Legislature(2005 - 2006)BELTZ 211
04/12/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB152 | |
| SCR8 | |
| HB95 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| * | SCR 8 | ||
| HB 95 | |||
| = | SB 152 | ||
CSHB 95(RLS)am-PUBLIC HEALTH DISASTERS/EMERGENCIES
CHAIR GENE THERRIAULT announced CSHB 95(RLS)am to be up for
consideration and informed members it is the House equivalent of
SB 75, previously heard by the committee.
4:03:51 PM
DAN BRANCH, Senior Assistant Attorney General, Department of Law
(DOL), said he provides legal representation to the Division of
Public Health. He said DOL approves of the many changes that
were made in response to comments expressed by various entities
and members of the House Judiciary and House Rules Committees.
CHAIR THERRIAULT reminded members when SB 75 was heard in the
Senate State Affairs Committee, members were asked to hold it
and await the House version. He asked Dr. Mandsager to bring
the committee up to speed on the general issue and then discuss
the changes made in the House.
DR. RICHARD MANDSAGER, Director, Division of Public Health,
Department of Health and Social Services (DHSS), told members
CSHB 95(RLS)am reforms Alaska's public health laws. Alaska is
the only state in the country without quarantine authority in
the case of a bioterrorism event. Just such an event was the
major reason for the bill's introduction and another was to
address the Alaska Law Review study in 2000 that found Alaska's
public health laws to be antiquated. Most of those laws date to
pre-territorial days with a few updates for specific epidemics.
In addition to creating a statutory framework to support public
health mission services and roles, the bill states clear
authority for control and updates the due process provisions.
DR. MANDSAGER said the House made four categories of change to
the bill. The first category pertains to the limitation on
governmental powers. Clearly identifying those limits has been
the focal point of discussion in committees. The second category
deals with penalties for state employees for violation of
statutory provisions. That was the sole focus of debate on the
House floor. The third category is personal responsibility
regarding issues raised by Christian Scientists and the AkCLU
about both individual responsibility and choice. The fourth
category addresses miscellaneous changes.
4:09:48 PM
DR. MANDSAGER detailed the specific amendments made to the bill
as follows. First, the title of the bill was changed to add
detail and clarity. Second, the bill was amended to allow claims
for damages caused by medical treatment provided by state
employees. This issue centered on state liability for a state
employee who supervises medical treatment, like any other
medical practitioner in the state. The decision was to hold
state employees to the same standard of care as other medical
practitioners. Third, the bill limits the state's immunity to
$500 per day if it isolates a person with gross negligence or
intentionally violates a provision governing quarantine and
isolation. The bill originally gave the state total immunity. He
pointed out a state employee can only quarantine an individual
without court supervision for a maximum of 72 hours.
SENATOR KIM ELTON asked if state denial of access to legal
counsel to a quarantined person would subject the state to the
$500 per day penalty.
MR. BRANCH said that would be a matter for the court to decide
because the court would appoint legal counsel for the
individual.
DR. MANDSAGER continued to say that the division had lengthy
discussions with the AkCLU about the acquisition and use of
identifiable health information. The language in the bill limits
the division's access to medical information that relates
directly to a public health purpose that cannot be achieved at
least as well using non-identifiable health information. He said
the division can accomplish a lot with non-identifiable health
information.
4:13:40 PM
CHAIR THERRIAULT referred to subsection (2) on page 3 of the
bill and asked how damages caused by the failure to establish a
quarantine would work.
MR. BRANCH said the main concern of the House members who asked
for that change was for an individual to have some recourse if
the state fails to provide the rights set out in the statute. He
explained if someone gets quarantined on an emergency order and
the state fails to notify the court within 48 hours, that person
would have recourse to get $500 per day for that violation. He
said the House felt that penalty was necessary to provide the
bill with "teeth." The penalty does not apply to the failure to
impose or establish quarantine; it applies when quarantine was
imposed and an individual feels his/her statutory rights were
violated.
CHAIR THERRIAULT clarified that subsection (2) is a limitation.
DR. MANDSAGER continued to say that a further change is that the
collection of health information is limited with a higher bar
under AS 18.15.355-395 than other limitations. He stated, "We're
dealing with personal health problems. We don't want people to
be branded with some scarlet letter that they have some bad
problem and so on - that we need to achieve a very high standard
if we're going to get information under this act."
The bill also says that as soon as the division is finished with
medical information, the information must be confidentially
expunged immediately. The last two changes pertain to
misdemeanor penalties for knowingly disclosing identifiable
health information or for knowingly violating a provision
related to quarantine and isolation. A compromise worked out on
the House floor was that intentional disclosure of information
is punishable by a class A misdemeanor. That is consistent with
other statutes that pertain to state employee confidentiality
requirements.
4:18:12 PM
SENATOR ELTON asked what would happen if a state employee
discloses information and did not know about the confidentiality
requirement.
MR. BRANCH said the district attorney wouldn't prosecute such a
case because the employee's mental state could not be proven.
SENATOR ELTON remarked ignorance of the law isn't an excuse.
MR. BRANCH responded the words "knowingly" and "intentionally"
are terms of art defined in AS 11.81.900. His understanding is
that to act knowingly means the employee was aware of the
statutory requirement and acted anyway. He offered to discuss
the matter further with Senator Elton's staff.
SENATOR ELTON said his concern is that a person who is given the
power of quarantine should know the law.
DR. MANDSAGER agreed with Senator Elton that it is the division
managers' responsibility to make sure that staff knows the law.
He continued describing the next change made by the House, which
provides the right to refuse treatment if the individual is
willing to take steps to prevent the spread of a communicable
disease. The least restrictive alternative would be used
whenever possible when isolating or quarantining individuals.
"Least restrictive alternative" is defined in the bill. The
division's experience is that most of time the state does not
have to get a court order to isolate an individual because
people tend to voluntarily agree. The division always needs to
pursue that route before taking court action.
DR. MANDSAGER said another issue of concern was that quarantines
might be imposed on flu victims or people with ordinary
infectious diseases. For that reason, the bill said the illness
must pose a significant risk to public health before isolation
or quarantine can occur.
SENATOR ELTON pointed out that other provisions of the bill
refer to a substantial risk to public health. He asked why
"substantial" was used elsewhere.
DR. MANDSAGER noted the word "substantial" remains in two places
in the bill. He asked Mr. Branch if that matters from a legal
perspective.
CHAIR THERRIAULT suggested that for consistency the committee
should make the change now, otherwise the courts would argue
about it for years.
MR. BRANCH said the division worked with Legislative Legal and
Research Services to try to get the same term used.
DR. MANDSAGER said the word "substantial" is used on page 13,
line 19. That word is linked to risk of transmitting a
contagious disease. The word "significant" is used when it poses
a significant risk to public health. He again asked Mr. Branch
if he thought that makes a difference from a legal standpoint.
MR. BRANCH replied there is justification for using the
different terms even though they are similar. He said the
statement about discussing the matter with Legislative Legal and
Research Services is still accurate. He believes the bill
appropriately distinguishes between the two terms.
DR. MANDSAGER said the next change states preference for home
quarantine or isolation unless exceptional circumstances exist
that would jeopardize public health. The House also requires on
page 14 that an affidavit in a court petition must contain
specific facts to support allegations. The petition must include
all of the elements listed on page 14.
DR. MANDSAGER said the next change removes denial of party
status to parents or guardians of a minor in isolation or
quarantine proceedings. The next change adds a paragraph that
says that a person exposed to hazardous materials that can cause
serious illness or injury by transmission to others could be
subject to quarantine or isolation. He gave two examples: severe
radiation exposure and the Sarin incident in Japan, where people
who were exposed to the Sarin gas could expose other people to
it when exhaling. The division is also required to submit an
annual report to the legislature on its activities under this
statute. Definitions of "least restrictive" and "public health
purpose" were added. Indirect court rule amendments were also
added to address the court changes. Last, a provision was added
to the bill that urges the division to apply for appropriate
funding sources related to transforming health care quality
through information technology.
4:28:00 PM
CHAIR THERRIAULT asked Dr. Mandsager which areas of the bill are
still contentious.
DR. MANDSAGER said the director of the AkCLU does not feel that
the bill goes far enough regarding the standards the division
would have to achieve before instituting a quarantine or
isolation. The bill has come a long way but he would like it to
be more specific.
SENATOR WAGONER asked how this legislation compares to
quarantine legislation in other states.
DR. MANDSAGER said quarantine laws vary among the states. Some
states have authority that can be enhanced or provide for
expedited performance during an emergency. Some states updated
their emergency powers after 911. He said if one compares this
bill to the model act that was developed, this legislation is
more restrictive regarding governmental powers and reflects
Alaska's privacy standards. The quarantine and isolation
provisions require more steps and court action than the model
act.
MR. BRANCH told members Alaska's current statute is unique in
that it does not give the division authority to quarantine or
isolate for anything but SARS or TB. In general, other states
have more authority because it is necessary to deal with
bioterrorism.
CHAIR THERRIAULT asked if the enhanced or expedited performance
authority that other states have is triggered by a declaration
from the executive.
DR. MANDSAGER said that is usually the case, but in some states
a commissioner of health has similar authority.
SENATOR ELTON recollected the committee discussed the definition
of "condition of public health importance" (page 19, line 23)
because obesity could fall under that definition. He asked
whether tightening that definition by using the word "acute" or
something that more narrowly defines collection of information
was considered.
DR. MANDSAGER said that definition has been discussed and the
AkCLU discussed a 2 or 3-tiered system. The division struggled
with that question and didn't think it could come up with
language inclusive enough to do that. The division feels that
definition is balanced by the other tests it must achieve before
it can do work in the areas of "condition of public health
importance."
CHAIR THERRIAULT asked if the House committees debated how to
rein that definition in and just couldn't come up with workable
language.
MR. BRANCH said it was addressed but in a different context.
Using Senator Elton's example of establishing obesity as an
excuse to collect private information, he noted that the
language on page 9, lines 10-18, limits the division's ability
to collect identifiable information.
DR. MANDSAGER said all of the amendments made in the category of
limitations of governmental powers limit the division's power to
collect identifiable health information, to quarantine, and to
isolate. The amendments reflect the House's attempt to strike a
balance rather than change the definition.
MR. BRANCH told members that on page 9 a provision was added to
AS 18.15.362, which limits acquisition of information. In
conjunction with AS 18.15.365, it is designed to enhance
security safeguards.
DR. MANDSAGER pointed out that identifiable information wouldn't
be necessary to get obesity data; that data could be obtained
with non-identifiable information.
SENATOR ELTON said he was still struggling with the definition
and asked that the AkCLU comment.
4:37:03 PM
CHAIR THERRIAULT asked Mr. Michael MacLeod-Ball to testify.
MICHAEL MACLEOD-BALL, Executive Director, Alaska Civil Liberties
Union (AkCLU), opined that this version of the bill is
substantially better than the original version. Although he
appreciates the efforts the division has made to accommodate
some of the AkCLU's concerns, it still has some concern about
the degree of privacy and the amount of information the division
needs to do its job and the risks of limiting that information
further.
MR. MACLEOD-BALL said the AkCLU continues to be concerned about
the following areas. First, the "conditions of public health
importance" enforcement provisions require the division to prove
that a significant risk to public health exists to maintain its
quarantine order on people quarantined against their will. He
questioned the enforcement procedure and whether due process
would be served if the state acts improperly. Adding the
provisions that require the state to prove an individual poses a
significant risk to public health helps protect the individual's
rights. However, that does not solve the entire problem because
the term "significant risk to public health" is not defined.
AkCLU's concern is the shift in importance in the two
definitions. The court would then decide what "significant risk
to public health" means because the bill does not provide that
guidance.
The AkCLU suggested including three concepts in the definition:
one having to do with the degree of contagion; one having to do
with the severity of the health threat; and the third having to
do with the means of transmission. He said the division was not
willing or able to come up with a workable definition that
included the three concepts.
MR. MACLEOD-BALL told members the AkCLU believes the provision
regarding access to identifiable health information remains too
broad in AS 18.15.362. The AkCLU would like to see a provision
included that offers protection against loss of job and loss of
housing as a direct result of quarantine or isolation.
MR. MACLEOD-BALL said the ex parte language is still an area of
concern because the division could get an order from the court
without the presence of or representation for the other party.
Because the party would already know about the hearings going
forward, the AkCLU doesn't see the need for ex parte
proceedings.
4:44:08 PM
SENATOR ELTON thanked all participants for the effort they
expended on the legislation. He then asked Mr. MacLeod-Ball if
he was suggesting that the lack of a definition for "significant
public risk" could be a complicating factor because the state
could end up in court with a judge who is not a health care
professional deciding what constitutes a significant public
health risk.
MR. MACLEOD-BALL said he believes it would be preferable that
medical experts find the parameters of where the court can
operate in this area. From the AkCLU's perspective, it is more
of a question of making sure the person with AIDS is not
isolated. Without a definition, an activist judge or public
health official could use the relative ambiguity of that
definition and apply it to circumstances other than what it is
intended for. He emphasized that tightening the definition now
will prevent ambiguity later.
SENATOR ELTON asked Mr. MacLeod-Ball if he sees anything in the
bill that would allow the state to prevent access to legal
counsel.
MR. MACLEOD-BALL said he believes the Office of Public Advocacy
(OPA) is given authority to represent individuals under both the
testing order and the quarantine order section. He said how OPA
would do that in remote areas is questionable.
CHAIR THERRIAULT asked Dr. Mandsager how much discussion took
place about the possibility of an individual losing a job or
housing while in isolation.
DR. MANDSAGER said the division has had a fair amount of
discussion with the Department of Law and the AkCLU about that
issue. He said the division's primary job is to protect the
public's health. The number of days a person can be isolated
without court involvement is very limited and the division can
only isolate an individual without court involvement in an
emergency. Also, if isolation is imposed and a person is unable
to work, the question is whether the state should be liable for
damages. The judgment to date is that the state should not be
liable.
CHAIR THERRIAULT asked about the AkCLU's concern about the loss
of housing and whether that should be addressed in this
legislation. He questioned whether the issue centers on a person
being evicted by a landlord.
MR. MACLEOD-BALL said AkCLU's concern is that discrimination
might befall people who are in isolation or quarantine. He said
it might be better to have that issue be the subject of other
legislation but this legislation is available now.
CHAIR THERRIAULT said the potential for those problems exist
now.
MR. MACLEOD-BALL agreed.
SENATOR ELTON said with regard to the definition of significant
public health risk, it makes sense to have some kind of a recipe
for the court to follow so that judges make consistent
decisions.
DR. MANDSAGER asked Senator Elton if his concern is mostly about
the significant risk to public health in the isolation and
quarantine section, and not as much about the tests required
before the division can collect identifiable health information.
SENATOR ELTON said he is concerned about both but the bigger
issue is the quarantine issue.
DR. MANDSAGER asked if the tests for acquisition of identifiable
public health information on page 9, lines 13-18, make sense.
SENATOR ELTON replied, "It seems to me that number 3 would be
the squishy one. You might have more knowledge about that than a
judge would - about what processes otherwise could be used."
DR. MANDSAGER said this bill has a much better definition and
better restriction on the collection and use of identifiable
health information than the current statute. Although it may
not be perfect, the division believes its practices would hold
up to scrutiny. He referred to page 13, line 6, and said with
regard to isolation and quarantine, the division has not been
able to come up with a definition of significant risk to public
health yet.
4:54:18 PM
CHAIR THERRIAULT said he did not intend to move the bill today.
MR. MACLEOD-BALL pointed out the phrase "substantial risk to
public health" is on page 14, line 5 and is in the section about
allegations that must be included in the petition. He said use
of "significant risk to public health" on page 16, line 2 is of
most concern to AkCLU because that is what the court needs to
find.
CHAIR THERRIAULT asked members if they are satisfied with the
explanation that "substantial" is tied to the transmission of a
disease on page 13, but it is not tied to transmission on the
next page. He suggested that staff discuss with the legal
drafters the need to use a consistent phrase.
4:56:28 PM
CHAIR THERRIAULT stated that the committee would likely take
final action on CSHB 95(RLS)am on Thursday.
| Document Name | Date/Time | Subjects |
|---|