04/29/2002 09:05 AM House RLS
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ALASKA STATE LEGISLATURE
HOUSE RULES STANDING COMMITTEE
April 29, 2002
9:05 a.m.
MEMBERS PRESENT
Representative Pete Kott, Chair
Representative Brian Porter
Representative Carl Morgan
Representative Ethan Berkowitz
Representative Reggie Joule
MEMBERS ABSENT
Representative Vic Kohring
Representative Lesil McGuire
OTHER LEGISLATORS PRESENT
Representative Carl Moses
Representative Sharon Cissna
COMMITTEE CALENDAR
HOUSE BILL NO. 252
"An Act relating to the construction of certain statutes
relating to children; relating to the scope of duty and standard
of care for persons who provide services to certain children and
families; and providing for an effective date."
- MOVED CSHB 252(RLS) OUT OF COMMITTEE
HOUSE BILL NO. 526
"An Act relating to the deadline for filing financial disclosure
statements for public members and public member nominees of the
Select Committee on Legislative Ethics."
- MOVED HB 526 OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 252
SHORT TITLE:CHILDREN IN NEED OF AID: SERVICES & LIAB.
SPONSOR(S): REPRESENTATIVE(S)COGHILL
Jrn-Date Jrn-Page Action
04/23/01 1136 (H) READ THE FIRST TIME -
REFERRALS
04/23/01 1136 (H) HES
01/17/02 (H) HES AT 3:00 PM CAPITOL 106
01/17/02 (H) Heard & Held
MINUTE(HES)
02/07/02 (H) HES AT 3:00 PM CAPITOL 106
02/07/02 (H) <Bill Canceled>
02/12/02 (H) HES AT 3:00 PM CAPITOL 106
02/12/02 (H) Heard & Held
02/12/02 (H) MINUTE(HES)
02/13/02 2257 (H) COSPONSOR(S): DYSON
02/14/02 (H) HES AT 3:00 PM CAPITOL 106
02/14/02 (H) Heard & Held
02/14/02 (H) MINUTE(HES)
02/21/02 (H) HES AT 3:00 PM CAPITOL 106
02/21/02 (H) Moved CSHB 252(HES) Out of
Committee
02/21/02 (H) MINUTE(HES)
02/25/02 2378 (H) HES RPT CS(HES) NT 1DP 3NR
1AM
02/25/02 2378 (H) DP: CISSNA; NR: COGHILL,
KOHRING,
02/25/02 2378 (H) JOULE; AM: DYSON
02/25/02 2378 (H) FN1: (HSS)
02/25/02 2390 (H) JUD REFERRAL ADDED AFTER HES
02/25/02 2390 (H) FIN REFERRAL ADDED AFTER JUD
03/04/02 (H) JUD AT 1:00 PM CAPITOL 120
03/04/02 (H) Moved CSHB 252(JUD) Out of
Committee
03/04/02 (H) MINUTE(JUD)
03/06/02 2479 (H) JUD RPT CS(JUD) NT 3NR 2AM
03/06/02 2479 (H) NR: BERKOWITZ, MEYER,
KOOKESH;
03/06/02 2479 (H) AM: COGHILL, ROKEBERG
03/06/02 2479 (H) FN1: (HSS)
04/04/02 (H) FIN AT 1:30 PM HOUSE FINANCE
519
04/04/02 (H) Heard & Held
04/04/02 (H) MINUTE(FIN)
04/04/02 2806 (H) COSPONSOR(S): FOSTER,
WHITAKER
04/08/02 2839 (H) COSPONSOR(S): CISSNA
04/15/02 (H) FIN AT 1:30 PM HOUSE FINANCE
519
04/15/02 (H) Moved CSHB 252(FIN) Out of
Committee
MINUTE(FIN)
04/16/02 2942 (H) FIN RPT CS(FIN) NT 6DP 4NR
04/16/02 2942 (H) DP: WHITAKER, HARRIS, HUDSON,
FOSTER,
04/16/02 2942 (H) MULDER, WILLIAMS; NR: BUNDE,
CROFT,
04/16/02 2942 (H) DAVIES, LANCASTER
04/16/02 2942 (H) FN1: (HSS)
04/17/02 2986 (H) COSPONSOR(S): MCGUIRE
04/29/02 (H) RLS AT 9:00 AM BUTROVICH 205
BILL: HB 526
SHORT TITLE:DISCLOSURE BY ETHICS COMMITTEE MEMBERS
SPONSOR(S): RLS
Jrn-Date Jrn-Page Action
04/26/02 3169 (H) READ THE FIRST TIME -
REFERRALS
04/26/02 3169 (H) RLS
04/29/02 (H) RLS AT 9:00 AM BUTROVICH 205
WITNESS REGISTER
REPRESENTATIVE JOHN COGHILL
Alaska State Legislature
Capitol Building, Room 102
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the sponsor of HB 252.
THERESA TANOURY, Director
Division of Family & Youth Services
Department of Health & Social Services
PO Box 110630
Juneau, Alaska 99811-0630
POSITION STATEMENT: Expressed concerns with [Version X].
SUSAN COX, Chief
Assistant Attorney General
Civil Division (Juneau)
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Expressed concerns with [Version X].
JOYCE ANDERSON, Administrator
Select Committee on Legislative Ethics
PO Box 101468
Anchorage, Alaska 99510-1468
POSITION STATEMENT: Testified on HB 526.
ACTION NARRATIVE
TAPE 02-7, SIDE A
Number 0001
CHAIR PETE KOTT called the House Rules Standing Committee
meeting to order at 9:05 a.m. Representatives Kott, Porter,
Berkowitz, and Joule were present at the call to order.
Representative Morgan arrived as the meeting was in progress.
HB 252-CHILDREN IN NEED OF AID: SERVICES & LIAB.
CHAIR KOTT announced that the first order of business would be
HOUSE BILL NO. 252, "An Act relating to the construction of
certain statutes relating to children; relating to the scope of
duty and standard of care for persons who provide services to
certain children and families; and providing for an effective
date."
Number 0048
REPRESENTATIVE PORTER moved to adopt CSHB 252, Version 22-
LS0454\X, Laurterbach, 4/24/02, as the working document. There
being no objection, Version X was before the committee.
Number 0086
REPRESENTATIVE JOHN COGHILL, Alaska State Legislature, testified
as the sponsor of HB 252. Representative Coghill directed the
committee's attention to page 2, line 3, where language
including the parent was inserted. He informed the committee of
his goal to promote the well being of families. He then turned
attention to the family preservation services portion of the
bill, which was inserted in the House Health, Education and
Social Services Standing Committee. The bill specifies that
under certain circumstances, family preservation services would
be requested, and he noted that he would ask the department to
do so without added cost. He noted that the department wants to
do this and is actually heading in that direction. Therefore,
this would provide the department with the opportunity to study
it.
REPRESENTATIVE COGHILL turned to Section 7 regarding the
limitation on civil liability. He pointed out that AS 47.10.960
specifies that nothing in this [title] creates a standard or
duty of care. Version X [repeals and reenacts] Section 7 that
says failure to comply with the provisions of the chapter, save
three specific statutes, doesn't constitute a basis for civil
liability. The three statutes [for which a violation would
constitute civil liability] are as follows: AS 47.10.084, AS
47.10.086, and AS 47.10.088. However, Representative Coghill
said he was open to discussion on that.
Number 0467
REPRESENTATIVE COGHILL informed the committee that he brought
this legislation forward in order to start discussion in regard
to what is the standard or duty of care for the department. He
chronicled the process that resulted in the language in Version
X, Section 7, regarding the three areas of statute specified as
barriers for which [the department] can and should be held
civilly liable. Representative Coghill related his belief that
due process has been bypassed in order to be able to protect
children. There are established rules [specifying] where the
state can and should protect children. However, this bypass of
due process has created quasi-judicial, quasi-legislative, and
policing powers for [the department]. In so doing, any misuse
would be very egregious to families. Therefore, he said he
believes the standard and duty of care should be high. There
must be a way to hold [the department] accountable [when the
department foregoes] due process, which is Section [7].
Number 0711
THERESA TANOURY, Director, Division of Family & Youth Services
(DFYS), Department of Health & Social Services (DHSS), announced
that she would be speaking to AS 47.10.960. In regard to this
particular section, Ms. Tanoury related that she and
Representative Coghill have reached a point to agree to
disagree. This section is cause of great concern because it
allows individuals to bring personal injury actions against
workers, supervisors, managers, and the state. She explained:
When people feel they have suffered emotionally from
actions taken by a worker, or when they feel the
worker has not complied with those three sections of
[AS] 47.10, they would be able to sue the worker, if
... draft X passed. In essence, workers could be sued
for doing their jobs. Currently, these individuals
can take their complaints into court under the child-
in-need-of-aid (CINA) proceeding.
MS. TANOURY pointed out that under Version X, the CINA
proceedings and the civil proceedings would occur
simultaneously. Ms. Tanoury noted that [the division] is being
sued as it has been in the past, and people are held
accountable. [The division] has professional standards and
state ethics standards. She highlighted the fact that [division
employees] are asked to do many things that are seen as causing
emotional trauma or not following the letter of the law. These
are situations, the separation of children from their parents,
that will always be emotional. She pointed out that AS
47.10.084 has a section that addresses reasonable visitation,
which [the division] already knows isn't happening. Because of
the lack of resources, the division can only offer an hour a
week of [supervised] visitation. The courts have already said
that such isn't reasonable visitation. Therefore, the division
uses people in the community to supervise visitation; but,
that's still not enough. She noted that the division has
requested funding to remedy that; funding for visitation centers
where families and children can come together. However, that
hasn't been successful. Under the "reasonable efforts" section,
it specifies that [the division] should do what is reasonable to
rectify the situation that lead the parents to the division in
the first place. Therefore, the parents need access to
services, which is a parental right. However, when the services
aren't available or they require waiting, the courts rule in the
parents' favor. Failure [to have access to services] would mean
that parents could sue the division. This is tied to the
division's lack of resources to do the job.
MS. TANOURY remarked that this is a very ripe area for
litigation. The policy question is whether the legislature
wants to extend the door open to civil issues. Ms. Tanoury
expressed concern with regard to the chilling effect this would
have on employee morale and work. The possibility of being sued
by a parent, even when making decisions in the best interest of
the child, would have a great impact on the decisions being made
on the behalf of children.
MS. TANOURY pointed out that both the House Health, Education
and Social Services Standing Committee and House Judiciary
Standing Committee passed HB 252 with amended language that
didn't include this [civil liability language]. This language
was changed in the House Finance Committee, and she was unable
to discuss the committee substitute that was passed with the
House Finance Committee members. Furthermore, the language in
Version X requires a fiscal note [from the division].
Number 1022
SUSAN COX, Chief, Assistant Attorney General, Civil Division
(Juneau), Department of Law (DOL), said that Version X leaves
the door open to civil liability for violations of the three
particular provisions in the CINA statutes. She recalled that
Representative Coghill read part of [AS 47.10].084(a) regarding
to the division's responsibilities to children in its care. The
problem is that AS 47.10.084(c) discusses the parents' residual
rights, including the right and responsibility for reasonable
visitation. The [DOL expects] that parents' perception is that
they don't receive reasonable visitation, and therefore the
language in Version X could be used to sue for emotional
distress and damages. This ability to sue [on those grounds] is
currently not available. Similarly, [AS 47.10.]086(a) in part
specifies "the department shall make timely, reasonable efforts
to provide family support services to the child and to the
parents .... The department's duty to make reasonable efforts
... to (1) identify family support services ...". This is of
great concern if this becomes another vehicle for collateral
litigation, which is anticipated.
MS. COX pointed out that the department currently has liability,
under the common law, to children if the department fails to
protect them from harm. This liability pertains to children in
custody and in foster care. The courts have recognized that the
department's duty is to the children. The Alaska Supreme Court
has considered the question regarding whether parents have a
right to file their own suit on their own behalf for the
emotional distress related with CINA proceedings. The Alaska
Supreme Court has rejected that and found that the [division's]
duty is to the children not the parent, and the recourse for the
parent is in the CINA proceeding. Specifically, in the 1998
Karen L. case [Karen L. v. Alaska Div. of Family and Youth
Services] the court said, "Social workers should be helping
children in need of aid, they should not be spending their time
in burdensome collateral litigation." This legislation [Version
X] could impact the work of social workers in CINA cases.
Furthermore, there could be a fiscal impact. The DOL submitted
a fiscal note after the adoption of the House Finance Committee
CS, although the bill had left the House Finance Committee. If
this proposed House Rules Standing Committee CS was reported out
of committee, Ms. Cox wasn't sure whether the fiscal note would
be impacted; however, she was certain that there would be a
fiscal note. She anticipated that there would be more cases
from parents complaining about the CINA process.
MS. COX acknowledged that the parents do have rights. However,
she begged to differ the assertion that [the department]
bypasses due process in the protection of children. The CINA
statutes provide for due process in the system. She related her
belief that if there was a due process violation in the
construction of the CINA statutes, the attorneys dealing with
child protection would've had to deal with that in the Alaska
Supreme Court.
Number 1301
LISA NELSON, Assistant Attorney General, Human Services Section,
Civil Division (Anchorage), Department of Law, testified via
teleconference. Ms. Nelson informed the committee that due
process rights in CINA cases are truly plentiful. In the CINA
system, there is always a judge and guardian ad litem [present].
Furthermore, each parent has an attorney. Ms. Nelson pointed
out that in CINA cases, within 48 hours one must prove in court
that these children were rightfully taken. She reviewed the
numerous hearings that take place in order to keep the
department on track. "The social worker is always scrutinized,"
she emphasized. She concluded by stressing that there are
plenty of safeguards within the CINA system.
CHAIR KOTT asked if the fiscal note is tied to Section 7 [of
Version X].
MS. COX replied yes. She reiterated that the fiscal note was
drafted based on the House Finance Committee (HFIN) CS, which is
somewhat different than [Version X]. That [the HFIN] fiscal
note is based on an estimate of the number of cases the
department expects to see, and the cost for potential
litigation. No figures were included for the cost of liability.
Ms. Cox explained that until the House Finance Committee
hearing, it was somewhat ambiguous as to whether this section
was attempting to create new liabilities or merely change the
language in the current statute. Therefore, there was the
possibility to argue that new liabilities weren't being created,
although new cases would occur. Now, it seems clear, that this
is about creating new liabilities, which the department expects
due to the prospect of people suing because of parents not
receiving reasonable visitation, alcohol treatment, et cetera.
"The argument that we might have made in defense of new language
is ... getting away from us, and I think it would be a losing
one," she said.
Number 1501
REPRESENTATIVE BERKOWITZ related his understanding that the
fiscal note is based on suits that would be groundless in law,
without attention to potential actual award of damages.
MS. COX specified that was the basis for the fiscal note for the
House Finance Committee CS. She noted that the fiscal note was
prepared after the passage of that CS. Under [Version X] she
predicted the fiscal note would be worse.
Number 1521
CHAIR KOTT asked if it would be fair to say that absent Section
7, or with modifications [to Section 7] the department is
supportive of the bill.
MS. TANOURY replied yes.
Number 1554
REPRESENTATIVE COGHILL highlighted that this [legislation] deals
with the most important resource of Alaska, its children and the
families that they reside in. Quite often, the due process
favors the system rather than the family. The whole genesis for
this bill was to interject the family in a greater way. Many
times a social worker can put a family through visitation
changes and programs that run the family into the ground
legally. He charged that the department changes the rules as it
goes. Therefore, he reiterated his problem with the due process
issue. "It's not about due process for the family, it's about
due process for the system," he charged.
REPRESENTATIVE COGHILL related that he is trying very hard to
work with the department in regard to how to protect the
children. He said that he has tried to develop language that
doesn't exempt them from civil liability for this entire chapter
[title]. "They can exact of parents things that are ... really
on a judgment call, and do damage to families that families have
absolutely no recourse on," he remarked. From his personal
experience, he has seen that the court listens to the department
in regard to the well being of the child. Quite often, the
parent is viewed as the "bad doer." Although Representative
Coghill said he understood the need for the system, he
questioned the recourse when the system is the "bad doer." He
emphasized that every governmental agency in Alaska is already
under the civil liability protection from which the department
is trying to exempt itself. Representative Coghill stressed
that the department should at least be held liable for its
actions relating to parenting, parental rights, and visitation.
Representative Coghill noted his objection to the system rolling
over and crushing families. He remarked that the fiscal note is
based more on supposition rather than reality.
CHAIR KOTT closed public testimony.
REPRESENTATIVE BERKOWITZ noted that he would like to introduce
Amendment 1, which modifies Section 7.
The committee took a brief at-ease.
REPRESENTATIVE BERKOWITZ announced his appreciation of
Representative Coghill's and the department's effort on this
issue. He said that this discussion should recognize that
everyone has the best interests of the children in mind.
Representative Berkowitz said that he is amongst those most
loathed to immunize anyone. However, it appears that there are
other grounds for pursuing action against the department for
breeches of duty or violations of constitutional obligations.
The current budget eliminates 32 front-line social workers.
Therefore, it would be irresponsible for the [legislature] to
ignore the best interests of the children. Representative
Berkowitz related his belief that reducing the fiscal note
enables a solid piece of legislation to pass this body without
much discomfort.
Number 1832
REPRESENTATIVE BERKOWITZ moved that the committee adopt
Amendment 1, which reads as follows:
Proposed alternative language for Section 7 of CSHB
252(FIN)
Sec. 7. AS 47.10.960 is amended to read:
AS 47.10.960. Civil liability [Duty and standard
of care not created]. Failure to comply with a
provision of [Nothing in] this title does not
constitute a basis for civil liability for damages
[creates a duty or standard of care for services] to
children and their families being served under AS
47.10.
REPRESENTATIVE PORTER announced that he supports the efforts of
the sponsor. However, there isn't a middle ground with this
issue. Furthermore, this strict liability area doesn't allow a
reasonable standard to be established in regard to whether a
certain service should or shouldn't be provided. Representative
Porter recalled a similar situation that arose during his law
enforcement days when public intoxication was decriminalized.
The statute had ambiguously established a requirement for law
enforcement to intervene and take intoxicated people to
treatment. On one occasion in Anchorage, an officer stopped an
intoxicated person in Anchorage. The officer talked with the
individual about going to a shelter, and the officer was
reasonably convinced that the individual would make it to the
shelter. Unfortunately, the individual was hit by a car and
killed. The court interpreted this ambiguous statute as
establishing this strict liability and thus held the
municipality and the police department liable. Representative
Porter likened that situation to the one being established under
[Section 7 of CSHB 252(FIN)]. Furthermore, this bill seems to
establish a requirement for DFYS to take over the entire area of
runaway children since it requires the division to provide
shelter. Representative Porter announced that he would have to
reluctantly support this amendment.
Number 1960
REPRESENTATIVE COGHILL pointed out, "In looking at the
amendment, just remember that this is everything in Title 47."
REPRESENTATIVE PORTER remarked that this [amendment] doesn't
preclude a civil case but rather it precludes a strict
liability.
CHAIR KOTT asked if there was objection to Amendment 1. There
being no objection, Amendment 1 was adopted.
Number 2002
REPRESENTATIVE PORTER moved to report CSHB 252, Version 22-
LS0454\X, Laurterbach, 4/24/02, as amended out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 252(RLS) was reported from the
House Rules Standing Committee.
HB 526-DISCLOSURE BY ETHICS COMMITTEE MEMBERS
CHAIR KOTT announced that the last order of business would be
HOUSE BILL NO. 252, "An Act relating to the construction of
certain statutes relating to children; relating to the scope of
duty and standard of care for persons who provide services to
certain children and families; and providing for an effective
date."
REPRESENTATIVE PORTER informed the committee that the House
Rules Standing Committee was asked by the Chairman of the Select
Committee on Legislative Ethics to consider HB 526, which
Representative Porter viewed as positive. He explained that
during the last selection process for the Select Committee on
Legislative Ethics, a public member went through the entire
process of selection and confirmation and then discovered what
had to be revealed in the financial disclosures. That
individual, due to their employment, felt such was too
excessive. Therefore, [HB 526] allows the financial disclosure
to coincide with the appointment and confirmation process in
order that the legislature would have access to that
information. More importantly, it would provide the public
member with the requirements so that he/she could determine
whether they want to continue with the process at all.
Number 2099
JOYCE ANDERSON, Administrator, Select Committee on Legislative
Ethics, testified via teleconference in agreement with
Representative Porter's explanation. She related her belief
that this situation has happened with more than one nominee.
During a recent meeting [of the Select Committee on Legislative
Ethics] it was mentioned that during the confirmation process it
would be appropriate for the House and Senate Judiciary Standing
Committees to have the financial disclosure statements available
with the resume.
CHAIR KOTT closed public testimony.
Number 2449
REPRESENTATIVE BERKOWITZ moved to report HB 526 out of committee
with individual recommendations and the accompanying zero fiscal
note. There being no objection, HB 526 was reported from the
House Rules Standing Committee.
ADJOURNMENT
The House Rules Standing Committee meeting was recessed to the
call of the chair at 9:58 a.m. [This meeting didn't reconvene.]
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