Legislature(2003 - 2004)
04/28/2003 03:20 PM L&C
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 260-IMMUNITY FOR PROVIDING FREE HEALTH CARE CHAIR ANDERSON announced that the first order of business would be HOUSE BILL NO. 260, "An Act relating to immunity for free health care services provided by certain health care providers; and providing for an effective date." Number 0053 REPRESENTATIVE PAUL SEATON, Alaska State Legislature, spoke as the sponsor of HB 260. He explained that the purpose of HB 260 is to encourage licensed health care professionals to provide free services through clinics, health fairs, et cetera. These services would encourage better health care services and the prevention and treatment of illness. Currently, Alaska faces a [shortage] of physicians and these physicians are also aging, which is also the case of other health care professionals. This legislation allows a physician to participate [volunteer services] in a free clinic without having to purchase expensive malpractice insurance. The aforementioned would be especially important for those retired physicians who can't afford to maintain malpractice insurance in order to provide free services in the community. The services can only be provided under the following requirements: the health care provider has a current state license; the services provided are within the scope of the provider's licenses; the services are provided at clinics, municipal- or state- or U.S.-owned facilities, or a nonprofit facility; and the services were provided free of charge. Representative Seaton related his belief that HB 260 is good for the people of Alaska because this legislation would allow Alaskans who would not otherwise be able to access health care to do so. REPRESENTATIVE CRAWFORD said this sounds great. However, physicians and health care providers make mistakes. He asked to whom will patients harmed by these physicians and health care providers with blanket immunity turn. He related that he was told this legislation is similar to the situation in which [military personnel] who are harmed in treatment provided [by military health care professionals] can't sue those health care professionals. Although the government would still be liable in the aforementioned situation, this legislation would leave someone harmed by these volunteer doctors providing free services without any recourse. REPRESENTATIVE SEATON said this legislation doesn't exclude gross negligence, for which the doctor providing free services would be liable. REPRESENTATIVE CRAWFORD inquired as to the remedy if the harm isn't at the level of gross negligence. REPRESENTATIVE SEATON related that "what we're talking about" are acts of omission in which a free clinic wouldn't perform such things as a CAT scan or X-Ray. Representative Seaton remarked, "I think that what we're looking at is a difference between no health care and good health care, but without the liability for the doctor." REPRESENTATIVE CRAWFORD commented, "Somewhere, somebody ought to be liable." Number 0587 REPRESENTATIVE LYNN turned to the definition of "health care provider" and pointed out that the definition doesn't include a nurse practitioner, although it does include an advanced nurse practitioner and a practical nurse. REPRESENTATIVE SEATON deferred to witnesses. REPRESENTATIVE LYNN related his understanding that a practical nurse performs the more mundane activities while the registered nurse is under the direct supervision of a doctor, and a nurse practitioner can do certain things above the level of a regular nurse and advanced nurse. He asked if a category was left out. REPRESENTATIVE SEATON said he wasn't opposed to including a category if it was left out. He reiterated that the purpose of HB 260 is to encourage health care workers to volunteer services. REPRESENTATIVE LYNN inquired as to the definition of a naturopath. REPRESENTATIVE SEATON deferred to witnesses on-line. Number 0709 REPRESENTATIVE GUTTENBERG asked if the clinic would be liable if a retired physician working for free omits a procedure or performs an untimely test that causes harm. REPRESENTATIVE SEATON informed the committee that the medical definition of gross negligence refers to "not adhering to standard procedures in a situation as identified by a professional." "If we get into the situation where somebody is providing treatment that is either outside of their specialty or what their license covers, or outside of standard practice, then we are getting into the other factor," he said. Number 0822 LINDA FINK, Assistant Director, Alaska State Hospital and Nursing Home Association (ASHNHA), announced ASHNHA's support of HB 260. At this time, workforce development is one of the critical concerns in the health care field. Therefore, ASHNHA strongly supports anything that can be done to retain people in the professions and increase the workforce. Ms. Fink informed the committee that she learned from information from the American Hospital Association (AMA) that malpractice insurance for hospitals has increased 158 percent over the last two years. Therefore, she supported not [requiring] liability on the retired [health care professional] who probably doesn't have an income. REPRESENTATIVE SEATON informed the committee that under HB 260 facilities aren't granted immunity. Therefore, this legislation provides for personal immunity for people with licenses and not facilities. Number 0905 CHAIR ANDERSON noted that he agreed with the merits of HB 260. However, he expressed concern with regard to Section 3, which provides immunity for a multitude of health care providers who aren't physicians. Although 43 states have limited liability, he pointed out that [those states have limited liability] for retired physicians not for health care providers. Therefore, he surmised that this legislation deals with all practitioners in the [health care] field. REPRESENTATIVE SEATON informed the committee that Alaska is one of only seven states that doesn't have limited liability for health care providers. He explained that the Legislative Legal and Research Services Division recommended expanding the definition of "health care provider" so that the extent of health care providers would be apparent. He acknowledged that the expansion of the definition does cause some problems because the legislation only covers those health care providers currently licensed in the state. CHAIR ANDERSON surmised then that physicians who retire keep their license, and in order to [come under HB 260], the health care provider would have to have an active license in order to be exempt from liability. MS. FINK replied yes, and specified that the individual would have to qualify. Number 1082 REPRESENTATIVE GUTTENBERG asked if a facility is liable when a health care provider does something that doesn't rise to the level of gross negligence, reckless, or intentional misconduct. MS. FINK answered that she didn't know. However, she did inform the committee that facilities do provide a lot of charity care and other free services, but she didn't know how that related to the facility's liability. REPRESENTATIVE LYNN inquired as to what retired means. REPRESENTATIVE SEATON responded that this legislation merely means that the [health care provider] retired or not is providing services for free. Number 1195 HEDRIC HANSON, Obstetrician/Gynecologist, informed the committee that he has practiced in this state since 1972. He also informed the committee that he is 61 years old. Dr. Hanson opined that the health of our community is a major problem in this country. The health of the community cannot be optimized unless everyone is taken care of, which isn't the case today. Although he said he didn't know the solution, he related that there is a vast untapped resource [retired physicians] in this state. He stated that the number of retired physicians will increase in the next decade. He related his belief that [many retired physicians] would volunteer in the community if there wasn't the need for malpractice insurance. The question is will [the legislature] tap into this wealth of knowledge. DR. HANSON remarked that when laws to protect the physician have been passed in other states it has been a win-win situation for the physicians and the patients. He suggested that it works because perhaps it returns to the once-practiced standards in medicine. With regard to the concerns expressed about injuries, Dr. Hanson related that there have been very few suits of free clinics in which physicians volunteer. He highlighted that the [care being discussed] isn't hi-tech surgery, diagnostic procedures, or invasive testing rather it's basic, primary care and [often to older patients]. Dr. Hanson emphasized that a retired physician can't afford malpractice insurance. Furthermore, the free clinic can't afford malpractice insurance either. He reiterated that the [legislature] will have to decide whether it wants to tap into this resource. He explained that he wants to be able to help the community and he didn't particularly want to perform missionary work in another country. He also explained that the reason the other health care providers are included in this is because the physicians can't do it alone. He concluded by emphasizing that this proposal has worked in other communities and states. Number 1474 CHAIR ANDERSON directed attention to page 2 of the legislation where the definition of "health care services" doesn't delineate or distinguish the type of treatment. The definition seems to be fairly open. Furthermore, he recalled that Dr. Hanson had targeted retired physicians. However, the first criteria that one would have to meet in order to receive immunity for providing free health care services is to be licensed in Alaska. He asked if retired physicians would still be licensed or would renewal be required. DR. HANSON related his understanding that one would have to renew his/her license, pay for the license fee, and meet the requirements for re-licensing, which is the continuing medical education. Number 1592 REPRESENTATIVE LYNN asked if this [immunity] would include work [free services] in an abortion clinic. DR. HANSON answered that he didn't know. However, he related that the free clinics that he knows about were started by churches and state grants. Providing free clinics is a [nationwide] movement that hasn't had a specific agenda like the abortion issue. He related his doubt that one would economically be able to run a free abortion clinic. REPRESENTATIVE LYNN clarified that his question was targeted at volunteering services at a preexisting clinic. DR. HANSON reiterated that he didn't know. He noted that the models he has seen haven't addressed that. [The models he has reviewed] address health maintenance, screening, and care that wouldn't be [classified] as an intervention as would an abortion. Dr. Hanson again highlighted Alaska's older population who can't access physicians because there aren't enough physicians to take care of them or the Medicare reimbursements are so low that no physicians will take Medicare patients, or the patient has no insurance at all. REPRESENTATIVE LYNN asked if, under this legislation, a health care provider could perform an abortion on their own at a clinic and escape any liability. DR. HANSON answered that he didn't know. Number 1755 MICHAEL HAUGEN, Executive Director, Alaska Physicians & Surgeons, Inc. (APS), informed the committee that APS represents approximately 170 physicians. He specified that he was testifying in strong support of HB 260. Mr. Haugen echoed Dr. Hanson's comments regarding the access crisis that is of particular concern for the elderly population in the state. For example, a little over a year ago Anchorage had 28 practicing interns that took care of the elderly population. However, eight of those interns have been lost and two more are expected to leave. Mr. Haugen mentioned that Alaska has experienced difficulty attracting and keeping high-quality physicians. Therefore, he viewed this legislation as [part of the solution that would help] retired physicians who want to stay in the state and help the community. He indicated that the aforementioned is the impetus for APS supporting HB 260. Number 1854 STEPHEN CONN, Special Projects Coordinator, Alaska Public Interest Research Group (AkPIRG), expressed concern with regard to the breadth of the legislation, specifically given the time frame of the legislative process. Mr. Conn said he didn't believe that anyone would want to deny Dr. Hanson the right to continue serving people in this state. However, he noted that he didn't view HB 260 as legislation that would encourage those already quitting practices because they aren't paid in an effective and efficient manner to become volunteers. Mr. Conn specified concern with the breadth of the term "health care provider." He related his assumption that the state license [requirement] would apply to all those listed under the definition of health care provider. However, the level of licensing and regulation of each category is an issue, he said. Mr. Conn also specified concern with the breadth of the term nonprofit facility. He questioned whether the [nonprofit] facility is being held to a level of screening and whether there are adequate resources for the physicians. Apparently, the facility could be sued, but he questioned whether the facility would be obliged to carry [insurance] coverage or resources should there be a problem. If the health care providers are immune and the facility lacks the resources to deal with the immediate needs resulting from a civil liability, everyone would bear those costs because those costs would be thrust back on the market. Therefore, Mr. Conn recommended meeting Mr. Hanson's request without using it as blanket immunity for any number of categories [of health care providers] with various levels of regulations and working at various unknown facilities. The net result of the aforementioned would be unintended consequences. Mr. Conn concluded by specifying that he is in support of a form of legislation, but not HB 260 as it is currently drafted. In regard to the earlier issue of civil liability surrounding gross or intentional negligence, Mr. Conn characterized that as a lesser issue because it's fairly well defined. Number 2035 REPRESENTATIVE CRAWFORD referred to page 2, line 6, of HB 260. He asked if the "limiting liability" language in the other 43 states that have enacted legislation limiting liability for retired physicians refers to blanket immunity up to gross negligence. He also asked if the 43 other states include the list of health care providers that [HB 260 specifies]. MR. CONN responded that he didn't know, and remarked that those are important questions. As was stated by the sponsor, the legislative intent is limiting liability for retired physicians. MR. HAUGEN informed the committee that in these 43 other states, the liability extended to physicians comes in two forms: either it provides a blanket exemption and indemnifies a physician like a state employee, or, like Oregon, changes the liability standard to gross negligence. He noted his belief that the language of HB 260 is modeled on North Dakota's [provisions]. He highlighted that the list of health care providers that are immunized varies greatly throughout the 43 states. He related his belief that the intent of HB 260 was to be as broad as possible in order to encourage as much citizen participation as possible. Number 2159 REPRESENTATIVE SEATON pointed out that the committee packet contains a listing of all the states and what that state provides [in the area of volunteer health care providers and civil immunity laws]. The listing is from the National Conference of State Legislatures (NCSL). The committee packet also includes Public Law 105-19-June 18, 1997, which is the federal Volunteer Protection Act of 1997. He explained that the purpose of the Volunteer Protection Act of 1997 is to promote interested social service programs and beneficiaries and taxpayers to sustain the availability of programs and nonprofit organizations, et cetera [that provide] health [services]. This Act preempts the laws in any state to the extent that such laws are inconsistent with the Act, except the Act shall not preempt any state providing additional protection from liability related to volunteers or to any categories of volunteers in the performances or services of the nonprofit organization or governmental agency. Therefore, this is a model law and without any state law, the federal law is in place. CHAIR ANDERSON related his view that Alaska would have the most expansive legislation with regard to [the definition of health care provider]. REPRESENTATIVE SEATON said that Legislative Legal and Research Services wanted to narrow the legislation by specifying [the definition of health care provider]. He informed the committee that most of [the 43 states doing this] refer to health care providers or professionals, which includes "all of the people that are licensed that have anything to do with health care." Number 2305 REPRESENTATIVE CRAWFORD recalled Mr. Haugen's testimony regarding the indemnification of the volunteers [that occurs in some of the 43 states doing this], and inquired as to who indemnifies them when someone is damaged and there is no malpractice insurance in place. MR. HAUGEN related his belief that the state passing the legislation would indeminify [the volunteer health care provider]. REPRESENTATIVE CRAWFORD surmised that Mr. Haugen would prefer that no one be liable if someone was damaged [by a volunteer health care provider]. MR. HAUGEN replied no and pointed out that the legislation includes a liability standard of gross negligence. Mr. Haugen reiterated that [the legislature] must determine whether encouraging providers to provide health care when they otherwise would not, to meet a very large need, is worth reducing the liability exposure to the provider. He noted that many states and the federal government have decided it's worth it. REPRESENTATIVE CRAWFORD asked if Mr. Haugen felt that the state indemnifying the provider isn't workable. MR. HAUGEN responded that the legislature] can debate that. TAPE 03-42, SIDE B CHAIR ANDERSON, upon determining no one else wished to testify, closed public testimony. Number 2350 REPRESENTATIVE GATTO moved that the committee adopt Amendment 1, which read: Page 2, line 27, following "dentist,": Insert "dental hygienist," REPRESENTATIVE GATTO informed the committee that when he goes to the dentist, he almost always sees the dental hygienist. Therefore, he expressed the need to include dental hygienists in the list of health care providers. REPRESENTATIVE GUTTENBERG informed the committee that there is a legitimate and licensed definition of dental hygienist, and therefore it is covered in statute. CHAIR ANDERSON, upon determining there were no objections, announced that Amendment 1 was adopted. Number 2283 REPRESENTATIVE DAHLSTROM moved that the committee adopt Amendment 2, which read: Page 2, line 21: Delete "and" Page 2, line 22, following "the services": Insert "; and (5) provider (A) obtains informed consent from the person receiving the health care services as described under AS 09.55.556, except in the case of an emergency; and (B) provides the person receiving the health care services written notice of the immunity provided under this section" CHAIR ANDERSON objected for the purposes of discussion. REPRESENTATIVE DAHLSTROM clarified that AS 09.55.556 says the following: Sec. 09.55.556. Informed consent. (a) A health care provider is liable for failure to obtain the informed consent of a patient if the claimant establishes by a preponderance of the evidence that the provider has failed to inform the patient of the common risks and reasonable alternatives to the proposed treatment or procedure, and that but for that failure the claimant would not have consented to the proposed treatment or procedure. REPRESENTATIVE DAHLSTROM explained that the above is a common sense understanding that the provider is providing the information to the patient receiving the care and everyone is signing off on it. CHAIR ANDERSON removed his objection. REPRESENTATIVE GUTTENBERG asked if the informed consent notifies the patient that there is no liability. REPRESENTATIVE SEATON said that he has no objection to [Amendment 2]. There being no further objection, Amendment 2 is adopted. Number 2200 REPRESENTATIVE LYNN moved that the committee adopt Conceptual Amendment 3, which read: Nothing in this bill shall remove civil liability from any health care provider that performs or participates in the performance of an elective abortion. REPRESENTATIVE GUTTENBERG objected and remarked, "It's just the whole larger issue of liability for everybody, not just separating one out." REPRESENTATIVE GATTO asked if Representative Guttenberg would be more comfortable with the language "any elected procedure." REPRESENTATIVE GUTTENBERG explained that the issue is the liability question. CHAIR ANDERSON related his understanding that Representative Lynn's amendment is getting at a physician who retires and maintains his/her medical license, goes to a clinic that performs abortions, and offers to work for free. In the aforementioned situation, the physician wouldn't have to have liability insurance. He said he understood Representative Lynn to mean that he didn't want it to be easy for a physician to retire and not have liability insurance for malpractice and perform [abortions]. REPRESENTATIVE LYNN agreed with Chair Anderson's understanding. REPRESENTATIVE CRAWFORD said he believes [Conceptual Amendment 3] is discrimination and isn't fair and equal treatment. With regard to using the language "any elected procedure," Representative Crawford pointed out that could refer to having one's teeth cleaned. Therefore, he said he didn't see how there could be a law that discriminates against one form of health care, when that health care is legal under the constitution. REPRESENTATIVE GATTO related his belief that having one's teeth cleaned is a medical procedure, which is why it's performed by a licensed individual. He suggested that perhaps any elected procedure shouldn't be covered when the intent is to simply release the physician when doing free work. Perhaps the free work could be limited to free and essential or free and necessary [services]. Therefore, procedures such as teeth whitening, plastic surgery, and removing tattoos wouldn't be covered. Number 1975 REPRESENTATIVE GUTTENBERG said that the definition of "elective" would be troubling for a lot of people. Comparing an elective teeth cleaning to an elective abortion is troubling. He posed a situation in which someone has an accident and there is a life and death situation [between the mother and her unborn child], and questioned whether the decision of whether one or both die would be considered elective. REPRESENTATIVE LYNN clarified that [Conceptual Amendment 3] doesn't go to the abortion issue itself rather it addresses the liability issue. REPRESENTATIVE SEATON reiterated that the purpose of HB 260 is to provide legal voluntary health care. If attempts are made to allow certain procedures and disallow others, he said he believes it will probably [thwart this attempt to provide free] needed medical care. CHAIR ANDERSON asked if Representative Seaton was saying that the language on page 3, line 1, "to treat or prevent illness or injury", doesn't include abortion. REPRESENTATIVE SEATON replied, "Right." REPRESENTATIVE LYNN disagreed. REPRESENTATIVE GATTO clarified that any female can go to a physician and say that it stresses her or would injure her to have a baby in which case a mental illness would be associated with the delivery of the baby. Representative Gatto opined that ignoring it would mean that it's covered, and therefore he supported Conceptual Amendment 3. Number 1811 A roll call vote was taken. Representatives Dahlstrom, Gatto, Lynn, and Anderson voted in favor of Conceptual Amendment 3. Representatives Guttenberg and Crawford voted against it. Therefore, Conceptual Amendment 3 was adopted by a vote of 4-2. REPRESENTATIVE CRAWFORD highlighted his belief that it's important to recognize that [this legislation] issues blanket immunity up to the point of gross negligence. Some states indemnify the volunteer health care providers. He said he would hate to see people [unable to seek damages] when they have been injured by these health care providers. He noted that he was leery about providing blanket immunity. Therefore, he noted that he would be in favor of putting the state in charge of indemnifying these volunteer health care providers. CHAIR ANDERSON recalled Mr. Conn's point that the licensure for the various health care providers varies. Furthermore, there is some ambiguity with regard to the liability of a nonprofit facility. Chair Anderson pointed out that the committee has reviewed this legislation per the purview of this committee. Therefore, he said he believes the legislation could be forwarded to the next committee of referral, the House Judiciary Standing Committee, where the more definitive aspects could be reviewed. REPRESENTATIVE LYNN pointed out that indemnifying these volunteer health care providers could cost the state millions. Further, he questioned whether the state would have to carry the insurance. REPRESENTATIVE CRAWFORD posed a situation in which an indigent is harmed, and indicated that the state, as the last resort, would be responsible for this person. REPRESENTATIVE LYNN stated that he totally supports the concept of HB 260 as it has been amended. Number 1611 REPRESENTATIVE GUTTENBERG noted that he, too, liked HB 260 conceptually. However, he was also interested in Representative Crawford's suggestion to explore some blanket indemnification. Some of the definitions of health care providers are broad, and therefore defining health care providers is smart. Still he noted his concerned with the liability of the legislation as well as the license requirements. CHAIR ANDERSON offered to contact Rick Urion, Director, Division of Occupational Licensing, Department of Commerce & Economic Development, and request an interpretive and opinion letter regarding licensure to be submitted to the House Judiciary Standing Committee. REPRESENTATIVE CRAWFORD said he hates to send legislation with problems to the next committee of referral. He emphasized his concern with providing blanket immunity. Number 1493 REPRESENTATIVE DAHLSTROM moved to report HB 260, as amended, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE GUTTENBERG objected. Representative Guttenberg requested a list of physicians and their licensing requirements. A roll call vote was taken. Representatives Dahlstrom, Gatto, Rokeberg, Lynn, and Anderson voted in favor of reporting HB 260, as amended, out of committee. Representatives Guttenberg and Crawford voted against it. Therefore, CSHB 260(L&C) was reported out of the House Labor and Commerce Standing Committee by a vote of 5-2.