Legislature(2003 - 2004)
02/04/2004 01:32 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 MS. VIRGINIA STONKUS, Division of Public Health, Department of Health and Social Services (DHSS), testified that the department was in support of the bill and that she was available to answer questions. She noted fiscal notes from both DPS and DHSS. MR. BRIAN HOVE, Staff to Senator Ralph Seekins, testified that SB 201 solves a problem that occurred during the prior administration. He referenced home care providers Title 47, noting that AS 12.62.035(a) was repealed; SB 201 corrects that gap. SENATOR LYDA GREEN mentioned that 201 is somewhat of a Revisor's Bill. CHAIR DYSON inquired about the practical applications of SB 201, asking, "What difference does it make?" MR. HOVE responded that the bill allows home care providers to access certain records available through public law. He said Jerry [Luckhaupt] would speak to the bill's technical applications. CHAIR DYSON asked if home care providers' ability to perform criminal background checks would be inhibited without this bill. MR. HOVE responded he understood this to be so. CHAIR DYSON asked if SB 201 originated in [Senate] Judiciary. MR. HOVE explained that Senator Seekins was the primary sponsor; the bill came through [former] Senator Robin Taylor's office, the prior chair of Judiciary. CHAIR DYSON clarified that Version H, which was before the committee, was from Judiciary, not Senator Seekins. MR. HOVE confirmed this was correct. JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Research and Legal Services, testified that the revisor discovered the problem in statutes and contacted the Judiciary chair who decided to sponsor the bill rather than making it a technical amendment to the Revisor's Bill. Home health care providers and nursing facilities, before being issued a license and before allowing employees to work, are required to perform certain background checks of employees; that refers to a statute that was repealed in a governor's bill about five years ago. Basically this leaves no direction regarding which convictions employers are allowed to check. There is also a federal law requiring home health care providers and nursing facilities to perform background checks, thereby giving them access to federal records. Mr. Luckhaupt continued that he looked to the federal law, Public Law 105-277, noting that it requires certain criminal records of employees to be checked. Right now, checks are being required under a state statute that doesn't exist; this doesn't make much sense. CHAIR DYSON referenced the letter from James Crawford included in the committee packet. MR. LUCKHAUPT explained that as assistant revisor, he was pointing out the problem that existed. CHAIR DYSON asked if Mr. Crawford was suggesting that the Legislature provide a more substantive solution than what Mr. Luckhaupt was proposing. MR. LUCKHAUPT explained that Mr. Crawford was pointing out that the reason this couldn't be included in the Revisor's Bill was because the Legislature's intent was not known. The section had just been repealed. Because there was no way to discern the Legislature's intent in this area, when the governor's bill was adopted four or five years ago, Mr. Crawford's letter to the Judiciary Chair at the time was basically [indisc.]. CHAIR DYSON confirmed that the bill was basically a response to the problem. He said he assumed that Judiciary would do a good job of reviewing the judicial aspects, while this committee's focus should be on the safety and health of the homes. MR. LUCKHAUPT said that Public Law 105-277, a copy of which was in the committee packet, requires home health care providers and nursing facilities to perform background checks on employees within five days of their going to work. Federal law requires that the employer review the criminal history record and make a hire/fire decision, so the onus is on the employer to make a decision. MR. LUCKHAUPT remarked that several other states have gone this route in the past few years, noting a brochure from Wisconsin's attorney general on this subject and mentioning both Wyoming and North Carolina. He said that home health care provider agencies and nursing facilities have a specific law that does not apply to any other group; it gives those employers specific access to these criminal history records. He said he understood that DPS would like to make an addition to the bill, and he didn't have any problem with that. He said that in addition to Public Law 105-277, DPS wants to refer to [Alaska's] own criminal history record AS 12.62, so that these employers could access both state and federal databases. MR. HOVE said the CS [committee substitute] tacks AS 12.62 on to Public Law 105-277 and is Version I. CHAIR DYSON asked if [Senator Seekins's] office approved of the CS and received non-verbal confirmation that this was the case. SENATOR GREEN questioned whether this would be above the normal standard. She asked if this took Alaska to "where we should be in the securing of employees" for these facilities. MR. LUCKHAUPT responded that this was correct. He explained that this was simply "plugging in federal law" - that federal law requirements are not currently reflected in Alaska's statutes. Employers are being required to perform background checks based upon a state law that no longer exists; this leaves a lack of direction. Citing this federal law appears to answer the question, "What is required?" CHAIR DYSON told members that he had a concern that was slightly off subject, and mentioned that providers who serve vulnerable folks have raised the question of perpetrators who perpetrated their crimes while they were juveniles. Because of there being no access to juvenile records, he asked if it were true that there would be no way to access that information if, for example, an applicant at 18 or 21 years of age had done horrendous things. 1:46 p.m. MR. LUCKHAUPT responded that this was true in most instances. He explained that juvenile offenses are not crimes, per se, and in most cases those offenses wouldn't be in federal, FBI, or in most state's databases. He said he wasn't sure how to get to those records and suggested that LeeAnn [Lucas] might have further information about how the state compiles or keeps track of that information. He confirmed that dealing with the delinquency area is problematic because of it not being treated as criminal in the usual sense. He said if a person is 16 and commits certain heinous crimes - murder, sexual assault, or things like that - he/she is automatically treated as an adult. For most other crimes, the Legislature has chosen to say, "These people don't have the criminal capacity to commit a crime." CHAIR DYSON stated that this information shouldn't impact the committee and asked if there were any further questions, testimony or discussion of SB 201. He asked for the wish of the committee. SENATOR GREEN said she would move the CS after distribution. MR. HOVE explained the change would add AS 12.62 to all four sections of the bill. CHAIR DYSON asked if there was objection to adopting Version I [23-LS0118/I, Luckhaupt, 2/3/04] as the CS and the working document. CHAIR DYSON, upon seeing and hearing no objection, announced that the working document was the CS for SB 201, Version I. He asked for the wish of the committee. SENATOR GREEN moved that CSSB 201(HES) with individual recommendations and accompanying zero fiscal note(s) be moved from committee. CHAIR DYSON asked if there was any objection. Seeing and hearing none, it was so ordered.