Legislature(2017 - 2018)GRUENBERG 120
04/25/2018 01:05 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB81 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 81 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 25, 2018
1:06 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Jonathan Kreiss-Tomkins, Vice Chair
Representative David Eastman
Representative Chuck Kopp
Representative Lora Reinbold
MEMBERS ABSENT
Representative Louise Stutes
Representative Gabrielle LeDoux
Representative Charisse Millett (alternate)
Representative Tiffany Zulkosky (alternate)
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 81(HSS)
"An Act relating to criminal and civil history record checks and
requirements; relating to licenses, certifications, appeals, and
authorizations by the Department of Health and Social Services;
relating to child protection information; and providing for an
effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 81
SHORT TITLE: DHSS CENT. REGISTRY;LICENSE;BCKGROUND CHK
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/08/17 (S) READ THE FIRST TIME - REFERRALS
03/08/17 (S) HSS, JUD
02/02/18 (S) HSS AT 1:30 PM BUTROVICH 205
02/02/18 (S) Heard & Held
02/02/18 (S) MINUTE(HSS)
02/05/18 (S) HSS AT 1:30 PM BUTROVICH 205
02/05/18 (S) -- MEETING CANCELED --
03/14/18 (S) HSS AT 1:30 PM BUTROVICH 205
03/14/18 (S) Heard & Held
03/14/18 (S) MINUTE(HSS)
03/16/18 (S) HSS AT 1:30 PM BUTROVICH 205
03/16/18 (S) Moved CSSB 81(HSS) Out of Committee
03/16/18 (S) MINUTE(HSS)
03/19/18 (S) HSS RPT CS 2DP 2NR NEW TITLE
03/19/18 (S) NR: WILSON, MICCICHE
03/19/18 (S) DP: BEGICH, VON IMHOF
04/16/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/16/18 (S) <Above Item Removed from Agenda>
04/16/18 (S) MINUTE(JUD)
04/18/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/18/18 (S) Heard & Held
04/18/18 (S) MINUTE(JUD)
04/19/18 (S) JUD RPT CS(HSS) 1DP 3NR
04/19/18 (S) DP: COGHILL
04/19/18 (S) NR: WIELECHOWSKI, SHOWER, KELLY
04/19/18 (S) JUD AT 9:00 AM BELTZ 105 (TSBldg)
04/19/18 (S) Moved CSSB 81(HSS) Out of Committee
04/19/18 (S) MINUTE(JUD)
04/20/18 (S) TRANSMITTED TO (H)
04/20/18 (S) VERSION: CSSB 81(HSS)
04/23/18 (H) READ THE FIRST TIME - REFERRALS
04/23/18 (H) JUD
04/25/18 (H) JUD AT 1:05 PM GRUENBERG 120
WITNESS REGISTER
STACIE KRALY, Chief Assistant Attorney General
Statewide Section Supervisor
Human Services Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During the hearing of CSSB 81, offered an
overview and a detailed sectional analysis of the legislation,
and answered questions.
REPRESENTATIVE TAMMIE WILSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of CSSB 81, testified
regarding barrier conditions and the legislation.
MARGARET BRODIE, Director
Division of Healthcare Services
Department of Health and Social Services
Anchorage, Alaska
POSITION STATEMENT: During the hearing of CSSB 81, answered
questions.
ACTION NARRATIVE
1:06:17 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:06 p.m. Representatives Claman, Eastman,
Kopp, Reinbold, and Kreiss-Tomkins were present at the call to
order.
SB 81-DHSS CENT. REGISTRY;LICENSE;BCKGROUND CHK
1:06:46 PM
CHAIR CLAMAN announced that the only order of business would be
CS FOR SENATE BILL NO. 81(HSS), "An Act relating to criminal and
civil history record checks and requirements; relating to
licenses, certifications, appeals, and authorizations by the
Department of Health and Social Services; relating to child
protection information; and providing for an effective date."
1:07:26 PM
STACIE KRALY, Chief Assistant Attorney General, Statewide
Section Supervisor, Human Services Section, Civil Division
(Juneau), Department of Law (DOL), advised that this legislation
was crafted because participation in federal programs, such as
Medicare and Title 40 for foster care, requires that states
conduct background checks for licensure and payment of services.
Alaska statutes have required background checks for all persons
paid in whole or in part by the Department of Health and Social
Services (DHSS) since 2005. Apart from the federal
requirements, she advised, DHSS wants to make sure our children
and vulnerable adults are safe, and that those watching over
them have not engaged in any abusive or neglectful behavior that
puts the state's most vulnerable people at risk of exploitation.
In 2010/2011 DHSS, the Department of Law (DOL,) and the
Ombudsman's Office, identified a number of issues in the 2005
adopted framework related to the civil history check, this
legislation cleans up those concerns and clarifies the process
for the public and the individuals at DHSS who operate this
program.
MS. KRALY advised that this bill will improve fairness for
applicants without compromising the health, safety, and welfare
of the recipients who receive services by fixing the
redundancies and loopholes in the current statute.
Specifically, she noted, this bill clarifies that the civil
history check is a check of already existing registries and
databases. The current statute contemplates that the DHSS will
create a standalone civil history registry, except the
department has not created that database due to the expense and
redundancy of having such a database. This legislation will
clarify that the background check process applies not only to
the entities licensed by the state, but also as to those who
work for those entities. The current statute contains two
registries, a Central Registry and a Centralized Registry. This
legislation will remove confusion and identify that one registry
is a Civil History Database check, and the other is the Child
Protection Registry.
1:10:05 PM
MS. KRALY advised that this legislation will clarify the types
of civil offenses subject to a Civil History Database review,
and the focus is on those offenses that jeopardize health,
safety, and welfare, rather than technical violations such as,
failure to turn in paperwork. She offered that this legislation
will amend the existing licensing statutes under AS 47.32, by
addressing the licensing function of DHSS. These amendments
include: clarifying what constitutes an enforcement action
requiring an evidentiary hearing; allows licensing to share
information automatically with law enforcement agencies in joint
investigations; allows all DHSS divisions with licensing
functions to share information with each other; and it allows
the division to investigate individual employees of a licensed
facility, and not just the entity, for behavior that constitutes
abuse, neglect or exploitation of a person or resident in care.
The goal is to catch the bad actor, which sometimes is an
individual employee and not the employer.
1:11:15 PM
MS. KRALY paraphrased the sectional analysis as follows
[original punctuation provided]:
Section 1. Amends Title 12 of the Alaska statutes to
bring the Department of Public Safety criminal
background check process into compliance with federal
law; specifically, this amendment allows public safety
to share criminal history information with the
Department of Health and Social Services.
Section 2. This section makes conforming edits to
rename "Centralized Registry" to the "the civil
history database check" (AS 47.05.330) to more
accurately describe the current practice and avoids
confusion with the "the central registry" in AS
47.17.040 (see section 14).
Sections 3 and 4. These sections would amend AS
47.05.310(b) and 47.32.310(d) to clarify that barrier
crimes apply to individuals as well as entities.
Section 5. This section would amend AS 47.05.310(e) to
allow an individual to seek a background check. Under
the current law, only entities can seek a background
check. This section would also remove, at the request
of the Department of Public Safety, the designation of
the Department of Health and Social Services (DHSS) as
a criminal justice agency for purpose of the
background check program. (see also section 1).
Section 6. This section would amend AS 47.05.310(f) to
make it clear that DHSS may in addition to
exceptions to the barrier crime provisions approve a
variance for a barrier crime.
Section 7. This section would amend AS 47.05.310(h) to
address how a non-licensed provider, such as a
relative who is receiving payment by the Office of
Children's Services, is treated under the statute.
This amendment would make it clear that such
providers, while not being paid by DHSS, are still
subject to background checks prior to placement.
1:13:14 PM
MS. KRALY advised that Section 8 is new section in this bill,
but it exists in the original legislative scheme, it not a new
concept. Ms. Kraly continued paraphrasing as follows [original
punctuation provided]:
Section 8. This section would add a new section to AS
47.05.310 to address immunity from civil or criminal
liability for reporting during the background check
process.
Section 9. This section would provide a similar
framework for the civil history database checks as
background checks (see AS 47.05.310). This means that
the same process applies to a person who is found to
have a barring criminal conviction under AS 47.05.310
as well as a barring civil finding under AS 47.05.330.
1:13:50 PM
MS. KRALY advised that Section 10 is a major change, and it was
crafted in consultation with the Ombudsman's Office, as well as
the House Health and Social Services Standing Committee and the
Senate Health and Social Services Standing Committee. Ms. Kraly
continued paraphrasing as follows [original punctuation
provided]:
Section 10. This section would repeal and reenact
current statute to outline how the department will
review existing databases, rather than create a
separate database for the civil history checks. This
section further provides that information reviewed
would be confidential and is not subject to a public
records request. Specifically, this section:
Clarifies that we are looking to evaluate health,
safety, and welfare issues when reviewing databases
related to licensed entities, not technical violations
that may lead to a nonrenewal, suspension or
revocation of a license;
Clarifies that we are looking to identify persons
whose children are subjects of a child in need of aid
petition;
Clarifies that we are looking to evaluate health,
safety, and welfare issues when reviewing databases
related to licensed providers (occupational licensing
under AS 08), not unrelated technical violations;
Adds that a person who works for the state not
just the Department of Health and Social Services is
subject to a barring condition if they are terminated
from employment for a substantiated allegation of
assaultive, neglectful, or exploitive behavior.
Section 11. This would amend the current immunity
section to reflect the change to civil history
database check.
Section 12. This would establish a new section to
address the ability to seek a variance for any finding
under this chapter and how to appeal a decision if
there is disagreement with any decision made by DHSS,
including providing a legal mechanism to share
information held by the Office of Children's Services
for proposes of pursing a variance.
Section 13. This section would amend AS 47.05.390(6)
to expand the definition of "entity" to include an
individual service provider.
Section 14. This section amends AS 47.10.093(b) to
allow for the sharing of information in the possession
of OCS that will be necessary to pursue a variance as
provided in section 12 of this bill.
Section 15. This section would rename the central
registry maintained by the Office of Children's
Services to the "child protection registry" to avoid
confusion. It also clarifies what is maintained on
this registry, including substantiated findings under
AS 47.10 or AS 47.17.
Section 16. This new subsection would clarify that
before a substantiated finding can be placed on the
child protection registry, the person must have been
afforded notice of the finding and the opportunity to
challenge the finding.
1:16:29 PM
Section 17. This section would make a conforming edit
to AS 47.32.010(c) replacing the centralized registry
with civil history database check.
Section 18. This section would amend AS 47.32 to
provide authority for DHSS to consider prior adverse
licensing findings in determining whether to grant or
deny a license or whether to place a condition on a
license.
Section 19. This would add a new section to make it
clear that when there is an allegation that an
employee or individual affiliated with a licensed
entity is alleged to have engaged in any behavior that
would impact the safety or welfare of a resident, the
department may investigate that individual and issue a
report on the findings of that investigation. This
section would further provide that if a finding of
abuse or neglect is substantiated then that finding
will be part of the civil registry process and may
result in a person being prohibited from employment or
licensure in the future. This section would also make
it clear that before such a finding can be used, due
process must be afforded.
Section 20. This is technical fix to rename the
"registry" to the "civil history database."
Section 21. This is technical fix that would clarify
when formal hearings are required when an enforcement
action is taken after a licensing investigation.
Section 22. This would add a new section to clarify
that when law enforcement is investigating a crime
that is also the subject of a licensing investigation,
the material gathered by DHSS may be shared with the
law enforcement as a matter of law in a concurrent
investigation.
1:18:00 PM
Section 23. This section would clarify that all
divisions who implement AS 47.32 may share information
with each other for the purpose of administering the
licensing programs at DHSS.
Section 24. This section would repeal reference to
provisions of the current law that are no longer
necessary as a result of the prior sections of this
bill.
Section 25. This is an applicability section for
purposes of applying the criminal and civil background
checks before, on, or after the effective date of this
act.
Section 26. This section would advise the revisor
regarding title changes to reflect amendments in this
act, including the change to include the civil history
registry.
Section 27. This provides for an immediate effective
date.
1:18:56 PM
REPRESENTATIVE KOPP asked Ms. Kraly to describe the difference
between the Central Registry and the Centralized Registry.
MS. KRALY responded that the Centralized Registry is the
registry that is contemplated under the background check process
by the Department of Health and Social Services (DHSS), and it
is envisioned to be a review of civil history matters that have
arisen in a person's history. Including, for example, some of
"the things we look at;" the Certified Nurses Aid registry; the
Office of Inspector General's federal database dealing with
Medicare and Medicaid exclusions; and so forth. It was
contemplated that DHSS would, at some point, gather all of the
existing information in all of these other databases and upload
that information into a standalone database. The database would
include all of those civil history backgrounds, licensing
violations, Child-in-Need-of-Aid (CINA) findings, and so forth,
she explained.
1:20:28 PM
MS. KRALY explained that the Central Registry is found under AS
47.17, and it is basically the Office of Children's Services
(OCS), Online Resource for the Children of Alaska (ORCA)
database, which is its case management database. This
legislation proposes that since DHSS is not creating a
centralized registry or a standalone registry, DHSS asks that
the statute reflect that it will look at already existing Civil
History Databases. Ms. Kraly referred to a document titled, "SB
81 (Centralized Registry; Background Checks)" and noted that the
existing Civil History Databases are identified in that flow
chart. The DHSS also recommends renaming the Central Registry
for OCS to the Child Protection Registry, which is a much more
clarifying name for that database and registry. She added that
it includes all of the records OCS maintains for purposes of
federal compliance.
1:21:28 PM
REPRESENTATIVE KOPP referred to the Centralized Registry and
asked whether there must be a finding of guilt that a person
either exploited a vulnerable adult or a minor, or committed
Medicaid fraud, or had a licensure action against them, or
whether they would be added to the Centralized Registry due to
any complaint leading to one of those investigations.
MS. KRALY answered that the only offenses DHSS reviews under the
Centralized Registry or the Civil History Database check are
those findings that have been fully adjudicated through a formal
process, wherein a complaint is not sufficient to have a barring
condition. She explained that it must be something where notice
is provided and there is either an opportunity to challenge and
they fail to challenge, or the person challenged it and lost,
and that becomes a final decision. For example, she said, if
there is a licensing action on a Civil History Database check,
the person would have been provided notice of the report of
investigation, given the opportunity to challenge and present
evidence in an administration hearing to rebut the evidence
against them. In the event the person was to prevail in that
hearing, the person would not be on any sort of registry or
database that DHSS checks. In the event the person lost at that
hearing and that finding was affirmed by an administrative
hearing officer or a superior court judge, that would be subject
to review and a finding, she explained.
1:23:00 PM
REPRESENTATIVE KOPP referred to the Central Registry and asked
whether an allegation alone, even if unsubstantiated, would put
someone on the registry as far as going forward.
MS. KRALY answered that as a matter of federal requirements, an
allegation is maintained on the Central Registry or the Child
Protection Registry, but as to whether it constitutes a barring
condition, which would be subject to other review under this
legislative scheme, it can only get to that point if there had
been the due process considerations she previously identified.
1:24:06 PM
CHAIR CLAMAN noted that Ms. Kraly talked about a Central
Registry and a Centralized Registry, and a registry that was
supposed to be created under the existing statutes but due to
cost reasons it was not created. He requested clarification
about what was supposed to be have been created, what was not
created, what is being taken out, and what the state will be
left with if this legislation passes.
MS. KRALY replied that the Centralized Registry is the registry
of civil history information, which is the registry that DHSS
never created. This legislation will remove the requirement or
the inference that such a massive database exists, and in its
place, DHSS will have identified that it will review existing
Civil History Databases, and those databases listed on the flow
sheet are the list of registries DHSS would review in that
context. She reiterated that the Centralized Registry was never
created and DHSS does not want to create a Centralize Registry.
This legislation would remove that inference, that expectation,
and substitute the Civil History Database check for that
premise, she further reiterated.
1:25:36 PM
CHAIR CLAMAN noted that in CSSB 81, Sec. 15, page 10, lines 19-
22, there is reference to a Child Protection Registry. He asked
what the Child Protection Registry is, distinct from APSIN,
CourtView, and JOMIS.
MS. KRALY responded that the Child Protection Registry is the
Online Resource for the Children of Alaska (ORCA) OCS database,
listed in the flow chart as "ORCA/Prober." She explained that
DHSS is simply renaming the registry from the Central Registry
to the Child Protection Registry; thereby, more clearly
identifying to the public that the information contained in that
database is child protection information.
CHAIR CLAMAN asked whether that is a registry the state has
already created.
MS. KRALY replied that it is a registry that exists as a
requirement of federal law, it is the ORCA database that OCS
uses to manage its case management and it contains all child
protection and child welfare information obtained through OCS.
CHAIR CLAMAN surmised that this legislation is calling on
creating that database.
MS. KRALY replied that it already exists, DHSS is simply
renaming the registry.
1:26:50 PM
REPRESENTATIVE REINBOLD noted that this legislative session is
at day 100, it is a special session, and asked why this
legislation, why at this time, and why is it such a priority.
MS. KRALY reiterated that DHSS identified a number of issues
within the existing statutory scheme, those issues were
developed and discussed, and there is a robust Ombudsman's
Report regarding the civil history or the Centralized Registry
portion of the statutory scheme. The report includes a number
of critical findings as to how that system is set up, and
problems with the statute, she offered. Since 2011, DHSS has
worked collaboratively with the Ombudsman's Office, DHSS, and
within the Department of Law (DOL), to do what they could
through regulation, practice, policy, and protocol. There are
certain things in the statute that DHSS believes need to be
fixed which are just fundamental flaws. She acknowledged that
it is late in the session, but DHSS is two-thirds of the way to
the goal line and it would be helpful to the folks the
department regulates, as well as to the individuals of DHSS who
administer these programs, to have these issues clarified. The
department wanted these changes for many years, and while
realizing that it is late in the day, it believes the
legislation is critical to good government, she related.
1:28:42 PM
REPRESENTATIVE REINBOLD commented that she is happy "you are
doing this today, but my people are wondering why." Vehicle
theft has now surpassed last year and, she asked, why is
addressing this legislation now more important than vehicle
theft.
CHAIR CLAMAN interjected that Ms. Kraly does not work for the
criminal division.
MS. KRALY responded that she is interested in seeing this
legislation move forward for the reasons she had identified and
because it will be helpful to her office, DHSS, and the
individuals DHSS regulates.
1:29:49 PM
REPRESENTATIVE KREISS-TOMKINS referred to federal background
checks and submitting fingerprints to the FBI, and noted that
two bills have come through this committee that relate to this
subject. He asked that in the domain of this legislation what
the fingerprinting requirements are, if any, for people on the
federal level for submission to the FBI. He referred to the
flow chart, criminal history check flowing to fingerprint-based
criminal history at the state and national/FBI level, and asked
whether there are any recurring fingerprint requirements
currently in statute or changed in this legislation.
MS. KRALY asked whether Representative Kreiss-Tomkins was asking
whether there are any recurring or duplications to those
requirements. She said she was unsure anyone from the
Department of Public Safety (DPS) was available online to answer
questions, but her understanding is that a fingerprint-based
background check is ... a criminal history check contemplates an
array of things, such as a state history check through APSIN,
and the federal fingerprint database. She explained that a
person submits their fingerprints to the FBI through the DPS,
the FBI runs the fingerprints and sends that information back to
DPS, and DPS, by virtue of how this system is set up, shares
that information with DHSS.
CHAIR CLAMAN explained to Representative Kreiss-Tomkins that "in
some of the earlier bills that we were authorizing non-state
agency -- we were authorizing certain state agencies to submit
fingerprint requests here because the Department of Public
Safety is the one that is submitting the request, we don't need
to give them authority because they already have it to submit
the fingerprints."
1:32:18 PM
REPRESENTATIVE KREISS-TOMKINS asked whether Ms. Kraly is aware
of any recurring requirements for background checks to be re-run
on a federal level every five years or ten years, or whatever
frequency.
MS. KRALY answered that the DHSS background system is good for
six-years; however, there is a requirement at the federal level
that a criminal background check or a fingerprint-based
background check is not basically a "one off," new fingerprints
must be submitted if a certain period of time has passed, or a
person is seeking employment, or authorization, or permission to
do something that is not related to the original request.
Therefore, she said, there is a requirement to, at times, submit
more than one fingerprint card even if the person is applying to
be a teacher and applying to be a foster parent, they would have
to submit two fingerprint-based requests in order to obtain the
federal approvals because it is a federal requirement.
1:33:36 PM
REPRESENTATIVE KREISS-TOMKINS asked Ms. Kraly to clarify what
she meant by her statement that the DHSS background system is
good for six-years.
MS. KRALY clarified that as a matter of efficiency and process,
the DHSS requires a new fingerprint-based background check every
six years. Except, she explained, that is a different standard
than what the federal government may require, that is just for
this program. In the event "you are doing something that is not
regulated by this, you may have to submit a background check
more frequently than that," she said.
1:34:19 PM
CHAIR CLAMAN opened public testimony on CSSB 81.
1:34:36 PM
REPRESENTATIVE TAMMIE WILSON, Alaska State Legislature, advised
that her office performed work on "barrier conditions" and
because this bill will not come before the House Finance
Committee, she wanted to put statements on the record in the
House Judiciary Standing Committee. She referred to CSSB 81,
Sec. 6, AS 47.05.310(f) page 3, lines 23-25, which read as
follows:
(f) The provisions of this section do not apply
if the department grants an exception from a
requirement of (a)-(e) of this section under a
regulation adopted by the department or if the
department grants a variance under AS 47.05.360.
REPRESENTATIVE WILSON asked whether the exemption that someone
could be granted would be a permanent exemption. She offered
the following example: a young mother got into trouble, possibly
a fight or whatever, and OCS removed her child from the home.
The young mother then completed whatever type of treatment she
needed, she did everything she was supposed to do and her child
was returned to her. Representative Wilson described that as a
barrier condition, except the mother didn't think about it at
the time because she was distressed. Twenty years later, one of
her children has an issue and the parents need grandma to watch
the child while they go through those same issues with OCS.
Except, the grandmother is denied because she has a barrier
condition that goes with her for life, it is a life sentence.
She described that a barrier condition is unlike a barrier crime
wherein if a person commits specific crimes, it is on their
record for a certain number of years. This legislation does put
some question to the variance position, but currently if a
person decides they want to work in a childcare facility, a
background check is performed. The background check revealed
that the person had a substantiated OCS case because something
had gone wrong at one point in that person's life, and now they
are denied the opportunity to be a childcare worker unless they
go through this variance process. She described that it is a
gamble as to whether it would be determined that the person was
acceptable. The issue is not that the person had to submit
their fingerprints once, but if the person lost their job and
applied for another job where a background check must again be
performed, the person must go through that process again.
1:36:31 PM
REPRESENTATIVE WILSON referred to CSSB 81, AS 47.05.360, page 8,
lines 13-26, and noted that the variance request is addressed
here and "they can request one," but the legislation does not
talk about whether a person can [go through the variance
process] just once because it is the same issue. She noted that
she is still trying to clarify whether [the variance process]
must be performed for every job. The variance process, she
explained, sometimes can take a couple of weeks and, in fact,
many people have lost their jobs due to the variance process.
1:37:17 PM
REPRESENTATIVE WILSON referred to CSSB 81, Sec. 10, AS
47.05.330(a)(4) page 7, lines 10-12, which read as follows:
(4) who was a biological or adoptive parent,
guardian, custodian, or Indian custodian of a child at
the time the child was the subject of a child-in-need-
of-aid petition under AS 47.10;
REPRESENTATIVE WILSON described that it shows the whole issue
about a child-in-need-of-aid (CINA), and a lot of parents will
not fight back because they are usually told that if they fight
back, their children will be gone longer. Therefore, she
stressed, many parents will say they are guilty and not fight
it, not realizing they will have something on their record for
the rest of their lives, making it difficult for them to obtain
a job even if they are able to straighten out their lives.
1:37:45 PM
REPRESENTATIVE WILSON referred to CSSB 81, Sec. 10, AS
47.05.330(a)(5) page 7, lines 13-15, which read as follows:
(5) who, in the course of employment with
the state, has been terminated from employment or has
had an allegation of assaultive, abusive, neglectful,
or exploitive behavior or actions substantiated;
REPRESENTATIVE WILSON referred to the phrase "or has had an
allegation of assaultive, abusive, neglectful, or exploitive
behavior or actions substantiated," and asked whether the
committee is really going to bar people from working simply
based on an allegation. She said that she has no problem with
the language being, "terminated from employment because you have
been found guilty of something," but not simply on an
allegation.
REPRESENTATIVE WILSON referred to CSSB 81, Sec. 10, AS
47.05.330(b), page 7, lines 25-30, which read as follows:
(b) The information gathered under this section
is not a public record under AS 40.25.110 and is not
subject to public inspection or copying under AS
40.25.110-40.25.125. However, information gathered
under this section may be released to an entity, an
individual who is included in a database, a
governmental agency, and a political subdivision of
the state in a manner provided under this section and
regulations adopted under this chapter.
REPRESENTATIVE WILSON offered a scenario wherein someone had a
CINA case and they wanted to know whether they had this barrier
condition on their record. She asked whether there is there a
manner in which a person can be pro-active rather than waiting
until they apply for a job, to then be denied, and then try to
figure out how the whole system works.
1:39:09 PM
MS. KRALY, in response to the first issue raised by
Representative Wilson which was with regard to the variance in a
permanent barring condition, answered that the time period for
barring conditions for a Civil History Database check is now 10-
years, which was changed via regulation in 8/2017. Previously,
she advised, it was a permanent barring condition and based upon
public comment and review, it was changed to a 10-year bar. She
said that it is consistent with the federal rules for the Office
of Inspector General (OIG) exclusion and the other issues DHSS
looks at on a civil history check. Except, she said, the
regulation provides, "unless you've had your parental rights
terminated or relinquished, that becomes a permanent bar. But
again, any of that, you can still obtain a variance during any
of those time periods."
1:40:21 PM
CHAIR CLAMAN clarified that Representative Wilson's question
about a variance was that if a person receives a variance today,
do they have to re-apply for the variance tomorrow, or whether
once a variance is obtained that it is permanent.
MS. KRALY said she wanted to be clear that the civil history bar
is only a 10-year bar and it is not permanent, which was a
recent change. As to the variance question, she advised that
the variance process has also changed via the regulation packet
adopted in 8/2017. The [regulation] contemplates that the
variance now is transferrable, so if a person is a personal care
attendant, for example, and works for four different agencies,
the person does not have to obtain four separate variances
because it is job specific. In the event a person works in
child care as a foster parent, or in personal care, or is a
respite provider under the Medicaid program, the person would
obtain the variance to provide respite care and they could
transfer that variance to any other employer. She offered that
there is a more efficient or a shortened variance process
wherein if a person has a variance, they can use that
information "and come in." The Department of Health and Social
Services (DHSS) does not believe variances should transfer from
discipline to discipline because if a person has a civil history
barring condition related to child care, for instance, and now
the person wants to work in an assisted living home, those are
two different considerations. The Department of Health and
Social Services (DHSS) wants to look at those independently, but
for job class, those variances are transferrable.
1:42:01 PM
CHAIR CLAMAN asked whether [variances] are permanent, wherein a
person has a childcare variance because something happened 20-
years ago, will they ever have to come back and obtain another
variance or re-new that variance for purposes of providing
childcare.
MS. KRALY answered that as long as nothing comes up in the
person's history, the variance remains in place unless and until
the person changes job classes.
CHAIR CLAMAN said that if a person is in one job class, it is a
permanent variance and the person does not have to go back and
submit fingerprints every six years.
MS. KRALY opined that that is the case, and deferred to Margaret
Brodie, DHSS.
1:43:12 PM
MARGARET BRODIE, Director, Division of Healthcare Services,
Department of Health and Social Services, advised that the way
the variance process currently works is that when a person goes
to re-new, if a variance is in place for the same job class,
that will "pass along with it." She said that it will
automatically renew with it unless (coughing) a hit on the
original (audio difficulties) to now.
CHAIR CLAMAN surmised that if there some new incident arose,
that is a whole other deal, but if there are no new incidents
within a job class, it carries on forward.
MS. BRODIE answered in the affirmative.
1:44:07 PM
REPRESENTATIVE KOPP noted that in 2015, while he was working for
a senator, a letter was written to the commissioner of the
Department of Health and Social Services (DHSS) for a variance
for a man in his 30's to serve on a board. He explained that
this man needed a variance because the board had state money
coming into the organization the board oversaw, which was
related to DHSS. When that person was age 18, he got into a
fist fight with his brother and ran afoul of the law, but he had
been "good to go for a long time" with no issues. This person
received his variance in 2015, and this year he came back asking
for the same support again in order to receive a variance to
serve on the same board again. He said he was unsure whether
the reason was because that variance concluded with that term of
office on the board, and he asked Ms. Brodie to explain so the
committee could understand how that works.
[Audio difficulties.]
1:46:21 PM
The committee took an at-ease from 1:46 p.m. to 1:48 p.m.
1:49:09 PM
[CHAIR CLAMAN noted that due to the audio difficulties, Ms.
Brodie would return tomorrow.]
1:49:36 PM
MS. KRALY noted that the two other questions offered by
Representative Wilson were related to the issue of the
allegation of assaultive, abusive, neglectful, or exploitive
behavior by a state employee, language. She explained that the
reason it is drafted in this manner is that DHSS believes there
are instances wherein certain individuals who are at risk of
termination due to evidence of a bad act, assaultive, abusive,
neglectful, or exploitive behavior, decided to resign in lieu of
termination. The goal is to capture those individuals who would
be subject to this barring condition despite the fact they had
not been terminated, she advised.
1:50:45 PM
REPRESENTATIVE REINBOLD commented that she understands the
situation from the perspective that Ms. Kraly is coming from,
and it is valid. However, she said, "it just seems like there
should be, if that case goes away because there is a lot of
potential loopholes for abuse in that area, that the condition
has been lifted if they are found to be innocent or if there was
never a conviction."
MS. KRALY clarified that the person DHSS is trying to capture
here is the person who had been provided evidence of their
assaultive, abusive, neglectful, or exploitive behavior, and
that DHSS believes it can properly adjudicate through a
termination hearing, but in lieu of being fired they decide to
quit. In that instance, those people are not proven innocent
and they are basically quitting their jobs to avoid an adverse
employment action. The Department of Health and Social Services
(DHSS) wants to be able to capture those individuals, she
explained. Those individuals who are simply terminated from
state employment for issues not relating to health, safety, and
welfare, will not be captured in this issue. She further
explained that these are the individuals who have assaulted,
abused, or neglected an individual's care, for instance, the
Pioneer's Home, or API, or a public safety officer, and so
forth.
1:52:20 PM
CHAIR CLAMAN referred to CSSB 81, Sec. 10, AS 47.05.330(a)(5)
page 7, lines 13-15, which read as follows:
(5) who, in the course of employment with
the state, has been terminated from employment or has
had an allegation of assaultive, abusive, neglectful,
or exploitive behavior or actions substantiated;
CHAIR CLAMAN commented that it appears it is not just the
allegation because there is a secondary requirement that is
"just not the allegation," but the department has to have
performed enough of an investigation to substantiate the
allegations.
MS. KRALY answered that Chair Claman is correct.
CHAIR CLAMAN surmised that the allegation alone is not enough.
MS. KRALY answered in the affirmative.
1:52:49 PM
MS. KRALY referred to Representative Wilson's final question
under Sec. 10, AS 47.05.330(b), page 7, lines 25-30, which read
as follows:
(b) The information gathered under this section
is not a public record under AS 40.25.110 and is not
subject to public inspection or copying under AS
40.25.110-40.25.125. However, information gathered
under this section may be released to an entity, an
individual who is included in a database, a
governmental agency, and a political subdivision of
the state in a manner provided under this section and
regulations adopted under this chapter.
MS. KRALY advised that this section relates to the fact that
none of this information is a public record, and not subject to
public copying under the Alaska Public Records Act. She opined
that Representative Wilson's question was how people would know
how to obtain this information for purposes of variances. She
answered that the information will be identified in the letter
they receive identifying the barring condition as it is a robust
notice that identifies what DHSS has done, what it has
identified, and how the person can go about obtaining a
variance. She offered that the contemplation is that, for
instance, it is a CINA finding and the person is looking for a
variance, that CINA information will be automatically produced
as part of that process. She explained that the information
will be outlined in their notice so they know exactly what
information is available, or potentially available, and how that
information will be shared for purposes of a variance should
they submit an application.
1:54:30 PM
REPRESENTATIVE WILSON referred to CSSB 81, Sec. 10, AS
47.05.330(a)(5) page 7, lines 13-15, and asked whether the
person will be notified that something will be on their record,
and also be advised of the appeal process. She noted that just
because it was substantiated, they do not know what the proof
was and they may have other information. Everyone should have
an opportunity, if it is not going to court, to clear their
name, she said.
MS. KRALY responded that DHSS has been in consultation and
within its efforts in working with the Ombudsman's Office, has
agreed to reframe and redraft its substantiation notices. The
notices will provide a more robust explanation of what has
happened, what their options and opportunities are in
challenging that substantiation, and how it will all work. She
reiterated that DHSS is in the process of revamping those
notices so they are much more robust.
1:55:51 PM
CHAIR CLAMAN, after ascertaining no one wished to testify,
closed public hearing on CSSB 81.
[CSSB 81(HSS) was held over.]
1:56:26 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 1:56 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB081 ver D 4.25.18.PDF |
HJUD 4/25/2018 1:05:00 PM HJUD 4/26/2018 1:00:00 PM |
SB 81 |
| SB081 Transmittal Letter 4.25.18.pdf |
HJUD 4/25/2018 1:05:00 PM HJUD 4/26/2018 1:00:00 PM |
SB 81 |
| SB081 Sectional Analysis ver D 4.25.18.pdf |
HJUD 4/25/2018 1:05:00 PM HJUD 4/26/2018 1:00:00 PM |
SB 81 |
| SB081 Supporting Document-Alaska Ombudsman Letter 4.25.18.pdf |
HJUD 4/25/2018 1:05:00 PM |
SB 81 |
| SB081 Additional Document-Background and Centralized Registry Checks FAQ 4.25.18.pdf |
HJUD 4/25/2018 1:05:00 PM |
SB 81 |
| SB081 Fiscal Note DPS-SWITS 4.25.18.pdf |
HJUD 4/25/2018 1:05:00 PM |
SB 81 |
| SB081 Fiscal Note DHSS-RL 4.25.18.pdf |
HJUD 4/25/2018 1:05:00 PM |
SB 81 |
| SB081 Supporting Document-Proposed Background Check Process 4.25.18.pdf |
HJUD 4/25/2018 1:05:00 PM |
SB 81 |