Legislature(2003 - 2004)
01/28/2004 01:35 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.