Legislature(1995 - 1996)
04/12/1995 01:17 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 274 - TUBERCULOSIS CONTROL Number 220 CHAIRMAN PORTER asked the sponsor, Representative Cynthia Toohey, to speak on House Bill 274. REPRESENTATIVE TOOHEY stated this was an amendment submitted by the Department of Health, Education and Social Services (HESS). She invited Dr. Peter Nakamura to speak on the bill. DR. PETER NAKAMURA, DIRECTOR, DIVISION OF PUBLIC HEALTH, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, spoke on this issue which he feels is extremely important to the ability to address the problems of tuberculosis (TB). He stated there has been a resurgence of the problem this year and found one situation where the individual was not able to conform to the requirements for treatment and the department had to impose detention or quarantine. Dr. Nakamura said in doing that, the department found the statutes were out of date and did not provide for individual due process as identified in our Constitution. DR. NAKAMURA related the department readdressed the issue and in readdressing it, they covered a number of revisions in HB 274. One issue covered was to bring the practice of monitoring of TB more up to current standards in terms of reporting; assuring that if an individual is identified as having TB, it is reported to the State Health Department, and that if an individual is under treatment for TB, the State Health Department be notified if the treatment is stopped at any time before conclusion. The concern is if the treatment is stopped before completed, there is the chance of developing a drug resistant strain of TB. He said once that happens, it is extremely difficult and each time the organism develops another resistance, there is always a possibility to develop an organism that is totally unresponsive to any medication. He went on to say to avoid that, there is in this amendment, a requirement that any person on TB treatment stay on TB treatment until completed. DR. NAKAMURA pointed out some wording changes such as "TB sanitorium," which we no longer have; a label for those having TB as "tubercular," a term that is no longer appropriate; a recognition of physicians practicing in Alaska who may not be licensed in Alaska, but have the approval to practice medicine in Alaska. This would be those federal physicians who were assigned to some of the programs where a license is not required in the state, but they can practice. The revisions would allow that to continue in the way it presently does. Dr. Nakamura continued saying it allows access by the state medical officers to health records of any individual with TB in the instance where they are reported as not conforming to the appropriate treatment. DR. NAKAMURA stated that the main issue in the bill is to assure there is due process so that when an individual is detained or quarantined, the department does not have to face the charge of constitutionality of their act so they can treat the person, if necessary. Dr. Nakamura cited two situations in Anchorage where two individuals terminated their treatment after approximately four weeks of therapy. The only way to get them back into treatment would have been under criminal penalties. He said the rewrite of this statute does include some reference to penalties, to a misdemeanor, and further review of the number of amendments he hopes can be introduced to remove that stigma. The department feels it is inappropriate to take an individual who is ill and make it a criminal offense in any way. DR. NAKAMURA feels there are some individuals who cannot conform to the proper treatment and as long as the department has the ability to detain them and assure they are on therapy, it should not be a criminal offense. Dr. Nakamura went on to say if it is made a criminal offense, it will make it much more difficult for the health providers to address these issues with other people. Number 375 REPRESENTATIVE TOOHEY asked if the imposed detention mentioned was through a quarantine court order. DR. NAKAMURA answered yes, under the due process a hearing is required and that the hearing take place in a prompt manner so the person is not detained over a period of time without an appropriate hearing. He also brought up the privacy issue, which is not included in this bill, to assure the individual's right to a hearing in privacy if they so choose. Dr. Nakamura stated that the department's concern is there could be a breach of privacy in that individual's medical records. CHAIRMAN PORTER asked if there were any questions of Dr. Nakamura. REPRESENTATIVE BUNDE moved the following amendment, dated 4/11/95/8.1.: Page 1, lines 1-2, delete ", including provisions for certain penalties"; page 7, line 3, delete "and"; page 7, line 6, after "provided", insert "; and (5) advice to the person being detained that the person has the right to elect whether a proceeding providing court review is open or closed to the public"; page 8, after line 15, insert a new subsection to read "(d) A person who is the subject of a court proceeding initiated under AS 18.15.136 or 18.15.137 may elect to have the hearing open or closed to the public."; and on page 9, lines 15-16, delete all material. CHAIRMAN PORTER asked if there was an objection to amendment one Hearing none, the amendment was adopted. Chairman Porter called Kristen Bomengen of the Attorney General's Office to testify. KRISTEN BOMENGEN, ASSISTANT ATTORNEY GENERAL, HUMAN SERVICES SECTION, ATTORNEY GENERAL'S OFFICE, DEPARTMENT OF LAW, said she was primarily at the meeting to answer any legal questions that may come up regarding the bill. She commented that to prevent the legal dilemma at the present time, the department's medical officers have options under the current statute to issue examination orders and quarantine orders. Ms. Bomengen said if the person doesn't understand the seriousness of their illness, and for some reason doesn't wish to or doesn't comply with those orders, then the department, under the current statutes, is required to file a criminal charge and charge them with a misdemeanor offense. MS. BOMENGEN said they did encounter that circumstance in the late part of 1994, and the department found the court responded rather awkwardly to finding that an individual in a medical office issued an order and then the court was presented with a criminal offense for not complying with that order. She stated the court order is designed to address the steps that people may reasonably expect between the initial issue for the medical order and the eventual requirement they remain in quarantine. She also supported the inclusion of the amendment because as the additional steps were added into the bill, it was found the criminal penalties didn't serve any purpose as all of the same aims could be achieved by the means already there. Number 450 REPRESENTATIVE GREEN brought up Dr. Nakamura's statement regarding the patient's completing treatment so they don't end up creating a bacteria that is untreatable. He asked if that was sufficient grounds that, in effect, the person is placed in quarantine and prevented his freedom. He asked, "is there any possibility of a problem with invasion of his rights?" MS. BOMENGEN replied that under the steps outlined under the proposed statute, the department should be able to address those circumstances. Then, when there was a case where the person had lapsed in the drug regimen and continued to show signs of the disease in samples that were taken, the court had an understanding of what that public health problem became. She said that with this bill, the steps were available now to outline the problems to the court. REPRESENTATIVE GREEN expressed his concern that the courts might again overrule this. MS. BOMENGEN answered certainly, every case is determined by its facts and how they fit with the law. She said in designing this law, they looked to other states. There is one other state case that has upheld a continued extended quarantine in a case where an individual continually failed to maintain the medical regimen. Ms. Bomengen said certainly they would invoke the case under a similar law constructed to support the enforcement for public safety reasons. Number 490 REPRESENTATIVE GREEN asked if this would also circumvent the possibility of leaving the state if person A is under quarantine and decides that he wants to go to Oregon, for instance. MS. BOMENGEN said she does not believe there is anything in this bill that would carry that explicit function, but if the department knew of the plans being made, the department does have the option of seeking an emergency detention in very short order so that without contacting the party, there would be an order from the judge to have the person picked up and detained. She said it will go far enough so when there is sufficient information available for the department to respond, it will allow them to do so. Ms. Bomengen stated that is something not available in the present law. Number 500 REPRESENTATIVE TOOHEY inquired about the transportation with the airlines, that they can also refuse service to someone with a communicable disease. MS. BOMENGEN said it is her understanding that if airlines are aware there is a public health risk, they can refuse passage to a passenger. CHAIRMAN PORTER asked if there were other questions, or statements. Hearing none, public testimony was closed. The Chairman asked the wish of the committee. REPRESENTATIVE VEZEY moved to pass CSHB 274(JUD) out of the House Judiciary Committee. CHAIRMAN PORTER asked if there were any objections. Hearing none, CSHB 274(JUD) was passed out of the House Judiciary Committee.