Legislature(1999 - 2000)
03/24/1999 02:41 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE March 24, 1999 2:41 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator John Torgerson Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR SENATE BILL NO. 57 "An Act relating to vulnerable adults; and providing for an effective date." -MOVED CSSB 57(JUD) OUT OF COMMITTEE SENATE BILL NO. 42 "An Act making corrective amendments to the Alaska Statutes as recommended by the revisor of statutes; and providing for an effective date." -MOVED CSSB 42(JUD) OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION SB 57 - See HESS minutes dated 3/3/99, 3/8/99 and 3/15/99. SB 42 - See State Affairs minutes dated 2/16/99. WITNESS REGISTER Ms. Sheila Peterson Legislative Aide to Senator wilken Alaska State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented SB 57 for the sponsor Mr. Dwight Becker Protective Services Coordinator Division of Senior Services Department of Administration 3601 C St. Anchorage, AK 99503-5984 POSITION STATEMENT: Supports SB 57 Ms. Fran Purdy Long Term Care Ombudsman Division of Senior Services Department of Administration 3601 C St. Anchorage, AK 99503-5984 POSITION STATEMENT: Supports CSSB 57(JUD) Ms. Maria Moya Office of the Ombudsman PO Box 113000 Juneau, AK 99811-3000 POSITION STATEMENT: Commented on CSSB 57(JUD) Ms. Jane Demmert Alaska Commission on Aging PO Box 110209 Juneau, AK 99811-0209 POSITION STATEMENT: Commented on CSSB 57(JUD) Mr. John Hanchett PO Box 10041 Fairbanks, AK 99710 POSITION STATEMENT: Supports SB 57 Mr. James Crawford Legislative Legal and Research Services Alaska State Legislature 130 Seward St., Suite 409 Juneau, AK 99801-2105 POSITION STATEMENT: Presented SB 42 ACTION NARRATIVE TAPE 99-21, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:41 p.m. Present were Senators Donley, Torgerson and Taylor. The first order of business to come before the committee was SB 57. SB 57-CARE FOR VULNERABLE ADULTS SHEILA PETERSON, staff to Senator Gary Wilken, sponsor of the measure, informed committee members that Senator Wilken was Co- Chair of the Long Term Care Task Force during the interim. The task force looked at a variety of issues involving senior services, including adults with disabilities. One issue brought to the attention of task force members is a loophole in the Alaska statutes dealing with vulnerable adults. If a vulnerable adult has the potential of being abused by a guardian, the Department of Administration (DOA) is currently unable to continue an investigation if the vulnerable adult (through the guardian) asks that the investigation be terminated. After reviewing the issue, the task force recommended that legislation be introduced to address this problem. The Alaska Commission on Aging, as well as other entities involved with senior citizens, have endorsed SB 57. CHAIRMAN TAYLOR moved to adopt an amendment (#32499) proposed by Senator Green. SENATOR TORGERSON objected for the purpose of discussion. SENATOR GREEN explained the Office of the Long Term Care Ombudsman (OLTCO) is currently housed in the DOA, and is partnered with some of the groups it is called to investigate. That proximity has been cause for concern. The proposed amendment moves the OLTCO into the Office of the Ombudsman, which is within the purview of the Legislature. The amendment also transfers OLTCO's federal funds, funneled through the Commission on Aging, to the Office of the Ombudsman. SENATOR GREEN informed committee members she worked with Maria Moya, the current Ombudsman, and Jane Demmert, the Director of the Commission on Aging, to ensure that this proposal satisfies those involved. Number 110 SENATOR TORGERSON questioned whether the bill will have any fiscal impact. SENATOR GREEN answered the transfer of funds will require a fiscal note, though the two staff are entirely funded with federal dollars. CHAIRMAN TAYLOR clarified the bill will have a zero impact on the state's budget. SENATOR TORGERSON asked if the Administration agrees with the transfer. SENATOR GREEN said that is her understanding. She stated the location of the OLTCO in the DOA creates a fairly strong conflict; the Commission on Aging and DOA are uncomfortable with it as well. DWIGHT BECKER, Director of Adult Protective Services, stated his support for SB 57. Regarding the amendment, he deferred to Jane Demmert for her position but stated he has no objection to it. FRANCES PURDY, Long Term Care Ombudsman, stated the OLTCO supports SB 57. She also deferred to Jane Demmert for a position on the amendment. She stated SB 57 meets the needs of seniors and is drafted in a way that supports the intent of the federal law and state statutes regarding the OLTCO. Number 187 SENATOR TORGERSON asked Ms. Purdy how many cases her office handles each year. MS. PURDY replied OLTCO handled 877 complaints last year. SENATOR TORGERSON asked what the backlog is on those cases. MS. PURDY answered the backlog right now is approximately 180 complaints. SENATOR TORGERSON questioned the average time it takes to render a decision on a complaint. MS. PURDY replied the average time last year was 46 days. Number 210 SENATOR TORGERSON asked whether the OLTCO's caseload has increased. MS. PURDY said the complaints have become more complex, and the number increased between 50 and 100 last year. SENATOR TORGERSON asked if she has had a corresponding increase in federal funding, based upon the increased caseload. MS. PURDY said they have not. SENATOR TORGERSON asked how the amount of federal funding is determined. MS. PURDY answered part of it is designated in the Older Americans Act, and the other part is discretionary to the state. She deferred to Jane Demmert for more information on the formula. SENATOR TORGERSON expressed concern that transferring an office with a backlog of cases and static funding will require an increase in state funding for the Office of the Ombudsman. He asked Ms. Purdy whether she feels a current conflict exists with the OLTCO's location within the Department of Administration. MS. PURDY said a conflict does exist. She also clarified that she and Ms. Moya, the Ombudsman, have agreed that the work of the OLTCO will remain discrete; backlogged cases will not spill into the Office of the Ombudsman. SENATOR TORGERSON said he understands the intent but his concern is that no mechanism exists to increase the amount of federal funding for the corresponding increased caseload. MR. JOHN HANCHETT made the following remarks via teleconference from Fairbanks. As a member of the Long Term Care Task Force, he was informed through testimony, on numerous occasions, he heard repeated testimony about the inherent conflict with OLTCO and the other agencies in DOA. He expressed support for transferring OLTCO so that Ms. Purdy can be more effective. In the past, she has investigated complaints but was unable to come to a resolution because of the conflict of interest. Regarding the content of SB 57 concerning vulnerable adults, he urged the committee to support the measure. MARIA MOYA, Acting Ombudsman in the Alaska Office of the Ombudsman, stated she recently researched other general jurisdiction ombudsman offices to see if any had integrated the Long Term Care Ombudsman function into their office, and if so, how. She contacted offices in the states of Iowa, Hawaii, Arizona, and Ohio and spoke to former Alaska employees. The Ombudsman's Office in the State of Ohio provided a model of its program which integrated the two offices in 1979 and has operated successfully. That model was used as the basis for the amendment before the committee. SENATOR TORGERSON asked Ms. Moya how she can convince him "adopting" the OLTCO will not have an impact on her office, considering both offices are backlogged. MS. MOYA responded regulations are in place that define the priority of cases. Those regulations provide a framework from which to discern how resources are allocated. The highest priority cases involve emergency health and safety issues. The next priority involves systemic issues in which a large number of people could be impacted. The third priority involves cases of single instances of harm. MS. MOYA said using that framework over the last few years has resulted in no backlog, primarily because her office has had to tell a lot of people it could not address their issues because it did not have the resources to do so. Those people are provided with other avenues to take, and information on how they can successfully resolve their own issues. Number 317 SENATOR TORGERSON pointed out almost 100 percent of the OLTCO's cases involve life, health, and safety issues because they relate to vulnerable adults, so they will become the highest priority. He repeated his concern that an increasing backlog and static funding will require the Office of the Ombudsman to request more money from the general fund. He asked if a formula exists to get more federal funds. MS. MOYA stated she is not familiar enough at this point to answer questions about the funding channels for the federal long term care ombudsman program. She added she would approach the situation by designating specific individuals to specific duties. The Office of the Ombudsman would have two branches: the OLTCO and the general jurisdiction ombudsman branch, and funding for each will be kept separate. Number 349 CHAIRMAN TAYLOR stated if the committee is assured that the Office of the Ombudsman will compartmentalize its functions, then there should be no cost increase to the general fund. MS. MOYA replied the Ohio model has two separate branches with separate statutes and regulations that provide guidance for meeting their different mandates. CHAIRMAN TAYLOR questioned whether the policies of DOA come into conflict with the results of OLTCO investigations. MS. MOYA said her office has not looked into the issue but she understands that being housed within the agency that includes many of the entities that the OLTCO may have to investigate presents an inherent conflict. CHAIRMAN TAYLOR asked Ms. Moya how long she has been employed with the Ombudsman's Office. MS. MOYA answered eight years. CHAIRMAN TAYLOR wished her luck. Number 372 JANE DEMMERT, Director of the Alaska Commission on Aging, commented the original bill, dealing with vulnerable adults, will be a constructive piece of legislation that does fill a gap. The Commission on Aging has been exploring options of the best location for the OLTCO. Discussions began last fall with the Office of the Ombudsman about housing OLTCO with it. She believes consolidating the two offices has merit for the vulnerable adults in Alaska. SENATOR DONLEY asked who will determine whether a vulnerable adult is incompetent. MR. BECKER answered Adult Protective Services (APS) is authorized by law to conduct a preliminary assessment and file petitions to bring a competency matter before the court. APS files about 15 percent of the petitions; the other 85 percent are filed by private parties, attorneys and others. He suggested the OLTCO could also work with his agency to bring a matter to court. Number 415 SENATOR DONLEY said his concern is that existing law allows adults to decide whether or not they want to be protected; SB 57 will let a state agency make that decision, and will allow a state agency to decide whether the adult is competent to make that decision. The standard used will be a "reasonable cause to believe" that a person needs protective services. That might be a reasonable standard under a law that allows the adult to terminate it at any time, but it is not appropriate under a law that says "Big Brother" gets to determine when you get to decide whether you want to be protected or not. He suggested using "probable cause" as the standard. Number 458 CHAIRMAN TAYLOR suggested Senator Donley provide proposed language to address his concern while the committee further discusses Senator Green's amendment. CHAIRMAN TAYLOR asked if there was continued objection to adopting the amendment proposed by Senator Green. There being no objection, the amendment was adopted. SENATOR DONLEY moved to replace the word "reasonable" with the word "probable" on line 7, page 1. CHAIRMAN TAYLOR noted one check and balance remains in the proposed system because once the state has made the decision, the court must find that the person is not competent to decide for him/herself. SENATOR DONLEY noted his amendment includes the same language change on line 13. DWIGHT BECKER asked for clarification of the amendment. CHAIRMAN TAYLOR explained on page 1, lines 7 and 13, the word "reasonable" is to be replaced with the word "probable." Number 489 MR. BECKER stated two issues are involved: the first is determining whether the vulnerable adult is in need of protective services; the second is whether or not the vulnerable adult is incompetent. He expressed concern that a lower standard of proof be required for APS to approach a vulnerable adult to ask for their consent, but a higher standard be used to determine whether the vulnerable adult is competent to make his/her own decision. He explained that currently, APS determines that a vulnerable adult needs protective services with the consent of the person. APS also uses a standard at least as high as probable cause when filing a petition with the court to declare a vulnerable adult incompetent. CHAIRMAN TAYLOR affirmed that the petition cases he has been involved in have met a much higher standard before a petition was brought by the Department. He assumed existing statutory language must allow APS to make the initial determination as to whether a vulnerable adult needs protective services. MR. BECKER said if that is the case, he supports the legislation. CHAIRMAN TAYLOR noted there being no further objection to Senator Donley's amendment to change the word "reasonable" to "probable" on page 1, lines 7 and 13, the motion carried. Number 524 SENATOR DONLEY asked for further elaboration on who determines whether a person is competent, and what standard is used. MR. BECKER explained a judge must make the ruling in probate court. Anyone can file a petition and bring the matter before the court. CHAIRMAN TAYLOR informed Mr. Becker that AS 47.24.010 uses the phrase, "reasonable cause to believe that a vulnerable adult suffers from abandonment, exploitation, abuse, neglect, self neglect, ...." Therefore the standard APS must use to make the threshold determination about whether a person may be within this class is "reasonable cause." He added a two-part process takes place when determining whether or not a person is competent. Part of that process is in-house. Discussions take place about a person's competency, and at least one physician who has worked with the person has to testify to a person's competency. There being no further discussion on CSSB 57(JUD), SENATOR HALFORD moved to report the bill from committee with individual recommendations. Without objection, CSSB 57(JUD) moved from committee. CHAIRMAN TAYLOR noted the bill will most likely be referred to the Senate Finance Committee. SB 42-1999 REVISOR'S BILL JAMES CRAWFORD, Assistant Revisor, stated SB 42 is the 1999 wrap-up revisor's bill. He asked the committee to consider one amendment. Last year a statute was amended to remove paragraph (a)(2), and the remaining paragraphs were renumbered however, a few cross references were not corrected, one in AS 15.13.074(h) and another in AS 15.13.078(b). The amendment cross references those sections. He explained AS 15.13.074 relates to disbursement of campaign assets after an election and prohibits the Governor or Lieutenant Governor from making certain types of contributions, but not to a political party. SENATOR ELLIS moved to adopt the proposed amendment. CHAIRMAN TAYLOR objected for the purpose of discussion. There being no further discussion or questions, CHAIRMAN TAYLOR withdrew his objection and the proposed amendment was adopted. TAPE 99-21, SIDE B SENATOR ELLIS moved to adopt CSSB 42(JUD). There being no objection, the motion carried. SENATOR HALFORD moved CSSB 42(JUD) from committee with individual recommendations. There being no objection, the motion carried. There being no further business to come before the committee, CHAIRMAN TAYLOR adjourned the meeting.