Legislature(2003 - 2004)
01/28/2004 01:35 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ANNOUNCEMENTS
During the above question-and-answer session of DEED's
presentation on Alaska's assessment system, CHAIR DYSON informed
members that due to time constraints, the committee would hear
testimony from medical professionals pertaining to HB 260. Then
the committee would take up HB 260, followed by SB 217. [The
committee heard testimony from the following two medical
professionals.]
MS. PATRICIA SENNER, advanced nurse practitioner, and chair of
the legislative committee for the Alaska Nurses Association
(ANA), testified via teleconference in support of HB 260. ANA's
interest in the bill stems from efforts over the past two years
to set up a network of nurses willing to volunteer in the event
of an emergency. The issue of liability coverage for volunteers
repeatedly arises during these planning efforts. She testified
as follows:
Our primary concern with HB 260 concerns the wording
the section 09.65.290(3) where the immunity for
providing free health care services applies to
services provided in a "medical clinic, medical
facility, non-profit facility or facility owned by a
municipality, the state or the US government. This
attaches the exemption from civil damages to a
physical location.
Our concern is that in an event of an emergency,
services might be provided in a physical location
other than defined above. A good example occurred
this last summer when the wildfires hit Southern
California. There the Red Cross set up emergency
shelters in a warehouse. The actual facility may have
been owned by a private for-profit entity, but the
services were provided by the non-profit Red Cross.
Because we know that lawyers are great getting very
literal in their interpretation of statute wording, we
would prefer that the term "temporary emergency
facility" be added to the list of places where the
exempt health care is provided.
We also wish to state that the Alaska Nurses
Association is in favor of the Section 09.65.290(5)A
requiring informed consent from individuals receiving
free health care services. This should be easily
implemented in all but the most extreme emergencies.
CHAIR DYSON asked if Alaska's "Good Samaritan" law protects
voluntary rendering of assistance in emergencies.
MS. SENNER responded that there is a section that deals with a
person or hospital rendering emergency care or emergency
counseling. This section would be fine in a severe disaster
because the person rendering aid determines that the person
needs aid to avoid serious harm or death. A lot of the services
offered in Red Cross shelters are for people who have chronic
health care situations who are not in serious immediate danger
or harm. With chronic illnesses such as diabetes, access to
normal healthcare supplies have been displaced; that's a
different type of service.
DR. MICHAEL NORMAN, physician in Anchorage representing Alaska
Physicians and Surgeons, testified that he is a 59-year old
anesthesiologist who has lived in Alaska for 24 years and hopes
to stay in Alaska and to provide community services after
retirement. There is an untapped resource in Alaska of retired
physicians capable of rendering service but who cannot afford
medical malpractice insurance. This legislation would free up
many healthcare providers, allowing for a win-win situation for
both healthcare providers and patients.
CSHB 260(JUD)-IMMUNITY FOR PROVIDING FREE HEALTH CARE
REPRESENTATIVE PAUL SEATON, sponsor of HB 260, explained that
this measure is an attempt to encourage health care workers and
providers of volunteer services to Alaskan residents who would
otherwise be unable to afford proper health care. HB 260
encourages volunteerism by providing immunity from liability for
civil damages, "resulting from an act or omission in providing
health care services," that are provided free of charge.
REPRESENTATIVE SEATON said CSHB 260(JUD) does not provide
immunity from civil damages resulting from gross negligence,
recklessness, or intentional misconduct. Consumers would be
protected by the requirement that providers must still act
within the scope of their current licenses, must provide
services at an appropriate facility, and must provide advance
written notice of immunity and obtain written consent. CSHB
260(JUD) is consistent with the Volunteer Protection Act that
passed Congress in 1997. Forty-three other states have adopted
similar legislation. This bill has the support of Alaska
Physicians [Association], Covenant House, Alaska Nurses
Association, AARP, the Naturopathic Physicians, the Alaska State
Hospital and Nursing Home Association, and many others.
REPRESENTATIVE SEATON added that all providers under this act
must be licensed by the Division of Occupational Licensing.
Those providers are regulated by boards, except dental
hygienists and naturopaths; dental hygienists are regulated by
the Board of Dental Examiners and naturopaths must have four
years of college and pass the national naturopath licensing
examination. He noted that nurse midwives are covered as
advanced nurse practitioners and are regulated by the Board of
Nursing. He offered to answer questions.
CHAIR DYSON asked Representative Seaton to respond to Ms.
Senner's question about adding "temporary emergency facility" to
AS 09.65.290 (page 2, section 3).
REPRESENTATIVE SEATON said he thought that was covered under AS
09.65.090(a), but it might need further clarification.
Subsection (a) provides immunity to a person at a hospital or at
any other location who renders emergency care or emergency
counsel to an injured, ill or emotionally distraught person. He
said he is agreeable to further clarification if the committee
wishes to do that.
CHAIR DYSON asked Representative Seaton if the section he quoted
was the "Good Samaritan stuff."
REPRESENTATIVE SEATON said it is.
CHAIR DYSON noted Ms. Senner's point was that the Good Samaritan
provision applies to a person who might stop to help a victim
alongside the road, not necessarily a temporary facility set up
at the scene of an emergency.
REPRESENTATIVE SEATON said he did not intend to exclude such
facilities.
CHAIR DYSON asked that he and staff consider additional
clarifying language.
SENATOR GUESS suggested using the phrase, "temporary medical
facility."
2:38 p.m.
SENATOR GREEN asked if this act would bring Alaska under the
Volunteer Protection Act as passed by Congress and questioned
why the state must do anything.
REPRESENTATIVE SEATON explained that CSHB 260(JUD) is consistent
with the provisions of the Volunteer Protection Act. However,
civil liability suits can be in state as well as federal courts.
That is why 43 other states have adopted similar legislation.
SENATOR GREEN asked if the federal act is cited in HB 260.
REPRESENTATIVE SEATON said it is not.
SENATOR GREEN noted that the federal act is actually quite
different.
SENATOR GUESS said she appreciates Representative Seaton's
intent but pointed out the bigger issue is that CSHB 260(JUD)
limits a person's rights so that providers can offer health
care. She referred to the findings on page 2, lines 4 through
10, and asked whether any proof exists that increased access to
free health care has caused these problems in other states.
MR. CAMERON YOURKOWSKI, staff to Representative Seaton, said he
does not have data on the effect of similar bills in other
states. Medical professionals have told him that some providers
are waiting to utilize this bill and volunteer their services.
SENATOR GUESS asked what a provider would continue to be liable
for and whether medical incompetence would be included in the
exemption.
REPRESENTATIVE SEATON said the provider must be operating within
the scope of his or her current license. He indicated that the
definition of "gross negligence" is in statute and where it is
not defined, the court determines the definition on a case-by-
case basis. He stated:
The whole thrust of this is to take it out of an act
of omission or simple negligence because gross
negligence - I mean somebody can always sue and if the
court determines it's gross negligence, the person is
liable. The reason it was put in on the House side -
we added the language about informed consent - was
that we have it so that anybody that comes into a
clinic or any other place and receives free medical
services must sign that they understand that they are
... receiving this from a health care professional who
will not be liable for not doing enough tests, ... and
those kinds of things, which are the normal kind of
suits that are experienced.
SENATOR GUESS responded, "I'll let Judiciary handle this but
there is still some liability in this for people who are just
incompetent."
REPRESENTATIVE SEATON agreed and said nothing in CSHB 260(JUD)
exempts the facility itself. Therefore, a clinic that offers
services has oversight responsibility for any patients served
there and would be liable.
SENATOR GUESS referred to the language on page 2, line 29, and
asked if a standard definition exists of "advance written
notice." She expressed concern about language barriers and
illiteracy.
MR. YOURKOWSKI replied that the standards for advance written
notice are in statute.
SENATOR GREEN asked if advance written notice could be a placard
on the counter.
MR. YOURKOWSKI said, basically, the patient must sign an
acknowledgement provided by the physician or nurse.
SENATOR GUESS asked for a copy of one. She then asked how this
might apply to a person who has health insurance or the means to
pay even though the health provider is not being paid. She
agreed this might sound odd but said in some communities the
local clinic might be the closest place to get care.
REPRESENTATIVE SEATON said this bill does not address the issue
of needs-based services; it simply addresses liability for the
health care provider. He presumed that a clinic would look at
the financial means of the people it serves.
SENATOR GUESS said her district has a variety of clinics, some
are free and some are not. Having clients with insurance
coverage sometimes helps a facility to provide services to
others who do not. She clarified that she was speaking to a
situation in which a person went to a clinic and showed proof of
insurance and did not ask for free services. However, after
feeling wronged by the provider, that person lost in court
because the doctor volunteered his or her services and was
exempted.
REPRESENTATIVE SEATON said he believes that situation would be
covered by the fact that the client must receive and sign a
written notice before receiving services.
SENATOR GREEN asked if any other professions are exempt from
liability if its members provide free services.
REPRESENTATIVE SEATON replied that several immunity bills have
passed the Legislature, one provided immunity from certain
liabilities for pilots who transport people for no pay. He said
most professions, such as plumbers, do not offer volunteer
services.
SENATOR GUESS referred to the language on page 3, line 4, and
expressed concern that the following language is ambiguous:
This section does not preclude a health care provider
from receiving payment or being reimbursed for
expenses, including travel and room and board while
providing voluntary services;
She questioned whether that language is tight enough to be
defined as a volunteer service.
REPRESENTATIVE SEATON told members the legislative drafter
believes it is. The intent of that language is to provide
immunity to health care providers who travel to villages to
offer free services but are reimbursed for travel expenses.
SENATOR GUESS shared Senator Green's concern and asked
Representative Seaton to consider specifying in a future draft
that the payment be for travel, room and board only.
SENATOR GREEN felt the language was too broad because most
people traveling to a village would be providing services at a
government run or Native corporation health care facility.
2:47 p.m.
CHAIR DYSON took public testimony.
MS. KARA NYQUIST, Director of Advocacy at Covenant House Alaska
and a licensed attorney in Alaska, told members she provides pro
bono services for youth at the Covenant House and is the
legislative chair for the Alaska Association of Homes for
Children (AAHC). She explained that the Association is made up
of 20 different service providers throughout the state.
Collectively, those providers offer a continuum of care for
homeless and at-risk youth and children and youth in need of
mental health services. She stated support for CSHB 260(JUD) and
noted that Covenant House and several other agencies are already
providing free health care to homeless youth, who are obviously
low-income as well. Covenant House employs a full-time nurse
practitioner and has received requests from others who would
like to volunteer. They have been prevented from volunteering
because of their concerns about medical malpractice. For
example, last year a military doctor wanted to provide services
at Covenant House but her malpractice insurance did not cover
civilian care.
MS. NYQUIST said the Covenant House provides services 24 hours
per day to homeless youth at its crisis center. It also provides
health care on a walk-in basis to youth and has two transitional
living programs at which it provides free health care to youth
in transitional living. She hopes this bill will encourage more
people to volunteer. The bill also covers chiropractic care,
ophthalmologists, dental assistants and dentists. CSHB 260(JUD)
is necessary because it will help protect the health, safety and
welfare of Covenant House clients and other citizens. Its
clients are often in need of immediate medical care and are
unlikely to make appointments at clinics. Many clients have
communicable diseases and STDs. Covenant House is able to
provide services to those clients to minimize risk to others.
MS. NYQUIST told members that Covenant House has been
experiencing an increase in the request for services at its free
clinic. Several family practitioners in Anchorage do not accept
Medicare or Medicaid patients so, although some of Covenant
House's clients do have coverage, they have difficulty finding
practitioners who will provide services. The clinics that
provide services on a drop-in basis are often full with middle
class citizens. Volunteer providers will help Covenant House
offer more service to those in need.
MS. NYQUIST told members that as an attorney, she feels
comfortable with the language in the bill. Citizens are
frequently asked to waive their rights for free services and
those waivers of immunity are often much more inclusive than the
waiver requested in the bill. Waivers for other services often
include immunity from gross negligence or intentional
misconduct. This bill does not request such broad limitation of
liability.
MR. CHIP WAGONER, also representing the Alaska Association of
Homes for Children, told members the AAHC endorsed this
legislation at its spring meeting. He said he is also
representing the Alaska Catholic Conference, which met last week
and also supports CSHB 260(JUD).
SENATOR GUESS asked if providers of free mental health services
are also immune from liability.
REPRESENTATIVE SEATON affirmed that they are. He clarified that
the federal legislation defines "volunteer" as:
an individual performing services for a non-profit
organization or a governmental entity who does not
receive a compensation other than reasonable
reimbursement or allowance for expenses actually
incurred.
SENATOR GUESS questioned whether that is referenced in CSHB
260(JUD).
SENATOR GREEN noted that she would look into that question.
CHAIR DYSON noted that psychiatrists are licensed doctors so
they would be covered under the words "licensed physician" in
the definition in the bill.
CHAIR DYSON proposed the following housekeeping amendment
[Amendment 1]:
On page 1, line 7, delete 2003 and replace with 2004
On page 3, line 20, delete July 1, 2003 and insert
"immediately under AS 01.10.070(c)"
He noted that without objection, Amendment 1 was adopted.
CHAIR DYSON then moved Amendment 2:
On page 2, line 20, after "nonprofit facility," insert the
words "temporary emergency site"
REPRESENTATIVE SEATON said he was agreeable to that change.
CHAIR DYSON asked if anyone objected.
SENATOR GUESS asked Chair Dyson if he was confident that "emergency"
is defined in statute.
SENATOR GREEN believed that to be a problem because, "It'd always be
an emergency."
SENATOR GUESS asked Representative Seaton to be prepared to address
that question in the Senate Judiciary Committee.
CHAIR DYSON asked Senators Guess and Green if either had language
they would prefer to insert on page 3, line 4.
Neither did.
CHAIR DYSON asked if they preferred to hold the bill in committee or
if they would agree to allow the Senate Judiciary Committee to
address it.
SENATOR GREEN said she did not object to moving it out but believes
that language needs to be discussed.
REPRESENTATIVE SEATON said he would ask the legal drafter to address
that question.
CHAIR DYSON noted that without further objection to Amendment 2, it
was adopted.
SENATOR WILKEN moved to report SCS CSHB 260(HES) from committee with
individual recommendations.
CHAIR DYSON announced that without objection, the motion carried.
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