Legislature(1995 - 1996)

04/24/1996 01:37 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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              
 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               
 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              
 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            
 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           
 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            
 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               

Document Name Date/Time Subjects