Legislature(2003 - 2004)

03/25/2004 03:04 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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repealed; when the  revisor of statutes reviewed the  law, it was                                                               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                                                               
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.                                                                               

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