Legislature(1995 - 1996)

03/07/1996 03:36 PM STA

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

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