Legislature(2011 - 2012)CAPITOL 106
04/14/2011 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB94 | |
| HB149 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 94 | TELECONFERENCED | |
| *+ | HB 149 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 149-DRIVER'S LICENSING; MEDICAL CONDITIONS
8:49:40 AM
CHAIR LYNN announced that the last order of business was HOUSE
BILL NO. 149, "An Act relating to drivers' licenses and to
immunity for persons who report persons who have a medical or
other condition that may impair the ability to operate a motor
vehicle."
8:49:56 AM
REPRESENTATIVE ANNA FAIRCLOUGH, Alaska State Legislature,
presented HB 149 as sponsor. She related that a couple years
ago there was a vehicle collision, which left a boy named Connor
in a coma for almost a month. She said this happened along a
well-traveled corridor in Anchorage. She said she later learned
that the boy was permanently injured, and that he is a friend of
her son. Representative Fairclough said the boy's sister came
to her and asked what could be done to make the roads safer for
everyone. She told the committee of her connection with the
family and said this is a personal issue. She said she
considered naming the bill, "Conner's Law," but was told some
people may not want to bring the legislation forward with a name
on it.
8:54:06 AM
REPRESENTATIVE FAIRCLOUGH said she looked into current testing
practices of the Division of Motor Vehicles (DMV) and was told
by the director of the division that doctors will not report
patients who should not be driving, because they can get sued.
The proposed legislation would require a person applying for a
driver's license to disclose if he/she has a condition that
would impair his/her ability to drive. It could be a temporary
condition, such as a person with seizures who needs to be
seizure-free for six months before driving. One goal of the
bill would be to have the DMV issue restricted driver's licenses
to those people with impairments. The proposed legislation
would provide immunity to physicians and other persons who, in
good faith, report licensees diagnosed with a condition that may
impair his/her ability to drive, and it would provide
confidentiality for reporting and is "exempt from disclosure."
Furthermore, physicians or persons who make a good faith report
would not be liable for civil damages. The bill would not
require reporting [by the physicians] but it would be in the
best interest of public safety if they do report.
REPRESENTATIVE FAIRCLOUGH said the two main issues that need
consideration by the committee are whether physicians should be
allowed immunity and whether people need to be responsible to
their fellow drivers by disclosing any impairment that would
restrict their ability to drive. She spoke about the difficulty
of family members in working to have another family member's
driver's license taken away and the advantage of having a
physician determine if the family has a valid concern or not.
She said the proposed legislation would include an appeals
process.
8:58:33 AM
CHAIR LYNN ventured that the proposed legislation is an
extension of the already existing requirement of those who need
glasses to wear glasses while driving as a condition of their
being issued a driver's license.
8:58:50 AM
REPRESENTATIVE PETERSEN observed that under HB 149, [Section 1,
subsection (b)], the physician "may report". He asked for
confirmation that the physician would have the option to
disclose.
REPRESENTATIVE FAIRCLOUGH confirmed that is correct. She added
that the physician would only be held accountable if he/she
recklessly fails to make a disclosure. In response to a follow-
up question, she said she contacted three medical groups in
Alaska and has done outreach. She said there were concerns
related to the Health Insurance Portability and Accountability
Act (HIPAA) and whether doctors would be protected. She stated,
"I believe I've accurately reflected any comments that we've
received."
9:00:52 AM
REPRESENTATIVE SEATON asked if physicians were specifically
asked about the possibility of a Class A misdemeanor.
REPRESENTATIVE FAIRCLOUGH answered that the physicians were
given the bill, and she offered her understanding that there
were no formal comments received from anyone.
9:02:52 AM
WHITNEY BREWSTER, Director, Division of Motor Vehicles (DMV),
Department of Administration, in response to Representative
Seaton, said the division is receiving an increasing number of
requests from the public and law enforcement to reexamine a
licensed driver. She said unfortunately the division receives
few such requests from medical professionals, even though they
are often the first to know if there is a condition that would
potentially make someone an unsafe driver. She said the
division has heard that physicians are reluctant to issue such
requests, because "there is no statute affording them immunity
from civil or criminal action."
MS. BREWSTER said the division needs to know the following: if
an individual has a condition that is uncontrollable, either
through medication, therapy, surgery, or use of a particular
driver device or technique; if the individual's condition is
controllable, but he/she is refusing to follow the care
[instructions] issued by the health care professionals; and if
the extent of the impairment is unknown but potentially
significant. She clarified that the division does not want to
know everyone's condition, just the ones that have an
uncontrollable condition or a controllable condition that is not
being controlled.
MS. BREWSTER relayed that if the DMV receives notice from the
medical community that a driver is not fit, it would cancel the
individual's driver's license. That individual could contest
that decision. She said the DMV mainly receives notices from
law enforcement that the individual may be unfit to drive. In
those cases, the DMV sends the individual notice that he/she
must come in to the DMV for examination. The individual must
come in within 30 days of that notification. If the individual
does not comply, then the DMV would send a second notice that
[that individual's license] will be cancelled within 15 days and
that he/she has the option to request an administrative hearing
to contest that decision.
9:06:10 AM
MS. BREWSTER said the number of cancellations done by the
division per year, averaged over the last six years, is 211.
She said the trend is going down, although there are a number of
individuals are aging and/or medicated and should not be on the
road. She said the division hopes that HB 149 will make the
medical community feel more comfortable reporting, since
currently only 10 percent of the recommendations received by the
division are from the medical community. She pointed out that
the notices from law enforcement are most likely to occur after
an accident has occurred, and the division would like to prevent
those accidents.
9:07:37 AM
MS. BREWSTER, in response to the chair, ventured that a patient
would not hesitate seeing his/her doctor for fear of finding out
he/she has a driving impairment, but she suggested that that
question might better be directed to those in the medical
community.
9:08:32 AM
REPRESENTATIVE FAIRCLOUGH said she thinks that is a valid
question, but thinks that people will go to the doctor when in
need. She talked about the dangers of putting a motor vehicle
in the hands of someone who is in danger of becoming
unconscious. She said the bill would create a mechanism for
doctors to give important information to the DMV.
9:10:56 AM
REPRESENTATIVE SEATON said he supports the concept of the bill,
but is looking for unintended consequences. He asked if the
division has the same capabilities to respond to a report from a
member of the public as it does to report from law enforcement.
9:11:53 AM
MS. BREWSTER confirmed that the DMV has the ability to take a
report from the public. In that situation, she said, the DMV
would let the customer know that he/she has been requested to
come in for reexamination within the next 30 days. She
reiterated the information regarding appeals. In response to
the chair, she said the DMV does not take anonymous reporting;
however, further research is done when reporting is received
from the public than when it is received from law enforcement.
Furthermore, during an administrative hearing, the person
accused has the ability to cross examine the accuser.
9:15:52 AM
MS. BREWSTER, in response to questions from Representative
Seaton, said when the DMV revokes a person's driver's license,
the division asks that person to surrender the license; however,
it is possible that a person could claim the license was lost
and use it only for identification purposes, for example to
board an airplane, although the DMV discourages people from
doing that.
9:20:04 AM
REPRESENTATIVE FAIRCLOUGH asked Ms. Brewster to confirm whether
the division would be able to issue state identification to all
those whose driver's licenses are revoked.
MS. BREWSTER answered yes, but explained that under statute, the
cost to each person would be $15 for a state ID. She said
statute would have to be changed in order to allow the DMV to
waive that fee. She noted that individuals 60 years of age and
over are eligible to receive a state ID card at no charge.
9:22:42 AM
REPRESENTATIVE GRUENBERG, regarding the medical community, said
he sees in Title VIII at least 20 occupations that could come
into play under HB 149, including pharmacists, physical
therapists, and nurses. He recommended that the bill sponsor
look at Title VIII. He suggested there may be issues regarding
licensing and ethics. He said another issue is related to the
language in Section 1, subsection (d), on page 2, lines 10-11,
which read:
(d) Reports received under this section are
confidential and exempt from disclosure under AS
40.25.
REPRESENTATIVE GRUENBERG said this only covers the reports,
which could be construed by a court of law to mean that only the
report itself is confidential, not the information therein;
therefore, the person who made the report could be subpoenaed.
Further, there may be question as to whether the testimony is
admissible in court, even if the report is not. He mentioned
evidentiary privilege. Representative Gruenberg expressed
concern about making doctors and other [medical] professional
subject to going to jail. He said a Class A Misdemeanor could
mean up to year in prison for a doctor. He said he realizes
that there is a standard of recklessness involved, but said this
issue could cause concern and opposition. He remarked that most
doctors run their own business and may have information as to
what would be imputable.
9:26:57 AM
The committee took an at-ease from 9:27 a.m. to 9:29 a.m.
9:29:20 AM
ERLING JOHANSEN, Assistant Attorney General, Labor & State
Affairs Section, Civil Division (Anchorage), Department of Law,
regarding Representative Gruenberg's comment on Title VIII,
cited language on page 1, lines 6-7, which read as follows:
(c) A licensee making a good faith
report to the Department of Administration under AS
28.15.156 is not subject to discipline under this
chapter for that report.
MR. JOHANSEN said the concept is there, but he does not know if
it is as broad as the number of professions Representative
Gruenberg referenced.
REPRESENTATIVE GRUENBERG, in response to a question from the
sponsor, said the definition of "physicians" does not [cover
numerous occupations]; it is specifically defined in AS 08.64.
REPRESENTATIVE FAIRCLOUGH clarified that the intent of this
legislation is to have "a high bar" - to name physicians as the
ones who decide whether or not a person could become unconscious
while driving a vehicle.
CHAIR LYNN asked, "... If a physician determined a person might
become unconscious because of their condition, and they don't
report to DMV, ... do they have any liability?"
REPRESENTATIVE FAIRCLOUGH answered, "No, the physician may
[emphasis on 'may'] report."
9:32:33 AM
REPRESENTATIVE GRUENBERG offered his understanding that the
immunity seems to cover a person who reports; it does not say
whether he/she may be liable for the failure to report. He said
someone who has an epileptic seizure or has an attack related to
hypoglycemia may cause an accident. Furthermore, a person who
has to wear corrective lenses because he/she is legally blind
could cause just as great an accident if he/she does not wear
the lenses. He recommended that the sponsor consider
hypothetical situations "where other people would similarly come
into vital information in the (indisc. - coughing) of their
profession." He said the issue is to get reporting. He offered
an example where someone with a reportable condition has just
moved to Alaska and has not yet seen a physician, but has been
to a pharmacist. He opined that as first committee of referral,
the committee members should be aware of ramifications.
9:35:36 AM
REPRESENTATIVE P. WILSON said she thinks the bill is good and
needed, but needs further consideration. She related a personal
story of her mother with glaucoma getting into an accident, and
said she thinks her mother's eye doctor should have been
required to report her to the DMV. Representative P. Wilson
pointed out that she always drove when she visited her mother;
therefore, she was unaware of how bad her mother's condition had
become.
9:38:52 AM
REPRESENTATIVE KELLER thanked the sponsor for bringing the bill
forward; however, he said the proposed legislation reminds him
of 1984, by George Orwell. He mentioned HIPAA, said his concern
is regarding patient/doctor privilege, and related that he wants
to hear from the medical community. He said unless the DMV is
given the discretion in each case to make decisions that are
between the doctor and the patient, he finds the idea of
reexaminations conducted by the DMV problematic.
9:40:37 AM
REPRESENTATIVE FAIRCLOUGH relayed that the American Medical
Association (AMA) is moving in this direction as it reviews its
ethics rules. She indicated that because there are people of
all ages that put others in jeopardy while driving, it is
necessary to have a medical professional involved. In response
to Representative Keller, she said there are large volumes of
books containing specific diagnoses that could be put into
statute, but she does not believe that those diagnoses belong in
statute. She acknowledged that it is difficult to talk about
taking away anyone's ability to drive, and she said she
understands that this bill could significantly alter people's
lives. She said there needs to be a mechanism in place to
protect the public.
REPRESENTATIVE KELLER said he can see the problem, but questions
whether encouraging physician reporting is the best way to
address it. He opined that there are many other options, and
the best option may involve legislation. He said there is a
penalty for driving recklessly. He reiterated his concern about
the patient/doctor privilege and making the DMV the entity to
make the final determination.
9:45:55 AM
REPRESENTATIVE GRUENBERG said it seems that the responsibility
should lie with the driver.
REPRESENTATIVE FAIRCLOUGH responded that that specification has
been made on page 1, [lines 11-14, which read as follows]:
(a) A person licensed or applying for a license under
this chapter shall disclose if the person has been
diagnosed as having a disorder characterized by lapses
of consciousness or any other condition that may
impair a person's ability to operate a motor vehicle.
REPRESENTATIVE GRUENBERG said he thinks that is a good idea, but
said he does not want to criminalize the whole state; therefore,
he recommended public outreach and education. He questioned
whether someone who drives with a condition, "without this
appropriate safeguard," would be violating the law.
REPRESENTATIVE P. WILSON indicated that creating law to address
this issue needs to be done with great care. She noted that
Pennsylvania and Oregon have laws in place related to
disclosures to the DMV.
9:48:57 AM
CHAIR LYNN told the bill sponsor that he would try to hear HB
149 again at the beginning of next session in January, 2012.
[HB 149 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB0149A.PDF |
HSTA 4/14/2011 8:00:00 AM |
HB 149 |
| 02 HB 149 Sponsor Statement.pdf |
HSTA 4/14/2011 8:00:00 AM |
HB 149 |
| 03 HB 149 Sectional Analysis.pdf |
HSTA 4/14/2011 8:00:00 AM |
HB 149 |
| 04 HB149-DOA-DMV-04-13-11 (2).pdf |
HSTA 4/14/2011 8:00:00 AM |
HB 149 |
| 05 Support Letter HB 149 APOA 3-9-2011.pdf |
HSTA 4/14/2011 8:00:00 AM |
HB 149 |
| 06 Legal Memo HB 149 Luckhaupt 4-11-2011.pdf |
HSTA 4/14/2011 8:00:00 AM |
HB 149 |
| 01 SB 94.pdf |
HSTA 4/14/2011 8:00:00 AM |
SB 94 |
| 02 SB 94 Sponsor Statement.pdf |
HSTA 4/14/2011 8:00:00 AM |
SB 94 |
| 03 SB 94 Background Material Newpaper letter from Fran Ulmer.pdf |
HSTA 4/14/2011 8:00:00 AM |
SB 94 |
| 04 SB 94 Fiscal Note.PDF |
HSTA 4/14/2011 8:00:00 AM |
SB 94 |