HB 336-SUPPORTIVE DECISION-MAKING AGREEMENTS  3:36:54 PM REPRESENTATIVE TARR announced that the next order of business would be HOUSE BILL NO. 336, "An Act relating to supported decision-making agreements to provide for decision- making assistance; and amending Rule 402, Alaska Rules of Evidence." 3:38:18 PM REPRESENTATIVE CLAMAN moved to adopt the proposed committee substitute (CS) for HB 336, labeled 30-LS1239\J, Bannister, 2/26/18, as the working draft. 3:38:37 PM REPRESENTATIVE TARR objected for discussion. 3:38:44 PM HANS RODVIK, Staff, Representative Charisse Millett, Alaska State Legislature, paraphrased from the Sponsor Statement [Included in members' packets], which read: With over 100 wards per public guardian Alaska has one of the highest rates of full guardianship in the nation. Studies concerning individuals under full guardianship have found that such individuals were significantly less likely to have any kind of paid employment and are less likely to be integrated into their community, than people provided less restrictive options to full guardianship. Policy makers should engage in efforts to provide adults with intellectual and developmental disabilities (IDD) the needed tools to experience lives with the most autonomy, freedom and independence as possible. The Supported Decision-Making Agreements Act does just that. Designed as a mechanism to enable adults with IDD to enter into newly created legal structures called supported decision-making agreements (SDMA), House Bill 336 will provide a less restrictive alternative to full guardianship for adults with IDD. Guided by the experience of other states, HB 336 will enable adults with disabilities to maintain their rights to make decisions currently being taken away from them by guardianship orders. The philosophy underpinning HB 336 contends that adults with IDD do have and should retain their constitutional and civil rights to live as freely and autonomously as possible. HB 336 will help change the current system in which one person tends makes every decision for adults with IDD, even though those adults have capacity to make many decisions on their own; to a system where adults who can make life decisions with support from others no longer have the right to make those decisions taken away from them by the government. HB 336 will enable OPA to focus its efforts on adults who truly need full guardianship, while providing Alaskans experiencing varying levels of IDD an avenue to live happier and healthier lives. MR. RODVIK pointed out that Alaska had one of the highest rates of full guardianship in the nation, as currently, the Office of Public Advocacy was overwhelmed with a ratio of about 100 wards to 1 guardian. He reported that there were more than 1500 wards in Alaska. He explained that, under full guardianship with a such a high caseload, there was a potential for failure to meet monthly with the ward, potential for abuse, and loss of independence, ambition and self-expression on behalf of the ward. He stated that these concerns were compounded, reporting that individuals with intellectual and developmental disabilities (IDD) under full guardianship experienced significantly less paid employment than those who were independent. In Alaska, he added, there were very few options for those adults who did not need full guardianship to receive any other support in their lives. He declared that the proposed bill would help Alaskans with IDD and the elderly to retain their inherent right to make decisions for themselves and would ensure that the Office of Public Advocacy would be able to spend its time with those who needed the full guardianship. 3:41:25 PM MR. RODVIK paraphrased the changes to the proposed committee substitute (CS), Version J [Included in members' packets] [original punctuation provided], which read: Section 13.56.010, Page 1, Line 9: Deleted "another adult" and added "one or more adults" Section 13.56.010(c), Page 2, Line 1-4: Changed language to clarify that an adult cannot enter into a SDMA if that agreement infringes on the authority of any guardian or conservator but still gives principal the ability to enter a SDMA IF the guardian/conservator approves of it in writing 3:42:28 PM REPRESENTATIVE SADDLER asked that one term be used consistently. MR. RODVIK replied that he would use the word "principal" and he continued to paraphrase from the changes to Version J, which read: Section 13.56.030(a)(2), Page 2, Line 18: Changed the word "the" after "assistance that" to "each" to clarify that a SDMA may have multiple supporters Section 13.56.030(b), Page 2, Line 20-22: Inserted this new subsection to mandate that SDMAs contain 3rd party notification of the rights and obligations of supporters in SMDAs Section 13.56.030(c), Page 2, Line 23-27: Renumbered the section, following insertion of subsection b Section 13.56.040, Page 2, Line 30-31: Removed subsection 3 referencing a form provided by the Department of Health and Human Services. DHSS will not be required to create SDMA forms. Governor's Council on Disabilities and Special Education has agreed to take this on. Also, under subsection 2, line 31 added language "the agreement?" 3:44:13 PM REPRESENTATIVE SULLIVAN-LEONARD asked for clarification on Section 13.56.030(b) that SDMA referred to supported decision making agreements. MR. RODVIK said that was correct. 3:45:04 PM MR. RODVIK returned to the explanation of changes, which read: Section 13.56.040, Page 3, line 2-6: Renumbered subsection "4", to subsection "3." Section 13.56.040, Page 3, line 8-9: Added new subsection "4," which provides safeguards by ensuring that a principal who also has a guardian or conservator must notify them of the SDMA for the agreement to be valid Section 13.56.060(b), Page 3, line 22-24: Added "supported decision-making" before "agreement" Section 13.56.070, Page 3, Line 25-30: Grammar edits in this section. Keeping consistency throughout bill, by adding "supported decision-making" before "agreement" Section 13.56.080, Subsections A-D, Page 3, Line 31- Page 4, Line 14: Removed subsection "c" referencing the superior court's ability to terminate or limit a SDMA, as these are private agreements and decision-making right are retained by the principal. Capacity is inherently retained by principals under SDMAs. SMDAs do not grant decision making authority away. Superior Court doesn't have authority over these agreements a) Clarifies that either a principal or supporter may terminate all, or a portion of a SDMA at any time b) Termination process of all or part of a SDMA must be in writing, signed, and such signing must be presence of two witnesses who also sign the termination paperwork, or the signature must be notarized c) Renumbered as subsection "c" from "b includes language noting that a principal or supporter can terminate all or a portion of a SDMA d) New subsection. If certain parts of a SDMA are terminated, the entire SDMA is not terminated, and the untouched parts remain in effect Section 13.56.100(2), Page 4, Line 24-25: Strikes out "to manage the principal's affairs", replaced with "for the principal to manage the principal's affairs". Supporter isn't managing principal's affairs principal is managing their own affairs with assistance by supporter is specific areas Section 13.56.110, Page 5, Line 11: Inserted new subsection "3." Prohibits a supporter from signing or providing an electronic signature for the principal. Renumber other subsections accordingly Section 13.56.140(3), Page 6, Line 14-15: Removed the language "conscience or" on concerns that this language might have been unconstitutional/discriminatory 3:48:30 PM REPRESENTATIVE TARR asked to describe the changes on page 6, line 12. MR. RODVIK read the language in the original bill, "declining to comply with an authorization related to health care in a supported decision-making agreement if the person is declining because the action proposed to be taken under the agreement is contrary to the conscience or good faith medical judgement," and he shared that "to the conscience" was removed. REPRESENTATIVE TARR asked why this was removed. MR. RODVIK replied that there were concerns that this might create avenues of discrimination and some constitutional questions. 3:50:29 PM MR. RODVIK returned to the explanation of changes, which read: Removed Section 13.56.150 "Principles for providing decision-making assistance," Page 6 of original bill (Version D), Line 11-24 and renumbered sections accordingly. This language is stated better in the Shared Vision bill and shouldn't have to be stated -- we are talking about people with full agency, so these are already inherent rights 3:51:18 PM ANNE APPLEGATE, Program Coordinator, Governor's Council on Disabilities and Special Education, offered her belief that this section was about stating some general principles for the underlying mission for this change of direction. She reported that this was better stated in the shared vision and that it was determined to be unnecessary and overly burdensome to be written into the proposed bill. REPRESENTATIVE TARR stated that this was removed in Version J. MR. RODVIK returned to the explanation of changes, which read: Section 13.56.150, Page 6, Line 19-27: Removed subsection "a" referencing the superior court for same reasons state previously, and renumbered subsections accordingly MS. APPLEGATE, in response to Representative Tarr, explained that this resulted from a conversation with Nancy Meade, General Counsel for the Alaska Court System, and it was decided to remove it as this was a private agreement and the court would not supervise the relationships involved. REPRESENTATIVE SULLIVAN-LEONARD suggested that this "opens up the question then if something does happen where there's a certain sense of liability or maybe injury to a principal, that does not exclude then the Superior Court's involvement with judicial oversight." She asked if this was correct. MS. APPLEGATE said that it did not because the opinion after analysis of other statutes was that there could be a tort action for negligence on the part of a supporter, if there were damages that resulted to a principal from a failure to comply with what they had agreed to and declared to support in that agreement. She opined that would be a standard, ordinary negligence, and would have to be determined by a court. She added that, although there was not a legal opinion, this was the direction it would go. She acknowledged that, although the court would have authority, that authority did not need to be stated in this proposed bill as it was well established in other places. 3:54:47 PM MR. RODVIK returned attention to the explanation of changes, which read: Removed Section 13.56.185 "Regulatory authority; forms," Page 8 of original bill (Version D), Line 9- 11: Deleted this section as DHSS won't be necessary to create forms or regulate these private capacity agreements. Governor's Council on Disabilities has offered to produce SDMA forms REPRESENTATIVE TARR directed attention to page 6, line 28, and asked for discussion. MR. RODVIK replied that that no changes were made, that this section dealt with the affairs of a principal that an SDMA could cover, and anything related to work, health care, support services, education, finances, living arrangements and more were all discussed. REPRESENTATIVE TARR said that this was important to the proposed legislation. She asked how this became the comprehensive list for an SDMA. MR. RODVIK explained that this list had been compiled from examples from other states and successful SDMA projects. 3:57:20 PM MS. APPLEGATE clarified that this list had come from the Delaware statute and that Massachusetts had created an agreement in the absence of a statute authorizing it. She said that the Delaware statute was based on a non-profit study and was now used as a template. This was a description to offer suggestions for what might be included, and she declared that none of the agreements had to include any or all of these, as they were individualized to the needs, preferences, and circumstances of the person in the center. She compared this to a laundry list or menu for choice. 3:58:38 PM REPRESENTATIVE SADDLER said that he did have some general questions about the proposed bill once the changes were discussed. 3:59:04 PM REPRESENTATIVE TARR asked about Section 13.56.170 [page 7, line 14 of Version J]. MR. RODVIK explained that this contained the list of support services, as referenced in the previous section, that supporters may provide the principal as agreed upon by the SDMA. He pointed out that this was not a fully inclusive or exclusive list, but individualized agreements which could be narrow or broad in scope. 3:59:52 PM MR. RODVIK, in response to Representative Tarr, said that Section 13.156.185 was removed in Version J. He explained that Department of Health and Social Services was not needed to create the forms or regulate the private capacity agreements. REPRESENTATIVE SADDLER directed attention to page 7, line 14, and asked for clarification that these were not exclusive, and the list could be expanded. MR. RODVIK said, "that is correct." REPRESENTATIVE TARR mused that the regulations were not necessary because there was a sample form available. 4:01:07 PM MR. RODVIK returned attention to the proposed changes, which read: Section 13.56.190 (4), Page 8, Line 7-8: Added new definition of "conservator" to include a conservator in another state Section 13.56.190(6), Page 8, Line 10-11: Added new definition of "decision-making assistance" Section 13.56.190(7), page 8, Line 12-13: Added new definition of "guardian" to include a guardian in another state 4:02:16 PM MR. RODVIK directed attention to page 8, line 28, the short title of the proposed bill, the Supported Decision-Making Agreements Act. He discussed page 8, line 30, and the Alaska Rules of Evidence to clarify that the execution of a supported decision-making agreement cannot be used as evidence of a principal's incapacity. Moving on to page 9, line 6 of Version J, he stated that it was necessary to receive a two-thirds vote of each house to go into effect. REPRESENTATIVE TARR pointed out that everything in the proposed bill was found in Section 1, and that none of the provisions could be adopted without the two-thirds majority vote. 4:03:49 PM REPRESENTATIVE TARR removed her objection. There being no further objection, Version J was adopted as the working draft. 4:04:06 PM REPRESENTATIVE SULLIVAN-LEONARD asked about the effective changes in [Court] Rule 402. MR. RODVIK explained that Court Rule 402 was a five-paragraph information piece related to exceptions and admissible evidence [Included in members' packets]. REPRESENTATIVE SULLIVAN-LEONARD said that she would continue her review and that she supported the intent of the proposed bill. She declared that it was "pretty convoluted between the two bills, between the initial one and the committee substitute." 4:05:22 PM REPRESENTATIVE SADDLER asked about the universe of Alaskans who would qualify for SDMAs. 4:05:38 PM MS. APPLEGATE replied that there were two discreet categories. The first was people who did not have any guardianship, limited guardianship, or conservative order that they were the ward under. This group of people could create an agreement with one or more supporters which described in detail, specific to their circumstance, what kind of help they may desire. She explained that the second category were people who had "some kind of order, whether it's a guardianship order or a conservatorship order." She stated that these people, with the signed authorization of their guardian, could engage in the process of creating the document and experience the process of decision making although in a shared decision-making encounter and under the oversight of that guardian. REPRESENTATIVE SADDLER offered his belief that the "thrust of the bill is to provide support for those who are not in a position to make every decision for themselves." He stated that inclusion in the proposed bill for people with no guardianship issues raised it to "a very interesting level." He suggested that this might be a lot to do. MS. APPLEGATE explained that they did not want to exclude the senior trying to plan for advancing age, while trying not to rely on a single individual; but, to instead, plan their process of needing more support as they aged. She opined that the requirement of verification of disability put people in the position of validating their needs. She stated that this was "not extending any additional rights to some protected group" and should not require any proof of that need. 4:08:43 PM REPRESENTATIVE SADDLER asked if other states, jurisdictions, or countries were employing this type of agreement. MS. APPLEGATE replied that Texas has had a supported decision- making agreement act since 2015 with no criminal or civil actions, and no full guardianships. She added that Delaware, British Columbia, and Australia also used this program. She pointed out that, in Australia, there was a second tier of supporters. REPRESENTATIVE SADDLER asked if these all included people without any guardianship or conservatorship. MS. APPLEGATE offered her belief that this was the case in Texas, and, even if the statute articulated for people with disabilities, people were using them prior to diagnosis and as a part of planning for the aging process. 4:10:21 PM REPRESENTATIVE SADDLER asked if this would be difficult for people to understand who were already having a difficult time assessing and making decisions. MS. APPLEGATE opined that it was necessary to educate families and other supporters, while describing the process for support. She shared that this process would begin by articulating long term goals and helping someone understand what was currently being done for the decision making. This would lead to a creation of a statement in conjunction with a personal centered plan. She offered her belief that, as people knew what help they needed and wanted, it was just a matter of helping them articulate that. REPRESENTATIVE SADDLER suggested that, as the legislature would need annual feedback to see how it could be made better, he might offer an amendment to include that requirement. 4:12:44 PM REPRESENTATIVE SULLIVAN-LEONARD shared that the proposed bill offers a sense of ease for family members to aid in gathering information for their loved one and the extra set of hands to assist in the stages of their loved one. She asked Ms. Applegate to offer examples. 4:13:45 PM MS. APPLEGATE explained that in some government processes the interview process was deemed confidential and, in that circumstance, the only accompanying people were a guardian or a formal interpreter. If someone merely needed help articulating or sequencing a set of events, this could create obstacles for many government processes. REPRESENTATIVE SULLIVAN-LEONARD asked if someone could opt in or opt out as a supporter. MS. APPLEGATE said that she was not sure, but she offered her belief that it would be necessary to give notice for termination of obligation. REPRESENTATIVE SULLIVAN-LEONARD mused that there would be a provision for multiple caregivers in the proposed bill. MS. APPLEGATE stated that there was a provision for a substitute supporter. MS. APPLEGATE said that the majority of members of the Governor's Council either experienced disabilities or were parent guardians of people with disabilities. 4:18:42 PM RICK BENJAMIN, Director of Organizational and Spiritual Wellness, Hope Community Resources, explained that Hope Community Resources was doing a pilot project in collaboration with the Governor's Council and the Disability Law Center. He stated that supported decision making was based on the simple concept that everyone had people we trusted for medical, financial, and other advice. He stated that these agreements just made it formal, official, and legal. He opined that, although Alaskans liked to be independent, we did rely on others that we trust. He shared that Hope Community Resources had chosen the Massachusetts model, and he read a few supportive quotes for that model. He declared that he was very excited for this proposed bill. 4:21:40 PM IAN MINER shared a personal anecdote about his parents taking guardianship for him when he turned 18 years of age. He reported that, when he attempted to remove the guardianship order when he turned 23 years of age, it took more than 2 years of hearings to accomplish. He shared that, had the option for supported decision-making agreements been available when he was age 18, he would have chosen it. This would have given him both the help and advice he wanted as well as the rights when he wanted them back at age 23. He stated that he now recognized that he had not needed a full guardianship, only some guidance. 4:24:28 PM JEANNE GERHARDT-CYRUS, Governor's Council on Disabilities and Special Education, shared a personal anecdote, stating that she was the parent of multiple children with pre-natal exposure to alcohol. She relayed the story of her 19-year-old daughter, Ivy. She reported that her daughter had some decision-making instances for which she was not comfortable or did not currently have the skills, related to major financial purchases, health, benefits, and her future. She noted that her daughter consulted with others having more knowledge to receive their input and did not have the need for a full guardian. She pointed out that she could not participate in some of these discussions, or act in her daughter's behalf, without legally sanctioned, supported decision making. She noted that with this sanction, she could help her daughter to remain calm, reduce her anxiety, and effectively articulate her desires and needs. She explained that, although her daughter did not require a full guardian, she was not yet totally independent. She declared that there should be an option "to flex her support as she matures, and her independence increases" as currently the option was all or nothing. She explained that there should be the option for her daughter to decide what she needs, and this should be adaptable to her needs as she matures. 4:27:42 PM LINDA GOHL, AARP, said that the proposed bill could be beneficial to older Alaskans and their family members, as it would allow the principal person to have a choice for whom they designate to support and assist them. She pointed out that a family member may not always be the one selected, as this decision was based on trust. She shared some anecdotes. She clarified that the proposed bill did not replace a durable power of attorney. She noted that the principal person could also have a team of people for support. She pointed out that an older person who never married may be in a situation of needing help and the public guardianship system "may not be exactly appropriate and this would give them some other options." 4:31:42 PM ART DELAUNE shared a personal anecdote and expressed his concern that, as he aged, his son with fetal alcohol spectrum disorder would not have the opportunities for a supported decision-making process. He declared his support for a team of advocates. He stated his support for the proposed bill. 4:36:16 PM REPRESENTATIVE SADDLER asked if there was any downside to a supported decision-making agreement. MR. DELAUNE offered his belief that it was important for his son to choose the right people to be on his team. 4:37:31 PM HEIDI KELLY, Governor's Council on Disabilities and Special Education, stated that she, her son, and her daughter were all on the autism spectrum. She declared that autism did not define who she was or who she would continue to become, and that she used her voice on the Governor's Council as an autistic speaker advocate. She shared her accomplishments, stating that she hoped these would inspire others. She pointed out that, as full guardianship takes away your voice and would not have allowed her to make her own decisions with proper education, she would not be who she had become. She stated that full guardianship did not work for her family, but a supported decision-making agreement allowed them to have a voice over their own lives. She declared that they deserved a community that helped with everything possible to achieve their very best. She stated her support for the proposed bill. She emphasized that it was "illogical to not use the power you have to do the job you signed up for, which is to make a difference for all Alaskan people." 4:41:21 PM REPRESENTATIVE TARR opened public testimony on HB 336 and stated that she would keep it open. REPRESENTATIVE TARR announced that HB 336 would be held over.