SENATE BILL NO. 204 "An Act extending the termination date of the Alaska Commission on Aging; and providing for an effective date." This was the second hearing for this bill in the Senate Finance Committee. Co-Chair Torgerson noted that a representative of the Department of Administration was present to answer questions. There were none. Speaking to concerns she voiced during the previous hearing, Senator Green offered some solutions. One option, she told of, was to relocate the Alaska Commission on Aging to the legislative branch where it would be under the direct supervision of the legislature and would be located in the Legislative Information Office in Anchorage. She stated that under this method, the commission would function as an independent ombudsman for issues related to aging. She thought this would eliminate the potential conflict of interest with the Department of Administration and the Alaska Pioneer's Homes that was currently present. Senator Green continued with her second suggestion, which would move the long-term care ombudsman from its current status and place it under the direction of a yet to be determined state agency. She understood this change would be reflected on the legislative budget but did not know how to otherwise deal with her concerns. Senator Phillips asked why the ombudsman should be moved. Senator Green responded that she felt there was a need to have a separation between the overseer of the pioneer's homes, Department of Administration, and the long-term care ombudsman. She noted that the ombudsman was charged with investigating complaints and also being the advocate for senior citizens, which was in conflict with it's other charge to oversee the pioneers' home facilities. Senator Green then offered a third suggestion to have the ombudsman report directly to the commissioner of the Department of Administration, saying this solution would not require a budgetary change. ALYSON ELGEE, Deputy Commissioner, Department of Administration stated that the Committee had been briefed on the work the Commission had done to find an alternative placement for the long-term care ombudsman, although it was unable to identify an acceptable location. As a result, she said the Commission took steps to clarify the reporting relationship of the long-term ombudsman with the commissioner and the department to eliminate any potential conflicts she and others in the department who also serve on the Commission might have. Ms. Elgee added that if an acceptable outplacement position were identified, the Commission would not object to the change. Ms. Elgee spoke of the efforts of the Commission to change the bylaws to remove the commissioner from the reporting process. She surmised that Senator Green's second option of having the long-term care ombudsman report directly to the commissioner would undermine these efforts to avoid the conflict of interest. Senator Wilken shared Senator Green's desire to eliminate the conflicts of having the long-term care ombudsman under the supervision of the commissioner, who oversees the same facilities that are sometimes investigated. He understood the Commission had established a subcommittee that excluded any members who may be in conflict. JANE DEMMERT, Executive Director, Alaska Commission on Aging explained the Commission's bylaw amendment to establish a standing, long-term care ombudsman committee with a provision that excludes any commission member that has any relationship whatsoever to the pioneer homes. She stated that the subcommittee and the ombudsman have an on- going relationship and that the subcommittee acts as a buffer. She felt the Commission already has a workable strategy in place with this subcommittee, but was open to improvement. Senator Wilken talked about the broad representation of the state with the volunteer members of the Commission. He shared that the two members from Fairbanks were viewed as being "in touch" with the senior population in that community. He suggested giving the subcommittee process a chance to prove itself before making any changes. Senator Phillips referred to five recommendations made by the Division of Legislative Audit it its report on the Department of Administration Alaska Commission on Aging [Audit Control Number 02-1462-99, Copy on file,] and asked which had been completed. Ms. Demmert described the basic premise behind the recommendations that there were specific assurances that needed to be required of the Commission's grantees. She stated that those were established and in place at the start of the current fiscal year in which the grants were awarded. Senator Phillips asked the witness to list each recommendation and state whether or not it was implemented. Ms. Demmert began saying the first recommendation pertained to the organizational considerations and was addressed by the aforementioned subcommittee bylaw. Ms. Demmert said the second, third and fifth recommendations referred to the development of a cost allocation plan and were in the final stages and would be forwarded to the Department of Health and Social Services within the month. Monitoring of sub-recipients to ensure that federal funding was appropriately spent was the fourth recommendation and Ms. Demmert said that was in place. Ms. Demmert assured Senator Phillips that the Commission was tracking the progress of the recommendations. Senator Green asked if the Commission appointed members to the standing committee and was told it did. When asked by Senator Green if the Commission could replace members of the standing subcommittee or if it could change the bylaws, Ms. Demmert answered the Commission had the authority to do both. Senator Green then asked about the oversight provisions between the standing committee and the long-term care ombudsman. Ms. Demmert replied that the directive of the standing committee was to provide oversight and guidance, advice regarding the annual workplan and an annual report focusing on the proposed cooperative agreements with state and local agencies and to provide support around the development of a volunteer cadre. She added that the committee would also review and advise the full Commission with regard to a budget for the long-term care ombudsman and make that request on behalf of the ombudsman to the full Commission. Senator Green's real concern was not that the Alaska Commission on Aging would involve itself directly but she wanted the assurance that when the ombudsman begins an investigation, the process is unfettered and without pressure from the Commission. If so, then she deemed this system acceptable. Ms. Demmert stressed the current plan has that assurance and would be respected. Amendment #1: This amendment changes the bill to add the following language: Page 1, line 1, following ";": Insert "transferring the office of the long-term care ombudsman from the Alaska Commission on Aging to the legislative branch;" Insert a new bill section to read: "Sec.__ AS 24 is amended by adding a new chapter to read: Chapter 57. Office of the Long-Term Care Ombudsman. Sec. 24.57.010. Office of the long-term care ombudsman. There is created in the legislative branch of the state the office of the long-term care ombudsman. Sec. 24.57.020. Appointment of the long-term care ombudsman. (a) A candidate for appointment as the long- term care ombudsman shall be nominated by the long-term care ombudsman selection committee composed of three members of the senate appointed by the president of the senate and three members of the house of representatives appointed by the speaker of the house. One member of a minority party caucus in each house shall be appointed to the selection committee. (b) The long-term care ombudsman selection committee shall examine persons to serve as long-term care ombudsman regarding their qualifications and ability and shall place the name of the person selected in nomination. The appointment is effective if the nomination is approved by a roll call vote of two- thirds of the members of the legislature in joint session and approved by the governor. However, the governor may veto the appointment and return it, with a statement of objections, to the legislature. Upon receipt of a veto message, the legislature shall meet immediately in joint session and reconsider approval of the vetoed appointment. The vetoed appointment becomes effective by an affirmative vote of two-thirds of the membership of the legislature in joint session. The vote on the appointment and on reconsideration of a vetoed appointment shall be entered in the journals of both houses. (c) The appointment of the long-term care ombudsman becomes effective if, while the legislature is in session, the governor neither approves nor vetoes it within 15 days, Sundays excepted, after its delivery to the governor. If the legislature is not in session and the governor neither approves nor vetoes the appointment within 20 days, Sundays excepted, after its delivery to the governor, the appointment becomes effective. Sec. 24.57.030. Term; removal. (a) The term of office of the long-term care ombudsman is five years. An incumbent may be reappointed but may not serve for more than three terms. If the term of a long-term care ombudsman expires without the appointment of a successor under this chapter, the incumbent continues in office until a successor is appointed. If the long- term care ombudsman dies, resigns, becomes ineligible to serve, or is removed or suspended from office, the person appointed as acting long-term care ombudsman under AS 24.57.040 serves until a new long-term care ombudsman is appointed for a full term. (b) The legislature, by a concurrent resolution adopted by a roll call vote of two-thirds of the members in each house entered in the journal, may remove or suspend the long-term care ombudsman from office, but only for neglect of duty, misconduct, or disability. Sec. 24.57.040. Staff; employment policies. (a) The long-term care ombudsman shall appoint a person to serve as acting long-term care ombudsman in the absence of the long-term care ombudsman. The long-term care ombudsman shall also appoint assistants and clerical personnel necessary to carry out this chapter. (b) The long-term care ombudsman is a full-time position in the exempt service under AS 39.25.110, and neither the long-term care ombudsman nor the staff of the office of the long-term care ombudsman is subject to the employment policies under AS 24.10 or AS 24.20. Sec. 24.57.050. Financial interests. Neither the long-term care ombudsman nor the staff of the office of the long-term care ombudsman may have a financial interest in a long-term care facility in the state Sec. 24.57.060. Duties and powers of the long-term care ombudsman. (a) The long-term care ombudsman shall investigate and resolve a complaint made by or on behalf of an older Alaskan who resides in a long-term care facility in the state if the complaint relates to a decision, action, or failure to act by a provider or a representative of a provider of long-term care services, or by a public agency or social services agency, that may adversely affect the health, safety, welfare, or rights of the older Alaskan. (b) The long-term care ombudsman may investigate and resolve a complaint made by or on behalf of an older Alaskan relating to the long-term care or residential circumstances of the older Alaskan. Complaints under this subsection may relate to any issue not covered under (a) of this section, including the older Alaskan's landlord, senior citizen housing, a public assistance program, a public grant program for services to older Alaskans, public utilities, health care facilities, and health care providers. (c) The long-term care ombudsman may (1) subpoena witnesses, compel their attendance, require the production of evidence, administer oaths, and examine any person under oath in connection with a complaint described under (a) of this section; the powers described in this paragraph shall be enforced by the superior court; (2) pursue administrative, legal, or other appropriate remedies on behalf of an older Alaskan who resides in a long-term care facility in the state. (d) The long-term care ombudsman shall adopt regulations under AS 44.62 (Administrative Procedure Act) to implement this chapter. Sec. 24.57.070. Training and certification of staff. (a) The long-term care ombudsman shall hire and provide for the training and certification of office staff, including volunteers and other representatives of the office of the long-term care ombudsman. Training must include instruction in federal, state, and local laws and policies relating to long-term care facilities in the state and in investigative techniques. The long- term care ombudsman may require other appropriate training. The long-term care ombudsman may decertify a person under this section for goad cause in accordance with regulations adopted by the ombudsman. (b) An employee, volunteer, or other representative of the office of the long-term care ombudsman may not investigate a complaint under AS 24.57.060 unless the person has been certified as having completed training under (a) of this section and approved by the long-term care ombudsman as qualified to investigate the complaint (c) The employees of the office of the long-term care ombudsman are in the exempt service under AS 39.25.110. Sec. 24.57.080. Access to long-term care facilities, older Alaskans, and records. (a) A person may not deny access to a long-term care facility or to an older Alaskan by the long-term care ombudsman or an employee, volunteer, or other representative of the office of the long-term care ombudsman. (b) Notwithstanding the provisions of AS 24.57.060(c)(l), the long-term care ombudsman may obtain medical or other records of an older Alaskan who resides in a long-term care facility in the state only with the consent of the older Alaskan or the older Alaskan's legal guardian or, if the older Alaskan is unable or incompetent to consent and does not have a legal guardian, only with a court order. Sec. 24.57.090. Confidentiality. (a) Records obtained or maintained by the long-term care ombudsman are confidential, are not subject to inspection or copying under AS 09.25.110 - 09.25.120, and, except as provided in (b) of this section, may be disclosed only at the discretion of the long-term care ombudsman. (b) The identity of a complainant or an older Alaskan on whose behalf a complaint is made may not be disclosed without the consent of the identified person or the person's legal guardian, unless required by court order. Sec. 24.57.100. Immunity from liability. (a) A person who, in good faith, makes a complaint described in AS 24.57.060 is immune from civil or criminal liability that might otherwise exist for making the complaint (b) The long-term care ombudsman, or an employee, volunteer, or other representative of the office of the long-term care ombudsman, is immune from civil or criminal liability for the good faith performance of official duties. Sec. 24.57.110. Interference with the long-term care ombudsman and retaliation prohibited. (a) A person may not intentionally interfere with the long-term care ombudsman, or an employee, volunteer, or representative of the office of the long-term care ombudsman, in the performance of official duties under AS 24.57.060. (b) If a. person makes a good faith complaint described in AS 24.57.060, an employer or supervisor of the person, or a public or private agency or entity that provides benefits, services, or housing to the person, may not discharge, demote, or transfer, reduce the pay or benefits or work privileges of, prepare a negative work performance evaluation of, deny or withhold benefits or services, evict, or take other detrimental action against the person because of the complaint. The person making the complaint may bring a civil action for compensatory and punitive damages against an employer, supervisor, agency, Or entity that violates this subsection. In the civil action, there is a rebuttable presumption that the detrimental action was retaliatory if it was taken within 90 days after the complaint was made. (c) A person who intentionally violates this section is guilty of a class B misdemeanor. Sec. 24.57.120. Legal counsel for the long-term care ombudsman. (a) Except as provided in (b) of this section, the Legislative Affairs Agency shall provide legal services, including advice and representation, in connection with any matter relating to the powers, duties, and operation of the office of the long-term care ombudsman, and in any legal action brought against the long-term care ombudsman or an employee, volunteer, or other representative of the office of the long-term care ombudsman. If the Legislative Affairs Agency cannot provide legal advice or representation because of a conflict of interest or because of the limitation in (b) of this section, the long-term care ombudsman may employ private legal counsel. (b) The Legislative Affairs Agency may not provide legal services to the office of the long-term care ombudsman in connection with the office's power under AS 24.57.060(c)(2). Sec. 24.57.200. Definitions. In this chapter, (1) "long-term care facility" means an assisted living home that is required to be licensed under AS 47.33 and a nursing home as defined in AS 08.70.180; (2) "older Alaskan" means a resident who is 60 years of age or older; (3) "senior citizen housing" has the meaning given "senior housing" in AS 18.56.799." Renumber the following bill sections accordingly. Insert new bill sections to read: "Sec.__. AS 24.60.176(b) is amended to read: (b) In this section, "appointing authority" means (1) the legislative council for employees of the Legislative Affairs Agency and of the legislative council and for legislative employees not otherwise covered under this subsection; (2) the Legislative Budget and Audit Committee for the legislative fiscal analyst and employees of the division of legislative finance, the legislative auditor and employees of the division of legislative audit, and employees of the Legislative Budget and Audit Committee; (3) the appropriate finance committee for employees of the senate or house finance committees; (4) the appropriate rules committee for employees of (A) standing committees of the legislature, other than the finance committees; (B) the senate secretary's office and the office of the chief clerk of the house of representatives; and (C) house records and senate records; (5) the legislator who made the hiring decision for employees of individual legislators; however, the legislator may request the appropriate rules committee to act in the legislator's stead; (6) the ombudsman for employees of the office of the ombudsman, other than the ombudsman, and the long-term care ombudsman for employees of the office of the long-term care ombudsman, other than the long-term care ombudsman; (7) the legislature for the ombudsman and the long-term care ombudsman. Sec.___. AS 24.60.250(c) is amended to read: (c) In addition to the sanctions described in AS 24.60.260, if the Alaska Public Offices Commission finds that a legislative director has failed or refused to file a report under AS 24.60.200 by a deadline established in AS 24.60.210, it shall notify the Alaska Legislative Council or the Legislative Budget and Audit Committee, as appropriate. For the ombudsman and the long-term ombudsman, the Alaska Legislative Council shall be notified. Sec.__. AS 24.60.990(a)(9) is amended to read: (9) "legislative director" means the director of the legislative finance division, the legislative auditor, the director of the legislative research agency, the ombudsman, the long-term care ombudsman, the executive director of the Legislative Affairs Agency, and the directors of the divisions within the Legislative Affairs Agency;" Renumber the following bill sections accordingly. Insert a new bill section to read: "Sec.__. AS 39.27.O22 (d) is amended to read: (d) This section applies to employees of the legislature only if the committee responsible for adopting employment policies concerning the employee adopts a written policy that the section applies. This section applies to the employees of the office of the ombudsman only if the ombudsman adopts a policy that the section applies. This section applies to the employees of the office of the long-term care ombudsman only if the long-term care ombudsman adopts a policy that the section applies." Renumber the following bill sections accordingly. Insert a new bill section to read: "Sec.__. AS 39.90.140(3) is amended to read: (3) "matter of public concern" means (A) a violation of a state, federal, or municipal law, regulation, or ordinance; (B) a danger to public health or safety; (C) gross mismanagement, a substantial waste of funds, or a clear abuse of authority; [OR] (D) a matter accepted for investigation by the office of the long-term care ombudsman under AS 24.55.100 or 24.55.320; or (E) a matter accepted for investigation by the office of the long-term care ombudsman under AS 2437.060 (a);" Renumber the following bill sections accordingly. Insert a new bill section to read: "Sec.__. AS 44.2l.230(c) is amended to read: (c) The commission may not investigate, review, or undertake any responsibility for the longevity bonus program under AS 47.55 or [,EXCEPT FOR ACTIVITIES OF THE OFFICE OF THE LONG TERM CARE OMBUDSMAN,] the Alaska Pioneers' Homes under AS 47.55." Renumber the following bill sections accordingly. Insert a new bill section to read: "Sec.__. AS 44.62.040(c) is amended to read: (c) Before submitting the regulations and orders of repeal to the lieutenant governor under (a) of this section, every state agency that by statute possesses regulation making authority, except boards and commissions, [AND] the office of the ombudsman, and the office of the long-term care ombudsman, shall submit to the governor for review a copy of every regulation or order of repeal adopted by the agency, except regulations and orders of repeal identified in (a)(l) - (2) of this section. The governor may review the regulations and orders of repeal received under this subsection. The governor may return the regulations and orders of repeal to the adopting agency before they are submitted to the lieutenant governor for filing under (a) of this section [,] (1) if they are inconsistent with the faithful execution of the laws, or (2) to enable the adopting agency to respond to specific issues raised by the Administrative Regulation Review Committee. The governor may not delegate the governor's review authority under this subsection to a person other than the lieutenant governor." Renumber the following bill sections accordingly. Insert new bill sections to read: "Sec.__. AS 44.66.050(a) is amended to read: (a) Before the termination, dissolution, continuation, or reestablishment of a board or commission under AS 08.03.010 or AS 44.66.010, or of an agency program under AS 44.66.020 and 44.66.030, a committee of reference of each house, which shall be the standing committee of legislative jurisdiction as provided in the Uniform Rules of the Alaska State Legislature, shall hold one or more hearings to receive testimony from the public, the commissioner of the department having administrative responsibility for each named board, commission, or agency program, and the members of the board or commission involved. The hearings may be joint hearings. The committee shall also consider the proposed budget of the board, commission, or agency program, prepared in accordance with AS 37.07.050(f), and the performance audit of the activities of the board, commission, or agency program, prepared by the legislative audit division as prescribed in AS 24.20.271(1). The committee may consider any other report of the activities of the board, commission or program, including but not limited to annual reports, summaries prepared by the Legislative Affairs Agency, and any evaluation or general report of the manner of conduct of activities of the board, commission, or agency program prepared by the office of the ombudsman or by the office of the long-term care ombudsman. Sec.__. AS 44.66.050(c) is amended to read: (c) A determination as to whether a board, [OR] commission, or agency program has demonstrated a public need for its continued existence must take into consideration the following factors: (1) the extent to which the board, commission, or program has operated in the public interest; (2) the extent to which the operation of the board, commission, or agency program has been impeded or enhanced by existing statutes, procedures, and practices that it has adopted, and any other manor, including budgetary, resource, and personnel matters; (3) the extent to which the board, commission, or agency has recommended statutory changes that are generally of benefit to the public interest; (4) the extent to which the board, commission, or agency has encouraged interested persons to report to it concerning the effect of its regulations and decisions on the effectiveness of service, economy of service, and availability of service that it has provided; (5) the extent to which the board, commission, or agency has encouraged public participation in the making of its regulations and decisions; (6) the efficiency with which public inquiries or complaints regarding the activities of the board, commission, or agency filed with it, with the department to which a board or commission is administratively assigned, [OR] with the office of the ombudsman, or with the long-term care ombudsman have been processed and resolved; (7) the extent to which a board or commission that regulates entry into an occupation or profession has presented qualified applicants to serve the public; (8) the extent to which state personnel practices, including affirmative action requirements, have been complied with by the board, commission, or agency to its own activities and the area of activity or interest; and (9) the extent to which statutory, regulatory, budgeting, or other changes are necessary to enable the agency, board, or commission to better serve the interests of the public and to comply with the factors enumerated in this subsection." Renumber the following bill sections accordingly. Insert a new bill section to read: "Sec.__. AS 44.99.240(2) is amended to read: (2) "state agency" means (A) a department, institution, board, commission, division, authority, public corporation, or other administrative unit of the executive branch, including the University of Alaska and the Alaska Railroad Corporation; (B) a committee, division, or administrative unit of the legislative branch, including the Alaska Legislative Council, the leadership of each house, [AND] the office of the ombudsman, and the office of the long-term care ombudsman; (C) an administrative unit of the judicial branch, including the Alaska Judicial Council and the Commission on Judicial Conduct." Renumber the following bill sections accordingly. Insert new bill sections to read: "Sec.__. AS 47.24.010(f) is amended to read: (f) A person listed in (a) of this section who reports to the long-term [LONG TERM] care ombudsman under AS24.57.060 [AS 44.21.232], or to the Department of Health and Social Services, that a vulnerable adult has been exploited, abused, or neglected in an out-of- home care facility is considered to have met the duty to report under (a) of this section. "Sec.__. AS 47.24.013(a) is amended to read: (a) If a report received under AS 47.24.010 regards the abandonment, exploitation, abuse, neglect, or self-neglect of a vulnerable adult who is 60 years of age or older that is alleged to have been committed by or to have resulted from the negligence of the staff or a volunteer of an out-of-home care facility, including a facility licensed under AS 18.20, in which the vulnerable adult resides, and, if the Department of Health and Social Services licenses that type of facility, the Department of Administration shall transfer the report for investigation to the long-term [LONG TERM] care ombudsman under AS 24.57.060 [AS 44.21.232] and the Department of Health and Social Services. "Sec.__. AS 47.24.013(c) is amended to read (c) Upon receipt of a report from the department under (a) or (b) of this section, the long-term [LONG TERM] care ombudsman and the Department of Health and Social Services shall (1) conduct an investigation as appropriate under AS 24.57.060 [AS 44.21.232] or this title, respectively; (2) coordinate and cooperate in their responses to and investigations of the report if their jurisdictions overlap; (3) provide the results of their actions or investigations to the central information and referral service of the department within 60 days after the receipt of the report." Renumber the following bill sections accordingly. Insert a new bill section to read: "Sec.__. AS 47.33.310(b) is amended to read: (b) An assisted living home shall post in a prominent place in the home (1) a copy of the rights set out in AS 47.33.300; (2) the name, address, and phone number of the long-term [LONG TERM] care ombudsman appointed [HIRED] under AS 24.57.020 [AS 44.21.231] and, if relevant to residents, of the advocacy agency for persons with a developmental disability or mental illness; (3) the telephone number of an information or referral service for vulnerable adults; and (4) a copy of the grievance procedure established under AS 47.33.340." Renumber the following bill sections accordingly. Insert new bill sections to read: "Sec.__. REPEALER. AS 44.21.231, 44.21.232, 44.21.233, 44.21.234, 44.21.235, 44.21.236, 44.21.237, 44.21.238, 44.21.239, 44.21.240(2), 44.21.240(3), 44.21.240(4), and 44.21.240(5) are repealed. Sec.__. TRANSITIONAL PROVISION FOR PAY LEVELS. (a) Notwithstanding other provisions of this Act, if the person serving in the position of long-term care ombudsman under AS 44.21.231 on the day before tile effective date of this Act is appointed as the first long-term care ombudsman under AS 24.37, added by this Act, that person shall be compensated under AS 24.57 at the same salary level at which the person was compensated on the day before the effective date of this Act. (b) Notwithstanding other provisions of this Act, if a person serving as an employee in the office of the long-term care ombudsman under AS 44.21.231 - 44.21.240 on the day before the effective date of this Act is retained to serve as an employee with the same duties under the first long-term care ombudsman appointed under AS 24.57, added by this Act, that person shall be compensated under AS 24.57 at the same salary level at which the person was compensated on the day before the effective date of this Act." Renumber the following bill sections accordingly. Senator Green moved for adoption and Senator Leman objected. Senator Green explained that this amendment places the long-term care ombudsman in the legislative branch and gives a deeper separation from the funding responsibilities and authority of the Department of Administration. She felt the long-term care ombudsman would have autonomy within the legislative branch. Senator Phillips noted the provisions appeared to be similar to those for the state ombudsman. Senator Green assumed the provisions were identical. However, she stressed the long-term care ombudsman advocates for senior citizens, in addition to the investigative duties as charged to the state ombudsman. Senator Wilken stated he would support the amendment only if it were a last resort measure. He expressed that he hoped this amendment would be set aside. Senator Green WITHDREW her motion but stressed that she would follow the long-term care ombudsman closely to ensure no conflicts arose. Senator Wilken stressed that the entire Committee would follow this matter closely. Senator Wilken offered a motion to move from Committee SB 204, 1-LS8002\A with individual recommendations, four zero fiscal notes from the Division of Senior Services, Department of Administration, and a forthcoming $976 million fiscal note from the Protection, Community Services and Administration component of the Division of Senior Services, Department of Administration. Without objection, the bill MOVED FROM COMMITTEE.