04/06/2004 03:10 PM House HES
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES
STANDING COMMITTEE
April 6, 2004
3:10 p.m.
MEMBERS PRESENT
Representative Peggy Wilson, Chair
Representative Carl Gatto, Vice Chair
Representative John Coghill
Representative Paul Seaton
Representative Kelly Wolf
Representative Sharon Cissna
Representative Mary Kapsner
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 427
"An Act relating to guardianships and conservatorships, to the
public guardian and the office of public advocacy, to private
professional guardians and private professional conservators, to
court visitors, court-appointed attorneys, guardians ad litem,
and fiduciaries, and to the protection of the person or property
of certain individuals, including minors; amending Rules 16(f)
and 17(e), Alaska Rules of Probate Procedure; and providing for
an effective date."
- MOVED CSHB 427(HES) OUT OF COMMITTEE
HOUSE BILL NO. 381
"An Act relating to child endangerment."
- MOVED CSHB 381(HES) OUT OF COMMITTEE
HOUSE BILL NO. 443
"An Act relating to eligibility of nurses for the teachers' and
nurses' housing loan program of the Alaska Housing Finance
Corporation."
- MOVED HB 443 OUT OF COMMITTEE
SENATE BILL NO. 373
"An Act relating to residency and internship permits issued by
the State Medical Board; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 502
"An Act relating to dispensing opticians and dispensing optician
apprentices."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 543
"An Act relating to medical assistance coverage for prescription
drugs; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 427
SHORT TITLE: PROTECTION OF PERSONS AND PROPERTY
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
02/04/04 (H) READ THE FIRST TIME - REFERRALS
02/04/04 (H) HES, JUD
04/01/04 (H) HES AT 3:00 PM CAPITOL 106
04/01/04 (H) Heard & Held
04/01/04 (H) MINUTE(HES)
04/06/04 (H) HES AT 3:00 PM CAPITOL 106
BILL: HB 381
SHORT TITLE: CHILD ENDANGERMENT DRIVING OFFENSES
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE
01/20/04 (H) READ THE FIRST TIME - REFERRALS
01/20/04 (H) HES, JUD
04/06/04 (H) HES AT 3:00 PM CAPITOL 106
BILL: HB 443
SHORT TITLE: TEACHERS AND NURSES HOUSING LOAN PROGRAM
SPONSOR(S): REPRESENTATIVE(S) KERTTULA
02/09/04 (H) READ THE FIRST TIME - REFERRALS
02/09/04 (H) HES, FIN
04/06/04 (H) HES AT 3:00 PM CAPITOL 106
WITNESS REGISTER
JIM PARKER, Attorney
Public Guardian Section
Office of Public Advocacy
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 427 and answered questions
from the committee.
SUSAN ARMSTRONG, Ombudsman
Office of Long Term Care
Older Alaskans Commission
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 427.
EDIE ZUKAUSKAS, Attorney
Disability Law Center of Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 427.
SHARON WELLS, private professional guardian
Senior Care Services
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 427.
ROBERT PENZENIK
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 427.
MARIEANN VASSAR, President
Alaska State Association for Guardianship and Advocacy,
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 427.
ELIZABETH LUCAS, State President
AARP
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 427.
JIM SHINE, Staff
to Representative Tom Anderson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the bill on behalf of
Representative Anderson, sponsor of HB 427.
JOSH FINK, Director
Office of Public Advocacy
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 427 and answered
questions from the members.
BETTY WELLS, President
Alaska State Association for Guardianship Advocacy (ASAGA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 427 and answered
questions from the members.
PEGGY JO WHITTINGTON, Owner
Iliamna Services
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 427.
HEATH HILYARD, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 381 on behalf of
Representative McGuire, sponsor.
LINDA WILSON, Deputy Director
Public Defender Agency
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 381 and answered questions
from the members.
REPRESENTATIVE LESIL McGUIRE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As sponsor of HB 381, answered questions
from the committee.
REPRESENTATIVE BETH KERTTULA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As a sponsor of HB 443, presented the bill.
ACTION NARRATIVE
TAPE 04-28, SIDE A
Number 0001
CHAIR PEGGY WILSON called the House Health, Education and Social
Services Standing Committee meeting to order at 3:10 p.m.
Representatives Wilson, Wolf, Coghill, and Seaton were present
at the call to order. Representatives Gatto, Cissna, and
Kapsner joined the committee as the meeting was in progress.
HB 427-PROTECTION OF PERSONS AND PROPERTY
Number 0073
CHAIR WILSON announced that the first order of business would be
HOUSE BILL NO. 427, "An Act relating to guardianships and
conservatorships, to the public guardian and the office of
public advocacy, to private professional guardians and private
professional conservators, to court visitors, court-appointed
attorneys, guardians ad litem, and fiduciaries, and to the
protection of the person or property of certain individuals,
including minors; amending Rules 16(f) and 17(e), Alaska Rules
of Probate Procedure; and providing for an effective date."
Number 0118
CHAIR WILSON announced that Representative Kapsner has joined
the meeting.
Number 0184
JIM PARKER, Attorney, Public Guardian Section, Office of Public
Advocacy, testified on HB 427 and answered questions from the
committee. He told the members that Joshua Fink [Public
Advocate, Office of Public Advocacy] sent a letter to the
committee in response to comments that were made at the last
hearing, and offered to review important points he addressed.
CHAIR WILSON agreed that would be a good place to start because
the information in the letter conflicts with testimony received
last week.
MR. PARKER said that the first point that Mr. Fink made is that
this legislation is about regulation of professional guardians
and conservators, not family members who are taking care of
disabled relatives. This bill also exempts financial
institutions who are already regulated sufficiently under
existing Alaska law.
MR. PARKER responded to a comment made by a testifier ["B"
Jarvi] from Fairbanks who said that the rate set for private
guardians is $40 per hour. This is not correct, OPA's has
regulations which setout the fees. The majority of the clients'
fees are about $40 per month, although the fees can go up as
high as $145 per month, but not $40 per hour, he stated.
MR. PARKER commented on a second suggestions by Ms. Jarvi that
OPA public guardians should be subject to this legislation. He
said that this suggestion ignores the fact that OPA's public
guardians are state employees and are regulated by the processes
of state government which has oversight by the state advocate,
who serves at the pleasure of the governor, and is subject to
oversight by the legislature. Mr. Parker said that if a public
guardian were to take financial advantage of a client, that
client would be protected as a risk management function of the
Department of Law that would indemnify the client for all law
suits.
Number 0340
MR. PARKER told the committee that currently all public
guardians have passed the examination and are registered with
the National Guardian Foundation. He noted that four have
received advanced certification. Mr. Parker admitted that
criminal background checks are not done on public guardians, but
when a person applies for work with state government that person
must identify and explain criminal history. Mr. Parker added
that OPA is considering background checks on all public
guardians.
Number 0512
MR. PARKER commented that Ms. Jarvi also testified that she
believes court visitors should also be included in this
legislation. He said that he believes her statement reflects a
lack of understanding of the role of the court visitor. A court
visitor is an uninterested third-party who does investigations
and provides feedback to the court on whether guardianship
should be approved, arranges evaluations, interviews the
petitioner, family, friends, and care providers; and then
provides a written report in guardianship cases. While court
visitors have access to financial records, they do not have
access to the resources, he explained. He said he does not see
the need for the bonding requirement that was suggested.
MR. PARKER said that his last point addresses the assertion that
the OPA is in league with the court visitors to steer cases to
OPA. He told the members that is not the case. The agency is
required by statute to look at family, friends, or private
alternatives. If there is someone available it is important
that OPA be sure that the person will do a good job and protect
OPA's client's interest, he said.
MR. PARKER told the members that many organizations were
involved in this process including Adult Protective Services,
the Alaska Trust Company, the Alaska Court System, the Office of
the Long Term Care Ombudsman, the Office of Public Advocacy, the
Disability Law Center, private attorneys, court visitors, and
private professional guardians such as Dave Shady, the principal
at Professional Guardian Services Corporation who was invited to
participate in this process. In summary he said he believes
this is good legislation.
Number 0571
CHAIR WILSON asked how many public guardian are employed with
the state. She noted that four of the guardians had received
advanced certification.
Number 0595
MR. PARKER said he believes there are fourteen.
Number 0707
SUSAN ARMSTRONG, Ombudsman, Office of Long Term Care, Older
Alaskans Commission, testified in support of HB 427. She told
the members that for the last one and a half years the office
has participated in the task force that spearheaded this
project. Ms. Armstrong said that the participants included the
Alaska Court System, the Office of Public Advocacy, the
Disability Law Center, and private professional guardian
services among others, and achieved consensus on the foundation
for this legislation. She emphasized that all private
professional guardian services were invited to participate on
this task force. At the center of the proposed legislation is
the regulation of private professional guardians and
conservators.
MS. ARMSTRONG explained that the Office of Long Term Care
investigates complaints concerning the health, safety, welfare,
and rights of older Alaskans. Over the years the office has
worked on a number of cases regarding the action or inaction of
private professional guardians and conservators, she said.
While there are dedicated people serving in this capacity, there
are less principled counterparts that cast a shadow on this very
necessary service.
MS. ARMSTRONG told the members that currently there are no
enforcement powers over private professional guardians that the
office can turn to other than the court system. By contrast
when a public guardian's actions are an issue there are a number
of resources to ensure it is corrected properly. Ms. Armstrong
pointed out that public guardians are subject to state laws
governing their actions, and state ethics laws that direct the
actions of any state employee. She said that the safety
measures are in place for the acts of public guardians, although
it is rarely necessary. Ms. Armstrong told the members that
public guardians must meet minimum qualifications and have
specific education and qualifications to be hired, which is not
true for a professional private guardian. In summary, she said
as the older population grows it is important to refine how they
are served by creating a licensure and oversight agency which
regulates private professional guardians and conservators.
Number 0853
EDIE ZUKAUSKAS, Attorney, Disability Law Center of Alaska,
testified in support of HB 427. She told the members that the
Disability Law Center has been a party to this long overdue
legislation. As the Alaskan population ages and life expectancy
increases the need for more private professional guardians and
conservators will also increase. Ms. Zukauskas said that she
believes this bill will provide protection of the most
vulnerable citizens.
MS. ZUKAUSKAS pointed to page 5, lines 16 through 20, which
reads:
(3) a written waiver of confidentiality signed by the
applicant allowing the department to access at any
time relevant complaint information made about the
applicant to adult protective services, the designated
protection and advocacy agency, the long-term care
ombudsman, or an entity that certifies or licenses
private professional guardians or private professional
conservators;
MS. ZUKAUSKAS commented that the language in the bill strives to
ensure the protection of the rights of the individuals needing a
guardian or a conservator. This language clarifies that this
particular section is intended to say that the privacy of the
applicant is being waived and not those of the ward or other
protected person. She urged the members to act upon this bill
as soon as possible.
Number 0952
SHARON WELLS, private professional guardian, Senior Care
Services, testified in support of HB 427. She told the members
that her organization actively participated with the group that
drafted the bill that is before the committee for consideration.
Senior Care Services has been providing professional
guardianship services since December of 1999. In the past four
years it has been appointed by the Superior Court to be a
guardian and/or conservator for individuals with some type of
incapacity. She added that Senior Care Services does not accept
any clients except those appointed by the courts.
MS. WELLS shared that her work experience reflects that her
primary focus has been providing services for incapacitated
elderly. She told the members that she was a social worker for
18 years at the Anchorage Pioneer's Home. As a court appointed
guardian, Senior Care Services has been appointed to cases when
the ward has funds to pay the fees and when the incapacitated
person does not have friends or family who can serve in that
role. The hourly fees that Senior Care Services' charges are
based on the work that is done.
Number 1097
MS. WELLS stated that at no time since the business started has
she felt she was in competition with OPA or any other private
professional guardians. She stated that making decisions for
another person can be very difficult and a great responsibility.
Managing another person's financial matters can be complicated,
she said. For these reasons Senior Care Services supports the
concept of licensure of private professional guardians. The
requirements are not extensive and should not discourage people
from entering this profession. However, it is important to
ensure that those in the profession have the skills to make
appropriate medical and financial decisions for vulnerable
adults. She said it is her understanding that the proposed
changes will provide that a professional guardian will estimate
the average monthly fees that will be charged to the estate, and
if additional fees are required due to a crisis, the guardian
will need to seek court approval. This oversight will provide
some assurance to the court. Ms. Wells urged support of HB 427.
Number 1215
ROBERT PENZENIK testified in support of HB 427. He told the
members that he is speaking on behalf of himself and his
daughter. There are a small but very important group of
Alaskans who need protection, he said. Mr. Penzenik explained
that he has been both a provider and user of the guardianship
services. His most recent experience of these services has been
for his daughter who has been found to need a guardian or
conservator. He shared that in order to provide a more
comfortable family relationship it was decided to utilize the
services of a paid professional guardian rather than a family
member. He said that he could not have been more pleased with
the outcome. Mr. Penzenik added that his daughter has a large
and active support system in her life.
MR. PENZENIK explained that the reason he is testifying today is
for the concern of those vulnerable adults who do not have that
support system in place. He told the members that a number of
years ago he was a conservator for some children who lost their
father in a plane accident and became aware of how easy it would
be for someone acting as a guardian or conservatory to
inappropriately utilize funds belonging to others. He said that
while his experience goes back to the 1970s, he does not believe
the situation has changed very much. The situation that
happened recently in Fairbanks with Community [Advocacy Project
of Alaska, Inc. (CAPA) is a case in point. Mr. Penzenik noted
that if HB 427 had been law prior to CAPA's bankruptcy the
clients would have been protected. He pointed out that even
though CAPA had already been removed from guardianship of seven
cases, it was still allowed to operate.
Number 1325
MR. PENZENIK told the members that he believes there are a
number of weaknesses in the present system which would be
addressed by HB 427. For instance, there is no requirement of a
criminal background check. The danger is obvious. Courts do
not have a way of checking to see if a prospective guardian has
been removed from any other case, he said. Another essential
element is that there is no training or experience required to
be a private professional guardian or conservator, he added. In
summary, he said that there will be no cost to the taxpayers of
Alaska since the licensing will be fully self-supporting.
Number 1399
MARIEANN VASSAR, President, Alaska State Association for
Guardianship and Advocacy, testified in support of HB 427. She
told the members that she is a court visitor and worked on the
task force to develop the legislation before the members.
During that process it became obvious that another method of
determining the viability of a private professional guardian is
necessary. She explained that there was a very lengthy legal
battle which could have been avoided had there been law in place
to determine viability of an agency. In "B" Jarvi's testimony
that CAPA had adequate insurance to cover the losses that were
incurred due to its bankruptcy, Ms. Vassar commented that her
recollection of that incident is that it is not a true
statement. The $250,000 that CAPA had in no way covered the
losses of its clients who were impacted. Ms. Vassar added that
while the cases are not settle, she does not believe those
people will ever be made whole. She recommended that the
legislature support this bill.
Number 1450
ELIZABETH LUCAS, State President, AARP, testified in support of
HB 427. For several years AARP has supported the idea of
implementing guidelines and statutes for guardianships and
conservatorships. Unfortunately, currently many members of AARP
need these services. All of us will be better off with HB 427
as part of Alaska law. She urged the members to pass HB 427.
Number 1564
REPRESENTATIVE GATTO commented that in the sponsor statement it
says the following:
Under Alaska law, the court first looks to appoint
guardians nominated by the incapacitated person if the
choice is a reasonably intelligent one.
REPRESENTATIVE GATTO said that in looking in the bill he does
not see that protection provided for in HB 427.
MS. LUCAS suggested that someone else might be able to address
that point.
JIM SHINE, Staff to Representative Tom Anderson, Alaska State
Legislature, testified on HB 427. He recommended that the
question be address to Mr. Parker or Mr. Fink.
MR. PARKER asked for clarification of the questions.
Number 1636
REPRESENTATIVE COGHILL said that he believes that point would be
addressed in Section 16, on page 16.
MR. PARKER agreed that this point is addressed on page 16, line
18, where the words "reasonably intelligent" were replaced with
the words "informed choice." The idea here is that the person
who is incapacitated should have some choice about who it is
that should be making decisions for them, and the priority for
respecting this choice is that the person be informed.
Number 1671
CHAIR WILSON asked approximately how many people across the
state need guardians.
MR. PARKER responded that he has heard that there are about
2,500 individuals, but cannot confirm the accuracy of that
number.
CHAIR WILSON commented that is the number provided in the
sponsor statement.
Number 1697
REPRESENTATIVE CISSNA referred to page 2, line 13, where the
term "trustworthy person" is used and asked if there is a
definition [in statute].
MR. PARKER commented that Ms. Armstrong may have some input on
that. He said that this statute comes from the Division of
Occupational Licensing. He admitted that trustworthy is not a
precise term of art or a legal term.
Number 1774
CHAIR WILSON questioned whether the word trustworthy is defined
in Alaska statute.
MR. PARKER said he does not believe so.
REPRESENTATIVE CISSNA referred to the word "degree" on page 2,
lines 9 and 28. She asked if an associate's degree would meet
these standards or is a bachelor's degree required.
MR. PARKER replied that he believes it is referring to a
bachelor's degree.
REPRESENTATIVE CISSNA commented that the term "degree" should be
clarified because an associate's degree is also a degree.
REPRESENTATIVE CISSNA pointed to page 4, lines [19 through] 28,
where there is discussion about temporary licenses. She asked
if there is a required background check before a temporary
license is issued.
Number 1874
REPRESENTATIVE CISSNA said that on page 6, line 30, subsection
(6), which addresses an annual report and reads as follows:
(6) a list of all current employees of the licensee.
REPRESENTATIVE CISSNA commented that this language says that all
employees of the licensee must be listed. She asked if in the
case where the licensee has a separate [unrelated] business,
would this bill require that employees of the other businesses
also have to be listed in the annual report.
JIM SHINE, Staff to Representative Tom Anderson, Alaska State
Legislature, testified on behalf of Representative Anderson,
sponsor of HB 427, and answered questions from the committee.
In response to Representative Cissna's question about background
checks and temporary licenses, he asked the members to look at
page 6, lines [11] through 14 which reads as follows:
(b) The department may not issue a license to a
person under this section unless the department
receives the report required by (a)(3) of this
section.
MR. SHINE explained that this includes the issuance of a
temporary license. He referred Representative Cissna's second
question to Mr. Parker.
Number 1927
MR. PARKER said that while Teresa Bannister drafted the
language, he believes the employees that would be required to be
listed are those who work in the business that provides guardian
and conservator services.
JOSH FINK, Director, Office of Public Advocacy, testified in
support of HB 427 and answered questions from the members. He
told the members that the language might be changed to read as
follows:
(6) a list of all current employees operating under
the licensee.
MR. PARKER clarified his belief that this language was not
intended to cover other businesses.
REPRESENTATIVE CISSNA pointed out that there needs to be two
changes in the language of the bill. On page 2, line 9 [and
28], the kind of degree needs to be delineated. On page 2, line
13, the term "trustworthy" does not appear to be terms of art so
specific wording needs to be used, she said.
Number 2018
REPRESENTATIVE WOLF moved Amendment 1 as follows:
On page 2, line 13, and page 3, lines 1 and 14
Delete the word "trustworthy"
REPRESENTATIVE WOLF told the members that there needs to be a
definitive language.
CHAIR WILSON asked for a response from the sponsor on these
points. She suggested that the bill be revised to addresses the
points the committee brings forward.
Number 2088
REPRESENTATIVE WOLF said that Sec. 08.28.020 sets requirements
for those individuals who could be given an individual private
professional guardian license.
MR. SHINE agreed with Representative Wolf and said that he does
not believe the sponsor would have any problem removing the term
"trustworthy."
Number 2148
REPRESENTATIVE SEATON objected to Amendment 1 for purposes of
discussion.
REPRESENTATIVE GATTO commented that he does not have a problem
with the word trustworthy even though it is not defined. He
said that a person, such as a judge, may get a gut feeling about
a person even though that person may meet every requirement.
Representative Gatto summarized that he does not believe this
term either adds or detracts from the bill and would object to
the amendment on that basis.
REPRESENTATIVE SEATON agreed with Representative Wolf on this
issue because the term "trustworthy" allows a huge amount of
flexibility. He said he believes it is important to set out
objective criteria upon which people are approved. The decision
should not be based upon an impression, he stated.
MR. FINK told the members that the Office of Public Advocacy has
no problem with Amendment 1. He pointed out that other language
is more objective. On page 2, line 16 [through 19], which reads
as follows:
(6) whose criminal history record checks under AS
08.26.070 show that the individual has not been
convicted of a crime within 10 years of the
application that would affect the individual's ability
to provide the services of a guardian competently and
safely for the ward; and
MR. FINK believes that it will be necessary to determine by
regulation what crimes would preclude an individual from
serving. He said he believes those would be crimes of
dishonesty or crimes against an individual. Mr. Fink summarized
that is a more objective way to define character.
Number 2240
REPRESENTATIVE GATTO replied that he does not believe it is
possible to address all the qualifications necessary to serve as
a guardian or conservator. He posed a hypothetical example
where a person who had applied to be a guardian had filed two
bankruptcies. Even though the person may have met all the other
qualifications, he/she does not have the skills to be a
guardian. Wouldn't it be something that should be considered
when making the decision to appoint an individual as a guardian,
he asked. The applicant could argue that past bankruptcies have
nothing to do with the decision to appointment as guardian.
Number 2274
REPRESENTATIVE COGHILL commented on the ability to determine if
a person is trustworthy or not. He stated that he believes the
qualifications for licensing should be based upon credentials.
Number 2290
REPRESENTATIVE SEATON removed his objection.
REPRESENTATIVE WOLF restated Amendment 1 to be a conforming
amendment as follows:
On page 2, lines 13, page 3, lines 1 and 14
Delete "trustworthy"
Renumber appropriately
There being no objection, Amendment 1 was adopted.
Number 2357
REPRESENTATIVE CISSNA moved Amendment 2 as follows:
On page 6, line 30, after "employees
Delete "of"
Insert "operating under"
There being no objection, Amendment 2 was adopted.
TAPE 04-28, SIDE B
Number 2342
REPRESENTATIVE SEATON commented that on page 2, lines 9 and 28,
refer to the requirement that a degree is necessary. He said he
is not convinced that a bachelor's degree is necessary to be a
licensed guardian. Representative Seaton told the members that
if someone has an Associate of Arts degree in sociology or
psychology he said he thinks that might be acceptable. He asked
for the sponsor to comment.
Number 2322
MR. SHINE replied that he would like to defer to the members of
the task force who worked on crafting the language.
BETTY WELLS, President, Alaska State Association for
Guardianship Advocacy (ASAGA), testified in support of HB 427
and answered questions from the members. She told the member
that she was involved with the drafting of this legislation and
it was never their intent to have a bachelor's degree be a
requirement. An associate's degree could meet the requirements,
she stated.
CHAIR WILSON asked if she is happy with the language as it is.
MS. WELLS replied that it should be clarified to say "at least
an associates degree."
REPRESENTATIVE GATTO asked Ms. Wells if the terms "credential"
or "certification" would be closer to the intent language of
those working on this legislation.
MS. WELLS responded that she does not understand Representative
Gatto's question. She pointed out that currently there is a
requirement that the guardian be certified as a registered
guardian by a nationally recognized organization. This language
just says there needs to be some schooling, she explained.
REPRESENTATIVE SEATON moved Conceptual Amendment 3 as follows:
Page 2, line 9, after "or"
Insert "at least an associates"
Page 2, line 28, after "has"
Insert "at least an associates"
There being no objection, Amendment 3 was adopted.
Number 2185
REPRESENTATIVE WOLF moved Amendment 4 as follows:
On page 3
Delete lines 24 through 27
Number 2171
CHAIR WILSON objected for purposes of discussion.
REPRESENTATIVE WOLF told the members that he is concerned with
the language that refers to limited liability companies. He
pointed out that there are both for profit and nonprofit
businesses providing guardianship services. Under a limited
liability company the company is limited on the amount of funds
for which it can be held accountable. He said he believes this
is a loophole in the language.
MS. WELLS replied that the language Representative Wolf is
referring to was provided by Teresa Banister, Legislative Legal
and Research Services. She commented that ASAGA does not have a
strong opinion about this language.
REPRESENTATIVE WOLF commented that a nonprofit organization has
the ability to purchase insurance for its directors and
officers. He reiterated his concerned that by allowing limited
liability companies licenses to care for vulnerable adults could
mean there would be little or no liability.
REPRESENTATIVE SEATON commented that he believes this means that
if an organization applies [to be a guardian] all the members
and officers have to undergo a criminal background check. If
this language is eliminated a limited liability company could
apply and no background check would be required of anyone.
REPRESENTATIVE WOLF asked if the committee could be provided a
legal opinion on this language.
Number 1916
MS. ZUKAUSKAS said that she is not familiar with the definition
of a limited liability partnership. She said that the intent
was to have every person that is making decisions in these
organizations have to undergo a criminal background check.
REPRESENTATIVE WOLF maintained his concern that limited
liability companies that are involved in caring for vulnerable
adults could do so with little to no liability.
MR. SHINE pointed out that the next committee of referral is the
House Judiciary Standing Committee.
CHAIR WILSON stated that she would like that point addressed in
the House Judiciary Standing Committee.
REPRESENTATIVE WOLF withdrew Amendment 4.
Number 1906
REPRESENTATIVE COGHILL referred to pages 16 and 17 where there
is a list of priorities for appointment as a guardian. He
pointed to page 17, lines 1 and 2, which reads:
(e) The priorities established in (d) of this section
are not binding, and the court shall select the
individual
REPRESENTATIVE COGHILL stated that he would like to see language
inserted that would provide more binding language. He pointed
out that there have been assertions that competition exists
between public and private guardians. He said he does not
believe this should be used as a tool to direct more work toward
a state agency. Representative Coghill emphasized that he wants
to see more private guardians. These rules are significant, he
said.
Number 1787
CHAIR WILSON replied that this point could be addressed in the
House Judiciary Standing Committee.
REPRESENTATIVE SEATON told the members that he is also concerned
with this issue. His greatest concern is for the spouse of the
person requiring a guardian. He pointed out that the department
could determine that the more qualified individual is the
professional guardian, and that could mean that the spouse would
be superseded from serving. Representative Seaton said he does
not want to see a situation where the state guardian takes the
place of the spouse unless there is some detrimental effect or
that the spouse is incapable of serving.
Number 1731
PEGGY JO WHITTINGTON, Owner, Iliamna Services, testified in
support of HB 427. She told the members that she is a licensed
guardian. It is important to make guardians more accountable
within the guidelines of the state, she said. Ms. Whittington
explained that the passage of this bill will make bonding and
insurance more easily accessible. She pointed out that the fees
charged for guardian services need to be more accountable.
REPRESENTATIVE CISSNA asked if a letter will accompany the bill
to the House Judiciary Standing Committee which outlines the
concerns of the members.
Number 1597
MR. SHINE told the members that Douglas Wooliver, Administrative
Attorney, Office of the Administrative Director, Alaska Court
System, had planned on testifying, but was called away. He read
the following statement into the record:
The court strongly supports the creation of some kind
of regulatory oversight of professional guardians or
conservators. Such oversight will help judges make
sure that the appointments they make will be in the
best interests of the wards.
MR. SHINE said he believes that someone from the OPA could
address the concerns about the process that Representative
Seaton mentioned, in that a professional guardian could be
chosen over a spouse.
REPRESENTATIVE SEATON commented that the House Judiciary
Standing Committee may find that this language is fine. He said
that he would be satisfied if that committee looked at the legal
aspects of the "not binding" language.
REPRESENTATIVE COGHILL said that he will be asking the House
Judiciary Standing Committee to ensure that the courts to not go
first to the public guardian who has a conflict of interest in
the guardianship being awarded to private guardians.
Number 1496
REPRESENTATIVE WOLF asked if he could be removed from voting on
this bill since he serves as a guardian. He told the members
that his son is 23 years old and has Down Syndrome. When
reading this bill he came across language on page 16, lines 7
through 11, which brought to mind a personal nightmare that he
and his wife experienced. He explained that when his son turned
18 years old, a court visitor came to their home and read his
son his rights. His son collapsed on the floor because he did
not understand. The court visitor explained that it was
necessary to follow through with the informational session and
she refused to stop. Representative Wolf told the committee it
took an hour to calm his son down and convince him that he was
not being taken away. The court appointed an attorney to
determine that we were the appropriate people to take care of
the son that God gave to us, he stated. This attorney told us
that our son was worth X number of dollars, and that if we did
not go after every benefit that he was entitled to in this
state, the state would take him away from us. Representative
Wolf stated that he would not want any parent, spouse, family,
or friend to ever have to go through that. He said that when he
saw this language, he was outraged. He told the members he
considered doing an amendment, but was reminded that there is an
issue of abuse going on.
Number 1330
REPRESENTATIVE COGHILL objected to Representative Wolf's request
to be removed from the requirement of voting.
REPRESENTATIVE GATTO referred to page 17, line 1 through 6,
which reads:
(e) The priorities established in (d) of this section
are not binding, and the court shall select the
individual [PERSON, ASSOCIATION,] or organization
[NONPROFIT CORPORATION] that is best qualified and
willing to serve. The court shall also consider [GIVE
CONSIDERATION TO] a nomination by a person described
in (d) of this section and to a nomination in the will
of a deceased parent or spouse of the incapacitated
person.
REPRESENTATIVE GATTO said he believes this subsection opens up
the question of who can be appointed guardian. He stated he
likes the order which was listed in the bill and believes there
needs to be a compelling reason why this order would not be
followed.
Number 1272
CHAIR WILSON said she does not agree. She posed a hypothetical
example where there is a car accident and the parents are
killed. If these parents left a will directing who will care
for their children should something happen to them, then she
said she believes that request should be honored by the court.
Number 1196
REPRESENTATIVE SEATON moved to report CSHB 427, Version D, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
427(HES) was reported out of the House Health, Education and
Social Services Standing Committee.
HB 381-CHILD ENDANGERMENT DRIVING OFFENSES
Number 1150
CHAIR WILSON announced that the next order of business would be
HOUSE BILL NO. 381, "An Act relating to child endangerment."
Number 1126
HEATH HILYARD, Staff to Representative Lesil McGuire, Alaska
State Legislature, presented HB 381 on behalf of Representative
McGuire, sponsor. He read a portion of a 2004 report from
Mothers Against Drunk Driving (MADD) titled Every Child Deserves
a Designated Driver, as follows:
Carly McDonald, five years old, was killed on January
1, 1998, by her intoxicated mother who was driving
with a blood alcohol content of .22 percent, over
twice the legal limit. Carly had been placed in the
front seat of the car, her unused booster seat was
found in the back. Carly's mother had been
specifically court ordered not to consume alcohol in
Carly's presence. This was not enough to save Carly's
life.
MR. HILYARD went on to say that research statistics that MADD
has presented both with regard to child endangerment as it
pertains to driving under the influence and failure to restrain
showed that of the children who died while riding in the same
vehicle with a drinking driver only 29 percent were known to
have been restrained. Although restraint used in this group of
children is unacceptably low, restraint use has increased in
recent years. The May 2000 Journal of the American Medical
Association study found that only 18 percent of children who
were riding with a drinking driver at the time of the crash were
known to be restrained. Mr. Hilyard said that the increase in
restraint use among child passenger deaths is consistent with
the increase of child restraint use over time in the general
population. Strong enforcement of child safety seat laws and
passage of primary enforcement seatbelt laws in all states could
further reduce child passenger deaths.
Number 0983
MR. HILYARD told the members that studies from the State of
Alaska's Advisory Board on Alcoholism and Drug Abuse and the
National Transportation Safety Board addresses two key
components of HB 381. He referred to two specific provisions
which will be added to Alaska's child endangerment laws on page
2, lines 8 through 12, as follows:
(4) transports a child in a motor vehicle, aircraft,
or watercraft while under the influence of an
intoxicant; or
(5) transports a child in a motor vehicle without
requiring the child to use the seating restraints
required by law, and the child suffers physical injury
or dies.
MR. HILYARD commented that it is not the sponsor's intention to
cause a felonious charge for simply failing to restrain [a
child], but when that failure to restrain leads to an injury or
death of a child it is believed that warrants an additional
charge.
MR. HILYARD pointed out that the Advisory Board on Alcoholism
and Drug Abuse states that Alaska leads the nation on alcohol
abuse; the rate of dependence is twice the national average;
most crime in Alaska is alcohol related; and more than 80
percent of the problems that are faced with regard to children
have a direct correlation to alcohol [abuse]. He said alcohol
abuse results in roughly $453 million in costs to the state and
consumers annually. No small portion of that has to do with
motor vehicle laws.
Number 0876
MR. HILYARD referred to a study done this year by the National
Transportation Safety Board (NTSB) called Putting Children
First. This report looked at a past eight-year period in terms
of the importance of having proper restraints for children. The
intent is two-fold, one is to strongly discourage people from
driving with their child while under the influence of alcohol or
some other intoxicant. The second is to strongly encourage the
proper safety restraints for their children. Mr. Hilyard
commented that the MADD report suggests that there is a strong
correlation between the two points, in that many adults who
drive under the influence of alcohol also fail to properly
restrain their children.
MR. HILYARD said that the NTSB did a study in 1996 of 180
restrained children and found that 52 of the children used
vehicle seatbelts when the child should have been placed in
child restraint systems with booster seats. Seatbelts are
improper for many children under the age of eight years old. He
commented that there will be some variables suggested based on
the height and weight of the child. It is essential that
children be restrained properly. If a child is improperly
restrained and it results in serious injury or death, it is the
sponsor's belief that should result in additional criminal
charges.
MR. HILYARD told the members that there should be a
representative from Mothers Against Drunk Driving on-line to
testify in support of HB 381.
LINDA WILSON, Deputy Director, Public Defender Agency,
Department of Administration, testified on HB 381 and answered
questions from the members. She told the members that the
agency supports protecting children, but pointed out that some
of the language in the bill could have unintended consequences.
She referred to page 2, lines 8 and 9, subsection (4), as
follows:
(4) transports a child in a motor vehicle, aircraft,
or watercraft while under the influence of an
intoxicant;
MS. WILSON commented that this language makes it a felony to
transport a child if the driver is under the influence of an
intoxicant. She pointed out that it is not clear what an
intoxicant can be. Ms. Wilson said that the sponsor statement
and the examples provided in testimony referred to an individual
who is above the legal limit of alcohol. There is a concern
that a person could be charged with a felony for transporting a
child whether or not above the legal limit, but be under the
influence of some sort of an intoxicant. One other point that
is of concern is that a person is facing a felony charge when
there has been no resulting injury to the child.
Number 0649
MS. WILSON referred to [subsection(5), page 2, lines 10 through
12] as follows:
(5) transports a child in a motor vehicle without
requiring the child to use the seating restraints
required by law, and the child suffers physical injury
or dies.
MS. WILSON pointed out that this subsection refers to the child
suffering physical injury [or death] and the level of the
penalty depends on the injury to the child. She said she is not
sure whether there should be some changes to the language in
subsection (4) to address that as well.
MS. WILSON explained that current law provides that if a person
drives while intoxicated and a person in the car is injured, the
individual could be charged with reckless endangerment which is
a class A misdemeanor in AS 11.41.250. There is no definition
of the word "child" in this bill. Ms. Wilson questioned whether
there should be a definition or a narrowing of the definition.
She commented that in many other parts of Alaska statute a child
is a person who is under the age of 18 years old. A companion
bill talks in detail about endangering a minor under the age of
10. In subsection (5) where it talks about restraints it might
be appropriate to look at clarifying language under a certain
age, she added.
MS. WILSON summarized that the motives for HB 381 are good, but
she is concerned about some of the breadth of the language which
may pull more people in than is intended.
Number 0566
CHAIR WILSON pointed out that the age limitation is addressed on
page 1, line 6, where it refers to a child under the age of 16
years of age.
MS. WILSON thanked Chair Wilson for bringing that language to
her attention. She suggested that the committee may still want
to look at additional clarifying language for a smaller child.
CHAIR WILSON asked Ms. Wilson what that suggested language would
be.
MS. WILSON replied that in statute that refers to endangering
the welfare of a child, the age of 10 years old is used. In the
seatbelt statute which is found in AS 28.05.095 there are two
different age levels; one group is under four years of age and
another group is from age four to sixteen years of age, she
added.
Number 0481
REPRESENTATIVE GATTO asked Ms. Wilson if the word "intoxicant"
includes substances other than alcohol.
MS. WILSON replied that intoxicant as defined in AS 47.10.990
includes alcohol, but other controlled substances such as drugs
or hazardous volatile materials or inhalants would also be
included.
REPRESENTATIVE GATTO asked if concentrated over the counter
drugs used for the purpose of getting high would be included
under this definition.
MS. WILSON said yes. Intoxicants are substances that
temporarily diminish a person's control over mental or physical
powers including alcohol. She asked if Representative Gatto is
referring to cold medicine.
REPRESENTATIVE GATTO commented that some youngsters have tried
Sudafed in an effort to bring out just the active ingredients,
concentrated it, and used it to get high.
MS. WILSON responded that Sudafed probably would be included
under the definition of intoxicants in that instance.
Number 0303
REPRESENTATIVE SEATON commented that about half the over the
counter drugs are labeled with a warning not to operate a
vehicle or not use while operating heavy equipment. He asked if
an individual were to take Sudafed or some other over the
counter drug as a cold medication and were in an accident, could
the individual be charged under this legislation if it were to
become law.
MS. WILSON replied yes. She said she told the members that is a
worrisome point.
CHAIR WILSON told the members that the next committee of
referral is the House Judiciary Standing Committee. She asked
the members to look at the bill in terms of a policy issue and
allow the House Judiciary Standing Committee to address the
legal aspects of the bill.
MR. HILYARD asked the members to look at the handout in their
packets from the National Conference of State Legislatures,
Drunk Driving Child Endangerment Laws, as of December 2003. He
pointed out that this comparative chart shows the number of
first time offenses in other states when driving while
intoxicated with a child in the vehicle. A class C felony seems
somewhat high compared to other states, he said. Mr. Hilyard
assured the committee that Representative McGuire, as chair of
the House Judiciary Standing Committee, would be comfortable in
dropping that particular charge down to a class A misdemeanor.
He emphasized that the overall concern is protecting children.
Mr. Hilyard reiterated that if the committee wishes to make that
amendment he does not believe the sponsor would object.
Number 0203
CHAIR WILSON shared that many times she has observed individuals
out boating and felt concerned for the kids because it was clear
the adults were having a pretty good time. For many people in
Alaska boats are the only mode of transportation. She said she
believes the legislature needs to raise the bar so people will
realize that some actions by adults are not acceptable.
MR. HILYARD commented that just before coming to the meeting he
printed out a list of bills currently in the legislature that
deal with enhancing DUI laws. There were quite a number, he
remarked.
TAPE 04-29, SIDE A
Number 0026
MR. HILYARD added that he has great respect for the public
defender's position and assured the committee that the House
Judiciary Standing Committee will amend the bill to change the
penalty to a class A misdemeanor.
Number 0047
REPRESENTATIVE SEATON told the members that for the last year
and a half he has been working with Alaska Safe Kids with
respect to the problems of enforcement of Alaska's seatbelt
laws. He explained that the police are having difficulty
enforcing the law because it is hard to interpret it. Two
months ago all the police departments in the state received a
copy of the attorney general's opinion which was to setout
exactly what the law says. Representative Seaton told the
members that Alaska Safe Kids is still receiving requests for
clarification from police departments. Part of the confusion is
that Alaska's law refers to the National Highway Traffic Safety
Administration (NHTSA) site where it refers to weight and height
parameters. The police still do not know how to site
individuals because they are unclear on the requirements for
restraints.
REPRESENTATIVE SEATON pointed out that this bill would impose
felony convictions on individuals who do not have children
properly restrained when the police cannot figure out on a
coordinated basis how to enforce the law. He emphasized that he
is very concerned with this bill because it goes far beyond
health and safety issues. He pointed out that parents will have
to decipher what is required of them [when the police still
cannot].
Number 0185
REPRESENTATIVE SEATON explained that determining the proper
restraint is difficult because it depends not only on the design
of the individual car seat, but also how it is installed in the
car, and the weight and height of the child. For example, if a
child is three pounds over the weight requirement for a booster
seat, that is illegal, he said.
REPRESENTATIVE SEATON commented that another concern he has is
that individuals are being penalized for what happens if there
is an accident, and not for failure to use seat restraints. If
a child is seriously hurt in an accident or dies, the parent's
action was exactly the same and yet the penalty is based on what
happened in the car at the time of the accident, he said.
Representative Seaton summarized that he is uncomfortable with
this part of the bill, and suggested that the House Judiciary
Standing Committee could deal with that point.
CHAIR WILSON agreed with Representative Seaton on the seat
restraint issue. It would be easy to see how a child could
exceed weight or height capacity and the parent might not notice
until the child does not fit.
REPRESENTATIVE SEATON went on to say that the seat may have been
fine six months ago, but now is not the proper restraint.
Alaska law does not specify exactly what is to be used, just
that proper restraint must be used. Proper restraint
requirements are changing and so are the NHTSA regulations.
That is the reason the Alaska statutes are not more specific.
Number 0392
REPRESENTATIVE CISSNA asked for clarification on felony
convictions and the penalties associated with it.
MR. HILYARD asked for her to restate her question.
REPRESENTATIVE CISSNA said that as she understands it if an
individual is convicted of a felony, he/she will not qualify for
certain jobs ever again.
MR. HILYARD said that is correct.
REPRESENTATIVE CISSNA said if convicted these individuals will
not be able to vote again.
MR. HILYARD said that is correct.
REPRESENTATIVE CISSNA commented that in many of the
neighborhoods in her district there are very poor people with a
higher percentage of individuals who have felony convictions.
Many of them do not have jobs that provide health insurance.
The person who was driving that car and made that mistake will
be a very different kind of parent than before the conviction,
Representative Cissna stated. She asked if that is the message
the legislature wants to give.
Number 0571
MR. HILYARD responded that Representative Cissna made a good
point and that is the reason he told the committee the sponsor
would not object to amending the bill under subsection (4) which
refers to transporting a child while under the influence of an
intoxicant to a reduction in penalty to a class A misdemeanor.
There is a big difference between the penalties associated with
a class C felony and a class A misdemeanor, he commented.
MR. HILYARD said that he believes that the sponsor would want
the language in subsection (5) which relates to failure to
restrain as it relates directly to physical injury or death. He
pointed out that there is a graduated level of penalty, class B
felony if the child dies, and class C felony if serious injury.
He offered that Representative McGuire may consider in House
Judiciary Standing Committee lessening the penalties to a class
A misdemeanor and class B felony. Mr. Hilyard emphasized that
he could not commit to that change without consulting with the
sponsor.
REPRESENTATIVE CISSNA asked if sentencing requirements would
allow for alcohol rehabilitation as a substitute [for prison
time]. She pointed out that an individual who have lost a
child, may have other kids at home. This option might be better
for the rest of the family if the parent can stay sober.
Number 0918
MR. HILYARD asked for clarification that Representative Cissna
is asking if judges have sentencing guidelines which allow them
the option of offering alcohol treatment instead of jail time.
REPRESENTATIVE CISSNA replied that she wonders if the felony
charge could be reduced [to a misdemeanor] if the individual
goes through a mandated substance abuse treatment program and
that it is shown to be working.
MR. HILYARD responded that what he believes Representative
Cissna is asking is if after-the-fact a felony charge could be
reduced if the individual meets specific requirements. He told
the members that it is his understanding that is not the way the
judicial system works. He commented that the district attorney
could opt to plea a case and reduce the charge from a felony to
a misdemeanor. He suggested that the public defender could
better speak to this question.
REPRESENTATIVE SEATON posed a hypothetical question where a
parent has a couple of drinks, and then takes his/her family on
a ferry from one point to another. In that instance would this
individual be guilty of committing a felony since he/she has
transported a child in a watercraft. He noted that the language
does not specifically say the individual would have to be
operating the watercraft.
MR. HILYARD emphasized that the point where the parent would
actually be guilty of committing a felony is while operating a
motor vehicle the parent transports the child from home to the
ferry. He offered that in Representative Seaton's hypothetical
question if the parent were to have a couple of drinks, then
walk his/her child to the ferry and accompany the children on
the ferry, he would say the individual was probably not guilty
of committing a felony. He believes the individual must be in
control of the motor vehicle, aircraft, or watercraft. He
emphasized that is his opinion and does not speak to that with
absolute certainty. Mr. Hilyard said he would have to look at
Alaska statutes. He suggested that maybe an amendment
specifying that the individual must be "operating" the motor
vehicle, aircraft, or watercraft. Mr. Hilyard commented that
the law needs to be reasonable and often there are unintended
consequences to well-intentioned laws. He offered to bring an
amendment forward in House Judiciary Standing Committee.
Number 0980
REPRESENTATIVE GATTO suggested that the words "transports in a
motor vehicle" or "allows the child to be transported in a motor
vehicle operated by a person known to be intoxicated" be
inserted, so that the bases are covered. He also pointed out
that in subsection (4) there is reference to motor vehicle,
aircraft, or watercraft, while in subsection (5) there is only
reference to motor vehicles. He commented that he understands
that it is the sponsor's goal to provide for child safety, so he
asked that as the bill moves on the language be changed to
address some of the points raised by Representative Seaton and
himself.
MR. HILYARD clarified that Representative Gatto would like the
scope of responsibility to expand from not only operating a
motor vehicle, aircraft, or watercraft, but allowing transport
of a child by someone known to be intoxicated.
REPRESENTATIVE GATTO responded that is correct.
MR. HILYARD asked Representative Gatto if he has a preference on
the sentencing requirements.
REPRESENTATIVE GATTO replied he would leave that to the [House
Judiciary Standing Committee].
Number 1074
REPRESENTATIVE WOLF moved to adopt Conceptual Amendment 1, as
follows:
Page 2, line 8, after "(4) "
Delete: "transports a child in a motor vehicle,
aircraft, or watercraft"
Insert: "operates the motor vehicle, aircraft, or
watercraft that transports a child"
Page 2, line 10, after (5)
Delete: "transports a child in a motor vehicle"
Insert: " operates the motor vehicle, aircraft, or
watercraft that transports a child"
Number 1140
REPRESENTATIVE GATTO objected. He said he would like to see the
scope expanded to include "allows to be transported". He
offered a conceptual amendment to Conceptual Amendment 1, which
would include language that covers "allowing a child to be
transported knowing the operator is under the influence of an
intoxicant."
Number 1178
REPRESENTATIVE SEATON objected to the conceptual amendment to
Conceptual Amendment 1. He said he objects to the terms "under
the influence of intoxicant." He told the members he believes
the term "intoxicant" is so broad and there is no definition
which clarifies the meaning in this case. Representative Seaton
said he is very concerned about the breadth of that term.
CHAIR WILSON asked Representative Seaton if he is objecting to
the amendment to [Conceptual Amendment 1].
REPRESENTATIVE SEATON pointed out that the wording does not
provide for a standard such as DUI. It does not say that the
person is intoxicated, just that the individual had something.
It could be cough medicine, he added.
CHAIR WILSON reminded Representative Seaton of earlier testimony
that intoxicant is already defined in Alaska statutes.
REPRESENTATIVE SEATON replied that the definition was very
broad.
Number 1269
MR. HILYARD read the statute as follows:
Intoxicant means a substance that temporarily
diminishes a person's control of mental or physical
powers, including alcohol, controlled substances under
AS 11.71 and hazardous volatile material or a
substance used by inhaling its vapors.
MR. HILYARD suggested a potential amendment on Section 4, Page
2, line 23 and 24, where language could be inserted to say "In
this section under the influence means as properly reference
previously in statute."
Number 1301
CHAIR WILSON stated that she does not believe Representative
Seaton is really objecting to the amendment to Conceptual
Amendment 1. She assured Representative Seaton that the
committee will address his concerns.
Number 1311
REPRESENTATIVE GATTO restated his suggested amendment that
language be inserted that would address a parent allowing a
child to be transported.
REPRESENTATIVE SEATON commented that the word "knowingly" was
included in the amendment to the amendment.
CHAIR WILSON asked if there are any objections to the amendment
to Conceptual Amendment 1.
Number 1375
REPRESENTATIVE COGHILL object. He told the members that he
needs to see more definitive language before he could support
the amendment to the amendment.
A roll call vote was taken. Representatives Gatto and Wilson
voted in favor of the amendment to Conceptual Amendment 1.
Representatives Wolf, Coghill, and Seaton voted against it.
Therefore, the amendment to Conceptual Amendment 1 failed by a
vote of 2-3.
CHAIR WILSON asked if there are any further objections to
Conceptual Amendment 1. There being no objection, Conceptual
Amendment 1 was adopted.
Number 1477
REPRESENTATIVE SEATON moved Amendment 2, as follows:
Page 2, delete lines 10 through 12
Number 1483
REPRESENTATIVE COGHILL objected for purposes of discussion.
REPRESENTATIVE SEATON commented that Representative Coghill may
have missed an earlier discussion. He explained that for the
last year and a half he has worked with the Alaska Safe Kids in
an effort to define what the requirements are for individuals to
secure their kids. The police could not agree on how to cite
individuals, he explained. So about a month and a half ago the
attorney general sent out an opinion to all police departments,
but comments that have come back say that there still is not
enough clarity in the definition to do citations.
Representative Seaton told the members that it is disturbing to
consider charging parents with a felony for not having children
in the proper restraints when the police cannot even figure out
how to interpret the law. That is his reason for offering the
amendment.
Number 1542
REPRESENTATIVE LESIL McGUIRE, Alaska State Legislature, sponsor
of HB 381, answered questions from the committee. She asked the
members to consider a change on page 2, line 15, to lower the
charge from a class C felony to a class A misdemeanor. It makes
sense to give people a chance to get use to the law without
making people felons, she added.
REPRESENTATIVE McGUIRE asked Representative Seaton to allow the
bill to come to the House Judiciary Standing Committee and take
testimony from the Alaska State Troopers, the Department of
Motor Vehicles, and review the attorney general's opinion. She
said she would try to narrow it down and determine what the
specific requirements are. She told Representative Seaton that
if the changes made do not meet with his satisfaction they could
talk about [further changes].
REPRESENTATIVE SEATON asked if this [violation] isn't already a
class A misdemeanor. It is already a primary offense to be
transporting a child who is not properly restrained. He pointed
out that the police cannot stop an individual for not wearing a
seatbelt; however, if there is a child below the age of 16 in
the car who is not properly restrained then the car can be
stopped and the operator cited. Representative Seaton commented
that he also has problems with Section 3 which refers to class B
and class C felonies with the difficult standard in knowing what
to enforce.
Number 1660
REPRESENTATIVE McGUIRE commented that under the current law this
bill will say that this is a primary offense. She explained
that Section 4 and 5 draws attention to those who would
transport a child while under the influence. She explained that
Mr. Hilyard had expressed that there was concern from the
committee about a felony. Representative McGuire assured the
committee that when the bill comes to the House Judiciary
Standing Committee the bill will be reviewed as is done whenever
there is an offense involved. She pointed out that if
Representative Seaton's amendment carries, it will gut the bill.
The point of the bill says that when a parent takes a child in a
car it is essential the child be properly restrained. This bill
is intended to save lives. Children are not in a position of
making that choice for themselves. They rely on adults to make
those decisions for them, Representative McGuire added.
Removing reference to the seating restraints removes the point
of the bill, she stated.
REPRESENTATIVE SEATON said that he agrees with Representative
McGuire, but pointed out that it is already a primary offense.
He said he is concerned in the move to make the punishment a
felony.
Number 1768
CHAIR WILSON asked what are the steps in severity in punishment.
REPRESENTATIVE McGUIRE replied that she does not have that
information with her today. She added that she came prepared to
speak to the health and safety issues associated with the bill,
and offered that the more appropriate committee to address the
legal issues is the House Judiciary Standing Committee.
REPRESENTATIVE McGUIRE explained that there is a class A, B, and
C felony. The class C felony is the lowest felony, and the
highest felony is an unclassified felony.
CHAIR WILSON responded that earlier in the meeting it was
decided the House Health, Education and Social Services Standing
Committee would look at the social and policy aspect of the
bill. She suggested Representative Seaton withdraw his
amendment and allow the House Judiciary Standing Committee to
deal with this aspect of the bill. The largest problems in
Alaska are alcoholism and problems associated with alcoholism,
she stated.
Number 1849
REPRESENTATIVE SEATON pointed out that Section 5 does not deal
with alcoholism. It deals with proper use of car restraints and
raises the punishment for a crime that is already against the
law. He emphasized that his concern lies with parents and
police understanding what is the proper restraint for kids.
CHAIR WILSON replied that Representative Seaton makes a good
point.
REPRESENTATIVE McGUIRE agreed that is a good point. She said
she would hope no one would disagree with Section 4.
Representative Seaton has made good points concerning the
importance of defining [proper restraints], she said.
Representative McGuire added that if the committee would be more
comfortable in taking that out, then when it comes to House
Judiciary Standing Committee she will work to fine tune this
point. She said she would be comfortable with that. One
thought that came to her is the idea of including some mental
intent because the parents that the bill is trying to address
are those that are making no effort at all. The bill really is
not intended to be directed at a parent who is making a good
faith effort and does not have exactly the right restraint.
Number 1958
REPRESENTATIVE WOLF said he appreciates Representative McGuire's
thoughts, but believes that in the real world when a police
officer pulls a car over, it will not be the mental intent
he/she will be looking at. For example, he has a nine year old
and a ten year old and cannot decide which restraints his kids
should be in because neither one of them fits in it. He
commented that his wife knows how much the kids weigh and
ensures the kids are in the right seats. He told the members
that his son is one pound under the legal limit. It takes a lot
of stretching and pulling to get him into the restraint.
Representative Wolf added that under this bill he could be
guilty of a class C felony.
Number 2002
REPRESENTATIVE McGUIRE explained that it is simply not the
police officer's word that results in a charge of a class C
felony. A prosecutor must charge an individual. In order to be
charged the individual must meet all the elements of the crime.
Even if an individual is charged with a class C felony, there is
still the option of a jury trial. This bill is not intended to
go after people who are making good faith efforts to put their
children in proper restraints, she reiterated. The people that
this is intended for are those that make no effort whatsoever,
she said.
REPRESENTATIVE WOLF commented that he understands what
Representative McGuire is trying to do, but the result still
remains that an individual would have to hire an attorney, take
time off of work to appear in court, and it ties up the court
system.
Number 2077
REPRESENTATIVE COGHILL removed his objection.
There being no further objection, Amendment 2 was adopted.
Number 2086
REPRESENTATIVE COGHILL moved to report HB 381, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
381(HES) was reported out of the House Health, Education and
Social Services Standing Committee.
HB 443-TEACHERS AND NURSES HOUSING LOAN PROGRAM
Number 2132
CHAIR WILSON announced that the final order of business would be
HOUSE BILL NO. 443, "An Act relating to eligibility of nurses
for the teachers' and nurses' housing loan program of the Alaska
Housing Finance Corporation." She reminded the members that the
identical bill was passed out of the House Health, Education and
Social Services Standing Committee last session.
REPRESENTATIVE BETH KERTTULA, Alaska State Legislature, as a
sponsor of HB 443 presented the bill. She explained that the
bill makes a slight change to the current law which allows for
all nurses to be able to participate in the Alaska Housing
Finance Corporation program. There is no cost to the state as
this is a loan program.
Number 2158
REPRESENTATIVE SEATON moved to report HB 443, version A, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, HB 443 was reported out
of the House Health, Education and Social Services Standing
Committee.
ADJOURNMENT
There being no further business before the committee, the House
Health, Education and Social Services Standing Committee meeting
was adjourned at 5:25 p.m.
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