Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/07/2012 01:30 PM Senate LABOR & COMMERCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 146 SNOW CLASSIC TELECONFERENCED
Heard & Held
*+ SB 175 PRACTICE OF NATUROPATHY TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                 SB 175-PRACTICE OF NATUROPATHY                                                                             
                                                                                                                                
2:18:41 PM                                                                                                                    
CHAIR EGAN announced SB 175 to be up for consideration.                                                                         
                                                                                                                                
2:18:45 PM                                                                                                                    
SENATOR  LESIL  MCGUIRE, sponsor  of  SB  175, said  this  measure                                                              
would  correct  an  oversight  in   statute  and  regulation  with                                                              
respect to  the practice  of naturopathic  medicine in  the state.                                                              
It would allow  prescribing of naturopathic concentrates  that are                                                              
extracts  of a  plant,  tree, tree  root,  moss,  fungus or  other                                                              
natural substance that  is not a controlled substance.  It is part                                                              
of  the   existing  regulation   in  12   AAC  that   naturopathic                                                              
practitioners are specifically allowed to prescribe.                                                                            
                                                                                                                                
She said there are  43 naturopaths in the state:  16 in Anchorage,                                                              
2 in  Eagle River, 2 in  Palmer, 15 in  Fairbanks, 1 in  Seward, 2                                                              
in Kenai  and Homer, 1  in Sitka and 4  in Juneau. They  have been                                                              
practicing  under a  licensing statute  that was  put into  law in                                                              
1987.  Alaska  is  one of  15  states  that  specifically  license                                                              
naturopathic  doctors.  Other  states  give  a  broader  range  of                                                              
prescriptive  authority; 11  of them  give prescriptive  authority                                                              
for  those  substances that  are  not  controlled  and 4  of  them                                                              
actually give  naturopaths prescriptive  authority for  substances                                                              
that are controlled as well.                                                                                                    
                                                                                                                                
2:22:32 PM                                                                                                                    
Alaska  is the  one state  that  licenses naturopathic  physicians                                                              
but  doesn't  allow  them  to  prescribe   controlled  substances.                                                              
However, an exception  was made in regulation and  today they want                                                              
to put that regulation into statute for clarity.                                                                                
                                                                                                                                
SENATOR  MCGUIRE said  the issue  came up  when some  naturopathic                                                              
physicians  who had been  prescribing these  natural remedies  for                                                              
their  patients had  their prescriptions  suddenly  denied at  the                                                              
pharmacy.  They  were  told  it   was  at  the  direction  of  the                                                              
licensing board that stated the Alaska statute was unclear.                                                                     
                                                                                                                                
She said  her opinion  is that  nothing in  this bill  expands the                                                              
authority of naturopathic  physicians practicing in  the state. In                                                              
fact, they will  continue to do everything they are  doing, but it                                                              
will be  put into law.  She said a  proposed amendment  by Senator                                                              
Giessel  provides  further  clarity  by  adding  dietetic  remedy,                                                              
homeopathic remedy and hydrotherapy to the language.                                                                            
                                                                                                                                
SENATOR MCGUIRE  said one  example of a  remedy is cayenne  pepper                                                              
that is  used as  a sore  throat remedy  when mixed with  alcohol.                                                              
The bottle is  specifically labeled with requirements  and a shelf                                                              
life, and says it's licensed by the FDA.                                                                                        
                                                                                                                                
GENEVIEVE  WOJTUSIK,  staff  to Senator  McGuire,  explained  that                                                              
Section 1  describes what  a naturopath  is restricted  from doing                                                              
and  Section  2  amends  AS  08.45.050   to  allow  a  person  who                                                              
practices  naturopathy   "to  give,   prescribe  or   recommend  a                                                              
medicine that  is derived  from or  is a concentrate  of or  is an                                                              
extract  of a plant,  tree, root,  moss, fungus  or other  natural                                                              
substance if the medicine is not a controlled substance."                                                                       
                                                                                                                                
Section 3 provides for an immediate effective date.                                                                             
                                                                                                                                
2:27:01 PM                                                                                                                    
CHAIR EGAN objected for public testimony.                                                                                       
                                                                                                                                
2:28:52 PM                                                                                                                    
At ease from 2:28 to 2:31 p.m.                                                                                                  
                                                                                                                                
2:31:15 PM                                                                                                                    
CHRISTINE NIEMI,  representing herself, Douglas, Alaska,  said her                                                              
primary choice for  health care is a naturopathic  doctor and that                                                              
is why  she is  testifying today  in support of  SB 175.  She said                                                              
she understands  that some therapies and natural  herbal medicines                                                              
have  been  denied  to  some  patients.  It is  wrong  to  deny  a                                                              
profession  the ability to  provide services  within the  scope of                                                              
their practice, their  medical education and training.  It is also                                                              
wrong to deny services that are needed by their patients.                                                                       
                                                                                                                                
2:33:16 PM                                                                                                                    
C.W. JASPER, Alaska  Association of Naturopathic  Physicians, said                                                              
that  there  are  actually 16  states  that  license  naturopathic                                                              
doctors and of  those, 11 give prescriptive authority  and 5 allow                                                              
controlled substances. The profession is growing tremendously.                                                                  
                                                                                                                                
He said he has  been asked why he came here if  these other states                                                              
license naturopathic  doctors and  the reason  is because he  is a                                                              
fourth generation  Alaskan.  His great grandfather  came  over the                                                              
Chilkoot Pass in  1898 and his family held gold  claims in Juneau.                                                              
He said he practices here because it is his home.                                                                               
                                                                                                                                
MR.  JASPER said  his ability  to  practice here  is dependent  on                                                              
legislative  authority; and  in 1986  a bill  was passed with  the                                                              
definition  of the practice  of naturopathy.  The terminology  was                                                              
picked by Fred Zharoff.                                                                                                         
                                                                                                                                
2:36:02 PM                                                                                                                    
He said herbal  remedies are the  heart and soul of what  they do.                                                              
Cayenne pepper is  a good example; taking it makes  your nose run.                                                              
So, medically  speaking it is an  expectorant. People ask  why you                                                              
can't just  put ground-up pepper  in capsules, but the  problem is                                                              
that as soon as  the pepper is ground it begins  to deteriorate to                                                              
a point where  it loses its potency. In prescription  form cayenne                                                              
pepper  is called  capsicum  and  it is  prepared  according to  a                                                              
national standard  so people get  a predictable result.  When it's                                                              
prepared in  the medical form, it  has the legend on it.  It's not                                                              
a prescription  drug, but  a prescription  medicine that  you need                                                              
authority from the state to use.                                                                                                
                                                                                                                                
MR.  JASPER explained  that in  1986 Senator  Zharoff tried  using                                                              
the definition of  "medicine" as proposed to  prohibit naturopaths                                                              
from  using  any prescription  medicine.  It  was very  broad  and                                                              
would include even  capsicum tincture to which Mr.  Jasper said he                                                              
couldn't agree.  So they  came up  with this version,  prohibiting                                                              
"prescription  drugs,"  which  they  considered  a  much  narrower                                                              
definition. The definition  of "drug" is a chemical  substance and                                                              
a  chemical  is  something  that   is  produced  from  a  chemical                                                              
process.  So, naturopaths  agreed  that they  would be  prohibited                                                              
from  prescribing   prescription   drugs,  but  not   prescription                                                              
medicines.  The  medicines on  this  list,  such as  capsicum  and                                                              
valium,  were the  things  they were  being  allowed to  prescribe                                                              
because they  weren't prescription  drugs (they were  prescription                                                              
medicines).  The  bill  gave  directions  to the  state  to  adopt                                                              
regulations that  would define  the natural medicines  naturopaths                                                              
could use.  So, they said okay  and did it. Everybody  agreed. So,                                                              
this is  the regulation they  adopted 18  years ago and  it's part                                                              
of the administrative code now.                                                                                                 
                                                                                                                                
AS 08.45 says  that "prescription drug" does not  include a device                                                              
or  herbal or  homeopathic remedy.  The  state acknowledged  their                                                              
understanding  that  herbal  remedies   would  not  be  considered                                                              
prescription  drugs  in its  statute.  Then they  defined  "herbal                                                              
remedy"  to  be  "medicines  derived  from  or  a  concentrate  or                                                              
extract  of a plant,  tree, root,  moss, fungus  or other  natural                                                              
substances."   Things  were settled  and Mr.  Jasper said  he took                                                              
these   regulations   around   and  showed   them   to   Anchorage                                                              
pharmacists who understood and agreed.                                                                                          
                                                                                                                                
2:41:59 PM                                                                                                                    
He  said  on  the   State  of  Alaska  website  to   apply  for  a                                                              
naturopathic  license  has  a  statement   reminding  people  that                                                              
statutes and  regulations have  the force of  law. So  even though                                                              
it's been  clear to everybody and  they have practiced  under this                                                              
interpretation  for  18  years,  pharmacies are  now  saying  they                                                              
can't  give   these  medicines   to  naturopaths  anymore.   Their                                                              
solution  is to ask  the legislature  to put  this regulation  [12                                                              
AAC 42.990] into statute.                                                                                                       
                                                                                                                                
2:44:00 PM                                                                                                                    
SENATOR PASKVAN asked  the reason for the change  by the licensing                                                              
board.                                                                                                                          
                                                                                                                                
MR. JASPER  said he  couldn't answer that  because he  didn't know                                                              
the internal mechanics of why this is happening.                                                                                
                                                                                                                                
SENATOR  PASKVAN said  he wanted  to know what  happened if  there                                                              
wasn't a problem for 18 years.                                                                                                  
                                                                                                                                
SENATOR MENARD  asked how much of  a concern there is  about using                                                              
a syringe to administer the vitamin B12 or vitamin C.                                                                           
                                                                                                                                
MR.  JASPER  said he  didn't  know  if  that  was a  concern,  but                                                              
naturopaths  give B12 shots  and they  need a  device to  do that.                                                              
Syringes  have  a  warning  similar  to  the  capsicum  that  says                                                              
federal law  prohibits purchasing  them without a  prescription or                                                              
words to  that effect;  that is why  the original regulation  said                                                              
the device would not be barred from use by naturopaths.                                                                         
                                                                                                                                
2:46:03 PM                                                                                                                    
SENATOR MENARD asked  if pharmacists are refusing to  let them buy                                                              
the device as well.                                                                                                             
                                                                                                                                
MR. JASPER replied  that he didn't know for sure  but didn't think                                                              
it  was  an  issue;  it's  mainly  being  deprived  of  access  to                                                              
medicines.                                                                                                                      
                                                                                                                                
SENATOR  GIESSEL  said  that definition  of  naturopathy  includes                                                              
more  aspects   than  simply  the   herbal  remedy;   it  includes                                                              
dietetics, homeopathic  and hydrotherapies, and asked  if he would                                                              
be open,  if necessary, to include  the definition of  those other                                                              
modalities as well.                                                                                                             
                                                                                                                                
DR. JASPER said  he wouldn't object to that and would  leave it up                                                              
to the legislature to determine whether that was necessary.                                                                     
SENATOR GIESSEL  said if this was  the only definition  in statute                                                              
it  may, by  omission,  fail to  allow  him to  provide  dietetic,                                                              
homeopathic and hydrotherapeutic modalities.                                                                                    
                                                                                                                                
CHAIR  EGAN  invited  Mr.  Habegar  to  answer  Senator  Paskvan's                                                              
question   and  to   provide  additional   information  from   the                                                              
department.                                                                                                                     
                                                                                                                                
2:47:53 PM                                                                                                                    
DON HABEGAR,  Director, Division  of Corporations, Businesses  and                                                              
Professional  Licensing,  Department  of Commerce,  Community  and                                                              
Economic  Development  (DCCED), said  the  question  was what  the                                                              
division is doing  differently and the answer is not  a whole lot.                                                              
He  explained  there  is  no  board   for  naturopathy;  it  is  a                                                              
division-run  licensing  program.  However,  this issue  has  been                                                              
before them  for quite some  time and there  was a  recent change.                                                              
When the  licensing law  was being  considered by the  legislature                                                              
it was  his division's understanding  and many in the  health care                                                              
profession that  the language in statute AS  08.45.050 essentially                                                              
barred  naturopaths  for  prescribing   items  that  are  normally                                                              
obtained through a pharmacy.                                                                                                    
                                                                                                                                
In  1996,  a letter  from  then  Director  Reardon to  a  licensee                                                              
stated the division's position as follows:                                                                                      
                                                                                                                                
     If  a product  requires  a prescription,  then  it is  a                                                                   
     prescription  drug   and  a  naturopath  may   not  give                                                                   
     prescribe or recommend it under AS 08.45.050.                                                                              
                                                                                                                                
Another quote:                                                                                                                  
                                                                                                                                
     The  definition of  prescription drug  in regulation  12                                                                   
     AAC 42.990 is  consistent with my interpretation  of the                                                                   
     law.                                                                                                                       
                                                                                                                                
Another quote:                                                                                                                  
                                                                                                                                
     It was  not intended to  allow naturopaths to  prescribe                                                                   
     drugs  refined and  manufactured  from plants.  Instead,                                                                   
     it  was recognition  of  naturopaths'  use of  herbs  in                                                                   
     their basic natural form.                                                                                                  
                                                                                                                                
MR. HABEGAR  said the division  is not changing  an interpretation                                                              
but is  using a pathway  that was set  long ago. That  same letter                                                              
of 1996 recognized the possible need to clarify regulation.                                                                     
                                                                                                                                
2:51:26 PM                                                                                                                    
SENATOR  PASKVAN  said he  understood  the  1996 letter,  but  the                                                              
question  is if what  was occurring  in 2010  being prohibited  in                                                              
2012.                                                                                                                           
                                                                                                                                
MR. HABEGAR replied  that the division is not changing  any of its                                                              
practices. One of  the things that has transpired is  that in 1996                                                              
a licensee  asked the division  if he/she could  prescribe certain                                                              
things.  The letter  he  quoted was  a response  to  that and  the                                                              
answer was no.                                                                                                                  
                                                                                                                                
SENATOR  PASKVAN asked  if what  was allowed  in practice  in 2010                                                              
prohibited in 2012: yes or no.                                                                                                  
                                                                                                                                
MR. HABEGAR replied no.                                                                                                         
                                                                                                                                
SENATOR  PASKVAN  asked  if naturopaths  could  obtain  this  from                                                              
pharmacies in 2010.                                                                                                             
                                                                                                                                
MR. HABEGAR answered from the division's perspective, no.                                                                       
                                                                                                                                
SENATOR PASKVAN  asked if they  had been obtaining  these remedies                                                              
or concentrates from pharmacies for many years.                                                                                 
                                                                                                                                
MR. HABEGAR said  he couldn't answer that; it was  before his time                                                              
with the division.                                                                                                              
                                                                                                                                
SENATOR PASKVAN  asked what happened  recently that caused  him to                                                              
enter an order to  pharmacies to cease what appears  to be a long-                                                              
lasting practice.                                                                                                               
                                                                                                                                
MR.  HABEGAR  replied  that the  division  brought  an  allegation                                                              
against a licensee  for prescribing and that brought  the issue to                                                              
a head. It  clarified for the  division what was happening  in the                                                              
practice.                                                                                                                       
                                                                                                                                
2:54:18 PM                                                                                                                    
SENATOR  GIESSEL   said  Mr.  Habegar   read  the   definition  of                                                              
"prescription drug,"  from a letter that cited 12  AAC 42.990, but                                                              
the regulation  was not  completely stated. The  last half  of the                                                              
definition  says:  "prescription  drug does  not include  a device                                                              
or herbal  or homeopathic remedy  or dietetic substance in  a form                                                              
that is not a controlled substance."                                                                                            
                                                                                                                                
She  referred  back  to other  definitions  in  section  .990;  it                                                              
defines  dietetics, nutritional  therapies, substances,  vitamins,                                                              
minerals  et  cetera.  Number  3  says  "herbal  remedy"  includes                                                              
"medicines  derived from  a  concentrate or  extract  of a  plant,                                                              
root,  moss et  cetera"  and number  4 says  "homeopathic  remedy"                                                              
means "a  remedy defined  by the  homeopathic pharmacopeia  of the                                                              
United  State, December  1993 version,"  and "hydrotherapy"  means                                                              
"the use  of water." It  is pretty clear  in this regulation  that                                                              
prescription  drug is  not a  device, herbal  substance (what  Mr.                                                              
Jasper  just   elucidated),  a  homeopathic  remedy   or  dietetic                                                              
substance.   Senator   Giessel   opined  that   Director   Reardon                                                              
misapplied  and  misinterpreted  those regulations  and  it's  now                                                              
being applied  in a  much more restrictive  way not  in accordance                                                              
with what the regulations clearly say.                                                                                          
                                                                                                                                
MR. HABEGAR replied  that the Department of Law  (DOL) has advised                                                              
that that  Director Reardon's wasn't  a bad interpretation  and he                                                              
has continued down that pathway.                                                                                                
                                                                                                                                
2:56:58 PM                                                                                                                    
SENATOR  GIESSEL said  because of  that  vague interpretation  she                                                              
wanted to amend  this bill to make  it much more precise  in terms                                                              
of including  dietetic remedy,  herbal remedy, homeopathic  remedy                                                              
and hydrotherapy as in the purview of the naturopath in statute.                                                                
                                                                                                                                
2:57:42 PM                                                                                                                    
SENATOR PASKVAN  said he is troubled  in looking at 12  AAC 42.990                                                              
that the  history section indicates  it was effective in  1994 and                                                              
amended in 2006,  but the regulation was amended  after the letter                                                              
was written  in 1996 and the  practice still continued.  He didn't                                                              
know  how the  department  could argue  its  position, because  it                                                              
seems grossly different from the history of that regulation.                                                                    
                                                                                                                                
MR.  HABEGAR  responded   that  when  positions   turn  over  with                                                              
administrations there  is often a  great deal of trying  to figure                                                              
out historical  context. In  that light  and having been  advised,                                                              
it seems to him  that the division set a path  that was consistent                                                              
with what  it considered  was happening.  They also determined  to                                                              
continue down that pathway.                                                                                                     
                                                                                                                                
CHAIR EGAN  said he wanted a  further explanation for  the change,                                                              
from a doctor.                                                                                                                  
                                                                                                                                
3:00:28 PM                                                                                                                    
SENATOR GIESSEL moved to adopt Amendment 1.                                                                                     
                                                                                                                                
                                                 27-LS1230\M.4                                                                  
                                                        Martin                                                                  
                                                                                                                                
                          AMENDMENT 1                                                                                       
                                                                                                                                
                                                                                                                                
     OFFERED IN THE SENATE                                                                                                      
     By SENATOR GIESSEL                                                                                                         
                                                                                                                                
     Page 1, line 13, through page 2, line 2:                                                                                   
          Delete all material and insert:                                                                                       
        "*  Sec. 2.  AS 08.45.050  is amended  by adding  new                                                               
     subsections to read:                                                                                                       
          (b)  Notwithstanding (a)(1)(A) of this section, a                                                                     
     person  who practices naturopathy  may give,  prescribe,                                                                   
     or  recommend in  the practice  a device  or, in a  form                                                                   
     that  is  not  a  controlled  substance,  an  herbal  or                                                                   
     homeopathic    remedy,    a    dietetic    remedy,    or                                                                   
     hydrotherapy.                                                                                                              
          (c)  In this section,                                                                                                 
               (1)  "dietetic remedy" means nutritional                                                                         
     therapy,    nutritional   counseling,   a    nutritional                                                                   
     substance,   vitamins,  minerals,   or  supplements   to                                                                   
     promote  health  and  to  diagnose,  treat,  or  prevent                                                                   
     disease, illness, or conditions;                                                                                           
               (2)  "herbal remedy" means a substance                                                                           
     derived  from or a  concentrate or  extract of a  plant,                                                                   
     tree, root, moss, or fungus;                                                                                               
               (3)  "homeopathic remedy" means a remedy                                                                         
     defined   in   the  current   version   of   Homeopathic                                                                   
     Pharmacopoeia of the United States;                                                                                        
               (4)  "hydrotherapy" means the use of water                                                                       
     in all forms  and temperatures to promote  health and to                                                                   
     diagnose,  treat,  and  prevent  disease,  illness,  and                                                                   
     conditions."                                                                                                               
                                                                                                                                
CHAIR EGAN stopped the hearing saying the committee would                                                                       
continue public testimony on SB 175 at the next meeting.                                                                        

Document Name Date/Time Subjects
Sb 146 FVCS Background Information.pdf SL&C 2/7/2012 1:30:00 PM
SB 146
SB 146 Sponsor Statement.pdf SL&C 2/7/2012 1:30:00 PM
SB 146
SB 146 Support Letter Index.pdf SL&C 2/7/2012 1:30:00 PM
SB 146
SB 146 Sectional Analysis.pdf SL&C 2/7/2012 1:30:00 PM
SB 146
SB 146 Support Letter-GBOS.pdf SL&C 2/7/2012 1:30:00 PM
SB 146
SB146-DOR-TAX-02-02-12.pdf SL&C 2/7/2012 1:30:00 PM
SB 146
sb 175 sponsor statement.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
sb 175-sectional analysis.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
SB 175 Supporting Documents - CW Jasper letter of support 26 January 2012.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
SB 175 Supporting Documents - Alaska Association of Naturopathic Physicians letter of support 26 January 2012.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
SB 175- Supporting Documents - Alaska Chapter 08 45 Naturopaths.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
SB 175- Supporting Documents - Alaska Administrative Code 12 Chapter 42 - Naturopaths.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
SB 175- Supporting Documents - 12 AAC 42 990 Definitions.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
SB 175 emails supporting 2-7-12.PDF SL&C 2/7/2012 1:30:00 PM
SB 175
SB175-DCCED-CBPL-02-03-12.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
SB175-DHSS-HCMS-2-3-12.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
SB175-DHSS-MAA-2-6-12.pdf SL&C 2/7/2012 1:30:00 PM
SB 175
SB 146-AS 05.15.690 Definitions.pdf SL&C 2/7/2012 1:30:00 PM
SB 146
SB 146-Nenana Ice Classic Fairbanks Daily News Miner Article.pdf SL&C 2/7/2012 1:30:00 PM
SB 146
SB 146 Support Document- Revenues from Nenana Ice Classic.pdf SL&C 2/7/2012 1:30:00 PM
SB 146