Legislature(2003 - 2004)
04/23/2004 02:12 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 309 - BLOOD PATHOGENS TESTING OF PRISONERS Number 0043 CHAIR McGUIRE announced that the first order of business would be CS FOR SENATE BILL NO. 309(JUD) am, "An Act relating to testing the blood of prisoners and those in custody for bloodborne pathogens." [Before the committee was HCS CSSB 309(STA).] Number 0080 SENATOR TOM WAGONER, Alaska State Legislature, sponsor, indicated that a member of his staff would present SB 309. Number 0083 KURT OLSON, Staff to Senator Tom Wagoner, Alaska State Legislature, sponsor, relayed that currently, Alaska law allows only rape victims to request the testing of prisoners for bloodborne pathogens; SB 309 would allow correctional officers who have been exposed to blood or other bodily fluids to request testing of the prisoner responsible for the exposure. Specifically, AS 18.15 would be amended to include five new sections: proposed AS 18.15.400 authorizes the process of testing; proposed AS 18.15.410 provides consent provisions; proposed AS 18.15.420 addresses testing without consent; proposed AS 18.15.430 addresses confidentiality issues and provides penalties for unauthorized disclosure; and proposed AS 18.15.450 defines the terms used in proposed AS 18.15.400 - 18.15.440. MR. OLSON remarked that last year, 41 correctional officers were potentially exposed to bloodborne pathogens; in most of these cases the exposure was intentional. He noted that Senator Wagoner first became aware of this problem when it was brought to his attention by a correctional officer from Wildwood Correctional Center. Mr. Olson offered his understanding that the correctional officer had been bitten by a prisoner who told the correctional officer that he was sick but refused to say what with. In such situations, when the exact illness is not known, correctional officers undergo treatment with a variety of medications and are sometimes not fit for duty for a period of time because of side effects and drug interactions. In the aforementioned instance, the correctional officer was unable to work for two and a half weeks, and the cost of the medications given was approximately $3,000. Number 0307 MR. OLSON explained that there are two zero fiscal notes attached to SB 309, one from the DOC and one from the Division of Risk Management, Department of Administration (DOA). The latter fiscal note makes reference to a possible savings to the state should the legislation pass, but that savings is not quantifiable. In conclusion, he remarked that passage of SB 309 will bring Alaska in line with 24 other states and the federal government, all of which have similar provisions. He offered his belief that SB 309 is supported by the DOC, and mentioned that a representative from the DOC would be testifying. REPRESENTATIVE SAMUELS noted that he's toured facilities in both Alaska and in Arizona, and concurred that there are instances where inmates intentionally attempt to spread bloodborne pathogens to guards. He characterized SB 309 as a pretty good protective measure that might mitigate the results of the problem. REPRESENTATIVE GARA asked whether the state, when trying to prove a criminal case, is allowed to take someone's blood without his/her consent. SENATOR WAGONER said that such can only be done with a court order, and relayed that there is such a provision in the bill. REPRESENTATIVE GARA noted that according to that provision, a physician must state that he/she needs the information that would be provided by the test. Number 0501 PORTIA PARKER, Deputy Commissioner, Office of the Commissioner, Department of Corrections (DOC), noted that the provisions of the bill preclude test results from blood that's collected for this purpose from being used in a criminal proceeding. REPRESENTATIVE OGG mentioned that federal law on this issue states: "(d) The results of a test under this section are inadmissible against the person tested in any Federal or State civil or criminal case or proceeding." REPRESENTATIVE GARA pointed out that there is a provision on page 2 [lines 5-13] requiring that notice be given to the prisoner and that that notice must include similar language. CHAIR McGUIRE noted that language on page 5 [lines 4-16] provides penalties for unauthorized disclosure; unauthorized disclosure being disclosure for any purpose other than what's provided in the bill. MS. PARKER offered her belief that the protection against using the test results in civil or criminal proceedings is located on page 2. She added that this is the DOC's intent; it does not want the results used in civil or criminal proceedings. CHAIR McGUIRE surmised, then, that the language on page 2 works together with the language on page 5. REPRESENTATIVE GRUENBERG shared his concern that the bill does not specifically provide protection to third parties who might be exposed to a bloodborne pathogen, for example, the spouse of a correctional officer who gets bitten by a prisoner. He said he would want the spouse or the spouse's physician to be informed of the results of the test. Number 0869 MS. PARKER pointed out, however, that the DOC must follow Health Insurance Portability and Accountability Act (HIPAA) and Occupational Safety and Health Administration (OSHA) regulations with regard to disclosing information, particularly any kind of medical information. REPRESENTATIVE GRUENBERG said he would like something inserted into the bill that would ensure that the maximum protections allowed under HIPAA and OSHA are extended to third parties. MS. PARKER relayed that she would have the DOC's medical director address that issue either via teleconference or in writing. REPRESENTATIVE GRUENBERG noted that Doug Bruce, Director, Central Office, Division of Public Health, Department of Health and Social Services (DHSS), has provided the committee with a bill analysis wherein he suggests some changes to the [original version of the] bill. REPRESENTATIVE GARA directed attention back to the language on page 2 regarding the notice provision's requirement that the prisoner be informed that test results are not to be used in criminal or civil proceedings, and asked whether test results could be provided to the prosecution informally even if the results are not to be used as evidence in court. MR. OLSON offered his belief that that issue is addressed on page 2, lines 26-29, which says in part: "The department shall disclose the prisoner's existing bloodborne pathogens test results to the correctional officer without the prisoner's name or other uniquely identifying information.". REPRESENTATIVE GRUENBERG, directing attention to Mr. Bruce's suggested changes [to the original version of the bill], read one of them as follows [original punctuation provided]: Page 2, Line 12 indicates that test results "may not be used as evidence in any criminal proceedings or civil proceedings." In some cases, it could be appropriate to charge a prisoner in an institution who has intentionally attempted to infect a staff member. Test results would be necessary evidence. Number 1088 REPRESENTATIVE GRUENBERG [referring to HCS CSSB 309(STA)] indicated that he agrees with DHSS's analysis of this issue, and said he is prepared to offer an amendment that would delete, on page 2, lines 12-13, the words: "and may not be used as evidence in any criminal proceedings or civil proceedings." He opined that inclusion of that language does not constitute good policy, and added, "It seems to me that if somebody bites somebody else, and they have to take a blood test as a result of that, ... they can hardly complain if that evidence comes in and is used in a legitimate judicial or administrative proceeding." MS. PARKER [referring to HCS CSSB 309(STA)] responded: The reason that we actually prefer it to be this way is, we think that there will be more problems with the blood test that we have done, by the Department of Corrections, where ... the correctional officer has asked that the sample be taken for medical purposes; we would rather have it done again by their own doctor and to have it done so [that] there is a chain of evidence with that if it's going to be used in a court proceeding. MS. PARKER, in response to a comment, said that the DOC has no objection to the collection of the blood; rather, its concern centers on the fact that once the DOC collects it and stores it, questions may arise regarding the validity of the sample. She added, "We would prefer that if it's going to be used in a court proceeding, that the blood be drawn independently of us." REPRESENTATIVE GRUENBERG indicated that his concern is now satisfied. He then directed attention to another of Mr. Bruce's suggested changes [to the original version of the bill] that read as follows [original punctuation provided]: Page 2, Line 25 indicates that the facility "must first attempt to get existing test results under this subsection before taking any steps to obtain a blood sample or to test.[sic]" This seems unnecessary, as previous test results are most likely irrelevant - current test results are what's needed. And, even current test results could be irrelevant, given that a person could still be infected with HIV, for example, and the test would not show it right away. At a minimum, there should be a timeframe associated with the prior test result. Number 1240 REPRESENTATIVE GRUENBERG [referring to HCS CSSB 309(STA)] called the forgoing suggestion a well-taken point, and said he is considering offering an amendment that would delete from page 2, lines 24-26, the words: "The department must first attempt to get existing test results under this subsection before taking any steps to obtain a blood sample or to test for bloodborne pathogens.". MR. OLSON suggested that the DOC's medical director could address the issue of relevancy of test results. REPRESENTATIVE SAMUELS said he would hate to force the DOC to do a search for existing test results if those results can't be used anyway because they are found to be too old. CHAIR McGUIRE indicated that she wanted to hear from the DOC's medical director. REPRESENTATIVE GRUENBERG mentioned that he also wanted to address the rest of Mr. Bruce's suggested changes [to the original version of the bill]. REPRESENTATIVE GARA, turning to Representative Gruenberg's concern regarding third parties and HIPAA and OSHA regulations, offered his belief that if a correctional officer is bitten, for example, and then requests that the prisoner get tested, the correctional officer can then share the results of that test with his/her spouse. REPRESENTATIVE GRUENBERG pointed out, however, that the correctional officer, for whatever reason, may not share that information with his/her spouse; therefore, he said he would like to see something inserted into the bill that would ensure that needed information is relayed to the spouse and his/her physician. Number 1449 CHAIR McGUIRE announced that SB 309 would be set aside. [SB 309 was heard again later in this same meeting.] SB 309 - BLOOD PATHOGENS TESTING OF PRISONERS Number 1748 CHAIR McGUIRE announced that the committee would resume the hearing on SB 309, CS FOR SENATE BILL NO. 309(JUD) am, "An Act relating to testing the blood of prisoners and those in custody for bloodborne pathogens." [Before the committee was HCS CSSB 309(STA).] Number 1731 PORTIA PARKER, Deputy Commissioner, Office of the Commissioner, Department of Corrections (DOC), remarked that SB 309 merely codifies the DOC's current policies regarding "protection from, documentation of, and response to occupational exposure," and, thus, there is a zero fiscal note. She relayed that most prisoners volunteer to give a blood sample or notify the DOC that they have some kind of condition. When a prisoner does not volunteer, the DOC is able to get a court order reasonably quickly and then draw the sample. MS. PARKER said that the problem that SB 309 proposes to fix is not a huge problem; rather, the correctional office involved in the incident that generated this legislation simply felt that the normal process wasn't quick enough and that he wasn't taken care of. She mentioned that the DOC's medical director is currently out of state, but had noted in his analysis of SB 309 that the DOC is already doing what is outlined in the bill. Referring to a couple of the suggested changes [to the original bill] offered by Doug Bruce - Director, Central Office, Division of Public Health, Department of Health and Social Services (DHSS) - [text previously provided in the first portion of today's minutes on SB 309], she said: The first one about evidence, I think we've discussed that and why we would prefer that not be changed. ... As far as testing and looking at results that exist, we don't store the blood that's been drawn previously, but we do have a record of the results, and so the [DOC doesn't] really have a preference on that, whether it's a new blood sample or [not] .... The reason we would like to look at existing results is because it may be faster to find out when someone does have some kind of a bloodborne pathogen. If you go and look at a result and they had hepatitis or [acquired immunodeficiency syndrome (AIDS)] three months ago, they probably still have it. Now, it's not going to tell you what they have right now; even a test right now may not tell you what they have right now. So not everything is going to be guaranteed even if you immediately draw blood, because some people will have something that will not show up in that test yet but it may two months from now. So ... nothing is guaranteed; what we do is try to provide the best protection we can. Now, if there was a result where nothing was shown six months ago or a year ago, the officer can still request, "I want blood drawn now - I've ... had [an] exposure, my physician thinks it's necessary to draw, this blood sample is too old, the results are too old - I want to have a new blood sample to make sure I have not had an exposure." And we feel that that's covered. If there are concerns, then we address that, but that's basically what we're doing right now, in practice, without this [proposed] statute. Number 1565 REPRESENTATIVE GRUENBERG said his concern is that the language on page 2, lines 24-26 - The department must first attempt to get existing test results under this subsection before taking any steps to obtain a blood sample or to test for bloodborne pathogens - seems to [require] the DOC to get existing test results before taking a new sample, and he did not want the DOC impeded in taking a new sample; therefore, that sentence ought to be removed. MS. PARKER reiterated that the DOC doesn't have an opinion on that language either way; if it is the will of the committee that a new sample be drawn immediately, that would be fine. She then turned attention to another of Mr. Bruce's suggested changes [to the original version of the bill] that read as follows [original punctuation provided]: On Page 5, Line 14, providing test results to the officer's physician without specific identifying information is really not a true safeguard. Obviously, the physician will communicate the results to the officer who will then know the results of the test and [whom] the test is associated with. MS. PARKER [referring to HCS CSSB 309(STA)] said: I don't think that there is anything that we can do about that. I believe - and I will get this answer definitively - ... that we cannot release ... an officer's medical records without their consent; unless the other party gets a court order to release that information, we can't even release medical information on offenders or inmates. It's very restrictive on what we can do with any test results or medical information disclosed to anyone, even people who are employed in the facility. So I think there are restrictions there that are in federal law that we simple have to abide by. Number 1449 REPRESENTATIVE GRUENBERG [referring to HCS CSSB 309(STA)] offered the following about page 5, proposed subsections (b), lines 9-11, and (c), lines 12-16: Many of these prisoners are very litigious and will look at anything possible to goof up the system ... by bringing all kinds of lawsuits, since they have a lot of time on their hands. ... This seems to invite some lawsuits. [For proposed subsection (c)], I guess maybe I didn't understand what [Mr. Bruce meant]; I was more looking at [proposed subsection (b)], where you invite the prisoner to bring a lawsuit, almost. It looks to me like ... we might want to tighten that down. If somebody is bringing a lawsuit for good cause -- I don't know, maybe I'm speaking too soon. It says releases - maybe you want to put "knowingly" or "recklessly" or something, because you could have just an inadvertent release. REPRESENTATIVE SAMUELS commented: "'Malice'." Number 1357 KURT OLSON, Staff to Senator Tom Wagoner, Alaska State Legislature, sponsor, [referring to HCS CSSB 309(STA)] offered his belief that the wording [in proposed subsections (b) and (c)] has been tested in other states, particularly Wisconsin, "or at least modeled after that, and we didn't feel like we had to reinvent the wheel on (indisc.)." In response to a question, he said he did not know whether federal language contained anything pertaining to civil action for the unauthorized releasing of information. CHAIR McGUIRE indicated that at a minimum, there ought to be a mental intent. REPRESENTATIVE GRUENBERG referred to language on page 5, lines 15-16, and noted that the standard specified is "a good faith effort" to comply with the statutes. However, no such standard is currently on page 5, lines 9-11. REPRESENTATIVE OGG opined that SB 309 is a fairly well crafted bill. Referring to federal law, he offered his belief that it requires testing of anyone convicted and sentenced for a period of six months or more. He remarked that this requirement seems like a good health and safety measure, and asked whether Alaska could adopt something similar. MS. PARKER offered her belief that the DOC is not currently testing every prisoner for the presence of bloodborne pathogens, one reason being that it would be very expensive to test every prisoner. However, if there is "any indication" or medical reason to test, then a test is done. REPRESENTATIVE OGG opined that testing all prisoners could save money in the long run because, if it is already known what bloodborne pathogens any given prisoner has, "you could isolate that somehow." CHAIR McGUIRE, after ascertaining that no one else wished to testify, closed public testimony on SB 309. REPRESENTATIVE GRUENBERG asked whether the sponsor has any objection to having the words, "The department must first attempt to get existing test results under this subsection before taking any steps to obtain a blood sample or to test for bloodborne pathogens." removed from page 2, lines 24-26. He suggested that such a change would give the DOC the discretion to "move quickly." Number 1088 SENATOR TOM WAGONER, Alaska State Legislature, sponsor, said that is a good point, but added that much would depend on how recently an existing test result is. REPRESENTATIVE GRUENBERG remarked, "This just gives them the discretion to do it or not." CHAIR McGUIRE offered her understanding that removing that language doesn't mean that the DOC won't use existing test results. Number 1032 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to delete from page 2, lines 24-26, the words, "The department must first attempt to get existing test results under this subsection before taking any steps to obtain a blood sample or to test for bloodborne pathogens.". There being no objection, Amendment 1 was adopted. Number 1017 REPRESENTATIVE GRUENBERG referred to page 5, line 9-11, and indicated that he wanted to offer a conceptual amendment that would alter the language so that it would read, in part, something along the lines of: "A prisoner may bring a civil action against a person who releases the prisoner's name or other uniquely identifying information with the test results or otherwise releases the test results if there is no good faith effort made to comply with AS 18.15.400 - 18.15.450." REPRESENTATIVE SAMUELS suggested instead that they just add something like, "knowingly and with malice", after "who" on line 9, page 5. REPRESENTATIVE GRUENBERG indicated that he did not want the provision to include a mental state of "malice", but that perhaps adding "knowingly" would be sufficient. Currently, he opined, it seems to imply an absolute - it doesn't even have to require a negligence standard." CHAIR McGUIRE remarked, "Strict liability, almost." REPRESENTATIVE GARA said that adding "knowingly" makes sense. REPRESENTATIVE GRUENBERG suggested adding, "in knowing violation of". CHAIR McGUIRE suggested, "knowingly". REPRESENTATIVE GRUENBERG suggested, "who knowingly violates". He added, "That's conceptual," and posited that with such a change, a civil action may be brought against a person who knowingly violates the provisions of the bill. [This version of the suggested change became known as Conceptual Amendment 2, and was treated as moved.] SENATOR WAGONER indicated that such a change is fine with him. REPRESENTATIVE GRUENBERG, in response to comments, said: "The Act itself says ... who you can release the information to, and what I want to prevent is a correctional official getting sued because somebody technically violates this in non-knowing way." CHAIR McGUIRE offered her belief that [Conceptual Amendment 2] "does get us there." She added, "We'll leave it conceptual for the drafter, but [have it contain] the mental intent of knowingly violates it and [have it be] as tight as you can make it so that the person [who] innocently releases it isn't punished." Number 0781 CHAIR McGUIRE asked whether there were any objections to [Conceptual] Amendment 2. There being none, Conceptual Amendment 2 was adopted. REPRESENTATIVE GRUENBERG turned attention to page 2, lines 12- 13, which says in part, "and may not be used as evidence in any criminal proceedings or civil proceedings." He said he is wondering "if there would be any circumstance where you, for some reason, would have to use a blood sample." For identification purposes after a fire, for example, or if a prisoner escapes. SENATOR WAGONER opined that in extenuating circumstances, a court order might be the route to take. REPRESENTATIVE GRUENBERG asked whether the aforementioned language would prevent a court order from being obtained. REPRESENTATIVE SAMUELS pointed out, however, that the aforementioned language refers to use in civil and criminal proceedings and thus would not apply in instances of identifying someone. REPRESENTATIVE GRUENBERG said he just wanted to be sure that there isn't some circumstance wherein those test results need to be used. CHAIR McGUIRE asked whether the DOC has any objection to deleting the aforementioned language. MS. PARKER said the DOC does not, but added: "The problem is, is that we have been warned that it will cause undue challenges and litigation if it's used in criminal or civil proceedings; that's been the experience in other jurisdictions, and this is really for the protection of the inmates ...." REPRESENTATIVE GRUENBERG said he is considering this issue from the prosecution's point of view and wants to be careful that they are not, in some manner, causing the DOC some harm. In response to comments, he added, "It might be important to be able to establish the fact of testing, to prove that you had tested and ... [that] the results had come back negative [and] so there was no need to treat." SENATOR WAGONER opined that this latter point is moving away from the purpose of the bill. "There's been a lot of work go into this and I think we're on pretty firm ground," he concluded. Number 0432 REPRESENTATIVE SAMUELS moved to report HCS CSSB 309(STA), as amended, out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, HCS CSSB 309(JUD) was reported from the House Judiciary Standing Committee.
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