ALASKA STATE LEGISLATURE
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES STANDING COMMITTEE
March 14, 2005
1:32 p.m.
MEMBERS PRESENT
Senator Fred Dyson, Chair
Senator Gary Wilken, Vice Chair
Senator Kim Elton
Senator Donny Olson
MEMBERS ABSENT
Senator Lyda Green
COMMITTEE CALENDAR
SENATE BILL NO. 4
"An Act requiring cardiopulmonary resuscitation and first aid
certifications for issuance of a secondary school diploma."
HEARD AND HELD
SENATE BILL NO. 24
"An Act relating to reemployment of and benefits for retired
teachers and public employees who participated in retirement
incentive programs; providing for an effective date by amending
the effective date of secs. 3, 5, 9, and 12, ch. 57, SLA 2001;
and providing for an effective date."
HEARD AND HELD
SENATE BILL NO. 125
"An Act relating to the licensing, regulation, enforcement, and
appeal rights of ambulatory surgical centers, assisted living
homes, child care facilities, child placement agencies, foster
homes, free-standing birth centers, home health agencies,
hospice or agencies providing hospice services, hospitals,
intermediate care facilities for the mentally retarded,
maternity homes, nursing facilities, residential child care
facilities, residential psychiatric treatment centers, and rural
health clinics; relating to criminal history requirements, and a
registry, regarding certain licenses, certifications, approvals,
and authorizations by the Department of Health and Social
Services; making conforming amendments; and providing for an
effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 4
SHORT TITLE: REQUIRE CPR FOR HIGH SCHOOL GRADUATION
SPONSOR(s): SENATOR(s) COWDERY
01/11/05 (S) PREFILE RELEASED 12/30/04
01/11/05 (S) READ THE FIRST TIME - REFERRALS
01/11/05 (S) HES, FIN
03/07/05 (S) HES AT 1:30 PM BUTROVICH 205
03/07/05 (S) Heard & Held
03/07/05 (S) MINUTE(HES)
03/14/05 (S) HES AT 1:30 PM BUTROVICH 205
BILL: SB 24
SHORT TITLE: REEMPLOYMENT OF RETIREES
SPONSOR(s): SENATOR(s) STEVENS G
01/11/05 (S) PREFILE RELEASED 12/30/04
01/11/05 (S) READ THE FIRST TIME - REFERRALS
01/11/05 (S) HES, STA
01/26/05 (S) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
01/26/05 (S) HES, STA
03/07/05 (S) HES AT 1:30 PM BUTROVICH 205
03/07/05 (S) Heard & Held
03/07/05 (S) MINUTE(HES)
03/08/05 (S) FIN REFERRAL ADDED AFTER STA
03/14/05 (S) HES AT 1:30 PM BUTROVICH 205
BILL: SB 125
SHORT TITLE: LICENSING MEDICAL OR CARE FACILITIES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/02/05 (S) READ THE FIRST TIME - REFERRALS
03/02/05 (S) HES, JUD, FIN
03/14/05 (S) HES AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
BRIAN WEBB
Anchorage, Alaska 99501
POSITION STATEMENT: Supports SB 4.
JOE MATHIS, CEO
The American Red Cross
Anchorage, Alaska 99501
POSITION STATEMENT: Supports SB 4.
RUTH KELLER
Staff for Senator Cowdery
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 4.
UWE KALINKA
Anchorage, Alaska 99501
Juneau, AK 99801
POSITION STATEMENT: Supports SB 4.
MIKE TIBBLES, Deputy Commissioner
Department of Administration
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 24.
ALEX VITTERIE
Juneau, Alaska 99801
POSITION STATEMENT: Opposes SB 24.
ROBERT MCHATTIE
Fairbanks, Alaska 99701
POSITION STATEMENT: Opposes SB 24.
JACK KAREN
No Address Provided
POSITION STATEMENT: Opposes SB 24.
SCOTT WALDREN
Kenai, Alaska 99611
POSITION STATEMENT: Supports SB 24.
KAREN DORCUS
Kenai, Alaska 99611
POSITION STATEMENT: Supports SB 24.
JOE BEEDLE, Vice President
The University of Alaska Fairbanks
Fairbanks, Alaska 99701
POSITION STATEMENT: Supports SB 24.
RICHARD ROBERTS
No Address Provided
POSITION STATEMENT: Supports SB 24.
DR. RICHARD MANDSAGER, Director
Department of Public Health and Social Services
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 125.
ROD BETIT, President
Alaska State Hospital Nursing Home Association (ASHNHA)
426 Main St.
Juneau AK
POSITION STATEMENT: Supported SB 125.
VIRGINIA STONKUS, Deputy Director
Division of Public Health and Social Services
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 125.
ACTION NARRATIVE
CHAIR FRED DYSON called the Senate Health, Education and Social
Services Standing Committee meeting to order at 1:32:01 PM.
Present were Senators Donny Olson, Kim Elton, and Chair Fred
Dyson.
SB 4-REQUIRE CPR FOR HIGH SCHOOL GRADUATION
CHAIR DYSON announced SB 4 to be up for consideration.
1:36:18 PM
BRIAN WEBB, fire-fighter paramedic, Anchorage, testified there
were many instances, such as the one related by Mr. Kalinka, in
which Alaskan's have died for want of rapid medical response and
the knowledge of how to save themselves. There are many long-
term benefits of the bill such as increasing the longevity,
survivorship and volunteer spirit of Alaska's residents. The
cost of training in cities would be low and many materials are
already available in many school districts. Many rural
communities have volunteer response services that could
administer CPR and first aid training. He supported SB 4.
JOE MATHIS, CEO American Red Cross, State of Alaska, supported
SB 4. He said passing SB 4 would make Alaska a better-prepared
state. It would give high-school students valuable job skills
since preparedness for emergencies is important in many
occupations. He respectfully requested the bill include language
that requires the high standards of the American Red Cross or
its equivalent.
The State of Alabama requires CPR training for all its students.
Louisiana, North Carolina, and Rhode Island require both
American Red Cross CPR and first aid for their students. There
are 668 Red Cross instructors in the State of Alaska,
approximately 200 of which live in approximately 50 rural
communities.
1:44:00 PM
SENATOR OLSON asked Mr. Mathis how he expected schools in the
Norton Sound Peninsula to train students.
MR. MATHIS said volunteers living in hub communities and also
through local search and rescue organizations could train
students in rural areas. The Red Cross also offers distance-
learning courses, which could be administered to students in
rural areas.
SENATOR OLSON asked whether the Red Cross would administer the
programs.
MR. MATHIS responded they would only participate if asked to
participate.
SENATOR ELTON asked whether the aforementioned states that have
a CPR requirement make it a requirement for graduation.
MR. MATHIS did not know.
SENATOR ELTON asked how CPR training could be administered to
children who are schooled at home.
MR. MATHIS had not considered that. He would like the
Legislature to consult the Red Cross before passing legislation
involving the standards of CPR and first aid training.
SENATOR WILKEN and SENATOR KOOKESH arrived at 1:47:06 PM.
JENNIFER APP, American Heart Association, said cardiovascular
disease and stroke are the number one and number three killers
in the United States respectively. One in twenty Americans die
of cardiovascular diseases each year. Sudden cardiac arrest
claims the lives of 220,000 annually. Survivorship of
cardiovascular disease is increased when victims are treated
with CPR.
1:49:41 PM
RUTH KELLER, staff for Senator Cowdery, remarked with respect to
Senator Elton's earlier question about home-school training,
there are several correspondence charter schools such as the
Alyeska School that require first aid in their curriculums.
First aid programs are done through video teleconferencing.
UWE KALINKA informed his son was involved in an automobile
accident in which an entire half hour elapsed before medical
response. The various harms associated with slow response times
could be partially alleviated by passage of SB 4.
CHAIR DYSON held SB 4 in committee.
SB 24-REEMPLOYMENT OF RETIREES
1:54:25 PM.
CHAIR DYSON announced SB 24 to be up for consideration.
MIKE TIBBLES, Deputy Commissioner of the Department of
Administration (DOA), addressed some concerns raised during the
last meeting. While the concerns address issues that are very
serious for the department, there are also serious recruitment
problems in various organizations throughout the state. He was
aware of cases in which organizations have had recruitment
failure for as long as six months. SB 24 could be a valuable
tool for assisting such organizations when other recruitment
efforts have been exhausted.
MR. TIBBLES said he would like to walk through an administrative
order signed by the Governor on March 8, 2005. The department
believes the order addresses some of the issues raised. He said:
1:57:00 PM
This administrative order, signed by the Governor,
will require all agencies to go through a thorough
recruitment process before an employee is eligible to
come back under a 242 waiver. A recruitment notice
must be placed on Workplace Alaska for a minimum of 15
days. The agency must consider all applicants and if a
retiree is selected, that applicant must separate from
service for a minimum of 30 days.
In addition, the recruitment must result in fewer than
five qualified applicants. The hiring authority must
demonstrate why no other individual has the knowledge,
skills, and abilities to perform the duties. The
Division of Personnel, Department of Administration,
must sign off on the hire of the 242 to insure that
all of these policies and procedures have been met.
MR. TIBBLES said even these requirements are not enough; they
are simply some requirements that must be followed by the
division and other agencies. Since 242 hires and waivers are, in
the department's opinion, a short-term solution to a long term
problem, the department wants to be very proactive in working
with other state agencies to develop workforce plans to deal
with these shortages so that the state is not in this situation
in the future.
The department would like to require the hiring authorities
utilizing 242 waivers to work with the Department of
Administration to understand why recruitment efforts failed and
to develop a plan to transfer the knowledge required in these
positions to other employees. The administrative order clearly
indicates that all of the personnel rules and statutes shall
apply as far as advance step placements. The department also
encourages agencies to develop a strategic view of human
resource needs so they can anticipate and proactively address
future shortages. His department is confident the procedures
established in the administrative order will prevent abuses in
the program and the original intention of the bill will be met.
2:00:24 PM
SENATOR ELTON asked whether the administrative order would apply
only to state agencies.
MR. TIBBLES responded the administrative order would only apply
to state agencies and not other PERS employees.
SENATOR ELTON asked whether the administrative order would allow
municipalities to set their own standards.
MR. TIBBLES responded his department would encourage
municipalities to adopt standards that are similar to those of
the state, but the main issue with PERS employers is to make
sure they don't accrue additional liability to the system.
SENATOR ELTON asked whether the administrative order creates
regulations or if it stands in the place of regulations.
MR. TIBBLES responded:
It would be in the place of regulation. We would have
policies, I believe through the administration manual,
to implement. I know that those are being developed
and sent out to all departments. We will have policies
that must be followed to implement this administrative
order.
SENATOR ELTON remarked Section 2A of the administrative order
says the recruitment must be conducted from an applicant pool of
less than five qualified eligible and available applicants. He
asked whether employers are having problems getting desirable
applicants or if they are having problems simply getting
applicants. Employers are reluctant to hire people who have
graduated at the bottom ten percent of their class.
MR. TIBBLES responded the state government develops job class
specifications for every position in state government. Within
these job classifications there are minimum qualifications (MQs)
that must be met before someone is eligible for consideration.
The department, to ensure they meet the MQs for their
prospective positions, reviews all of the applicants.
2:04:39 PM
SENATOR ELTON asked whether the administrative order would
require an employer to give preference to a less qualified
recent graduate over a more qualified retired applicant.
MR. TIBBLES responded:
We did not require, for the reason that you are
pointing out, if one had a qualified non-retired
applicant, one would have to hire that applicant. We
required that one must demonstrate recruitment
difficulty resulting in fewer than five qualified
applicants. There still would be an applicant pool
and the candidates would have to be considered prior
to considering the retired employee.
SENATOR OLSON said 15 days might not be an adequate length of
time for employers to post their positions on the Workplace
Alaska Website. He asked the normal length of time for jobs to
be posted for normal recruitment.
MR. TIBBLES responded the standard is a minimum of ten days and
a maximum of 30 days.
CHAIR DYSON asked the liability the state has for retirees who
have already been rehired and led to believe their participation
in the program would not be terminated at the sunset of the
program.
MR. TIBBLES could not answer the question at the present time.
CHAIR DYSON remarked he is open to the possibility of delaying
an inquiry into the matter given the concern that lawsuits may
be developing.
SENATOR ELTON remembered the last committee meeting where Mr.
Tibbles mentioned he would prefer not to put the sideboards into
state law. He asked how the administration felt about adopting
the elements of the administrative order into law.
MR. TIBBLES responded:
Mr. Chairman, Senator Elton, I believe that we made
our best effort to try and determine what the policy
should be if this program were to continue. In fact,
this was effective immediately March 8. It will be in
place now and I want to point out that it has been
effective. We had a department already request an
individual to return for rehiring and we asked how
many applicants that they had received in their
recruitment and the number was 15, so we denied it. So
it is in place now and will be until the sunset of the
original program, if it is not extended.
Going forward, I believed that we developed what we
thought would be the 'right recipe' as you termed it.
We may find out that it is something different. We may
find that the time requirement should be more or less.
We may find out that we should consider all
applicants, which may require recruiting out of state.
So there may be modifications needed and I believe
that it would be nice to have the flexibility to amend
without having to come back to the legislature and
seek a statutory change for a small thing that might
otherwise be more helpful and efficient to do
administratively.
2:09:57 PM
ALEX VITTERIE, retired state employee, said he supports the
concept that the most qualified, most productive people should
be allowed to work for the state, but questioned whether it is
possible given the administrative order's five applicant rule.
He said the bill violates the principle of the retirement
program in which one gets what one put into it. He would support
the retire-rehire program provided that it doesn't cause the
retirement system a greater deficit by allowing retirees to
enter a higher retirement category than the one that they
retired under. He suggested the state place a cap on the length
of time that rehired-retirees should be allowed to work. He
commended the state for its efforts to promote mentorship.
2:13:54 PM
SENATOR OLSON asked Mr. Vitterie whether or not he was in favor
of SB 24.
MR. VITTERIE said he would favor the bill if it was modified,
but he opposed SB 24 as is.
2:15:20 PM
ROBERT MCHATTIE, Fairbanks, said:
Rehiring will set the system right for abuse, in my
opinion. Keep in mind that most of the rehires are
brought back to their old jobs because of someone's
determination that they simply couldn't be replaced.
After returning to hold down their old position,
rehires don't pay another red cent to help support
PERS or TRS. They are draining, but they're not
putting anything back in and they are often holding a
high position. I want to give you a couple of examples
of abuse that have come up lately.
In Fairbanks, eight Fairbanks police officers were
involved in a just-failed lawsuit against the City of
Fairbanks. The police rehires were collecting job
paychecks plus retirement paychecks plus other
retirement benefits plus additional city payment into
social security or whatever their equivalent system
is. They were suing to make the city fund an
additional retirement plan for when they re-retire.
The police can try again in a higher court and if the
police eventually prevail, it can set a precedent for
all other PERS-TRS rehires to sue towards a second
retirement.
Now, I will talk about a more subtle form of abuse.
With all due respect to the DOA, I think this has to
do with the DOA not really knowing the law and not
setting rehiring rules until they sent the
administrative order of March 8, four years after the
program was initiated. They sat there with essentially
no rules. The DOA expresses concerns about lawsuits
from rehires, which are about 350 strong and growing,
who claim the right to simultaneously collect a job
paycheck plus a retirement paycheck plus other
retirement benefits from government coffers forever.
The DOA concern harkens to the fact that all of the
hiring agencies were darned well responsible for
knowing and divulging to rehires that HB 242 sunsets
in 2005 and there was no provision for grandfathering.
That was obvious. The DOA has no business attempting
to prevent the HB 242 sunset based on the premise that
nobody could properly interpret the law. The DOA did
not even bother to get an attorney general's opinion
on the meaning of the 2005 sunset until about November
2004. The DOA knows that it has created a monster and
now it is worried that the monster is hungry.
Does the state really do itself a favor by forming a
cadre of older super-experienced employees? Well
maybe, but consider that each year of reemployment
means one less year of experience that could have been
gained by a replacement. Even the most valuable rehire
is finally gone after a few years; they just don't
stay there forever.
2:19:42 PM
JACK KAREN opposed SB 24. He said HB 242 has not been
administered in a fair equitable manner. The state has adopted
no credible procedures to define when a workforce shortage exits
and it is common for upper level managers to be hired by their
peers while others are denied opportunities for advancement.
SCOTT WALDREN, former program member, testified in support of SB
24. He said by implementing the bill, the state could answer its
concerns about employees that were lead to believe they would be
able to remain in the program after its sunset date.
CHAIR DYSON asked Mr. Waldren whether he would have retired if
he had known he would not be allowed to participate in the
program after the sunset date.
MR. WALDEN advised he would have retired.
2:23:47 PM
KAREN DORCUS, program member, testified in support of SB 24. She
said her decision to retire was based on her understanding that
she would be allowed to remain in the program after the sunset.
2:26:04 PM
CHAIR DYSON asked Ms. Dorcus whether the university saved money
by her retirement and subsequent rehire.
MS. DORCUS responded the university saved about $25,000.
JOE BEEDLE, Vice President of the University of Alaska
Fairbanks, supported SB 24. He said:
We find ourselves in the United States, and in Alaska,
near full employment status, especially with regards
to specific areas of employment and expertise. As far
as the state in general, having a good benefit
program, one that encourages retirement, we probably
are a little less favorably perceived in terms of just
salary alone. It is my observation that we probably
over-incent people to retire. Looking forward to some
of these new tiers, which are yet a new bill, I think
they will probably provide some relief.
Having said that, we are stuck with the current
program that encourages retirement and doesn't retain
the expertise that otherwise cannot be replaced. I
speak in favor of keeping this tool available for the
university, for the departments and for employers in
the state so that we have that expertise that is so
precious for us. I would just ask for your
consideration in doing so.
2:28:59 PM
SENATOR ELTON asked whether the program allows the university to
rehire professors at a lower salary than they had at retirement.
MR. BEEDLE responded the university certainly enjoys the
flexibility that the bill allows it in its hiring practices. The
university is blessed with an outstanding adjunct faculty and
unlike the K-12 school system; it has been quite successful at
attracting people on an adjunct basis.
2:31:09 PM
RICHARD ROBERTS, resident, said the Alaska State Troopers in the
Mat-Su Valley are so badly understaffed they are sending
individual state troopers to respond to calls for which the
Anchorage Police Department would send five or six police. The
troopers have had several members participate in the retire-
rehire program to enter positions for which there were no other
applicants.
CHAIR DYSON held SB 24 in committee.
SB 125-LICENSING MEDICAL OR CARE FACILITIES
2:34:39 PM
DR. MANDSAGER, Director, Division of Public Health, Department
of Health and Social Services (DHSS), introduced SB 125 with the
following remarks:
Thank you for the opportunity for to introduce SB 125,
a bill to consolidate The Department of Health and
Social Services (DHSS) licensing, certification and
background check functions. This bill has been
introduced by the Governor and I am privileged to
introduce it for discussion.
You have been provided with some slides that summarize
some of the issues that are in this bill. I am going
to speak from that for a few minutes and then I will
be available to take questions. Why introduce this
bill? It is complex; there are lots of issues involved
with it. What is wrong with leaving things the way
that they are? The answer is that the existing
statutory and regulatory environment is a very complex
patchwork. There are some places where there are lots
of details and there are others that have almost
nothing. Agencies that deliver more than one type of
care have different sets of regulations for the
different parts of the work. The department regulates
and licenses many types of facilities with different
rules that have come on line over the decades at
different times. Some have rules in statute, most
have rules in regulation, and some have almost no
rules.
It does not make sense to continue to maintain those
differences. It is very difficult for the Department
of Law (DOL) to handle appeals. It's hard for agencies
that are applying for licenses to keep track of the
different standards and regulations. In some of the
places where we do have some background check rules,
we can sometimes pass them when one probably should
not. In other places we have programs that don't have
any background check process in place to look at
someone's experience when they are applying to work in
a situation in which they are taking care of
vulnerable people.
Because there are variable requirements there are lots
of costs to the state and to providers. A quote at the
bottom of slide two from Mathew Jones who is the
Director of Assets, says 'Recruiting and hiring is an
area where we can't afford even a single failure of
the system.' We are taking care of vulnerable people
and we should do the best job that we can.
On slide three there are some stories from both our
state and in other states of where there are instances
of abuse and neglect. The first bullet is a story from
our state last summer where a supported-living home
provider was misappropriating funds from a resident.
There is no current requirement for those homes to be
licensed; no background check process is required and
in this case none had been performed.
In another case, an assisted living home attendant was
fired from his treatment: the facts were presented to
law enforcement; no charges were filled; the case was
dropped and this person is currently available and
eligible to work as a care provider. In another case,
three Alaskan nurse aids were found to be mistreating
residences for a nine month period well after the
mandatory reporting time period. That is one industry
where reporting is required, but two of these findings
have not yet been entered into any registry and one of
those two involved physical violence.
2:38:36 PM
In another state a person was involved in a stabbing
in a convenience store involving someone who was later
identified as a long-term care provider. On the
converse side, if someone is working as a personal
care attendant, they are often working for multiple
agencies and they have to go through a background
check before they apply for any agency for which they
work. So there is a multiplicity of requirements on
that side.
There are lots of gaps in the oversight process. I was
struck that we currently have 19 different programs
administered under 12 different statutory schemes for
licensure under the department. The goal of this bill
is to simplify, standardize, make things as uniform as
possible and make it as understandable as possible to
the provider community, to us on the state side and to
the clients themselves.
Care provider's work under a patchwork of regulations
that sometimes conflict. They can sometimes have
employees that can work in one program and not
another. We on the licensing side have to learn all
those rules and our staff must keep them straight. It
makes it very difficult to cross-train employees to be
able to move from licensing assisted living homes to
evaluating other kinds of programs.
Over the last year, three licensing program units have
been consolidated within Department of Public Health
but the programs are stand-alone programs because the
rules are still separate. So, our staff must maintain
expertise in the different rules.
2:40:05 PM
Slide five shows the scope of the project. The blue
ovals show the public health programs that have
already come into a centralized certification and
licensing group. The purple rectangles are the ones
that, over the next three years or so, would slowly
come into a centralized certification and licensing
unit on behalf of the department.
When I started last summer, I asked the question; how
come in public health? Since we don't make any
payments in public health to provide some point of
independence within the department, rather than the
divisions that both pay services and regulate. The
regulation function is being centralized in public
health to separate it from the payment side.
Slide six shows some of these different regulatory
schemes. You can see several colors there that
nominate the different kinds of programs that are
licensed or certified within the department. When we
use the word certified, it is usually means certified
by CMS, with Medicare as a payer.
2:42:07 PM
Supported living homes are currently not subject to
either background checks or licensure and this statute
envisions that they would become subject to background
checks. There is an attempt to make the definition of
'assisted living home' more straight forward so that
we don't have any facilities trying to skate by
saying, 'We are a supported living home We are not an
assisted living home, we do not have to be licensed.'
Slide seven gives one an idea of the complexity of
this bill. It shows the various parts of the statutes
that will be maintained, the parts that will be moved
to regulation, the parts that will be repealed as they
are moved to regulation and parts that are amended.
Slide eight discusses the content of the bill. There
is an addition of a new chapter to centralize
licensing and administration. It defines what entities
must be licensed, the licensed conditions, appeals and
complaints, our rights and responsibilities,
confidentiality protection and criminal penalties for
violations.
Section 17 is a new article to centralize background
checks and registry functions. In some places there
are background checks, but in many places there are
not. This will define who is required to have
background checks. It provides for the regulatory
definition of barrier conditions of those kinds of
crimes that either permanently or for some time
period, prevents someone from working in an
institution or program that is providing services to
vulnerable populations. It requires a centralized
registry to be created and maintained that lists
people that meet those definitions, individuals that
have committed barrier crimes.
2:44:10 PM
Slide nine talks about the background check process.
It defines the barrier conditions to employment in a
consolidated regulation definition. It will include
some differences between those programs that serve
children as opposed to those that serve adults. All
service providers, including volunteers, with direct
patient contact will be background checked. Charges of
a barrier crime are sufficient to bar employment. That
is a high bar, a high standard that is proposed in
this bill. An employee misconduct registry will be
implemented, a standard waivers process will be
defined and a standard appeals process will be
implemented.
Finally, the last slide is just one of dozens of pages
of comparisons of these differing programs and their
differing rules. This is only to illustrate that our
staff is currently dealing with multiplicity of rules
for different types of programs. I am told that there
are about a couple hundred pages of cross walk for
trying to keep track of the variations in the
different programs.
If this bill is to be acted upon by the Legislature,
then the other part is what is the regulation process
going to look like? We are trying to have the two
parts move ahead. My thought about this is that there
are two industries that have most of their rules in
statute, which are the assisted living homes and the
Hospice group. For most of the other groups that are
listed here, their rules are mostly in regulation at
present.
The final comment that I would like to make is that we
are already working on amendments and I am assuming
that there will be more questions and more amendments
coming. They are not ready for introduction today;
they are here just to give you some sense about issues
that have already been raised since the bill has been
introduced.
One is the implementation date of the bill; it calls
for the background check to be implemented on July 1st
of this year. There is no way that that can happen
even if the Legislature was to act between now and May
10. There would still have to be a regulation process
and time for public comment, so that needs to change.
Another question that has surfaced is how does one
deal with an employee that has been terminated for
neglect, abuse, or exploitation, but for whom there
hasn't been legal system adjudication. How do we know
about it other than self-reporting? Do we expect
people to self-report when they go on to a registry or
do they only self report when they apply to a job?
That is an issue that I have been wrestling with and I
expect that the Legislature will have questions and
comments about it.
Another is the list of organizations subject to
licensure. Should other organizations or programs
providing invasive treatment or diagnostic services be
subject to licensure in the future? I personally think
that they probably should be and that we should have
some flexibility to be able to allow for the evolution
of services in the future. We are trying to think
about some kind of language that could be proposed for
that. With that, I will stop I am available for
questions.
2:48:46 PM
CHAIR DYSON encouraged the committee to consider the barriers to
employment that are listed on page 8. He said the requirement of
public registry for people who fail to meet the barrier
conditions will raise some very significant privacy and personal
liberties issues.
CHAIR DYSON asked Dr. Mandsager to list the barriers to
employment.
DR. MANDSAGER responded some examples would be adjudicated
sexual abuse of a minor or an adult, felony assault and battery
and some misdemeanor crimes.
CHAIR DYSON asked whether domestic violence would be a
sufficient charge.
DR. MANDSAGER responded some types of domestic violence would be
sufficient.
CHAIR DYSON asked whether a driving under the influence
conviction would be sufficient.
DR. MANDSAGER responded it would, but remarked there are varying
levels of exclusion. Some crimes cause a barrier for five years,
some for ten years and some for fifteen years. It would depend
on the severity of the crime.
CHAIR DYSON asked whether there were medical conditions that are
barrier conditions.
DR. MANDSAGER said there are.
CHAIR DYSON asked whether HIV, Hepatitis C, and sexually
transmitted diseases that do not require genital contact for
transmission are barrier conditions.
DR. MANDSAGER was not prepared to answer the question, but would
take it under advisement and answer it later.
SENATOR OLSON asked why there are different colors used in the
outline of the Hospice system on slide six.
VIRGINIA STONKUS, Deputy Director, Division of Public Health and
Social Services, said there are two types of Hospice
organizations in the state, for-profit, which are licensed, and
non-profit which are not.
SENATOR OLSON asked the effect the bill would have on private-
sector institutions that are providing many of the services.
MS. STONKUS replied:
The driving factor for background checks has warranted
the federal government to grant funding for which we
are recipients. The department has, in this bill, made
a requirement that any organization that receives any
funding to support these services will be subject to
background checks. Of course, there is also the life,
health and safety of those in our care. As Dr.
Mandsager said, it is a high bar to set, but the
concern again would be that these individuals are
entrusted to our care, that we are paying and that is
the extent that we are willing to go for them.
SENATOR OLSON said:
So if I am hearing you correctly, this bill is going
to cause an extra financial burden on those private
institutions that must comply with this statute.
DR. MANDSAGER said:
Most of the changes should make life easier on the
regulation side. On the other hand, as we have noted,
there are some programs that are not subject to
background checks at present and this would create a
new cost for them. The question of how much this new
cost will be over time is really an unknown. The other
balance point here is to make sure that we maintain
providers in all parts of the state and we don't put
such a barrier to either program integrity or
employment that we can't keep programs viable. I am
looking forward to working with the legislature as it
works through this and find the balance point to
protect the vulnerable populations on the regulatory
side, but keep providers viable on the program side.
SENATOR OLSON remarked the fiscal note might be incorrect since
it reports a zero cost despite the hundreds of hours of attorney
time required to develop the bill.
DR. MANDSAGER said there are two parts to the fiscal note. One
is a federally funded background check project, which would be
used to initiate the whole process. It would not be a cost to
the state. He said the department has not been able to estimate
the cost of the new programs and of applying its regulations to
employees that would be subjected to the bill if it is enacted.
MS. STONKUS said:
There is a set fee that agencies pay to have
background checks done by the FBI then by in-state
agencies. What we are hoping to be able to do, through
the funding that we were successful in getting from
CMS, is streamline our background check process even
further. We have been working with several of the
agencies that we have in-house. We want to be able to
emulate the same efficiencies where they exist and
hold any additional costs that may be incurred to an
absolute minimum wherever we possibly can.
2:56:17 PM
DR. OLSON asked:
What effect is this going to have outside of the
federally funded facilities for example, the 638
contractors?
DR. MANDSAGER replied:
I have been thinking about that question and I have
asked Myra Munson to think about that question to. The
federal government has a requirement for any providers
that are providing care to women or children to be
subject to a federal set of barrier crimes. In that
system, there is a 100 percent lifetime ban for
committing one of those crimes.
Having experienced that system during my federal
career, my experience is that there are some crimes-
say for example, a nineteen year old gets drunk and
gets into a bar fight and an has assault and battery
conviction and twenty years later, that person has
been a responsible member of society, has had a job. I
would argue that, at that point, that person has been
rehabilitated and should be able to be employed.
The exact interplay of this with a 638 provider I am
waiting for advice from the tribal attorneys as to
what they think about this. I asked them to be
watching for this when the bill was introduced.
CHAIR DYSON said he and his wife, as well as his two children
are licensed foster homes. He said that might represent a
conflict of interest. He did not believe it did and would not
disqualify himself from the committee proceedings.
SENATOR ELTON asked whether there is a distinction between the
terms "charged with and acquitted" and "charged with and
pending" as they are used the analysis provided by the
department.
DR. MANDSAGER said there are perhaps two questions embedded in
that question: "What is a barrier to registry?" and "What is a
barrier to employment?" He said the registry would only include
information pertaining to people that had been adjudicated in a
legal system. However, if a person were charged with certain
crimes, it would be a barrier to employment, at least pending
adjudication down the road.
2:59:42 PM
SENATOR ELTON asked whether fingerprinting was part of the
registry process.
DR. MANDSAGER responded fingerprinting is part of a background
check, but the fingerprints would not be on the registry itself.
He asked his associate to confirm that this is correct.
MS. STONKUS said it is partially correct. The registry was
originally envisioned to prevent individuals suspected of having
committed specific crimes and who had resigned from their
caretaker jobs from being hired to similar caretaker positions.
3:01:44 PM
She said the assumption is that any employer would be subject to
finger printing as a background check; so ultimately, to answer
the question, it would be part of that process.
SENATOR ELTON said the provision says on page 27, Section 17,
that:
Information contained in the registry is a public
record that is subject to public discussion and
copying.
He said he would like to know the kind of information in the
registry.
DAN BRANCH, Department of Law, said:
It is my understanding that the privacy information
would be redacted before the entry would be entered
into the registry. That being said, obviously the
names of people who were adjudicated to have
neglected, abused or exploited a child or vulnerable
adult would be in there. I envision that the
information would be the name and then what they were
adjudicated to have done, but not the name of the
victim or any other information. There would be no
information for anyone other than the wrongdoer.
3:03:21 PM
SENATOR ELTON asked whether the name of an employee would be
placed on the registry simply because he was suspected of
wrongdoing and subsequently left his employment.
MR. BRANCH said the identifying information provided in the
registry would only pertain to persons who have been judged by a
court to have had committed acts of wrongdoing.
SENATOR ELTON asked whether he is correct in believing that
identifying information would not be available in a centralized
registry to future employees in all cases without adjudication.
MR. BENCH answered:
That has been a subject of intense internal debate. I
think that it's fair to say that some of us are not in
agreement at present, that we can't get anything into
the registry that would accommodate that kind of
information. I understand the DOL's view that
somebody, like you and Virginia talked about, who has
not been adjudicated, who has not had due process,
should not be placed on the registry. On the other
hand, if we are going to have a registry and don't
include them, I am wondering what value it would have
other than making it simpler to look at adjudicated
cases. I am looking for advice about this subject as
we get into this discussion.
3:05:43 PM
CHAIR DYSON asked whether it could be the case that some charges
dropped as part of a bargain would not be listed in the registry
if non-adjudicated charges are not listed in the registry.
3:07:07 PM
DAN BRENCH responded:
The registry that we are talking about doesn't talk
about criminal law. But I understand your question I
used to be a defense attorney and I know how that
works. A lot of times you try to plead in order to
avoid the impact of a statute. I don't have an answer
for you now, but I think I understand the question. We
can talk about it and see if there is something in the
bill that meets your concerns. If not, we can look at
putting something in there.
DR. MANDSAGER said if the bill were to be passed as written
today, a person who falsely denies having committed certain
crimes would be liable for falsification.
CHAIR DYSON said he would like to know the effect the bill would
have on the CON process and on abortion facilities.
SENATOR OLSON remarked the bill would likely have an impact on
private sector providers. He would like to see a balanced amount
of input from the private and public sectors.
CHAIR DYSON encouraged the committee to provide notice to
persons who may have an interest in the bill. He remarked that
challenges the committee to weigh important civil rights issues
with the importance of protecting vulnerable members of society.
3:11:49 PM
ROD BETIT, President, Alaska State Hospital Nursing Home
Association (ASHNHA), presented a letter from his agency and
said:
Nursing homes and hospitals have been under very
strict laws and licensure for a long time, so this is
a practice that we are very familiar with. It is very
laborious, but it has been very important with
improving patient care in those two settings. Now it
will spill over into a number of other areas in the
community and looking at the possible fiscal impact is
a very wise thing to do.
Generally we support what this bill is trying to
accomplish but I want to point out a few things that
you ought to take a serious look at. Page 6, Section
47.32.060, subparagraph C, lines 13 to 16, this is
basically a technical issue in my mind. It deals with
license renewal and the time frame that the department
has to respond to that.
Early in that part of the chapter it says that you
need to file within 90 days in order to have a timely
review done. When you get to lines 13 to 16, it says
that if you file and the department can't complete
your review by the expiration date, you automatically
get renewed for an additional period of time.
My question here is, what is the incentive for filing
early? If you can file the day before your license
expires of if you can file 90 days before your license
expires, and you are treated the same, why wouldn't
you wait, especially if you are coming out of a
facility with problems, until the last minute so that
you could come under the protection of the extension.
I don't know what that incentive ought to be. I am not
suggesting that people not be continued because there
is important business to be conducted, but if you are
going to have a time frame, it seems that there should
be some sort of distinction.
Further, if you go to section 47.32.140, subparagraph
A on page 8, lines 29 through line 3 on the next page,
this talks about when the department would actually
stop a provider from doing business by revoking or
suspending his license. This is pretty heavy stuff
and there is nothing in this area that talks about how
that would be done. I would make the point that if
that is ever going to be done, it should be done by
the Commissioner, in writing, with clear findings to
suggest that operating the service is a greater risk
to the people being served than stopping it.
Once that decision is made, it must be clear who is
responsible for the care of the patients. If you are
talking about assisted living or children you are
talking about certain settings. It must be clear that
the provider no longer has legal authority to direct
that care. The department must immediately designate
somebody to assume that responsibility as well as
responsibilities associated with daily operations,
financial liabilities and liability for any care
problems that arise during that period of time. I have
done this here and in Utah, so I know what it entails.
It is pretty difficult country to be navigating
without any kind of guidelines as to how you are going
to do it.
3:16:04 PM
SENATOR OLSON asked whether there have been problems in the
aforementioned area in the past year.
MR. BETIT replied it has not been a problem in the recent past.
Creating a broader pool of licensed providers requires solid
guidelines in the previously mentioned areas.
SENATOR OLSON asked what happens when an investigation
vindicates the licensee.
MR. BETIT answered the state would only act in instances where
it had a well-developed case, but he said the state should be
liable for any economic damage that occurs to the provider as a
result of its action.
SENATOR OLSON asked what would happen if a provider is driven
out of business.
MR. BETIT responded that while it is difficult to restart a
business, the managers of the business should still have
recourse against the state.
SENATOR OLSON responded:
With all due respect, actions against the state have
not been necessarily in the private sector's favor in
the proceedings that I have seen, especially in the
Legal Department. That is just a point that I want to
make.
MR. BETIT said:
I agree with you. Later on I do speak to that and say
that it would be our position that if it is determined
that the state's action was too excessive, the
provider should have recourse against the state. You
can't write that out via this bill.
He continued the next point of his letter concerns how the state
should take action against care providers while ensuring that no
one is hurt in the process. He said the intent of the section
was to help the state understand that it assumes a huge
responsibility in giving the department that kind of power.
MR. BETIT said AS 47.32.170, on page 13, lines 16 to 18, talks
about immunity for state agents and state employees. He said his
agency would oppose the immunity provision of the bill if it
allows the possibility that a vindicated provider could have no
recourse against the state after it suffered great financial
damages as a result of the state's action. The state should be
liable for any injuries caused by its failure to properly
supervise the transfer of care from a facility that it ordered
to close.
MR. BETIT said:
With respect to protecting employees, one can be sued
in one's personal capacity as well as in one's
professional capacity. One cannot break those apart
and bring one's personal component back into the
professional job that one is doing. One is on one's
own as far as the personal part because most state
rules don't permit the state to defend an employee on
the personal side of what they are doing. I have been
there a few times and it is a hair-raising experience
until things are sorted out.
3:21:38 PM
It might be advantageous, given that these are people
that are making very difficult decisions, to provide
some coverage for counsel to sort through that. It
doesn't give them protection against damages if they
are ultimately proven to be outside the professional
realm and did something inappropriate. If that is the
kind of immunity that you are looking for, I think
that the best way to get there is to make it clear in
the statute that in most cases you can have private
counsel for them as well as the attorney general's
office representing on the other side.
MR. BETIT urged the state to make a clear distinction between
personal and medical care when regulating assisted living
facilities.
3:23:44 PM
SENATOR OLSON asked whether the committee should tighten up the
definition of 'assisted living home' as it is given on page 15,
line 25.
MR. BETIT responded:
Yes, to say explicitly whether you want people in
those facilities, which require medication management,
to be able to get out of the building on their own,
because you will find people who cannot get out of the
building. If you don't make that clear and at some
point someone will get hurt, something will happen,
and the state will have some culpability there.
CHAIR DYSON held SB 125 in committee. There being no further
business to come before the committee, he adjourned the meeting
at 3:25:15 PM.