Legislature(1995 - 1996)

04/12/1995 01:17 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 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 said in doing that, the department found the statutes were out of             
 date and did not provide for individual due process as identified             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.                

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