Legislature(2007 - 2008)BELTZ 211
02/11/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB211 | |
| SB247 | |
| SB226 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 211 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 226 | TELECONFERENCED | |
| += | SB 247 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 247-MISSING PERSONS
CHAIR FRENCH announced the consideration of SB 247 and noted
version E committee substitute (CS) had been distributed.
SENATOR HUGGINS moved to adopt version E, labeled 25-LS1157\E,
as the working document.
2:16:58 PM
CHAIR FRENCH announced that without objection, version E is
before the committee. He asked Mr. Peterson to highlight the
changes in the CS.
2:17:14 PM
DARWIN PETERSON, staff to Senator Stedman, said he agreed to
carry the bill for Senator Green, the bill sponsor, because he
was on her staff when the bill was drafted. He explained the
changes in the CS.
Page 1, lines 7-9, contains new language regarding civil
immunity. It's also applied in Sec.2 at the request of the
Department of Law (DOL). Law enforcement is provided some
immunity if it's not possible to gather all the required
information when a missing person report is filed.
Page 2, lines 14-16, subsection (c) says, "In accepting a report
of a missing person, the law enforcement agency shall request
from the person making the report, and make reasonable efforts
to gather to the extent it is available, information including".
The new language addresses DOL's concern that the phrase "shall
gather" didn't give the law enforcement agency much latitude.
Also, it addresses Senator McGuire's concern regarding HIPPA
violations. Page 58 of the "HIPPA Administrative Simplification
Regulation Text" says that "a covered entity may disclose
protected health information to the extent that such use or
disclosure is required by law." AS 18.65.630 deals specifically
with the issue of medical and dental records being released in a
missing person report. It says that when a report is filed, the
law enforcement agency "shall provide" release forms to the
person filing the report. The family, next of kin, or guardian
"may" fill out the form and deliver it to the physician and
dentist. It that's done, the physician and dentist "shall"
provide the information to the law enforcement agency. That
covers any problems with HIPPA, he said.
2:20:55 PM
MR. PETERSON explained that the change on page 2, line 29,
reflects Senator Therriault's suggestion that credit card
numbers and bank card numbers can be helpful in tracking a
missing person's whereabouts.
Page 3, lines 5-8, paragraph (17) reflects a suggestion by
Senator Therriault that it would be helpful to collect more
information related to date of last contact. Responding to a
request for further explanation, he said the original language
asked for date of last contact. He asked the drafter to expand
the language so that all the circumstances surrounding the
disappearance are recorded including "where the person was, whom
the person might have been with, when the person was last seen
or heard from - time and date - [and] reasons why they may be
missing."
2:22:08 PM
SENATOR THERRIAULT asked if the date of last contact was removed
and paragraph (17) was beefed up.
MR. PETERSON said yes.
Page 5, lines 1-6, subsection (f) addresses the concern Senator
Huggins expressed about collecting DNA from family members of a
missing person. The sponsor agrees and so the new language says
DNA samples taken from a family member are provided voluntarily.
Nothing in the section requires a family member who has not
committed a crime to provide a DNA sample. It also clarifies
that DNA samples are to be destroyed when a case is closed.
Page 6, line 29, reflects a suggestion by Senator Therriault to
require law enforcement agencies to establish written protocols
for handling missing person cases rather than encouraging them
to do so.
MR. PETERSON said that is the extent of the changes in the CS.
2:23:52 PM
MARY WEIR said that she brought the issue forward because there
were no protocols for collecting and handling information when
her daughter went missing for 19 months. It was all very
confusing. As it turned out her daughter was in California the
entire time, but the information was mishandled and the
identification was never made. Her experience is not uncommon.
The last time she checked there were 109,000 missing persons and
6,700 unidentified [remains] and the Department of Justice
estimates that those figures are low. SB 247 will make Alaska
part of the solution since the biggest reason that matches
aren't made is that protocols are lacking.
CHAIR FRENCH said he understands that the Department of Public
Safety has concern with some of wording in the bill.
2:26:31 PM
RODNEY DIAL, Lieutenant, Alaska State Trooper, Department of
Public Safety, stated support for the goal of the legislation,
but concern with some of the directives. "We would prefer that
the bill would change some of the 'shalls' to 'mays' so that we
can maintain officer discretion in those cases and allocate the
resources as we currently do."
CHAIR FRENCH asked him to be more specific.
LIEUTENANT DIAL explained that he's referring to collection of
DNA in cases where the person has been missing more than 30 days
and in high risk cases. "We have a significant percentage of our
missing persons cases that go past 30 days." Specifically he is
talking about the language on page 4, lines 18-20, and page 4,
line 21.
CHAIR FRENCH asked if he believes that the new language "make
reasonable efforts" is insufficient.
LIEUTENANT DIAL explained that in cases involving repeat
runaways and search and rescue cases where it's unlikely that
the victim will be rescued, it's not always an appropriate use
of resources to travel to different communities to obtain DNA
samples of family members. "We're asking to maintain the
discretion we currently have so we can allocate resources."
CHAIR FRENCH asked if a DNA sample is collected by a Q-tip swab.
LIEUTENANT DIAL said yes; the inside of a person's mouth is
swabbed for mitochondrial DNA. That's the "gold standard" for
missing person cases since it can be used for comparison with
remains that are highly degraded. "We actually do collect that
in many missing persons cases currently."
CHAIR FRENCH clarified that the bill doesn't place demands on
the crime lab to put the samples at the front of the queue. It
requires law enforcement agencies to make a reasonable effort to
get a DNA swab from immediate family members and the missing
person.
LIEUTENANT DIAL reminded the committee that the state crime lab
doesn't have the ability to test mitochondrial DNA so those
samples are sent out of state either to the University of Texas
or the FBI national crime lab. Those samples are entered into a
national DNA database for missing persons.
2:31:10 PM
CHAIR FRENCH asked if he said that the DNA swabs for these cases
could not be tested in Alaska.
LIEUTENANT DIAL said that's correct. The state crime lab can
only test for nuclear DNA, not mitochondrial DNA.
2:31:38 PM
CHAIR FRENCH noted a proposed amendment from the sponsor's
office. He identified it as Amendment 1 by Senator French.
CHAIR FRENCH moved Amendment 1 and objected for discussion
purposes.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 247(JUD)
Page 2, line 1, following "18.60.175":
Insert "and 18.65.630"
Page 2, line 16, following "is available"
Insert "and permissible to disclose"
At ease from 2:32:35 PM to 2:32:53 PM.
2:33:05 PM
MR. PETERSON explained that the amendment is at the request of
the department. It adds reference to AS 18.65.63 in the civil
immunity section on page 2, line 1.
CHAIR FRENCH added that the title of that particular statute is
"Medical and Dental Records of Missing Persons."
MR. PETERSON said the added language on page 2, line 16, is an
effort to avoid HIPPA violations.
CHAIR FRENCH added that this makes it clear that HIPPA trumps
Alaska statue.
MR. PETERSON agreed.
CHAIR FRENCH ascertained there were no further questions and
withdrew his objection to Amendment 1. Finding no objection, he
announced that Amendment 1 is adopted.
2:35:59 PM
JOAN WILSON, Assistant Attorney General, Civil Division,
Department of Law, relayed that part of her job is to advise the
Department of Health and Social Services about HIPPA compliance.
Much of that job is completing the state preemption analysis -
comparing how the HIPPA privacy standards compare with Alaska
laws, figuring out ways for them to work together, and pointing
it out when they don't.
MS. WILSON clarified that AS 18.65.630 mandates disclosures and
HIPPA says that where state or other law requires a disclosure,
a healthcare provider doesn't violate HIPPA by complying with
the other law. This section provides authority for family
members who don't qualify as usual next of kin to sign a health
information release. Subsection (b) provides law enforcement the
ability to do that when it's not possible get family
authorization. She cautioned that when AS 18.65.630 is
interpreted with HIPPA, providers should know that the
authorization form must also have all the mandatory terms that
HIPPA provides. That will remove any difficulty providers have
in figuring out whether this is a mandatory disclosure required
by state law or a permissive disclosure under an authorization
form. "I'm not really offering any suggestions for changes to 18
65.630, but just that there be some kind of legislative record
that an authorization form provided under these sections should
still comply with the mandatory authorization requirements of a
HIPPA compliant authorization form."
CHAIR FRENCH asked if she had any further remarks to offer on
the bill.
2:38:11 PM
MS. WILSON pointed out that the bill has two ways of getting
information. First, law enforcement is able to get information
from a family member and they are not subject to HIPPA. But when
law enforcement makes further reasonable efforts, it may be
requesting information directly from health care providers who
are subject to privacy standards. "It's only then that HIPPA's
going to create any kind of wall that someone will need to climb
over." HIPPA does recognize public policy needs for protective
health information and as such it has separate exceptions for
disclosures to law enforcement for purposes of missing person
investigations. But the section does not permit release of DNA
or dental records. "Everything under HIPPA is disjunctive." If
you fall under one exception you don't have to worry about the
other barriers so the law enforcement barrier for DNA and dental
records wouldn't be applicable in these cases because of the
"required by law" exception and the "authorized disclosure"
exception.
CHAIR FRENCH closed public testimony and announced that the CS
is before committee for discussion. Although he wasn't present
for first hearing, he has reviewed the minutes and there have
been some good explanations. Definitions have been added since
the committee first heard the bill and it will be heard next in
the Finance Committee. Finding no further committee discussion,
he asked for the will of the committee.
2:40:24 PM
SENATOR HUGGINS moved to report CSSB 247, as amended, from
committee with individual recommendations and attached fiscal
note(s).
CHAIR FRENCH announced that without objection, CSSB 247(JUD) is
moved from committee.
At ease from 2:40:43 PM to 2:41:51 PM`
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