Legislature(1995 - 1996)
03/07/1996 03:36 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE STATE AFFAIRS COMMITTEE March 7, 1996 3:36 p.m. MEMBERS PRESENT Senator Bert Sharp, Chairman Senator Randy Phillips, Vice-Chairman Senator Loren Leman Senator Dave Donley MEMBERS ABSENT Senator Jim Duncan COMMITTEE CALENDAR SENATE BILL NO. 211 "An Act relating to sexual assault; and relating to endangering the welfare of vulnerable adults and neglect of vulnerable adults." Confirmation Hearing: Mary Beth Shaddy, APOC SSTA - 3/7/96 HB 321 (EMERGENCY DISASTER HIRES IN EXEMPT SERVICE) was scheduled, but not taken up on this date. PREVIOUS SENATE COMMITTEE ACTION SB 211 - No previous senate committee action. WITNESS REGISTER Senator Johnny Ellis State Capitol, Juneau, Alaska, 99801-1182¶(907)465-3704 POSITION STATEMENT: prime sponsor of SB 211 Anne Carpeneti, Assistant Attorney General Criminal Division, Central Office Department of Law P.O. Box 110300, Juneau, AK 99811-0300¶(907)465-3428 POSITION STATEMENT: supports SB 211 Bobbie Watts 1527 Columbine, Anchorage, AK 99508¶(907)277-1696 POSITION STATEMENT: supports SB 211 Dora Deshkin 100 Ocean Park Dr., Anchorage, AK 99515 POSITION STATEMENT: supports SB 211 Jane Andreen, Executive Director Council on Domestic Violence & Sexual Assault Department of Public Safety P.O. Box 111200, Juneau, AK 99811-1200¶(907)465-4356 POSITION STATEMENT: supports SB 211 Connie Sipe, Director Division of Senior Services Department of Administration 3601 C St., Ste. 310, Anchorage, AK 99503-5984¶(907)563-5654 POSITION STATEMENT: supports SB 211 Mary Beth Shaddy Nominee to the Alaska Public Offices Commission 209 W. 22nd Ave., Anchorage, AK 99503¶(907)258-6105 POSITION STATEMENT: testified on her appointment to the APOC ACTION NARRATIVE SB 211 VULNERABLE PEOPLE:NEGLECT/SUPPORT/ASSAULT TAPE 96-17, SIDE A Number 001 CHAIRMAN SHARP called the Senate State Affairs Committee to order at 3:36 p.m. and brought up SB 211 as the first order of business before the committee. Number 020 SENATOR JOHNNY ELLIS, prime sponsor of SB 211, introduced this bill because Alaska does not specifically make abuse or neglect of the elderly a crime. He hopes to correct that problem through SB 211. He related information contained in the sponsor statement. He informed the committee that the Department of Law has a proposed amendment, which is in members' bill packets; he agrees with their amendment. He has been working with the Department of Law, with the Long-Term Care Ombudsman's Office, and with Senior Services to work out the most appropriate language that's enforceable, reasonable, and will do a good job to protect vulnerable adults. Senator Ellis stated that SB 211 would create the crime of endangering the welfare of a vulnerable adult. That would be a class C felony, punishable by a jail term of up to five years and a $50,000 fine. Criminal neglect of a vulnerable adult would become a class A misdemeanor, punishable by a jail term of up to a year and a $5,000 fine. He will defer more technical questions to the Department of Law. SENATOR RANDY PHILLIPS asked what the law is today for situations like Bobbie Watts'. ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, stated that Ms. Sipe could better answer that question. She stated that these are new crimes; there are not crimes that specifically address that situation. [The Department of Law has stated in writing that they support SB 211.] SENATOR RANDY PHILLIPS stated he asked about the criminal, not the licenses. What is on the books today, for a situation like Bobbie Watts'? MS. CARPENETI responded she is not familiar with the facts of that situation. SENATOR ELLIS told Ms. Carpeneti that there was an article in the Anchorage Daily News which related a series of charges investigated and documented by the Long-Term Care Ombudsman of mistreatment of Ms. Watts' father-in-law in the Friendship Home in Anchorage. MS. CARPENETI responded that if the conduct was an assault, it would be prosecutable as an assault. If it is neglect, she does not think there is a provision in law, which is why SB 211 has been introduced. SENATOR RANDY PHILLIPS stated he is confused about what the law states today. SENATOR ELLIS replied that SB 211 would create two new crimes: endangering the welfare of a vulnerable adult, and criminal neglect of a vulnerable adult. SENATOR RANDY PHILLIPS asked what there is today that would cover endangering the welfare of a vulnerable adult. MS. CARPENETI does not believe there is a provision in criminal law that addresses that. SENATOR ELLIS stated these are new crimes. SENATOR RANDY PHILLIPS asked if they are saying one could assault an elderly person and get away with it. MS. CARPENETI responded no, because that would be an assault. But this bill addresses abandoning a vulnerable adult, which she does not believe is addressed in current law. SENATOR RANDY PHILLIPS asked if there was nothing in current law dealing with abandonment or neglect of senior citizens. MS. CARPENETI responded there is not specifically, according to her knowledge. SENATOR RANDY PHILLIPS asked if there was for any other human being. MS. CARPENETI replied the two offenses in SB 211 are similar to endangering the welfare of a minor and criminal non-support of a minor. SENATOR RANDY PHILLIPS asked if seniors would be added to minors, under current law. MS. CARPENETI responded that is correct. SENATOR RANDY PHILLIPS asked about anyone else between the ages of 18 and 65. MS. CARPENETI replied the understanding is that a competent adult, who is able to take care of him or herself does not need to be protected from abandonment or non-support. CHAIRMAN SHARP noted a message from Anchorage teleconference regarding an earthquake which just occurred in Anchorage. He asked if Anchorage was still there. Anchorage teleconference responded they are still there. CHAIRMAN SHARP asked if things have stopped shaking. Anchorage teleconference responded, yes, and that the Anchorage Senators' houses are probably still standing. CHAIRMAN SHARP stated the committee would return to business. Number 170 SENATOR RANDY PHILLIPS stated he is trying to establish what laws there are today. Would they only apply to minors and seniors, and no one else? MS. CARPENETI replied the present law applies to minors. SB 211 would establish two new offenses that are similar. SENATOR ELLIS interjected that SB 211 would cover vulnerable adults. CHAIRMAN SHARP asked Ms. Carpeneti to give a review of the amendment from the Department of Law. MS. CARPENETI stated the department is recommending that the offenses be changed to first and second degree endangering the welfare of a vulnerable adult, which would fit into the criminal code better than having the neglect and endangering the welfare of a vulnerable adult. That's basically a drafting change. The one thing it would do, which we've discussed with the sponsor, is if a person violates second degree endangering the welfare of a vulnerable adult, and as a result of that violation causes serious physical injury to the vulnerable adult, it would be considered endangering the welfare of a vulnerable adult in the first degree, and a class C felony. Other than that, this amendment is a drafting suggestion to fit the language into our code a little bit better. Number 200 SENATOR LEMAN noted that the legal analysis of SB 211 from Ms. Otto of the Department of Law misstated a sentence. In paragraph 3, the 4th sentence states "Criminal Neglect of a vulnerable adult prohibits a person from providing essential support...." Senator Leman thinks it should read, "Criminal Neglect of a vulnerable adult prohibits a person from failing to provide essential support...." MS. CARPENETI agreed with Senator Leman. CHAIRMAN SHARP asked if there were any other questions regarding the amendment. MS. CARPENETI commented that on page 2 of the amendment, subsection (b), it should read, "...member or adherent....", not "...member of adherent....". CHAIRMAN SHARP stated that a technical change would be made to the amendment. He asked if there were other questions or comments from committee members. Number 238 MS. CARPENETI informed the committee that the Department of Law supports SB 211. CHAIRMAN SHARP asked Senator Ellis if he endorsed the amendment. SENATOR ELLIS responded he did. SENATOR RANDY PHILLIPS asked about Representative Mackie's bill regarding abuse of seniors. SENATOR ELLIS replied that bill related to personal care attendants and appropriate and inappropriate behavior. Personal care attendants help people avoid institutionalization and stay in their own homes. The next step is these assisted living homes, then nursing homes. So there is a continuum of care we're trying to set up. Assisted living homes is an area of growth right now, and an area where some of these problems have become evident. Number 250 SENATOR RANDY PHILLIPS made a motion to adopt the amendment from the Department of Law. CHAIRMAN SHARP, hearing no objection, stated the amendment was adopted. The amendment will be put into a State Affairs Committee substitute. He asked that people on-line via teleconference begin their testimony. Number 260 BOBBIE WATTS, testifying from Anchorage, stated she is present in memory of her father-in-law, Paul Watts. She stated that the staff at the assisted living home in which she placed her father-in-law was committing horrendous acts of abuse and neglect against frail, elderly persons residing at the home. To her dismay, the crimes of assault and reckless endangerment do not cover neglect in this kind of abuse. Peter Gamache, Assistant Attorney General in the Medicaid Provider Fraud Unit, has discussed with Ms. Watts the need for a specific law to protect citizens who are vulnerable. He stated that it is the law to report abuse and neglect, but that the law goes flat thereafter. Ms. Watts stated that the former owners of the assisted living home in which her father-in-law resided are in Bangor, Maine, happy that Alaska does not have abuse and neglect laws. Had Alaska had these laws, they would never have been able to sell out and flee the state. [Members have in their bill packets newspaper articles and the Long-Term Care Ombudsman's report detailing incidents at the Friendship House, the facility where Ms. Watts' father-in-law was living.] Ms. Watts urged the committee to disallow perpetrators of neglect and abuse to have the freedom to commit such horrendous acts against Alaskan Citizens. Twenty-three states have laws criminalizing abuse and neglect; Alaska is not one of them. The criminal code, as it exists, is inadequate to fight this problem. Ms. Watts stated there are people who oppose SB 211, and she cannot understand why anyone would oppose a bill that protects our elder Alaskans. Abuse and neglect, to whatever degree, is not tolerable. Number 300 DORA DESHKIN, testifying from Anchorage, stated she is testifying on behalf of the Native people who were in the Friendship Home, like her brother, Samuel Pechutin. He was put there because there was no other place to put him. She stated she checked it out for booze and drugs, and everything appeared to be ok. She stated they gave her the nine yards. It breaks her up that if she had not been so naive, she would have looked into her gut feelings. She stated the Friendship Home kept pressuring her for more money. Instead of going to the Native hospital for her brother's medical supplies, they went to Geneva Woods Pharmacy. There weren't supposed to be any bills outside of Alaska Native Hospital for him. The Friendship Home would go so far as going to the Native Hospital to pick up patients. Ms. Deshkin stated it appeared to her that one of the owners' of the Friendship Home was stoned. She hopes something will be done immediately so those people will not get away with what they did. Number 350 JANE ANDREEN, Executive Director, Council on Domestic Violence & Sexual Assault, Department of Public Safety, stated the council is very supportive of SB 211. Vulnerable adults in Alaska continue to be at a high risk for domestic violence and abuse, and the council thinks it's important that as much protection as possible be provided for them. CHAIRMAN SHARP asked if there is anyone else who wishes to testify on SB 211 at this time. Hearing none, he asked the pleasure of the committee. Number 363 SENATOR LEMAN noted that Ms. Watts stated there are people who oppose this bill. He hasn't heard that in the testimony today. He asked if anyone has contacted the committee with opposition to SB 211. CHAIRMAN SHARP stated he doesn't have anything. SENATOR ELLIS does not think the committee will find opposition to SB 211. He thinks what Ms. Watts was referring to was the discussion that took place in the initial stages of developing the legislation. There was discussion over what the best approach would be over protecting vulnerable adults. He never heard anyone state they were opposed to SB 211; it was simply, "Should we do it through the licensing procedure? Should we do it through criminalizing this bad behavior?" He stated he can honestly represent to the committee that he knows of no one who opposes SB 211. Number 377 SENATOR RANDY PHILLIPS asked Ms. Sipe how the situation that led to SB 211 happened. CONNIE SIPE, Director, Division of Senior Services, Department of Administration, stated the division supports SB 211. She thinks that the division was originally one of the groups that was trying to figure out how the legislation would fit in with licensing and with civil adult protective services. We have been working with the sponsor, the Department of Law, and national organizations dealing with elder abuse and have found that it is a growing trend that prosecutors do need some special laws to deal with these situations. She does not excuse what happened in the Friendship House case, but thinks it needs to be looked at in context. Many of the complaints against the Friendship House came about at a particular point in time when DFYS still licensed that home as an adult residential care facility. It was not yet licensed under the new assisted living laws, which became effective on July 1, 1995. The case was problematic for all the government agencies involved. What happened, was there was a legal glitch between the old statute and the new statute. DFYS had the authority to continue any action they wanted past July 1. But if they had started licensing revocation procedures under the old law, the new law would not give the Division of Senior Services any authority on July 1 to not give the Friendship House a license based on what they did under the old law. So what we did was to work together to put the Friendship House under strict monitoring. Adult Protective Services, the Long-Term Care Ombudsman, nurses from Senior Services CHOICE Project, and DFYS took turns doing weekend, night, and holiday visits. And we put conditions on the home then. But then you're trying to shut the door after the horse has left the stable, after some things have changed in the home. On July 1, 1995, the home was put under the new assisted living licensing law on a strict probationary license. They were told they had to come into full compliance with the new law in a month. They started to make those efforts and then quickly looked for a buyer and left the state. State agencies cooperated with the prosecutors' office, and that's when Mr. Gamache started to see that some of the actions didn't seem to fit well under existing criminal laws. So this was a very difficult case, and it happened to come at a very difficult time. If we have another hearing at some point, Ms. Sipe would like to let the committee know that the assisted living homes are something the Division of Senior Services and the Division of Mental Health & Developmental Disabilities licensed since July 1. They have begun to build a whole system of quality assurance, of which this criminal provision will be a part. We are also holding monthly training with the providers. Some of the training will be mandatory, some will be optional. They never had training under the previous licensing program. We are also having a national certification course for 20 administrators that we are helping fund. MS. SIPE stated that assisted living licensed homes are fingerprinted through the regulations. Tracy and Deb Batchelder had criminal background checks; it didn't prevent this from happening. We need to have several laws in place to deal with problems like this. The criminal law should round out some of the legal tools in state statutes. SENATOR RANDY PHILLIPS asked if the Bachelders had criminal records. MS. SIPE responded they did not have criminal records. They got through an FBI check. All the laws passed don't necessarily prevent abuse. They can help prevent it, and they can punish the offenders; they never totally eliminate the risk. CHAIRMAN SHARP noted this is the first legislation where the administration has delivered zero fiscal notes for new criminal violations. He also noted that SB 211 will probably make it through the legislative process in a shorter amount of time than it took to complete the investigation. Number 492 SENATOR RANDY PHILLIPS made a motion to discharge CSSB 211(STA) with accompanying zero fiscal notes [ADM, LAW, COR] from the Senate State Affairs Committee with individual recommendations. CHAIRMAN SHARP, hearing no objections, stated CSSB 211(STA) was discharged from committee. Number 500 CHAIRMAN SHARP brought up consideration of the confirmation of Mary Beth Shaddy to the Alaska Public Offices Commission. He asked Ms. Shaddy to testify. MARY BETH SHADDY, testifying from Anchorage, stated she is a teacher at Dimond High School in Anchorage. She also has an interest in politics. She stated she is available for questions. Number 511 SENATOR LEMAN stated the APOC has been inconsistent in the past, and asked Ms. Shaddy if she has given any thought to how the APOC might be more consistent in its' application of penalties for various violations. MS. SHADDY asked Senator Leman what he meant by the word inconsistent. SENATOR LEMAN asked Ms. Shaddy if she knew what the word meant. MS. SHADDY responded she is familiar with the word. She asked Senator Leman if he could give her a specific example. SENATOR LEMAN gave as an example a campaign that committed violations that are substantial, maybe did not report campaign donations. When the campaign later finds the error and reports that, it gets a $100 fine. Another campaign may unknowingly accept a check that was perhaps inappropriately given. The commission fines that campaign $1,000. He thinks that is inconsistent application of the rules. MS. SHADDY replied it is her understanding that each case is considered individually. She thinks that is the way it should be. SENATOR LEMAN asked Ms. Shaddy if she is saying there should be no regard for past decisions made in determining consistency. Number 530 MS. SHADDY responded she is not saying that. She just thinks that each case should be looked at individually. The mission of the APOC is to investigate and adjudicate complaints. Since she is not familiar with the specific cases to which Senator Leman is referring, she doesn't feel competent to say anything more than that. SENATOR LEMAN stated he was just giving an example. He didn't expect Ms. Shaddy to be familiar with it; it was just made up. Senator Leman stated he is dissatisfied with Ms. Shaddy's response. CHAIRMAN SHARP commented that he has also heard that APOC's penalties have differed greatly under the same offenses. He hopes that type of action is in the past, and that similar offenses will be treated similarly in the future, as far as the penalties that are handed out. Penalties should be enforced to ensure compliance. He urged Ms. Shaddy to look at the history of the APOC and learn from it. Number 557 SENATOR DONLEY commented that every once in a while, figures on APOC reports don't balance. One of the things he's done when that happens is to put a disclaimer on the report stating he knows something's missing, but doesn't know what. His philosophy is to make the best disclosure possible. In the past, the APOC has been understanding of that. He hopes they would continue to be understanding. Number 570 CHAIRMAN SHARP stated he does not have a problem with having to file the APOC reports, but he does have a problem with the frequency with which the format of the forms is changed. He asked that they not change the format so frequently. He urged consistency or detailed explanation of forms. MS. SHADDY noted that there is an ongoing attempt at APOC to become more modern, technically speaking. The commission now has a home page, and the office is attempting to set up contact with offices through e-mail. CHAIRMAN SHARP commented it saves a lot of time for him to simply make extra copies of his APOC reports and supply those to the local newspaper and library. TAPE 96-17, SIDE B CHAIRMAN SHARP asked if there were any other questions or comments regarding Ms. Shaddy's appointment. Hearing none, he thanked Ms. Shaddy for her testimony. Number 580 CHAIRMAN SHARP adjourned the Senate State Affairs Committee meeting at 4:23 p.m.