Legislature(2003 - 2004)

02/04/2004 01:32 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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noting that  AS 12.62.035(a) was  repealed; SB 201  corrects that                                                               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.                                                                                                
                                                                                                                                

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