Legislature(2003 - 2004)
03/25/2004 03:04 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 201-HOME & RESPITE CARE: CRIMINAL RECORDS Number 1278 CHAIR WILSON announced that the next order of business would be CS FOR SENATE BILL NO. 201(HES), "An Act relating to home care and respite care; and providing for an effective date." Number 1300 BRIAN HOVE, Staff to Senator Ralph Seekins, presented SB 201 on behalf of the Senate Judiciary Standing Committee, which Senator Seekins chairs. He explained that the bill was brought forward in December 2002 by the revisor of statutes. He stated that a law was passed that referred to a statute that had been repealed; when the revisor of statutes reviewed the law, it was determined that there were inconsistencies that needed to be addressed. He said that SB 201 would clarify these inconsistencies by replacing the repeal information with criminal history record information permitted by Public Law (P.L.) 105-277 and AS 12.62. CHAIR WILSON remarked that SB 201 dealt with criminal statutes. MR. HOVE used an example that respite care providers have to do criminal background checks on employees to ensure that the employees hadn't committed certain crimes. Number 1442 REPRESENTATIVE COGHILL stated that three years ago, [the legislature] was required by public law to pass laws for vulnerable adults, and one of the requirements was to do criminal background checks on employees [of respite care providers]. He stated that during the formation of those laws, [the legislators] had apparently skipped over a statute, or referenced one that had previously been repealed. He stated that one of his pet peeves is having the federal government telling [the states] how to go about that. He stated it also bothers him that [the state] has to reference this federal requirement in statute. He said that he hasn't found a way around the federal requirement, and that SB 201 would be consistent with Alaska's vulnerable-adults law. Number 1501 REPRESENTATIVE SEATON commented that he has previously heard SB 201 in the House State Affairs Standing Committee. He explained that there were references to criminal justice information, and SB 201 only refers to criminal history records so it included information that shouldn't be acquired in a criminal background check. He stated that he is comfortable with passing SB 201. Number 1526 REPRESENTATIVE WOLF stated that he thought criminal background checks were already required for respite care employees. MR. HOVE said that it is required, but the law refers to a section of the statute that no longer exists. He stated that though it is required, there is nothing in statute that explains how to do it. Number 1609 JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, affirmed Mr. Hove's statement. He further explained that three or four years ago, a bill repealed the section of the statute that explained how to perform these criminal background checks. He stated that SB 201 was brought forth to reinstate the section of statute that is needed, and to "clean up" inconsistencies from the passage of the bill mentioned earlier. He stated that the bill that changed all of this was not sent through Legislative Legal and Research Services first, so the agency could not assess the bill until after it was enacted into law. He explained that Legislative Legal and Research Agency found these inconsistencies two years ago, and referred it to the Senate Judiciary Standing Committee. Number 1644 REPRESENTATIVE CISSNA asked if it was a true mistake or if there was a reason that the oversight happened. MR. LUCKHAUPT responded that he felt it was a true mistake because [the legislature] repealed Section 12.62.035 which was the section referred to in order to perform criminal history checks. The legislation that made this oversight was part of the new criminal justice information act that was developed by a governor's bill. He stated that the bill fixed a lot of things, but overlooked these two chapters. Number 1678 REPRESENTATIVE COGHILL asked for clarification on the scope of the criminal history record involved in SB 201. MR. LUCKHAUPT stated that there are various terms involved with criminal history and criminal justice information that are included in section 12.62. He stated that in that section, criminal history is defined as past conviction information, current offender information, and criminal identification information. He said that those three things make up the criminal history record. He explained that there is a broader term, criminal justice information, that includes those three things, as well as correctional treatment information, non- conviction information, and information relating to a person who has relocated. Number 1750 REPRESENTATIVE COGHILL referred to hearing SB 201 in the House State Affairs Standing Committee. He said that he recalled the debate over what level to require employers to obtain of an employee working for respite care providers, whether it should be the criminal history record or criminal justice information. He said that if he recalled correctly, it was determined that the criminal history record was sufficient for hiring purposes. MR. LUCKHAUPT replied that Representative Coghill is basically correct. However, for some specific purposes such as mental illness cases that requirement was broadened to include non- conviction arrest information. He explained that along with the state's requirement to conduct these background checks, there is also a federal requirement. He stated that because these statutes weren't in effect, the background checks might not have been done. He commented that in order to resolve that problem, the statutes need to be enacted to require the providers to perform the background checks on employees. Number 1877 REPRESENTATIVE COGHILL inferred that those reasons were why this bill is separate from the revisor of statute's bill, stating there are two very substantive issues; the criminal history issue and assuming authority of public law into statute. He asked Mr. Luckhaupt to provide some reassurance that if P.L. 105-277 is changed in the future that it isn't going to really "mess up" the state's statutes. Number 1909 MR. LUCKHAUPT responded that he understands the concern with referring to other statutes. He stated that there have been problems in the past where statutes were referred to and then those statutes had been amended. He said that there were certain ways that the legislature could handle this situation. He said that [the legislature] could forbid people with a past criminal record from working in respite care, or they could leave that decision up to the employer. He commented that was the reason this bill is separate from the revisor of statute's bill. Mr. Luckhaupt said that there is a federal requirement that mandates criminal background checks, and he doesn't think that is going to change. He noted that if it did, Legislative Legal and Research Services was there to identify that significant changes have occurred. He stated that the Department of Health and Social Services has many federal statutes that it has to comply with at all times and it should be watching for changes as well. Mr. Luckhaupt commented that the legislature could be specific in what crimes need to be required for review in order to get hired. Number 2032 MR. LUCKHAUPT noted that many other states are referencing the public law when creating their state statutes, and he believes that referencing the public law is the easiest way to enact the statute. REPRESENTATIVE COGHILL asked if the public law did change, whether it would require the state to make changes as well. MR. LUCKHAUPT replied that if the public law changed, the employers would still be required under state statute to perform these background checks because of the language in the statute. He told the committee that he tried to anticipate future changes when drafting SB 201. Number 2119 REPRESENTATIVE COGHILL shared that he asked that question because he wanted it on the record that the bill was drafted so that Alaska statutes would hold up in court of law if it was ever challenged. He said that he wanted the state policy to match the federal policy, but also be able to stand on its own. Number 2157 KATHRYN MONFREDA, Chief, Criminal Records, Department of Public Safety, stated that she really didn't have anything more to add. She agreed that the statute had to be changed to make it mandatory for a criminal background check. Number 2163 REPRESENTATIVE COGHILL moved to report CSSB 201(HES) out of committee with individual recommendations. There being no objection, CSSB 201(HES) was reported from the House Health, Education and Social Services Standing Committee.