Legislature(2005 - 2006)BUTROVICH 205
05/01/2005 04:00 PM JUDICIARY
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* first hearing in first committee of referral
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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 document. 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 consider. 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 jurisdiction" 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 jurisdiction" 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 relies." 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 employer. 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 hire. 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 department. 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 statutes. 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.