Legislature(1995 - 1996)
04/24/1996 01:37 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 296 - NURSING HOME & ASSTD LIVING EMPLOYEES Number 1006 CHAIRMAN PORTER said the next bill for consideration was SB 296 concerning the fingerprinting of employees with certain functions within the state. He asked Senator Ellis to present his bill. Number 1019 SENATOR JOHNNY ELLIS, Sponsor, thanked the committee for hearing SB 296. He said that federal law in 1994 entitled the "Violent Crime Control and Law Enforcement Act" strongly encouraged all the states to implement criminal background checks for those employers to learn beforehand an individual applicant's fitness to care for the safety of children, the elderly or individuals with disabilities. He pointed out that states have done a relatively decent job in protecting children. There are some cases that still occur, but there are adequate laws in place and criminal background checks. However, for individuals who work in nursing homes or assisted living homes - state licensed facilities - with vulnerable adults whether they be elderly, mentally incapacitated or developmentally disabled, there is no statute requiring this, even though regulations are in place. This bill proposes to require a criminal background investigation including a fingerprint check of the records of the Federal Bureau of Investigation (FBI) as a condition of employment in those two types of facilities. Additionally, SB 296 meets the constraints of the FBI for privacy and other procedures and legal considerations. Accommodations have also been made for the Division of Senior Services for this to work as best it can programmatically. In other words, the regulations the Division of Senior Services currently have in place will be adopted into the statute and also there is some leeway allowed in the legislation of the crimes covered and the job classes covered. For example, he didn't want a statute in place that was so strict that would preclude a grounds keeper at a nursing home from having that job because he/she had a driving while under the influence conviction several years earlier, had paid their debt to society for the conviction and didn't come into direct contact with the patients anyway. On the other hand, if that same grounds keeper had been convicted of rape in previous years and applied for a job inside the facility to provide direct care to a vulnerable adult, the information would be known in advance and the individual would be precluded from direct contact. He noted that was the basis behind this legislation and some of the flexibility that has been built in. Number 1180 REPRESENTATIVE CYNTHIA TOOHEY asked why there was a zero fiscal note for this legislation? SENATOR ELLIS deferred that question to the Department of Public Safety. CHAIRMAN PORTER noted that representatives from the Department of Law and from the Division of Senior Services were available to answer questions. He invited them to come forward. Number 1212 CONNIE SIPE, Director, Division of Senior Services, Department of Administration, said no one from the Department of Health & Social Services was in attendance to testify, but she thought she could speak for them on their fiscal note. She stated that in assisted living homes which used to be known as adult foster homes and larger congregate care facilities, FBI fingerprint background check has been going on for some years by the regulations for (indisc.) in family/youth services and now by the assisted living regulations promulgated and enforced by the Division of Senior Services and by the Division of Mental Health & Developmental Disabilities. She explained how the process works is the cost is all borne by the employer or by the potential employee. The employee finds a provider, usually now for pay, who rolls prints and the employer or employee depending upon the facility, pay the money by check written to the Department of Public Safety who has their receipts authority, and that's the cost that covers both the cost at the Department of Public Safety for the state background check and an additional cost to be sent in to the FBI for that check. Therefore, there is no additional cost to the state agencies. Number 1295 REPRESENTATIVE GREEN asked Ms. Sipe if she envisioned this being utilized as was discussed that the fingerprinting would determine if there was a record and what kind of record; e.g., some sort of violence as opposed to a passive record. It wouldn't automatically exclude someone, but rather it let's the employer know what the individual's background is. MS. SIPE thought the intent of the sponsor was that through regulations, the licensing agencies would set up types of crimes and classes of employees. For instance, you wouldn't want someone who had embezzled funds working in the front office on patient accounts. She noted the current regulations for assisted living are more absolute and they have been advised by the Department of Law that they should work to more specifically relate the type of offense to the type or class of job. That will have to be done by regulation and the sponsor has brought forward some amendments that make sure the regulations currently in effect stay in place until the new regulations are implemented. She clarified for the committee that there is no fingerprint background check currently, except voluntarily, for nursing homes. Number 1400 REPRESENTATIVE TOOHEY asked Ms. Sipe if the legislation allowed some discretion in deciding who would be fingerprinted and go through a background check. She assumed that doctors, nurses, physical therapists and those types of individuals who work for pay in an assisted living facility would be checked. MS. SIPE referred to Sections 1 and 2, Criminal Background Check For Employees which state, "...the individual who is employed in a paid position..." She said, "This bill, as I see it, allows the regulating agencies to also impose broader categories. For instance, in assisted living homes, we have in regulations unpaid members of families because in adult foster type homes, you have the husband, you have the 18-year-old son, the 23-year-old son, and we have used a broader definition care giver which I believe this bill still gives us authority. This is not a restriction on us getting to other care providers or someone who is a contract employee who is regularly in contact with those providers, we could by regulation require background checking. Whether we could require each resident to have their doctor fingerprinted before the doctor could come make a house call, I don't think we could do." REPRESENTATIVE GREEN deduced this bill only deals with employed individuals. REPRESENTATIVE TOOHEY asked if that included nurses, physical therapists and individuals of that nature? CHAIRMAN PORTER interjected, "If they are employees of that particular facility." REPRESENTATIVE TOOHEY asked if there was any leeway? Number 1505 KATHLEEN STRASBAUGH, Assistant Attorney General, Governmental Affairs Section, Civil Division, Department of Law, pointed out that both the types of physicians covered in the introductory section and the types of crimes covered in Section (c) of each of the two bills are subject to regulation to ensure that it is related to that individual's job and the crime has to be related to what they do. In other words, this was an improvement made by the sponsor to make sure it is narrowly tailored to meet the needs of the residents of these homes without sweeping too broadly. REPRESENTATIVE TOOHEY expressed concern with this because in a situation where a young nursing student employed at a home while going through school would be given a background check because she's in that category which is probably fine. However, she was of the opinion that if a background check was going to be done on one employee, then it should be done on all employees. MS. SIPE said that all employees would be required to have a criminal background check. The regulations would sort out things like employees of Providence Extended Care working in an accounting building two blocks down the street, they would get fingerprinted but the emphasis would be on financial type crimes. Number 1600 REPRESENTATIVE BUNDE said his question about an individual working as a grounds keeper had been answered. However, he believed there were too many cases of predators working around the facility and getting access to patients. He was comforted that everyone would go through a background check. Number 1643 BOBBIE WATTS testified via teleconference from Anchorage in memory of her father-in-law, Paul Watts. She said that SB 296 requires a name check criminal history before assisted living homes and nursing facilities can hire an individual. A fingerprint background check is required after employing an individual. She was encouraged that the legislature was taking active steps to protect the state's elders from criminals. In July 1995, she went to work in Anchorage in what is now termed an assisted living home. She worked there until September 1995 and was never required to submit to a name check criminal history. Had she continued her employment, she doesn't believe she would have been required to submit to a fingerprint background check either since no one mentioned that requirement to her at any time during her employment. So although state regulations require assisted living homes to clear their employees in this manner and those same state regulations have been in effect since July 1, 1995, it is clear to her that it is neither being followed nor enforced. She hoped this added attention to the need for criminal history clearance would change the situation in the near future. She noted that as an untrained worker in an assisted living home, she was asked to administer strong psychotropic drugs to several elderly residents. Specifically, she was asked to mix Haldol in residents' food which she refused to do. However, several other untrained personnel did not refuse. This, too, was against state assisted living regulation. She asked committee members to imagine the danger to the state's elder residents when assisted living homes can unknowingly hire convicted criminals and allow those criminals to administer potentially deadly drugs to the elderly. She remarked this scenario is alarmingly possible. By placing the requirements for name and fingerprint check in statute rather than in regulation where it is subject to waiver, she believed a potentially dangerous situation will be corrected. She thanked committee members for allowing her the opportunity to testify. Number 1760 REPRESENTATIVE TOOHEY asked Ms. Watts where and when she was requested to mix Haldol with food. MS. WATTS replied that unfortunately, the owner of the home was not available to defend himself, so for now she would rather not say where it was. However, the time frame was about August 1995. CHAIRMAN PORTER asked if anyone else wished to present testimony on SB 296. Hearing none, he closed public testimony. He noted there was an amendment under consideration. REPRESENTATIVE BUNDE moved Amendment 1 for discussion purposes. Representative Green objected for discussion. CHAIRMAN PORTER asked Ms. Strasburgh to speak to Amendment 1. Number 1800 MS. STRASBURGH said the source of the amendment is as follows: "During the testimony in Senate Judiciary, one of the main things that I talked about was a concern that we had about trying to apply this to current employees who might be covered by collective bargaining agreements or who had been performing perfectly well. The previous language suggested that they might get terminated. After it got all the way through and we had a little more time to reflect on the language - this kind of shot out of the starting gate real fast - it occurred to me and I discussed this with Ms. Lauterbach that the language that we had retained might allow that to continue to happen because it uses the words "hire or retain." Now what that was designed to do was to allow you to terminate somebody after you hired them during this transitional period while you're waiting for the results to come back and we put this other in here -- not terminating existing employees whose performance has been satisfactory in order to -- in other words, made an effective date for it so that we didn't run into problems. I see this as more of a problem for government employees than it is for private homes, although -- and that's because you have to have just cause and I don't think that if someone is performing that you'd really be able to meet a just cause standard. However, the Alaska Supreme Court in the Ludkeky (sp) case which some of you may have heard of - it's a big employment case about the duty of good faith and fair dealing - explores the motives and behavior of private industry looking for the same things it looks for in government industry with respect to job relatedness -- that was a drug testing case. But in point of fact, this could also pose problems for private industry as well as public facilities. And the other thing to mention is there are other public facilities besides the pioneers' homes. For examples, municipalities often run the hospitals who have small extended care facilities, so there are more government employees involved in this than you might think. At any rate, this ties those two problems up very well and as someone else pointed out, it also has a transitional phase which allows the regulations that are now in existence to continue until -- you know, continue to protect people until we have a chance to get these other regulations in, which there is certainly a strong will to do but you know, there is a lag and that will take care of that. But the timing on it is -- this has all been testified about but we just kind of didn't quite grab the bull by the horns language-wise until a little later." CHAIRMAN PORTER asked if the sponsor, Senator Ellis had any concern about the amendment? SENATOR ELLIS responded he did not. Number 1919 REPRESENTATIVE GREEN said, "This is more just as a clarification. If you have an employee who made an application after this bill became effective even with this clause in there, would not be acceptable but the problem that they -- the reason that they failed is exactly the same as an employee who has a satisfactory 6-month or one-year history, is there a crack in the armor there for ACLU to make all kinds of problems?" MS. STRASBURGH quoted Oliver Wendell Holmes, "Things have to have a starting and ending date." She didn't think there was a dramatic equal protection problem if the regulating agencies craft their choices so that the choice is job related. In other words, she thought that was where the protection was for the future. She thought this would stand muster; it was rationally based, legitimate exercise of the police power and if the agencies do their jobs properly, there shouldn't be too much complaint about it. Number 1988 CHAIRMAN PORTER commented the general rule is if you set new standards for new people, you're generally alright. If you change the rules for (indisc.-coughing) generally not. Chairman Porter noted there was a motion and objection to Amendment 1 and asked if the objection was maintained? REPRESENTATIVE GREEN replied no. Number 2000 REPRESENTATIVE VEZEY commented it appeared to him this amendment says that if a person is a member of a collective bargaining unit, this law doesn't apply as long as that agreement is in effect. He thought it watered down the intent. MS. STRASBURGH said a new collective bargaining agreement would have to contemplate that the law now requires this as a job qualification. The other thing is that there is a limit to the collective bargaining impact on the job descriptions. She noted the state had won a case some time ago that said it is a permissive subject of bargaining; that the manager (indisc.-coughing) state and government under the merit system principals does have a right to set the criteria for job applications. Also, all of the collective bargaining agreements contemplate there will be changes in the law. It has been the Department of Law's experience however, that we get in trouble if we don't bargain about the effects of the new law. She noted the state was found guilty of an unfair labor practice when they imposed a change in the law on maintenance and cure versus worker's compensation. She said, "And the other thing is, it does the same thing that applying it to new employees does - it prevents someone from making an impairment of contracts (indisc.), but once the new one is in effect, everyone knows that those requirements apply to everyone and also that the new collective bargaining agreement is subject to that requirement to the extent you're bargaining about job requirements." She added that if someone is applying for a new job who is a current employee, they would also be subject to this in her view. Number 2086 REPRESENTATIVE VEZEY said the point is that the amendment creates two classes of citizens. Those that are covered by collective bargaining are not subject to this law; those that aren't, are subject to this law. MS. STRASBURGH said the intent was for an existing collective bargaining agreement not to be changed by this law, but that doesn't mean a new one won't be covered. REPRESENTATIVE VEZEY pointed out that under an existing collective bargaining agreement, there will be two classes of citizens. Those covered by this law and those who aren't. MS. STRASBURGH responded yes, just like there are new applicants and she felt there was a rational basis for that. Number 2120 CHAIRMAN PORTER said paragraph (a) applies to persons hired before the effective date of the Act, whether they are or are not a member of a union. MS. STRASBURGH agreed. She added, "And then it can't be construed to modify an existing collective bargaining agreement." REPRESENTATIVE VEZEY pointed out it also includes the word "and". CHAIRMAN PORTER recognized the use of the word "and" but to him that didn't change the effect on persons regardless of their union affiliation. MS. STRASBURGH said the same requirement will apply to everyone... CHAIRMAN PORTER stated it could just as well read, "Cannot be construed to modify a collective bargaining agreement or any other form of employee agreement." MS. STRASBURGH noted "or any other employee contract." She said it's trying to cover all the bases but if it doesn't say that, it lacks instructive value for the managers of the collective bargaining agreement as to whether they can change the agreement or not. CHAIRMAN PORTER asked if there were other questions regarding Amendment 1. REPRESENTATIVE VEZEY noted it does bring up a point that he thought was a real dichotomy in some of the court rulings which is that any citizen is immediately subject to any laws that become law. He said there seems to be an exception if there is a collective bargaining agreement involved, which to him was a real dichotomy in itself that needed to be addressed. Number 2180 CHAIRMAN PORTER commented that if the effect is wages, benefits and working conditions, yes Representative Vezey was right. MS. STRASBURGH said an existing contract which is subject to the impairment clause; it's a constitutional problem. Number 2195 REPRESENTATIVE TOOHEY said it does then cover the people that are already under the contract; they will have to be checked. MS. STRASBURGH noted that a new collective bargaining agreement will be subject to this. She thought that in most cases, new applicants will be required to do this whether or not they are subject to a collective bargaining agreement. There may be the odd collective bargaining agreement that sets out the job conditions; that would certainly not be the case in ours because the state as an employer has the right to modify job descriptions. She couldn't speak for all collective bargaining agreements that cover all nursing and assisted living facilities, but she thought the actual affect of this was going to be that new applicants would all be treated the same regardless of where they are. Number 2236 REPRESENTATIVE TOOHEY cited an example of a sex abuser working in a nursing home for three years and asked if they would have to be checked under this legislation? MS. STRASBURGH replied no. REPRESENTATIVE TOOHEY said her problem was that they were allowed to stay on the job with or without a union. MS. STRASBURGH noted that if their performance is such that they're mistreating the patients, they could be gone for other reasons. She said, "If they have a record but their performance is alright, you're going to run into trouble, Mr. Chairman, if you try to unload everybody that has a bad sheet and there's no performance problem." She said that was one of the things they were concerned about. Number 2277 REPRESENTATIVE BUNDE said that clarified the point he wanted to make. If there's a problem with a potential abuser who is currently employed, they will stay there as a potential abuser until the contract changes. CHAIRMAN PORTER asked if there were other questions or objections to Amendment 1. Hearing none, Amendment 1 passed. Number 2303 REPRESENTATIVE BUNDE made a motion to pass CSSB 296(JUD) amended, with individual recommendations and attached fiscal notes. Hearing no objection, HCS CSSB 296(JUD) passed from the House Judiciary Committee.