HB 127-OMBUDSMAN  8:50:59 AM CHAIR LYNN announced the next order of business was HOUSE BILL NO. 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 the proposed committee substitute (CS) for HB 127, Version 28-LS0088\G, Gardner, 2/13/14, as a work draft.] CHAIR LYNN relayed that public testimony for HB 127 was left open since the last hearing on 2/25/14. 8:51:40 AM REPRESENTATIVE GATTIS [moved to adopt] Amendment 1 to HB 127, Version G, which read as follows [original punctuation provided]: Page 3, Line 17 after "47.14.050," delete all material through the word "Services" on page 3, line 20. REPRESENTATIVE GATTIS, in response to the chair, confirmed that she was carrying the amendment for Representative Isaacson. She said the amendment relates to behavioral hospitals. She said one distinction between being incarcerated and being in a behavioral hospital is that with the latter, people can come and go at will. 8:53:25 AM REPRESENTATIVE KELLER objected for purposes of discussion. 8:53:37 AM LINDA LORD-JENKINS, Ombudsman, Office of the Ombudsman, stated that she is at a disadvantage in speaking to Amendment 1 when she does not know the motivating factor behind it. She indicated that the Office of the Ombudsman does not agree with the rationale regarding individuals being in "these homes" voluntarily. She said the individuals that the office is considering jurisdiction over are those who have been placed there and are in the custody the Division of Juvenile Justice, within the Department of Health & Social Services (DHSS), and while there may be an agreement to be in these facilities at a certain point, it is not the understanding of the Office of the Ombudsman that these individuals can come and go as they please, because they are in the custody of the state. She clarified that the office is not seeking jurisdiction over individuals whose parents have voluntarily committed them to these facilities and who are not in the jurisdiction of the state; it is looking for jurisdiction over children who are in the custody of the state and have been placed in these facilities by court order or pursuant to a court order. 8:55:18 AM CHAIR LYNN asked Ms. Lord-Jenkins to confirm that there are basically two categories of people who might be in this type of facility: one, a person there by court order, and two, a person who either decided to be there or was placed there by a parent or legal guardian. MS. LORD-JENKINS answered that is correct. 8:55:38 AM REPRESENTATIVE GATTIS said she hoped to hear from representatives of behavioral centers to clarify their process as it may relate to other state agencies that oversee them. 8:56:15 AM KATE BURKHART, Executive Director, Alaska Mental Health Board (AMHB), stated that residential psychiatric services are health care services and, thus, not the same as incarceration. She recollected there was testimony heard at the last hearing on HB 127 as to how the Office of the Ombudsman directs complainants to alternative processes to help people keep out of court. She continued as follows: It is important to understand that in these situations with these particular youths and children, we are in court, and there is a judicial process overseeing this treatment, as well as the mechanisms by which the Department of Health & Social Services, the Center for Medicaid and Medicare Services, and the accrediting bodies oversee these concerns. So, we believe that residential psychiatric treatments should not be within the purview of the Ombudsman. MS. BURKHART said she thinks Amendment 1 also addresses concerns that were raised by Representative Hughes regarding ensuring protection of health information and compliance with federal and state privacy laws around protected health information. Further, she said AMHB has tried to make the point that if the Office of the Ombudsman had jurisdiction over these sorts of complaints, then the level of expertise and capacity needed to effectively deal with them would need to be added to the office, as it is not contained within the office's current capacity. She said AMHB appreciates Amendment 1, because it would remove the section of HB 127, Version G, which would include residential psychiatric treatment centers under the Office of the Ombudsman's jurisdiction. 8:59:25 AM MS. LORD-JENKINS noted that Ms. Burkhart had mentioned Health Insurance Portability and Accountability Act (HIPAA), and she deferred to Ms. Leibowitz to address that issue. 8:59:35 AM BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman, stated that the HIPAA regulations provide an exception for cases where state law gives mandatory access to records. She said since the statute for the Office of the Ombudsman mandates its access to agency records, it does not deal with HIPAA regulations; it basically has an exception to them. She said the Office of the Ombudsman does obtain medical information and, as with other types of confidential records, is bound to maintain that confidentiality. 9:00:48 AM REPRESENTATIVE HUGHES said Ms. Burkhardt was explaining that there other procedures and entities that can address issues. She offered her understanding that when someone comes to the Office of the Ombudsman with a need for investigation, the office makes certain the person has already gone through the available internal processes. She asked how many cases come to the Office of the Ombudsman where the person has already gone through those internal processes and still needs assistance. She further questioned whether the Office of the Ombudsman has had any such cases if it does not already have that jurisdiction. 9:01:51 AM MS. LORD-JENKINS confirmed that because the Office of the Ombudsman has not had jurisdiction over these sorts of cases, it has not seen a lot of these complaints. Looking at similar agencies, she said the Office of the Ombudsman has routed 50 percent or more complaints related to the Office of Children's Services (OCS) through the process and "they frequently come back." Regarding the contention that there are available processes for people to follow, she stated that OCS, which is one of the Office of the Ombudsman's biggest individual agency complaint loads, for years had a very confusing grievance process - like "a black hole" - for individuals who were unaware of how to follow statutes and regulations policies and procedures. She said in 2011, the Office of the Ombudsman opened up an investigation into the efficiency and effectiveness of the OCS grievance process. She said she assigned an attorney to review the entire process, and that revealed many misunderstandings about what the grievance process was. The statutes and regulations were contradictory, and grievances got lost. She said the Office of the Ombudsman recommended that OCS completely revise its grievance process, and it did so and brought the new process on line in the spring of 2013. She said it is good that an agency has a complaint process, but that does not guarantee the process is effective. Many agencies have oversight - Medicaid looks at money and OSHA looks at workplace safety - and even with that oversight there are still problems, which is one of the reasons the Office of the Ombudsman considered trying to expand its jurisdiction. REPRESENTATIVE HUGHES asked how many of the calls that come in, related to what Amendment 1 addresses, and are routed back to internal processes are not addressed. MS. LORD-JENKINS answered that the Office of the Ombudsman has not tracked that aspect of it. She said a complainant whose complaint is not within the jurisdiction of the Office of the Ombudsman and is routed back to the agency and finds the agency has not acted fairly, reasonably, and in accordance with its policies, procedures, regulations, and statutes can return to the Office of the Ombudsman; however, if the Office of the Ombudsman finds that the agency has acted fairly and followed procedure, then it is not going to advocate for the complainant just because he/she does not like the finding or answer. REPRESENTATIVE HUGHES stated: Before we began, I knew this amendment had something to do with voluntary versus not voluntary, and then we learned that ... in these residential facilities it is actually directed by the court, so it's not voluntary. And so, I'm struggling a little bit. ... I was wondering if Kate and others believe that it's not necessary for the Ombudsman to have jurisdiction, then I would think that they would assume everything can be solved through the internal processes, right? And if everything can be resolved through the internal processes, then there wouldn't be anybody leftover at the end of that process that would need the Ombudsman. So, if the Ombudsman had oversight ... just in that rare case that it might not be resolved, ... I guess I'm struggling with why they might want it removed, because they're confident that they're handling it already, and so, ... the Ombudsman wouldn't be knocking at their door. And so, it seems like it could be a safety, and since these aren't truly voluntary, ... I need somebody to convince me that this amendment is necessary, and I'm sorry that nobody came to talk to me beforehand and I wasn't better educated. 9:08:16 AM CHAIR LYNN said the Office of the Ombudsman might want to check into cases that relate to being voluntary. He said we all go to a doctor voluntarily, but may find there is something about that experience that needs the intervention of the Office of the Ombudsman. 9:08:56 AM MS. BURKHART stated, "First and foremost, these are issues between private parties - a private health care provider and a patient and the patient's family, and as such they are not suitable for Ombudsman jurisdiction." In a case where a youth or child has been committed to the custody of the Department of Health and Social Services, whether to OCS or the Division of Juvenile Justice, both the child and parent(s) have an attorney. The child will always have a guardian ad litem (GAL), and often also have a court-appointed special advocate. She said youth or children are committed to residential psychiatric treatment with the parents' consent or by court order. In situations where the child is in custody, the parents are typically asked to consent to the treatment recommendation. If there are issues with medication, the court, all advocates, and the parents are involved. She said the court exercises oversight on a regular basis. She related that she has been involved in cases where there have been monthly status hearings to ensure that the treatment was responsive to the needs of the youth and met the concerns of the parent. She cautioned equating grievance procedures set out by executive agencies with the patient advocacy and grievance procedures set out by health care organizations. She said the venues, situations, and content are completely different, because it is a health care setting. Further, she said the health care organizations providing the services have grievance procedures separate from the court process by which the child or youth and parent(s) can have their complaints resolved. Those procedures are governed by the Centers for Medicare & Medicaid Services, the entity which has established patient rights, grievance parameters, rules and regulations guiding access to patients - "quality of care, not just funding" - and all the procedures are federally compliant. She indicated involvement in the procedures by the creditors of the residential psychiatric treatment. MS. BURKHARDT said the department, through its licensing and funding procedures, has the ability to resolve patient and parent complaint. She said when a child is admitted through the court process, the court-appointed social advocates and GAL communicate with the department, the court, and the treatment team. She said Alaska is committed to patient-centered treatments. She said the system is complex, with a lot of avenues, by which people can have their concerns addressed. She said it is not a perfect system, but opined that to provide jurisdiction to the Office of the Ombudsman over a health care complaint between private parties is not appropriate and - considering the greater context by which concerns about treatment can be resolved - unnecessary, especially when considering "we've yet to hear a quantified demand for the service." She said the department and the providers can all speak to the numbers of concerns and complaints that they have addressed; therefore, they have a better understanding of the demand that is being expressed by the patients and their families and how it is being addressed. 9:14:53 AM REPRESENTATIVE KREISS-TOMKINS recollected that Ms. Lord-Jenkins had said there is no record of the number of calls that have been turned away because of lack of jurisdiction. He ventured that the anticipated discussion relating to the Alaska Bar Association (ABA) will be similar to the current discussion. He mentioned a memorandum dated 2/26, from ABA to the House State Affairs Standing Committee, in which ABA indicated the Office of the Ombudsman had said it turned away 11 calls between 1993 and 2013 because they were outside its jurisdiction. He said that is a numerical quantitative answer, and he questioned why "a similar numerical quantitative answer doesn't exist for cases that would apply to what we're talking about right now." 9:16:19 AM MS. LORD-JENKINS explained the reason is that all along the Office of the Ombudsman has maintained that the ABA was subject to its jurisdiction, and it was clear that "these contract agencies" were not subject to its jurisdiction, so "tracking them was different on our case management systems." She said when the office receives calls about entities that are not State of Alaska agencies or an instrumentality "as the Bar contends it is," then those entities are tracked differently and it is difficult to cull information about them. She explained that the Office of the Ombudsman has an intake log on which it tracks its cases; however, it would be an onerous search. She said with the ABA, "we just hit a couple buttons and we have that information." 9:17:47 AM REPRESENTATIVE HUGHES said it was helpful to hear [from Ms. Burkhardt] that the children have two different advocates. She said "our" job is to protect the people of Alaska, not to protect agencies, which is why the Office of the Ombudsman exists. She indicated that in agencies with internal processes, there could be a tendency for bias; therefore, she said she was glad to hear about those looking out for the sole interest of the children. 9:18:49 AM MS. LORD-JENKINS responded that individuals being watched out for by guardians ad litem or court appointed special advocates (CASAs) or caseworkers or attorneys often do not agree with them or think their decision making is appropriate. Sometimes there is a difference of opinion as to what the best interest is, and the Office of the Ombudsman often receives complaints of that nature. 9:19:32 AM REPRESENTATIVE KREISS-TOMKINS offered his understanding that the purpose of a GAL is to have an independent, impartial, objective person looking at a situation with focus on the child's best interest. He said it is managed through the court process and, as such, strives for objectivity. He asked Ms. Burkhardt if she sees the proposed expansion of the jurisdiction of the Office of the Ombudsman to be duplicative to the process that already exists with guardians ad litem and the court process. He requested that Ms. Lord-Jenkins elaborate on her previous response as to how she sees what the Office of the Ombudsman would do as not being duplicative to what already happens within the court process. 9:20:53 AM MS. LORD-JENKINS responded that a GAL starts at the beginning of the case and follows it through to the end, and in many cases makes parental decisions on behalf of a child or sometimes an adult in adult protective service cases. She said the Office of the Ombudsman comes in part way through a case to look at individual, specific complaints. She said the complainant may be in an adversarial position with his/her guardian ad litem, and the Office of the Ombudsman looks to see "how they're both behaving," including what decisions are being made and whether the complainant is being heard. She said sometimes, in OCS cases, the Office of the Ombudsman has records that the guardians ad litem have not seen. She stated, "We're different. I mean, we're impartial and they're supposed to be impartial also, but I think it's a different role. I guess I can't articulate it any better than that." Ms. Lord-Jenkins said there are cases related to Adult Protective Services and the Office of Public Advocacy (OPA) where adults are unhappy with their GALs and they complain about them a lot. In those cases, the Office of the Ombudsman looks to see if the GAL is responding adequately, if the GAL is granting enough funds for the adult to live - "that sort of thing." She indicated that these are cases where there are differences of opinion. REPRESENTATIVE KREISS-TOMKINS asked what kind of oversight role the court plays with GALs who may be deemed to be performing unsatisfactorily or not to the best interest of whom they represent. 9:23:31 AM MS. LEIBOWITZ said the GAL is generally selected by the court, and she offered her understanding that the GAL will usually be either an OPA employee or contractor. She said the court can pick the GAL to some extent, and it can also dismiss the GAL. 9:24:25 AM The committee took an at-ease from 9:24 a.m. to 9:28 a.m. 9:28:00 AM CHAIR LYNN reminded those testifying that before the committee was the proposed Amendment 1 to HB 127, Version G, and comment should be limited to the amendment. 9:28:26 AM LAURA MCKENZIE, Director, Quality Improvement and Risk Management, North Star Behavioral Health (NSBH), testified in support of the proposed Amendment 1 to HB 127, Version G. She concurred with the testimony of Ms. Burkhardt. She stated that NSBH not only has an internal grievance procedure, but also has external grievance procedures that are overseen by at least six different entities. She said patient residents at NSBH are admitted at the request of their guardians, and the decision to admit and discharge is based on medical necessity, not court order. Additionally, she said all the treatment at NSBH is externally reviewed for appropriateness, to ensure that lengths of stay are not inappropriately extended. 9:30:10 AM KAREN PERDUE, President/CEO, Alaska State Hospital and Nursing Home Association (ASHNHA), relayed that she was a former commissioner of DHSS for eight years, under Governor Tony Knowles. She stated support of the proposed Amendment 1 to HB 127, Version G. She said even though the focus is on juveniles in the custody of the department, she foresees there would be jurisdiction over private facilities and patients, because the Office of the Ombudsman would look at processes and the entire practice of an entire facility in the context of an individual investigation. She said she thinks it is a big step to have the legislature become involved in the regulation of private health care facilities through the Office of the Ombudsman. She said it would be a big move in an area that is highly regulated. She recollected testimony had been given that judges provide oversight; however, she said she thinks there are many other agencies that do so. She concluded, "I think we do care that the children are watched out for, very much. I think when you have many different parties trying to make a decision, you ought to have one person in charge, and that is the judge." She urged the committee to support the proposed Amendment 1. 9:32:09 AM REPRESENTATIVE HUGHES recollected that someone had remarked that if the jurisdiction is extended, the Office of the Ombudsman would not have the expertise to "delve into things ... with health care providers." MS. PERDUE said she agrees. She said the children are under direct medical care of physicians. She said the process is directed by the judge, and the care is directed by the physician. 9:32:58 AM CHAIR LYNN asked who is responsible for [overseeing] the regulations that ASHNHA is required to follow. MS. PERDUE responded that the Centers for Medicare & Medicaid Services have "real teeth" and can make unannounced visits in response to grievances and can remove state licenses or accreditation and funding. 9:33:54 AM MS. MCKENZIE recapped her previous testimony. 9:35:32 AM TOM CHARD, Director, Alaska Behavioral Health Association (ABHA), indicated that ABHA oversees 50 members, including behavioral health centers, drug and alcohol treatment centers, and mental health centers. He said ABHA supports the proposed Amendment 1 to HB 127, Version G. He noted that the committee had heard from its member, North Star Behavioral Health, as well as received written testimony from Juneau Youth Services, and he mentioned testimony from "Providence" regarding the levels of oversight. He said there has been a lot of discussion regarding detention and how many layers of oversight there are; North Star Behavioral Health testified that "this is a medical placement." He said detention is not being considered, because the Office of the Ombudsman already has oversight over OCS and the Division of Juvenile Justice (DJJ). He highlighted that the issue is whether the Office of the Ombudsman should oversee private medical providers and what the benefit would be if it did. He expressed appreciation for Representative Hughes' previous question asking what the harm would be in adding one more layer of oversight. He opined that the harm would be allowing people to do something without the necessary level of expertise. He said with its fiscal note and current capacity, [the Office of the Ombudsman] is just going to send people back to the existing grievance procedures, thus, he does not know what the value would be for anyone. 9:37:46 AM REPRESENTATIVE KELLER observed that the use of the word "oversight" is interesting, because the Office of the Ombudsman does not oversee - it investigates in an attempt to solve a problem. He stated, "I think oversight is a bit of a stretch, and I've noticed that as a consistent concern ... that I think may be an overreaction, for what it's worth." MR. CHARD responded that he appreciates Representative Keller's comment; he concurred that [the work of the Office of the Ombudsman] is investigatory, not oversight. CHAIR LYNN said the Office of the Ombudsman may take its investigation to the legislature, which, at some point may have to weigh in on it, and he remarked that the legislature is not an expert in health care. MR. CHARD offered his understanding that under current statute, if there is a complaint that does not get satisfied, the Office of the Ombudsman has oversight over the departments and the divisions; therefore, it can ask the divisions of DHSS how the grievances are being settled within the department, and if the Office of the Ombudsman is not satisfied with the answers, it can, within its current jurisdiction, "address the oversight, or the investigation, of those complaints." 9:39:29 AM CHAIR LYNN asked Representative Keller if he maintained his objection to the motion to adopt Amendment 1 to HB 127, Version G. REPRESENTATIVE KELLER removed his objection, but said he thinks a question has been put on the table that is much larger than the issue with the resident care facilities. He clarified that removing his objection does mean he is convinced that the jurisdiction of the Office of the Ombudsman does not cover the residential facilities, but explained that he needs legal clarification before deciding what other amendments may be needed. He opined that [the proposed Amendment 1] is a step in the right direction, but warned that "we may be going down a rabbit trail that we can't finish here." He indicated that exempting some agencies may be confusing for the ones that are not listed, because it may imply that they are not under the Office of the Ombudsman's jurisdiction. He said he thinks the legislature, as the entity that signs checks and makes appropriations, owes it to the public to provide a means for investigation into serious complaints by a citizen. 9:42:11 AM CHAIR LYNN stated an objection to Amendment 1. He said he thinks the committee needs "other people to speak to this." 9:42:26 AM REPRESENTATIVE HUGHES said she finds it odd that the Office of the Ombudsman came forward to request something without having done some kind of tracking to assess the need for it. She said she sees what Representative Keller is saying and agrees that the legislature has the responsibility to protect Alaska citizens. She said she respects those who testified, but ventured that if all their grievance processes are working, it should not be a big deal to give the Office of the Ombudsman the jurisdiction it has requested. She indicated the same applies to the Alaska Bar Association, which she acknowledged is a different topic. CHAIR LYNN remarked, "If they believe that their processes are working, we've kind of got the fox watching the chickens here." 9:43:52 AM REPRESENTATIVE KREISS-TOMKINS said he supports Amendment 1, not because he is convinced the internal grievance processes are completely objective, but because there already exists an "inherently independent" process through the court-appointed guardians ad litem. He said he wished he had asked Ms. Leibowitz how the Office of the Ombudsman's investigatory recommendations would differ from that of the judge. He opined that having both is unnecessary. He said he thinks there is merit to the concerns raised that there should be a fiscal note and some sort of "professional capacity or expertise within the Office of the Ombudsman to review these cases"; however, ultimately. 9:45:44 AM A roll call vote was taken. Representatives Hughes, Keller, Millett, Kreiss-Tomkins, and Gattis voted in favor of the motion to adopt Amendment 1 to HB 127, Version G. Representative Lynn voted against it. Therefore, Amendment 1 was adopted by a vote of 5-1. 9:46:32 AM REPRESENTATIVE GATTIS indicated she wanted to wait until HB 127 was heard by the House Judiciary Standing Committee to offer another amendment. 9:46:52 AM REPRESENTATIVE MILLETT said if the amendment needs to be offered, she would do so during the House Judiciary Standing Committee's hearing on HB 127. CHAIR LYNN announced that HB 127 was held over.