Legislature(2017 - 2018)

2017-03-08 Senate Journal

Full Journal pdf

2017-03-08                     Senate Journal                      Page 0451
SB 81                                                                                                                         
SENATE BILL NO. 81 BY THE SENATE RULES COMMITTEE                                                                                
BY REQUEST OF THE GOVERNOR, entitled:                                                                                           
          "An Act relating to criminal and civil history                                                                        
          requirements and a registry regarding certain                                                                         
          licenses, certifications, appeals, and authorizations by                                                              
          the Department of Health and Social Services; and                                                                     
          providing for an effective date."                                                                                     
was read the first time and referred to the Health and Social Services                                                          
and Judiciary Committees.                                                                                                       
The following fiscal information was published today:                                                                           
 Fiscal Note No. 1, zero, Department of Health and Social Services                                                              
 Fiscal Note No. 2, zero, Department of Public Safety                                                                           

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Governor's transmittal letter dated March 7:                                                                                    
Dear President Kelly:                                                                                                           
Under the authority of Article III, Section 18, of the Alaska                                                                   
Constitution, I am transmitting a bill relating to the criminal history,                                                        
civil history, and establishing a civil registry for certain individuals or                                                     
entities that are licensed or certified by the Department of Health and                                                         
Social Services.                                                                                                                
There are hundreds of individuals and entities that provide medical                                                             
assistance and other services to Alaskans in need through individual                                                            
assistance or group living homes. Many of the people qualifying for                                                             
assistance are ill, elderly, or disabled. We must make sure that those                                                          
providing services to these individuals are qualified to do so; that                                                            
qualification includes assurance that an individual's or entity's past                                                          
background does not reveal behaviors inconsistent with the safe care                                                            
of our vulnerable citizens. Recognizing this need, the Legislature                                                              
enacted statutes (AS 47.05.310 - 47.05.390) in 2005 to centralize and                                                           
formalize the process by which the Department of Health and Social                                                              
Services (Department) conducts criminal background checks for                                                                   
entities and individuals who seek to be licensed providers or who are                                                           
paid, in whole or in part, by the Department to provide services to                                                             
individuals in the Department's care and custody. Additionally, the                                                             
2005 legislation authorized the Department to create a centralized                                                              
registry (that my bill would rename the civil registry) so the State                                                            
could rely on certain civil findings to bar persons from owning,                                                                
operating, and being an administrator of certain licensed facilities.                                                           
Over the ensuing years, certain gaps in the statutes have become                                                                
apparent. This legislation is designed to clarify and amend current                                                             
statutes to fix those gaps. The changes proposed by the bill ensure                                                             
proper application and fairness under the system.                                                                               
This bill would make amendments to the criminal background statute                                                              
(AS 47.05.310), removing substantive references to the centralized                                                              
civil registry under AS 47.05.330 to alleviate confusion,                                                                       
inconsistencies, and redundancy between the statutes. These                                                                     
amendments would further clarify that individuals as well as entities                                                           
may request a criminal and civil history background check. These                                                                

2017-03-08                     Senate Journal                      Page 0453
amendments would also remove language that the Department of                                                                    
Health and Social Services is a criminal justice agency as unnecessary                                                          
to accomplish the background checks needed.                                                                                     
The bill would add a new section to AS 47.05, establishing a civil                                                              
history check statute that mirrors the criminal background check                                                                
statute, primarily to clarify that the same individuals would be subject                                                        
to review and possible bar, depending on the results of their                                                                   
background check under the centralized civil registry. This statute                                                             
would further clarify what type of civil findings would prohibit an                                                             
individual or entity from obtaining a license and would establish                                                               
procedures for an individual or entity to request an exception or                                                               
variance, or to request that incorrect information in a registry be                                                             
addressed in a written finding.                                                                                                 
To simplify and more accurately set out the centralized civil registry,                                                         
the bill would repeal and reenact AS 47.05.330, providing for the                                                               
identification of a civil registry. The Department would identify by                                                            
regulation each register the Department would review to identify the                                                            
names and certain civil events that would preclude someone from                                                                 
being allowed to own, operate, be employed by, or be paid by the State                                                          
to provide medical assistance services.                                                                                         
The bill would add an important new provision as AS 47.05.360,                                                                  
establishing that a person could seek a variance from being allowed to                                                          
own, operate, be employed by, or be paid by the State to provide                                                                
services due to a condition identified as part of a criminal or civil                                                           
history background check. If the request for a variance was denied, a                                                           
person could seek review in superior court.                                                                                     
This bill makes amendments to AS 47.17.040, clarifying that the                                                                 
confidential child protection registry would contain substantiated                                                              
findings of abuse or neglect. The amendment would further clarify that                                                          
this information can be used for licensing both in and out of this state                                                        
and confirms the due process protections before placement on the                                                                
central registry.                                                                                                               
Another gap addressed is to AS 47.32.090, allowing the Department to                                                            
investigate an employee, contractor, or volunteer of a licensed entity                                                          
and, if conduct that did not comply with licensing standard is                                                                  

2017-03-08                     Senate Journal                      Page 0454
substantiated, place the employee, contractor, or volunteer on the civil                                                        
registry. Currently State law only allows the Department to investigate                                                         
and issue findings against an entity, not against individuals who work                                                          
for the entity.                                                                                                                 
Additionally, changes were made to AS 47.32.150(b), allowing a                                                                  
person subject to a civil fine as an enforcement action to have the right                                                       
to appeal the fine. The bill would allow the Department to share, on a                                                          
confidential basis, licensing information with a law enforcement                                                                
agency upon request, further strengthening protections for vulnerable                                                           
citizens. The bill would also address limitations in current law that                                                           
limit sharing and access to the Divisions of Public Health and Public                                                           
Assistance by amending AS 47.32.190 to allow any division of the                                                                
Department that is responsible for licensing to share and gather                                                                
information in order to implement the protections of AS 47.32,                                                                  
centralized licensing. This change is needed because licensing is done                                                          
by the Office of Children's Services, Division of Health Care Services,                                                         
and Division of Public Assistance. This amendment simply allows                                                                 
those divisions who are responsible for licensing to share and access                                                           
information to implement this chapter without reference to specific                                                             
divisions. This provides the Department with flexibility to implement                                                           
the chapter when they make organizational changes in the future.                                                                
This bill will improve the background check process and protect our                                                             
vulnerable citizens. Additionally, it will add the necessary safeguards                                                         
to allow persons to challenge or request a variance from the provisions                                                         
that would otherwise bar individuals from certain employment. In                                                                
order to protect vulnerable Alaskans yet offer due process and                                                                  
confidentiality protections to individuals, I am transmitting this bill                                                         
and urge your prompt and favorable action on this measure.                                                                      
Bill Walker