Legislature(2005 - 2006)BUTROVICH 205

05/01/2005 04:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSB 125(JUD) Out of Committee
Heard & Held
Moved CSSB 186(JUD) Out of Committee
Heard & Held
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
<Order listed does not indicated order
each bill will be taken up>
          SB 125-LICENSING MEDICAL OR CARE FACILITIES                                                                       
4:41:08 PM                                                                                                                    
CHAIR RALPH SEEKINS announced SB 125 to be up for consideration.                                                                
SENATOR  CHARLIE   HUGGINS  moved  Version  \I   as  the  working                                                               
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
4:42:10 PM                                                                                                                    
MS.   VIRGINIA  STONKAS,   Division  of   Public  Health   (DPH),                                                               
Department of Health and Social  Services (DHSS), advised Version                                                               
\I added a couple of amendments  that were adopted. Section 6 was                                                               
added through  a recommendation by the  Legislative Legal Affairs                                                               
Agency.  The  new  language  was  added to  comply  with  SB  125                                                               
licensing entities  in lieu of individuals.  The second amendment                                                               
is  on Page  23, line  13. The  concern was  for a  definition of                                                               
entities in regulation. The third  amendment is on Page 25, lines                                                               
14-16. Existing  language was  cut and pasted  into the  bill for                                                               
clarification  that when  licensing an  entity they  will not  be                                                               
negatively affected in  their ability to do  business. The fourth                                                               
amendment is to  ensure compliance with AS 47.33.  Amendment 5 is                                                               
on  Page  38,  line  28  to ensure  assisted  living  is  clearly                                                               
referenced  in terms  of  long-term care  and  nursing homes  and                                                               
assisted living.                                                                                                                
4:45:59 PM                                                                                                                    
CHAIR  SEEKINS removed  his objection.  The committee  would work                                                               
with Version \I for the purpose of this meeting.                                                                                
SENATOR  GENE THERRIAULT  asked  Ms. Stonkas  whether there  were                                                               
still  concerns   about  assisted   living  homes   with  certain                                                               
provisions in SB 125.                                                                                                           
MS.  STONKAS  responded  no.  Concerns in  the  past  related  to                                                               
costing rather than structure.                                                                                                  
CHAIR SEEKINS  understood the structural side  had been addressed                                                               
yet the fee schedule is a  different matter that is not addressed                                                               
in the bill.                                                                                                                    
MS. STONKAS  added they were  never meant to  be part of  SB 125.                                                               
Legislative Legal Affairs submitted  another set of amendments to                                                               
4:49:26 PM                                                                                                                    
CHAIR  SEEKINS  moved  Amendment  1. He  also  objected  for  the                                                               
purpose of discussion.                                                                                                          
            Amendment to CSSB 125 (JUD) (version I)                                                                         
Page 4, line 15 through page 5, line 28:                                                                                        
     Delete all material.                                                                                                       
Renumber bill sections accordingly.                                                                                             
Page 8, line 15 through page 9, line 30:                                                                                        
     Delete all material.                                                                                                       
Renumber bill sections accordingly.                                                                                             
Page 13, line 31, following "jurisdiction":                                                                                     
     Insert "or to have committed medical assistance fraud under                                                                
AS  47.05.210 or  a substantially  similar  provision in  another                                                               
Page 15, line 23, following "jurisdiction":                                                                                     
     Insert "or to have committed medical assistance fraud under                                                                
AS  47.05.210 or  a substantially  similar  provision in  another                                                               
Page 17, following line 26:                                                                                                     
     Insert "Sec. 47.05.350.  Immunity.  An entity or individual                                                              
service  provider  that  obtains information  about  an  employee                                                               
under a  criminal history check  under AS 47.05.310 may  use that                                                               
information  only  as  provided  in regulations  adopted  by  the                                                               
department  under  AS 47.05.320.    However,  if that  entity  or                                                               
individual   service   provider   reasonably   relies   on   that                                                               
information in denying employment  for an individual selected for                                                               
hire as  an employee,  including during  a period  of provisional                                                               
employment,  the entity  or individual  service  provider is  not                                                               
liable  in an  action  brought  by the  individual  based on  the                                                               
employment determination resulting form the information."                                                                       
Page 33, line 20:                                                                                                               
     Delete "applies"                                                                                                           
     Insert "and AS 44.62.330 - 44.62.630 apply"                                                                                
Page 34, lines 9 - 15:                                                                                                          
     Delete all material.                                                                                                       
Page 39, line 22, following "to", through line 30:                                                                              
     Delete all material and insert "assisted living homes as                                                                   
defined in AS 47.32.900."                                                                                                       
Page 42, following line 9:                                                                                                      
     Insert a new bill section to read:                                                                                         
   "*Sec. 44.  AS 14.43.148(h)(1)(B)(iii) is repealed."                                                                       
Renumber the following bill sections accordingly.                                                                               
Page 42, following line 16:                                                                                                     
     Insert a new bill section to read:                                                                                         
   "* Sec. 47.  AS 25.27.244(s)(2) is repealed."                                                                              
Page 43, line 16:                                                                                                               
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
Page 43, line 17:                                                                                                               
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
Page 43, line 19                                                                                                                
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
Page 43, line 26:                                                                                                               
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
Page 43, line 31:                                                                                                               
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
MS. STONKAS advised the revisions had to do with technicalities                                                                 
and consistency throughout the bill. She asked that Stacy Kraly                                                                 
explain the changes.                                                                                                            
MS. STACEY  KRALY, senior assistant attorney  general, Department                                                               
of  Law (DOL),  explained  the  revisions are  in  response to  a                                                               
lengthy  bill with  a  lot of  conforming  amendments. The  first                                                               
revision deletes Section 6.                                                                                                     
4:52:07 PM                                                                                                                    
The second revision is a conforming edit with respect to the                                                                    
change on Page 9.                                                                                                               
SENATOR FRENCH:                                                                                                                 
      Ms. Kraly, both of the revisions have the affect of                                                                       
         taking out the change to a license issued to a                                                                         
     childcare facility.  Is that  going to be  relocated or                                                                    
     what is happening to both of those changes?                                                                                
MS. KRALY  said the revision  goes back to  her misunderstanding.                                                               
This  particular statute  deals with  individual property  rights                                                               
and  the  DOL  is  no   longer  licensing  individuals  they  are                                                               
licensing entities. They won't be  re codified or moved somewhere                                                               
else they will be repealed in total.                                                                                            
4:53:50 PM                                                                                                                    
The third and  fourth revisions are to include  Medicaid fraud as                                                               
an inclusion  on the  abuse registry.  If somebody  is prosecuted                                                               
for Medicaid fraud the DOL wants  that to be part of the criminal                                                               
background check.                                                                                                               
SENATOR FRENCH:                                                                                                                 
     Ms. Kraly  on Page 13  what I have  in front of  me now                                                                    
     reads,  "the  department  may  not  issue  or  renew  a                                                                    
     license   or  certification   for  an   entity  if   an                                                                    
     individual is applying for  a license, license renewal,                                                                    
     certification, or certification  renewal for the entity                                                                    
     and  that  individual has  been  found  by a  court  or                                                                    
     agency  of   this  or  another  jurisdiction   to  have                                                                    
     neglected, abused,  or exploited a child  or vulnerable                                                                    
     adult  under AS  47.10,  AS  47.24, or  AS  47.62 or  a                                                                    
     substantially    similar     provision    in    another                                                                    
     jurisdiction." Is  it the entity  may not  have someone                                                                    
     make  this  application,  the  person  can't  make  the                                                                    
     application, and  the person can't  be part of  a group                                                                    
     that... It's just not clear to me how this works.                                                                          
MS.  KRALY explained  it  would be  further  developed through  a                                                               
regulatory  process similar  for  what is  done  for an  assisted                                                               
living  home.  The  premise  is  that the  entity  would  be  the                                                               
licensed  structure. With  respect to  the hiring  decisions, the                                                               
entity  would  submit  a  name  for a  background  check  for  an                                                               
individual to see whether they  were barred from employment under                                                               
a mandatory barrier crime list.                                                                                                 
SENATOR FRENCH said  it sounds like the entity  can't have anyone                                                               
with a criminal history working for  the entity or applying for a                                                               
license for the entity.                                                                                                         
CHAIR SEEKINS said  it looks like the individual  in question can                                                               
not own an entity or be  an officer, director, partner, member or                                                               
principal of  a business or  organization that owns an  entity if                                                               
any of the things were there.                                                                                                   
SENATOR  FRENCH restated  it was  unclear as  to how  it operates                                                               
with the licensing statute.                                                                                                     
4:56:37 PM                                                                                                                    
MS. KRALY said it is very similar  to what is being done with the                                                               
assisted living statute and the foster care statute:                                                                            
     If you  have somebody working  with you or  residing in                                                                    
     your home  who has regular contact  with an individual,                                                                    
     they  must submit  to a  criminal background  check and                                                                    
     that  criminal  background  check will  show...  if  it                                                                    
     shows  a conviction  for a  certain  listed crime  then                                                                    
     that  person cannot  be employed  or have  any sort  of                                                                    
     function within  the entity. There is  another rigorous                                                                    
     list  called "permissive  barrier  crimes" where  there                                                                    
     would be  the potential that  if you were 20  years old                                                                    
     and got into a bar fight  in college and you are now 35                                                                    
     and  have not  had  any trouble  since  that time,  you                                                                    
     would  still be  able to  become a  part in  a licensed                                                                    
     entity. The  basic structure of  what we  envisioned is                                                                    
     the nuts and  bolts of this will be  dealt with through                                                                    
     the regulations,  which is currently  how we  do things                                                                    
     for  the assisted  living homes  and it  seems to  work                                                                    
     pretty well.                                                                                                               
4:58:17 PM                                                                                                                    
SENATOR  FRENCH  said it  seems  clumsily  drafted but  the  idea                                                               
behind it seems sound.                                                                                                          
MS. KRALY continued  Page 17 following line  26 (immunity clause)                                                               
was created  to remove the  immunity provision from  the criminal                                                               
background check.                                                                                                               
5:00:12 PM                                                                                                                    
SENATOR GUESS  asked Ms.  Kraly to  explain the  term "reasonably                                                               
MS. KRALY  responded "reasonably  relies" means when  an employee                                                               
presents a fingerprint card for a  background check and it is run                                                               
through the  state process the  employer reviews  the information                                                               
and  makes a  decision. If  they decide  not to  employ somebody,                                                               
then  the individual  cannot file  suit  against the  prospective                                                               
SENATOR  GUESS asked  if  something shows  up  on the  background                                                               
check  that wouldn't  exclude the  applicant,  does the  employer                                                               
have a right to not employ the person.                                                                                          
MS. KRALY  said the decision  would be  left up to  the employer.                                                               
The  immunity  attaches  only  to  the  case  if  an  applicant's                                                               
background check flags a barrier crime.                                                                                         
5:03:08 PM                                                                                                                    
SENATOR GUESS asked whether there would  be anything come up in a                                                               
criminal  background  check that  would  not  be a  reason  under                                                               
statute for them  to hire the person. She is  worried this allows                                                               
open immunity.  The employer could use  information they wouldn't                                                               
normally have to not hire the person.                                                                                           
MS.  KRALY  said  the  distinction is  a  low  level  misdemeanor                                                               
wouldn't be listed as a permissive  crime. If the decision not to                                                               
employ was based  upon something that was not  listed through the                                                               
regulatory process,  the employer  couldn't use  that as  a basis                                                               
for preventing employment.                                                                                                      
5:04:59 PM                                                                                                                    
CHAIR SEEKINS asked Ms. Kraly  whether the employer would be able                                                               
to see everything on the criminal history check.                                                                                
MS.  KRALY admitted  the  employer would  see  everything on  the                                                               
background check.                                                                                                               
CHAIR SEEKINS  asked whether a criminal  history background check                                                               
was public information.                                                                                                         
MS. KRALY said not as readily  as this process would envision but                                                               
yes, it is public information.                                                                                                  
CHAIR  SEEKINS  said  this  would  be putting  the  onus  on  the                                                               
employer to do  a reasonably available background  check. If that                                                               
employer wanted to  preclude someone from being  hired they could                                                               
already do that.                                                                                                                
5:06:54 PM                                                                                                                    
SENATOR GUESS expressed concern with  the immunity. She said this                                                               
would give the  employer the ability to look  at someone's entire                                                               
background  and deny  him or  her employment  while being  immune                                                               
from a  lawsuit. She  said the immunity  clause seems  to provide                                                               
immunity regardless  of the  reason the  employer decides  not to                                                               
5:08:56 PM                                                                                                                    
CHAIR SEEKINS disagreed.  He read it as the employer  may use the                                                               
information  only  as  provided  in regulations  adopted  by  the                                                               
MS. KRALY agreed. There are  sufficient sideboards in the bill to                                                               
ensure the  immunity that  is being  provided addresses  only the                                                               
use of the information from the criminal background check.                                                                      
SENATOR   FRENCH   said   it  appears   to   be   two   different                                                               
interpretations happening. If the  second sentence said, "however                                                               
if the individual  or service provider reasonably  relies on that                                                               
information only  in the manner  provided in  regulations adopted                                                               
by  the  department  and  denies  employment  for  an  individual                                                               
selected for  hire as an employee,  the entity is not  liable for                                                               
any action." What  Senator Guess is saying is  that someone could                                                               
misread that  information and mistake  a charge for  a conviction                                                               
or they could  decide that a 15-year-old DWI is  a barrier crime.                                                               
This is all based on  somebody's interpretation of someone else's                                                               
criminal history.                                                                                                               
5:12:44 PM                                                                                                                    
CHAIR SEEKINS  said an employer  always has to  determine whether                                                               
or  not the  person is  of good  character. He  said an  employer                                                               
should  be  held  harmless  for  making a  decision  based  on  a                                                               
background check.  He said  he has no  objection to  a conceptual                                                               
amendment to  clarify the employer  can only use  the information                                                               
in the manner  prescribed by the regulations. He  asked Ms. Kraly                                                               
whether she objected to the proposed conceptual amendment.                                                                      
MS. KRALY said no.                                                                                                              
CHAIR SEEKINS  announced the conceptual amendment  was adapted to                                                               
Amendment 1.                                                                                                                    
Ms.  Kraly  continued explaining  the  revisions.  Last week  the                                                               
committee wanted to make sure  that "assisted living" was defined                                                               
and  so  that was  added  and  it  is consistent  throughout  the                                                               
5:15:57 PM                                                                                                                    
After  deleting  Section  6  there required  an  inclusion  of  a                                                               
repealer on Page  42. The change on  Page 42, line 16  is to make                                                               
sure  the corresponding  section in  the back  was repealed.  The                                                               
remaining revisions would be numbering issues.                                                                                  
CHAIR  SEEKINS  removed  his objection  and  hearing  no  others,                                                               
Amendment 1 was adopted.                                                                                                        
SENATOR  HUGGINS   moved  CSSB   125(JUD)  from   committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         

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