Legislature(2003 - 2004)

05/17/2003 11:45 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
          SB 201-HOME & RESPITE CARE: CRIMINAL RECORDS                                                                      
                                                                                                                              
BRIAN HOVE, aide  to Senator Ralph Seekins, explained  the Revisor                                                              
of Statutes requested the bill, which  corrects errors in chapters                                                              
45 and 118, SLA 1994.                                                                                                           
                                                                                                                                
SENATOR FRED DYSON  asked if there had been any  testimony against                                                              
the bill.                                                                                                                       
                                                                                                                                
CHAIR GARY STEVENS  advised there were several  people that wanted                                                              
to testify on  the issue. He asked Jerry Luckhaupt  whether he had                                                              
any comments.                                                                                                                   
                                                                                                                                
JERRY  LUCKAUPT,  Legislative  Legal   Services  Council,  further                                                              
explained that two bills were adopted  in the same year. One was a                                                              
comprehensive rewrite of the criminal  history record statutes and                                                              
the  other related  to home  care  and respite  care agencies  and                                                              
requiring criminal  history records  checks. Because of  the first                                                              
bill, the statute  that guided the process required  by the second                                                              
bill was  no longer there and  there was no other  obvious statute                                                              
that could  be referred  to. The Revisor  pointed this out  to the                                                              
Judiciary  Committee then  handed it  along to  him as the  person                                                              
that  handles  criminal law  and  related  matters. As  the  least                                                              
controversial  resolution, he  cited a federal  law that  requires                                                              
these checks regardless  of state law. The referenced  federal law                                                              
provides  that respite  care and  home care  agencies and  nursing                                                              
facilities  can all  request criminal  history  record checks  for                                                              
employees and prospective employees.  Hopefully, Health and Social                                                              
Services will  look at the statutes  and decide whether  they want                                                              
certain  convictions  to  disqualify  individuals  from  potential                                                              
employment.    Federal    law   doesn't    specifically    require                                                              
disqualification  for certain  jobs. It  requires the employer  to                                                              
get  the records  and  make a  determination  to hire  or fire  an                                                              
individual.                                                                                                                     
                                                                                                                                
MARY NICHOLSON asked:                                                                                                           
                                                                                                                                
   · If the bill would include consumer direct based aid or just                                                                
     for facility based home care                                                                                               
   · If this would cover just local background criminal history                                                                 
     checks or would it include finger printing and FBI                                                                         
     background checks                                                                                                          
   · Would the bill allow any of the home care providers to be                                                                  
     grand fathered in                                                                                                          
                                                                                                                                
MR. LUCKHAUPT advised the bill applies  to anyone that is required                                                              
to be licensed by the department  in these areas. Agencies that go                                                              
into the  home are  required to  be licensed  and if they  receive                                                              
state money they must do the checks.  The checks have been a state                                                              
requirement since  1994 and a  federal requirement since  1998. It                                                              
isn't just a local name based check  of the Alaska system. It is a                                                              
national fingerprint  check through the FBI and  is required under                                                              
federal law. He stressed this is not a new requirement.                                                                         
                                                                                                                                
He  further explained  that  in 1994  two  laws  were passed,  one                                                              
repealing  the statute  and the  other  citing to  it. Since  then                                                              
federal  law  has  established  a   new  requirement  for  an  FBI                                                              
fingerprint based  check for all,  not just new, home  health care                                                              
employees and prospective employees.                                                                                            
                                                                                                                                
Because the Department of Health  and Social Services has not come                                                              
forward  to  remedy  the  problem,   Legislative  Legal  took  the                                                              
remedial course of  citing federal law as the  least controversial                                                              
solution.                                                                                                                       
                                                                                                                                
SENATOR  DYSON   asked  whether  similar  action   is  needed  for                                                              
childcare facilities.                                                                                                           
                                                                                                                                
MR. LUCKHAUPT advised this federal  law refers to home health care                                                              
workers and nursing facilities only.                                                                                            
                                                                                                                                
SIDE B                                                                                                                        
12:35 pm                                                                                                                      
                                                                                                                                
Respite  care for  children  is covered,  but  foster parents  and                                                              
similar situations aren't covered under this federal law.                                                                       
                                                                                                                                
SENATOR  DYSON  asked  if  this kind  of  check  is  required  for                                                              
childcare and foster parents.                                                                                                   
                                                                                                                                
MR.  LUCKHAUPT  stated  there  is  a  separate  law  dealing  with                                                              
fingerprint based background checks  for foster parents and others                                                              
that deal with children.                                                                                                        
                                                                                                                                
SENATOR  DYSON said some  childcare providers  are concerned  that                                                              
they can't  get access  to juvenile  records for individuals  they                                                              
are employing  that are  just past the  age of majority.  Areas of                                                              
sexual misconduct are of particular  concern. He asked if it would                                                              
be possible  to have a  state statute  that would allow  access to                                                              
some juvenile criminal records.                                                                                                 
                                                                                                                                
MR. LUCKHAUPT said there's always  a problem with federal law with                                                              
certain  people  that  receive certain  federal  aid  through  the                                                              
Social  Security  Administration. Some  of  those  records have  a                                                              
requirement  for  a certain  level  of confidentiality,  but  they                                                              
could open  juvenile records  if they  elected to  do so  and they                                                              
have in certain cases.                                                                                                          
                                                                                                                                
SENATOR DYSON said he realizes that  was off topic for HB 201, but                                                              
he appreciated the information.                                                                                                 
                                                                                                                                
SENATOR COWDERY made  a motion to move HB 201  and attached fiscal                                                              
note from committee with individual  recommendations. He asked for                                                              
unanimous consent. There being no objection, it was so ordered.                                                                 

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