Legislature(2003 - 2004)

01/28/2004 01:35 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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                                                               
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                                                               
CHAIR  DYSON   asked  that  he  and   staff  consider  additional                                                               
clarifying language.                                                                                                            
SENATOR  GUESS suggested  using  the  phrase, "temporary  medical                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                                    
SENATOR  GUESS  questioned whether  that  is  referenced in  CSHB
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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