Legislature(2011 - 2012)CAPITOL 106
04/03/2012 03:00 PM House HEALTH & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| HB367 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 367 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE HEALTH AND SOCIAL SERVICES STANDING COMMITTEE
April 3, 2012
3:10 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Alan Dick, Vice Chair
Representative Bob Herron
Representative Paul Seaton
Representative Beth Kerttula
Representative Bob Miller
Representative Charisse Millett
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 367
"An Act relating to mitigation at sentencing in a criminal case
for a defendant found by the court to have been affected by a
fetal alcohol spectrum disorder."
- MOVED CSHB 367(HSS) OUT OF COMMITTEE
PRESENTATION: NORTH POLE SULFOLANE UPDATE
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 367
SHORT TITLE: FETAL ALCOHOL SPEC. DISORDER AS MITIGATOR
SPONSOR(s): HEALTH & SOCIAL SERVICES
03/19/12 (H) READ THE FIRST TIME - REFERRALS
03/19/12 (H) HSS, JUD
04/03/12 (H) HSS AT 3:00 PM CAPITOL 106
WITNESS REGISTER
JANET OGAN, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 367 on behalf of the House
Health and Social Services Standing Committee, of which
Representative Keller was chair.
CHRISTINE MARASIGAN, Staff
Senator Kevin Meyer
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions during discussion of HB
367.
NANCY MEADE, General Council
Administrative Staff
Office of the Administrative Director
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Testified during discussion of HB 367.
KATE BURKHART, Executive Director
Advisory Board on Alcoholism & Drug Abuse;
Alaska Mental Health Board
Division of Behavioral Health
Department of Health and Social Services
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 367.
DIANE CASTO, Prevention & Early Intervention Manager
Prevention & Early Intervention Section
Division of Behavioral Health
Department of Health and Social Services
Juneau, Alaska
POSITION STATEMENT: Testified during discussion of HB 367.
SUSAN ASTLEY, Ph.D.
Professor of Pediatrics and Epidemiology
University of Washington;
Director
Washington State Fetal Alcohol Syndrome (FAS) Diagnostic &
Prevention Network
Seattle, Washington
POSITION STATEMENT: Testified during discussion of HB 367.
DEB EVENSON, Director
FAS Alaska
Homer, Alaska
POSITION STATEMENT: Testified during discussion of HB 367.
ACTION NARRATIVE
3:10:27 PM
CHAIR WES KELLER called the House Health and Social Services
Standing Committee meeting to order at 3:10 p.m.
Representatives Keller, Seaton, Millett, and Miller were present
at the call to order. Representatives Herron, Kerttula, and
Dick arrived as the meeting was in progress.
HB 367-FETAL ALCOHOL SPEC. DISORDER AS MITIGATOR
3:11:03 PM
CHAIR KELLER announced that the only order of business would be
HOUSE BILL NO. 367, "An Act relating to mitigation at sentencing
in a criminal case for a defendant found by the court to have
been affected by a fetal alcohol spectrum disorder."
CHAIR KELLER moved to adopt the proposed committee substitute
(CS) for HB 367, Version 27-LS1454\M, Gardner, 3/26/12, as the
working document.
3:11:36 PM
REPRESENTATIVE SEATON objected for discussion.
3:11:59 PM
JANET OGAN, Staff, Representative Wes Keller, Alaska State
Legislature, referring to the sponsor statement for HB 367
[Included in members' packets], read:
An Act relating to inclusion of fetal alcohol spectrum
disorders, and intellectual disability in the
definition of 'mental disease or defect'; and relating
to mitigation at sentencing in a criminal case for a
defendant affected by a mental disease or defect.
MS. OGAN explained that proposed HB 367 would add fetal alcohol
spectrum disorder (FASD) as the definition for a mitigating
factor in sentencing.
3:13:11 PM
REPRESENTATIVE SEATON withdrew his objection.
[Version M was adopted as the working document.]
CHAIR KELLER directed attention to the handout titled "CSSB
151/HB 367 FASD as a Mitigating Factor in Sentencing
Explanation of Changes" [Included in members' packets] which
listed the differences between the original bill and Version M.
He clarified that Version M was presented to more closely align
with CSSB 151 in the Senate.
MS. OGAN said that FASD was not currently included as a
definition of mental disease for defining mitigating factors.
She clarified that "this was not a get out free pass from jail,"
that the intent was for more appropriate sentencing for those
with FASD. She reported that FAS treatment was necessary to
reduce the level of recidivism. Referring to an earlier address
to the Alaska State Legislature by Chief Justice Carpeneti
during which he suggested that justices have more flexibility in
sentencing, she stated that proposed HB 367 provided this
flexibility in sentencing to those affected by FASD, as often
there was not any cognitive understanding for their actions.
She detailed that therapeutic court for treatment was another
option. She reported that people with FASD were
disproportionately represented in Alaska's criminal justice
system.
3:16:28 PM
REPRESENTATIVE KERTTULA, referring to the aforementioned
handout, asked to clarify whether the reference, "would prevent
someone from claiming more than one mitigator," meant that only
FASD could be claimed as a mitigator, and there could not be a
claim for two mitigators.
3:16:53 PM
MS. OGAN deferred the response to another witness.
REPRESENTATIVE KERTTULA offered her belief that multiple
mitigators could be claimed during criminal sentencing.
3:17:15 PM
CHRISTINE MARASIGAN, Staff, Senator Kevin Meyer, Alaska State
Legislature, stated that Senator Meyer was the prime sponsor of
the corresponding companion legislation, CSSB151, Version U, in
the Senate. In response to Representative Kerttula, she pointed
to the language which had been removed on page 3, lines 13-14,
and stated that the proposed legislation was not intended to
create a mitigating factor to be used in addition to another
mitigating factor, and further reduce the sentence. She stated
that the intent was to add a mitigating factor for those with
FASD and to target non-violent crimes.
3:18:49 PM
REPRESENTATIVE KERTTULA asked to clarify that the proposed bill
did not intend to allow the use of the mental defect mitigator
along with the FASD mitigator, but would still allow other
mitigators.
MS. MARASIGAN expressed her agreement.
REPRESENTATIVE KERTTULA, directing attention to the exemption
for arson and assault, asked what level of assault was exempted,
as assault was included in many charges.
MS. MARASIGAN, in response, said that the intent of the proposed
bill was directed toward non-violent offenses, and she stated
that it was very difficult to parse out the levels of assault.
She said that there had been extensive discussion with the
Department of Law about this issue.
3:21:15 PM
REPRESENTATIVE KERTTULA, stating that mitigators applied across
the board, asked if any other mitigator exempted from the crime
of assault.
MS. MARASIGAN replied that there were other mitigators for
assault, and that was the reason for it being exempted in the
proposed bill.
3:22:00 PM
MS. MARASIGAN, in response to Representative Seaton, explained
that the removal of lines 13-14, page 3, Version M, prevented
the use of more than one mitigator.
3:23:12 PM
REPRESENTATIVE SEATON asked for further clarification.
CHAIR KELLER offered his belief that it was possible to "stack
mitigators."
MS. MARASIGAN, clarifying that this was referenced in the
proposed committee substitute, Version M, said that another
testifier could describe this in more detail.
3:24:36 PM
REPRESENTATIVE SEATON cited that FASD often cognitively
disassociated cause and effect, and he asked how a sentence
reduction would alleviate the behavior and keep the public
protected.
3:26:44 PM
MS. MARASIGAN agreed that this was a concern and that one idea
was to extend probation instead of incarceration. She declared
that a managed plan for sentencing was more cost effective, good
for the prevention of recidivism, and good for public safety.
3:27:43 PM
MS. MARASIGAN, in response to Representative Seaton, directed
attention to the chart, "Potential Savings by Diverting Alaskans
with Fetal Alcohol Spectrum Disorder from Incarceration Based on
2011 Costs." [Included in members' packets] She stated that
the chart clearly reflected the savings from probation and
parole for FASD sufferers, instead of prison. She referred to
the report, titled "SB 151/HB 367 - Inclusion of FASD as a
Mitigating Factor" by the Alaska FASD Partnership, [Included in
members' packets] which explained mitigating factors, defined
FASD, and identified ways to diagnose FASD. She pointed out
that it also reported on the Smart Justice program, which
offered managed care as an alternative to incarceration.
3:29:31 PM
NANCY MEADE, General Council, Administrative Staff, Office of
the Administrative Director, Alaska Court System, offered her
belief that defendants could declare that more than one
mitigator applied to their circumstances, although the burden of
proof for clear and convincing evidence was on the defendant.
She opined that a judge would be knowledgeable enough to not
multiply similar mitigators, such as FASD and a mental disease.
She pointed out that mitigators allowed a judge to offer a
lesser sentence, up to 50 percent of the presumptive range.
REPRESENTATIVE SEATON asked where this was written in the
proposed bill.
3:31:57 PM
MS. MEADE expressed her agreement that, although it was not
written in the proposed bill, the judge could exercise
experience and discretion for how much to mitigate. She
declared that, although the proposed bill did not address the
issue for double mitigation, most defendants would attempt to
use any mitigators which fit their situation.
3:32:41 PM
CHAIR KELLER offered his belief that, although the original
proposed bill, Version A, had prevented the use of multiple
mitigators, the current working draft, Version M, had removed
this prohibition.
REPRESENTATIVE SEATON offered his belief that, in Version A, the
first exception was for arson or assault, and the second
exception was for FASD.
CHAIR KELLER, directing attention to Version M, page 3, lines 20
- 21, stated that arson and crimes against a person did not
apply.
3:34:36 PM
REPRESENTATIVE KERTTULA offered her belief that the language was
the same in both versions and that Version M still allowed a
defendant to claim both mitigators, but that the explanation of
the proposed bill had stated that FASD and mental defect, as
mitigators, could not both be claimed. She declared that judges
only had a certain amount of latitude for sentencing.
3:35:14 PM
REPRESENTATIVE SEATON asked to clarify that the proposed bill,
Version M, allowed for more than one mitigator to be claimed.
3:35:45 PM
REPRESENTATIVE MILLETT, directing attention to the
aforementioned "Explanation of Changes," suggested that deleting
"This would prevent someone from claiming more than one
mitigator" would clarify the confusion.
3:36:15 PM
CHAIR KELLER asked for a description as to how a judge would
determine a sentence in lieu of prison.
MS. MEADE offered her belief that the proposed bill allowed the
judge to lower the presumptive range for sentencing by 50
percent, when a mitigator was found, although it did not
necessarily mean that a judge would sentence in lieu of prison
time. She declared that the proposed bill put the burden on
defendants to prove that a mitigator applied, and that the
determination would be made at the sentencing hearing. She
declared that the proposed bill did not require an alternative
sentence.
3:38:51 PM
REPRESENTATIVE SEATON asked if, as there was not a requirement
for an alternative sentence, those groups offering alternatives
were "off on their own because there was no requirement that
they cooperate or go through a half-way house or go through with
other kinds of services."
3:39:26 PM
MS. MEADE said that treatment options were available, even if
prison time was included in the sentencing. She stated that
there were other treatment services available during probation,
as well, and that judges could order that these services be
used.
3:40:31 PM
REPRESENTATIVE MILLETT asked if the proposed bill would be a
helpful tool for judges to lessen the sentences for people with
mitigators.
MS. MEADE replied that all of the mitigators, if proven, gave
more discretion to a judge for sentencing outside the
presumptive ranges.
REPRESENTATIVE MILLETT asked if there had been any previous
problem for the use of mental defect, instead of FASD, as a
mitigator.
MS. MEADE, in response, said that a mitigating factor for mental
disease or defect already existed. She stated that, as all
people did not agree that FASD was a mental disease or defect,
the proposed bill would ensure consistency for FASD as a
mitigator.
REPRESENTATIVE MILLETT posed that the proposed bill was
necessary to clarify that FASD was a mitigator to be taken into
consideration during sentencing.
MS. MEADE expressed her agreement, and clarified that any crimes
against the person, or arson, would be exceptions to the use of
FASD as a mitigator.
3:44:07 PM
KATE BURKHART, Executive Director, Advisory Board on Alcoholism
& Drug Abuse, Alaska Mental Health Board, Division of Behavioral
Health, Department of Health and Social Services, stated that
she was only speaking on behalf of the two boards. She noted
that both boards were members of the Alaska FASD partnership, a
volunteer coalition of advocates, and that the partnership had
worked closely with the sponsor of the proposed bill. She
declared her support for proposed HB 367, and stated that it had
been a long, thoughtful, collaborative process with the Senate,
the House, the community serving individuals with FASD, and the
court system. She declared strong support for the need of FASD
as a mitigator, as there was a disproportionate representation
of individuals with FASD within the correctional system. She
detailed that these individuals did not receive the diagnosis or
the necessary services to successfully function in society. She
declared, that by allowing judges the flexibility to reduce
incarceration, extend probation, and make receipt of services
part of probation, it would offer individuals with FASD an
opportunity to successfully participate in the community, while
balancing the concerns for public safety. She pointed out that
this would save costs, and would achieve a better outcome for
both the individual and the community. She noted that a judge
could include treatment as a contingency for probation or
parole, and that an FASD mitigator could allow for longer
probation, electronic monitoring, residential services, and
intensive case management. She declared that the proposed bill
would balance the concerns for public safety with the concerns
of disability advocates. She declared that this was smart
justice, as it saved money and achieved better outcomes for
communities and people with disabilities.
3:47:42 PM
CHAIR KELLER asked about the indeterminate fiscal note for
approval of the FASD diagnosis. He questioned if there was a
higher cost for those individuals on the margin of the FASD
spectrum.
3:48:30 PM
MS. BURKHART, in response to Chair Keller, replied that the
discussion for those qualified to diagnose FASD had been "taken
up at length in the other body." She reported that, although a
doctor could diagnose anyone with a medical condition, the most
qualified, experienced people in Alaska were members of
diagnostic teams which included, but were not limited to, a
medical practitioner. She noted that eight communities had DHSS
credentialed diagnostic teams, all of which followed a
University of Washington model for diagnosing individuals. This
model included a medical practitioner, a speech pathologist, a
physical and/or occupational therapist, and a neuropsychologist
and used an official diagnostic code. She reported that it was
a long process for diagnosis. She declared that diagnosis by a
single physician would result in a lower quality diagnosis.
CHAIR KELLER asked about the cost of the diagnosis by these
teams. He asked how many diagnoses were performed annually.
MS. BURKHART, in response, said that she did not know the cost,
and that some teams met more often, which allowed for more
diagnoses.
3:52:44 PM
CHAIR KELLER asked if the courtroom judge had access to these
teams during the decision making at sentencing.
MS. BURKHART replied that it would be possible in those
communities with active teams, which included Juneau, Bethel,
Fairbanks, Anchorage, and Sitka. She shared that there had been
discussion for the formation of a traveling team.
CHAIR KELLER asked what percentage of the corrections population
was FASD.
MS. BURKHART replied that the Department of Corrections
anecdotal information was to a high percentage, above 75
percent, but that she could not validate it. She said that the
Alaska Mental Health Trust Authority had estimated that 42
percent of the corrections population experienced a cognitive
disability, including FASD. She said that this was consistent
with the national statistics that there was a disproportionate
representation in the correctional system by individuals with
cognitive disability.
3:55:12 PM
MS. BURKHART, in response to Chair Keller, said that Canada was
far ahead in addressing this issue.
3:56:13 PM
DIANE CASTO, Prevention & Early Intervention Manager, Prevention
& Early Intervention Section, Division of Behavioral Health,
Department of Health and Social Services, in response to Chair
Keller, said that the cost for diagnosis was indeterminate. She
explained that teams were certified with a provider agreement,
which was similar to a grant for an individual or agency, and
designated as a qualified provider of a specific service. She
said that qualified teams had to include psychological testing,
speech and language testing, motor skills testing, a medical
doctor, and a parent navigator to work with the family. She
stated that training and certifications were required, as well
as training in the University of Washington diagnostic code
process mentioned earlier. She explained that the fiscal
arrangement was for $3000 per diagnosis, paid at the completion
of the diagnosis and the submission of the data. She said that
the provider agreement amount was based on evaluation data from
an earlier fund for FASD diagnosis, which had ranged from $3000
to $5000 per diagnosis. She noted that the larger metro areas
had lower costs, as the cost at University of Washington was
$1200 to $1500. She reported that this evaluation report had
also ascertained an estimate for the billing of services to
Medicaid to be $1200 to $1500. She clarified that DHSS would
pay up to $3000, with any additional cost to be billed to
Medicaid by the diagnostic team. She reported that two
communities, Dillingham and Kodiak, had recently approached her
about renewing their diagnostic teams. She shared that each
community would set up the diagnostic team process that worked
best for the community.
4:02:58 PM
MS. CASTO noted that the diagnostic capacity for each team
varied. She reported that there had been 1,683 diagnoses from
2000 to 2011, an average of 153 diagnoses per year, with 179
diagnoses in the prior year. She said that $518,000 was
designated for about 160 diagnoses per year.
4:05:17 PM
REPRESENTATIVE MILLETT asked if there would be an increase to
caseloads if the proposed bill was passed.
MS. CASTO replied that it was hard to know, as it was not known
how many afflicted people were in the correctional system. She
declared that the majority of diagnoses had been for younger
children, as some teams had determined that the critical age was
for youth 12 years or younger, although some teams did provide
diagnostic services for adults. She reported that the final
cost element to review would be for the development of teams, as
there was not any seed money to build more capacity. She
surmised that, as there was a good foundation of teams, greater
capacity could be built over time.
4:10:40 PM
REPRESENTATIVE MILLETT asked about a diagnosis of the prison
population, in order to offer treatments which would lower the
recidivism rates.
MS. CASTO, in response to Chair Keller, said that the majority
of team members worked for agencies which volunteered the
member's time to the team.
4:12:29 PM
REPRESENTATIVE MILLER asked at what age could there be a
definitive diagnosis for FASD.
MS. CASTO clarified that FASD was an umbrella term, and not a
diagnosis. She declared that some children could be diagnosed
at birth, given the surrounding conditions prior to birth.
However, the majority of children were diagnosed after three
years of age, as it was necessary to have a certain amount of
interaction. She said that the average age for diagnosis was
between seven and twelve years of age, and that the majority
were not even recognized to have a need for diagnosis until they
started school and their behavior showed an inability to manage
things.
4:14:25 PM
REPRESENTATIVE MILLER asked if there was any treatment, at a
young age, to mitigate the behavior.
MS. CASTO replied that early diagnosis could accommodate a
system for success, although the "disability related to pre-
natal exposure to alcohol is a permanent lifelong disability."
4:15:42 PM
REPRESENTATIVE MILLER, offering an example of a young son
diagnosed with FASD, asked if there were any identification card
for diagnosis.
MS. CASTO replied that it was a good idea to keep a copy of the
diagnosis, as this fully explained the range of the disability,
and the strengths and challenges for the individual. She stated
that most parents would keep this file to share with schools,
camps, individual education planners, and activities. She
declared that one challenge faced by parents was the need to
educate the providers about the disability.
4:18:09 PM
REPRESENTATIVE MILLER, offering an example of a son involved in
criminal behavior who appeared in front of a judge, asked how
well disposed was the legal system to accept that this was a
legitimate mitigating factor.
MS. CASTO opined that the DHSS trainings with judges, public
defenders, and attorney generals had educated the majority of
the legal community to better understand the disability, and
that, as a result, the Alaska legal system was very receptive to
FASD issues. She declared a challenge to be that it was a
hidden disability; although a person could look normal, the
damage was in the brain.
4:21:11 PM
SUSAN ASTLEY, Ph.D., Professor of Pediatrics and Epidemiology,
University of Washington; Director, Washington State Fetal
Alcohol Syndrome (FAS) Diagnostic & Prevention Network, stated
that she was a founder of the FAS Diagnostic & Prevention
Network in 1992, as well as the author of the aforementioned
FASD 4 digit diagnostic code. She reported that Alaska was the
first state to adopt the Washington State interdisciplinary
model of FASD diagnosis. She reported that diagnostic
evaluation was very cost effective and the least expensive means
for FAS diagnosis, as the diagnostic teams followed guidelines.
She declared that, as a clinical researcher, she had discovered
that a stable, supportive environment for the individual, not
incarceration, was the most protective factor for mitigation of
the disability. She stated that a stable environment could
diminish the disability, while incarceration would exacerbate
it. She declared this to be one reason for increased
recidivism, noting that Canadian research also supported that
intervention had resulted in a reduction in recidivism.
4:25:33 PM
DEB EVENSON, Director, FAS Alaska, reported that she had been
working on fetal alcohol issues in Alaska and Canada for 25
years. She stated that her recent FAS work in the Yukon
Territory recognized that the use of mitigating factors by the
courts and structured support systems for a stable environment
decreased the recidivism rate. She opined that this
understanding would have "some really good outcomes."
4:27:45 PM
CHAIR KELLER closed public testimony.
4:27:58 PM
REPRESENTATIVE SEATON stated that mitigation factors and
shortened sentences, combined with effective FAS services,
reflected an expectation that the judicial system work to use
these FAS services in order to improve lives and reduce
recidivism.
4:29:01 PM
CHAIR KELLER declared his presumption that those who care will
continue to work with the court system to look for options.
4:29:41 PM
REPRESENTATIVE DICK moved to report CSHB 367, Version 27-
LS1454\M, Gardner, 3/26/12, out of committee with individual
recommendations and the accompanying indeterminate fiscal notes.
There being no objection, CSHB 367 (HSS) was reported from the
House Health and Social Services Standing Committee.
4:30:38 PM
ADJOURNMENT
There being no further business before the committee, the House
Health and Social Services Standing Committee meeting was
adjourned at 4:30 p.m.