05/11/2002 09:18 PM House FIN

SENATE BILL NO. 364                                                                                                           
                                                                                                                                
     An  Act relating  to medical  services  under the  state                                                                   
     Medicaid program.                                                                                                          
                                                                                                                                
                                                                                                                                
KRISTIN BOMENGEN,  ASSISTANT ATTORNEY GENERAL,  DEPARTMENT OF                                                                   
LAW, testified  in opposition.  She discussed legal  problems                                                                   
posed by  the definition of  medically necessary  as proposed                                                                   
by the legislation.  The legislation does not  meet the terms                                                                   
of the court case.  The court described the case  as one that                                                                   
concerns the  state of Alaska's  denial of public  assistance                                                                   
to Medicaid  eligible women  whose health  is in danger.  The                                                                   
court  concluded  that  once the  state  undertakes  to  fund                                                                   
medically  necessary services  for  poor  Alaskans it  cannot                                                                   
selective  exclude women  that  medically require  abortions.                                                                   
The court  case addresses  a series  of circumstances,  which                                                                   
they believe  would  lead them  to conclude  that there  is a                                                                   
group  of women  that  would medically  require  to have  the                                                                   
procedure made available under  the Medicaid program. Some of                                                                   
the terms  in the  bill were  taken from  discussions in  the                                                                   
court  case.  Significant  risks  and symptoms  that  can  be                                                                   
highly dangerous to a developing  fetus were addressed by the                                                                   
court case.  The standard was  set [by the legislation]  at a                                                                   
place that  did not  address all  the circumstances  that the                                                                   
court  considered   when  they   concluded  that   women  had                                                                   
medically  necessary  reasons   to  seek  that  outcome  when                                                                   
presented with a pregnancy.                                                                                                     
                                                                                                                                
Ms. Bomengen referred to page 1, (b)(1)(a):                                                                                     
                                                                                                                                
     Adverse physical condition  of a pregnant woman that (A)                                                                   
     either  is   caused  by   the  pregnancy  or   would  be                                                                   
     significantly   aggravated   by  continuation   of   the                                                                   
     pregnancy;                                                                                                                 
                                                                                                                                
Ms. Bomengen noted that the court stated:                                                                                       
                                                                                                                                
     According  to medical  evidence provided  to the  court,                                                                   
     some   women   particular   those   that   suffer   from                                                                   
     preexisting  health problems  face significant  risks if                                                                   
     they cannot obtain abortions.                                                                                              
                                                                                                                                
Ms. Bomengen  noted "facing  significant risks" is  different                                                                   
from "would  be significantly  aggravated by continuation  of                                                                   
the pregnancy."                                                                                                                 
                                                                                                                                
Ms.  Bomengen observed  that  the legislation  addresses  the                                                                   
most egregious  circumstances of  significant risks  but does                                                                   
not address all of the [significant  risks]. The court refers                                                                   
to women with renal  disease that may lose a  kidney and face                                                                   
a lifetime  of dialysis  if they  cannot obtain an  abortion.                                                                   
The term  used is "may" not  "would". There is  a possibility                                                                   
not  a  certainty.  Pregnancy  with sickle  cell  anemia  can                                                                   
accelerate   the  disease  leading   to  complications.   She                                                                   
concluded that  the legislation  sets a high  bar on  what is                                                                   
considered  medically  necessary.  The  result would  be  two                                                                   
groups of women served by Medicaid:  a group that reaches the                                                                   
bar of highly serious conditions;  and a group where abortion                                                                   
would be medically necessary but  would not pass the standard                                                                   
that would be  applied in the definition. She  concluded that                                                                   
the  legislation would  result  in constitutional  challenges                                                                   
and the court would likely find  the definition is too strict                                                                   
to apply.                                                                                                                       
                                                                                                                                
Vice-Chair Bunde  questioned the costs of  defending previous                                                                   
legislation  relating to  abortion. Ms.  Bomengen noted  that                                                                   
attorney fees were between $200 - $250 thousand dollars.                                                                        
                                                                                                                                
In response to a question by Co-Chair  Williams, Ms. Bomengen                                                                   
reiterated  her   belief  that   the  legislation   would  be                                                                   
challenged in  court. She emphasized  that the  court spelled                                                                   
out  definitions  [of  medically  necessary]  that  were  not                                                                   
covered  in  the  legislation.   She  observed  that  adverse                                                                   
physical  condition  does  not  permit  medications  for  the                                                                   
condition such as epilepsy and bipolar.                                                                                         
                                                                                                                                
Representative  Foster   MOVED  to  report  SB   364  out  of                                                                   
Committee with  the accompanying fiscal note.  Representative                                                                   
Croft and Vice-Chair  Bunde OBJECTED. Vice-Chair  Bunde noted                                                                   
that there  is no middle ground.  He noted that  his decision                                                                   
is based on the freedom that he would allow his family.                                                                         
                                                                                                                                
A roll call vote was taken on the motion.                                                                                       
                                                                                                                                
IN FAVOR: Foster,   Harris,  Lancaster,   Whitaker,   Mulder,                                                                   
          Williams                                                                                                              
OPPOSED: Bunde, Croft, Davies                                                                                                   
                                                                                                                                
Representatives Moses and Hudson were absent from the vote.                                                                     
                                                                                                                                
The MOTION PASSED (6-3).                                                                                                        
                                                                                                                                
SB  364  was REPORTED  out  of  Committee  with a  "do  pass"                                                                   
recommendation and  with a previously published  fiscal note:                                                                   
#1 HSS.