Legislature(2017 - 2018)BUTROVICH 205

02/02/2018 01:30 PM Senate HEALTH & SOCIAL SERVICES

Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.

Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
-- Testimony <Invited and Public> --
+ Bills Previously Heard/Scheduled: TELECONFERENCED
Moved SB 128 Out of Committee
-- Continued Public Testimony --
      SB 81-DHSS CENT. REGISTRY; LICENSE; BACKGROUND CHECK                                                                  
1:40:16 PM                                                                                                                    
CHAIR   WILSON  reconvened   the   meeting   and  announced   the                                                               
consideration  of SB  81  and opened  public  testimony. [SB  81,                                                               
version 30-GS1676\A, was before the committee.]                                                                                 
1:40:56 PM                                                                                                                    
STACIE  KRALY, Chief  Assistant Attorney  General, Department  of                                                               
Law, presented  information on SB 81.  She said SB 81  relates to                                                               
criminal  background checks  and licensing  statutes administered                                                               
by  the   Department  of  Health  and   Social  Services  (DHSS).                                                               
Participation in  federal programs,  such as Medicare  and foster                                                               
care, requires  states to conduct criminal  background checks for                                                               
licensure  or  payment for  services.  In  2005, the  legislature                                                               
codified AS 47.05.300, which requires  a background check for all                                                               
persons who are paid in whole  or in part by DHSS. The background                                                               
check  is comprised  of a  two-part process,  a fingerprint-based                                                               
review of criminal history, both  state, federal, and nationwide,                                                               
administered by  DHSS with  the Department  of Public  Safety. It                                                               
also consists  of checks of  various databases to  identify civil                                                               
actions that  are inconsistent with  licensure or the  ability to                                                               
provide care to vulnerable adults or children.                                                                                  
She said that  over the past 15 years, many  language issues have                                                               
been identified that that need to be fixed in statute.                                                                          
She said SB 81 clarifies  what constitutes a civil history check.                                                               
State law  references two  registries, a  Central Registry  and a                                                               
Centralized  Registry, which  is  very confusing.  The bill  also                                                               
clarifies  that  the civil  history  check  applies to  both  the                                                               
entity that seeks licensure by DHSS and to its employees.                                                                       
MS. KRALY said a gap in the  language does not make it clear that                                                               
the employees  are also  subject to  a civil  history check.   It                                                               
also  clarifies that  the department  is not  required to  create                                                               
standalone database. The statute  intimates that DHSS will create                                                               
its own  civil history  database, which  is cost  prohibitive and                                                               
programmatically difficult.  The statute  should make  clear that                                                               
DHSS  is not  creating its  own database  but reviewing  existing                                                               
She  said  SB  81  makes  amendments  to  Title  47  Chapter  32,                                                               
licensing statutes in  DHSS. It allows DHSS  to share information                                                               
with law enforcement on concurrent investigations.                                                                              
1:45:36 PM                                                                                                                    
MS.  KRALY said  the amendments  allow divisions  doing licensing                                                               
investigations to share information among themselves.                                                                           
She said  one of the most  important things that SB  81 clarifies                                                               
is  that  if  an  individual abuses,  neglects,  or  exploits  an                                                               
individual in care, the individual,  and not only the entity, can                                                               
be subject to investigation. For  example, if someone employed in                                                               
an  assisted living  home  abuses or  neglects  an individual  in                                                               
care, only the licensed entity,  the assisted living home, can be                                                               
investigated. The bill allows individuals  to be investigated and                                                               
if it  is determined that  the individual committed  the offense,                                                               
the person's name will be in the civil registry.                                                                                
SENATOR VON IMHOF said past  audits suggested that the Department                                                               
of Education and Early Development  (DEED) is duplicating efforts                                                               
in its  background checks for teachers  because other departments                                                               
do   background  checks.   She   wondered   why  efforts   across                                                               
departments could not be combined  so one department does all the                                                               
background checks.                                                                                                              
1:48:43 PM                                                                                                                    
KATHY  MONFREDA,  Chief,   Criminal  Records  and  Identification                                                               
Bureau, Department of Public Safety,  presented information on SB
81. She  said having one  central background check for  a variety                                                               
of purposes  violates the  FBI's law  on how  national background                                                               
checks  can be  used.  They must  have  one authorized  statutory                                                               
SENATOR  VON IMHOF  asked  if  she were  referring  to a  federal                                                               
MS.  MONFREDA said  yes, it  is  public law  92-544 that  governs                                                               
national background checks.                                                                                                     
SENATOR  VON  IMHOF asked  if  that  meant  that the  exact  same                                                               
background check is done in multiple departments.                                                                               
MS. MONFREDA  said most of  the agencies have  different criteria                                                               
for  their  licensing, so  it  is  not  one  size fits  all.  The                                                               
background check  is only good the  day that it is  received. Any                                                               
delay in using a background check could be a risk.                                                                              
SENATOR VON IMHOF  said she is not suggesting  doing a background                                                               
once and then being done  with it. She is suggesting centralizing                                                               
background checks among all state  employees, but she understands                                                               
a statute prohibits that.                                                                                                       
MS. MONFREDA said 92-544 permits  shared information for the same                                                               
1:52:12 PM                                                                                                                    
MS. KRALY presented the sectional analysis.                                                                                     
     Section 1. This section  would make conforming edits to                                                                  
     rename the  centralized registry to the  civil registry                                                                    
     to  avoid  confusion under  the  current  law with  the                                                                    
     centralized  registry (AS  47.05.330)  and the  central                                                                    
     registry in AS 47.17.040 (see section 14).                                                                                 
     Sections  2  and  3.  These  sections  would  amend  AS                                                                  
     47.05.310(d) and  47.32.310(d) to clarify  that barrier                                                                    
     crimes apply to individuals as well as entities.                                                                           
     Section 4. This section  would amend AS 47.05.310(e) to                                                                  
     allow an  individual to seek a  background check; under                                                                    
     the  current law  only entities  can seek  a background                                                                    
     check.  This section would  also remove, at the request                                                                    
     of the Department of Public  Safety, the designation of                                                                    
     the Department of Health and  Social Services (DHSS) as                                                                    
     a   criminal  justice   agency  for   purpose  of   the                                                                    
     background check program.                                                                                                  
     Section 5.  This section would  amend AS  47.05. 310(f)                                                                  
     to  make it  clear that  the DHSS  may, in  addition to                                                                    
     exceptions to  the barrier crime provisions,  approve a                                                                    
     variance for a barrier crime.                                                                                              
     Section 6. This section  would amend AS 47.05.310(h) to                                                                  
     address  how   a  non-licensed  provider,  such   as  a                                                                    
     relative  who is  receiving payment  by  the Office  of                                                                    
     Children's  Services,  is  treated under  the  statute.                                                                    
     This   amendment  would   make  it   clear  that   such                                                                    
     providers,  while not  being paid  by  DHSS, are  still                                                                    
     subject to background checks prior to placement.                                                                           
     Section 7.  This section would  make a  conforming edit                                                                  
     to AS  47.05.310(i) to rename the  centralized registry                                                                    
     to the civil registry (similar to section 1).                                                                              
     Section 8. This  section would add a new  section to AS                                                                  
     47.05.310 to  address immunity  from civil  or criminal                                                                    
     liability  for reporting  during  the background  check                                                                    
     Section  9.  This  section   would  provide  a  similar                                                                  
     framework for  the civil registry checks  as background                                                                    
     checks  (see AS  47.05.310). This  means that  the same                                                                    
     process  applies to  a person  who is  found to  have a                                                                    
     barring criminal conviction under  AS 47.05.310 as well                                                                    
     as a barring civil finding under AS 47.05.330.                                                                             
     Section  10.   This  section  would  be   repealed  and                                                                  
     reenacted  to outline  how the  department will  review                                                                    
     existing  registries, rather  than  create yet  another                                                                    
     separate database.   This  section would  also identify                                                                    
     what  DHSS  will  be  looking for  in  terms  of  civil                                                                    
     findings  that  are   inconsistent  with  licensure  or                                                                    
     payment (e.g., CINA findings,  terminated from DHSS for                                                                    
     assaultive/neglectful   or    exploitative   behavior).                                                                    
     Information  contained  or  obtained via  the  registry                                                                    
     would  be  confidential and  not  subject  to a  public                                                                    
     records request.                                                                                                           
     Section  11.  This  would amend  the  current  immunity                                                                  
     section to  reflect the change  to civil  registry from                                                                    
     centralized registry.                                                                                                      
     Section  12.   This would  establish a  new section  to                                                                  
     address the ability to seek  a variance for any finding                                                                    
     under this chapter and how  to appeal a decision if you                                                                    
     disagree with any decision made by DHSS.                                                                                   
     Section 13.  This section  would amend  AS 47.05.390(6)                                                                  
     to  expand  the  definition  of entity  to  include  an                                                                    
     individual service provider.                                                                                               
     Section  14.  This  section would  rename  the  central                                                                  
     registry  maintained   by  the  Office   of  Children's                                                                    
     Services  to the  child  protection  registry to  avoid                                                                    
     confusion.   It  also clarifies  what is  maintained on                                                                    
     this registry,  including substantiated  findings under                                                                    
     AS 47.10 or AS 47.17.                                                                                                      
     Section  15. This  new  subsection  would clarify  that                                                                  
     before  a substantiated  finding can  be placed  on the                                                                    
     child  protection registry  the person  must have  been                                                                    
     afforded notice  of the finding and  the opportunity to                                                                    
     challenge the finding.                                                                                                     
     Section 16.  This section would make  a conforming edit                                                                  
     to AS 47.32.010(c)  replacing centralized registry with                                                                    
     civil registry (similar to section 1).                                                                                     
     Section  17.  This  section would  amend  AS  47.32  to                                                                  
     provide authority  for DHSS  to consider  prior adverse                                                                    
     licensing findings  in determining whether to  grant or                                                                    
     deny a  license or  whether to place  a condition  on a                                                                    
     Section 18.  This would  add a new  section to  make it                                                                  
     clear  that  when  there  is   an  allegation  that  an                                                                    
     employee  or  individual  affiliated  with  a  licensed                                                                    
     entity is alleged to have  engaged in any behavior that                                                                    
     would impact the  safety or welfare of  a resident, the                                                                    
     department may investigate that  individual and issue a                                                                    
     report  on the  findings  of  that investigation.  This                                                                    
     section  would further  provide  that if  a finding  of                                                                    
     abuse  or neglect  is substantiated  then that  finding                                                                    
     will  be part  of the  civil registry  process and  may                                                                    
     result in a person  being prohibited from employment or                                                                    
     licensure in  the future. This section  would also make                                                                    
     it clear  that before such  a finding can be  used, due                                                                    
     process must be afforded.                                                                                                  
     Section 19.  This is technical  fix that  would clarify                                                                  
     when formal  hearings are required when  an enforcement                                                                    
     action is taken after a licensing investigation.                                                                           
     Section 20.  This would  add a  new section  to clarify                                                                  
     that  that  when  law enforcement  is  investigating  a                                                                    
     crime  that  is  also  the   subject  of  a  concurrent                                                                    
     licensing investigation, the  material gathered by DHSS                                                                    
     may be shared  with the law enforcement as  a matter of                                                                    
     Section  21.  This  section   would  clarify  that  all                                                                  
     divisions who implement AS  47.32 may share information                                                                    
     with each  other for the  purpose of  administering the                                                                    
     licensing programs at DHSS.                                                                                                
     Section  22. This  section  would  repeal reference  to                                                                  
     provisions  of  the  current law  that  are  no  longer                                                                    
     necessary or  have been  determined to  be superfluous.                                                                    
     Specifically,  the section  would repeal  the reference                                                                    
     to the  civil registry  when doing a  background check,                                                                    
     references  to DHSS  as  criminal  justice agency,  and                                                                    
     statutes  stating  an  administrative  hearing  is  not                                                                    
     required when  the enforcement action sought  is a plan                                                                    
     of correction.                                                                                                             
     Section  23.  This  is  an  applicability  section  for                                                                  
     purposes of applying the  criminal and civil background                                                                    
     checks before, on  or after the effective  date of this                                                                    
     Section  24.  This  section would  advise  the  revisor                                                                  
     regarding title  changes to reflect amendments  in this                                                                    
     act, including the change to  include the civil history                                                                    
     Section 25.  This provides  for an  immediate effective                                                                  
1:58:44 PM                                                                                                                    
CHAIR  WILSON said  that on  page 10,  Section 20,  starting from                                                               
line  10,  he  did  not  see  language  specifying  that  sharing                                                               
information would only be for  concurrent investigations and that                                                               
licensing would  not be sharing  past information on  a provider.                                                               
He asked if that could be clarified.                                                                                            
MS. KRALY said  that she read that [if a  law enforcement agency]                                                               
"is  investigating  a  crime  that  is  also  the  subject  of  a                                                               
licensing  investigation" as  being  a concurrent  investigation.                                                               
But an amendment with clarifying language would be appropriate.                                                                 
CHAIR  WILSON asked  whether people  with variances  can transfer                                                               
them more easily through the system.                                                                                            
MS.  KRALY  said  that  regulations  that  amended  the  existing                                                               
statute  went  into  effect  August   1,  2017.  The  regulations                                                               
reframed  the variance  process,  created  an expedited  variance                                                               
process,  and created  a  system for  people  with variances  who                                                               
provide similar services,  but work for various  agencies, to use                                                               
the same variance for multiple agencies.                                                                                        
2:01:06 PM                                                                                                                    
CHAIR WILSON opened public testimony on SB 81.                                                                                  
2:01:29 PM                                                                                                                    
KATE  BURKHART,  Ombudsman,  Alaska   Office  of  the  Ombudsman,                                                               
commented  on  SB  81.  She  said the  Ombudsman's  Office  is  a                                                               
nonpartisan,   independent,  and   objective  organization   that                                                               
investigates   citizens'   complaints   about   state   agencies.                                                               
Information  about  SB  81  is meant  to  inform  processes,  not                                                               
necessarily to advocate for the Ombudsman's recommendations.                                                                    
She  referenced  a  2016  investigation   and  report  about  how                                                               
background  checks  affect  people  as   they  try  to  secure  a                                                               
caregiving  position.  The  background  check  is  essential  for                                                               
people  providing care  to vulnerable  Alaskans.  Ms. Kraly  said                                                               
background checks rely on existing  registries of information and                                                               
a not a  standalone database or registry. SB  81 provides clarity                                                               
that  this  is a  background  check  program that  uses  existing                                                               
sources of information.                                                                                                         
2:04:00 PM                                                                                                                    
MS  BURKHART said  SB 81  speaks  to standards  related to  civil                                                               
barriers. All her  comments are about civil  barriers because the                                                               
report did not look at  criminal barriers. A substantiated report                                                               
of harm,  child abuse or  neglect, is used  as basis for  a civil                                                               
barrier, but often  reports of harm can  be substantiated without                                                               
a-child-in-need-of-aid  proceeding  being initiated.  Parents  do                                                               
not always challenge  the report without realizing that  up to 10                                                               
years later, they can be barred from caregiving employment.                                                                     
She  said  Alaskans need  adequate  notice  about the  impact  of                                                               
substantiated  reports  of  harm  and how  it  could  impact  the                                                               
ability to pass a background check for 10 years.                                                                                
She said the Ombudsman's investigation  explored how people apply                                                               
for  variances if  they need  access  to information  in a  child                                                               
protection  record, which  is now  closed. To  have a  meaningful                                                               
opportunity at  a variance requires  access to  that information.                                                               
SB 81 provides  clarity about providing that  access. Through its                                                               
work,  the  Ombudsman's  office  understands  how  critical  this                                                               
program is.                                                                                                                     
SENATOR  GIESSEL asked  if  the department  is  looking at  these                                                               
MS  BURKHART said  the regulations  regarding background  checks,                                                               
adopted last  year, were a  big overhaul. The regulations  have a                                                               
tiered approach to  civil barriers. The department  had said they                                                               
would use the regulatory process  to address previous concerns of                                                               
the  Ombudsman's Office.  Ms.  Burkhart added  that  SB 81  still                                                               
refers  to  a registry  when  there  is no  registry.  Background                                                               
checks use existing lists.                                                                                                      
2:08:47 PM                                                                                                                    
CHAIR WILSON closed public testimony on SB 81.                                                                                  
MS. KRALY said  she reviewed Ms. Burkhart's letter  and has taken                                                               
it to  heart. Their goal  is to  improve the program  and clarify                                                               
language and  remove confusion. They  will continue to  work with                                                               
the  Ombudsman's  Office  to  improve   bill.  There  are  policy                                                               
considerations and  differences they  may not  agree on,  and the                                                               
legislature will decide on policy.                                                                                              
SENATOR GIESSEL asked her to  discuss an amendment offered on the                                                               
House version of the bill.                                                                                                      
MS. KRALY said  it was a conforming edit related  to removing the                                                               
reference  to  criminal  justice  agency.  She  deferred  further                                                               
explanation to Ms. Monfreda.                                                                                                    
MS. MONFREDA explained  that it was a  housekeeping issue because                                                               
federal  law spells  out  what  must be  in  legislation for  the                                                               
Attorney General's approval of state  statutes that seek approval                                                               
of national  background check results.  The amendment  makes sure                                                               
that Alaska statutes meet the federal requirements.                                                                             
2:12:43 PM                                                                                                                    
SENATOR GIESSEL asked if the  amendment offered on the House side                                                               
would need to be amended into the Senate version.                                                                               
MS. MONFREDA said yes.                                                                                                          
CHAIR  WILSON asked  if  DHSS  intended to  refine  SB 81  before                                                               
bringing it back to committee.                                                                                                  
2:13:22 PM                                                                                                                    
MS. KRALY said yes.                                                                                                             
SENATOR VON IMHOF asked if DHSS would incorporate the conforming                                                                
amendment into the committee substitute so no amendment would be                                                                
MS. KRALY said yes.                                                                                                             
2:13:42 PM                                                                                                                    
CHAIR WILSON said he would hold SB 81 in committee while the                                                                    
department worked on it.                                                                                                        

Document Name Date/Time Subjects
SB128 vsn A.PDF SHSS 2/2/2018 1:30:00 PM
SB 128
SB128 Sponsor Statement.2 1-17-18.pdf SHSS 2/2/2018 1:30:00 PM
SB 128
SB128 Sectional Analysis 1-17-18.pdf SHSS 2/2/2018 1:30:00 PM
SB 128
SB128 Supporting Document Power Pt- DHSS 1-16-18.pdf SHSS 2/2/2018 1:30:00 PM
SB 128
SB128 Support Letter Sampson 1-5-18.pdf SHSS 2/2/2018 1:30:00 PM
SB 128
SB128 Support Letter NAACP Anchorage 1-27-18.pdf SHSS 2/2/2018 1:30:00 PM
SB 128
SB128 Letter of Support DHSS 1-22-18.pdf SHSS 2/2/2018 1:30:00 PM
SB 128
SB0081A.PDF SHSS 2/2/2018 1:30:00 PM
SB 81
SB081 Governor Transmittal Letter.pdf SHSS 2/2/2018 1:30:00 PM
SB 81
SB081 Sectional.pdf SHSS 2/2/2018 1:30:00 PM
SB 81
SB081 Supporting Documents - FAQS on DHSS Background Checks.pdf SHSS 2/2/2018 1:30:00 PM
SB 81
SB081 Supporting Documents-Proposed Background Check Process.pdf SHSS 2/2/2018 1:30:00 PM
SB 81
HB162 SB81 - FAQs 050317.pdf HHSS 2/20/2018 3:00:00 PM
SHSS 2/2/2018 1:30:00 PM
SHSS 3/16/2018 1:30:00 PM
HB 162
SB 81
HB162 SB81 - Sectional 050317.pdf HHSS 2/20/2018 3:00:00 PM
SHSS 2/2/2018 1:30:00 PM
HB 162
SB 81
SB 128 DHSS FN.pdf SHSS 2/2/2018 1:30:00 PM
SB 128
SB 128 DHSS Behavioral Health FN.pdf SHSS 2/2/2018 1:30:00 PM
SB 128
SB 81 Alaska Ombudsman Letter.pdf SHSS 2/2/2018 1:30:00 PM
SB 81
Ombudsman Complaint A2013-0776.pdf SHSS 2/2/2018 1:30:00 PM
SB 81
HB 162 amendment Dept of Public Safety (SB 81) 30-GH1676 A.1.pdf HHSS 2/20/2018 3:00:00 PM
SHSS 2/2/2018 1:30:00 PM
HB 162
SB 81
SB 128 - Letter of Support Boys and Girls Club.pdf SHSS 2/2/2018 1:30:00 PM
SB 128