Legislature(2007 - 2008)
03/03/2008 02:40 PM Senate HES
| Audio | Topic |
|---|---|
| Start | |
| SB267 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 267-DOCUMENT PRENATAL ALCOHOL EXPOSURE
CHAIR DAVIS announced consideration of SB 267.
2:41:31 PM
SENATOR THOMAS moved to adopt the committee substitute (CS) to
SB 267, labeled 25-LS1471\C, as the working document. There
being no objection, version \C was before the committee.
2:42:47 PM
RIC IANNALINO, Coordinator, Juneau FASD Diagnostic Clinic,
Tribal Family Youth Services, Central Council of the Tlingit &
Haida Indian Tribes of Alaska, said this bill would not be
necessary if medical providers were reporting prenatal alcohol
exposure routinely, as was indicated by some of the testimony.
He pointed out that it was not illegal for women to drink during
pregnancy, and children exposed to alcohol during pregnancy
could not be diagnosed for several years after birth. With
respect to mandatory reporting of suspected alcohol abuse
affecting a child, as required by Title 47 Child Protection
statute, it was his contention that the practice was a reactive
one and counter to the intent of the current legislation. SB 267
would provide a non-punitive, proactive means for mothers to
self-report their prenatal alcohol use.
MR. IANNALINO said that as coordinator of the Juneau FASD
Diagnostic Clinic, one of 13 in the state, his experience was
that some mothers died, some lost their children or lost custody
of their children. Their families often could not confirm the
mother's alcohol use during the nine months of her pregnancy; as
a result, it was impossible to obtain a diagnosis of FASD.
Children were often diagnosed as early as two years old, but
that was too late to get them into infant learning for testing
and remediation. FASD must be identified much earlier than that
in order to mitigate some of the behaviors and cognitive
deficits [that could result].
SENATOR COWDERY asked for confirmation that this bill would
limit the use of this information to medical diagnosis and
treatment. He also wondered whether the question of insurance
company access to this information had been resolved.
MR. IANNALINO could not speak to the issues raised by Senator
Cowdery.
2:46:53 PM
JAN RUTHERDALE, Senior Assistant Attorney General, Civil
Division, Child Protective Section, Department of Law, said she
had followed up on the insurance issue after the previous
hearing on this bill and was told it would not effect coverage.
SENATOR ELTON asked Ms. Rutherdale, in the language "providing
medical diagnosis, treatment, or care of the infant,"
whether the adjective "medical" applied also to treatment and
care, or if it applied only to diagnosis.
MS. RUTHERDALE affirmed that, according to drafting rules, the
adjective "medical" applied to everything.
CHAIR DAVIS asked if Ms. Rutherdale would like to testify.
MS. RUTHERDALE replied that she signed up only to answer
questions and that she had proposed the CS to address some of
her concerns about the bill. She feared a mother might be able
to prevent a physician from recording FASD related information
and observations not provided by her, such as physical
characteristics of the child. She was still not sure the bill
would accomplish what it set out to.
SENATOR THOMAS commented that some of them felt this type of
reporting should be done without a legal mandate, and he was
also concerned about the confidentiality of the information. If
confidentiality would not be compromised, he wondered whether
the new language eliminated the need for maternal consent.
2:50:58 PM
MS. RUTHERDALE explained that the language in this committee
substitute would allow a physician to record information in the
child's file without the mother's permission; but her statements
could not be released to an FASD clinic for example, without
either her consent or a court order. If an adult child requested
a copy of his or her medical records, any statements recorded
without maternal consent would have to be excised.
CHAIR DAVIS asked the representative from Legislative Legal
Services whether they would still have to obtain the mother's
permission in order to release the information.
2:54:49 PM
ALPHEUS BULLARD, Legislative Legal and Research Services
Division, said there was a presumption that whenever a mother
shared information with a medical provider, she had the
expectation of confidentiality. If that information were
recorded in the infant's medical file, anyone who reviewed the
infant's file would have access to the information that the
mother shared, and the expectation of confidentiality would be
defeated. So if the mother shared information that was recorded
outside her own medical file, in a sense it was already released
and she should be informed that the information could be shared
with people other than her medical provider(s).
MS. RUTHERDALE testified that the "Child In Need of Aid" rules
contained no client/therapist privilege so, although alcohol
records for example, are very confidential, a court could waive
[the confidentiality]. She maintained that the courts and the
legislature should balance the privacy rights of the mother
against the rights of the child and should favor those of child
in this case.
SENATOR THOMAS questioned the language on line 10 [ through 12],
"Information described in this section that was obtained from
statements of the mother made during the postnatal examination
that is confidential medical information of the mother...." and
asked if observations made by the doctor without confirmation or
comment by the mother would not be considered confidential.
MS. RUTHERDALE responded, "Absolutely." She said she had spoken
to two doctors about the bill and they told her that they would
record the information even without the mother's consent; they
would simply note that she objected to it. She felt it would be
wrong to pass a bill that, because of the doctors' ethical
standards, they would not follow.
2:59:09 PM
SENATOR ELTON said that other attorneys have "weighed in" on the
topic, and one suggested that the language on page 2, beginning
on line 2 "(b) Except as provided in AS 47.17.024, information
received under section may not be used except for the purposes
of providing medical diagnosis, treatment, or care of the
infant" limited the evidence which could be used in a court
proceeding and therefore might need a 2/3 majority vote in the
legislature. He asked Ms. Rutherdale to comment on that.
MS. RUTHERDALE admitted she had not really thought that through,
but it seemed like it could. She reiterated that, in children's
cases, parents don't enjoy the patient/therapist privilege that
they would under normal evidence rules, but she was not sure
that would be true of this information.
SENATOR THOMAS continued Senator Elton's line of questioning. If
the language of the bill did not specify what the information
could be used for and something else was added, legal
proceedings or something, people might be even more concerned
both about collecting the information and providing it. He asked
if the mother's drinking after the birth of the child could also
create problems through her breast milk or something.
CATHERINE EDWARDS worked with Mr. Iannalino at the tribe but was
testifying as an adoptive parent and the aunt of two children
with FASD. She was able to get her adopted daughter into the
clinic and diagnosed before she was two years old; her niece had
not been diagnosed because her mother refused to disclose that
she drank while she was pregnant. The school was going to force
her to repeat kindergarten and schedule her for behavior
modification classes, but these things would not help. They
could not fix the brain damage that was done.
SENATOR ELTON told Ms. Edwards she did a great job for the first
time testifying before a legislative committee.
SENATOR COWDERY asked what happened if the mother died and the
father got custody; could the father release that information.
3:07:09 PM
MR. IANNALINO replied that a father sometimes assumed custody,
but he might not have been with the mother throughout the
pregnancy and witness to her drinking. More often, it was the
mother's family that was involved. If the mother died and
custody went to the father, they might make a diagnosis based on
his statement that the mother drank, but would note it as
"unknown." If the mother or the mother's family stated that she
drank while pregnant, they would consider it confirmed.
CHAIR DAVIS asked Senator Cowdery whether Mr. Iannalino had
addressed his question or whether he was asking if the father
could authorize release of the mother's information.
SENATOR COWDERY said that was the point he was trying to
determine.
MR. IANNALINO responded that, if the father had legal custody,
he could release or refuse to release that information.
MS. RUTHERDALE interjected this bill was only talking about what
a mother says to her doctor during a confidential relationship;
any parent or guardian could release the child's records, but
not the specific statements made by the mother.
MICHAEL BALDWIN, Clinician, Anchorage Alaska, said he worked for
19 years with children, adults, adolescents and families
affected by alcohol and other drug use. For the past 7 years he
had been more directly involved with those affected with FAS and
FASD. He said that current research indicated 1 in 83 people
were affected by prenatal alcohol exposure; 20 percent of people
evaluated by the diagnostic team had exposure to alcohol during
gestation.
The team was frequently hampered by its inability to pin down
the diagnostic history for a variety of reasons, primarily due
to lack of documentation. With regard to testimony that the
information was already being captured by OCS and elsewhere, he
noted that the diagnostic team did not necessarily have access
to that information.
TRISH SMITH, representing herself, said she came to show support
for the bill.
3:15:54 PM
TIM KELLY, Lobbyist, Alaska State Medical Association, pointed
out a letter in the committee packets from the association
supporting SB 267, but highlighting some concerns. He thanked
the committee for providing him with a copy of the CS and said
he had forwarded it to the attorney for the association and was
awaiting his response.
CHAIR DAVIS said after listening to the testimony, she does not
want this bill to move forward.
SENATOR ELTON offered his help if she decides to work on it over
the Interim.
CHAIR DAVIS explained that this is a mirrored bill from the
House and Representative Doll would be the one who would do
further work. SB 267 was held in committee.
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