Legislature(2003 - 2004)
05/17/2003 11:45 AM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 201-HOME & RESPITE CARE: CRIMINAL RECORDS
BRIAN HOVE, aide to Senator Ralph Seekins, explained the Revisor
of Statutes requested the bill, which corrects errors in chapters
45 and 118, SLA 1994.
SENATOR FRED DYSON asked if there had been any testimony against
the bill.
CHAIR GARY STEVENS advised there were several people that wanted
to testify on the issue. He asked Jerry Luckhaupt whether he had
any comments.
JERRY LUCKAUPT, Legislative Legal Services Council, further
explained that two bills were adopted in the same year. One was a
comprehensive rewrite of the criminal history record statutes and
the other related to home care and respite care agencies and
requiring criminal history records checks. Because of the first
bill, the statute that guided the process required by the second
bill was no longer there and there was no other obvious statute
that could be referred to. The Revisor pointed this out to the
Judiciary Committee then handed it along to him as the person
that handles criminal law and related matters. As the least
controversial resolution, he cited a federal law that requires
these checks regardless of state law. The referenced federal law
provides that respite care and home care agencies and nursing
facilities can all request criminal history record checks for
employees and prospective employees. Hopefully, Health and Social
Services will look at the statutes and decide whether they want
certain convictions to disqualify individuals from potential
employment. Federal law doesn't specifically require
disqualification for certain jobs. It requires the employer to
get the records and make a determination to hire or fire an
individual.
MARY NICHOLSON asked:
· If the bill would include consumer direct based aid or just
for facility based home care
· If this would cover just local background criminal history
checks or would it include finger printing and FBI
background checks
· Would the bill allow any of the home care providers to be
grand fathered in
MR. LUCKHAUPT advised the bill applies to anyone that is required
to be licensed by the department in these areas. Agencies that go
into the home are required to be licensed and if they receive
state money they must do the checks. The checks have been a state
requirement since 1994 and a federal requirement since 1998. It
isn't just a local name based check of the Alaska system. It is a
national fingerprint check through the FBI and is required under
federal law. He stressed this is not a new requirement.
He further explained that in 1994 two laws were passed, one
repealing the statute and the other citing to it. Since then
federal law has established a new requirement for an FBI
fingerprint based check for all, not just new, home health care
employees and prospective employees.
Because the Department of Health and Social Services has not come
forward to remedy the problem, Legislative Legal took the
remedial course of citing federal law as the least controversial
solution.
SENATOR DYSON asked whether similar action is needed for
childcare facilities.
MR. LUCKHAUPT advised this federal law refers to home health care
workers and nursing facilities only.
SIDE B
12:35 pm
Respite care for children is covered, but foster parents and
similar situations aren't covered under this federal law.
SENATOR DYSON asked if this kind of check is required for
childcare and foster parents.
MR. LUCKHAUPT stated there is a separate law dealing with
fingerprint based background checks for foster parents and others
that deal with children.
SENATOR DYSON said some childcare providers are concerned that
they can't get access to juvenile records for individuals they
are employing that are just past the age of majority. Areas of
sexual misconduct are of particular concern. He asked if it would
be possible to have a state statute that would allow access to
some juvenile criminal records.
MR. LUCKHAUPT said there's always a problem with federal law with
certain people that receive certain federal aid through the
Social Security Administration. Some of those records have a
requirement for a certain level of confidentiality, but they
could open juvenile records if they elected to do so and they
have in certain cases.
SENATOR DYSON said he realizes that was off topic for HB 201, but
he appreciated the information.
SENATOR COWDERY made a motion to move HB 201 and attached fiscal
note from committee with individual recommendations. He asked for
unanimous consent. There being no objection, it was so ordered.
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