HB 162-DHSS CENT. REGISTRY;LICENSE;BCKGROUND CHK  3:35:45 PM CHAIR SPOHNHOLZ announced that the final order of business would be HOUSE BILL NO. 162, "An Act relating to criminal and civil history requirements and a registry regarding certain licenses, certifications, appeals, and authorizations by the Department of Health and Social Services; and providing for an effective date." 3:36:09 PM STACIE KRALY, Chief Assistant Attorney General, Statewide Section Supervisor, Human Services Section, Civil Division (Juneau), Department of Law, offered a brief overview of HB 162. She noted that participation in many federal programs such as Medicaid and foster care required that states conduct criminal background checks before licensure or payment for services. Department of Health and Social Services has been doing background checks for many years, and, in 2005, the Legislature passed a bill which codified a background check process for all persons who were paid for in-whole or in-part by the Department of Health and Social Services, as noted in AS 47.05.300. Since then, the background check was conducted in two parts: first, a fingerprint based criminal history check for all state and federal criminal offenses; second, a civil history check of various data bases, some federal and some state. This was required for anyone applying to be a foster parent or a personal care attendant, among others. She reported that several gaps, overlaps, and inconsistencies had been identified and addressed through the regulatory process. The remainder of these issues needed to be fixed in statute. 3:38:44 PM MS. KRALY explained that the proposed bill clarified that a civil history check was a check of already existing registries, and that a stand-alone registry or database was not being created as it was not operationally or fiscally feasible. It also clarified that background checks were required of licensed entities, as well as the owners and the workers. She said that the proposed bill further renamed the two existing registries, one of which was currently called the central registry and the other was called the centralized registry. These two registries would be renamed the civil registry and the child protection registry. She added that the proposed bill made amendments to AS 47.32, the licensing provisions of the Department of Health and Social Services. She explained that this allowed licensing investigators to share licensing investigations with law enforcement when there were concurrent investigations. She added that another change would allow the three licensing divisions to share information. 3:41:28 PM MS. KRALY stated that this would allow the division to investigate individuals who were accused of abusing, neglecting, or exploiting an individual in care. 3:42:46 PM MS. KRALY paraphrased from the Sectional Analysis [Included in members' packets], which read: Section 1. This section would make conforming edits to rename the centralized registry to the civil registry to avoid confusion under the current law with the centralized registry (AS 47.05.330) and the central registry in AS 47.17.040 (see section 14). Sections 2 and 3. These sections would amend AS 47.05.310(d) and 47.32.310(d) to clarify that barrier crimes apply to individuals as well as entities. Section 4. This section would amend AS 47.53.310(e) to allow an individual to seek a background check; under the current law only entities can seek a background check. This section would also remove, at the request of the Department of Public Safety, the designation of the Department of Health and Social Services (DHSS) as a criminal justice agency for purpose of the background check program. Section 5. This section would amend AS 47.05. 310(f) to make it clear that the DHSS may, in addition to exceptions to the barrier crime provisions, approve a variance for a barrier crime. Section 6. This section would amend AS 47.05.310(h) to address how a non-licensed provider, such as a relative who is receiving payment by the Office of Children's Services, is treated under the statute. This amendment would make it clear that such providers, while not being paid by DHSS, are still subject to background checks prior to placement. Section 7. This section would make a conforming edit to AS 47.05.310(i) to rename the centralized registry to the civil registry (similar to section 1). Section 8. This section would add a new section to AS 47.05.310 to address immunity from civil or criminal liability for reporting during the background check process. Section 9. This section would provide a similar framework for the civil registry checks as background checks (see AS 47.05.310). This means that the same process applies to a person who is found to have a barring criminal conviction under AS 47.05.310 as well as a barring civil finding under AS 47.05.330. Section 10. This section would be repealed and reenacted to outline how the department will review existing registries, rather than create yet another separate database. This section would also identify what DHSS will be looking for in terms of civil findings that are inconsistent with licensure or payment (e.g., CINA findings, terminated from DHSS for assaultive/neglectful or exploitative behavior). Information contained or obtained via the registry would be confidential and not subject to a public records request. Section 11. This would amend the current immunity section to reflect the change to civil registry from centralized registry. Section 12. This would establish a new section to address the ability to seek a variance for any finding under this chapter and how to appeal a decision if you disagree with any decision made by DHSS. Section 13. This section would amend AS 47.05.390(6) to expand the definition of entity to include an individual service provider. Section 14. This section would rename the central registry maintained by the Office of Children's Services to the child protection registry to avoid confusion. It also clarifies what is maintained on this registry, including substantiated findings under AS 47.10 or AS 47.17. Section 15. This new subsection would clarify that before a substantiated finding can be placed on the child protection registry the person must have been afforded notice of the finding and the opportunity to challenge the finding. Section 16. This section would make a conforming edit to AS 47.32.010(c) replacing centralized registry with civil registry (similar to section 1). Section 17. This section would amend AS 47.32 to provide authority for DHSS to consider prior adverse licensing findings in determining whether to grant or deny a license or whether to place a condition on a license. Section 18. This would add a new section to make it clear that when there is an allegation that an employee or individual affiliated with a licensed entity is alleged to have engaged in any behavior that would impact the safety or welfare of a resident, the department may investigate that individual and issue a report on the findings of that investigation. This section would further provide that if a finding of abuse or neglect is substantiated then that finding will be part of the civil registry process and may result in a person being prohibited from employment or licensure in the future. This section would also make it clear that before such a finding can be used, due process must be afforded. Section 19. This is technical fix that would clarify when formal hearings are required when an enforcement action is taken after a licensing investigation. Section 20. This would add a new section to clarify that that when law enforcement is investigating a crime that is also the subject of a licensing investigation, the material gathered by DHSS may be shared with the law enforcement as a matter of law. Section 21. This section would clarify that all divisions who implement AS 47.32 may share information with each other for the purpose of administering the licensing programs at DHSS. Section 22. This section would repeal reference to provisions of the current law that are no longer necessary or have been determined to be superfluous. Specifically, the section would repeal the reference to the civil registry when doing a background check, references to DHSS as criminal justice agency, and statutes stating an administrative hearing is not required when the enforcement action sought is a plan of correction. Section 23. This is an applicability section for purposes of applying the criminal and civil background checks before, on or after the effective date of this act. Section 24. This section would advise the revisor regarding title changes to reflect amendments in this act, including the change to include the civil history registry. Section 25. This provides for an immediate effective date. 3:50:25 PM REPRESENTATIVE EASTMAN directed attention to Section 20 of the Sectional Analysis and asked how it would work for sharing information between multiple investigations. MS. KRALY, in response, said that the most obvious circumstance was a crime committed at a licensed entity, such as an assisted living home, resulting in an immediate response by multiple agencies and a concurrent investigation. Currently, in such a case, law enforcement would ask for the licensing files although the provisions that were confidential could not be shared even though there was an ongoing criminal investigation. 3:51:56 PM REPRESENTATIVE KITO expressed his concern for privacy. He mused that it was necessary to attain a formal legal document to get information, and, as this document would have provisions for accountability, the individual receiving information would be aware of the confidentiality and privacy requirements for this information. He asked, if this privacy requirement were removed, who would ensure that the individual requesting information was accountable. 3:53:07 PM MS. KRALY, in response, explained that confidential information existed throughout the Department of Health and Social Services, although she was not aware of how the DHSS dealt with this. 3:54:00 PM REPRESENTATIVE KITO expressed his concern that any situation which authorized "more eyes to see particular pieces of information" was "making the opportunity for the release of that information increase." He asked to ensure that, as there was no side of accountability for individuals to request legal documents, there were provisions in place to maintain the privacy and confidentiality. 3:54:59 PM MARGARET BRODIE, Director, Director's Office, Division of Health Care Services, Department of Health and Social Services (DHSS), explained that the department had many different types of security, that the background check was from the Federal Bureau of Investigation (FBI), and this was all contained in a log to ensure that "people have only gone where they need to go." She reported that should any document be missing, this would be reported to the Office of the Attorney General and to the Department of Public Safety. She added that a full investigation would be conducted through Department of Health and Social Services and the "state's IT office," as well as the Department of Public Safety and the FBI. The Office of the Attorney General would "wrap it all up." REPRESENTATIVE KITO asked if the individual accountability procedures were applicable if "we remove the firewall of having to request information from another silo through a legal process." MS. BRODIE replied that there were still the same requirements and accountability. 3:56:56 PM REPRESENTATIVE SADDLER (alternate) asked, "How many bad apples are now slipping through the cracks... how many people are getting licensed that having more consistent, broader, and efficiently applied licensing background checks is going to fix." He requested a description of the seriousness of the problem. MS. BRODIE, in response, explained that if an individual had any finding in their background check, they were denied clearance. She noted that they could then go through a variance process involving all the divisions within the Department of Health and Social Services to show mitigating circumstances and to allow explanations for why this finding was no longer an issue. She explained that this explanation was reviewed by a committee, a recommendation was made to the division director, and a recommendation was then brought to the commissioner. 3:58:08 PM REPRESENTATIVE SADDLER (alternate) asked Ms. Kraley how many people this bill would catch. MS. KRALY offered some individual statistics for FY17, reporting that 23,175 individuals submitted information for the background check process at DHSS. Of those, about 3.2 percent, 556 individuals, had barring conditions. Of these 556 individuals, 185 individuals had requested variances and 158 of those individuals had received approval for variance. REPRESENTATIVE SADDLER (alternate) asked how big was the problem that was being addressed by the proposed bill. MS. KRALY acknowledged that there was not a problem for that purpose, as those with criminal and civil histories that were inconsistent with licensure and had a predictive factor for use, neglect, or exploitation were being identified. She opined that the program, as it was designed, worked exceptionally well. She declared that the proposed bill was designed to clean up some language and some confusion within the statute and within the process, so this was more understandable for the applicants. She added that this allowed a clean-up for language and identified gaps. She noted that these issues had been identified many years earlier. 4:01:34 PM REPRESENTATIVE SADDLER (alternate) pointed out that this was not a huge problem that needed to be addressed although it was making a system work better. 4:01:52 PM REPRESENTATIVE TARR asked about the limitations to the multiple state data bases for integrated information sharing. 4:03:20 PM MS. KRALY said that efficiency was a good topic although it was beyond the scope of the proposed bill. She explained that the criminal background checks were performed by stand-alone data bases, and she opined that these were not integrated and did not access each other. She stated that the data bases accessed for civil history purposes were civil findings unless you were convicted of Medicaid fraud. She declared that these were efficient registries although they were not interactive. 4:05:16 PM CHAIR SPOHNHOLZ said that HB 162 would be held over.