Legislature(2007 - 2008)BUTROVICH 205
03/28/2008 01:30 PM Senate HEALTH, EDUCATION & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB245 | |
| Amendment 4 | |
| Senator Dyson Withdrew Amendment 4. | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SB 245 | ||
SB 245-HEALTH CARE: PLAN/COMMISSION/FACILITIES
CHAIR DAVIS announced consideration of SB 245.
1:38:44 PM
SENATOR COWDERY moved to adopt the proposed committee substitute
(CS to SB 245, labeled 25-GS2050\V, as the working document of
the committee. There being no objection, the motion carried.
DON BURRELL, Staff to Senator Davis, Anchorage, AK, explained
that Version \V made only one change; on page 13, lines 8-11
Section 11 was added stating:
the Department of Health and Social Services shall
contract with an entity which has no financial
interest in health care service it conduct a
comprehensive study of the effects of the Certificate
of Need Program (CON) in the state. The Department
shall provide a copy of the study to the Alaska State
Legislature.
This study was also added to the language of the title on page
1, line 4, "providing for a study of the Certificate of Need
Program."
CHAIR DAVIS asked for questions.
SENATOR DYSON asked Chair Davis' leave to defer his questions
until after public testimony.
1:42:02 PM
SCOTT BELL, Board of Directors, [Executive Committee] member,
Greater Fairbanks Community Hospital Foundation, Fairbanks, AK,
opposed SB 245. He felt that CON regulations had been
instrumental in allowing the Fairbanks Memorial Hospital to
develop many of the wide-ranging health care services critical
to their small, isolated town. With the protection of the CON
regs, Fairbanks Memorial Hospital had used the profits from
surgery and imaging services performed at the hospital to fund
necessary but unprofitable services such as long-term care at
Denali Center; mental health care services; an emergency room
open 24 hours a day, 7 days a week; a cancer treatment center; a
newly opened cardiac catheterization lab; a diabetes clinic; and
to recruit independent physicians to practice in the Fairbanks
area. He urged the committee to keep the CON regulations in
place.
SENATOR THOMAS asked Mr. Bell whether he felt a study would not
convince people that the CON should be maintained.
MR. BELL responded that it would depend on who did the study. He
thought that a study would support it; but he worried about
other aspects of bill. He said this bill felt like 2 steps on
the slippery slope toward doing away with the CON, even with the
study involved.
CHAIR DAVIS asked if Mr. Bell had a copy of the new version of
the bill.
MR. BELL answered that the version he had was \A.
CHAIR DAVIS advised that the committee was working from Version
\V; in this particular version the CON study was added.
MR. BELL agreed that was a good addition, but he was concerned
that the result of the study would not be taken in to account.
CHAIR DAVIS assured him that this version did not eliminate the
CON.
MR. BELL said his understanding was that it would, and
apologized for his misunderstanding.
CHAIR DAVIS asked if she could send him a copy of the new
version.
MR. BELL said he would stop by and pick one up.
SENATOR ELTON told Mr. Bell that the pertinent pages in the new
version, given his concern for the CON, were in Section 5
beginning on the bottom of page 4 and running to the top of page
5. The substantive change, the only change to the CON, was that
there was no cap to the amount of money that could be spent on
diagnostic imaging facilities in communities with populations of
60,000 or more.
SENATOR COWDERY asked if Mr. Bell had a definition of a
"critical access hospital."
MR. BELL answered that he did not.
1:47:41 PM
PAUL MORRIS, Alaska Regional Hospitals, thought the study was a
great starting point. He thought that was something they should
look at before making changes to legislation related to the CON.
In his short tenure in the state, he had seen the political
aspects of the CON and a lot of maneuvering taking place; he
felt that the first thing they needed to do was to get a good
sense of where they were at and identify a starting point. He
was on the negotiated rule-making committee and felt that was a
great attempt at evaluating the CON process; they came away with
a consensus on a starting point and recommendations of where the
state needed to go. He highly recommended that they look at
those recommendations and the study and get a lot of input on it
before making any changes.
He cautioned that the language in Version \V was already
creating a "carve out." The 50/50 and the exclusion of boroughs
over 60,000 were making changes to the CON process before they
had had a chance to fully evaluate what needed to take place. He
said what they were doing was creating an exception, a loop-
hole, whatever they wanted to call it, that would further erode
the CON process before it was fully evaluated, which he thought
would be detrimental in the long run. Several other states had
looked at the impact of carving out aspects of the CON and it
was detrimental. He cited the well-documented case in Ohio,
which showed that the erosion of the CON ultimately increased
the cost of health care to the state.
He stressed that he fully supported the findings of the rule-
making committee that the CON was a good process and that the
language just needed to be refined.
SENATOR DYSON asked Mr. Morris to repeat his last statement.
MR. MORRIS explained that the negotiated rule-making committee
came away with recommendations to refine the language, keeping
the CON and not allowing the 50/50 joint venture carve-out in
the CON process. Currently regulation allowed for imaging
equipment in a facility that was 100 percent owned by
physicians; if they did a 50/50 joint venture it would totally
change the intent of the CON by allowing that carve-out and
would further erode the whole CON process. The next step, in his
opinion, would be to allow joint ventures in ambulatory surgery
centers. He repeated that it was well documented that it would
escalate the cost of health care.
SENATOR THOMAS agreed that bits and pieces would be taken and
the courts would settle some of it, so the study was a
reasonable way to approach it. He asked Mr. Morris if the rule-
making committee gathered and reviewed the other studies.
MR. MORRIS said not everyone was aware of some of the studies
that had taken place. He was, because he was working on his MBA
and had written a paper on the CON in relation to that.
SENATOR ELTON asked if Mr. Morris would be willing to share his
research with the committee.
MR. MORRIS said he would.
SENATOR COWDERY asked if the definition of critical access
hospitals was in statute as well as in this bill.
1:53:31 PM
KARLEEN JACKSON, Commissioner, Department of Health and Social
Services (DHSS) directed Senator Cowdery to page 4 of the
bill...
CHAIR DAVIS interrupted and said that the Senator wanted to know
if it was also in statute, in case this bill did not pass.
COMMISSIONER JACKSON advised that this referenced another
statute, AS 18.05.
SENATOR COWDERY asked if a critical access hospital was one that
was open 24/7.
COMMISSIONER JACKSON read the federal definition of a critical
access hospital:
a small, rural hospital that is financially challenged
given the limited population size that they serve.
These are hospitals located in a county, borough,
considered rural, located more than a 35 mile drive
from another facility, or is a necessary provider of
health care services to residents in the area and has
no more than 25 patient beds.
SENATOR COWDERY maintained that it didn't answer the question of
whether it was open 24/7.
CHAIR DAVIS said that if it was a hospital, she would expect it
to be open 24/7.
COMMISSIONER JACKSON said that would be her understanding.
SENATOR DYSON asked Commissioner Jackson whether the
administration was in favor of all of the changes made in this
CS.
COMMISSIONER JACKSON said the Governor would still like to see
the repeal of the Certificate of Need Program. She believed
there were some pieces of this legislation however, that would
get them closer to a better program if they wound up keeping a
program. So if the bill passed, she would have that conversation
with the Governor about what the positive things might be. There
were a couple of things they would likely ask to be tweaked in
the committee of next referral, particularly things regarding
the information office.
SENATOR DYSON asked if this bill would go to Finance.
CHAIR DAVIS said it would.
SENATOR DYSON suggested, given where they were at in the
schedule, with 100 bills stacked up in Finance, if there were
things that need to be changed they should entertain them in
this committee. He asked if the Commissioner could point them
out specifically.
COMMISSIONER JACKSON said she could.
On page 5 of the bill, line 29, one member of the committee was
to be from the Alaska Commission on Aging; in talking with Jess
Jesse, CEO of the Alaska Mental Health Trust Authority, they
would prefer that the Trust Authority have a membership seat.
She pointed out that the Commission on Aging was represented by
the Mental Health Trust Authority.
SENATOR DYSON commented that the CS says "3 public members who
are health care providers, appointed by the governor, for
hospitals, physicians, and mental health" [page 6, paragraph (5)
on lines 3-5].
COMMISSIONER JACKSON said she was referring to number (3) on
page 5.
SENATOR DYSON asked if their concern would not be covered by
page 6, line 5.
COMMISSIONER JACKSON answered that it could be; what she was
getting at was that if they were going to have one of the sub-
boards of the Mental Health Trust represented and not the
others, it would be somewhat difficult. The Mental Health Trust
Authority thought it would be better if they filled that seat;
she said if they wanted to eliminate that member and have the
Mental Health seat cover it, that would be another option.
SENATOR DYSON said that certainly wasn't what he wanted. He
asked what other aspects of the CS they were uncomfortable with.
COMMISSIONER JACKSON replied that on page 8, line 18, where it
said that the database was "developed under (a) of this section"
and that it "must include the following:" they felt it would be
more useful to say "may" rather than "must" so it could be
brought up bit-by-bit as pieces were ready, rather than having
to wait until all the required information was completed.
SENATOR DYSON asked if it would satisfy them if line 18 were
modified to include the phrase "must, as available."
COMMISSIONER JACKSON said it would.
CHAIR DAVIS asked Commissioner Jackson to repeat what she wanted
changed.
COMMISSIONER JACKSON said [the line should read] either "may"
rather than "must," or, as Senator Dyson suggested, "as the
information is available." So the database developed under this
section "must include, as the information is available, the
following."
SENATOR ELTON conceded that would work and was certainly safer.
2:01:14 PM
SENATOR DYSON asked if the commissioner had any other concerns.
COMMISSIONER JACKSON answered that page 9, numbers 3 and 4,
referred to a list of the 100 hundred most commonly prescribed
medications and a list of the 100 most commonly conducted
medical procedures. The Chief Medical Officer [Jay Butler]
suggested that those lines be amended to read "at least 25" so
those lists could be added to after the database was published.
SENATOR ELTON pointed out that they had already amended the
bill to say "as data becomes available," so he saw no need to
change those numbers.
SENATOR DYSON said he would not be averse to cutting it down to
50 or something; but he thought Senator Elton was correct.
COMMISSIONER JACKSON continued; on page 11, on lines 28 and 29,
there were not definitions for a licensed pharmacy or for a
physician's office and they would like those to be added. She
said their final concern was on page 13...
SENATOR ELTON interjected that he thought one of the elements in
the existing Certificate of Need Program defined a physician's
office. He asked if that was not correct.
COMMISSIONER JACKSON admitted that was one of the things they
had wrestled with. They had various definitions, but she did not
have one with her.
SENATOR DYSON asked if they could do a conceptual amendment
today.
CHAIR DAVIS said she didn't see how they could do a conceptual
amendment without the correct language. She said she was
troubled by the fact that this bill had been held for several
weeks to allow enough time to get all of the information
together and the department had not come forward with these
concerns until today. These things could have been taken care of
before the meeting.
COMMISSIONER JACKSON responded that was why she said these were
small things that could be done in the next committee.
CHAIR DAVIS said she heard that.
SENATOR DYSON asked what the change on page 13 was.
COMMISSIONER JACKSON said she was confused by the fact that
Section 14 said "Except as provided in secs. 12 ... this Act
takes effect July 1, 2008." Then Section 12 said "Section 2 of
this Act takes effect July 1, 2013." She admitted this might
simply be her misunderstanding of how timelines were drafted in
legislation; but it seemed like a circular reference.
CHAIR DAVIS explained that 2013 was the expiration date of the
Commission. She believed that legal could explain it more
clearly than she had, but thought the dates were as they should
be.
2:05:58 PM
SENATOR DYSON asked who was the primary author of this CS.
CHAIR DAVIS answered that her office staff, Tom and Don, both
worked on it. She asked Don to get Jean Mischel from legal on
line to answer questions.
SENATOR DYSON said that on page 7, line 15, the bill they got
said one of the goals of the Commission was to reduce health
care for all to below the national average; the committee
substitute took that out. He wondered why it had been removed.
SENATOR ELTON recalled that, some time ago, the department had
discussed the possibility that the goal might be unattainable
and that the language should amended to "reduce the rate of
growth." He asked if his recollection was correct.
DON BURRELL confirmed that it was.
CHAIR DAVIS asked if Mr. Burrell had in front of him a list of
all of the amendments that had been made.
DON BURRELL informed Senator Dyson that that particular change
occurred in Version \E, at least 3 versions ago.
2:12:04 PM
SENATOR DYSON agreed that might have been a reasonable change.
He continued that on page 8, line 11, the original version had
said "for all" and the CS substituted "about." He wondered why
that had been changed.
DON BURRELL said he did not have those changes but recalled that
was change was also made about 3 versions ago, when they fine-
tuned the language.
CHAIR DAVIS reiterated that there was only one change between
the previous version and this one; that was to assign
responsibility for the contract for the CON study to the
department.
SENATOR DYSON acknowledged that he might be asking questions
about a version that was approved by the committee previously;
but he asked if anyone remembered a discussion about taking out
the phrase "for all" and substituting "about."
CHAIR DAVIS asked if he had a problem with that language.
SENATOR DYSON said "Yes."
SENATOR ELTON did not recall any discussion about it, but did
not believe it was a substantive change. The current version
read "maintain an information database on the internet of
information about health care facilities in the state;" and
there were no exceptions listed so he read that to mean all
health care facilities. He suspected that change might have been
made by the drafter.
SENATOR DYSON suspected the same thing; he would like it to be
on the record however, that the committee intended it to mean
all of the facilities.
CHAIR DAVIS said she didn't think "all facilities" was
realistic; they didn't even know all of the facilities that
existed. She asked Jean Mischel to comment.
2:14:09 PM
JEAN MISCHEL, Attorney at Law, Legislative Legal and Research
Services Division, Legislative Affairs Agency, Juneau, AK, said
she was at a loss because she had just dialed in and did not
know what section they were discussing.
CHAIR DAVIS advised that they were on SB 245, Version \V and
that Senator Dyson was questioning a change.
SENATOR DYSON repeated that on page 8, line 11, previous
versions read "database on the internet of information for all
health care facilities in the state;" and in this version the
words "for all" had been taken out and "about" had been
substituted.
JEAN MISCHEL replied that she would have to pull her hard-file
to be sure; but she believed that was a specific request based
on the concern that Senator Davis just expressed.
SENATOR DYSON said it was not clear to them that the bill called
for a lot of reports and then it called for the state to
establish a database and then there was going to be a website.
He was not clear that the stuff from the reports would get into
the database and that the database would be placed on the
website. He said in their reading of it, that was not clear.
Their intention was that the information be available to the
public so they could make the best informed decisions; he asked
if she could help him with that.
JEAN MISCHEL said she interpreted his question to be whether or
not the database would be publicly available and asked if that
was the question.
SENATOR DYSON answered yes; he questioned whether the stuff from
the reports would be required to end up in the database and
whether the database would be made available on the website.
JEAN MISCHEL responded that she did not see any confidentiality
requirements that would keep any information in the database
from public access. Under the public records law, unless it was
specified that it would not be available, it appeared to her to
be intentionally publicly available. Under new section
18.09.120, the mandatory reporting section, page 10, lines 9-10,
it talked about the information being reported "shall be placed"
on the database.
SENATOR DYSON asked if it was clear in the CS that the stuff
from the database went onto the web site.
JEAN MISCHEL answered "Yes."
SENATOR DYSON asked if Ms. Mischel could point out where that
was made clear.
JEAN MISCHEL pointed to [Sec. 18.09.110] the lead-in on page 8,
beginning on line 10: "The department shall establish and
maintain an information database on the Internet ..." and to the
cross-reference in 18.09.120 to that section on page 10, lines
9-10, "for placement in the database developed under AS
18.09.110."
2:18:47 PM
SENATOR DYSON said that would satisfy him. Moving on to page 10,
line 14, he did not feel it was clear where it said "negotiated
prices," that they meant to include prices for all the services
that were rendered. He wanted that to be made more explicit so a
customer shopping by price could not only see what the
comparative prices for the same services would be, but also the
comparative prices that various classes of consumers paid.
JEAN MISCHEL indicated that the language on line 14 had been
changed since the \L version, but that it could certainly be
clarified further through an amendment by the committee.
SENATOR THOMAS asked Ms. Mischel, if they were to add a time
frame for the Certificate of Need study to be completed and
delivered to the legislature, whether that amendment should be
made on page 13, line 11 and running on for the next couple of
lines.
JEAN MISCHEL answered "Yes."
SENATOR DYSON asked Ms. Mischel to clarify what he perceived to
be a contradiction between page 10, lines 8-9, which provided
that a mandatory reporting schedule would be set by the
department, and page 7, line 23, which said the commission would
establish the schedule.
2:22:36 PM
JEAN MISCHEL asked for a moment to review the language, then
answered that there might be a conflict with regard to the
reporting requirements but not the database.
SENATOR DYSON continued that on page 11, beginning on line 6,
the CS seemed to say that information [regarding an adverse
action] would be provided to the department; originally the
Governor's bill said it should go to the Commission. He asked if
the committee had made that change.
CHAIR DAVIS said that if it had been changed, then it was
changed at their request.
SENATOR DYSON said he didn't care about the history of the
change; he just wanted what was best. He asked the commissioner
which made the most sense.
2:25:07 PM
COMMISSIONER JACKSON replied that it would seem having the
information come to the department for posting to the database
would probably be the most efficient.
SENATOR THOMAS asked Commissioner Jackson for some direction
with regard to the timeframe for completion of the CON study. He
noted that she had referenced a couple of studies in a letter to
the chairman of the committee, and was curious as to the
timeframe and whether those studies were as complex and critical
as this one might be.
COMMISSIONER JACKSON replied that each study was somewhat
unique. She would expect this study to be fairly quick because
so much source material had already been gathered through the
process at the various hearings. Assuming the bill passed and
they were able to get a Request For Proposal (RFP) out on the
street and have funding by July 1, 2008, they could probably
have it for the 2009 legislative session.
2:28:14 PM
^Amendment 1
SENATOR THOMAS moved Amendment 1 to the language on page 13,
line 11: Add after "legislature." The words "no later Feb 15
2009." There being no objection, Amendment 1 was adopted.
SENATOR DYSON thought that Jean Mischel agreed that there was a
conflict in the CS between page 10, lines 8-9 and page 7, line
23, regarding who would set the reporting schedule. He proposed
that they choose one of those options and make the two
consistent.
SENATOR ELTON said that, as he read it, this was a two-step
process. Page 10 was about the information gathering process and
said the health care facilities would provide their information
to the department on a schedule set by the department. The
language on page 7 referred to the information posting process,
in which the commission would review and approve the information
that was collected by the department and set a schedule for the
department to post that to the database. He asked Ms. Mischel if
she read it that way.
JEAN MISCHEL said that was one possible interpretation. She felt
that the word "implementation" on line 24 was ambiguous; however
she believed that his interpretation represented the original
intent.
SENATOR ELTON asked if it was less ambiguous if, on page 7, line
24, they struck "implementation" and inserted "and establish a
schedule for posting on the database."
JEAN MISCHEL answered yes, it left no overlap when stated that
way.
^Amendment 2
SENATOR ELTON moved Amendment 2 to language on page 7, line 24:
strike "implementation of" and substitute "posting on." There
being no objection, Amendment 2 was adopted.
^Amendment 3
SENATOR DYSON moved Amendment 3 to language on page 8, line 18:
After the word "include" and before the word "the", insert the
phrase "as available" so subparagraph (a) would read "of this
section must include, as available, the following:" There being
no objection, Amendment 3 was adopted.
^Amendment 4
SENATOR DYSON moved Amendment 4 to language on page 8, line 11:
At the end of the line, replace the word "about" with "for all"
so that would read "establish and maintain an information
database on the Internet of information for all health care
facilities in the state."
2:36:47 PM
CHAIR DAVIS said she had some concern about that language but
she would leave it to the committee to decide.
SENATOR THOMAS stated that he had no problem with that change
and asked if Senator Dyson proposed to make the same alteration
to line 6 [paragraph (1)] where it used that same terminology.
SENATOR DYSON agreed that he would, but asked Commissioner
Jackson whether there were things that would fall under health
care that were not licensed and that the state might not even
know about.
COMMISSIONER JACKSON cautioned that, as fast as the industry was
changing, that would be her one concern. Using "must" for "all"
made her nervous because there could be something out there that
they didn't know about until they discovered they hadn't put the
information out. She said that was part of the concern with
defining licensed pharmacies; for example, would a licensed
pharmacy in a bigger variety store be considered a licensed
pharmacy for the purposes of this information gathering?
SENATOR DYSON said he wanted information about where the
pharmacies were located; and he assumed all the pharmacies were
licensed so that one didn't bother him. What he worried about
was something that didn't fall under any supervision, maybe a
faith healing center or something else; but it seemed to him
that anything important enough to be licensed and fall under
public health, they would want to know about. He asked if there
was anything out there that they might oversee in their various
functions that would not need to be included.
COMMISSIONER JACKSON supposed that she might have used a poor
example. She did worry that by getting so specific, they were
inadvertently setting themselves up, when the intention was to
get all the information they could.
SENATOR DYSON asked if saying "all licensed" would get everyone
they wanted to be reporting.
COMMISSIONER JACKSON said the language that used "about" made
her more comfortable.
^SENATOR DYSON withdrew Amendment 4.
2:39:44 PM
CHAIR DAVIS called a brief at ease.
CHAIR DAVIS called the committee back to order at 2:41:27 PM.
SENATOR ELTON moved to report committee substitute for SB 245,
as amended Version \V, from the committee with individual
recommendations and attached fiscal note(s).
SENATOR COWDERY objected.
A roll call vote was taken:
Senators Dyson, Elton, Thomas and Davis voted yea.
Senator Cowdery voted nay.
The motion carried 4 to 1. Therefore, CSSB 245(HES) moved from
committee.
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