Legislature(2011 - 2012)CAPITOL 106

04/14/2011 08:00 AM House STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 94 SECOND VERSE OF ALASKA'S STATE SONG TELECONFERENCED
Moved Out of Committee
*+ HB 149 DRIVER'S LICENSING; MEDICAL CONDITIONS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
         HB 149-DRIVER'S LICENSING; MEDICAL CONDITIONS                                                                      
                                                                                                                                
8:49:40 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN  announced that the  last order of business  was HOUSE                                                               
BILL  NO. 149,  "An  Act  relating to  drivers'  licenses and  to                                                               
immunity for  persons who  report persons who  have a  medical or                                                               
other condition  that may impair  the ability to operate  a motor                                                               
vehicle."                                                                                                                       
                                                                                                                                
8:49:56 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   ANNA  FAIRCLOUGH,   Alaska  State   Legislature,                                                               
presented HB  149 as sponsor.   She  related that a  couple years                                                               
ago there was a vehicle collision,  which left a boy named Connor                                                               
in a  coma for almost  a month.  She  said this happened  along a                                                               
well-traveled corridor in Anchorage.   She said she later learned                                                               
that the boy was permanently injured,  and that he is a friend of                                                               
her son.   Representative Fairclough  said the boy's  sister came                                                               
to her and asked  what could be done to make  the roads safer for                                                               
everyone.   She  told the  committee of  her connection  with the                                                               
family  and  said  this  is  a personal  issue.    She  said  she                                                               
considered naming  the bill,  "Conner's Law,"  but was  told some                                                               
people may not want to bring  the legislation forward with a name                                                               
on it.                                                                                                                          
                                                                                                                                
8:54:06 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE FAIRCLOUGH  said she  looked into  current testing                                                               
practices of  the Division of  Motor Vehicles (DMV) and  was told                                                               
by  the director  of the  division that  doctors will  not report                                                               
patients who  should not be  driving, because they can  get sued.                                                               
The proposed  legislation would require  a person applying  for a                                                               
driver's  license to  disclose  if he/she  has  a condition  that                                                               
would impair his/her  ability to drive.  It could  be a temporary                                                               
condition,  such  as a  person  with  seizures  who needs  to  be                                                               
seizure-free  for six  months before  driving.   One goal  of the                                                               
bill would be to have  the DMV issue restricted driver's licenses                                                               
to  those  people with  impairments.    The proposed  legislation                                                               
would provide  immunity to physicians  and other persons  who, in                                                               
good faith, report licensees diagnosed  with a condition that may                                                               
impair   his/her  ability   to  drive,   and  it   would  provide                                                               
confidentiality for  reporting and  is "exempt  from disclosure."                                                               
Furthermore, physicians or  persons who make a  good faith report                                                               
would  not be  liable  for civil  damages.   The  bill would  not                                                               
require  reporting [by  the physicians]  but it  would be  in the                                                               
best interest of public safety if they do report.                                                                               
                                                                                                                                
REPRESENTATIVE  FAIRCLOUGH said  the  two main  issues that  need                                                               
consideration by  the committee are whether  physicians should be                                                               
allowed immunity  and whether  people need  to be  responsible to                                                               
their  fellow drivers  by disclosing  any  impairment that  would                                                               
restrict their ability to drive.   She spoke about the difficulty                                                               
of  family members  in working  to have  another family  member's                                                               
driver's  license  taken  away  and the  advantage  of  having  a                                                               
physician determine  if the  family has a  valid concern  or not.                                                               
She  said  the  proposed  legislation would  include  an  appeals                                                               
process.                                                                                                                        
                                                                                                                                
8:58:33 AM                                                                                                                    
                                                                                                                                
CHAIR  LYNN   ventured  that  the  proposed   legislation  is  an                                                               
extension of the  already existing requirement of  those who need                                                               
glasses to  wear glasses  while driving as  a condition  of their                                                               
being issued a driver's license.                                                                                                
                                                                                                                                
8:58:50 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PETERSEN  observed that under HB  149, [Section 1,                                                               
subsection  (b)],  the physician  "may  report".   He  asked  for                                                               
confirmation  that  the  physician   would  have  the  option  to                                                               
disclose.                                                                                                                       
                                                                                                                                
REPRESENTATIVE FAIRCLOUGH  confirmed that is correct.   She added                                                               
that  the physician  would  only be  held  accountable if  he/she                                                               
recklessly fails to make a disclosure.   In response to a follow-                                                               
up  question, she  said  she contacted  three  medical groups  in                                                               
Alaska  and has  done outreach.    She said  there were  concerns                                                               
related to  the Health  Insurance Portability  and Accountability                                                               
Act (HIPAA) and whether doctors  would be protected.  She stated,                                                               
"I  believe I've  accurately reflected  any  comments that  we've                                                               
received."                                                                                                                      
                                                                                                                                
9:00:52 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  asked  if  physicians  were  specifically                                                               
asked about the possibility of a Class A misdemeanor.                                                                           
                                                                                                                                
REPRESENTATIVE  FAIRCLOUGH  answered  that  the  physicians  were                                                               
given  the bill,  and she  offered her  understanding that  there                                                               
were no formal comments received from anyone.                                                                                   
                                                                                                                                
9:02:52 AM                                                                                                                    
                                                                                                                                
WHITNEY  BREWSTER, Director,  Division of  Motor Vehicles  (DMV),                                                               
Department  of  Administration,  in  response  to  Representative                                                               
Seaton, said  the division is  receiving an increasing  number of                                                               
requests  from the  public  and law  enforcement  to reexamine  a                                                               
licensed driver.   She said  unfortunately the  division receives                                                               
few such  requests from medical  professionals, even  though they                                                               
are often  the first to know  if there is a  condition that would                                                               
potentially  make  someone  an  unsafe  driver.    She  said  the                                                               
division has  heard that physicians  are reluctant to  issue such                                                               
requests, because  "there is no  statute affording  them immunity                                                               
from civil or criminal action."                                                                                                 
                                                                                                                                
MS. BREWSTER said  the division needs to know the  following:  if                                                               
an  individual has  a condition  that  is uncontrollable,  either                                                               
through  medication, therapy,  surgery,  or use  of a  particular                                                               
driver  device or  technique; if  the  individual's condition  is                                                               
controllable,  but   he/she  is  refusing  to   follow  the  care                                                               
[instructions] issued  by the health  care professionals;  and if                                                               
the  extent   of  the  impairment  is   unknown  but  potentially                                                               
significant.   She clarified that  the division does not  want to                                                               
know   everyone's  condition,   just  the   ones  that   have  an                                                               
uncontrollable condition or a controllable  condition that is not                                                               
being controlled.                                                                                                               
                                                                                                                                
MS. BREWSTER  relayed that  if the DMV  receives notice  from the                                                               
medical community that  a driver is not fit, it  would cancel the                                                               
individual's  driver's license.   That  individual could  contest                                                               
that decision.   She  said the DMV  mainly receives  notices from                                                               
law enforcement  that the individual may  be unfit to drive.   In                                                               
those  cases, the  DMV sends  the individual  notice that  he/she                                                               
must come  in to the  DMV for  examination.  The  individual must                                                               
come in within  30 days of that notification.   If the individual                                                               
does not  comply, then the  DMV would  send a second  notice that                                                               
[that individual's license] will be  cancelled within 15 days and                                                               
that he/she has  the option to request  an administrative hearing                                                               
to contest that decision.                                                                                                       
                                                                                                                                
9:06:10 AM                                                                                                                    
                                                                                                                                
MS.  BREWSTER  said  the  number of  cancellations  done  by  the                                                               
division  per year,  averaged over  the last  six years,  is 211.                                                               
She said the trend is going  down, although there are a number of                                                               
individuals are aging  and/or medicated and should not  be on the                                                               
road.   She said  the division  hopes that HB  149 will  make the                                                               
medical   community  feel   more  comfortable   reporting,  since                                                               
currently only 10 percent of  the recommendations received by the                                                               
division are  from the medical  community.  She pointed  out that                                                               
the notices from  law enforcement are most likely  to occur after                                                               
an accident has occurred, and  the division would like to prevent                                                               
those accidents.                                                                                                                
                                                                                                                                
9:07:37 AM                                                                                                                    
                                                                                                                                
MS. BREWSTER, in  response to the chair, ventured  that a patient                                                               
would not hesitate seeing his/her  doctor for fear of finding out                                                               
he/she  has a  driving impairment,  but she  suggested that  that                                                               
question  might  better  be  directed to  those  in  the  medical                                                               
community.                                                                                                                      
                                                                                                                                
9:08:32 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  FAIRCLOUGH  said  she  thinks  that  is  a  valid                                                               
question, but  thinks that people will  go to the doctor  when in                                                               
need.   She talked about the  dangers of putting a  motor vehicle                                                               
in  the   hands  of  someone   who  is  in  danger   of  becoming                                                               
unconscious.   She  said the  bill would  create a  mechanism for                                                               
doctors to give important information to the DMV.                                                                               
                                                                                                                                
9:10:56 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON said  he supports the concept  of the bill,                                                               
but  is looking  for unintended  consequences.   He asked  if the                                                               
division has the same capabilities to  respond to a report from a                                                               
member of the public as it does to report from law enforcement.                                                                 
                                                                                                                                
9:11:53 AM                                                                                                                    
                                                                                                                                
MS. BREWSTER  confirmed that the  DMV has  the ability to  take a                                                               
report from  the public.   In that  situation, she said,  the DMV                                                               
would let  the customer  know that he/she  has been  requested to                                                               
come  in  for  reexamination  within  the  next  30  days.    She                                                               
reiterated  the information  regarding appeals.   In  response to                                                               
the chair,  she said the  DMV does not take  anonymous reporting;                                                               
however,  further research  is done  when  reporting is  received                                                               
from the  public than when  it is received from  law enforcement.                                                               
Furthermore,  during   an  administrative  hearing,   the  person                                                               
accused has the ability to cross examine the accuser.                                                                           
                                                                                                                                
9:15:52 AM                                                                                                                    
                                                                                                                                
MS.  BREWSTER,  in  response  to  questions  from  Representative                                                               
Seaton, said  when the DMV  revokes a person's  driver's license,                                                               
the division asks that person  to surrender the license; however,                                                               
it is  possible that a  person could  claim the license  was lost                                                               
and  use it  only  for identification  purposes,  for example  to                                                               
board  an  airplane, although  the  DMV  discourages people  from                                                               
doing that.                                                                                                                     
                                                                                                                                
9:20:04 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE FAIRCLOUGH  asked Ms. Brewster to  confirm whether                                                               
the division would  be able to issue state  identification to all                                                               
those whose driver's licenses are revoked.                                                                                      
                                                                                                                                
MS. BREWSTER answered yes, but  explained that under statute, the                                                               
cost  to each  person would  be $15  for a  state ID.   She  said                                                               
statute would  have to be  changed in order  to allow the  DMV to                                                               
waive that fee.   She noted that individuals 60  years of age and                                                               
over are eligible to receive a state ID card at no charge.                                                                      
                                                                                                                                
9:22:42 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG,  regarding the medical  community, said                                                               
he sees  in Title VIII  at least  20 occupations that  could come                                                               
into  play   under  HB   149,  including   pharmacists,  physical                                                               
therapists, and  nurses.   He recommended  that the  bill sponsor                                                               
look at Title  VIII.  He suggested there may  be issues regarding                                                               
licensing and  ethics.  He said  another issue is related  to the                                                               
language in  Section 1, subsection  (d), on page 2,  lines 10-11,                                                               
which read:                                                                                                                     
                                                                                                                                
          (d) Reports received under this section are                                                                           
        confidential and exempt from disclosure under AS                                                                        
     40.25.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  said  this only  covers  the  reports,                                                               
which could be construed by a court  of law to mean that only the                                                               
report  itself  is  confidential, not  the  information  therein;                                                               
therefore, the  person who made  the report could  be subpoenaed.                                                               
Further, there  may be  question as to  whether the  testimony is                                                               
admissible in  court, even if  the report  is not.   He mentioned                                                               
evidentiary  privilege.     Representative   Gruenberg  expressed                                                               
concern  about making  doctors and  other [medical]  professional                                                               
subject to  going to jail.   He said a Class  A Misdemeanor could                                                               
mean up  to year  in prison for  a doctor.   He said  he realizes                                                               
that there is a standard  of recklessness involved, but said this                                                               
issue could cause concern and  opposition.  He remarked that most                                                               
doctors run  their own  business and may  have information  as to                                                               
what would be imputable.                                                                                                        
                                                                                                                                
9:26:57 AM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 9:27 a.m. to 9:29 a.m.                                                                       
                                                                                                                                
9:29:20 AM                                                                                                                    
                                                                                                                                
ERLING  JOHANSEN,  Assistant  Attorney  General,  Labor  &  State                                                               
Affairs Section,  Civil Division (Anchorage), Department  of Law,                                                               
regarding  Representative  Gruenberg's  comment  on  Title  VIII,                                                               
cited language on page 1, lines 6-7, which read as follows:                                                                     
                                                                                                                                
                    (c) A licensee making a good faith                                                                          
     report  to the  Department of  Administration under  AS                                                                    
     28.15.156  is  not  subject to  discipline  under  this                                                                    
     chapter for that report.                                                                                                   
                                                                                                                                
MR. JOHANSEN said  the concept is there, but he  does not know if                                                               
it  is  as broad  as  the  number of  professions  Representative                                                               
Gruenberg referenced.                                                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG, in  response  to a  question from  the                                                               
sponsor,  said the  definition of  "physicians"  does not  [cover                                                               
numerous occupations]; it is specifically defined in AS 08.64.                                                                  
                                                                                                                                
REPRESENTATIVE  FAIRCLOUGH  clarified  that the  intent  of  this                                                               
legislation is to  have "a high bar" - to  name physicians as the                                                               
ones who decide whether or  not a person could become unconscious                                                               
while driving a vehicle.                                                                                                        
                                                                                                                                
CHAIR LYNN asked,  "... If a physician determined  a person might                                                               
become  unconscious because  of their  condition, and  they don't                                                               
report to DMV, ... do they have any liability?"                                                                                 
                                                                                                                                
REPRESENTATIVE  FAIRCLOUGH  answered,   "No,  the  physician  may                                                               
[emphasis on 'may'] report."                                                                                                    
                                                                                                                                
9:32:33 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  offered  his  understanding  that  the                                                               
immunity seems  to cover a  person who  reports; it does  not say                                                               
whether he/she may be liable for  the failure to report.  He said                                                               
someone who has an epileptic seizure  or has an attack related to                                                               
hypoglycemia may  cause an accident.   Furthermore, a  person who                                                               
has to  wear corrective  lenses because  he/she is  legally blind                                                               
could cause  just as great  an accident  if he/she does  not wear                                                               
the   lenses.     He  recommended   that  the   sponsor  consider                                                               
hypothetical situations "where other  people would similarly come                                                               
into  vital information  in  the (indisc.  -  coughing) of  their                                                               
profession."  He said the issue  is to get reporting.  He offered                                                               
an example  where someone  with a  reportable condition  has just                                                               
moved to  Alaska and has not  yet seen a physician,  but has been                                                               
to a pharmacist.  He opined  that as first committee of referral,                                                               
the committee members should be aware of ramifications.                                                                         
                                                                                                                                
9:35:36 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE P.  WILSON said  she thinks the  bill is  good and                                                               
needed, but needs further consideration.   She related a personal                                                               
story of her  mother with glaucoma getting into  an accident, and                                                               
said  she  thinks  her  mother's  eye  doctor  should  have  been                                                               
required  to report  her to  the DMV.   Representative  P. Wilson                                                               
pointed out  that she always  drove when she visited  her mother;                                                               
therefore, she was unaware of  how bad her mother's condition had                                                               
become.                                                                                                                         
                                                                                                                                
9:38:52 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER  thanked the sponsor for  bringing the bill                                                               
forward; however,  he said the  proposed legislation  reminds him                                                               
of 1984, by George Orwell.   He mentioned HIPAA, said his concern                                                             
is regarding patient/doctor privilege,  and related that he wants                                                               
to hear  from the medical community.   He said unless  the DMV is                                                               
given  the discretion  in each  case to  make decisions  that are                                                               
between  the  doctor  and  the  patient, he  finds  the  idea  of                                                               
reexaminations conducted by the DMV problematic.                                                                                
                                                                                                                                
9:40:37 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  FAIRCLOUGH  relayed  that  the  American  Medical                                                               
Association (AMA) is  moving in this direction as  it reviews its                                                               
ethics rules.   She  indicated that because  there are  people of                                                               
all  ages  that put  others  in  jeopardy  while driving,  it  is                                                               
necessary to have  a medical professional involved.   In response                                                               
to Representative  Keller, she  said there  are large  volumes of                                                               
books  containing  specific  diagnoses  that could  be  put  into                                                               
statute, but she does not  believe that those diagnoses belong in                                                               
statute.   She acknowledged  that it is  difficult to  talk about                                                               
taking  away  anyone's  ability  to   drive,  and  she  said  she                                                               
understands  that this  bill could  significantly alter  people's                                                               
lives.   She  said there  needs  to be  a mechanism  in place  to                                                               
protect the public.                                                                                                             
                                                                                                                                
REPRESENTATIVE KELLER said he can  see the problem, but questions                                                               
whether  encouraging  physician  reporting  is the  best  way  to                                                               
address it.   He opined  that there  are many other  options, and                                                               
the best  option may  involve legislation.   He  said there  is a                                                               
penalty for driving recklessly.   He reiterated his concern about                                                               
the patient/doctor  privilege and  making the  DMV the  entity to                                                               
make the final determination.                                                                                                   
                                                                                                                                
9:45:55 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  said it  seems that  the responsibility                                                               
should lie with the driver.                                                                                                     
                                                                                                                                
REPRESENTATIVE FAIRCLOUGH  responded that that  specification has                                                               
been made on page 1, [lines 11-14, which read as follows]:                                                                      
                                                                                                                                
     (a) A person  licensed or applying for  a license under                                                                    
     this  chapter shall  disclose if  the  person has  been                                                                    
     diagnosed as having a  disorder characterized by lapses                                                                    
     of  consciousness  or  any  other  condition  that  may                                                                    
     impair a person's ability to operate a motor vehicle.                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG said he thinks  that is a good idea, but                                                               
said he does not want  to criminalize the whole state; therefore,                                                               
he  recommended public  outreach  and education.   He  questioned                                                               
whether  someone  who  drives with  a  condition,  "without  this                                                               
appropriate safeguard," would be violating the law.                                                                             
                                                                                                                                
REPRESENTATIVE P.  WILSON indicated that creating  law to address                                                               
this issue  needs to  be done  with great care.   She  noted that                                                               
Pennsylvania   and  Oregon   have  laws   in  place   related  to                                                               
disclosures to the DMV.                                                                                                         
                                                                                                                                
9:48:57 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN  told the bill  sponsor that he  would try to  hear HB
149 again at the beginning of next session in January, 2012.                                                                    
                                                                                                                                
[HB 149 was held over.]                                                                                                         

Document Name Date/Time Subjects
01 HB0149A.PDF HSTA 4/14/2011 8:00:00 AM
HB 149
02 HB 149 Sponsor Statement.pdf HSTA 4/14/2011 8:00:00 AM
HB 149
03 HB 149 Sectional Analysis.pdf HSTA 4/14/2011 8:00:00 AM
HB 149
04 HB149-DOA-DMV-04-13-11 (2).pdf HSTA 4/14/2011 8:00:00 AM
HB 149
05 Support Letter HB 149 APOA 3-9-2011.pdf HSTA 4/14/2011 8:00:00 AM
HB 149
06 Legal Memo HB 149 Luckhaupt 4-11-2011.pdf HSTA 4/14/2011 8:00:00 AM
HB 149
01 SB 94.pdf HSTA 4/14/2011 8:00:00 AM
SB 94
02 SB 94 Sponsor Statement.pdf HSTA 4/14/2011 8:00:00 AM
SB 94
03 SB 94 Background Material Newpaper letter from Fran Ulmer.pdf HSTA 4/14/2011 8:00:00 AM
SB 94
04 SB 94 Fiscal Note.PDF HSTA 4/14/2011 8:00:00 AM
SB 94