Legislature(2005 - 2006)CAPITOL 120
05/05/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB193 | |
| SB130 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 193 | TELECONFERENCED | |
| + | SB 137 | TELECONFERENCED | |
| + | SB 135 | TELECONFERENCED | |
| + | SB 20 | TELECONFERENCED | |
| + | SB 132 | TELECONFERENCED | |
| + | SB 130 | TELECONFERENCED | |
| *+ | HB 232 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
May 5, 2005
1:19 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Harry Crawford
COMMITTEE CALENDAR
HOUSE BILL NO. 193
"An Act relating to the licensing, regulation, enforcement, and
appeal rights of ambulatory surgical centers, assisted living
homes, child care facilities, child placement agencies, foster
homes, free-standing birth centers, home health agencies,
hospices or agencies providing hospice services, hospitals,
intermediate care facilities for the mentally retarded,
maternity homes, nursing facilities, residential child care
facilities, residential psychiatric treatment centers, and rural
health clinics; relating to criminal history requirements, and a
registry, regarding certain licenses, certifications, approvals,
and authorizations by the Department of Health and Social
Services; making conforming amendments; and providing for an
effective date."
- MOVED CSHB 193(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 130(FIN) am
"An Act relating to a special deposit for workers' compensation
and employers' liability insurers; relating to assigned risk
pools; relating to workers' compensation insurers; stating the
intent of the legislature, and setting out limitations,
concerning the interpretation, construction, and implementation
of workers' compensation laws; relating to the Alaska Workers'
Compensation Board; assigning certain Alaska Workers'
Compensation Board functions to the division of workers'
compensation in the Department of Labor and Workforce
Development and to that department, and authorizing the board to
delegate administrative and enforcement duties to the division;
providing for workers' compensation hearing officers in workers'
compensation proceedings; establishing a Workers' Compensation
Appeals Commission; relating to workers' compensation medical
benefits and to charges for and payment of fees for the medical
benefits; relating to agreements that discharge workers'
compensation liability; relating to workers' compensation
awards; relating to reemployment benefits and job dislocation
benefits; relating to coordination of workers' compensation and
certain disability benefits; relating to division of workers'
compensation records; relating to release of treatment records;
relating to an employer's failure to insure and keep insured or
provide security; providing for appeals from compensation
orders; relating to workers' compensation proceedings; providing
for supreme court jurisdiction of appeals from the Workers'
Compensation Appeals Commission; providing for a maximum amount
for the cost-of-living adjustment for workers' compensation
benefits; relating to attorney fees with respect to workers'
compensation; providing for the department to enter into
contracts with nonprofit organizations to provide information
services and legal representation to injured employees;
providing for administrative penalties for employers uninsured
or without adequate security for workers' compensation; relating
to fraudulent acts or false or misleading statements in workers'
compensation and penalties for the acts or statements; providing
for members of a limited liability company to be included as an
employee for purposes of workers' compensation; establishing a
workers' compensation benefits guaranty fund; making conforming
amendments; providing for a study and report by the medical
services review committee; establishing the Task Force on
Workers' Compensation; and providing for an effective date."
- FAILED TO MOVE OUT OF COMMITTEE
SENATE BILL NO. 137
"An Act providing that an institution providing accommodations
exempt from the provisions of the Uniform Residential Landlord
and Tenant Act may evict tenants without resorting to court
proceedings under AS 09.45.060 - 09.45.160."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 135(JUD)(efd am)
"An Act relating to the crimes of assault and custodial
interference; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 20(JUD)
"An Act relating to offenses against unborn children."
- SCHEDULED BUT NOT HEARD
SENATE BILL NO. 132(efd fld)
"An Act relating to complaints filed with, investigations,
hearings, and orders of, and the interest rate on awards of the
State Commission for Human Rights; and making conforming
amendments."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 232
"An Act relating to property crimes."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 193
SHORT TITLE: LICENSING MEDICAL OR CARE FACILITIES
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
03/02/05 (H) READ THE FIRST TIME - REFERRALS
03/02/05 (H) HES, JUD, FIN
03/15/05 (H) HES AT 3:00 PM CAPITOL 106
03/15/05 (H) Scheduled But Not Heard
03/17/05 (H) HES AT 3:00 PM CAPITOL 106
03/17/05 (H) Heard & Held
03/17/05 (H) MINUTE(HES)
04/07/05 (H) HES AT 3:30 PM CAPITOL 106
04/07/05 (H) Heard & Held
04/07/05 (H) MINUTE(HES)
04/19/05 (H) HES AT 3:00 PM CAPITOL 106
04/19/05 (H) Heard & Held
04/19/05 (H) MINUTE(HES)
04/21/05 (H) HES AT 3:00 PM CAPITOL 106
04/21/05 (H) Scheduled But Not Heard
04/22/05 (H) HES AT 9:00 AM CAPITOL 120
04/22/05 (H) Moved CSHB 193(HES) Out of Committee
04/22/05 (H) MINUTE(HES)
04/26/05 (H) HES RPT CS(HES) NT 1DP 3NR 2AM
04/26/05 (H) DP: CISSNA;
04/26/05 (H) NR: GARDNER, ANDERSON, MCGUIRE;
04/26/05 (H) AM: KOHRING, WILSON
05/03/05 (H) JUD AT 1:00 PM CAPITOL 120
05/03/05 (H) Scheduled But Not Heard
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 130
SHORT TITLE: WORKERS' COMPENSATION/ INSURANCE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
03/03/05 (S) READ THE FIRST TIME - REFERRALS
03/03/05 (S) L&C, FIN
03/08/05 (S) L&C AT 1:30 PM BELTZ 211
03/08/05 (S) Heard & Held
03/08/05 (S) MINUTE(L&C)
03/10/05 (S) L&C AT 1:30 PM BELTZ 211
03/10/05 (S) Heard & Held
03/10/05 (S) MINUTE(L&C)
03/15/05 (S) L&C AT 1:30 PM BELTZ 211
03/15/05 (S) Heard & Held
03/15/05 (S) MINUTE(L&C)
03/17/05 (S) L&C AT 1:30 PM BELTZ 211
03/17/05 (S) Heard & Held
03/17/05 (S) MINUTE(L&C)
03/22/05 (S) L&C AT 1:30 PM BELTZ 211
03/22/05 (S) Heard & Held
03/22/05 (S) MINUTE(L&C)
03/24/05 (S) L&C AT 2:00 PM BELTZ 211
03/24/05 (S) Heard & Held
03/24/05 (S) MINUTE(L&C)
03/29/05 (S) L&C AT 1:30 PM BELTZ 211
03/29/05 (S) -- Meeting Canceled --
03/31/05 (S) L&C AT 1:30 PM BELTZ 211
03/31/05 (S) Moved CSSB 130(L&C) Out of Committee
03/31/05 (S) MINUTE(L&C)
04/01/05 (S) L&C RPT CS 2DP 1NR 2AM NEW TITLE
04/01/05 (S) DP: BUNDE, STEVENS B
04/01/05 (S) NR: SEEKINS
04/01/05 (S) AM: DAVIS, ELLIS
04/01/05 (S) JUD REFERRAL ADDED AFTER L&C
04/05/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/05/05 (S) Heard & Held
04/05/05 (S) MINUTE(JUD)
04/06/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/06/05 (S) Heard & Held
04/06/05 (S) MINUTE(JUD)
04/07/05 (S) JUD AT 8:30 AM BUTROVICH 205
04/07/05 (S) Heard & Held
04/07/05 (S) MINUTE(JUD)
04/08/05 (H) JUD AT 8:00 AM CAPITOL 120
04/08/05 (S) Moved CSSB 130(JUD) Out of Committee
04/08/05 (S) MINUTE(JUD)
04/08/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/08/05 (S) <Pending Referral>
04/08/05 (S) JUD RPT CS FORTHCOMING 1DP 4NR
04/08/05 (S) DP: SEEKINS
04/08/05 (S) NR: FRENCH, GUESS, THERRIAULT, HUGGINS
04/11/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/11/05 (S) Moved CSSB 130(FIN) Out of Committee
04/11/05 (S) MINUTE(FIN)
04/11/05 (S) FIN RPT CS 5DP 1NR 1AM NEW TITLE
04/11/05 (S) DP: GREEN, WILKEN, BUNDE, DYSON,
STEDMAN
04/11/05 (S) NR: HOFFMAN
04/11/05 (S) AM: OLSON
04/11/05 (S) JUD CS RECEIVED NEW TITLE
04/14/05 (S) TRANSMITTED TO (H)
04/14/05 (S) VERSION: CSSB 130(FIN) AM
04/15/05 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/15/05 (S) Moved Out of Committee 4/11
04/15/05 (S) MINUTE(FIN)
04/15/05 (H) READ THE FIRST TIME - REFERRALS
04/15/05 (H) L&C, JUD, FIN
05/04/05 (H) L&C AT 2:00 PM CAPITOL 17
05/04/05 (H) Moved HCS CSSB 130(L&C) Out of
Committee
05/04/05 (H) MINUTE(L&C)
05/04/05 (H) L&C RPT HCS(L&C) 2DP 3NR 2AM
(FORTHCOMING)
05/04/05 (H) DP: KOTT, LEDOUX;
05/04/05 (H) NR: CRAWFORD, LYNN, GUTTENBERG;
05/04/05 (H) AM: ROKEBERG, ANDERSON
05/05/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE SHARON CISSNA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified during discussion of HB 193 and
responded to a question.
RICHARD MANDSAGER, M.D., Director
Division of Public Health
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Presented HB 193 on behalf of the
administration.
STACIE KRALY, Senior Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions and provided
comments during discussion of proposed amendments to HB 193.
STEVEN P. ASHMAN, Director
Division of Senior and Disabilities Services
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of proposed amendments to HB 193.
GREG O'CLARAY, Commissioner
Department of Labor & Workforce Development (DLWD)
Juneau, Alaska
POSITION STATEMENT: Testified in support of a proposed
conceptual amendment to SB 130.
JOEL SIGMAN
Wasilla, Alaska
POSITION STATEMENT: During discussion of SB 130, provided
comments and recounted his personal experience [with the
workers' compensation system].
MICHAEL BLODGETT
Wasilla, Alaska
POSITION STATEMENT: During discussion of SB 130, provided
comments, recounted his wife's personal experience [with the
workers' compensation system], and suggested changes.
ERROL CHAMPION, Director
Alaska Timber Exchange Management Corporation
Ketchikan, Alaska
POSITION STATEMENT: Testified in support of a proposed
conceptual amendment to SB 130.
RICHARD CATTANACH, Executive Director
Associated General Contractors (AGC) of Alaska
Anchorage, Alaska
POSITION STATEMENT: During discussion of SB 130, provided
comments and responded to questions.
PAUL F. LISANKIE, Director
Division of Workers' Compensation
Department of Labor & Workforce Development (DLWD)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 130.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
SB 130.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:19:56 PM. Representatives
McGuire, Coghill, Dahlstrom, Gruenberg, and Gara were present at
the call to order. Representatives Anderson and Kott arrived as
the meeting was in progress.
HB 193 - LICENSING MEDICAL OR CARE FACILITIES
1:21:28 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 193, "An Act relating to the licensing,
regulation, enforcement, and appeal rights of ambulatory
surgical centers, assisted living homes, child care facilities,
child placement agencies, foster homes, free-standing birth
centers, home health agencies, hospices or agencies providing
hospice services, hospitals, intermediate care facilities for
the mentally retarded, maternity homes, nursing facilities,
residential child care facilities, residential psychiatric
treatment centers, and rural health clinics; relating to
criminal history requirements, and a registry, regarding certain
licenses, certifications, approvals, and authorizations by the
Department of Health and Social Services; making conforming
amendments; and providing for an effective date." [Before the
committee was CSHB 193(HES).]
[Because of its length, what became known as Amendment 1 can be
found at the end of the first set of minutes for HB 193 for this
date.]
1:21:32 PM
REPRESENTATIVE SHARON CISSNA, Alaska State Legislature,
indicating that she would be providing testimony, first referred
to Section 54, located on pages 42-43 of CSHB 193(HES).
CHAIR McGUIRE noted that members' packets contain a proposed
amendment that would remove Section 54 from CSHB 193(HES).
REPRESENTATIVE CISSNA relayed her understanding that the purpose
of Section 54 is to keep seniors in their own homes and save
money through the use of home healthcare. The federal policy
has been "least restrictive" and Alaska has been responding via
Personal Care Attendants (PCAs). However, the costs for that
have risen. She referenced a PowerPoint presentation and noted
that it contains a chart illustrating that rise. She surmised
that the Department of Health and Social Services (DHSS) met the
challenge predominately by cutting and capping various services
such as respite care and other items. The problem, she
recounted, is that these cuts and caps have jeopardized the
ability of seniors to stay in their homes.
REPRESENTATIVE CISSNA referred to page 4 of the aforementioned
presentation and recounted the situation of a woman who's
working full time but whose mother has Alzheimer's. Although
the mother qualifies for the "Medicaid Waiver" and could go to a
nursing home, the daughter wants her mother to be able to stay
at home, in a loving environment. However, currently the
daughter can only get a PCA for her mother for 26 hours [during
the workweek]. Representative Cissna then played a recording of
an interview with the daughter for committee members wherein the
daughter expresses concerns regarding her mother's safety.
[This interview recording was not picked up well on the meeting
recording.]
REPRESENTATIVE CISSNA mentioned that the mother's previous plan
would cover her for approximately 50 hours per week, and this
allowed the daughter to maintain her fulltime job.
1:28:17 PM
REPRESENTATIVE CISSNA summarized by saying that after new
regulations became effective and after the previous plan
expired, the mother's new plan now covers only 30 hours per
week. This has resulted in the daughter having to cut back
hours at work, which might, incidentally, jeopardize her health
insurance benefits. Representative Cissna opined that such cuts
will ultimately result in higher costs to the state. And so
although the department now has the authority to make cuts to
the aforementioned types of programs, she asked that the
committee not remove Section 54 from the bill, reiterating that
Section 54 proposes to keep people at home at a competitive
price.
CHAIR McGUIRE acknowledged the work Representative Cissna has
put into senior care issues.
REPRESENTATIVE CISSNA opined that the cuts and caps will
ultimately have a detrimental impact on family caregivers.
REPRESENTATIVE GARA said he supports Representative Cissna's
attempt to get the program proposed in Section 54 started. He
asked what "chore" services have been cut to.
REPRESENTATIVE CISSNA offered her understanding that it is now
10 hours per week, and that respite services cannot be used
while the primary caregiver is at work.
1:33:12 PM
RICHARD MANDSAGER, M.D., Director, Division of Public Health,
Department of Health and Social Services (DHSS), presented HB
193 on behalf of the administration. He relayed that the
companion bill to HB 193 has just passed the Senate, and that HB
193 has three main purposes. He elaborated:
The first purpose is to deal with an incredible
statutory and regulatory variation around the
multiplicity of types of organizations and entity that
the Department of Health and Social Services licenses
or certifies, and the intent is to simplify [and]
streamline - [the process] ... - to make it more
standard and more straightforward. The second goal is
to also standardize, across all the various entities
and individuals that work for those entities, the
kinds of background checks that are done before
employment - to work toward improving the health and
safety of vulnerable Alaskans - and the intent is to
deal both on the criminal side - with criminal
background checks - and on the civil side - with
fraud, abuse, neglect, and Medicaid fraud - both for
entities, the organizations, the CEOs, and for the
individuals that work with ... clients (indisc.).
CHAIR McGUIRE raised the issue of predators of children, and
offered her understanding that the system being proposed via HB
193 may well be affordable and accessible to nonprofit and
volunteer organizations that should also be doing background
checks but have found doing so to be too costly.
DR. MANDSAGER referred to a handout, derived from a PowerPoint
presentation, provided by the DHSS and dated 5/4/05, and relayed
that it in part provides the committee with examples of problems
occurring under existing regulations. For example, a supported-
living home provider was misappropriating funds from residents;
no background check had been conducted on that provider, since
current law did not require that particular home to be licensed.
There have also been instances of physical violence against and
mistreatment of residents. He noted that currently PCAs, who
are typically listed by multiple employment agencies, must
submit separate fingerprint-based background checks for each
agency, and [HB 193] proposes to allow one such background check
to be made available to various employers.
DR. MANDSAGER referred to page 4 of the DHSS's handout, and said
it reflects that the DHSS administers 19 programs under as least
12 different statutory schemes for licensure. Furthermore,
various agencies/entities are governed by different rules - some
statutory, some regulatory. As a result of the passage of
executive order (EO) 108, consolidation of licensing and
certification activities in the Division of Public Health has
begun, but there is internal tension with regard to different
divisions' fiscal responsibilities. Page 6 of the
aforementioned handout, he remarked, highlights some of the
variations in rules for the different types of organizations
licensed and/or certified by the DHSS. This page also lists the
various types of organizations that will be subject to
background checks should HB 193 pass.
DR. MANDSAGER said that page 7 of the handout lists which
statutes will be changed by passage of the bill, and page 8
lists some of the items included in the bill. For example, HB
193 is proposing a new article that will define who is required
to have background checks, will provide for regulatory
definition of barrier conditions, and will require the
establishment and maintenance of a centralized registry
available to all [prospective] employers. He characterized
background checks as reflecting the criminal side of a person's
history, and characterized what he termed as the misconduct
registry as reflecting the "civil side" of a person's history,
the latter registry being modeled on what currently exists for
certified nurse attendants (CNAs) in nursing homes and assisted-
living homes.
DR. MANDSAGER relayed that the key provisions of HB 193 are
listed on page 9 of the aforementioned handout and pertain to
barrier conditions, background checks, barring of employment in
instances where barrier crimes are committed, the misconduct
registry, and waiver and appeals processes. He noted that page
10 of the handout outlines for the committee the regulations
that [licensing and certifying] staff must keep track of.
1:42:32 PM
CHAIR McGUIRE made a motion to adopt Amendment 1, labeled
05/04/05, 10:15 a.m. [Amendment 1 can be found at the end of
the first set of minutes for HB 193 for this date.]
REPRESENTATIVE DAHLSTROM objected for the purpose of discussion.
DR. MANDSAGER explained that Amendment 1 would alter CSHB
193(HES) such that it would then be identical to the
aforementioned Senate companion bill. He also noted that
members' packets contain a side-by-side comparison between that
companion bill and CSHB 193(HES). The first two changes
proposed by Amendment 1 address concerns regarding firearms
being possessed by individuals who are picking up their child at
a licensed child care facility.
REPRESENTATIVE GRUENBERG asked what the language, "encased in a
container of a motor vehicle" means.
1:45:19 PM
REPRESENTATIVE ANDERSON surmised that that would mean a gun
case.
REPRESENTATIVE GRUENBERG asked whether the gun case would have
to be locked.
DR. MANDSAGER relayed that the discussion that took place in
Senate committee hearings implied that the gun case would be
locked.
CHAIR McGUIRE noted that Representative Dahlstrom has mentioned
that the term could also refer to a glove compartment.
REPRESENTATIVE GRUENBERG said his concern is that a firearm
could still be easily obtained from an unlocked gun case.
REPRESENTATIVE DAHLSTROM mentioned that the flip side of that is
the attention that's being drawn by someone who transfers
his/her firearm to and from the trunk of a car while at a
licensed child care facility. She noted that people carry
firearms for protection and various other reasons, none of
which, she surmised, are furthered by having the firearm in the
trunk of a vehicle.
1:46:49 PM
REPRESENTATIVE GARA asked why this change is needed.
DR. MANDSAGER indicated that current law prohibits a person from
bringing a firearm to a [licensed child care] facility.
REPRESENTATIVE GARA offered his understanding, though, that one
cannot currently bring a firearm to a school. Therefore, why
should on be permitted to bring a firearm to a child care
facility?
1:47:35 PM
STACIE KRALY, Senior Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law (DOL),
relayed that the discussion in the Senate committee hearings
revolved around the issue of whether an individual would be
allowed to have an unloaded firearm in his/her vehicle when
he/she goes to pick up or drop off his/her child at a licensed
child care facility. In other words, the qualifier used in the
proposed change was that the firearm be unloaded, not that it
was locked up in the trunk or encased in a container. She said
that the DOL is neutral on that proposed change.
REPRESENTATIVE GRUENBERG, in response to comments, noted that
current law prohibits one from possessing a firearm at certain
facilities. He opined that if the intent is to ensure that a
firearm be encased in a gun case, then the language should
actually state "gun case" rather than "container of a motor
vehicle", particularly since a gun case is not actually a
container of a motor vehicle and is instead a portable item.
REPRESENTATIVE GRUENBERG made a motion to conceptually amend
Amendment 1, to change the words, "encased in a container of a
motor vehicle" to "encased in a gun case in a motor vehicle".
REPRESENTATIVE DAHLSTROM said she has problems with the
practicality of the language in that portion of Amendment 1 -
both its current language and that which is being offered via
the amendment to Amendment 1. She offered her belief that most
people who carry firearms will not have them locked up in a gun
case nor will the firearms be unloaded. What good is an
unloaded gun, she queried.
1:52:30 PM
REPRESENTATIVE GRUENBERG said his concern is that he doesn't
know what is meant by the term "in a container of a motor
vehicle". Would that be a glove box, for instance?
REPRESENTATIVE DAHLSTROM said that that meaning would be fine
with her.
REPRESENTATIVE GRUENBERG concurred, but offered his
understanding that the language makes it sound as though the
container must be a part of the car - thus a gun case would not
apply.
CHAIR McGUIRE concurred with Representative Gruenberg's
summation. She asked whether changing the language to "encased
in a glove compartment or a locked gun case".
REPRESENTATIVE GRUENBERG indicated that he would be amenable to
such a change.
CHAIR McGUIRE offered her belief that the current language in
Amendment 1 would not allow for the use of a gun case.
1:53:34 PM
REPRESENTATIVE GARA said he would be more comfortable changing
the language in Amendment 1 such that it mirrors the language
pertaining the possession of firearms on school grounds.
REPRESENTATIVE GRUENBERG withdrew his motion to amend Amendment
1, but indicated that he may wish to revisit the issue later.
DR. MANDSAGER explained that the next change proposed by
Amendment 1 would delete Section 14 of CSHB 193(HES). Section
14, he relayed, has been found to be adding language in the
wrong place, and so needs to be removed. The changes Amendment
1 proposes to pages 12 and 14, he opined, are important because
they add the crime of medical assistance fraud to the criminal
history and registry provision and applies both to individuals
and to entities.
1:55:29 PM
DR. MANDSAGER explained that the change proposed by Amendment 1
to page 16 will insert language, via a new Section 47.05.350,
regarding immunity for using information obtained under a
criminal history background check.
MS. KRALY additionally explained that this proposed language is
already included in the bill but in the wrong place, and so
Amendment 1 also includes a corresponding change to delete this
language from that wrong location.
DR. MANDSAGER explained that the change proposed by Amendment 1
to page 21, line 9, is in response to concerns that the
department could issue policies or procedures independent of
regulation, and the change clarifies that any policies or
procedures are not simply arbitrary rules but have gone through
the regulatory process.
1:56:43 PM
REPRESENTATIVE GRUENBERG asked whether the department must
follow the Administrative Procedure Act (APA) regarding the
adoption of regulations.
MS. KRALY confirmed that the department must follow the APA in
that regard.
DR. MANDSAGER explained that the change proposed by Amendment 1
to page 23, lines 30-31 should clarify that licensing by the
department does not obligate the department to place or maintain
an individual.
1:57:26 PM
MS. KRALY, in response to questions, relayed that the term
"entity" is defined in statute as referring to any of the 18
entities that the department licenses, and that use of that term
in the proposed change is also meant to apply to any of those
entities. In other words, the department is not obligated to
find residents for any entity just because the department
licensed the entity, nor is the department obligated to
subsidize any entity it licenses. In response to further
questions, acknowledged that this proposed change basically
seeks to immunize the department from financial responsibility
towards the entities it licenses.
DR. MANDSAGER explained that the change proposed by Amendment 1
to page 32, line 4, will ensure that the provisions of the APA
also apply.
MS. KRALY, in response to questions, clarified that both the
provisions of the APA and the procedures for administrative
hearings would apply to the quasi-adjudicatory process
established via proposed AS 47.32.150(a), and that for the most
egregious type of sanctioning and licensing actions an
administrative law judge will be used.
2:01:44 PM
DR. MANDSAGER, in response to comments, offered his belief that
the rest of the changes proposed by Amendment 1 are technical in
nature - conforming language and renumbering.
REPRESENTATIVE COGHILL, referring to the change proposed by
Amendment 1 regarding firearms, offered his understanding that
it merely mirrors language pertaining to the possession of
firearms around school areas.
REPRESENTATIVE DAHLSTROM removed her objection to the adoption
of Amendment 1.
CHAIR McGUIRE asked whether there were any further objections.
REPRESENTATIVE GRUENBERG referred to the change proposed by
Amendment 1 to delete proposed AS 47.32.900(1)(B), which defines
"ambulatory surgical center" as including a facility that
performs invasive diagnostic or therapeutic services.
DR. MANDSAGER said that after discussion with industry personnel
and physicians, it became clear to him that inclusion of such a
definition was impractical and so he has decided to have that
language removed. He offered his understanding that this
language was removed via an amendment in the House Health,
Education and Social Services Standing Committee, but
Legislative Legal and Research Services neglected to include the
change in CSHB 193(HES).
2:03:27 PM
CHAIR McGUIRE, after ascertaining that there were no further
objections, announced that Amendment 1 was adopted.
REPRESENTATIVE ANDERSON made a motion to adopt Amendment 2,
labeled 04/29/05, 2:30 PM., which read [original punctuation
provided]:
Page 1, lines 9 - 11:
Delete "expanding reimbursable services under
Medicaid waivers for older Alaskans and adults with
disabilities to include adult companion services;"
Page 42, line 24 through page 43, line 23:
Delete all material.
Renumber bill sections accordingly.
Page 47, line 9:
Delete "58"
Insert "57"
Page 47, line 10:
Delete "59"
Insert "58"
Page 47, line 13:
Delete "58(b)"
Insert "57(b)"
Page 47, line 15:
Delete "60 - 62"
Insert "59 - 61"
DR. MANDSAGER relayed that Amendment 2 reflects the
administration's desire to have Section 54, and its
corresponding language in the title, deleted. It is the
administration's position, he remarked, that HB 193 is not the
appropriate bill with which to deal with Medicaid waiver issues,
particularly given that a study regarding such issues is
scheduled to be launched this summer.
REPRESENTATIVE GARA objected to the motion. He said he is
concerned that those with disabilities are being forced into
nursing homes; opined that Representative Cissna's proposed
language - Section 54 - attempts to address this issue now; and
relayed that it is not acceptable to him for the legislature to
delay addressing this issue until next year, until after the
aforementioned study is completed.
STEVEN P. ASHMAN, Director, Division of Senior and Disabilities
Services, Department of Health and Social Services (DHSS),
relayed that under the new regulations, the frequency of
services was reduced. However, the division has not seen anyone
that's been diverted from the waiver program and placed into an
institution. Instead, the division has seen some of the cost
efficiencies that were anticipated under the respite program
being shifted over to the PCA budget, which has helped many
families. He, too, noted that the division will be doing a
long-term-care study, and said the division anticipates spending
$260 million next year for long-term-care services and wants to
ensure that any changes which will be made will be good changes,
that they will be the best practices.
2:06:52 PM
REPRESENTATIVE GARA pointed out, however, that next year is
still next year. He surmised that the reason the division has
not seen people going into nursing homes is because family
members are making more sacrifices to keep their loved ones at
home, and so that is not a good indication that there isn't a
problem. He reiterated that he objects to the motion to adopt
Amendment 2.
CHAIR McGUIRE said she supports [Amendment 2] but agrees with
Representative Gara. She added:
It really was frustrating this interim to try to
communicate a message ... from our constituents. And
it is three branches of government, but we're supposed
to be the lawmaking branch and we're supposed to be
setting the policies and then we pay for whatever it
is that we set. ... Not the other way around - that
you set it and then cut the budget that you request
from us - and I sort of feel a little bit like that
went on.
2:09:02 PM
A roll call vote was taken. Representatives McGuire, Anderson,
Coghill, Kott, and Dahlstrom voted in favor of Amendment 2.
Representatives Gruenberg and Gara voted against it. Therefore,
Amendment 2 was adopted by a vote of 5-2.
REPRESENTATIVE GRUENBERG referred to Amendment 1, specifically
the change proposed to page 38, lines 7-15. He asked whether
that is a substantive change.
DR. MANDSAGER replied that this change will clarify that
"assisted living homes" means the same thing throughout the
bill.
REPRESENTATIVE GRUENBERG asked whether the change will result in
any diminution of service to the client.
DR. MANDSAGER said no, adding that the language will merely
match the current statutory definition.
2:11:39 PM
REPRESENTATIVE GRUENBERG, noting that one of the changes
proposed by Amendment 1 will repeal AS 25.27.244(s)(2), asked
what that statute pertains to.
MS. KRALY said that it pertains to child support, and the
proposed change is in response to a concern raised by
Legislative Legal and Research Services. She added:
The premise is that we're licensing entities rather
than individuals, and so what that was doing was
allowing some garnishment issues, and there's another
issue that deals with postsecondary education loans.
And you can't garnish an entity for a loan default but
you can garnish an individual, and since we're
licensing entities, rather than individuals, that
needed to be changed.
2:12:53 PM
REPRESENTATIVE GARA made a motion to adopt Amendment 3, which,
with handwritten additions, read [original punctuation
provided]:
Page 1, line 9, following "Services;":
Insert "relating to public assistance for health
facilities and assisted living homes, to rates charged
by an assisted living home, and to the liability of
recipients of home or community-based services to pay
for those services;
Page 18, following line 9
Insert new bill sections to read:
Sec. 22 AS 47.07.070(a) is amended to read:
(a) Except as provided under (d) - (f) of this
section, the [THE] department shall, by regulation,
set rates of payment for health facilities under this
chapter and AS 47.25.120 - 47.25.300 in accordance
with 42 U.S.C. 1396 (Title XIX, Social Security Act,
Medical Assistance) and this section. A rate
established under this section takes effect under AS
44.62 (Administrative Procedure Act) but not until
approved in writing by the commissioner. The
commissioner may delegate the performance of these
functions.
Sec. 23 AS 47.07.070 is amended by adding new
subsections to read:
(d) For residential support living services
provided to an eligible recipient of medical
assistance living in an assisted living home licensed
under AS 47.33, the minimum daily reimbursement rate
to the assisted living home for room and board
expenses is $28.
(e) The department may not establish a maximum
daily rate for room and board expenses charged by an
assisted living home.
(f) A calculation of the rate for administrative
and general costs for a provider, including an
assisted living home, shall be determined in the same
way as a calculation of the administrative and general
cost rate for a Pioneers' Home. In this subsection,
"administrative and general costs" means those
expenses that are common to the overall operation of a
provider providing home and community-based waiver
services and that are not directly assignable to or
borne by a specific program or recipient of a home and
community-based service.
Renumber the following bill sections accordingly.
Page 41, following line 5
Insert a new bill section to read:
Sec. 49 AS 47.07.070(c) is repealed."
Renumber the following bill sections accordingly.
Page 41, following line 14
Insert a new bill section to read:
Sec 52. The uncodified law of the State of Alaska is
amended by adding a new section to read:
REGULATIONS ANNULLED. 7 AAC 43.1058(j) and 7 AAC
43.1058(k)(1)(B) are annulled."
Renumber the following bill sections accordingly.
Note to Leg. Legal: Conform all internal
bill section references as necessary.
REPRESENTATIVE GARA, indicating that the goal of Amendment 3 is
to establish a minimum room and board rate for assisted living
homes, made a motion to amend Amendment 3, to take out proposed
subsection (e) of proposed AS 47.07.070. There being no
objection, the amendment to Amendment 3 was adopted.
REPRESENTATIVE GARA acknowledged that several legislators have
had concerns about the reduction in the rates paid to help
people stay at assisted living homes. That reduction was
essentially a transfer, he noted, and went from $28 a day to $18
a day, and although some monetary compensation occurred via the
Medicaid program, many assisted living homes feel that they
can't legally use that program. Amendment 3, as amended,
attempts to "roll back the new summer regulation to the former
$28 [per] day compensation rate." He offered his understanding
that corresponding amendments with regard to funding have been
made to the [operating] budget. However, also according to his
understanding, he remarked, until a new regulation is adopted,
any forthcoming funds cannot be spent; thus the department may
relay the need to adopt a new regulation.
2:15:18 PM
MR. ASHMAN said that Amendment 3, as amended, will deal with
individuals who have incomes in excess of Supplemental Security
Income (SSI) and Adult Public Assistance (APA), and will allow
clients to retain their SSI and APA and use it for whatever
purpose they wish. Furthermore, if the department becomes
authorized to promulgate emergency regulations on this issue, it
will then do so, providing for an effective date of July 1,
2006.
REPRESENTATIVE GARA said he wants to be assured that if the
funding is made available this year, that assisted living homes
will be compensated at $28 per day immediately, not 2006.
MR. ASHMAN offered his understanding that an option might be to
institute reimbursement retroactively.
MS. KRALY also offered her understanding that if the funding is
made available via the budget, monies would be paid to assisted-
living home operators starting July 1, and that in lieu of
regulatory authorization, the [DHSS] will work as quickly as
possible to amend the regulations back to what they were a year
ago.
REPRESENTATIVE GARA indicated that for the time being his
intention is try to get Amendment 3, as amended, adopted and
then, when he gets something in writing assuring him of the
department's intent on this issue, he will withdraw Amendment 3
as the bill continues through the legislative process.
2:18:04 PM
CHAIR McGUIRE said she would agree to oppose Amendment 3, as
amended, but pointed out that it would be nice to have something
in writing anyway so as to understand the timing on the
regulation process. She remarked that Representative Gara makes
a good point, that assisted living homes are under the
assumption that they will be fine if the budgetary change is
forthcoming and so are acting a certain way in order to stay
afloat; therefore if the monies aren't actually going to be made
available until 2006, it won't help assisted living homes now.
She reiterated that it would be nice to have something in
writing, something stating that the department will pursue the
promulgation of emergency regulations.
2:20:05 PM
MR. ASHMAN said he would discuss the issue with the commissioner
of DHSS, adding his assurance that the department does have a
commitment to follow through if the funding is made available.
2:20:19 PM
CHAIR McGUIRE objected to the motion to adopt Amendment 3, as
amended.
2:20:40 PM
A roll call vote was taken. Representatives Dahlstrom,
Gruenberg, and Gara voted in favor of Amendment 3, as amended.
Representatives McGuire and Anderson voted against it.
Therefore, Amendment 3, as amended, was adopted by a vote of 3-
2.
The committee took an at-ease from 2:21 p.m. to 2:23 p.m.
2:23:03 PM
CHAIR McGUIRE relayed that the House Judiciary Standing
Committee would continue discussion - perhaps even moving on to
the next bill - and be awaiting a letter from the DHSS
addressing members' concerns regarding the assisted living
provider regulations.
REPRESENTATIVE GRUENBERG referred to Amendment 1 and offered his
understanding that it would repeal a provision that would allow
the department to pull a person's license if he/she has not paid
child support.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 4, to
delete the language added to the bill via adoption of Amendment
1 that read:
Page 41, following line 2:
Insert a new bill section to read:
"* Sec. 46. AS 25.27.244(s)(2) is repealed."
REPRESENTATIVE ANDERSON objected for the purpose of discussion.
2:25:13 PM
MS. KRALY said that the DOL has no objection Amendment 4.
CHAIR McGUIRE announced that Amendment 4 was adopted.
CHAIR McGUIRE announced that CSHB 193(HES), as amended, would be
set aside until later in the meeting.
AMENDMENT(S)
Amendment 1 [Labeled 05/04/05, 10:15 a.m.] (adopted):
Page 1, line 7, following "clinics;":
Insert "relating to possession of a firearm at
licensed entities and facilities;"
Page 4, line 3, following "children":
Insert ", except that a person 21 years of age or
older may possess an unloaded firearm in the trunk of
a motor vehicle or encased in a container of a motor
vehicle"
Page 6, line 31 through page 8, line 15:
Delete all material.
Renumber the following bill sections accordingly.
Page 12, line 16, following "jurisdiction":
Insert "or to have committed medical assistance
fraud under AS 47.05.210 or a substantially similar
provision in another jurisdiction"
Page 14, line 8, following "jurisdiction":
Insert "or to have committed medical assistance
fraud under AS 47.05.210 or a substantially similar
provision in another jurisdiction"
Page 16, following line 11:
Insert "Sec. 47.05.350. Immunity. An entity or
individual service provider that obtains information
about an employee under a criminal history check under
AS 47.05.310 may use that information only as provided
in regulations adopted by the department under AS
47.05.320. However, if that entity or individual
service provider reasonably relies on that information
provided under the regulations adopted by the
department to deny employment to an individual who was
selected for hire as an employee, including during a
period of provisional employment, the entity or
individual service provider is not liable in an action
brought by the individual based on the employment
determination resulting from the information."
Page 21, line 29, following "AS 47.32.010(b)":
Insert ", as defined by regulation"
Page 23, line 30, following "(c)", through line 31:
Delete all material and insert "The issuance of a
license by the department does not obligate the
department to place or maintain an individual in an
entity or through an entity, or to provide financial
support to an entity."
Page 32, line 4:
Delete "applies"
Insert "and AS 44.62.330 - 44.62.630 apply"
Page 32, lines 24 - 30:
Delete all material.
Page 34, line 21, following "ambulatory surgical
center":
Insert "means a facility that"
Page 34, line 22:
Delete all material.
Page 34, line 23:
Delete "(i)"
Insert "(A)"
Page 34, line 25:
Delete "(ii)"
Insert "(B)"
Delete "and"
Page 34, lines 27 - 28:
Delete all material.
Page 35, line 5:
Delete "or"
Page 35, following line 5:
Insert "(iii) offers personal assistance as
defined in AS 47.33.990; or"
Page 35, line 6:
Delete "(iii)"
Insert "(iv)"
Page 37, line 13, following "care":
Insert "or rehabilitative services"
Page 37, line 31:
Delete "35"
Insert "34"
Page 38, line 7, following "to", through line 15:
Delete all material and insert "assisted living
homes as defined in AS 47.32.900."
Page 41, following line 2:
Insert a new bill section to read:
"* Sec. 46. AS 25.27.244(s)(2) is repealed."
Page 41, line 6:
Delete "47.33.420,"
Page 41, line 18:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 41, line 21:
Delete "35"
Insert "34"
Page 41, line 22:
Delete "35"
Insert "34"
Page 41, line 24:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 41, line 25:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
-"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 -"
Page 41, line 27:
Delete "35"
Insert "34"
Page 41, line 30:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 42, line 2:
Delete "SEC. 20"
Insert "SECS. 19 AND 35"
Page 42, line 3:
Delete "sec. 20"
Insert "secs. 19 and 35"
Page 42, line 5:
Delete "sec. 20"
Insert "secs. 19 and 35"
Page 42, line 8:
Delete "20"
Insert "19"
Page 42, line 9:
Delete "35"
Insert "34"
Page 42, line 12:
Delete "sec. 20"
Insert "secs. 19 and 35"
Page 42, line 14:
Delete "20"
Insert "19"
Page 42, line 17:
Delete "sec. 20"
Insert "secs. 19 and 35"
Page 42, line 20:
Delete "20"
Insert "19"
Delete "35"
Insert "34"
Page 42, line 21:
Delete "20"
Insert "19"
Page 42, line 23:
Delete "20"
Insert "19"
Page 43, line 27:
Delete "35"
Insert "34"
Page 43, line 28:
Delete "35"
Insert "34"
Page 43, line 29:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 44, line 5:
Delete all material.
Page 44, line 6:
Delete "(4)"
Insert "(3)"
Delete "18"
Insert "17"
Page 44, line 7:
Delete "(5)"
Insert "(4)"
Delete "19"
Insert "18"
Page 44, line 8:
Delete "(6)"
Insert "(5)"
Delete "21"
Insert "20"
Page 44, line 9:
Delete "(7)"
Insert "(6)"
Delete "22"
Insert "21"
Page 44, line 10:
Delete "(8)"
Insert "(7)"
Delete "23"
Insert "22"
Page 44, line 11:
Delete "(9)"
Insert "(8)"
Delete "24 and 25"
Insert "23 and 24"
Page 44, line 12:
Delete "(10)"
Insert "(9)"
Delete "27"
Insert "26"
Page 44, line 13:
Delete "(11)"
Insert "(10)"
Delete "28"
Insert "27"
Page 44, line 14:
Delete "(12)"
Insert "(11)"
Delete "29"
Insert "28"
Page 44, line 15:
Delete "(13)"
Insert "(12)"
Delete "30"
Insert "29"
Page 44, line 16:
Delete "(14)"
Insert "(13)"
Delete "31"
Insert "30"
Page 44, line 17:
Delete "(15)"
Insert "(14)"
Delete "32"
Insert "31"
Page 44, line 18:
Delete "(16)"
Insert "(15)"
Delete "33"
Insert "32"
Page 44, line 19:
Delete "(17)"
Insert "(16)"
Delete "34"
Insert "33"
Page 44, line 20:
Delete "(18)"
Insert "(17)"
Delete "38"
Insert "37"
Page 44, line 21:
Delete "(19)"
Insert "(18)"
Delete "41"
Insert "40"
Page 44, line 26:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 45, line 1:
Delete "35"
Insert "34"
Page 45, line 4:
Delete "35"
Insert "34"
Page 45, line 14:
Delete "35"
Insert "34"
Page 45, line 15:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 45, line 17:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 45, lines 19 - 20:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 45, line 25:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 45, line 28:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 45, line 30:
Delete "35"
Insert "34"
Page 46, line 3:
Delete "35"
Insert "34"
Page 46, line 12:
Delete "20"
Insert "19"
Page 46, line 14:
Delete "20"
Insert "19"
Page 46, line15:
Delete "20"
Insert "19"
Page 46, line 16:
Delete "20"
Insert "19"
Page 46, line 18:
Delete "20"
Insert "19"
Page 46, line 21:
Delete "20"
Insert "19"
Page 46, line 23:
Delete "20"
Insert "19"
Page 46, lines 30 - 31:
Delete "1 - 15, 17 - 19, 21 - 35, 37 - 42, and 44
- 51"
Insert "1 - 14, 16 - 18, 20 - 34, and 36 - 51"
Page 47, line 3:
Delete: "16, 20, and 36"
Insert "15, 19, and 35"
Page 47, line 11:
Delete all material.
Renumber the following bill sections accordingly.
Page 47, line 12:
Delete "16, 20, and 36"
Insert "15, 19, and 35"
Page 47, line 15:
Delete "62"
Insert "61"
[End of amendment(s); CSHB 193(HES), as amended, was set aside
until later in the meeting.]
SB 130 - WORKERS' COMPENSATION/ INSURANCE
2:25:54 PM
CHAIR McGUIRE announced that the next order of business would be
CS FOR SENATE BILL NO. 130(FIN) am, "An Act relating to a
special deposit for workers' compensation and employers'
liability insurers; relating to assigned risk pools; relating to
workers' compensation insurers; stating the intent of the
legislature, and setting out limitations, concerning the
interpretation, construction, and implementation of workers'
compensation laws; relating to the Alaska Workers' Compensation
Board; assigning certain Alaska Workers' Compensation Board
functions to the division of workers' compensation in the
Department of Labor and Workforce Development and to that
department, and authorizing the board to delegate administrative
and enforcement duties to the division; providing for workers'
compensation hearing officers in workers' compensation
proceedings; establishing a Workers' Compensation Appeals
Commission; relating to workers' compensation medical benefits
and to charges for and payment of fees for the medical benefits;
relating to agreements that discharge workers' compensation
liability; relating to workers' compensation awards; relating to
reemployment benefits and job dislocation benefits; relating to
coordination of workers' compensation and certain disability
benefits; relating to division of workers' compensation records;
relating to release of treatment records; relating to an
employer's failure to insure and keep insured or provide
security; providing for appeals from compensation orders;
relating to workers' compensation proceedings; providing for
supreme court jurisdiction of appeals from the Workers'
Compensation Appeals Commission; providing for a maximum amount
for the cost-of-living adjustment for workers' compensation
benefits; relating to attorney fees with respect to workers'
compensation; providing for the department to enter into
contracts with nonprofit organizations to provide information
services and legal representation to injured employees;
providing for administrative penalties for employers uninsured
or without adequate security for workers' compensation; relating
to fraudulent acts or false or misleading statements in workers'
compensation and penalties for the acts or statements; providing
for members of a limited liability company to be included as an
employee for purposes of workers' compensation; establishing a
workers' compensation benefits guaranty fund; making conforming
amendments; providing for a study and report by the medical
services review committee; establishing the Task Force on
Workers' Compensation; and providing for an effective date."
[Before the committee was HCS CSSB 130(L&C).]
The committee took an at-ease from 2:26 p.m. to 2:27 p.m.
CHAIR McGUIRE relayed that HCS CSSB 130(L&C) no longer proposes
to change certain "structures in the court regarding appeals,"
and voiced her understanding that Representative Dahlstrom would
be offering a conceptual amendment to reinstate the "second
injury fund."
GREG O'CLARAY, Commissioner, Department of Labor & Workforce
Development (DLWD), relayed simply that the DLWD supports the
aforementioned conceptual amendment.
2:29:16 PM
JOEL SIGMAN, referring to the [second injury fund], said he
didn't think it's right to have the financial burden of a second
injury placed on the employee, particularly since, in his
opinion, "they" aren't taking care of the employee for the first
injury. He indicated that he has been dealing with this issue
for eight years and has been misrepresented throughout, and gave
details regarding the information that he has been told, the
information that has been kept from him, and what he's had to go
through. Even though he has had a doctor acknowledge that he
needs surgery, he relayed, [workers' compensation] refuses to do
anything. He opined that if an insurance company does not do
what it is supposed to do, then the employee ought to be able to
sue the employer. He mentioned that before he was injured he
was able to earn $4,000 to $5,000 per month, but since his
injury his life has been destroyed and he is not getting any
assistance from the government.
2:32:49 PM
MICHAEL BLODGETT relayed that his wife was injured seven months
ago, and that after her injury workers' compensation paperwork
was filed with her employer but her employer refused to turn the
paperwork over to the insurance company. It has taken seven
months for his wife to "get through the system," he recounted,
adding that his wife describes her pain as being like having an
ice pick shoved into her shoulder and then periodically moved
around. He relayed that they'd recently been offered a deal
with the insurance company and the employer but would have had
to give up all fines, penalties, and fees. Turning attention to
provisions of the bill, he suggested that the $10,000 fine
[established in AS 23.30.175(b)] be increased to $100,000 at 21
percent interest, be made nonnegotiable, and be split equally
between the State and the injured party. He opined that medical
costs should not be the responsibility of the employee but
rather the responsibility of the insurance company and employer.
MR. BLODGETT acknowledged that when most people consider the
issue of workers' compensation fraud, they think of someone who
claims to have been injured but then goes back to work while
also collecting workers' compensation. However, there are also
situations in which it is the employer committing the fraud. He
suggested that [the legislature] quit following other states and
start being leaders with regard to workers' compensation issues
- impose fines on employers and insurance companies that allow
the kind of situation his wife is experiencing to occur and/or
continue. Mr. Blodgett referred to Mr. Sigman and offered his
belief that Mr. Sigman has spent the last eight years in pain
simply because the system currently in place is flawed. In
conclusion, Mr. Blodgett said:
I applaud our legislators for taking thus under their
wing. I realize this is a very hot topic, I realize
that it applies to a tremendous number of people.
Insurance companies want to continue making money.
People would like to get fixed. If we take and say,
"Look, you're going to be putting out $100,000 for not
taking care of these people, per person," then maybe
you will be able to get this to a stop and the
[Workers' Compensation Board] slimmed down and their
cases thinned out.
2:37:24 PM
ERROL CHAMPION, Director, Alaska Timber Exchange Management
Corporation, said simply that he supports the aforementioned
proposed conceptual amendment regarding the "second injury fund"
and hopes that it will be adopted. Second injury funds are
extremely important for the reemployment of Alaskans,
particularly in the timber industry, he concluded.
2:38:08 PM
RICHARD CATTANACH, Executive Director, Associated General
Contractors (AGC) of Alaska, after relaying that he is also the
"Management" co-chair of the Labor-Management ad hoc committee,
opined that SB 130 reflects about six months of hard work on the
part of both employers and employees, and represents the first
step in what he characterized as a major overhaul of Alaska's
workers' compensation statutes; a needed first step, he
remarked, though it is far from perfect. He also opined that
the second injury fund is "a system that isn't working," that it
hasn't worked for a long time, and that it is an expensive
system. He elaborated:
If you are a good employer and you hire somebody, you
can't ask them the questions that's essential to get
into the second injury fund, and that is, "Does he
have a preexisting injury?" because ... it's illegal
to ask that question under federal law. And if you
don't ask that question, you're not entitled to use
the second injury fund. So we don't have many people
getting into the second injury fund at all, and it's
just a system not working.
CHAIR McGUIRE surmised, then, that during an interview an
employer isn't able to ask about physical injuries.
MR. CATTANACH concurred.
CHAIR McGUIRE asked what triggers entry into the second injury
fund.
MR. CATTANACH reiterated his belief that the employer has to
have knowledge of a preexisting injury before he/she hires the
employee and that under federal law an employer is precluded
from having such knowledge. He said that he is not sure how
anyone is getting into the second injury fund now, but pointed
out that some people have been in that system for over 20 years.
He offered his understanding that there are only between five
and ten new cases a year qualifying for the second injury fund.
MR. CATTANACH, in response to questions, offered his
understanding that between $3 million and $4 million is
currently in the second injury fund, and that insurance
companies are assessed 6 percent of the indemnity payments that
they make and this essentially amounts to a "tax" on employers
of about 2.5 to 3 percent on their premiums.
2:42:53 PM
MR. CHAMPION, in contrast to Mr. Cattanach's comments, offered
his understanding that nothing prevents an employer from asking
a potential employee to get a pre-employment physical exam, and
that the employer simply can't discriminate on the basis of a
preexisting injury. Thus preexisting conditions can be
identified before a person is hired and even after a person is
hired; it is not factual that an employer can't ask about a
preexisting condition, he assured the committee.
2:44:16 PM
PAUL F. LISANKIE, Director, Division of Workers' Compensation,
Department of Labor & Workforce Development (DLWD), in response
to a question, acknowledged that perhaps some employers have a
fear of running afoul of the Americans with Disabilities Act
(ADA) and so avoid asking about preexisting injuries before
hiring someone. Now, in order to still qualify for the second
injury fund, an employer can simply "prove it up" after the
hire. In other words, if an employer can prove that an employee
is being retained even though he/she has a preexisting
condition, then the employer can still qualify for second injury
fund protection.
CHAIR McGUIRE asked what a worker's remedy would be if there
were no second injury fund.
MR. LISANKIE clarified that the second injury fund isn't really
a remedy for employees; rather, it is a remedy for the employer
or insurer. The second injury fund reimburses the insurance
company after it pays a certain amount of benefits "and then the
fund picks up the rest." If there was no second injury fund,
the burden would remain on the shoulders of insurance company
for the entire life of the claim.
CHAIR McGUIRE questioned, then, whether the proposed conceptual
amendment is intended to help insurance companies.
REPRESENTATIVE DAHLSTROM said no.
2:47:18 PM
REPRESENTATIVE DAHLSTROM offered her understanding that under
the current workers' compensation law, there is a provision
known as the "last injurious exposure rule," which would hold a
former employer liable should a second injury with a new
employer render the employee disabled.
MR. LISANKIE concurred, and explained that when the Alaska
Supreme Court was addressing the issue of whether to adopt that
rule, it recognized that it might not be equitable in every
situation to place all of the responsibility for the
[disability] on the final employer. The Alaska Supreme Court
decided that [this rule] was less inequitable because of the
existence of the second injury fund, since "that last employer
will only pay for a limited period of time and then the second
injury fund will kick in"; so [the rule] really won't be that
harsh [for the employer].
2:48:42 PM
REPRESENTATIVE DAHLSTROM pointed out, though, that at one job
she'd had in the past, at the time she was hired she was
required to sign a letter stating that she would undergo a
physical exam and that her continued employment was contingent
upon the results of the exam.
REPRESENTATIVE ANDERSON offered a hypothetical example involving
an employee who is injured while on the job and subsequently
receives workers' compensation benefits. If that person goes on
to work for someone else and is injured again, who would be
liable?
MR. LISANKIE explained that the apportionment of who would pay
is based on a legal test and the existence of the second injury
fund doesn't factor into the question of who would be liable.
In most instances, though, the second employer would be liable
unless the injury that occurred while under the employment of
that second employer was found to not be a substantial factor in
bringing about the disability.
MR. LISANKIE, in response to a further question, said that as
long as a second injury fund exists, if the second employer has
correctly followed the procedures necessary to qualify an
employee for the second injury fund, and if the employee then
becomes injured in a second injury to the point where he/she is
disabled and off work for more than two years, then the employer
- or their insurer - would be reimbursed by the second injury
fund for the "time lost benefits." He elaborated:
So you pay a lot of benefits before you get anything,
and you do have to pay for medical benefits
notwithstanding the existence of the second injury
fund. But it is true that the cases that you see
being paid from the second injury fund are people who
- due to the second injury, no matter how small or
large the injury is - are getting paid benefits,
usually for life. They're usually permanent total
disability benefits, so they can be very expensive
cases, which is why it's entirely true that there's
only about 130 of them, but ... it's a "grants" (ph)
line item out of our vision, and it's about $3 million
a year right now that's being paid out, so it's
substantial.
CHAIR McGUIRE asked what other states do as an alternative to
[the second injury fund].
2:53:05 PM
MR. LISANKIE offered that when a state stops having a second
injury fund, it attempts to redirect those dollars to some other
program that is orientated towards trying to get people back to
work after being injured. The second injury fund merely
provides a fall back position for employers contemplating hiring
a previously injured person, and thus they may be more likely to
hire that person. An alternative would be to establish laws
that not only require employers to hire people notwithstanding
any previous injury but that also try to get those individuals
back to work somehow should they get injured again.
MR. CATTANACH, in response to a question, offered his belief
that the second injury fund results in an increase to workers'
compensation insurance rates of about 1 to 2 percent.
MR. LISANKIE explained that for [the second injury fund],
everyone who pays workers' compensation benefits during a
particular period of time is assessed at a certain percentage -
between 0 and 6 percent.
2:55:52 PM
REPRESENTATIVE KOTT asked Mr. Lisankie to comment on Mr.
Cattanach's statement that the second injury fund system doesn't
work.
MR. LISANKIE said:
It's a system that has a lot of hoops that you have to
go through to qualify, to get anything out of it, and
it can be very difficult to get all of the things in
line to qualify an employee. ... So if the statement
is, "Does this affect a lot people, does this really
help a lot of people year in and year out?" [then] I
guess the answer would be, "Probably not." But ...
the idea is that some of those people wouldn't have
gotten a job unless their employer had the security of
knowing that if they were really going to incur this
big liability, that they'd get bailed out of it. ...
That's the focus of the second injury fund, and it has
been for the many years that it's been in ...
[existence]. You can certainly make an argument that
you can try and do something else that might have
broader application, but the theory behind the second
injury fund has been pretty much that: ... in every
state, for many years, ... you just try and soften the
blow to employers of people who come to the workplace
with a serious injury and then get seriously injured
[again].
2:57:37 PM
REPRESENTATIVE KOTT asked whether, from the division's
perspective, there is anything in SB 130 that is onerous,
impractical, or unworkable.
MR. LISANKIE indicated that he wouldn't characterize any of the
bill's provisions as either onerous, impractical, or unworkable.
REPRESENTATIVE KOTT asked whether the division has taken a
position on SB 130.
MR. LISANKIE indicated that if the division has taken a position
on the bill, he is unaware of what it is.
[HCS CSSB 130(L&C) was set aside until later in the meeting].
HB 193 - LICENSING MEDICAL OR CARE FACILITIES
2:59:04 PM
CHAIR McGUIRE announced that the committee would next return to
the hearing on HOUSE BILL NO. 193, "An Act relating to the
licensing, regulation, enforcement, and appeal rights of
ambulatory surgical centers, assisted living homes, child care
facilities, child placement agencies, foster homes, free-
standing birth centers, home health agencies, hospices or
agencies providing hospice services, hospitals, intermediate
care facilities for the mentally retarded, maternity homes,
nursing facilities, residential child care facilities,
residential psychiatric treatment centers, and rural health
clinics; relating to criminal history requirements, and a
registry, regarding certain licenses, certifications, approvals,
and authorizations by the Department of Health and Social
Services; making conforming amendments; and providing for an
effective date." [Before the committee was CSHB 193(HES), which
was amended earlier in the meeting.]
REPRESENTATIVE GRUENBERG made a motion to rescind the
committee's action in adopting Amendment 4, adopted earlier in
the meeting, that deleted the language added to the bill via
adoption of Amendment 1 that read:
Page 41, following line 2:
Insert a new bill section to read:
"* Sec. 46. AS 25.27.244(s)(2) is repealed."
CHAIR McGUIRE, after ascertaining that there were no objections
to the motion to rescind the committee's action in adopting
Amendment 4, announced that the committee has rescinded its
action in adopting Amendment 4; therefore the language that
proposes to repeal AS 25.27.244(s)(2) is now still part of the
bill.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 5, to
alter the language added via Amendment 1 that proposes to repeal
AS 25.27.244(s)(2) such that it would instead repeal AS
25.27.244(s)(2)(B)(ii). There being no objection, Amendment 5
was adopted.
3:01:48 PM
CHAIR McGUIRE - after recapping some of the actions taken and
intentions expressed earlier in the meeting with regard to
Amendment 3, as amended - made a motion to rescind the
committee's action in adopting Amendment 3, as amended [text
provided during the first portion of the minutes on HB 193 for
this date].
REPRESENTATIVE GARA objected to the motion.
STEVEN P. ASHMAN, Director, Division of Senior and Disabilities
Services, Department of Health and Social Services (DHSS), said
that Amendment 3, as amended, essentially restores [the former
regulatory language] with regard to clients being able to retain
their Supplemental Security Income (SSI) and Adult Public
Assistance (APA) and spend it any way they desired. He said he
has gone on record as saying, and written letters to the effect
that it is the intent of the department to allow the clients to
spend the aforementioned income any way they want.
3:04:41 PM
REPRESENTATIVE GARA said he wants to ensure that the former
process under which clients got $362 per month in APA payments
and could use it for room and board would still apply. He
offered his understanding that should the funding go through,
then the APA payments would go back up to $362 for those that
used to qualify for those payments.
MR. ASHMAN clarified, however, that it is the department's
intent to retain the Medicaid refinancing and the "cost shift"
that occurred last year. He offered his understanding that
[Amendment 3, as amended] will free up, for the aforementioned
clients, all excess funds, funds which can then be spent in any
fashion, just as was the case prior to the adoption of the
[latest] regulations.
REPRESENTATIVE GARA said he still has a concern.
CHAIR McGUIRE said she hopes that the committee will rescind its
action in adopting amendment 3, as amended, and that afterwards
she and other members can work together with the department to
ensure that their concerns are addressed.
REPRESENTATIVE GARA expressed a preference for retaining
Amendment 3, as amended, as a means of encouraging the
department to address members' concerns.
3:07:32 PM
A roll call vote was taken. Representatives McGuire, Anderson,
Coghill, Kott, and Dahlstrom voted in favor of the committee
rescinding its action in adopting Amendment 3, as amended.
Representatives Gruenberg and Gara voted against it. Therefore,
the committee rescinded its action in adopting Amendment 3, as
amended, by a vote of 5-2.
REPRESENTATIVE DAHLSTROM moved to report CSHB 193(HES), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes.
REPRESENTATIVE GARA objected to note that the motion should
include the forwarding of the attached letter from Mr. Ashman.
CHAIR McGUIRE acknowledged that point and asked whether there
were any further objections. There being none, CSHB 193(JUD)
was reported from the House Judiciary Standing Committee.
SB 130 - WORKERS' COMPENSATION/ INSURANCE
3:08:42 PM
CHAIR McGUIRE announced that as a final order of business the
committee would return to the hearing on CS FOR SENATE BILL NO.
130(FIN) am, "An Act relating to a special deposit for workers'
compensation and employers' liability insurers; relating to
assigned risk pools; relating to workers' compensation insurers;
stating the intent of the legislature, and setting out
limitations, concerning the interpretation, construction, and
implementation of workers' compensation laws; relating to the
Alaska Workers' Compensation Board; assigning certain Alaska
Workers' Compensation Board functions to the division of
workers' compensation in the Department of Labor and Workforce
Development and to that department, and authorizing the board to
delegate administrative and enforcement duties to the division;
providing for workers' compensation hearing officers in workers'
compensation proceedings; establishing a Workers' Compensation
Appeals Commission; relating to workers' compensation medical
benefits and to charges for and payment of fees for the medical
benefits; relating to agreements that discharge workers'
compensation liability; relating to workers' compensation
awards; relating to reemployment benefits and job dislocation
benefits; relating to coordination of workers' compensation and
certain disability benefits; relating to division of workers'
compensation records; relating to release of treatment records;
relating to an employer's failure to insure and keep insured or
provide security; providing for appeals from compensation
orders; relating to workers' compensation proceedings; providing
for supreme court jurisdiction of appeals from the Workers'
Compensation Appeals Commission; providing for a maximum amount
for the cost-of-living adjustment for workers' compensation
benefits; relating to attorney fees with respect to workers'
compensation; providing for the department to enter into
contracts with nonprofit organizations to provide information
services and legal representation to injured employees;
providing for administrative penalties for employers uninsured
or without adequate security for workers' compensation; relating
to fraudulent acts or false or misleading statements in workers'
compensation and penalties for the acts or statements; providing
for members of a limited liability company to be included as an
employee for purposes of workers' compensation; establishing a
workers' compensation benefits guaranty fund; making conforming
amendments; providing for a study and report by the medical
services review committee; establishing the Task Force on
Workers' Compensation; and providing for an effective date."
[Before the committee was HCS CSSB 130(L&C).]
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on SB 130. She noted that the
committee will be considering whether to adopt a conceptual
amendment to SB 130.
REPRESENTATIVE KOTT asked Mr. Wooliver from the Alaska Court
System to comment.
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), noted that many earlier iterations of this bill and many
similar pieces of legislation have contained a provision that
would bypass the Alaska Superior Court and send all appeals from
the agency directly to the Alaska Supreme Court, one of the
rationales for such a change being that it would speed up the
process. He opined however that such an action wouldn't speed
up the process, particularly since most cases that are appealed
stop at the superior-court level, with only about eight cases
per year going on to the supreme-court level. If cases bypass
the Alaska Superior Court, in essence this results in the faster
court being bypassed in favor of the slower court.
MR. WOOLIVER relayed that from the time one files a case until
the time the court issues an opinion, the Alaska Supreme Court
takes an average of 20 months. This is a lot longer than if
cases are left to go through the process at the superior-court
level, at which a case can be completed in as little as a year
[or less]. He acknowledged, however, that bypassing the Alaska
Superior Court will save time for those cases that ultimately do
get appealed to the Alaska Supreme Court, but that is not what
happens with most cases. Furthermore, anytime the Alaska
Supreme Court's caseload is increased, the rest of the work
that's before the court is necessarily slowed down.
3:12:05 PM
REPRESENTATIVE GRUENBERG noted that there has been some concern
with regard to whether the Alaska Superior Court has as much
expertise as administrative law judges would have.
MR. WOOLIVER pointed out that superior court judges are judges
of general jurisdiction and so hear every kind of case. One
could always have some kind of specialty court with unique
experience in a particular area that could develop greater
expertise than a superior court judge. However, this same
argument could be applied to every single case that comes before
the [Alaska Superior] court. In conclusion, he opined that
since the Alaska Superior Court is capable of understanding all
of the details involved in the incredibly complicated issue of
an oil company's duty to develop, for example, it can certainly
understand a workers' compensation appeal.
3:13:30 PM
REPRESENTATIVE DAHLSTROM made a motion to adopt Conceptual
Amendment 1, to "add the second injury fund and insert it in the
appropriate places of the bill."
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE DAHLSTROM opined that Conceptual Amendment 1 will
provide a needed leveling mechanism for business.
REPRESENTATIVE ANDERSON indicated that he agrees with Mr.
Cattanach's comments regarding the second injury fund, and
therefore he objects to Conceptual Amendment 1.
REPRESENTATIVE GARA said he supports Conceptual Amendment 1 and
is wondering whether eliminating the second injury fund will
have a lingering affect on insurance premiums for some
employers.
CHAIR McGUIRE said she supports Conceptual Amendment 1 and
anticipates further discussion on the issue as the bill
continues through the process.
REPRESENTATIVE COGHILL referred to the aforementioned
recognition by the Alaska Supreme Court that if there is no
second injury fund, then the last employer could end up bearing
great responsibility because of the existence of the last
injurious exposure rule, adding that this causes him concern.
He said he would be supporting Conceptual Amendment 1.
3:17:25 PM
A roll call vote was taken. Representatives McGuire, Coghill,
Dahlstrom, Gruenberg, and Gara voted in favor of Conceptual
Amendment 1. Representatives Anderson and Kott voted against
it. Therefore, Conceptual Amendment 1 was adopted by a vote of
5-2.
3:17:49 PM
REPRESENTATIVE ANDERSON moved to report HCS CSSB 130(L&C), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes.
REPRESENTATIVE KOTT objected, and said that he is not prepared
to move the bill from committee today because he wants to be
very sure Conceptual Amendment 1 will have the desired effect.
3:19:01 PM
CHAIR McGUIRE expressed a preference for moving the bill from
committee today, and suggested that further concerns could be
addressed as the bill continues through the process.
REPRESENTATIVE ANDERSON concurred.
3:20:28 PM
A roll call vote was taken. Representatives McGuire, Anderson,
and Coghill voted in favor of reporting HCS CSSB 130(L&C), as
amended, from committee. Representatives Kott, Dahlstrom,
Gruenberg, and Gara voted against it. Therefore, the motion to
report HCS CSSB 130(L&C), as amended, from committee failed by a
vote of 3-4.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:21 p.m.
| Document Name | Date/Time | Subjects |
|---|