Legislature(2005 - 2006)CAPITOL 106

03/31/2005 03:00 PM House HEALTH, EDUCATION & SOCIAL SERVICES


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 225 MEDICAL EXAMINERS & AUTOPSIES TELECONFERENCED
Moved Out of Committee
+= HB 53 CHILDREN IN NEED OF AID/REVIEW PANELS TELECONFERENCED
Moved CSHB 53(HES) Out of Committee
*+ HB 111 MEDICAID COVERAGE FOR BIRTHING CENTERS TELECONFERENCED
Moved CSHB 111(HES) Out of Committee
*+ HB 220 MENTAL HEALTH PATIENT RIGHTS:STAFF GENDER TELECONFERENCED
Moved CSHB 220(HES) Out of Committee
*+ HB 14 DISCLOSURES BY FOSTER PARENTS TELECONFERENCED
Scheduled But Not Heard
Bills Previously Heard/Scheduled
HB 220-MENTAL HEALTH PATIENT RIGHTS:STAFF GENDER                                                                              
                                                                                                                                
CHAIR WILSON announced  that the next order of  business would be                                                               
HOUSE BILL  NO. 220,  "An Act relating  to mental  health patient                                                               
rights and to  a hospital's duty to provide choice  of the sex of                                                               
staff providing intimate care to a mental health patient."                                                                      
                                                                                                                                
4:24:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  moved  to adopt  the  proposed  committee                                                               
substitute  (CS)  for  HB   220,  labeled  24-LS0667\Y,  Mischel,                                                               
3/31/05,  as  the  working  draft.   There  being  no  objection,                                                               
Version Y was before the committee.                                                                                             
                                                                                                                                
4:25:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LES  GARA,  Alaska  State  Legislature,  sponsor,                                                               
said,  "House Bill  220 is  about the  basic rights  of our  most                                                               
vulnerable patients  to be treated  with dignity."   He explained                                                               
that the bill would require  that mental health patients have the                                                               
opportunity  to  choose the  gender  of  the person  who  bathes,                                                               
dresses, or  otherwise cares  for them  in an  intimate way.   He                                                               
presented  examples  of  particular  instances  in  which  female                                                               
patients have expressed  discomfort in being cared for  by a male                                                               
staff member.  He pointed out that there are news articles                                                                      
regarding this issue in the committee packets.                                                                                  
                                                                                                                                
REPRESENTATIVE GARA said that a  number of mental health advocacy                                                               
groups have  read the  bill.  In  fact, the  National Association                                                               
for the  Mentally Ill has said,  "The right to choose  a same-sex                                                               
care  provider while  in a  vulnerable mental  state should  be a                                                               
state mandated right."  He continued:                                                                                           
                                                                                                                                
     The Mental Health Consumer Web  supports the bill.  The                                                                    
     Law   Project   for   Psychiatric  Rights   [and]   the                                                                    
     Disability Law Center  support the bill.   And the bill                                                                    
     essentially parallels  a policy  that has  been adopted                                                                    
     at  a  facility  in  Maine, the  Bangor  Mental  Health                                                                    
     Facility; they  have a provision  like this.   A number                                                                    
     of concerns have been raised  by some of the facilities                                                                    
     in  the state.    We've satisfied  I  believe about  98                                                                    
     percent   of  the   concerns.     [Alaska   Psychiatric                                                                    
     Institute  (API)] still  has  some  concerns about  the                                                                    
     bill that,  frankly, you'll either support  the bill or                                                                    
     you'll support API's position that  we shouldn't have a                                                                    
     bill like this, and we can't get past API's concerns.                                                                      
                                                                                                                                
     We've tried  to make  the bill  flexible so  it doesn't                                                                    
     require that  any facility  hire any  additional staff.                                                                    
     If a ... female patient  asks for a female provider and                                                                    
     no female  provider is available,  that just has  to be                                                                    
     documented on the chart.   We've tried to put as little                                                                    
     burden  as  possible  on professional  staff  so  if  a                                                                    
     female  patient  ... wants  a  female  staff member  to                                                                    
     bathe  that person,  the  female  staff member  doesn't                                                                    
     have  to  be  of  a particular  license  or  particular                                                                    
     profession; it's up to the facility.                                                                                       
                                                                                                                                
REPRESENTATIVE GARA continued:                                                                                                  
                                                                                                                                
     If  [the  facility] can't  provide  a  provider of  the                                                                    
     appropriate gender, then  all they have to do  is get a                                                                    
     licensed staff  member of  the other  gender to  do the                                                                    
     bathing;  just  so you  have  a  licensed staff  member                                                                    
     there in  that case.  But  then even ... if  there's no                                                                    
     staff member  that's available to satisfy  the concerns                                                                    
     of the patient,  ... then all you have to  do is say in                                                                    
     the chart,  "We had  no female staff  members available                                                                    
     that  day."  ... So  you  don't  have to  hire  anybody                                                                    
     additionally; you just  have to put it in  the chart as                                                                    
     to why you couldn't comply.                                                                                                
                                                                                                                                
     One of the mental  health facilities raised the concern                                                                    
     that  sometimes you  have a  mental health  patient who                                                                    
     would inappropriately  ask for  a particular  gender of                                                                    
     provider,  maybe somebody  with  a sexually  aggressive                                                                    
     condition or something  like that, and so  we've put in                                                                    
     the  bill that  if it  would be  inappropriate for  the                                                                    
     patient's  treatment to  let  them  choose what  gender                                                                    
     person  treats  them then  that's  fine  too; then  you                                                                    
     don't have to comply with the provisions of the bill.                                                                      
                                                                                                                                
REPRESENTATIVE GARA continued:                                                                                                  
                                                                                                                                
     [In Version  Y] we  made about  six changes  to address                                                                    
     the  concerns that  came in.  ...   We don't  want this                                                                    
     bill  to  apply  to   small  facilities  because  small                                                                    
     facilities  don't have  enough staff,  frankly, to  let                                                                    
     people  choose the  gender of  who treat  them.   So it                                                                    
     only applies  to facilities where  you have 10  or more                                                                    
     staff  members on  duty providing  mental health  care,                                                                    
     and  still they  have an  out even  then if  they don't                                                                    
     have  enough  women  or  enough   men  available  on  a                                                                    
     particular day.                                                                                                            
                                                                                                                                
REPRESENTATIVE GARA said that the  original intention of the bill                                                               
was  to require  that  the provider  be the  same  gender as  the                                                               
patient,  but it  was changed  to  allow the  patient to  decide.                                                               
However, he  noted that if  the committee preferred, he  would be                                                               
willing to  allow a  conceptual amendment to  return the  bill to                                                               
its original state, requiring the  provider to be the same gender                                                               
as  the patient.   He  commented,  "I think  we've satisfied  the                                                               
concerns  of every  mental health  facility  that's contacted  us                                                               
except for API."                                                                                                                
                                                                                                                                
4:32:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MCGUIRE remarked  that she thinks this  is a great                                                               
bill and  she applauds the efforts  involved.  She said  that she                                                               
prefers to  leave the  bill as is.   She inquired  as to  why the                                                               
bill only applies to patients 18 years of age or older.                                                                         
                                                                                                                                
REPRESENTATIVE GARA noted  that Alaska law says  that parents get                                                               
to make  medical care choices for  people under 18 years  of age.                                                               
He said  that the original  version applied to all  patients, and                                                               
provided  that  the parent  would  have  the  right to  make  the                                                               
request for anyone under 18.  He commented:                                                                                     
                                                                                                                                
     One of the facilities  in Anchorage made an interesting                                                                    
     point;  they  stated that  there  is  sometimes a  link                                                                    
     between  a child  who has  mental  health problems  and                                                                    
     parents  who have  mental health  problems.   And  [the                                                                    
     facility] saw a  problem with allowing a  parent with a                                                                    
     mental health problem to make  a choice like that for a                                                                    
     child with a mental health  problem.  I don't know what                                                                    
     to think  about that concern.   The majority  of mental                                                                    
     health  patients  are  adults,  and I  suppose  it's  a                                                                    
     policy  call  for  the committee.    We  were  somewhat                                                                    
     sympathetic  to the  concerns of  the  folks at  [North                                                                    
     Star Behavioral  Health System] in Anchorage  about the                                                                    
     difficulty of  dealing with the concerns  from a parent                                                                    
     for a  child who's in a  facility.  We could  go either                                                                    
     way; I  suppose we prefer  the CS  the way it  is right                                                                    
     now.                                                                                                                       
                                                                                                                                
CHAIR  WILSON pointed  out that  a spokesperson  from North  Star                                                               
Behavioral Health System was on the teleconference.                                                                             
                                                                                                                                
4:36:06 PM                                                                                                                    
                                                                                                                                
PATRICK HIGGINS,  North Star Behavioral  Health System,  began by                                                               
relating  that the  current version  of HB  220 does  address the                                                               
organization's  issues.   He  explained  that  his agency  serves                                                               
children ages  3-17, and  many of  them have  disorders involving                                                               
sexual contact issues.  He said  that the agency attempts to take                                                               
a great  deal of care  with these  issues and thus  have policies                                                               
dealing with the same-gender issue.                                                                                             
                                                                                                                                
REPRESENTATIVE MCGUIRE commented:                                                                                               
                                                                                                                                
     What  we're  dealing  with  here  then  is  probably  a                                                                    
     drafting  issue and  a legal  issue,  because ...  [it]                                                                    
     sounds  like there  aren't  any problems  accommodating                                                                    
     the  basic policy  that's contained  in  the bill,  but                                                                    
     rather  because of  an issue  of  capacity, not  having                                                                    
     achieved the age  of majority that then  you would have                                                                    
     to provide  for that  parent to  have that  choice, and                                                                    
     that's where the problem comes about.                                                                                      
                                                                                                                                
REPRESENTATIVE  MCGUIRE suggested  that  perhaps intent  language                                                               
could be included in the bill.                                                                                                  
                                                                                                                                
4:38:47 PM                                                                                                                    
                                                                                                                                
CHAIR  WILSON  stated that  sometimes  [the  gender of  the  care                                                               
provider] is  part of the  treatment plan.   She said  that there                                                               
are  instances of  children  who "like  to act  out  in front  of                                                               
somebody of the opposite sex."                                                                                                  
                                                                                                                                
REPRESENTATIVE SEATON noted  that many times children  are in the                                                               
custody of the state, and he  questioned how the state would deal                                                               
with these issues.                                                                                                              
                                                                                                                                
4:40:24 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE ANDERSON  commented, "I  give great  deference and                                                               
credence to  the opinions of  like associations....  I  also give                                                               
great deference  to Providence Hospital  because of its  size and                                                               
probably  impact in  the bill  affecting it  more than  any other                                                               
facility. ... Have they talked to [Representative Gara]?"                                                                       
                                                                                                                                
REPRESENTATIVE GARA  replied that he  had been in contact  with a                                                               
number of  facilities and "we  were able  to satisfy ...  what we                                                               
considered to be  the valid concerns of many  of the facilities."                                                               
He offered  his belief that  every member [excluding API]  of the                                                               
Nursing Home  Association either  has no concerns,  hasn't stated                                                               
concerns,  or thinks  the  bill is  okay.   He  noted, "The  bill                                                               
doesn't  require  that you  ask  the  patient  what gender  of  a                                                               
provider they would like.  It would  only be if they bring it up;                                                               
they have the right to request it."   He said that if the patient                                                               
is a child  in the custody of the state,  the original bill would                                                               
have allowed the state to decide.  He further commented:                                                                        
                                                                                                                                
     Sometimes  people   are  being  treated   for  sexually                                                                    
     inappropriate conduct,  and so  the bill  provides that                                                                    
     if  it  would not  be  in  the  best interests  of  the                                                                    
     patient's treatment  ... to allow  the patient  to make                                                                    
     that  choice, ...  then the  bill  just doesn't  apply;                                                                    
     we're not going  to give people the  right to undermine                                                                    
     their own treatment.                                                                                                       
                                                                                                                                
REPRESENTATIVE ANDERSON  remarked that he would  be interested in                                                               
any  studies suggesting  that male  to male  or female  to female                                                               
staff care would  reduce abuse, "unless your intent  here is just                                                               
for the  comfort of the patient."   He then stated  that the bill                                                               
concerns  him as  a possible  "haven for  lawsuits."   Lastly, he                                                               
commented,  "[It  is intriguing],  if  you're  looking at  mental                                                               
capacity, and in this case  very diminished, I'm intrigued at how                                                               
they can have the capacity to choose gender."                                                                                   
                                                                                                                                
REPRESENTATIVE   GARA   replied  that   if   a   patient  is   so                                                               
incapacitated  that he/she  needs to  have a  guardian, then  the                                                               
guardian would make  the request.  But, he noted,  "If you're not                                                               
so incapacitated, you  just have mental health  problems, but you                                                               
don't  have a  guardian,  then you  have the  right  to make  the                                                               
request."   Regarding  Representative  Anderson's question  about                                                               
possible studies,  Representative Gara  answered that  he doesn't                                                               
think there are  any such studies.  He reiterated  that this bill                                                               
is  dealing  with "a  comfort  issue,  a  privacy issue,  it's  a                                                               
dignity  issue."    Regarding  liabilities,  Representative  Gara                                                               
responded  that the  bill doesn't  provide for  penalties or  any                                                               
specific cause of action or damages.   He again explained that if                                                               
a facility is unable to provide  the requested gender of the care                                                               
provider, the facility only needs to document this.                                                                             
                                                                                                                                
4:46:35 PM                                                                                                                    
                                                                                                                                
CHAIR WILSON  commented that nurses  and care providers  are very                                                               
aware of the importance of documentation.                                                                                       
                                                                                                                                
4:47:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CISSNA  commented that  some children  have become                                                               
inappropriately sexualized by  manipulative adults, and therefore                                                               
it's best to leave  the power in the hands of  the parent and the                                                               
therapist to develop the best plan  for a child under 18 years of                                                               
age.   Having  worked as  a mental  health therapist,  she stated                                                               
that when  the state has  custody of  a child, the  state usually                                                               
listens to the advice of the professionals.                                                                                     
                                                                                                                                
4:49:39 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON pointed out  that subsection (c) is putting                                                               
a new  duty on the  facilities, and he  asked if the  sponsor had                                                               
spoken with  the facilities about  the bill's requirement  that a                                                               
notice be  posted in the patient  rooms.  He commented  that if a                                                               
notice  was posted  in every  room it  would probably  cause more                                                               
casual requests rather  than requests in order  to remedy genuine                                                               
problems.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GARA said that no  one has raised a question about                                                               
posting the notice.  He said:                                                                                                   
                                                                                                                                
     This  is  almost a  catch-22;  if  you don't  post  the                                                                    
     notice you'll have  some patients who are  too timid to                                                                    
     request  to be  treated appropriately,  and the  notice                                                                    
     would  ...  let them  know  they  have  a right  to  be                                                                    
     treated appropriately.   On the  other hand, if  you do                                                                    
     post  the notice,  you might  have more  people request                                                                    
     them than is necessary.                                                                                                    
                                                                                                                                
4:52:48 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE ANDERSON asked if Mr. Higgins supported the bill.                                                                
                                                                                                                                
MR. HIGGINS said that North Star's issues and concerns have been                                                                
addressed by the sponsor.                                                                                                       
                                                                                                                                
HOLLY GLAESER, Director, Behavioral Health Unit, Fairbanks                                                                      
Memorial Hospital, testified that this issue should be an                                                                       
organizational issue and not a legislation issue.                                                                               
                                                                                                                                
KARL SANFORD, Chief Nursing Officer and Associate Administrator,                                                                
Fairbanks Memorial Hospital, testified in opposition to HB 220.                                                                 
He stated his belief that this is an unnecessary bill.  He said:                                                                
                                                                                                                                
     Currently all  hospitals of  any size  in the  state, I                                                                    
     believe,  are accredited  by the  Joint Commission  for                                                                    
     Hospitals nationally.   Accrediting bodies such  as the                                                                    
     [Joint Commission for Hospitals],  the state itself, as                                                                    
     well as  the mental health board,  are oversight bodies                                                                    
     which  really  are  intended  to  prevent  issues  that                                                                    
     Representative  Gara, I  believe,  has introduced  this                                                                    
     bill  to address.   Those  bodies frequently  and on  a                                                                    
     regular basis  ensure that facilities abide  by patient                                                                    
     rights, policies  within the facilities. ...  I have an                                                                    
     overall concern  about legislating response  to patient                                                                    
     complaints; I think it's a bad policy to follow. ...                                                                       
                                                                                                                                
     This   bill  overrides   my  nursing   judgment  as   a                                                                    
     professional nurse.   I'm offended  by this  because it                                                                    
     is my job as a  nurse to make an appropriate assessment                                                                    
     of the  patient upon admission  into a facility  and to                                                                    
     make  sure that  that patient's  issues are  dealt with                                                                    
     appropriately.  I believe I  have the capability, as do                                                                    
     every other  registered nurse in  the state  that takes                                                                    
     care of mental health patients.                                                                                            
                                                                                                                                
CHAIR WILSON asked Mr. Sanford if the bill would prevent him                                                                    
from conducting any services that he now gives.                                                                                 
                                                                                                                                
MR. SANFORD replied that it would not.                                                                                          
                                                                                                                                
4:56:01 PM                                                                                                                    
                                                                                                                                
DORRANCE COLLINS stated:                                                                                                        
                                                                                                                                
     I support  the passing of the  committee substitute for                                                                    
     HB 220.   I also ask that the committee  read the seven                                                                    
     support letters submitted.  House  Bill 220 is based on                                                                    
     a  Bangor, Maine  policy which  uses words  like "must"                                                                    
     and  "will."   It's  a strong  policy  and very  clear.                                                                    
     House  Bill 220  is also  very  strong.   In a  perfect                                                                    
     world we  could just send everybody  involved an e-mail                                                                    
     or a letter  and tell them to handle it.  ... It is not                                                                    
     a perfect world;  everyone has an axe to  grind.  Laws,                                                                    
     regulations,  and  guidelines  are  necessary  on  this                                                                    
     issue.                                                                                                                     
                                                                                                                                
     House  Bill 220  is fair  to the  psychiatric patients,                                                                    
     many of which have been  sexually abused, not always by                                                                    
     the  opposite gender,  which is  why gender  choice for                                                                    
     intimate care  is very  important.   House Bill  220 is                                                                    
     fair to  the institutions;  it gives them  an out.   On                                                                    
     page 2 of  the bill it says the  institutions only have                                                                    
     to  make a  good  faith effort,  then  document in  the                                                                    
     patient's records  why gender choice was  not provided.                                                                    
     That is  a huge  loophole for  any contingency  for the                                                                    
     institutions.                                                                                                              
                                                                                                                                
     Defeating this bill is only  a matter of convenience to                                                                    
     the mental  institutions.  What the  last hundred years                                                                    
     has  taught  us  is  the institutions  will  fight  for                                                                    
     convenience.   It is  much more to  the patient;  it is                                                                    
     about   not   being   degraded   or   humiliated,   and                                                                    
     maintaining some control over  your life and your body.                                                                    
     It is important  and it is doable.  We  ask that HB 220                                                                    
     be passed.                                                                                                                 
                                                                                                                                
4:58:21 PM                                                                                                                    
                                                                                                                                
FAITH MYERS testified in support of the committee substitute for                                                                
HB 220.  She stated that she is a former psychiatric patient.                                                                   
She said:                                                                                                                       
                                                                                                                                
     Over the last four years  I have testified on the issue                                                                    
     of  psychiatric  patients  not   having  the  right  to                                                                    
     gender-choice  for  hands-on  intimate care.    I  have                                                                    
     traveled  to Fairbanks,  Juneau, and  in Anchorage.   I                                                                    
     have  testified in  front of  all  relevant boards  and                                                                    
     committees.    House Bill  220  is  a patients'  rights                                                                    
     bill;  it  is necessary.    A  high percentage  of  the                                                                    
     psychiatric patients in  Alaska's mental hospitals have                                                                    
     been  sexually  abused as  children  or  adults; it  is                                                                    
     difficult to  know which gender  abused them,  which is                                                                    
     why  it is  important  to let  the  patient choose  the                                                                    
     gender   of  the   staff  they   feel  most   safe  and                                                                    
     comfortable with.   This is why gender  choice of staff                                                                    
     is   more  preferable   than  same-sex   of  staff   in                                                                    
     legislative wording of the bill.                                                                                           
                                                                                                                                
     There is an  out for the institutions: on  page 2, line                                                                    
     2, of HB 220 it  states the institutions must only make                                                                    
     a  reasonable and  good faith  effort.   On  line 4  it                                                                    
     simply  says  that  the  institution  document  in  the                                                                    
     patient's record  the reason why they  couldn't provide                                                                    
     the requested  gender.  That  gives the  institution an                                                                    
     out for  any contingency.   Some  of the  seven support                                                                    
     letters submitted in favor of  a bill have been written                                                                    
     by people who either had  the experience of being in an                                                                    
     Alaskan  psychiatric  institution  or have  had  family                                                                    
     members in  an Alaskan psychiatric institution.   House                                                                    
     Bill 220  is based  on a Bangor,  Maine policy  and has                                                                    
     proven that it  is doable.  I support CSHB  220 and ask                                                                    
     that it be passed.                                                                                                         
                                                                                                                                
5:00:32 PM                                                                                                                    
                                                                                                                                
RON ADLER, CEO, Alaska Psychiatric Institute (API), Division of                                                                 
Behavioral Health, Department of Health and Social Services,                                                                    
testified in opposition to HB 220.  He said:                                                                                    
                                                                                                                                
     We  believe  this  is  a  policy  issue  and  want  the                                                                    
     opportunity to  address these  issues in  policy rather                                                                    
     than  legislation, especially  since  there's only  one                                                                    
     situation  that we're  aware of  that raises  a concern                                                                    
     over this issue in the entire  system of care.  We have                                                                    
     no reports of this whatsoever....                                                                                          
                                                                                                                                
MR. ADLER continued:                                                                                                            
                                                                                                                                
     I'm seeing this  bill as the API bill,  not a patients'                                                                    
     rights  bill. ...  Some of  the negotiations  that have                                                                    
     already occurred really exempt  every other hospital in                                                                    
     the State  of Alaska but API,  so it really is  the API                                                                    
     bill.     Let   me  tell   you  why   I  think   that's                                                                    
     inappropriate.  ... On  [July 1,  2003], API  requested                                                                    
     from  the [Assistant  Commissioner of  the Division  of                                                                    
     Finance  and Management  Service, Department  of Health                                                                    
     and Social Services] Janet Clarke  [to find] funding to                                                                    
     create a  consumer and family specialist  position with                                                                    
     a specified  program.  This  was granted and  with this                                                                    
     new  program  at  API,  on  a daily  basis  we  have  a                                                                    
     consumer and family specialist that  surveys all of our                                                                    
     guests at  the hospital to assure  that appropriate and                                                                    
     quality treatment  services happen.   Results  of these                                                                    
     daily surveys are tabulated each  month and reviewed by                                                                    
     the API governing  board.  On [July 1,  2003] there was                                                                    
     no incentive  for us to do  this; we did it  because it                                                                    
     was the right thing to do.                                                                                                 
                                                                                                                                
     On  [October  1,  2004],   API  established  a  gender-                                                                    
     sensitivity  policy  which  already provides  a  person                                                                    
     receiving  services at  the hospital  everything that's                                                                    
     being  requested.    We  have  gone  to  the  point  of                                                                    
     training  all of  our staff  on this  competency that's                                                                    
     all recorded  in personnel documents.   On  [October 1,                                                                    
     2004]  there was  no legislative  incentive or  mandate                                                                    
     for us  to do this;  we did  it because we  listened to                                                                    
     input  and  feedback at  our  various  meetings in  the                                                                    
     community and we did it  because it was the right thing                                                                    
     to do. ...                                                                                                                 
                                                                                                                                
     This  issue  came  before   the  Alaska  Mental  Health                                                                    
     Board's  legislative committee  who refused  to support                                                                    
     legislative intent  on this issue.   Rather,  the board                                                                    
     decided   to    assert   its   influence    by   making                                                                    
     recommendations to  [Bill Hogan, Director,  Division of                                                                    
     Behavioral    Health],   and    specifically   requests                                                                    
     [Bartlett Hospital] and  Fairbanks Memorial Hospital to                                                                    
     comport to the  same standards as API.   The department                                                                    
     supports this  position: allowing the division  to make                                                                    
     reasonable  changes to  advance health  care in  policy                                                                    
     rather than legislation. ...                                                                                               
                                                                                                                                
MR. ADLER continued:                                                                                                            
                                                                                                                                
     This  legislation  is  framed  within  the  context  of                                                                    
     patients'  rights.   API  provides  an  office for  the                                                                    
     Disability  Law  Center  in the  hospital;  what  other                                                                    
     hospital  in Alaska  makes such  a provision  to ensure                                                                    
     excellence  in  patients' rights?    One  of the  other                                                                    
     changes  that happened  here  is, ...  if  there is  no                                                                    
     unlicensed  individual on  staff,  you're allowing  the                                                                    
     hospital or  institution to redirect a  licensed person                                                                    
     from another unit - this  is a problem with [registered                                                                    
     nurses  (RN)];  we  have a  recruitment  and  retention                                                                    
     issue with RNs not only at  API but statewide.  We know                                                                    
     from an  operating perspective  when you  ask an  RN to                                                                    
     step outside their prescribed duties  and tasks for the                                                                    
     evening and go do  another task, medication error rates                                                                    
     go up.   And  actually that  is one  of the  number one                                                                    
     issues  ...   all  hospitals  face  in   our  regularly                                                                    
     scheduled joint commission site  reviews.  We've looked                                                                    
     every  month  at  our  medication  error  rates;  we're                                                                    
     keeping  them very  low at  API, but  we know  the more                                                                    
     extraneous demands we make on  RNs, the more difficulty                                                                    
     we have in managing this. ...                                                                                              
                                                                                                                                
     The  Mental Health  Board  has asked  us  to make  some                                                                    
     language  changes in  our existing  policy  so that  it                                                                    
     will  exactly  mirror  the   policy  of  Bangor  Mental                                                                    
     Institute.    We agreed  to  do  that.   So  our  basic                                                                    
     position is that this is unnecessary at this time.                                                                         
                                                                                                                                
CHAIR WILSON asked Mr. Adler if  this bill would prevent API from                                                               
conducting the services that it now gives.                                                                                      
                                                                                                                                
MR. ADLER replied that it would not.                                                                                            
                                                                                                                                
5:06:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE ANDERSON said  that he had some  concerns and they                                                               
coincided  with Dr.  Adler's.   He remarked  that the  witnesses'                                                               
comments that patients are being  degraded and humiliated "rubbed                                                               
me wrong  because it suggests  that when it's  a male to  male or                                                               
female to  female there's degrading  and humiliation."   He asked                                                               
Mr.  Adler to  respond  to  this, and  commented,  "I assume  the                                                               
current system  is working  fine other  than the,  again, comfort                                                               
level of some mentally disabled folks."                                                                                         
                                                                                                                                
MR. ADLER replied:                                                                                                              
                                                                                                                                
     This brings up  a very sensitive point.   I just really                                                                    
     dislike talking about  acute psychiatric and behavioral                                                                    
     disorders  in  public  because  it's  just  a  terrible                                                                    
     disorder that people  have.  And what  is degrading and                                                                    
     erodes  dignity and  respect for  the person  receiving                                                                    
     services is  when they have  to do something  that they                                                                    
     are forced to do on an  involuntary basis.  Yet that is                                                                    
     the reality  that we're faced with.   People frequently                                                                    
     are  admitted to  API not  of  choice, but  on a  legal                                                                    
     basis and frequently we have  to do things to stabilize                                                                    
     people.  And  while we make every attempt  in the world                                                                    
     to do  that in  a respectful  and dignified  way, there                                                                    
     are  times  we  have  to prevent  people  from  hurting                                                                    
     themselves  or  others and  that  requires  us to  make                                                                    
     certain accommodations in terms of these issues.                                                                           
                                                                                                                                
REPRESENTATIVE  ANDERSON said  that some  say the  theme of  this                                                               
bill is about "comfort level."   He asked if most of the patients                                                               
in API are there because they have been sexually abused.                                                                        
                                                                                                                                
MR.  ADLER  answered  that  this  is an  emerging  concern  on  a                                                               
nationwide level.  He said:                                                                                                     
                                                                                                                                
     We believe in  this field that we  are finding evidence                                                                    
     of trauma more  and more often, and we  believe that we                                                                    
     have to  do a reasonable  trauma screen  and evaluation                                                                    
     to make sure we don't  help people relive past traumas.                                                                    
     ... Whether  that's a child  watching a  violent family                                                                    
     interaction,  which  is   a  traumatic  experience,  or                                                                    
     somebody  being  sexually  abused,  or  somebody  being                                                                    
     witness to  a friend's suicide,  we know that  this has                                                                    
     an impact, and we know that  if we don't deal with this                                                                    
     in  an  appropriate way,  especially  in  an acute  in-                                                                    
     patient setting  that ... we're  not doing  what's best                                                                    
     for the individual.                                                                                                        
                                                                                                                                
REPRESENTATIVE  MCGUIRE  commented  that  if it  is  already  the                                                               
policy  at API  to do  all that  is necessary  for the  patients'                                                               
comfort, then she  fails to understand why Mr.  Adler opposes the                                                               
bill.    She  said,  "All  the   bill  does  is  put  into  place                                                               
statutorily the policy that ... you have in place at API."                                                                      
                                                                                                                                
5:11:36 PM                                                                                                                    
                                                                                                                                
MR.  ADLER  said that  API  makes  that accommodation  currently,                                                               
while the  bill exempts  all the  other hospitals  within Alaska.                                                               
He said, "Why legislate something that's happening?"                                                                            
                                                                                                                                
CHAIR  WILSON  asked  if  Mr.  Adler was  saying  that  no  other                                                               
hospitals have a staff of over 10 people.                                                                                       
                                                                                                                                
MR. ADLER  replied, "On any  given shift, if  you were to  take a                                                               
survey of the other hospitals today, that's correct."                                                                           
                                                                                                                                
5:13:13 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON said:                                                                                                     
                                                                                                                                
     That  doesn't mean  that if  you don't  have 10  [staff                                                                    
     members on duty] you shouldn't  do it."  He stated that                                                                    
     he is a  little concerned that page  1, subsection (b),                                                                    
     and said, "If somebody's  incapacitated, then we put in                                                                    
     an immediate burden that it  has to be the same-sex ...                                                                    
     nurse, and I'm  wondering why we're doing  that. ... We                                                                    
     don't  have a  request,  but all  of  the sudden  we're                                                                    
     putting   this   blanket    duty   on   if   somebody's                                                                    
     incapacitated; now  we're presuming that there  is this                                                                    
     request that it's  going to be the  same-sex person and                                                                    
     it seems to me that possibly  even if you have 10 staff                                                                    
     members on duty, that could be a burden.                                                                                   
                                                                                                                                
5:14:32 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA said that according  to the bill, if a person                                                               
is  incapacitated and  there isn't  same-gender staff  available,                                                               
then the  exceptions would apply;  it just  has to be  written in                                                               
the  chart.    He  agreed  that the  bill  would  be  creating  a                                                               
presumption in the cases where a person is incapacitated.                                                                       
                                                                                                                                
5:16:17 PM                                                                                                                    
                                                                                                                                
RICHARD RAINERY, Executive Director,  Alaska Mental Health Board,                                                               
said  that  the board  supports  the  intent of  the  legislation                                                               
however,  "we  felt the  most  direct  approach  was to  ask  the                                                               
Division  of  Behavioral Health  and  [API]  to institute  policy                                                               
changes that  reflect these concerns."   He noted that  there are                                                               
some  differences  between  the  board's policy  and  the  policy                                                               
followed in Bangor, Maine; the  board would ask that the hospital                                                               
honor the patient choice of gender.                                                                                             
                                                                                                                                
The committee took an at-ease from 5:18:12 PM to 5:18:25 PM.                                                                    
                                                                                                                                
5:18:37 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON asked Mr.  Rainery if removal of subsection                                                               
(b) from the bill would influence the board one way or another.                                                                 
                                                                                                                                
MR. RAINERY  replied, "I don't believe  so, no."  He  pointed out                                                               
that the majority  of the members of the Mental  Health Board are                                                               
consumers of mental health services or their families.                                                                          
                                                                                                                                
5:20:00 PM                                                                                                                    
                                                                                                                                
CHAIR WILSON said,  "So basically what you're telling  us is that                                                               
because  this has  come up,  the Mental  Health Board  itself has                                                               
decided to  put a policy  in place that  would take care  of this                                                               
concern."                                                                                                                       
                                                                                                                                
MR.  RAINERY  responded,  "We  have  formerly  requested  of  the                                                               
Division  of  Behavior Health  and  [API]  that they  revise  the                                                               
appropriate  policies to  reflect the  intent of  what this  bill                                                               
asks for,  yes.   And we intend  to work with  them to  make sure                                                               
that those revisions do that."                                                                                                  
                                                                                                                                
5:20:50 PM                                                                                                                    
                                                                                                                                
ROD  BETIT,   President,  Alaska  State  Hospital   Nursing  Home                                                               
Association  (ASHNHA), testified  in opposition  to HB  220.   He                                                               
said:                                                                                                                           
                                                                                                                                
     We don't support the bill,  and not because of what the                                                                    
     sponsors  are  attempting to  do,  but  because of  the                                                                    
     scope  of what  the  bill  would set  in  motion and  a                                                                    
     solution for  a problem that  really has only  been one                                                                    
     incident,  to  our  knowledge, and  that  it  would  go                                                                    
     beyond what's  necessary to address  the concerns.   We                                                                    
     think  that the  professional practice  expectations of                                                                    
     the  medical   staff  that   are  working   with  these                                                                    
     patients,  each  facility's  commitment to  meet  those                                                                    
     kinds  of  intimate   care  expectations  when  someone                                                                    
     requests them and  policies that they have  in place to                                                                    
     do  that  have  been  affective.   To  their  knowledge                                                                    
     there's  been  no  surveys   or  reviews  by  licensing                                                                    
     organizations to indicate there's  any failure in those                                                                    
     policies.  And  that would be the best place  for us to                                                                    
     put our trust in terms of  what needs to happen next to                                                                    
     fix the one  incident that occurred.  And  so, we would                                                                    
     agree with the Mental Health Board on that.                                                                                
                                                                                                                                
MR. BETIT  applauded Representative Gara's efforts  and said that                                                               
at this point this bill would  not impact all five members of the                                                               
ASHNHA with mental  health units, but would  primarily affect API                                                               
and occasionally Providence Hospital as well.                                                                                   
                                                                                                                                
5:22:52 PM                                                                                                                    
                                                                                                                                
CHAIR  WILSON  asked  that  the   director  of  the  Division  of                                                               
Behavioral Health  come forward,  and she asked  him how  be felt                                                               
about the bill.                                                                                                                 
                                                                                                                                
BILL HOGAN,  Director, Division of Behavioral  Health, Department                                                               
of  Health and  Social  Services, commended  the bill's  sponsors                                                               
because "we  think what is being  considered in the bill  is very                                                               
important to the people that we serve."  However, he continued:                                                                 
                                                                                                                                
     We feel as though we  can accommodate the concerns that                                                                    
     are being raised  through policy changes at  [API].  In                                                                    
     fact, we  have ...  over the  last year  and a  half or                                                                    
     more,  tried   to  change  policy  based   on  consumer                                                                    
     concerns  to ensure  that clients  or patients  do have                                                                    
     ... gender choice when  there's intimate care involved.                                                                    
     We also recognize the concerns  expressed by the Mental                                                                    
     Health Board....   We have  every intention  of working                                                                    
     with the  Mental Health Board with  the [API] governing                                                                    
     body  to implement  those policy  changes as  well. ...                                                                    
     Our feeling is  that we can make the  changes that need                                                                    
     to   occur   through   policy  and   through   practice                                                                    
     standards, and not through legislation.                                                                                    
                                                                                                                                
CHAIR WILSON said,  "If you're going to do that,  ... what is the                                                               
objection of having it in statute?"                                                                                             
                                                                                                                                
MR. HOGAN  responded, "Perhaps  it's philosophical.   We  feel as                                                               
though we can do what needs  to be done without statutory change,                                                               
and if there  was a need for statutory change,  I believe I would                                                               
be up here supporting [it]."                                                                                                    
                                                                                                                                
5:25:16 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MCGUIRE responded to Mr. Hogan:                                                                                  
                                                                                                                                
     I might  trust you now  and the  people who are  in the                                                                    
     position  of policymaking  right  now,  and five  years                                                                    
     from now  I may  not.   And I think  that's one  of the                                                                    
     most  important  things   about  considering  statutory                                                                    
     changes versus  allowing your policies  to govern.   If                                                                    
     the issue  is important  enough, we put  it in  the law                                                                    
     books, and  that way it's  there for all time  to come.                                                                    
     And if a future  legislature decides for policy reasons                                                                    
     to remove that, then the  debate will occur in a public                                                                    
     setting;  the public  will be  aware of  it, and  there                                                                    
     will  be an  opportunity  for folks  to  testify.   The                                                                    
     concern about  making these really  important decisions                                                                    
     on  a policy  level is,  oftentimes, many  people don't                                                                    
     even know  that they're  taking place; they  don't know                                                                    
     the policy is  in place, they don't know  the policy is                                                                    
     being  changed.   So there  isn't that  opportunity for                                                                    
     people  to weigh  in  on  it.   And  so,  with all  due                                                                    
     respect, I think that's why  it is appropriately placed                                                                    
     in Alaska state law.                                                                                                       
                                                                                                                                
REPRESENTATIVE SEATON  said that  he is uncomfortable  with parts                                                               
of  the bill.    He moved  to adopt  Conceptual  Amendment 1,  as                                                               
follows:                                                                                                                        
                                                                                                                                
     Page 1, lines 11-14                                                                                                        
     Delete subsection (b)                                                                                                      
                                                                                                                                
REPRESENTATIVE SEATON  stated that the requirement  in subsection                                                               
(b) could be quite burdensome [to the treatment center].                                                                        
                                                                                                                                
REPRESENTATIVE  ANDERSON objected  for discussion  purposes.   He                                                               
asked if Representative Seaton would  object to the addition of a                                                               
friendly amendment to the conceptual  amendment, or if perhaps he                                                               
should make  his own  amendment to  change line 10  on page  1 to                                                               
read, "is the opposite sex."                                                                                                    
                                                                                                                                
CHAIR  WILSON recommended  that  Representative  Anderson make  a                                                               
separate amendment to address this concern.                                                                                     
                                                                                                                                
REPRESENTATIVE ANDERSON removed his objection.                                                                                  
                                                                                                                                
REPRESENTATIVE MCGUIRE asked for  clarification of the definition                                                               
of  "incapacitated,"   and  wondered   what  percentage   of  the                                                               
population   in   a   mental   hospital   would   be   considered                                                               
incapacitated.  She commented that  her only concern is that [the                                                               
deletion of the word "incapacitated"] would gut the bill.                                                                       
                                                                                                                                
REPRESENTATIVE SEATON replied  that he didn't think  it would gut                                                               
the bill.  He explained:                                                                                                        
                                                                                                                                
     If you're  saying that anybody in  a mental institution                                                                    
     is incapacitated,  what we're really saying  is there's                                                                    
     an automatic  no-request; everybody in  the institution                                                                    
     must  be treated  as if  they did  make a  request. ...                                                                    
     What I'm trying  to do is get it so  if anybody makes a                                                                    
     request,  or   their  guardian  or  whoever   [makes  a                                                                    
     request], then  that request  would be  honored through                                                                    
     [subsection  (a)], but  that we  would get  rid of  the                                                                    
     automaticity of ... if somebody's incapacitated.                                                                           
                                                                                                                                
REPRESENTATIVE  MCGUIRE responded,  "So  then it  would speak  to                                                               
nothing on incapacity; there would be no policy."                                                                               
                                                                                                                                
5:30:21 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GARA said:                                                                                                       
                                                                                                                                
     I  think that's  right. ...  By taking  out [subsection                                                                    
     (b)] you now make the law  say, "If you're 18 or older,                                                                    
     you get to make the choice."   And I think it's implied                                                                    
     that if  you're 18 or  older and can't make  the choice                                                                    
     and  you  have  a  personal  representative,  then  the                                                                    
     personal  representative can  make  the  request.   You                                                                    
     might want  to make clear  that [the bill  is referring                                                                    
     to]   a  person   18  or   older   or  their   personal                                                                    
     representative, just  to make  that clear, but  I think                                                                    
     that would be  implied.  So I think you  could take out                                                                    
     [subsection (b)] and you would  still protect people or                                                                    
     their  personal representatives  who want  to make  the                                                                    
     request.                                                                                                                   
                                                                                                                                
[There being no objection, Conceptual Amendment 1 was adopted.]                                                                 
                                                                                                                                
5:31:32 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  moved to adopt Conceptual  Amendment 2, as                                                               
follows:                                                                                                                        
                                                                                                                                
     Page 2, line 3, after "place"                                                                                              
     Delete "in patient rooms"                                                                                                  
                                                                                                                                
REPRESENTATIVE ANDERSON objected for discussion purposes.                                                                       
                                                                                                                                
REPRESENTATIVE SEATON explained, "This is  a lot of signage going                                                               
up around; all we need is notification in the hospital."                                                                        
                                                                                                                                
REPRESENTATIVE ANDERSON removed his objection.                                                                                  
                                                                                                                                
[There being no objection, Conceptual Amendment 2 was adopted.]                                                                 
                                                                                                                                
REPRESENTATIVE MCGUIRE  moved to report the  committee substitute                                                               
for HB  220, labeled 24-LS0667\Y,  Mischel, 3/31/05,  as amended,                                                               
out  of   committee  with  individual  recommendations   and  the                                                               
accompanying fiscal notes.                                                                                                      
                                                                                                                                
REPRESENTATIVE  ANDERSON objected  for discussion  purposes.   He                                                               
recounted that many  of the treatment centers  that testified are                                                               
opposed to  the bill, which  is of concern  for him.   He removed                                                               
his objection.                                                                                                                  
                                                                                                                                
CHAIR WILSON stated her concern [that the treatment centers are                                                                 
opposed to the bill].                                                                                                           
                                                                                                                                
There being no objection, CSHB 220(HES) was reported from the                                                                   
House Health, Education and Social Services Standing Committee.                                                                 

Document Name Date/Time Subjects