HB 127-OMBUDSMAN    2:26:30 PM CHAIR KELLER announced that the final order of business would be HB 127, "An Act clarifying that the Alaska Bar Association is an agency for purposes of investigations by the ombudsman; relating to compensation of the ombudsman and to employment of staff by the ombudsman under personal service contracts; providing that certain records of communications between the ombudsman and an agency are not public records; relating to disclosure by an agency to the ombudsman of communications subject to attorney- client and attorney work-product privileges; relating to informal and formal reports of opinions and recommendations issued by the ombudsman; relating to the privilege of the ombudsman not to testify and creating a privilege under which the ombudsman is not required to disclose certain documents; relating to procedures for procurement by the ombudsman; relating to the definition of 'agency' for purposes of the Ombudsman Act and providing jurisdiction of the ombudsman over persons providing certain services to the state by contract; and amending Rules 501 and 503, Alaska Rules of Evidence." [Before the committee was CSHB 127(STA).] 2:26:39 PM CHAIR KELLER explained that the Ombudsman's Office is in the legislature, and HB 127 is a bill "about who we are." Within HB 127 were points of tension, "so we, basically, went back and took out the parts that we feel are controversial." He advised that the committee substitute is "streamlined" and has a chance of passing through the House and Senate before the end of this session. He remarked that during the interim the Ombudsman's Office will be reviewed on a deeper level. 2:27:52 PM The committee took a brief at-ease. REPRESENTATIVE PRUITT said the committee is working on the E Version from the State Affairs [Standing Committee], and "we did amend it with Amendment 1 on Monday, and Amendment 2 was withdrawn." 2:32:22 PM JIM POUND, Staff, Representative Wes Keller, Alaska State Legislature, stated that "we are proposing to clean up this language so that the best parts of the bill can be advanced." Therefore, the proposed committee substitute deletes Sections 3- 5, on page 2 of the bill, which refers to the association with the Administrative Regulation Review Committee. It also deletes Sections 10, 11, and 13. 2:34:42 PM REPRESENTATIVE PRUITT clarified for the committee that this substitute is Version D. REPRESENTATIVE GRUENBERG asked about Version E1, which the committee had adopted. REPRESENTATIVE PRUITT explained that because Sections 3-5 are deleted, Amendment 1 from the prior meeting is eliminated. 2:36:24 PM The committee took a brief at ease. 2:36:38 PM REPRESENTATIVE PRUITT moved to adopt CS for HB 127, labeled 28- LS0088\D, Gardner, 3/19/14 as the working document. REPRESENTATIVE GRUENBERG objected. He noted that there were several agency representatives present who have been very patient and who, he believes, did not want to be included in the bill. He requested that they be given an opportunity to state whether or not they have an objection to being excluded from CSHB 127. 2:37:51 PM BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman, responded that the proposed committee substitute is not necessarily the Ombudsman's first choice, but it "gets the core of the bill handled," and so the office has no objections at this time. 2:38:39 PM REPRESENTATIVE BOB LYNN questioned if there should be a separate bill in the future "to put some of this stuff back in." 2:39:04 PM MS. LEIBOWITZ responded that currently the Ombudsman's Office does not now have a plan to submit legislation; that would be a future policy decision on the part of the Ombudsman. 2:39:19 PM REPRESENTATIVE LYNN requested that the Ombudsman's Office advise the committee if the Ombudsman intends to request legislation or if "we should do that, so we can speed this bill along as it is." 2:39:30 PM MS. LEIBOWITZ related that assuming the "streamlined" version of HB 127 [becomes law] the Ombudsman's Office could then discuss the possibility of having additional legislation. 2:39:56 PM REPRESENTATIVE GRUENBERG questioned the purpose of deleting the word "state" in Section 3. 2:40:44 PM MS. LEIBOWITZ offered that in almost every provision of the Ombudsman Act, the Ombudsman's authority and jurisdiction is discussed in terms of what the Ombudsman shall do with an agency, and then agency is defined. AS 24.55.160(a)(4) is the only provision referring to a state agency versus simply an agency, and she noted this is a non-issue as long the Ombudsman deals only with state departments. The Ombudsman has jurisdiction over municipalities and school boards if they opt into the Ombudsman's jurisdiction, "so, having a reference to 'state' agency where everywhere else in the statute refers to the ombudsman's ability to investigate agencies creates an inconsistence for us," she explained. 2:41:48 PM REPRESENTATIVE GRUENBERG stated he supports the inclusion of Section 3, eliminating the word "state." 2:42:17 PM KATE BUCKHARDT, Executive Director, Alaska Mental Health Board, Department of Health & Social Services, stated that the Alaska Mental Health Board is now in a position to support the proposed committee substitute for HB 127 because the revised definition of "agency" is removed. She thanked the committee. 2:43:00 PM SHERRIE DAIGLE, Deputy Director, Central Office, Division of Administrative Services, Department of Corrections (DOC), stated that the Department of Corrections does not object to removing Sections 10-11 and supports the House Judiciary Standing Committee's decision 100 percent. 2:44:03 PM JEFF JESSEE, Chief Executive Officer, Alaska Mental Health Trust Authority, Department of Revenue, questioned the ability of the Ombudsman to obtain confidential records that are confidential under federal law. He noted that when HB 127 was heard in the House State Affairs Standing Committee he was concerned about a possible interpretation by the Ombudsman regarding Section 3 [AS 24.55.160(a)(4)], lines 9 and 13, page 2. "Notwithstanding other provisions of law" may be being interpreted as including federal law and not just state law, and that needs to be clarified. He said he reviewed the National Ombudsman Association's web site and its model legislation for state ombudsmen around the country, and he noticed a significant difference between that language, the language in HB 127, and in the current statute. Within the national model statute this item would read "notwithstanding other provisions of state law" and not just "law" in general, he noted. [Alaska's current statute refers] to records of every state agency including confidential records, whereas the model statute reads "including records made confidential by state law," he submitted. He noted that this statute does not allow the Ombudsman to supersede HIPPA or 42 CFR, which are the primary federal laws regarding confidentiality. Moreover, even if the current interpretation of the Ombudsman is that it cannot get access to federally protected records, it is important to modify Section [3] to make that absolutely clear, he offered. MR. JESSEE added that the Ombudsman's reports are prepared on a calendar year basis, and he suggested a fiscal year basis. He offered that the real value of the Ombudsman's Office is its ability to take individual cases and discern systemic problems that the legislature may want to address. [The fiscal year] will allow the legislature, in advance of the legislative session, to review whether the Ombudsman's Office had identified issues the legislature may want to take action on, he remarked. For example, the Ombudsman web site offers the calendar year 2012 report but not calendar year 2013 report, which would be most relevant to the legislature, he opined. He pointed to the procurement provision, Section 6, page 3, lines 9-10, and stated that although the legislature is attempting to mirror the legislative council's procurement language, "I would suggest that you think thoughtfully about whether the Ombudsman needs this authority over construction." It is his understanding that construction is not part of the Ombudsman's core mission. 2:49:33 PM LINDA LORD-JENKINS, State of Alaska Ombudsman, explained that the calendar year basis was adopted in 2000, which is consistent with the case load management system and it was not her policy decision. With regard to access to the calendar year 2013 annual report, the report will come out this year, and it has been her practice to personally deliver the annual report to all of the legislators early in the legislative session, she stated. She said personal considerations have kept her from doing that this year. When she returns to Alaska she will finish the annual report and deliver it to the legislature, she explained. She acknowledged that Mr. Jessie is correct as the Ombudsman has no interest in handling construction matters, but it does have occasional procurement issues and this is its way of addressing those matters. 2:53:50 PM REPRESENTATIVE GRUENBERG suggested working with Ms. Lord- Jenkins, Mr. Jessee, Mr. Pound, and other interested parties to "come up with something." He removed his objection.