Legislature(2011 - 2012)BELTZ 105 (TSBldg)

02/09/2012 01:30 PM Senate LABOR & COMMERCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 125 MOTOR VEHICLE TRANSACTIONS TELECONFERENCED
Heard & Held
*+ SB 149 TAX CREDIT FOR DONATIONS TO DOG MUSHING TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 175 PRACTICE OF NATUROPATHY TELECONFERENCED
Heard & Held
= SB 146 SNOW CLASSIC
Moved SB 146 Out of Committee
                 SB 175-PRACTICE OF NATUROPATHY                                                                             
                                                                                                                                
1:39:25 PM                                                                                                                    
CHAIR EGAN announced consideration of SB 175 [version 27-                                                                       
LS1230\M]. He said that public testimony was still open.                                                                        
                                                                                                                                
SENATOR GIESSEL moved to adopt Amendment 1.                                                                                     
                                                 27-LS1230\M.4                                                                  
                                                                                                                                
                          AMENDMENT 1                                                                                       
                                                                                                                                
     OFFERED IN THE SENATE                  SENATOR GIESSEL                                                                     
     TO:  SB 175                                                                                                                
                                                                                                                                
     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."                                                                                                               
                                                                                                                                
SENATOR  GIESSEL  explained  that this  amendment  would  replace                                                               
Section 2 of the bill.                                                                                                          
                                                                                                                                
1:40:30 PM                                                                                                                    
SENATOR PASKVAN objected for purposes of discussion.                                                                            
                                                                                                                                
1:41:25 PM                                                                                                                    
MARY MINER,  Naturopathic Doctor (N.D.), Fairbanks,  Alaska, said                                                               
Valentine's Day is the 28th  anniversary of her being licensed in                                                               
Washington State. She  supported SB 175 as amended.  She has been                                                               
well trained and does not want  to limit the services she is able                                                               
to deliver  to her patients  and has  a sense of  urgency because                                                               
these  services wouldn't  be available  to  them otherwise.  They                                                               
would have  to go  to their  other provider  who wouldn't  have a                                                               
clue what they are.                                                                                                             
                                                                                                                                
1:44:18 PM                                                                                                                    
MADELEINE MORRISON,  Alaska Association of  Naturopathic Doctors,                                                               
Anchorage,  said  she had  practiced  in  Alaska since  1996  and                                                               
agreed with Ms. Miner's testimony.  She added that she works with                                                               
M.D.s  on a  regular basis  together with  patients for  the best                                                               
possible outcome.                                                                                                               
                                                                                                                                
1:45:27 PM                                                                                                                    
WARD HURLBURT,  Chief Medical Officer,  Department of  Health and                                                               
Social Services  (DHSS), Anchorage,  said the  administration has                                                               
concerns with  SB 175 because  it could either potentially  or in                                                               
reality expand  the scope of naturopathic  practice. Dr. Jackson,                                                               
who testified  at an  earlier meeting,  said that  he ran  into a                                                               
problem with  a prescription being  required for  capsicum. Their                                                               
Chief Pharmacist  did some research  and talked with  the company                                                               
that manufactures it and found that  it was their decision to put                                                               
on the  box that  a prescription be  required, not  something the                                                               
FDA did.                                                                                                                        
                                                                                                                                
He said  the state has  in the past considered  that naturopathic                                                               
doctors do not  have prescribing authority and  believes that the                                                               
bill would expand it, which would  incur a cost. Dr. Jackson said                                                               
his   understanding  is   that   authorizing  prescriptions   for                                                               
substances  derived from  plant,  trees, roots,  moss and  fungus                                                               
would  include  substances  like penicillin.  Fifteen  to  twenty                                                               
percent of  drugs used by  allopathic and  osteopathic physicians                                                               
are originally derived from natural substances.                                                                                 
                                                                                                                                
Some  confusion   may  be  because  of   different  training  and                                                               
vocabulary used  for the disciplines. Dr.  Jackson testified that                                                               
in his training drugs and  medicines are different; the drugs are                                                               
synthetic chemical substances whereas  the medicines more broadly                                                               
include  natural substances.  Mr. Hurlburt  said in  his training                                                               
those terms are interchangeable.                                                                                                
                                                                                                                                
SENATOR MENARD  clarified that vitamins are  from natural sources                                                               
and are sometimes put into  11 percent of prescription-type drugs                                                               
to enhance them.                                                                                                                
                                                                                                                                
MR.  HURLBURT  answered  they are  not  talking  about  vitamins.                                                               
Examples of other kinds of  pharmaceuticals that are derived from                                                               
plants would be  digitalis, used for heart  failure, and quinine,                                                               
originally  an  anti-malaria  drug, some  anti-cancer  drugs  and                                                               
penicillin.                                                                                                                     
                                                                                                                                
SENATOR  GIESSEL said  the current  definition in  regulation for                                                               
naturopath says herbal remedies  include "medicines derived". The                                                               
amended form of the bill  says herbal remedy means "a substance",                                                               
the  effort there  being  to separate  digitalis  from an  herbal                                                               
preparation. Did  he not  think that was  clear enough  that it's                                                               
not a prescription, pharmaceutical agent?                                                                                       
                                                                                                                                
MR. HURLBURT  replied his initial  take is that it  would clarify                                                               
it,  but  their  Chief  Pharmacist   felt  the  language  in  the                                                               
amendment was  broad enough to  lead to some confusion  in saying                                                               
they  are   derived  from  natural  substances   and  opened  the                                                               
possibility of prescribing things  like digitalis and anti-cancer                                                               
drugs.                                                                                                                          
                                                                                                                                
SENATOR  GIESSEL  asked  if  a clearer  statement  would  have  a                                                               
semicolon and another phrase that  says, "these substances do not                                                               
include pharmaceutical agents."                                                                                                 
                                                                                                                                
MR. HURLBURT answered yes.                                                                                                      
                                                                                                                                
1:53:03 PM                                                                                                                    
MARY  DESMETT,  representing  herself,  Juneau,  said  she  is  a                                                               
consumer and  patient of both  naturopathic and  allopathic care.                                                               
Her life had been profoundly affected  in a positive way by being                                                               
able to  choose when to  see a  naturopathic doctor or  a western                                                               
doctor. She was  well on her way  to type 2 diabetes  and now her                                                               
labs are  all good and she  is off every medication  including an                                                               
anti-depressant.                                                                                                                
                                                                                                                                
1:54:32 PM                                                                                                                    
C.W. JASPER, N.D.,  said he supported SB 175  and the amendments.                                                               
He  enjoyed meeting  with Dr.  Hurlburt, but  the concerns  about                                                               
anti-cancer  drugs  that  may  come from  an  herb  or  digitalis                                                               
forgets an important  issue - that every health  care provider is                                                               
limited  by his  training  and education.  And  even though  this                                                               
definition  in the  regulations  might have  allowed  the use  of                                                               
those anti-cancer  drugs in the  last 18  years, the fact  of the                                                               
matter  is that  nobody  has used  them for  the  last 18  years,                                                               
because that  is not what their  training is. That is  the safety                                                               
factor.  Digitalis  is always  mentioned  because  it's a  famous                                                               
herbal  medicine,  but nobody  uses  it  anymore. Penicillin  was                                                               
brought  up,  and  the  definition  would  allow  it,  but  after                                                               
speaking to  many colleagues on  the phone  he found that  no one                                                               
knows of  any naturopath who  has used it  in the last  18 years,                                                               
just that the definition would allow  it. But again, he said they                                                               
practice what  they are trained  to do.  He just didn't  think it                                                               
was  an issued  because it's  not part  of naturopathic  practice                                                               
based on their training.                                                                                                        
                                                                                                                                
1:56:36 PM                                                                                                                    
SENATOR PASKVAN asked what notice  he received of any change from                                                               
the department or division.                                                                                                     
                                                                                                                                
DR. JASPER replied  none. He had a nice meeting  with Mr. Habegar                                                               
this morning who  wasn't aware of putting out any  notice to that                                                               
effect and didn't  know where it came from; he  was checking into                                                               
it.                                                                                                                             
                                                                                                                                
1:58:07 PM                                                                                                                    
SENATOR   PASKVAN   asked   how  long   naturopaths   have   used                                                               
pharmacists.                                                                                                                    
                                                                                                                                
MR.  JASPER  answered for  the  past  18 years  pharmacists  have                                                               
honored  their  prescriptions,  but  for just  very  few  things,                                                               
because there aren't a lot of prescription drugs.                                                                               
                                                                                                                                
SENATOR PASKVAN asked  for 18 years consistent  with the statutes                                                               
and administrative codes of Alaska.                                                                                             
                                                                                                                                
MR. JASPER responded that was correct.                                                                                          
                                                                                                                                
SENATOR GIESSEL asked  what he would think if she  amended item 2                                                               
in  Section 2  to say  "herbal remedy  means a  substance derived                                                               
from; substance does not mean pharmaceutical agent."                                                                            
                                                                                                                                
MR.  JASPER said  he thought  it  would be  confusing because  it                                                               
would add an undefined word to the definition.                                                                                  
                                                                                                                                
2:01:02 PM                                                                                                                    
MARY ALICE  MCKEEN, representing herself,  Juneau, said she  is a                                                               
consumer  of naturopathic  care and  an administrative  judge for                                                               
the federal government. She supported  SB 175 and appreciated all                                                               
the efforts to solve this  problem, because people want access to                                                               
this  type  of  care.  In  1986 the  legislature  made  a  policy                                                               
decision  that people  in Alaska  should  have access  to it  and                                                               
severely  restricting the  scope  of  practice [for  naturopaths]                                                               
really undermines that decision.                                                                                                
                                                                                                                                
Referencing the department's letter  that said patients could use                                                               
substances in  their natural form,  she remarked  the legislature                                                               
did not intend  for naturopaths to recommend  that patients grind                                                               
up their  own red pepper  but that  they could obtain  a capsicum                                                               
tincture by  prescription. She said  the regulation  answers that                                                               
squarely because it says in  12 AAC 42.990(a) that a prescription                                                               
drug does  not include a  device or herbal or  homeopathic remedy                                                               
or  dietetic  substance  in  a  form that  is  not  a  controlled                                                               
substance. It  doesn't say it has  to be in its  natural form; it                                                               
really answers the form question  by saying the prescription drug                                                               
cannot be in a form that is not a controlled substance.                                                                         
                                                                                                                                
MS. MCKEEN  said this new  interpretation didn't have  any notice                                                               
or comment  period but  the regulations have  all gone  through a                                                               
notice  and comment  procedure and  the  public got  a chance  to                                                               
weigh  in.  If   there  was  a  proposed   regulation  that  said                                                               
"prescription drug"  means everything you need  a prescription to                                                               
get, people would  come out and testify against it  and she mused                                                               
that  in  a  way,  this  is  the  comment  period  for  this  new                                                               
interpretation.                                                                                                                 
                                                                                                                                
2:05:07 PM                                                                                                                    
MARTIN  NEIMI, representing  himself,  Juneau, said  he  is a  69                                                               
year-old  patient of  a  naturopathic doctor  and  old enough  to                                                               
choose  which kind  doctor to  see first.  The way  he views  his                                                               
choices is  that the naturopathic  doctor guides him to  a better                                                               
and  healthier life  style  and  when it  gets  to  the point  of                                                               
needing drugs  or surgery,  he will  go to  a medical  doctor. He                                                               
summarized  that he  was  a  P.E. and  health  teacher before  he                                                               
retired and  knows a little bit  about health care and  has had a                                                               
wonderful experience with naturopathic doctors.                                                                                 
                                                                                                                                
2:06:12 PM                                                                                                                    
DON  HABEGAR, Director,  Division of  Corporations, Business  and                                                               
Professional  Licensing, Department  of  Commerce, Community  and                                                               
Economic Development (DCCED), came forward to answer questions.                                                                 
                                                                                                                                
SENATOR PASKVAN asked  if he agreed that  naturopaths didn't have                                                               
any notice of this change.                                                                                                      
                                                                                                                                
MR. HABEGAR  replied that his  staff hadn't released any  kind of                                                               
formal  information to  pharmacists  or naturopaths,  but he  was                                                               
still looking into it.                                                                                                          
                                                                                                                                
SENATOR PASKVAN said  that answer seems to infer  that no process                                                               
was followed, so there was no  foundation for his position in the                                                               
last meeting.                                                                                                                   
                                                                                                                                
MR.  HABEGAR said  in  the  last meeting  he  referred to  recent                                                               
licensure action  and he also  referred to  what appears to  be a                                                               
consistent  no  prescriptive  authority  position  based  on  the                                                               
division's history.                                                                                                             
                                                                                                                                
SENATOR  PASKVAN asked  if he  agreed that  whatever the  source,                                                               
there  had  been  a  material  restriction  in  the  naturopath's                                                               
ability to access pharmacies as  part of their practice from what                                                               
has occurred over the last 18 years.                                                                                            
                                                                                                                                
MR.  HABEGAR replied  he agreed  that  that is  the issue  before                                                               
everyone  and that  is what  they are  saying, but  he personally                                                               
didn't have any evidence of it.                                                                                                 
                                                                                                                                
SENATOR PASKVAN  said everything  he is  hearing says  that there                                                               
are statutes  going back to  1986 and  administrative regulations                                                               
that  go  back to  1994  and  it  appears  that they  have  solid                                                               
practices  going  back 18  years.  No  notice  was given  to  the                                                               
naturopaths, and that  implies there was no  opportunity for them                                                               
to be  heard. Therefore, something  has occurred that  appears to                                                               
be arbitrary and  capricious. Whatever the source,  he was pretty                                                               
troubled.                                                                                                                       
                                                                                                                                
2:10:14 PM                                                                                                                    
ANDY  HARRINGTON,  Assistant  Attorney General,  Civil  Division,                                                               
Commercial and Fair Business Section,  Department of Law, Juneau,                                                               
responded  that a  complaint  was filed  about  a naturopath  for                                                               
using  or administering  prescriptive drugs  in 2008.  During the                                                               
investigation, the  division asked  the naturopath where  and how                                                               
the  prescription drugs  were being  obtained and  the naturopath                                                               
indicated an unwillingness to provide  that information. Then the                                                               
division  served  several  local pharmacies  with  administrative                                                               
subpoenas regarding  any prescriptions  they may have  filled for                                                               
the naturopath. The division investigator  gave a heads up to the                                                               
Pharmacy Board  as to  why the subpoenas  were being  served. The                                                               
Pharmacy Board  eventually sent  a cautionary  letter to  the one                                                               
pharmacy that  had been filling  the prescriptions.  He surmised,                                                               
Alaska  being  a small  state,  that  word  of the  subpoena  and                                                               
perhaps the letter got discussed  on the pharmacist grapevine and                                                               
passed along. So, it is  not surprising that other naturopaths in                                                               
other parts of the state  found pharmacists who may have normally                                                               
been  filling  prescriptions  written by  naturopaths  were  less                                                               
willing to do so.                                                                                                               
                                                                                                                                
MR. HARRINGTON  said that any  pharmacist either in state  or out                                                               
who  called him  would have  been told  that Alaska  statute very                                                               
clearly  prohibits   naturopaths  from  giving,   prescribing  or                                                               
recommending in  the practice a  prescription drug.  The division                                                               
felt compelled to interpret its  regulations consistent with that                                                               
statutory  prohibition. Director  Habegar is  correct that  since                                                               
shortly  after  the regulations  were  enacted  the division  has                                                               
consistently  taken the  position  that the  regulations did  not                                                               
forge any kind  of an exception to the  statutory prohibition. It                                                               
is also  fair to say  that the  naturopaths who were  saying they                                                               
assumed the regulations  trumped the statute are  also being very                                                               
truthful  in   their  testimony,  but  regulations   don't  trump                                                               
statute.                                                                                                                        
                                                                                                                                
2:14:32 PM                                                                                                                    
SENATOR  PASKVAN  asked  why  it isn't  appropriate  to  allow  a                                                               
practice that  has been in place  for 18 years to  continue while                                                               
the  legal  issue is  addressed  since  it  appears the  risk  is                                                               
nonexistent.                                                                                                                    
                                                                                                                                
MR.  HARRINGTON  replied  that  it  is  appropriate  because  the                                                               
problem arises  from a mismatch  between language of  the statute                                                               
with  its  fairly  clear  prohibition and  the  language  of  the                                                               
regulations, which  leaves much room  for debate. If  the statute                                                               
is  not  changed  to  correspond   to  regulatory  language,  the                                                               
division would have  to go through the notice  and public comment                                                               
procedure to  propose a regulatory  change that would be  more in                                                               
accordance  with   the  statute,  AS  O8.45.050(1)(A).   But  the                                                               
division  has  wisely  decided  to   await  the  outcome  of  the                                                               
legislative process and is neutral as  to the merits of the bill,                                                               
but  recognizes  the  current   situation  is  pretty  untenable.                                                               
Naturopaths and  their patients  and the  people in  the division                                                               
who are  trying to administer this  law are all disserved  by the                                                               
confusion created for everyone.                                                                                                 
                                                                                                                                
2:17:52 PM                                                                                                                    
SENATOR GIESSEL said AS 08.45.200  says naturopathy means the use                                                               
of  hydrotherapy and  dietetics  and later  says that  "dietetics                                                               
includes  herbal  and homeopathic  remedies"  and  those are  not                                                               
defined there;  they are  defined in regulation  and that  is the                                                               
definition that is being offered in this bill.                                                                                  
                                                                                                                                
SENATOR  DAVIS asked  if  a  pharmacist was  on  line. She  heard                                                               
someone from  a pharmacy say  that they  had been giving  out the                                                               
medicine but  had received information  saying it was  illegal to                                                               
do so.                                                                                                                          
                                                                                                                                
CHAIR EGAN said Dr. Hurlburt said that.                                                                                         
                                                                                                                                
SENATOR DAVIS said  she had been trying to increase  the scope of                                                               
practice for  naturopaths for years  and hasn't  gotten anywhere.                                                               
This bill doesn't give them any  more authority, but it would put                                                               
current practice in statute and she was ready to move it.                                                                       
                                                                                                                                
                                                                                                                                
SENATOR PASKVAN removed his objection to the Amendment 1.                                                                       
                                                                                                                                
CHAIR EGAN said he would hold SB 175 in committee.                                                                              

Document Name Date/Time Subjects
SB 149 - Sponsor Statement.pdf SL&C 2/9/2012 1:30:00 PM
SB 149
SB 149 - Distance Race Schedule.pdf SL&C 2/9/2012 1:30:00 PM
SB 149
SB 149 - Newspaper Articles.pdf SL&C 2/9/2012 1:30:00 PM
SB 149
SB 149 - Non-Profit Mushers Associations.pdf SL&C 2/9/2012 1:30:00 PM
SB 149
SB 149 - Quest Volunteer Form.pdf SL&C 2/9/2012 1:30:00 PM
SB 149
SB 149 - Race Maps.pdf SL&C 2/9/2012 1:30:00 PM
SB 149
SB 149 - Synopsis.pdf SL&C 2/9/2012 1:30:00 PM
SB 149
SB149-DCCED-CBPL-02-03-12.pdf SL&C 2/9/2012 1:30:00 PM
SB 149
SB149-DCCED-INS-02-03-12.pdf SL&C 2/9/2012 1:30:00 PM
SB 149
SB149-DOR-TAX-02-02-12.pdf SL&C 2/9/2012 1:30:00 PM
SB 149