HOUSE BILL NO. 252 "An Act relating to the construction of certain statutes relating to children; relating to the scope of duty and standard of care for persons who provide services to certain children and families; and providing for an effective date." RYNNIEVA MOSS, STAFF, REPRESENTATIVE COGHILL testified in support of the legislation. She provided members with proposed committee substitute, work draft LS0454\R, 4/12/02 (copy on file). She reviewed the committee substitute. A new section was added on page 5, line 3 to state: The state and the state's and agents may not be held civilly liable for money damages for failure to perform a duty imposed under this chapter solely on the basis that the duty was not performed within a time period specified under this chapter. Ms. Moss maintained that children and their parents should be able to sue the state when it wrongful abuses its power. She observed that the Division of Family and Youth Services has more power over more vulnerable Alaskans than any agency in government. The sponsor, Representative Coghill, believes that means they should be held most accountable. Ms. Moss observed that remedies for children and parents should include equitable relief, which the proposed committee substitute does. This means that they have a way to make government do what is right. They should also have the ability to recover civil damages for losses due to government's failure to fulfill duties assigned by the legislature. Ms. Moss referred to language recommended by the Department of Law. She asserted that the department's language continues to protect government from full accountability for wrongful conduct that can have a devastating impact on children and families. It would allow government to escape liability for the failure to comply with the duties in statute. The duties include the duty of the state when it acts as a child custodian to fulfill the duties of a custodian just as parents are expected. These duties include providing for safety, care, nurturance, and education of children. When the state takes a child from its family it should be fully accountable while performing the same duties that parents are legally obliged to provide. Government should be more alert and assertive in performing its duties to children, families and parents. Because the Department of Law has failed to come up with statistics on monetary suits, they are assuming that there are very few cases brought against the Division of Family and Youth Services. She maintained that the legislation places into statute what most Alaskans already believe is the case: that when government takes a child into custody, they are accountable for their actions on as close to as level a playing field as parents are liable. The proposed committee substitute allows flexibility in meeting timelines in dealing with court requirements, something that parents do not have. While the Division of Family and Youth Services does not have the ability to level monetary damages for failure to care, they have the more extreme ability to take their children away from their parents. Representative Harris MOVED to ADOPT work draft LS0454\R, 4/12/02. There being NO OBJECTION, it was so ordered. Representative Hudson stated his intention to change the effective date from July 1, 2002 to July 1, 2003 for sections 3-6 and 8-9. He noted that this would delay the implementation of the "intensive family preservation services" until 2003, while allowing the study to go forward. He noted that he supports the legislation but observed that there have been concerns regarding the date of implementation. He expressed concern that a 2002 implementation date would disrupt current services. There is no new funding for the provisions. He observed that 24-hour services would require additional staffing. The next legislature could change to an earlier implementation date. Sections 7 and 10 would retain the July 1, 2002 effective date. Representative John Coghill spoke in support of the delayed effective date. Representative Hudson MOVED to ADOPT Amendment 1: delete "2002" and insert "2003" on page 7, line 5. Representative Davies referred to language on page 4, beginning on line 17: The department need not provide services to an otherwise eligible family if (1) services are not available in the community in which the family resides; or (2) services cannot be provided because the program is filled to capacity." He concluded that the concerns being raised by the amendment are already addressed in the legislation. The legislation reflects the practicality of whatever funding is available. Representative Hudson responded that persons under contract to provide the services feel that there is an implied mandate to move into the intensive family preservation services to the harm of the existing services, primarily because only $50 thousand dollars was added in the fiscal note (to provide for the study). Representative John Davies argued that there might be opportunities for the department to implement the provisions and questioned why prevent them from doing so when they can. He pointed out that there is already language that clarifies that there is no requirement to do so if the money is not available. TERRI LAUTERBACH, ATTORNEY, ALASKA LEGISLATIVE AFFAIRS AGENCY, JUNEAU, provided information regarding the legislation. She explained that section 10, which would still go into effect on July 1, 2002, reflects the definition of intensive family services in section 8. Section 8 only includes the definition and should have the same effective date. Representative Hudson concluded that sections 3 - 6 and 9 would be delayed to July 1, 2003. Sections 8 and 10 would have a July 1, 2002. Ms. Lauterbach noted that section 7 has not been addressed and would therefore be a 90-day effective date. Co-Chair Williams repeated the motion to amend: * Sec. 11. Sections 1 and 2 of this Act take effect under AS 01.10.070(c). * Sec. 12. Sections 8 and 10 of this Act take effect July 1, 2002. * Sec. 12. Sections 3-6 and 9 of this Act take effect July 1, 2003. Ms. Moss observed that the sponsor would prefer section 7 to have an immediate effective date. Vice-Chair Bunde requested the amendment in writing. HB 252 was HELD in committee until later in the meeting. HOUSE BILL NO. 252 "An Act relating to the construction of certain statutes relating to children; relating to the scope of duty and standard of care for persons who provide services to certain children and families; and providing for an effective date." Representative Hudson restated his Motion to ADOPT Amendment 1. * Sec. 11. Sections 1 and 2 of this Act take effect under AS 01.10.070(c). * Sec. 12. Sections 8 and 10 of this Act take effect July 1, 2002. * Sec. 12. Sections 3-6 and 9 of this Act take effect July 1, 2003. Representative Hudson noted that there would be substantive changes with the legislation. The effective date of July 1, 2002 would be too fast without additional funding. The Department would have to perform intensive family services. The amendment would allow the study to occur and the services to be provided subsequent to the study. He maintained that the amendment would put a proper time sequence into the bill to effectively accomplish the goal. Section 10 would implement the study. Section 8 defines the program. THERESA TANOURY, FAMILY SERVICES ADMINISTRATOR, DIVISION OF FAMILY AND YOUTH SERVICES, DEPARTMENT OF HEALTH AND SOCIAL SERVICES discussed the study. The legislation would require the Division to study who would be eligible for services in each of the regions and who would benefit from these types of services. She stressed that the Division does not have the funding to implement the services under their existing appropriation. Implementation under their existing appropriation would cause undue hardship to many families and children that receive these types of services. She spoke in support of the amendment. There being NO OBJECTION, Amendment 1 was adopted. Representative Croft MOVED to ADOPT Amendment 2. Co-Chair Williams OBJECTED. Representative Croft explained that the intent of Amendment 2 would be to clarify the limitation and liability section. Under the current statute the state is not liable for violations of the provisions. The intent is to prevent huge liability costs, by making every conceivable technical violation of the statute actionable, while preserving the ability of children and families to assure that things are done properly. The amendment states that the department has a duty to exercise reasonable care toward children in its custody. The amendment also states that failure to comply with a provision of the title does not constitute a basis for civil liability. Children and their families would still be able to use file under the CINA proceedings. Ms. Moss stressed that the language in Amendment 2 continues to protect the government from full accountability for wrongful conduct and could have a devastating affect on children, families and parents when a child is in state custody. She maintained that the amendment allows the government to escape liability for failure to comply with the provisions of the title. She observed that Representative Coghill's legislation addresses timelines but also acknowledged that the state has the responsibility of physical care and control of the child, determination of where and with whom the child shall live, the right and duty to protect, nurture, train and discipline the child; the duty of providing the child with food, shelter, education and medical care; and the right and responsibility to make the decisions of financial significance concerning the child. She concluded that the department would not have to comply with the legislative standards and the department could not be held monetarily accountable if their actions hurt families. She questioned what provisions of the title the legislature not want the department to be accountable for. She acknowledged the department's difficulty in following court dates, but emphasized that they need to be accountable for the duties and standards to children. Parents are held accountable and their punishment is much more severe. Ms. Lauterbach observed that the second sentence of the amendment needs clarification. She questioned who would be covered by the "factor to comply." There are lots of entities covered under the title: including shelters, programs for run away children, courts and schools. She observed that the Alaska Temporary Assistance Program, civil commitment, interstate compact on the placement of children, delinquency institutions and childcare facility licensure come under the title. The amendment would provide that failure to comply with any of the provisions would not be the basis for civil liability, if the family involved were also served by CINA. Representative John Davies thought that the department would still be accountable through the legal system. He questioned the remedy of civil damages. He did not see the nexus between civil liability and the care of the child. He pointed out that the removal of children from parents is not meant as a punishment, but is intended to protect the child. Vice-Chair Bunde questioned the threshold for civil action against the state. Ms. Lauterbach clarified that Title 9 addresses the distinction between a discretionary and mandatory duty. If the state under takes to do an act, it must act without negligence. It would have to be a mandatory act. The decision to put a sign on a dangerous road could not be sued, but the failure to put the sign up properly could be litigated. The choice of services is discretionary, but if they decide to provide a service, than it must be provided without negligence. Ms. Moss emphasized that the Division of Family and Youth Services is on the same legal ground as any other state entity. This is the only place where specific law would state that there is no duty or standard of care; other entities are not exempted from duty or standard of care. The agency would be dealt with differently than any other. She observed that parents might come to two or three visitations in a row without being able to see their kids. A roll call vote was taken on the motion. IN FAVOR: Croft, Davies OPPOSED: Bunde, Foster, Harris, Hudson, Lancaster, Whitaker, Williams, Mulder Representative Carl Moses was absent from the vote. The MOTION FAILED (2-8). Vice-Chair Bunde referred to section 4 and questioned if there would be a separation of power issue. If the court concludes that continuation of reasonable efforts of the type described in (a) of this section are not in the best interests of the child and intensive family preservation services were not provided in the case, the court shall enumerate in the record the reasons the services were not provided. Ms. Lauterbach observed that the decision is left to the court. The proposed committee substitute would ask that the findings be in the record. Representative Foster MOVED to report CSHB 252 (FIN) out of Committee with the accompanying fiscal note. CSHB 252 (FIN) was REPORTED out of Committee with a "do pass" recommendation and with previously published fiscal note: HSS (#1).