Legislature(1999 - 2000)

03/24/1999 02:41 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              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.                                                                                          

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