  the professional                                                                    
     realm and  did something inappropriate. If  that is the                                                                    
     kind  of immunity  that you  are looking  for, I  think                                                                    
     that the best  way to get there is to  make it clear in                                                                    
     the statute  that in  most cases  you can  have private                                                                    
     counsel  for them  as well  as  the attorney  general's                                                                    
     office representing on the other side.                                                                                     
MR. BETIT urged the state to make a clear distinction between                                                                   
personal and medical care when regulating assisted living                                                                       
3:23:44 PM                                                                                                                    
SENATOR OLSON asked whether the committee should tighten up the                                                                 
definition of 'assisted living home' as it is given on page 15,                                                                 
line 25.                                                                                                                        
MR. BETIT responded:                                                                                                            
     Yes,  to  say explicitly  whether  you  want people  in                                                                    
     those facilities, which  require medication management,                                                                    
     to be  able to get  out of  the building on  their own,                                                                    
     because you will find people  who cannot get out of the                                                                    
     building.  If you  don't make  that clear  and at  some                                                                    
     point  someone will  get hurt,  something will  happen,                                                                    
     and the state will have some culpability there.                                                                            
CHAIR DYSON held SB 125 in committee. There being no further                                                                    
business to come before the committee, he adjourned the meeting                                                                 
at 3:25:15 PM.                                                                                                                

Document Name Date/Time Subjects