Legislature(2005 - 2006)FAHRENKAMP 203
03/31/2005 09:00 AM House RULES
| Audio | Topic |
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| Start | |
| HB95 | |
| HB88 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| HB 95 | |||
| HB 88 | |||
HB 95-PUBLIC HEALTH DISASTERS/EMERGENCIES CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 95, "An Act relating to public health and public health emergencies and disasters; relating to duties of the public defender and office of public advocacy regarding public health matters; relating to certain claims for public health matters; making conforming amendments; and providing for an effective date." [Before the committee was CSHB 95(JUD).] 9:08:14 AM REPRESENTATIVE MCGUIRE referred to HB 95 as the quarantine bill. She informed the committee that Alaska is one of the few states without quarantine capabilities. She explained that the legislation includes language which would allow for a civil cause of action against a state employee. However, it has been determined that a criminal penalty would be more appropriate, with which she noted her agreement [to the notion and the amendment]. The legislation expands the different locales where there could be a cause of action against a state employee who abused his or her power. She pointed out that [the committee packet should also include another amendment] which would add nurse practitioners to the list of medical individuals in the legislation. She noted her support of the aforementioned amendment. 9:09:57 AM REPRESENTATIVE HARRIS moved that committee adopt Amendment 1, labeled 24-GH1002\F.2, Mischel, 3/24/05, which read: Page 2, line 29: Delete ", isolation, medical treatment, or" Insert "or isolation, or by" Page 2, line 31: Delete "in circumstances provided under AS 18.15.388" Insert "for damages caused by medical treatment provided under AS 18.15.355 - 18.15.395 by a state employee" Page 9, following line 17: Insert a new subsection to read: "(c) A person who knowingly discloses identifiable health information in violation of this section or a regulation adopted under this section is guilty of a class B misdemeanor. In this subsection, "knowingly" has the meaning given in AS 11.81.900(a)." Page 16, lines 22 - 25: Delete all material. REPRESENTATIVE BERKOWITZ objected. 9:10:49 AM DR. RICHARD MANDSAGER, Director, Division of Public Health, Department of Health and Social Services (DHSS), echoed Representative McGuire's earlier testimony that Alaska is the only state in the nation without adequate quarantine and isolation authorities. He noted that the committee packet should include PowerPoint slides that summarize the journey of this legislation through the committee process. The legislation, he opined, does three things of importance for the state: it updates the state's public health authorities; it places due process provisions in the legislation for someone who wants to appeal action; and it updates the standards and management of identifiable health information. Amendment 1 is in response to an amendment on page 16, lines 22-25, added in the House Judiciary Standing Committee. The parts of Amendment 1 that make changes on page 2, place DHSS employees at the same level as any other health care practitioner in the state. Therefore, if DHSS employees don't manage medical treatment, they are held to the same standard as any other physician or nurse in the state. Furthermore, if [DHSS employees] don't meet medical standards of care, there is liability for the lack of appropriate medical care. The part of Amendment 1 that makes changes to page 9 inserts subsection (c) regarding the identifiable health information, and makes a knowing violation of the disclosure of health information a criminal violation. Dr. Mandsager viewed it as appropriate that [DHSS employees] be held to a standard that imposes criminal penalties as individuals. The reason to eliminate the civil liability is because when there is an appeal, the courts are involved, except for an emergency order by a medical officer. The aforementioned can even be taken to court within 72 hours, if there is the contention that the department isn't managing appropriately. 9:15:28 AM CHAIR ROKEBERG related his understanding that a licensed physician in the state who reveals confidential patient information is subject to criminal prosecution as a misdemeanor. DR. MANDSAGER clarified that there are federal Health Insurance Portability and Accountability Act (HIPAA) standards that must be met. 9:16:08 AM DAN BRANCH, Senior Assistant Attorney General, Human Services Division, Civil Division (Juneau), Department of Law, said that he is unaware of any state provision regarding a private physician breeching confidentiality. CHAIR ROKEBERG recalled that in the patients' bill of rights he authored there were standards of privacy, but he didn't recall any criminal sanctions. Therefore, he questioned whether it would be a federal cause of action. MR. BRANCH said that he wasn't sure how it would proceed. The HIPAA standards place a heavy burden on the state and physicians to protect confidential or identifiable health information. He offered to let committee staff know the answer after some research. CHAIR ROKEBERG said he would appreciate such because this would create a new crime. MR. BRANCH clarified that this is analogous to other provisions protecting confidential information, such as child protection information. Those in violation of AS 47.10 would be liable for a misdemeanor. 9:17:57 AM REPRESENTATIVE BERKOWITZ inquired as to how knowingly quarantining someone is distinguishable from kidnapping or falsely imprisoning someone. MR. BRANCH specified that the legislation wouldn't make it a crime to violate the quarantine and isolation provisions. As Dr. Mandsager explained, there's no need to have a civil cause of action for suing the state for violations of quarantine and isolation provisions because the rights provided by the provision to the respondents can be enforced within the hearings provided by the statute itself. An individual wrongly quarantined will be able to come before a judge and relate his or her story and have an attorney help with that. At the time it's most important to protect an individual's rights, there's already a remedy provided by this legislation. Therefore, it's unnecessary to provide a criminal sanction or a civil sanction for a violation of the quarantine and isolation provision. 9:19:25 AM REPRESENTATIVE BERKOWITZ remarked that the aforementioned presumes that the individual knows to secure an attorney and is capable of doing so. MR. BRANCH opined that the provision provides a requirement of notice to be given to an individual being quarantined. REPRESENTATIVE BERKOWITZ clarified that he was posing a situation in which there is a knowing violation, a knowing quarantine even though it's improper, and he questioned the recourse the improperly quarantined individual would have. CHAIR ROKEBERG asked whether the individual would go the Attorney General's Office. REPRESENTATIVE BERKOWITZ remarked that the history of imposing quarantines in this country isn't particularly impressive. Quarantines have been imposed for various nefarious reasons. If an individual in a community wanted to impose a quarantine in violation of these rules, he didn't believe the quarantined individual would be informed of his or her rights to an attorney. Therefore, he said he was hesitant to carve out the liability. The state's liability keeps the infrastructure of the state vigilant before anyone imposes a quarantine. However, he said he knows of cases in which health information was disclosed in small communities for vindictive reasons. CHAIR ROKEBERG suggested that the act of imposing a quarantine is notice to the public, in and of itself, that there will be restricted access. REPRESENTATIVE BERKOWITZ questioned how anyone would know when an individual has been quarantined. Furthermore, if the aforementioned is done in knowing violation of the rules, he questioned the recourse available to the improperly quarantined individual. 9:22:08 AM REPRESENTATIVE COGHILL questioned whether it would be appropriate to hold a department employee who makes a spurious claim to quarantine criminally liable. REPRESENTATIVE BERKOWITZ indicated agreement, but reiterated that if the state remains civilly liable, then the state will remain vigilant in regard to its personnel. If the state isn't going to be held accountable for the actions of its employees, then it's difficult to relay the message of accountability. Every time the legislature makes the state exempt from liability, the legislature sends a message. 9:23:25 AM REPRESENTATIVE MCGUIRE opined that a criminal charge is more of an incentive for a state employee to be accountable. The old law was a $1,000 civil fine, which amounts to one permanent fund dividend check. Representative McGuire then drew attention to page 12, which lists very specific circumstances under which the government can impose a quarantine. There are also conditions and standards, such as notice and a superior court order. She highlighted that page 13 specifies what the petition to the superior court has to allege. Therefore, the notion of an individual being locked up somewhere without anyone knowing is preposterous. 9:25:16 AM REPRESENTATIVE BERKOWITZ emphasized that when people don't follow the rules, there needs to be some recourse for the victim. The victim would be someone who is falsely or improperly quarantined. He pointed out that the state would hold someone criminally and civilly liable for kidnapping and he didn't see much difference between the aforementioned and a knowing false quarantine. He questioned why the state should be exempted from its responsibility to ensure that its employees are behaving properly. 9:26:11 AM REPRESENTATIVE COGHILL said that although he would tend to agree, he opined that an individual who misuses or circumvents the state law should be held criminally liable. REPRESENTATIVE BERKOWITZ pointed out that criminal liability doesn't make the victim whole. Therefore, civil liability should be allowed if the desire is to allow the victim to be made whole. CHAIR ROKEBERG asked if someone who felt he or she was improperly quarantined would have any recourse to appeal to the courts for relief. MR. BRANCH replied yes, and pointed out that [the department] must go to court in order to obtain a quarantine in the first place. He agreed with Chair Rokeberg that the first remedy would be to appeal to have the quarantine set aside. Furthermore, the legislation provides for requests for review during the quarantine if an individual believes it's no longer necessary. 9:27:52 AM REPRESENTATIVE BERKOWITZ moved to divide the question such that Amendment 1A would read as follows: Page 2, line 29: Delete ", isolation, medical treatment, or" Insert "or isolation, or by" Page 2, line 31: Delete "in circumstances provided under AS 18.15.388" Insert "for damages caused by medical treatment provided under AS 18.15.355 - 18.15.395 by a state employee" Amendment 1B would read as follows: Page 9, following line 17: Insert a new subsection to read: "(c) A person who knowingly discloses identifiable health information in violation of this section or a regulation adopted under this section is guilty of a class B misdemeanor. In this subsection, "knowingly" has the meaning given in AS 11.81.900(a)." Amendment 1C would read as follows: Page 16, lines 22 - 25: Delete all material. CHAIR ROKEBERG ruled that the question is divisible as specified above. REPRESENTATIVE BERKOWITZ stated that fundamentally the question is whether the state should be liable when its employees do something wrong. He opined that the state has a responsibility as an employer; it should be no different than a private employer. 9:29:18 AM CHAIR ROKEBERG asked if there is objection to Amendment 1A [text provided previously]. REPRESENTATIVE BERKOWITZ objected to Amendment 1A. A roll call vote was taken. Representatives Harris, Coghill, McGuire, and Rokeberg voted in favor of the adoption of Amendment 1A. Representatives Kohring and Berkowitz voted against it. Therefore, Amendment 1A was adopted by a vote of 4-2. The committee took a brief at-ease from 9:29 a.m. to 9:30 a.m. 9:31:06 AM CHAIR ROKEBERG announced that the adoption of Amendment 1B [text provided previously] is before the committee. 9:31:12 AM REPRESENTATIVE BERKOWITZ asked if there is a criminal penalty for someone who knowingly quarantines or isolates [an individual] in violation of the statutes. MR. BRANCH replied no. REPRESENTATIVE MCGUIRE highlighted that [Amendment 1B] is an expansion of rights. REPRESENTATIVE BERKOWITZ reiterated that there's no criminal penalty for a knowing violation of quarantine or isolation. Therefore, if an individual knowingly and falsely quarantines someone, there is no criminal penalty. [Amendment 1B] speaks only to the disclosure of health information. 9:32:27 AM DR. MANDSAGER reiterated his earlier testimony that the only time a departmental employee can quarantine an individual is in an emergency and for only a maximum of 72 hours. Every other time there is a quarantine, a court must be involved. Therefore, he couldn't see how there could be a knowing quarantine or isolation. REPRESENTATIVE BERKOWITZ maintained that an individual with the authority to impose a quarantine can do so, and it could be a knowing violation, and yet there is no direct criminal sanction attached. 9:33:32 AM REPRESENTATIVE BERKOWITZ moved that the committee adopt a conceptual amendment to Amendment 1B "that would bring in knowing violations of quarantining or isolation." REPRESENTATIVE COGHILL indicated that the aforementioned would fall under AS 18.55.385. 9:34:04 AM REPRESENTATIVE HARRIS asked then if the penalty is merely a class B misdemeanor. REPRESENTATIVE BERKOWITZ commented that the aforementioned seems to be a problem. CHAIR ROKEBERG asked if Representative Berkowitz wanted to make knowing violations of quarantining or isolation symmetrical with kidnapping. REPRESENTATIVE BERKOWITZ surmised that the prosecution would have some discretion in regard to how to charge in these circumstances. CHAIR ROKEBERG asked if there were any objections to the conceptual amendment to Amendment 1B. There being no objection, the conceptual amendment to Amendment 1B was adopted. CHAIR ROKEBERG announced that Amendment 1B, as amended, is before the committee. There being no objection, Amendment 1B, as amended, is adopted. 9:35:53 AM CHAIR ROKEBERG then announced that before the committee is Amendment 1C [text provided previously]. REPRESENTATIVE BERKOWITZ objected. He opined that the state shouldn't be "let off the hook," which would be the case with the deletion of the language specified in Amendment 1C. 9:36:14 AM REPRESENTATIVE MCGUIRE characterized this as a difference in philosophy. Over the last couple of years, the legislature has expanded some of the sovereign immunity provisions in the state. Representative McGuire opined that a criminal penalty sends a strong message. However, placing a civil cause of action provides a liability that sits. The aforementioned is onerous, she opined. Furthermore, there is no precedent for it. She reminded the committee of the DNA legislation, which seems to fall in line with this and it has a criminal penalty as well. 9:37:50 AM REPRESENTATIVE HARRIS surmised that if the amendment passes, any reference to civil penalties would be deleted and due to the adoption of Amendment 1B, as amended, criminal charges have been added. He questioned why it wouldn't be appropriate for a [victim] of a [false quarantine or isolation] to able to receive civil compensation. REPRESENTATIVE MCGUIRE reiterated that it's a philosophical difference. Imagine a circumstance in which a quarantine is imposed; she suggested that it would be absolute chaos. She opined that it would be quite a [burden] to also have civil liability exposure with a $1,000 fine for each single violation. Furthermore, those civil actions hang over an individual's ability to secure loans, purchase houses, and follow the individual forever. Representative McGuire emphasized that this is a matter of public health, which benefits all. Moreover, the civil penalty might deter individuals from doing such work. 9:40:22 AM DR. MANDSAGER related that this amendment has caused a great deal of distress for [Division of Public Health] staff because of the compensatory damages for which the division employee would be personally liable. He expressed concern with [the division's] ability to recruit staff if they may be personally liable for their actions. 9:41:19 AM CHAIR ROKEBERG noted that he is sensitive to where Alaska sits in relation to international trade, traffic, and importation of infectious diseases. He said he would vote in favor of the amendment as a vote of support for the [division's] staff. REPRESENTATIVE BERKOWITZ maintained his objection. 9:42:01 AM A roll call vote was taken. Representatives Harris, Coghill, Kohring, McGuire, and Rokeberg voted in favor of Amendment 1C. Representative Berkowitz voted against it. Therefore, Amendment 1C was adopted by a vote of 5-1. 9:42:30 AM REPRESENTATIVE MCGUIRE withdrew Amendment 2, labeled 24- GH1002\F.4, Mischel, 3/30/05. REPRESENTATIVE BERKOWITZ suggested offering Amendment 2 without the portion on page 12, line 13, following "restrictive", inserts "or most effective". REPRESENTATIVE MCGUIRE explained that she had thought Amendment 2 would only add nurse practitioner and expand the definition. She said that although she would be willing to [consider] the portion of Amendment 2 on page 20, line 18, which deletes "nurse," and inserts "licensed nurse, nurse practitioner," she still had concerns. She characterized the first part of Amendment 2, which on page 12, line 13, following "restrictive", inserts "or most effective", as egregious because it expands governmental authority beyond what is desired. The portion of Amendment 2 that addresses highly toxic agents actually moves in the complete opposite direction of where the debate led the legislation in the House Judiciary Standing Committee. Therefore, she decided to withdraw Amendment 2. 9:44:39 AM CHAIR ROKEBERG moved that the committee adopt Amendment 2, 24- GH1002\F.4, Mischel, 3/30/05, which read: Page 12, line 13, following "restrictive": Insert "or most effective" Page 12, line 14, following "others": Insert "or to prevent the exposure to or transmission of a highly toxic agent or substance. The department shall carry out isolation or quarantine" Page 19, line 7: Delete "radiological" Insert "radioactive" Page 19, line 10: Delete "radiological" Insert "radioactive" Page 20, line 18: Delete "nurse," Insert "licensed nurse, nurse practitioner," Page 20, following line 19: Insert a new paragraph to read: "(13) "highly toxic agent or substance" means an agent or substance, or the quality of an agent or substance, that can cause serious illness, injury, or death to a person exposed to the agent or substance; "highly toxic agent or substance" includes a radioactive material or an individual who has been exposed to a radioactive material." Renumber the following paragraphs accordingly. REPRESENTATIVE MCGUIRE objected. 9:44:50 AM JOHN BITNEY, Lobbyist, Alaska Nurses Association, acknowledged that Amendment 2 opened up more than was intended. Furthermore, he related that he now understands that the toxins are covered elsewhere in HB 95. The idea [with Amendment 2] was to ensure that things such as dirty bombs, although not contagious, could be transmitted from another person, should also be subject to the legislation. MR. BITNEY did request that the committee consider adopting the portion of Amendment 2 on page 20, line 18, which deletes "nurse," and inserts "licenses nurse, nurse practitioner,". A licensed nurse would essentially be an R.N., he noted. 9:46:26 AM CHAIR ROKEBERG moved to amend Amendment 2 such that it would read as follows: Page 20, line 18: Delete "nurse," Insert "licensed nurse, nurse practitioner," REPRESENTATIVE MCGUIRE asked if Dr. Mandsager could think of a [situation] in which the public health would benefit from including LPNs or another class of nurses or nurse practitioners. DR. MANDSAGER pointed out that the on page 20, line 13, the definitions section includes "nurse practitioner". With regard to whether to include a general nurse, he suggested just keeping "nurse" as long as "nurse practitioner" is kept [in the definitions section]. 9:48:17 AM REPRESENTATIVE MCGUIRE said she could understand that there are situations in which a nurse practitioner would be [desirable], but she believes the legislation covers them. However, she said she didn't want to exclude pieces of the public health model. CHAIR ROKEBERG withdrew his amendment to Amendment 2. He then announced that Amendment 2 was off the table. 9:49:13 AM REPRESENTATIVE BERKOWITZ moved that the committee adopt Amendment 3, which read: Page 26, following line 30: Insert a new bill section to read: '*Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to read: GRANT APPLICATIONS. The Department of Health and Social Services is encouraged to apply for appropriate funding sources relating to transforming health care quality through information technology, including one or more of the implementation grants sponsored by the United States Department of Health and Human Services, the National Institutes of Health, and the National Library of Medicine." Renumber the following bill section accordingly. CHAIR ROKEBERG objected. REPRESENTATIVE BERKOWITZ informed the committee that there are many grants that could be available to the state from the health information networks. The health information networks have been touted as a way to improve the quality of health care while reducing the costs. He expressed the hope that Amendment 3 would encourage the Division of Public Health to apply for some of these grants. REPRESENTATIVE MCGUIRE said that she had no objection to Amendment 3. REPRESENTATIVE COGHILL commented that he has no objection to the concept, but he questioned whether HB 95 is the correct vehicle. He suggested that perhaps budget legislation would be a better place for such language. REPRESENTATIVE BERKOWITZ maintained his motion to adopt Amendment 3. He pointed out that Amendment 3 merely encourages the department to apply; there is no mandate. CHAIR ROKEBERG inquired as to whether Amendment 3 fits under the current title of HB 95. REPRESENTATIVE BERKOWITZ pointed out that the legislation is an Act relating to public health. REPRESENTATIVE HARRIS commented that Amendment 3 is germane to the title of HB 95. 9:52:22 AM CHAIR ROKEBERG withdrew his objection, and therefore Amendment 3 was adopted. 9:53:22 AM REPRESENTATIVE BERKOWITZ moved that the committee adopt Amendment 4, which read [original punctuation provided]: Insert the following language: AS 47.04.020(b) is amended to read: (13) persons under age 19 who are not covered under (a) of this section ANS whose household income does not exceed [(A) $1,847 A MONTH IF THE HOUSEHOLD CONSISTS OF ONE PERSON; (B) $2,489 A MONTH IF THE HOUSEHOLD CONSISTS OF TWO PERSONS; (C) $3,130 A MONTH IF THE HOUSEHOLD CONSISTS OF THREE PERSONS; (D) $3,722 A MONTH IF THE HOUSEHOLD CONSISTS OF FOUR PERSONS; (E) $4,414 A MONTH IF THE HOUSEHOLD CONSISTS OF FIVE PERSONS; (F) $5,055 A MONTH IF THE HOUSEHOLD CONSISTS OF SIX PERSONS; (G) $5,697 A MONTH IF THE HOUSEHOLD CONSISTS OF SEVEN PERSONS; (H) $6,339 A MONTH IF THE HOUSEHOLD CONSISTS OF EIGHT PERSONS; (I) $6,339 A MONTH, PLUS AN ADDITIONAL $642 A MONTH FOR EACH EXTRA PERSON ABOVE EIGHT PERSONS WHO IS IN THE HOUSEHOLD IF THE HOUSEHOLD CONSISTS OF NINE PERSONS OR MORE] 200 percent of the federal poverty guideline as defined by the Federal Office of Management and Budget and revised under 42 U.S.C. 9902(2); (14) pregnant women who are not covered under (a) of this section and whose household income does not exceed [(A) $2,489 A MONTH IF THE HOUSEHOLD CONSISTS OF TWO PERSONS; A PREGNANT WOMAN IN A HOUSEHOLD ALONE IS CONSIDERED TO BE A HOUSEHOLD OF TWO PERSONS; (B) $3,130 A MONTH IF THE HOUSEHOLD CONSISTS OF THREE PERSONS; (C) $3,772 A MONTH IF THE HOUSEHOLD CONSISTS OF FOUR PERSONS; (D) $4,414 A MONTH IF THE HOUSEHOLD CONSISTS OF FIVE PERSONS; (E) $5,055 A MONTH IF THE HOUSEHOLD CONSISTS OF SIX PERSONS; (F) $5,697 A MONTH IF THE HOUSEHOLD CONSISTS OF SEVEN PERSONS; (G) $6,339 A MONTH IF THE HOUSEHOLD CONSISTS OF EIGHT PERSONS; (H) $6,339 A MONTH PLUS AN ADDITIONAL $642 A MONTH FOR EACH EXTRA PERSON ABOVE EIGHT PERSONS WHO IS IN THE HOUSE HOLD IF THE HOUSEHOLD CONSISTS OF NINE PERSONS OR MORE;] 200 percent of the federal poverty line as defined by the Federal Office of Management and Budget and revised under 42 U.S.C. 9902(2). CHAIR ROKEBERG objected. REPRESENTATIVE BERKOWITZ specified that Amendment 4 is for Denali Kid Care. He reminded the committee that when Denali Kid Care was changed a couple of years ago, [the legislature] locked in to some numbers rather than a percentage of poverty. As a result, fewer and fewer people are able to take advantage of Denali Kid Care, which was a successful program. The aforementioned was a step the legislature shouldn't have taken. Given the budget surplus today, health care can be provided to a broader group of people, he opined. CHAIR ROKEBERG maintained his objection, and indicated that he didn't believe HB 95 is the appropriate venue for Amendment 4. 9:54:48 AM REPRESENTATIVE HARRIS commented that Amendment 4 would cause HB 95 to have a fiscal note and thus would require a referral to the House Finance Committee. 9:55:20 AM A roll call vote was taken. Representative Berkowitz voted in favor of the adoption of Amendment 4. Representatives Coghill, Kohring, McGuire, Harris, and Rokeberg voted against it. Therefore, Amendment 4 failed by a vote of 1-5. 9:55:45 AM REPRESENTATIVE MCGUIRE moved that the committee adopt Conceptual Amendment 5, which would change the title in order to more accurately reflect the quarantine subject of HB 95. There being no objection, Conceptual Amendment 5 was adopted. 9:56:26 AM REPRESENTATIVE MCGUIRE moved to report CSHB 95(JUD), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 95(RLS) was reported out of the House Rules Standing Committee.
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