Legislature(1995 - 1996)
03/28/1995 02:09 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES STANDING COMMITTEE March 28, 1995 2:09 p.m. MEMBERS PRESENT Representative Cynthia Toohey, Co-Chair Representative Con Bunde, Co-Chair Representative Al Vezey Representative Gary Davis Representative Norman Rokeberg Representative Caren Robinson Representative Tom Brice MEMBERS ABSENT None COMMITTEE CALENDAR * HB 214: "An Act relating to the maintenance by health care providers of medical records in an electronic format." PASSED OUT OF COMMITTEE * HB 274: "An Act relating to the state's tuberculosis control program, including provisions for certain penalties; and providing for an effective date." PASSED OUT OF COMMITTEE HB 226: "An Act permitting the provision of different retirement and health benefits to employees based on marital status." HEARD AND HELD (* First public hearing) WITNESS REGISTER GARY PESKA, Representative Alaska State Hospital and Nursing Home Association P.O. Box 240185 Douglas, AK 99824 Telephone: (907) 586-1790 POSITION STATEMENT: Testified in support of HB 214. CHAR THOMPSON, President Alaska Health Information Management Association HC01, Box 6201-AB Palmer, AK 99645 Telephone: (907) 762-0273 POSITION STATEMENT: Testified in support of HB 214. ELMER LINDSTROM, Special Assistant to Commissioner Perdue Department of Health and Social Services Alaska Office Building 350 Main Street, Room 229 Juneau, AK 99801 Telephone: (907) 465-3030 POSITION STATEMENT: Testified in support of HB 214. DR. PETER NAKAMURA, Director Division of Public Health Department of Health and Social Services 350 Main Street, Room 403 Juneau, AK 99801 Telephone: (907) 465-3090 POSITION STATEMENT: Testified in support of HB 274. KRISTEN BOMENGEN, Assistant Attorney General Criminal Division Department of Law Room 200, Fuller Building 4th and Harris Juneau, AK 99801 Telephone: (907) 465-3600 POSITION STATEMENT: Testified on HB 274. REPRESENTATIVE PETE KELLY Room 513, State Capitol Juneau, AK 99801 Telephone: (907) 465-2327 POSITION STATEMENT: Presented sponsor statement for HB 226. MILDRED BOESSER, Representative Parents, Families and Friends of Lesbians and Gays City and Borough of Juneau Human Rights Commission 17585 Lena Loop Juneau, AK 99801 Telephone: (907) 789-1445 POSITION STATEMENT: Testified against HB 226. MARGARET BERCK, Attorney American Civil Liberties Union 227 7th Street Juneau, AK 99801 Telephone: (907) 586-3309 POSITION STATEMENT: Testified against HB 226. TALMADGE W. BAILEY, Board Member Southeast Alaska Gay and Lesbian Alliance P.O. Box 34542 Juneau, AK 99803 Telephone: (907) 790-2519 POSITION STATEMENT: Testified against HB 226. MARK TUMEO, Professor University of Alaska Fairbanks 1324 Summit Drive Fairbanks, AK 99712 Telephone: (907) 474-6090 POSITION STATEMENT: Testified against HB 226. SARAH BOESSER, Board Member Committee for Equality P.O. Box 34542 Juneau, AK 99803 Telephone: (907) 789-9604 POSITION STATEMENT: Testified against HB 226. DANIEL COLLISON, Vice President Southeast Alaska Gay and Lesbian Association P.O. Box 21466 Juneau, AK 99802 Telephone: (907) 789-5001 POSITION STATEMENT: Testified against HB 226. JOHN GAGUINE, Assistant Attorney General Governmental Affairs Section, Civil Division Department of Law P.O. Box 110300 Juneau, AK 99811 Telephone: (907) 465-2127 POSITION STATEMENT: Testified on HB 226. MARYLOU BURTON, Director of Statewide Budget University of Alaska Juneau, AK 99801 Telephone: (907) 463-3086 POSITION STATEMENT: Testified in support of HB 226. MARY GRAHAM, Interested Citizen 235 5th Street, Number 2 Juneau, AK 99801 Telephone: (907) 586-4938 POSITION STATEMENT: Testified against HB 226. PREVIOUS ACTION BILL: HB 214 SHORT TITLE: MEDICAL RECORDS IN ELECTRONIC FORM SPONSOR(S): REPRESENTATIVE(S) G.DAVIS JRN-DATE JRN-PG ACTION 03/01/95 530 (H) READ THE FIRST TIME - REFERRAL(S) 03/01/95 530 (H) HEALTH, EDUCATION & SOCIAL SERVICES 03/28/95 (H) HES AT 02:00 PM CAPITOL 106 BILL: HB 274 SHORT TITLE: TUBERCULOSIS CONTROL SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR JRN-DATE JRN-PG ACTION 03/22/95 852 (H) READ THE FIRST TIME - REFERRAL(S) 03/22/95 853 (H) HES, JUDICIARY 03/22/95 853 (H) 4 ZERO FNS (2-ADM, LAW, DHSS) 3/22/95 03/22/95 853 (H) GOVERNOR'S TRANSMITTAL LETTER 03/28/95 (H) HES AT 02:00 PM CAPITOL 106 BILL: HB 226 SHORT TITLE: MARITAL STATUS AND RETIREMENT BENEFITS SPONSOR(S): REPRESENTATIVE(S) KELLY, Rokeberg JRN-DATE JRN-PG ACTION 03/03/95 565 (H) READ THE FIRST TIME - REFERRAL(S) 03/03/95 565 (H) STATE AFFAIRS, HES, JUDICIARY 03/18/95 (H) STA AT 10:00 AM CAPITOL 102 03/18/95 (H) MINUTE(STA) 03/20/95 808 (H) STA RPT 4DP 1AM 03/20/95 808 (H) DP: JAMES, PORTER, GREEN, IVAN 03/20/95 808 (H) AM: ROBINSON 03/20/95 808 (H) ZERO FISCAL NOTE (ADMIN/ALL DEPTS) 03/20/95 808 (H) REFERRED TO HES 03/28/95 (H) HES AT 02:00 PM CAPITOL 106 ACTION NARRATIVE TAPE 95-28, SIDE A Number 000 CO-CHAIR CYNTHIA TOOHEY called the meeting of the House Health, Education and Social Services Standing Committee to order at 2:09 p.m. Present at the call to order were Representatives Davis, Bunde, Toohey and Robinson. She announced a quorum was present to conduct business, and read the order of the bills to be heard. At 2:10 p.m. Representative Rokeberg joined the meeting. HB 214: MEDICAL RECORDS IN ELECTRONIC FORM Number 087 REPRESENTATIVE GARY DAVIS, sponsor of the bill, said HB 214 will clarify that electronically stored medical records on computer terminals are legally acceptable in lieu of records on paper. Hospitals and nursing homes are moving toward paperless offices in an effort to promote efficiency. However, some providers are hesitant to implement the electronic retention and maintenance of medical records without a hard copy back up, due to the lack of explicit legal authority. REPRESENTATIVE DAVIS continued that the current statute relating to medical records neither prohibits nor permits them to be kept electronically. A legal memorandum from Legislative Legal Services indicative of health care providers concerned the ability to maintain medical records which is not clearly defined in statute or regulation. REPRESENTATIVE DAVIS said HB 214 would lend clarity to the medical records statute. The current statute just says medical records will be kept. That could be interpreted to mean records can be kept electronically or the old-fashioned way, on paper. Some institutions are hesitant to utilize the new and expanding technology of computer storage. REPRESENTATIVE DAVIS said this bill makes it legal and clarifies the statute. This is not a mandate, it only says records may be stored in this manner should the institution decide to do so. Number 236 CO-CHAIR CON BUNDE assumed where the bill says, "maintain and preserve," it means all facilities for backup will be available. This is in case the system crashes. In such a case, information will still be available somehow. REPRESENTATIVE DAVIS said the whole system would be in place to protect confidentiality through computer access. In addition, backup, the current required length of time to maintain records, and security will all be included. CO-CHAIR BUNDE said he has heard stories about hackers who challenge systems because they are there. Co-Chair Bunde assumes these systems would not be on-line and, therefore, accessible to hackers. He asked if Representative Davis had an idea about how systems might be designed to thwart hackers. REPRESENTATIVE DAVIS said discussions he has had in that regard relate to various methods of maintaining confidentiality. There are different ways to access records. There is fingerprint identification access and other types of technology available. It is the understanding of Representative Davis that since this is such a critical area in which to maintain security, the regulations would mandate the highest form of security available. REPRESENTATIVE TOM BRICE joined the meeting at 2:12 p.m., and applauded the bill. Number 411 REPRESENTATIVE NORMAN ROKEBERG asked if the provision for mandating tape backups and copies of data would be perhaps micromanagment. Representative Rokeberg asked if Representative Davis would be willing to consider that possibility. REPRESENTATIVE DAVIS thought existing regulations concerning how a hospital or nursing home keeps records are already stringent. The paperwork done now would simply be done electronically. This would include backup and all the other proper requirements. There are those who are testifying on this bill who could properly address those questions. CO-CHAIR BUNDE spoke to clarify his own understanding. Nothing in this bill would absolve the medical industry from the current provisions for guaranteeing privacy. REPRESENTATIVE DAVIS said that is the intent of this bill. CO-CHAIR BUNDE asked if it would be the responsibility of the hospital to design a system that is safe and private to insure confidentiality. REPRESENTATIVE DAVIS reiterated that is the intent of this bill. Number 530 REPRESENTATIVE BRICE said he believes that considering the advancements that take place in computer technology, to put into statute specifically how this storage will be accomplished as far as backup information would be inefficient. Any such provisions would be outdated very quickly. Considering the speed of technology development, it is probably best to leave well enough alone and understand that general computer practices dictate confidentiality to begin with. Number 598 GARY PESKA, Representative, Alaska State Hospital and Nursing Home Association (ASHNHA), said his organization supports HB 214 for all the reasons stated by Representative Davis in his sponsor statement. Mr. Peska offered to answer any questions HESS Committee members may have. Number 630 CHAR THOMPSON, President, Alaska Health Information Management Association, which was previously known as the Alaska Medical Records Association, said the AKHIMA totally supports HB 214. Ms. Thompson has provided written testimony in support of this legislation, and has listed some of the reasons her association considers this legislation to be necessary. MS. THOMPSON said computer-based patient records are being used throughout the country to improve the quality of patient care and to improve the documentation of patient care. It is necessary to provide the legal authority in this state to allow health care providers to maintain and preserve the medical records in an electronic format. However, currently, as Representative Davis noted, there is some confusion about whether or not it is legal to maintain records in an electronic format without also maintaining paper-based records also. MS. THOMPSON said computer-based records are essential to supporting the clinical decision-making process in patient care. Maintaining information in an electronic format will allow health care providers quicker access to essential information when a patient walks into the door of a medical facility. Number 724 MS. THOMPSON was sure all HESS Committee members were aware of the scenario of a patient coming into the emergency room and their records are not available for five minutes to 30 minutes. Meanwhile, the medical personnel must treat that patient without knowing, for example, that they are diabetic or have special medical conditions that need attention. MS. THOMPSON said relying on paper-based records means personnel must wait for the records to arrive in the emergency room, or there must be a reliable way to store the records in the facility, or the patient must be aware enough to provide their medical history. There are times, perhaps, when care suffers because the records are not available. Also, paper-based records rely on prompt filing of diagnostic tests. There are different case scenarios where diagnostic tests are not filed promptly, and physicians have to reorder a lab test to get the results he or she needs. MS. THOMPSON continued that electronic patient records allow health care providers to utilize clinical management computer systems which will automatically alert them if there are any drug allergies when they prescribe a medication. That will lead them to a new method of treatment. To utilize those clinical management programs, the patient's medical history must be input into the computer. Number 822 MS. THOMPSON added currently, health information management professionals are required to print out all information for computers and have the health care providers sign that form in order to file it in the paper-based medical records. This is a very time consuming and expensive process which does nothing to add to the quality of patient care or add to the quality of the documentation. MS. THOMPSON said proponents of health care reform stress it is imperative to reduce health care costs. Instead, when confined to using electronic records and then also printing the reports, having them signed and then filed, costs are added. MS. THOMPSON said there is also an increasing move toward communication between health care systems. One patient may go from a hospital to a clinic to a nursing home. Each of those facilities and health care providers keep their own paper-based records. As patients move between health care systems, electronic patient records will facilitate the continuity of medical care throughout each provider. This will be without the necessity of duplicating assessments, diagnostic tests and medical records in each facility. This will be by allowing the transfer of electronic patient information with the patient. Number 918 MS. THOMPSON noted that all of this can only come about in an efficient and effective way if the need to also maintain a paper- based medical record system can be eliminated. There were concerns expressed earlier by Co-Chair Bunde regarding the security and the access of those records. Ms. Thompson assured him she was very concerned about this also. Not only is she a proponent for electronic patient records, but she is also probably the best advocate for patient confidentiality. Her organization has worked with the Department of Health and Social Services (DHSS), Health Facility Licensing and Certification Division, to develop regulations for electronic medical records. These regulations are in draft format currently. MS. THOMPSON said these draft regulations will allow for patient information to be maintained in electronic format and provide adequate security and backup to ensure the proper retention of medical record data. There will also be provisions regarding confidentiality of patient information. Draft regulations have been developed which address essential issues relating to authentic identification, confidentiality, access, retention and security. Ms. Thompson agrees, however, that these provisions should not be in statute. As things change in the electronic industry, new technology and programs become available. She said she would like the ability to update regulations to reflect the current technology. It is much easier to update regulations than statutes. Number 1019 CO-CHAIR TOOHEY said Ms. Thompson covered that very well. Co-Chair Toohey, who is not a computer wizard, said it is a little frightening to think medical records are going to be possibly lost in cyberspace. However, Ms. Thompson has allayed those fears. MS. THOMPSON said one of the recommendations that has been made is for backup to be maintained off-site. This is in case there is an internal disaster. In such a case, a backup copy will be available off-site. One of the things that it will also do is provide more security than is currently available. Currently, if a medical record is lost due to a fire or other disaster in the hospital, there is no way of retrieving that medical record. Number 1059 CO-CHAIR TOOHEY asked if back-up material was currently kept in a fire-proof container at the hospitals. MS. THOMPSON did not exactly remember the exact regulations, but felt that was the normal procedure for a health information management organization services. Number 1096 ELMER LINDSTROM, Special Assistant to Commissioner Perdue, DHSS, said the department has reviewed HB 214 and believes that allowing health care providers to maintain medical records in an electronic format is desirable for a number of reasons. The department has noted that increasingly, health care providers are maintaining patient records, billing information and other medical records in automated systems. MR. LINDSTROM said the electronic format allows for increased productivity in updating and maintaining the records, and it also allows for multiple-site access to medical records. This has applications to tele-medicine. For those reasons, the DHSS feels this is a desirable development. MR. LINDSTROM said the DHSS will be charged under the bill with developing regulations to implement the potential law. The DHSS would be addressing the issues that have previously come up which relate to patient informed consent and records in that area, some federal records requirements, record keeping for vaccines, and so forth. However, the DHSS is confident these regulations can be promulgated to everyone's satisfaction. The DHSS appreciates the flexibility to take that approach. Number 1163 REPRESENTATIVE DAVIS said the development and cost of developing regulations is a big concern to everyone. The state watches every fiscal note that comes along. He noted that Char Thompson has some draft regulations available, and asked if those could be used on a professional consulting basis. Representative Davis asked Mr. Lindstrom if he saw those draft regulations as expediting the DHSS process of promulgating regulations. MR. LINDSTROM said the DHSS did submit a zero fiscal note for this bill. There are costs associated with developing regulations, but those can be accommodated with the existing budget. The DHSS will, of course, take advantage of every resource in the community. The resources of the association and others will be most helpful as the DHSS drafts its regulations. CO-CHAIR TOOHEY closed the meeting to public testimony and asked for the wish of the committee. She also announced that Representative Vezey had joined the meeting at 2:30 p.m. Number 1210 CO-CHAIR BUNDE made a motion to move HB 214 from committee with accompanying fiscal notes and individual recommendations. Hearing no objection, the bill passed from committee. HB 274: TUBERCULOSIS CONTROL Number 1279 CO-CHAIR TOOHEY indicated HB 274 was sponsored by the Rules Committee by request of the Governor's Office. DR. PETER NAKAMURA, Director, Division of Public Health, DHSS, said he was very happy to present HB 274. Tuberculosis (TB) is a recurring problem, and has been receiving increased attention. In addressing the most recent outbreak of TB in this state, the DHSS encountered a number of issues that led it back to the original statutes on TB. Those statutes were found to be inadequate and in need of revision. One of the major issues that needed to be revised was to assure that as the isolation of recalcitrant patients is addressed, due process is not overlooked. It is important patients' rights are adhered to and recognized in that situation. DR. NAKAMURA asked to run through HB 274 by sections, and highlight the key issues within each section. Section 1 is basically a definition of what is needed to protect the public health from persons with TB who pose a threat. These are individuals who are recalcitrant, and are either unable or unwilling to conform to the recommendations for treatment. This section also addresses voluntary care and monitoring to assure a system is in place in the state for identifying patients who are diagnosed as having TB, and assuring that their treatment is monitored until the point of completion. Number 1367 DR. NAKAMURA said if a patient goes from place to place, their records should follow them so providers in the new communities will be able to address their problems. DR. NAKAMURA said the special concern of his division is that if there are patients who are identified and begin treatment, subsequently stop treatment, start again, and stop again, there is a very real danger of developing a drug-resistant strain of TB. Once that happens, the cost of care and the management is significantly increased. Number 1396 DR. NAKAMURA continued with Section 2. He said it is reminiscent of a previous bill, but with some amendments. The amendments are just to some of the terms. For instance, "sanitorium" is changed to "facilities." Section 3 also refers to some amendments in the existing bill. Again, there are wording changes. One term used is "tuberculars." This is replaced with "persons with tuberculosis." DR. NAKAMURA said Section 4 refers to the reporting of new cases and the cessation of treatment. This goes back to the issue of patients who are first diagnosed and records are placed into a system which documents the disease. It relates to the existence of a system which follows up and contacts the patient periodically. This is to make sure that when a patient is on treatment, that treatment is carried out to completion. DR. NAKAMURA noted there is a requirement that there be written documentation in adherence to records that the State Medical Officer will have access to the patients records for epidemiological purposes. It is also required that there is contact follow up, and there is reporting of the disease to the State Medical Officer. Examinations of suspected cases is also mandated. Number 1468 DR. NAKAMURA said Section 5 has an amendment changing the examination and reporting of those with TB from licensed physicians in the state to those "who may lawfully practice" in the state. The key in that issue is there are physicians who are with the federal health care system who lawfully can practice in the state, but who are not necessarily licensed in the state. DR. NAKAMURA continued that Section 6 repeals a section and re- enacts portions of it. This section refers to the ability to isolate or quarantine individuals who are less than willing to follow the recommended therapy. Recently, there was a situation in an Alaskan community where a patient was infected and infectious, and did not wish to or could not conform to therapy. The requirement was that he be isolated in the quarantine state to assure that treatment was administered. Number 1523 DR. NAKAMURA said this section also gives assurance of due process. If a patient is isolated or quarantined through the order of a medical officer of the State Health Department, this patient has a right to ask for a repeal of that isolation within five days. There has to be a review of the issue. Within 60 days, there has to be a type of court hearing on the case, and a determination must be made whether the patient is to be retained in isolation or not. DR. NAKAMURA explained that basically, this assures due process for the patient. Number 1550 CO-CHAIR BUNDE had a question about the isolation process. He asked if patients are isolated in a hospital, in their own homes, or where. DR. NAKAMURA said the language is written such that if it is feasible to isolate the individual at his or her home, that can be done. However, the isolation can also take place at a medical facility or, in some situations where neither of the two are available, the patient could be quarantined in any other facility that could provide the necessary isolation. CO-CHAIR BUNDE asked if a correctional facility could be used. DR. NAKAMURA said yes. Number 1584 DR. NAKAMURA said Section 7 allows the emergency detention of a patient, and provides for due process rights. Section 8 is an extension of Section 6, which allows for the quarantine/isolation of a patient, and the due process. Section 9 allows for the treatment of patients who have strong religious convictions. Section 9 allows this to be taken under consideration, but with the assurance that the public is protected from this individual in some setting that would limit public exposure. CO-CHAIR TOOHEY asked if that meant unless there is a miracle as TB is not going to cure itself, people of a certain religious order will have to be confined for the rest of their lives. DR. NAKAMURA said the wording is such that the special needs of those people can be considered. It does not say the state is mandated to excuse them from necessary treatment, if that is felt to be necessary. Number 1659 CO-CHAIR TOOHEY said that in many Asian countries, people riding bicycles wear surgical-style masks. She asked if those masks have any deterrent on TB at all. DR. NAKAMURA replied that the masks could have some degree of deterrent if the mask is of such a nature that it can catch most of the droplets. This is an airborne disease, and many of the organisms are transmitted through droplets. This is not a foolish precaution, it is definitely a measure of protection. DR. NAKAMURA continued with Section 10. It is an amendment for the protection of school children. Basically, it says teachers should be skin tested annually. In the case the teacher already skin tests positive, other examinations be administered. These could include either chest X-rays or sputum samples. Number 1701 CO-CHAIR BUNDE said that was the practice at one time in Alaska, but those requirements were dropped. Now they are going to be reinstated. DR. NAKAMURA said at least within the school setting, those are going to be reinstated. There is already a requirement that children in the rural areas be tested on an annual basis. CO-CHAIR BUNDE asked if Dr. Nakamura or the state has ever found a teacher with active TB. DR. NAKAMURA did not have an answer to that question, but he offered to get it for Co-Chair Bunde. CO-CHAIR BUNDE knows they have tested for TB for years, and he didn't know if it was for the protection of teachers or children. DR. NAKAMURA said it is a system of identifying cases of TB that may be recurring in a community that previously was free of TB. One of the sentinel events can be a child who turns positive. This allows the medical agencies to try and find the source of the infection. Number 1742 DR. NAKAMURA summarized Section 11. It is the last amendment, and it is an inclusion of what was in the previous bill. It allows for penalties for violations of the aforementioned requirements. Such violations would be a misdemeanor. CO-CHAIR TOOHEY asked what the penalties were for such a misdemeanor. Number 1795 REPRESENTATIVE VEZEY asked what class the misdemeanor would fall under, or if it was unclassified. CO-CHAIR TOOHEY said it was a class A misdemeanor. REPRESENTATIVE VEZEY that would carry a six-month penalty. A person could be confined for six months, whether in a jail or hospital. Number 1795 REPRESENTATIVE VEZEY thought TB had been eradicated from Alaska a few generations ago. He wondered how he is going to explain to people in Fairbanks and the North Pole area that people are being incarcerated or confined because they are ill. He asked Dr. Nakamura what he would tell them if he were Representative Vezey. DR. NAKAMURA replied he would tell them that the patients are not being incarcerated. In fact, most patients with TB will not be placed in such facilities. It is only patients who are recalcitrant, and who refuse to conform to the necessary public health practice to avoid infecting the rest of the public. Those patients who are more than willing to take their medications and follow the recommended therapies would never be affected by this requirement. REPRESENTATIVE VEZEY said therefore, if a person is diagnosed with infectious TB, as long as that person is following medical treatment, there is no reason to isolate that person from society. DR. NAKAMURA said that was true. There may be a need to initially keep the patient from exposing the rest of the public to TB until the medication has taken effect to the point that the patient is no longer infectious. Number 1664 REPRESENTATIVE VEZEY asked how long that would take. DR. NAKAMURA said the time can vary from a period of one to two weeks to a period of several months depending on the degree of the infection. REPRESENTATIVE VEZEY noted that any person under medical treatment can possibly expose other members of society for about two weeks. However, this bill is not targeted toward those people. DR. NAKAMURA said this bill is really targeted to those who refuse to conform to therapy. For example, his office encountered a person during the most recent outbreak of TB who refused to take medication until he was quarantined and put under direct observed therapy. There are some individuals who are just unable to manage their own destiny. This may be because of substance abuse or for other reasons. These individuals either cannot or will not conform to therapy. Number 1908 REPRESENTATIVE VEZEY said therefore, it appears there are two classes of people that are involved here. There are those who do not have the faculties to conduct themselves in a responsible manner, and there are those who might, for some reasons of conviction, not want medical treatment. DR. NAKAMURA agreed. He said there is a need to make sure others are not exposed to that individual without some sense of protection. REPRESENTATIVE VEZEY asked about the TB cycle. He asked how long a person lives with disease. DR. NAKAMURA said that varies. TB can manifest itself in many different ways. A person can be exposed to TB, get an infection, and have nothing more than a converted skin test. Those people never actually get the disease to the point they are infectious. There is always a possibility, about an 18 percent chance, that if you are not treated at that point, you could break down and become infectious with TB. DR. NAKAMURA explained there are others who, especially if they are weakened by other diseases or illnesses, can have the TB infection spread through their blood. The TB can infect their brain, the kidneys, the heart, the bones, etc. There are many ways that TB can present itself. How it presents itself and what other underlying conditions the patient has can determine the length of survival. Number 1976 REPRESENTATIVE VEZEY resolved that there was no absolute mortality table. One cannot predict how long the disease will run. DR. NAKAMURA said no. Some people will have the disease their whole life, and have the continual potential to infect others, but they will not progress to the point where they will die from the disease. REPRESENTATIVE VEZEY asked if anyone who tests positive for TB could conceivably develop the symptoms of the disease at any time. DR. NAKAMURA said TB is a funny disease. When a person is initially infected, almost everyone has the ability to control and confine that infection in a way that the disease does not become active. The disease can then progress or spread to others. One may find out he or she had the disease, and never knew it until a chest X-ray showed calcification. Or, perhaps a person was actually infected in the past but they never really got sick. A certain percentage of these people will then either break down or progress to an active disease. A person can either eventually die from the disease or be severely impaired. Number 2032 REPRESENTATIVE CAREN ROBINSON asked how long after a person begins medication they are no longer infectious. DR. NAKAMURA said that depends on a number of issues. One is the degree of the illness to which the person already has progressed before treatment began. If there is a cavity in a significantly progressive disease, they may have to undergo treatment for weeks or months before they are no longer infective. There are others who have a very minor infection and can be non-infectious in one to two weeks. It varies. Plus, there are some organisms that are resistant to medications used. Until that is discovered through lab tests, the patient may be on an ineffective drug. REPRESENTATIVE ROBINSON asked for clarification on the quarantine provision. They could be isolated at their house, a health facility or a correctional institution. She asked why the state would ever want to quarantine someone at a correctional institution. DR. NAKAMURA said there are situations, for instance, of an individual in a rural community or village where the home setting may not be ideal because of the many people in the home who may be continually exposed to that person. In addition, that would be an option only if the patient were not willing to wear a mask and cooperate in other protective measures. There is no medical facility in which such an individual can be placed. Number 2091 DR. NAKAMURA noted that yet, the community members may be willing to have that person stay within their community as long as they are taking the medication and treatment. The only place where that isolation may take place may be in a correctional facility in that community. REPRESENTATIVE ROBINSON said there has been some concerns and arguments regarding contract jails. Therefore, isolation in a correctional facility would concern her. She has not seen some of those facilities, but some of the comments made on the floor of the House leads her to believe that some of those facilities are not fit for animals. Therefore, she is concerned that someone would be placed into an unfit facility. DR. NAKAMURA said he cannot give her the assurance she desires because he does not know each facility. However, he would obviously try to avoid that type of situation. Number 2130 CO-CHAIR TOOHEY surmised that Representative Robinson was looking at a very tiny percentage. Perhaps one infected person every five years would be in that situation. The average person with TB is very willing to undergo treatment. REPRESENTATIVE ROBINSON realized that. However, she was wondering if it should be clear that facilities should be up to standards. That may mean more work from the DHSS. However, if this is a very small number of cases, it may be worth it. Representative Robinson was curious whether there have been any such cases from the most recent outbreak in which someone had to be isolated in the jails. DR. NAKAMURA said there was one case in which there was a very rapid turnaround. This was because the state had the ability to confine that individual. Reality therapy comes into play when it is known that the state will take action if the patient is not responsible. In that case, it may take no more than one day to bring about that reality. Number 2180 REPRESENTATIVE ROBINSON was under the impression that a class A misdemeanor can result up to one year in jail. Since it can take up to a few weeks for a patient to receive medication and be allowed back on the street, why would the state want to inflict a penalty that could possibly lock up someone with TB for up to one year. CO-CHAIR BUNDE interjected that two different things were being spoken of in this case. One situation refers to isolating people for their own protection and the public health. The other situation refers to penalizing people who would knowingly infect others. The case that brought this up was the person who was aware he was very infectious, and insisted on getting on an airplane and infecting seven or eight other people in the two or three hour flight to Anchorage. That person could easily be incarcerated. However, it would not be based on their own protection but on public health. DR. NAKAMURA corrected the last statement. He said there was a patient who did get on the plane and traveled against advice. Fortunately, no one was infected. There was the potential for infection, however. Number 2239 REPRESENTATIVE ROBINSON said on that issue, she understands there are already adequate laws on the books which stipulate that if a patient was to deny treatment, the Department of Law would be able to charge them with other crimes such as reckless endangerment. Therefore, perhaps more laws do not have to be added in this bill, since such laws are already on the books. CO-CHAIR BUNDE said it is his understanding that the state could not prevent this person from getting on the airplane simply because he was infectious. CO-CHAIR TOOHEY believes there is a law to stop a person from getting on an airplane. Co-Chair Bunde said it did not stop the patient in question at the time. Number 2274 KRISTEN BOMENGEN, Assistant Attorney General, Criminal Division, Department of Law (DOL), said she was present at the meeting to address any of the legal concerns that may arise. She asked to briefly speak about what current law provides, and what went into the process of recommending to the department that some change in that law would help enable the department to more effectively carry out its purpose in preventing the transmission of TB. MS. BOMENGEN explained that current statutory provisions provide for the issuance of an examination order and the issuance of quarantine orders. Those can be issued by the DHSS. The law then provides, if someone does not comply with those orders, that the person be reported to a peace officer that a violation is occurring. Criminal charges must also be filed in order to enforce what is a public health order and what is an effort to assist a person in obtaining medical care while protecting the public's health. MS. BOMENGEN said this law was put into place in 1984. Things subsequently went fairly well because the department worked with people and found that they were agreeable and compliant. Problems did not occur. In this last year, some circumstances arose in which people objected to the orders the department issued. Therefore, the DOL Law had to file criminal charges in a case. Number 2335 MS. BOMENGEN said it became apparent that the DOL may have been missing some due process requirements by jumping immediately into criminal sanctions when someone had a reason to object to the order of a public health official. TAPE 95-28, SIDE B Number 000 MS. BOMENGEN said that is what is behind the orders from the DOL. The orders are meant to fill in the gaps between the issuance of an examination order/quarantine order, and the criminal sanction that may be at the other end. This bill, as Dr. Nakamura addressed, sets out the other steps that may be necessary to all the department to be effective in this pursuit, and to allow for due process protections. MS. BOMENGEN continued that this legislation will allow a medication order, for instance, so the department can issue a treatment order which the patient would be required to follow. The detention orders that are anticipated address circumstances in which a person may be immediately infectious, and it is necessary to take them out of the public. This is because they may transmit the disease through airborne droplets. The detention order is also designed to deal with someone who has demonstrated by previous behavior that they will not comply with a medication order or a treatment plan. Number 094 MS. BOMENGEN allowed that she is a lay person, and she does not have thorough medical knowledge of TB. However, during the course of the case she was dealing with, there was a serious danger that the person had not complied with the medication regimen. As a result, the medical dose they were receiving was possibly having the effect of creating a drug-resistant strain in that person that could then be transmitted. Therefore, for public health reasons it is necessary to perhaps detain a person who is not capable, for their own reasons, of following the drug regimen in order to assure that a more virulent, drug-resistant strain is not created. MS. BOMENGEN said the detention orders in this bill also anticipate that someone may be detained in their own home. Number 161 CO-CHAIR TOOHEY said HESS Committee members are going to be hearing a bill concerning HIV. In that context, she asked Ms. Bomengen how HB 274 addresses HIV. She asked if testing was mandatory. If someone is walking around unbeknownst to him/her that they have TB, can the department, on their own volition, say it is going to test everybody in the village. Co-Chair Toohey asked if that was legal. MS. BOMENGEN replied that under this bill, it is anticipated that if the department receives information that someone has been exposed to TB, the department may take appropriate action to determine whether TB has been transmitted to others in the area. This bill, however, does not relate to HIV at all. CO-CHAIR TOOHEY said this bill gives the state the tools to mandate a test. Would not HIV testing also fall into that jurisdiction? Number 249 MS. BOMENGEN was unaware of any reason that it would be comparable to HIV. TB is transmitted through airborne droplets, and there is a known treatment and cure for TB. Those factors distinguish TB from HIV. Again, Ms. Bomengen noted that she knows legal matters, and she is not necessarily an expert on medical matters. However, because HIV and TB are so different, they would warrant different treatment on that premise. CO-CHAIR BUNDE noted, regarding mandatory testing, that HB 274 says mandatory testing exists for people in the school system. How that would be different from someone who is living in a small community where there is a high possibility of widespread infection, Co-Chair Bunde cannot imagine. Testing is mandated in the school system because there is a great number of people who are in close proximity where more contamination is possible. CO-CHAIR TOOHEY asked Ms. Bomengen if there is an "opt-out" for testing in schools for a child and for other members of a community, if the tests are against religious convictions. Number 355 MS. BOMENGEN said this bill provides for consideration of religious belief. In order to assure that due process protections are recognized within the statute if a religious belief objection is raised, the department, if it felt it was necessary to test someone, would issue an order and the objection may be raised under this provision to allow for the practice of religion. There would then be an appropriate response to those concerns. Ms. Bomengen said she does not know what the outcome would be when it went before the court. It would depend on the facts that were before the court. REPRESENTATIVE ROKEBERG said Section 10 requires the testing of public and private school employees. Representative Rokeberg asked Dr. Nakamura if it was true that in the past, food service handlers and other people with public contact also had mandatory testing for TB. If that is the case, Representative Rokeberg asked why those tests were not being currently required. DR. NAKAMURA said he is not quite sure of the answer to that question. However, in this case, the purpose is to protect the school children. They comprise a large population of susceptible children, exposed to a teacher. The doctor is not aware of any requirements for the TB testing of food handlers. Number 468 CO-CHAIR TOOHEY was not sure of the exact date, but she did know a few years ago that became an obsolete requirement for food handlers. REPRESENTATIVE ROKEBERG said given the situation, perhaps that requirement should not be obsolete. CO-CHAIR TOOHEY said TB cases occur mainly in very isolated villages, not in Anchorage. CO-CHAIR BUNDE said TB cases may be very isolated. However, the last briefing on TB stressed that foreigners may be bringing in drug resistant strains of the disease. Even one case of this would be totally devastating because it is so difficult to treat. However, who is tested, why, and where leads Co-Chair Bunde to his question. There is a zero fiscal note, yet the state is going to mandate testing and there may be people who must be quarantined someplace other than their own house. Co-Chair Bunde said it sounds like that would cost money. Number 547 DR. NAKAMURA asked to respond to Representative Rokeberg's question first, and then to answer Co-Chair Bunde's. One of the reasons the department is focusing on the testing of teachers is because part of the transmission of the disease is based on the period of exposure. In schools, there may be a teacher who is exposing a group of children on a daily basis. This is different than a food handler exposing an individual who has a very quick, transient exposure to the disease. There must be a significant period of exposure to catch TB. DR. NAKAMURA spoke of the people who were in the airplane with the infectious individual. Those people were in the airplane and were exposed for a significant duration of time, however, there was no transmission of the disease. Part of this is related to the period and degree of exposure. REPRESENTATIVE ROKEBERG said people are creatures of habit. He said there is a restaurant he frequently visits in Anchorage. Representative Rokeberg said he does not want to hold up the bill, however, he thinks this should be looked at in the next committee of referral. Representative Rokeberg hopes there will be a good, epidemiological answer for his question before the bill goes further. CO-CHAIR TOOHEY said that is a valid point, and asked Dr. Nakamura to find out why food handlers are no longer required to be tested for TB. DR. NAKAMURA said it very well may be due to the success in dealing with disease. The state has been successful to the point that it brought the actual rate of infection in Alaska to about 9.5 per 100,000. This is an amazing control of the disease. The chance of exposure has been significantly decreased. Probably, the rates are still very low. That rate has decreased from 1993, when the rate was about 12.5 per 100,000. There is a very low probability of exposure. Number 680 CO-CHAIR BUNDE asked Dr. Nakamura to address the fiscal note dilemma. DR. NAKAMURA explained the statutes allow the state to assume the cost of treatment, but it does not mandate the state to assume the cost of treatment. The numbers of individuals that would actually require isolation or quarantine are very low. The state could very well be responsible for an individual who has not insurance and has a very low income. However, overall the numbers of individuals the state would encounter in this type of situation would be quite low. The financial risk to the state would therefore also be quite low. CO-CHAIR BUNDE understood that. However, he was still concerned about the zero fiscal note. He said that even if the cost to the state is $10, a fiscal note should still reflect that. More importantly, will not testing in schools involve a lot of materials, qualified people, and travel? CO-CHAIR BUNDE stressed that he was not speaking against the school testing. It is something that should be done. However, Co-Chair Bunde thinks there is a larger possibility that the teacher will be infected by the child than vice versa. There is some expense involved, and Co-Chair Bunde asked Dr. Nakamura to speak to that. Number 777 DR. NAKAMURA believes most of the expense encountered would be covered by an individual's medical insurance. It would not necessarily be an expense to the department or to the state. CO-CHAIR BUNDE said to set up program testing at a school, someone will have to do tine tests. The school nurse may do those tests are part of her regular duties. But Co-Chair Bunde wanted to know how much it costs, just for the materials if nothing else, for 50 or 100 people to perform a tine test. If that cost is then magnified by the 50,000 students in Alaska, the cost can be considerable. DR. NAKAMURA said he would have to go back and check with the department. However, he anticipates that the state would not be using state staff to administer the tests or to make the materials available. This would be part of the health care requirements of any individual who is working as a teacher, etc. The assumption is that the tests would be covered by medical insurance and health care. Number 840 CO-CHAIR BUNDE asked if only teachers, and not the children, were going to be tested. DR. NAKAMURA said only the testing of the teachers is required. CO-CHAIR BUNDE thought all the children were going to be tested, like was done previously. DR. NAKAMURA said the children are already being tested under the present treatment protocols. CO-CHAIR TOOHEY said under Section 3, line 1, it reads, "The department, in establishing a comprehensive program for the control of tuberculosis in the state, shall cooperate with state, federal and local agencies...." She said the bill goes on to read "a health care provider who treats a person with TB shall examine all other persons in the household who have had contact with the patient...." Co-Chair Toohey felt there is going to be a cost to this bill. It is not wise to pass the bill without the money it will take to implement the program. DR. NAKAMURA said there are not that many new impositions in this bill that are not being currently done. This bill is actually revising the language and stating much of what is already taking place. Number 935 REPRESENTATIVE VEZEY asked Dr. Nakamura to further explain the disease. He said someone can be exposed to the disease, and still not contract TB. DR. NAKAMURA said the person can either not get infected, become infected but not ill, or they can become infected and become ill. Many factors will determine which of those three situations will be encountered. REPRESENTATIVE VEZEY said therefore, a person can have contact with the disease but not become infected. Representative Vezey asked what a positive skin test means. DR. NAKAMURA replied that a positive skin test means a person is infected with the TB organism. However, it does not tell the person whether he or she is actually ill, or when he/she was infected. The skin test only shows that somewhere in the course of his/her life, the TB organism was picked up and it settled somewhere in the body. He/she is infected, but not necessarily ill. Number 1000 REPRESENTATIVE VEZEY said therefore, once one tests positive for TB, he/she will always test positive? DR. NAKAMURA said yes. It takes a few more steps to determine whether one is actually ill from the disease. One test is the sputum test. It shows whether there are TB organisms in a person's sputum. If organisms are present, the person has gone beyond the point of a simple infection. A chest X-ray will also show that the disease has advanced. CO-CHAIR TOOHEY said unless a person is showing symptoms of the disease, such a fever, coughing, etc., there is no need to get an X-ray. However, if one is feeling poorly, and one has tested positive, he or she should be thoroughly examined. She noted that once a person skin tests positive, he/she should always assume that somewhere along the line there has been exposure to TB. Number 1056 REPRESENTATIVE ROBINSON asked why, in the drafting of the bill, class A misdemeanor was chosen instead of class B or class C. She asked why it was felt the misdemeanor had to be class A. MS. BOMENGEN said the misdemeanor is not different from the current provisions in the bill. In putting the bill together, the steps between actions were filled in. The initial steps were decided, and the final criminal penalty has always been there. It has now been placed in Section 11. However, AS 18.15.138 is being repealed by this bill. That is actually an identical provision. Nothing has changed in that regard. MS. BOMENGEN said a number of intermediate steps have been put in place, however. These steps can achieve the purpose of enforcement. These make the final eventuality highly unlikely because there is even an emergency detention order that is provided for earlier in the bill. Again, there are intermediate steps to be taken if someone is not complying with the department. It is not necessary to immediately resort to criminal sanctions in order to enforce the statute. MS. BOMENGEN wanted to mention something in response to earlier testimony about detainment in correctional facilities. She does not believe it is written anywhere that is the type of facility that is intended. In the emergency detention order section, Section 7, the bill reads of a "health care facility or another location." That is merely to leave the options available to the department in circumstances where there may not be a health care facility available, yet there is an immediate need to act to protect the public health. Number 1150 MS. BOMENGEN stressed it is not intended for a correctional facility to be used as a standard place for isolation. REPRESENTATIVE ROBINSON said there are two areas Ms. Bomengen should look at as the bill moves through the committees. Representative Robinson wanted to know if the penalty had to be so stiff. Representative Robinson knows that there have been very few cases that would warrant such a penalty in the past, and the cases have involved people who were not only were ill with TB, but also had possible drug and alcohol addiction. It seems to Representative Robinson, therefore, that the penalty is a little stiff. REPRESENTATIVE ROBINSON also believes strongly, in reference to Section 7, that the first attempt for detainment should definitely be in a health care facility. Representative Robinson can see it being more expedient to take someone to a correctional facility instead of going through the problems of trying to find appropriate health care. Number 1222 CO-CHAIR TOOHEY closed the bill to public testimony and asked for the wish of the committee. Representative Vezey made a motion to move HB 274 from the HESS Committee with individual recommendations and attached fiscal notes. There were no objections, and the bill passed out of committee. HB 226: MARITAL STATUS AND RETIREMENT BENEFITS Number 1306 REPRESENTATIVE PETE KELLY, sponsor of HB 226, urged HESS Committee members to adopt HB 226. The superior court recently decided unmarried couples are entitled to the same employment benefits as married couples. This decision was the result of a broad interpretation of language found in the Human Rights Act which prohibits discrimination based on marital status. The court concluded the human rights directive was violated by the University of Alaska when it refused health benefits to the unmarried partner of a university employee. REPRESENTATIVE KELLY said it is feared this decision will have a far-reaching impact as a trickle of grievances at the University of Alaska becomes a flood in other agencies and in private industry as well. It is not a stretch to imagine Alascom, the National Bank of Alaska or the AFL-CIO being sued in the near future for failing to recognize domestic partners in their benefits packages. However, because the definition of domestic partner is not grounded in contract or tradition as is marriage, it is a moving target and, therefore, impossible to predict what future relationship will qualify under this umbrella. REPRESENTATIVE KELLY continued that the superior court decision targets workers' benefit packages for distribution to an unknown panoply of partners who are able to attach themselves to state employees. HB 226 intends to reduce this uncertainty as employers try to create their compensation packages. It also attempts to pre-empt the possible onslaught of domestic partner relationships created solely to gain access to potential benefits. REPRESENTATIVE KELLY said the court offers little solace in its decision document when it advises the university to just discontinue benefits to families as an option to stay in compliance with the decision. Number 1385 REPRESENTATIVE KELLY said the anti-discrimination laws based on marital status are meant to prevent such things as an employer hiring only married men or married women because they are somehow more stable and more desirable as employees or vice versa. HB 226 will continue to offer this much needed protection, while closing this expansive loophole. Moreover, HB 226 clearly draws a distinction between the housekeeping arrangements of a domestic partnership and the legal bond of marriage, credentialed by society through thousands of years of tradition and cultural experience. REPRESENTATIVE KELLY said as the peoples' representatives, legislators have a compelling interest in protecting the institution of marriage as the only vehicle capable of providing civilization with a future generation of citizens. Number 1417 REPRESENTATIVE KELLY wanted to send a clear message that the institution of marriage and the families it produces are worthy of special recognition. It is for this reason that he requests the passage of HB 226. REPRESENTATIVE VEZEY asked if the only change in existing law provided for in Section 1 of the bill is the spelling of the word "it." He cannot see the changes in Section 1. REPRESENTATIVE KELLY explained that in current statutes, there is a prohibition against discrimination. Representative Kelly pointed to number 1, under AS 18.80.220. He said this was the current statute and it reads of prohibition of discriminatory practices. An employer cannot discriminate based on sex, age, marital status, etc. However, in (c), Section 2, an employer may refuse to provide benefits to a person because the person is not legally married to an employee of the employer without violating this chapter. REPRESENTATIVE KELLY said the bill also says that labor organizations may negotiate the same kind of agreement. Essentially, the bill is currently what's in place, and there is no prohibition against a state agency or anyone negotiating a domestic partner arrangement. It just says the organization is not guilty of discrimination should it not choose to provide those benefits. Number 1520 REPRESENTATIVE VEZEY said so the only change in Section 1 is the addition of the exception clause. Representative Kelly said he was correct. REPRESENTATIVE BRICE provided an example of an unmarried couple who has been living together for the last 18 years. One partner is the breadwinner, and the other partner stays at home. They are not legally married in terms of Justice of the Peace or religious ceremonies. Considering the fact that the second person has no income, is he/she going to be eligible for state medical assistance, such as MedicAid or MediCare, whereas otherwise, without HB 226, private insurance would pay for care? In other words, isn't this bill simply shifting cost away from private insurance organizations onto the state? REPRESENTATIVE KELLY said there would be qualifications for MediCare, AFDC, etc., that provide relief. There are qualifications that must be met. Representative Kelly said he is not an expert on the exact qualifications for MedicAid, but for many of the other services, one cannot live with someone and collect those benefits. It is required that the person live in state housing, and the person would be required to give up certain amounts of property. Therefore, Representative Kelly does not see the bill as shifting costs any more than costs are now shifted. Number 1629 REPRESENTATIVE BRICE said therefore, in other words, Representative Kelly does not view the state as picking up these individual's costs. It may be something the Division of Medical Assistance might be able to answer more clearly. Representative Brice asked if it was the understanding of Representative Kelly that those dependent individuals would not fall under MedicAid. REPRESENTATIVE KELLY did not know. If the point is the legislature is trying to require that the state is somehow responsible for these people, or the person with whom they live is responsible, Representative Kelly does not know if this bill necessarily addresses that. That is not the purpose of this bill. That might be an issue that is better addressed in the statutes that enable MedicAid. Number 1663 REPRESENTATIVE BRICE said people will be taken care of in one way or another--whether they walk in off the street into an emergency room to place the burden on the facility (which eventually places the burden on the state), or whether private insurance pays for that help. Representative Brice said he wants to be very certain HB 226 will not shift costs back to the state. It might be a question that the Division of Medical Assistance (DMA) should answer. REPRESENTATIVE KELLY was not sure of the point Representative Brice was trying to make. However, he thought the state cannot be held hostage to someone who says, "If you do not provide me with medical insurance through my spousal equivalency arrangement, I will now go and cost you money at the emergency room." Representative Kelly did not want to hold the state hostage in such a way. REPRESENTATIVE BRICE felt Representative Kelly was missing what he was trying to get at. The couple consists of Partner A and Partner B. Partner A works, Partner B does not. They are not married, but they have a well-established, long-term relationship. They live together and share many things. Partner A is the only one in this relationship that is capable of receiving benefits because of this bill. Partner B is not. Partner B gets deathly ill, but is not covered by Partner A's benefits. Therefore, Partner B is eligible to go and receive state help, versus having the insurance company pay for the care. That is the concern of Representative Brice. Number 1772 CO-CHAIR TOOHEY asked if Representative Brice was assuming the only way someone is eligible for MedicAid is because of an economic level. REPRESENTATIVE BRICE said yes, and Partner B would have no income whatsoever. CO-CHAIR TOOHEY said that is being assumed, because Partner B may be the co-owner of the house or something. REPRESENTATIVE BRICE said it may be that Partner B is the co-owner of the house. In that case, however, Partner B would probably be working and bringing in income. However, if Partner A is the sole provider, and Partner B brings in no income and has no legally recognizable assets, Partner B becomes eligible for the state's money. Maybe this is a discussion that needs to be had with someone from the DHSS that understands medical assistance issues better. This might help clarify some of this. Number 1824 CO-CHAIR TOOHEY said several people from the Department of Law were present to answer his questions. REPRESENTATIVE KELLY wanted to note that when the court decision came about, the judge in the case said there was no legislative intent, and the statute stood as an absolute prohibition against discrimination based on marital status. The fact is that there are plenty of examples of legislative intent. Throughout the statute, there is exactly what Representative Kelly has put in the bill. REPRESENTATIVE KELLY said for example, in AS 39.30.090, it says "the Department of Administration may obtain a policy or policies of group insurance covering state employees. Persons entitled to the coverage under AS 39.35 or employees of other participating government units are subject to the following conditions...." REPRESENTATIVE KELLY said the document from which he was reading goes on to read, "Each eligible employee of the state, the spouse, and the unmarried children chiefly dependent upon the eligible employee for support, and each eligible employee of another participating governmental unit shall be covered by the group policy unless exempt under regulations adopted by the Commissioners." REPRESENTATIVE KELLY said that is one example. The document, as far as legislative intent, does not say anything about anyone who is financially dependent on the employee, anyone in a marriage-like relationship, or anyone who signs an affidavit of spousal equivalency. Likewise, in Section 14.25.168 of the medical benefits section, which will be provided to HESS Committee members, it reads, "The following persons are entitled to major medical insurance coverage...." Representative Kelly said it is the spouse of a person or the natural or adopted child, etc. REPRESENTATIVE KELLY said the document also goes into the medical benefits for public employees, retirement, teachers' retirement, etc. The statutes are full of examples where the state currently has in statute exactly what Representative Kelly is trying to put into the Human Rights Act. Representative Kelly feels it is interesting that the judge in the University of Alaska case, Judge Greene, was completely unaware of those statutes when she was trying to determine legislative intent. Number 1938 REPRESENTATIVE KELLY submitted that legislators stand on the shoulders of all who have preceded them. There is plenty of legislative intent to say that in fact, the state or other organizations can discriminate when determining who is eligible for benefits. This is as long as those discriminations meet a certain test. Representative Kelly said he feels that is clearly in statute, but it appears that the Human Rights Act needs to be tweaked a bit. REPRESENTATIVE VEZEY said he knew Representative Kelly spent a lot of time looking into this bill. The question that keeps coming to Representative Vezey's mind is that Alaska has never had a common law marriage statute. Would Representative Kelly say, should the Judge Greene's decision be allowed to stand, that there will be in effect a common law marriage statute? REPRESENTATIVE KELLY could not comment on that question. Number 1982 REPRESENTATIVE ROKEBERG said he may have an answer to that question. He passed out a document. It was a page from the judge's decision, telling of her finding as to marital status in the state. The page said accordingly the court determines that Tumeo and Wattum, the plaintiffs in the case against the University of Alaska, have proven their allegation of discrimination based on marital status. That was the finding of the case. REPRESENTATIVE ROKEBERG asked Representative Kelly if that was why he was bringing this bill forward, to clarify the statute as presently interpreted by the state of Alaska and enforced by the state of Alaska. REPRESENTATIVE KELLY said Representative Rokeberg was exactly right. There is possibly a slight flaw in the current statue. Everyone knows what marriage is. There is no one in this room that does not understand what marriage is. Apparently, however, the statutes were written in such a way that a loophole has been created that a judge was able to "drive a freight train through." That is the reason Representative Kelly wanted to change the statute. If this problem is not fixed, an administrative nightmare is going to be created. REPRESENTATIVE KELLY said that an amendment offered by Representative Robinson will create an administrative nightmare. It clearly discriminates, and it is going to require an administrator to sit there and decide which of these spousal equivalency agreements are legitimate. It is going to require home investigation to determine whether these people are eligible for benefits that they would certainly be eligible for should they choose to get married. REPRESENTATIVE KELLY said no one is barring them from getting married, and they have the opportunity to do so, just as anyone else does, and they can receive these benefits. Once it has been determined that spousal equivalency is equal to marriage, the only way that can be enforced is through the creation of another entity within the body of law, that is like "marriage-lite." REPRESENTATIVE KELLY continued that the only way to do that, because the state has a clear definition of what marriage is but it does not have a clear definition of what domestic partnerships are, is to come up with what can be found in Representative Robinson's amendment. Such an amendment states that a domestic partnership is based on economic considerations. That clearly discriminates. Number 2111 REPRESENTATIVE KELLY noted that the amendment goes on to define a domestic partnership, and how one would set up a domestic partnership. All it really does is discriminate. It does the same thing that the Tumeo-Wattum case accuses the University of Alaska of doing. CO-CHAIR TOOHEY interjected that the amendment was not before the HESS Committee at that time. REPRESENTATIVE ROKEBERG asked if, in the Tumeo-Wattum case, if Judge Greene suggested what she purported to be some recommendations or fixes to her decision. He asked if Representative Kelly could tell HESS Committee members what those recommendations were. Representative Rokeberg also asked if Representative Kelly's bill was not simply just a technical correction to the way the law is worded, and if Representative Kelly could comment on the opinion of the State Human Rights Commission. Number 1216 REPRESENTATIVE KELLY said the State Human Rights Commission is in full support of HB 226. Representative Kelly has a letter from the commission to that effect. One slight change has been suggested in the wording. This is a technical change to a law that is currently functioning and functioning very well. It needs a technical change in it to prevent this type of problem from happening in the future. REPRESENTATIVE KELLY continued that the judge in the Tumeo-Wattum case said essentially that how the university can deal with her decision is to stop giving people benefits to spouses. This way, the university would not be charged with discrimination. Representative Kelly does not think that is a good idea. He likes the marketplace to be able to determine those kinds of things. REPRESENTATIVE KELLY asked to go back to the intent of his bill. The bill in no way is a prohibition of any kind on any kind of activity. It simply says that an organization is not guilty of discrimination should it want to go to the marketplace to negotiate health benefit packages with employees. Number 2214 REPRESENTATIVE ROBINSON said she would not get into a debate right now about her amendment, but she had copies of it and passed it out. She simply wanted to make sure it was understood that HB 226 relates only to retirement and health insurance benefits for employed people. That is who is being affected by the bill-- employed people. She asked if she was correct, and Representative Kelly said that was a fair assumption. REPRESENTATIVE ROBINSON said therefore, she will deal with the debate over discrimination and non-discrimination when the amendment is brought before the HESS Committee. REPRESENTATIVE ROKEBERG asked Representative Kelly if Judge Greene indicated that an affidavit of domestic responsibility, or some similarly named document, would also be another fix to the problem. REPRESENTATIVE KELLY said that was true. There were several suggestions of that sort made by Judge Greene. Representative Kelly did not address that option because that is the heart of the issue. HB 226 is trying to fix that very problem, of saying that these types of agreements have to be recognized. Judge Greene did recommend that is one of the ways to comply with her decision. Representative Kelly simply did not find that as disturbing as the other options. She said spousal agreements can be recognized, or organizations can simply stop giving health benefits to spouses of employees. Number 2285 REPRESENTATIVE ROKEBERG suggested that this point is the crux of the whole case. The court is making public policy, and that is actually the job of the legislators. Number 2315 MILDRED BOESSER, Representing Parents, Families and Friends of Lesbians and Gays (PFLAG)... TAPE 95-29, SIDE A Number 001 MS. BOESSER continued...and the City and Borough of Juneau (CBJ) Human Rights Commission (HRC) opposes HB 226, which is legislation which permits employers to deny benefits to an employee's domestic partner other than a spouse, and permits labor unions to negotiate such a denial of benefits. MS. BOESSER said this bill amounts to discrimination on the basis of marital status. The CBJ HRC is charged with addressing unwarranted discrimination. It opposes the discrimination on the basis of marital status inherent in this bill. If this bill is intended to encourage people to make lifelong commitments, its goal is laudable. But its aim is off-target. MS. BOESSER said society benefits from the formation of unions between committed adults. Commitment, not marriage, is the hallmark of these unions, which can also entail shared finances, mutual dependency, and responsibility for children. The characteristics of a committed adult union do not depend on a marriage license. MS. BOESSER said Alaska is a state of individuals. When these independent people create a household that often does not match a 1950s picture of the family, many couples, in spite of their commitment to, and dependence upon one another, are not married. Number 097 MS. BOESSER noted in some cases these couples are not free to marry. For example, one member of a couple may remain bound by law to a former spouse who will not cooperate or cannot be located to dissolve the marriage. If the remaining partner is unable to afford a lawyer to prosecute a default divorce, he or she remains married indefinitely. Likewise, same sex couples are unable to marry, regardless of the level of their mutual commitment and financial dependence. MS. BOESSER continued that if the state of Alaska is looking for ways to encourage committed unions between adults, it should not place undue emphasis on the legal fact of marriage. Doing so poses a barrier to the many unmarried partners who wish to take personal responsibility for their domestic partners. The very first paragraph of Alaska's Constitution guarantees all of us equal rights, opportunities and protection under the law. The CBJ HRC opposes HB 226 because it discriminates against committed partners who are not married to the detriment of Alaska and in violation of the constitution. Number 194 MARGARET BERCK, Attorney, American Civil Liberties Union (ACLU), testified that the ACLU is opposed to HB 226 and is in favor of the amendments that have been proposed by Representative Robinson. Since there are others present to testify, Ms. Berck declined to take up further time since the amendments were not before the committee for discussion. REPRESENTATIVE ROKEBERG asked if Ms. Berck was familiar with the case Lilly vs. the City of Minneapolis. She said she is not. Number 274 TALMADGE W. BAILEY, Board Member, Southeast Alaska Gay and Lesbian Alliance (SEAGLA), read a prepared statement from the alliance. "Dear Committee members, the Southeast Alaska Gay and Lesbian Alliance urges you to stop HB 226, and not pass this bill out of your committee, as we do not believe that it is in the best interest of the state of Alaska to move this bill forward in its present form. "We could support the bill if it is amended to include domestic partnership language. If passed as is, this bill would become part of a non-discrimination statute, and yet clearly set up an illegal and discriminatory situation. Both legally married individuals and "domestic partners" are in family situations, which involve financial and emotional interdependency. It is currently illegal to discriminate on the basis of marital status, and should continue to be so. We believe that all of Alaska's families should be treated equally. "Benefits provided by the State to employees are tangible compensation, and are calculated as part of the total compensation package given to an employee. It is discriminatory practice to pay some individuals more for equal work, just because they have entered into "the only acceptable" legal contract. Both marriage contracts and spousal equivalency contracts set up financial interdependency, and are legally binding upon individuals. Both of these situations represent a strong commitment between individuals, and are not lightly entered into. "We fully support Representative Caren Robinson's proposed amendment to HB 226, which involves meeting stringent criteria in order to qualify for joint benefits. This may help to allay fears of the "rush" of individuals who would sign up for those benefits. This amendment would easily help distinguish between those who are truly domestic partners, and eliminate those who attempt to establish frivolous claims. "We do not believe it is legal for the state to pick and choose among legal civil interdependency contracts, and determine which ones are "better" than others. Employers should have the option to pay benefits to all those who have entered into this contract solely to employees, and not pay benefits for family members. Number 455 "Lastly, the financial impact of this bill is important to note. Research conducted by major organizations and employers who have implemented joint benefits programs for domestic partners has clearly shown that additional cost to the organization is insignificant. Highest estimates to date are increases of under five percent of benefits cost. This should not be a basis for consideration of this bill. "We strongly urge you to carefully consider this bill, and not to pass it out of your committee." Number 510 MARK TUMEO, Plaintiff in the case Tumeo and Wattum vs. the University of Alaska; and Professor, University of Alaska Fairbanks (UAF), thanked the co-chairs for the opportunity to testify in this very important issue. Over the last two days, Mr. Tumeo had the opportunity to meet with many of the members of this committee. He apologized to Representative Vezey for not being able to meet with him personally. MR. TUMEO had been discussing several aspects of Representative Kelly's bill that would allow discrimination based on marital status, and gut the Human Rights Act of Alaska. Mr. Tumeo had the honor of meeting with Representative Kelly for almost an hour that day on HB 226, and he enjoyed the conversation. As the sponsor of this legislation, Mr. Tumeo wanted a very clear picture of the concerns that generated the bill's introduction. MR. TUMEO asked to take a minute to discuss the two main issues that Representative Kelly indicated caused him to introduce this piece of legislation. First, Representative Kelly claimed an economic concern. As Mr. Tumeo has discussed with many members of this committee, and with Representative Kelly, this concern is not founded in facts. Mr. Tumeo has provided the committee with information from Harvard University that shows domestic partnership benefits, when offered, result in only a minor increase in enrollment, and no increase in insurance premiums. MR. TUMEO continued that such benefits are currently offered in over 60 major universities in the country, including state institutions such as the University of Iowa, the University of New York, and the University of North Carolina. Over 100 private companies and over 60 governmental jurisdictions, including the states of New York, Vermont and Massachusetts, offer domestic partnership benefits, and have demonstrated that there are no economic impacts from such actions. Number 637 MR. TUMEO said therefore, with respect to the economic concerns of HB 226, the bill is unnecessary. However, if the members of this committee remain concerned, he would urge them to refer this bill to a subcommittee where all the pertinent facts can be discussed in detail. The bill is currently on an emotionally-driven fast track. Given the importance of the issue and the high workload the legislators are under, especially during budget time, it would be wise legislative policy to allow more time for the members of this committee to study the bill and the issues surrounding it. MR. TUMEO said if, after reflection, the members feel there is still an economic concern (although Mr. Tumeo doubts that would be the case), they would be able to consider Representative Robinson's amendment. The Robinson amendment clearly draws a tight circle around the number of individuals who would qualify, protects the economic interest of the state and the university, and still protects the Human Rights Act of the state. Number 694 MR. TUMEO recalled that the Robinson amendment was introduced in the State Affairs Committee. It presents the legislature with a win-win situation. It addresses perceived economic concern and reinforces the state's law that discrimination based on marital status is neither fair nor legal. However, Representative Kelly has another reason for introducing this piece of legislation. MR. TUMEO believed he spoke fairly when he said Representative Kelly's real reason for introducing the bill is to ensure that only those relationships that he feels are "good" are recognized. This bill, on its face, sets up a special class of citizens--married people. He confers on this special class special rights, most directly, the right to be paid more for the same work. MR. TUMEO asked what the basis is for being paid more. He answered only that in Representative Kelly's opinion "good marriages" should be supported. Would Representative Kelly consider going so far as to legislate between a "good" marriage and a "bad" one to ensure that only those relationships he felt are good get recognition and benefits? This is clearly not the type of legislation this committee should be involved in. Number 760 MR. TUMEO said the bottom line is that HB 226 is not intended to protect an economic interest. It is intended to deny equal rights to individuals who are not in the type of relationship Representative Kelly supports. Mr. Tumeo believes Representative Kelly has the right to support or argue against whatever types of relationships he wants to. However, it is not reasonable for this legislature to place the personal moral convictions of Representative Kelly into law. MR. TUMEO felt it was important to reiterate HB 226 is being pushed through the process on red herring emotional issues. Further, Representative Kelly has totally misrepresented the case of Tumeo and Wattum vs. the University of Alaska. Mr. Tumeo is very familiar with this case, as he is the plaintiff. The law case in which he is the plaintiff against the university is an administrative lawsuit for public employees. While the decision sets precedent, it applies directly only to Mr. Tumeo and his co- defendant, Kate Wattum. Number 813 MR. TUMEO noted that additionally, as Representative Kelly has pointed out, the laws in place may already protect the state and the Department of Administration from being forced to provide domestic partnership benefits. However, the laws he cited, which those in the court case were made well-aware of, do not apply to the University of Alaska. They apply to the Department of Administration (DOA). The University of Alaska is self insured. It is not under the DOA's insurance policy. MR. TUMEO stated furthermore, such rulings as the one issued by Judge Greene and employment laws dealing with the type of employment and discrimination are not applicable to private companies. That is not how the law works. Representative Kelly's claim that there will be a flood of suits against private companies based on this ruling is wrong. It is not possible. Only public employees can be affected by this. MR. TUMEO said any other individual who wants benefits may apply through the administrative channels of their agency or the university. Once again, while this decision sets precedent, it does not force the giving of the benefits. Furthermore, the university has appealed the decision to the Supreme Court. As a result, Judge Greene's decision is effectively on hold until the Supreme Court rules. Legislation at this time is not only unnecessary, it interferes with the process of the courts. Number 886 MR. TUMEO urged HESS Committee members to direct this bill to a subcommittee to allow calm, rational and detailed analysis of the economic issues. The members of the committee will find, after reviewing the facts, that at best, HB 226 is an unnecessary bill that, as currently written, only serves to gut the Human Rights Act. While Representative Robinson's proposed amendment would fix that issue, such an amendment will be opposed by the bill's sponsor because it would not legislate the type of Draconian interference and personal choice which is the true basis of HB 226. MR. TUMEO concluded by saying upon reflection, he thinks HESS Committee members will agree that this is a divisive hate bill, and that it would be best left in subcommittee and not take up any more of the legislators' valuable time. Number 929 REPRESENTATIVE ROKEBERG thanked Mr. Tumeo for coming, and recognized that this is an important issue to him. He asked Mr. Tumeo to tell HESS Committee members what effect the passage of HB 226 would have on his position with the university and his case, if the bill were to pass. MR. TUMEO answered that if HB 226 were passed as written, it would essentially overturn the court decision as it was issued. The judge looked at the situation in which Mr. Tumeo's side presented documentation that they have assumed the same legal and financial ties as are conferred by a marriage license. Given the fact that the university said it determines benefits based on financial interdependence, and it bases that determination solely on a marriage license, the court says that is obviously using marital status in determinations. That is discrimination based on marital status as defined in the law. MR. TUMEO said HB 226 would allow the university to do that. The argument Representative Kelly makes that Mr. Tumeo could negotiate his benefits is not true for a university professor. Mr. Tumeo is a university professor and has been for the past ten years. Professors do not negotiate their benefit packages. At best, they may be allowed to negotiate the step at which they enter rank. However, now that Mr. Tumeo is a tenured university professor, he does not have the latitude to negotiate benefits, nor is he part of a collective bargaining unit, nor does he ever intend to be a part of one. MR. TUMEO said therefore, he does not have the right that Representative Kelly claims he does. Number 1024 REPRESENTATIVE ROKEBERG said therefore, Mr. Tumeo has a direct, vested interest in this legislation. He did not mean to imply that is why Mr. Tumeo is here, Representative Rokeberg feels it is beyond that. However, Mr. Tumeo pointed out that this is a precedent only for the university. Representative Rokeberg asked if it was not true that even though this is a precedent only for the university it could be taken as a precedent for any other public employee in the state to bring a cause of action against the State of Alaska for the very same reason Mr. Tumeo did. MR. TUMEO said no. It does not imply a cause of action to bring suit. The only thing that would provide a cause of action to bring suit would be a decision by the administrative body within the employee's agency to deny the benefit. For example, another university employee may decide to request benefits from the University of Alaska system. That person would then file the appropriate paperwork. If the university system determined that it did not want to grant the benefits, it would deny that request. MR. TUMEO explained that the employee would then go through the official grievance process of the university. These are set up so the university does not have floods in the court. If, upon reflection in that grievance process, the university found it was making the proper decision given the policies and laws of the land, they would then deny that benefit. That would then be the cause of action if so desired by the employee to go forward for a lawsuit. MR. TUMEO said what the employee would have to do is be able to argue that somehow that decision was illegal, unconstitutional or an abuse of discretion of the administrator that made the decision. In Mr. Tumeo's instance, it was the president of the university. What the court decision allows is for the university to now put into place administrative procedures by which they can make determinations on benefits based on other issues besides marital status. It cannot be based solely on marital status under current law, and that is what the judge's decision says. MR. TUMEO noted that several other universities in the country have faced the same situation and have created mechanisms by which there is a simple form which is filled out, presented, certified, and is legally binding and protects both the institution and the employee, and it is not an administrative burden. That is why there is no cost in implementation in these institutions. Number 1155 REPRESENTATIVE ROKEBERG asked to make a statement, and then invited Mr. Tumeo to agree, disagree or comment. He said he has read Judge Greene's decision, and she made an extremely good case using Alaska statutes. That is why Mr. Tumeo won the case, and Representative Rokeberg applauds him for that. But that is why HESS Committee members are present at this meeting, to make that correction in the statute. It seems to Representative Rokeberg that if anyone is a state employee, having read the case and the plaintiffs' fact pattern, and they want to assert their rights just as Mr. Tumeo does, there is nothing barring them from doing that. Representative Rokeberg asked if Mr. Tumeo agreed. MR. TUMEO said there is one difference in the fact pattern that is of import, and Representative Kelly has accurately pointed that out. If Representative Rokeberg read the case, he is then familiar with the Phillips vs. Wisconsin Personnel Commission case that is cited in the court case. To briefly recap that case, in the state of Wisconsin there is a similar situation as was found in Tumeo and Wattum vs. the University of Alaska. In that case, the state has a non-discrimination law based on marital status. MR. TUMEO explained that the case involved two women. One worked for the state, and one did not. The woman who worked for the state applied for benefits under the state's policy, and requested that her partner be covered. Failure to do so was a violation of the state's non-discrimination law. There is a very similar fact pattern between this case and Mr. Tumeo's case. However, in the state of Wisconsin, there is also a law that is very similar to the one in the state of Alaska. That law states, as a legislative mandate to the DOA, what benefits are to be provided. MR. TUMEO said Representative Kelly quoted that mandate. It says the state shall provide benefits for spouses, dependents, etc. The argument that was made successfully in the Wisconsin case was that clear legislative intent was shown in the case of state employees for discrimination in benefits based on marital status. Number 1250 MR. TUMEO said the court ruled against the plaintiff in that case, and for the state. The difference between the University of Alaska and an employee of the state of Alaska is that the University of Alaska does not obtain its insurance through the DOA. It is a self-insured institution. It is therefore, not subject to that law. The state, and the legislature, has already made it clear it feels some ability to discriminate or have indicated there is the potential for discrimination. MR. TUMEO said he is not a judge, but he has been to law school. Therefore, he will not say that someone from the state may not make that argument and another judge may not interpret that law differently. However, Mr. Tumeo thought a slightly different fact pattern exists for a person who works for an agency of the state. That is one of the reasons, and another example, of why Mr. Tumeo thinks it would be beneficial in this instance to take some time to review this bill and answer some of these questions. MR. TUMEO therefore suggested that the committee solicit input from a DOA representative and some other lawyers. He asked that the bill be discussed in great detail. If that is done, Mr. Tumeo thought HESS Committee members would find that it is not a necessary piece of legislation. The state is already pretty clear as far as benefits go. Mr. Tumeo asked to let his case work its way through. He felt that would save time for other things. Number 1320 REPRESENTATIVE ROBINSON said that Mr. Tumeo has some experience regarding the Domestic Partnership Act. Representative Robinson noted that Representative Kelly commented that he felt her amendment was discriminatory to people who have low incomes. Representative Robinson asked Mr. Tumeo to respond to that. MR. TUMEO felt that interpretation was a misreading and a mischaracterization of the amendment that was presented in the State Affairs Committee. CO-CHAIR TOOHEY interjected that the amendment was not currently before the committee, and asked that it be discussed at a later time. She asked that testimony continue. REPRESENTATIVE ROBINSON asked if Mr. Tumeo could speak on the amendment when it is brought before the committee, since Representative Kelly already brought up the amendment. She asked that Mr. Tumeo be able to respond since he is somewhat of an expert in that area. CO-CHAIR TOOHEY said further testimony should be heard first, and given time, the amendment will be brought before the committee. Number 1367 REPRESENTATIVE ROKEBERG asked Mr. Tumeo if he was aware of the Lilly vs. the City of Minneapolis case. MR. TUMEO said he was, and the case is currently under appeal. REPRESENTATIVE ROKEBERG said therefore, the Mr. Tumeo's reference to the case in documents he handed out should be scratched. MR. TUMEO said no, because the case is under appeal. When a case is appealed, the current law stands until the court proceedings are completed. Number 1426 REPRESENTATIVE ROBINSON asked about the perceived "rush" on the system which some feel may result from Tumeo and Wattum vs. the University of Alaska. She also asked Mr. Tumeo about his experience and knowledge on this topic. MR. TUMEO has several studies that indicate throughout the United States that there are no skyrocketing costs associated with domestic partnership benefits. Enrollment numbers increase somewhere between .3 percent where they are measurable, to no more on the average than two percent. There are no increases in premium costs for those that acquire insurance. In addition, there are no increased costs to the systems for those that are self-insured. MR. TUMEO has copies of those studies if HESS Committee members would like to see them. REPRESENTATIVE ROBINSON asked Mr. Tumeo if, in his studies, he found any facts about common law relationships. Representative Robinson grew up in Texas, and a couple is considered to have a common law marriage after seven years. She is curious about the effects of common law marriages across the nation, and what those relationships have done as far as employee benefits. Number 1450 MR. TUMEO said he has looked somewhat into common law and the effects on benefits, but he is not an expert in that topic. The concept of common law marriage is that after a certain amount of time, an individual may claim the right to financial support on the individual with whom they have been living. Typically, common law marriage claims come up in terms of support cases between individuals. Common law is, by definition, law between individuals. MR. TUMEO explained that when common law marriage statutes come into play is when two people live together for over seven years in a state which recognizes common law relationships. In that seven years, that couple had also presented themselves as married in the way they lived, and in the things they said. If then one person decided to terminate the relationship, the partner would have, under common law, the right to demand support. That is where common law marriage comes in. MR. TUMEO said common law marriage is not a mechanism that has been used in a court cases that he is aware of to access benefits. Benefits are accessed via contractual agreements between parties that are recognized by the institution or employer offering the benefits. Number 1509 MR. TUMEO said common law marriage is only a status recognized by courts in terms of support between individuals. REPRESENTATIVE ROBINSON asked Mr. Tumeo how anyone would know that two people were actually married and getting benefits. MR. TUMEO said that is very difficult. The state director of benefits at the university has written a letter regarding HB 226, saying there is no way to account for the costs, whether they would rise or fall, because the demographics are not kept. As an interesting note, when original benefits were applied for, Mr. Tumeo's co-plaintiff, Kate Wattum, put down "B. McClendon" as the partner to receive benefits. Benefits were subsequently granted by the university. It was not until such time that Ms. Wattum indicated that "B." stood for "Beverly," that benefits were then pulled. MR. TUMEO said at no time during the proceedings or during any other proceedings when people apply for benefits at the university, is a marriage license requested. Number 1558 REPRESENTATIVE DAVIS said Mr. Tumeo indicated the court case showed that Mr. Tumeo and his partner had established legal and economic bases equal to a marriage. MR. TUMEO said no, it was never stated that he and his partner had a status equal to marriage. What was stated was that they had legally binding and legally defensible economic ties. It did not, at any time, state that their relationship was equal to marriage. The claim was that within the university system, benefits are granted based on the fact that the employee has an economic and legally enforceable economic responsibility for a third party. That is why benefits are given. MR. TUMEO continued that the university says the only way it will recognize that legal bind is through a marriage license. What Mr. Tumeo's case said was that he and his partner have a contract, which is legally executed, that gives Mr. Tumeo, as the employee, the same financial and legal responsibility for his partner as is conferred by a marriage license. It does not confer all the other associated rights and privileges of a marriage license. MR. TUMEO has signed a document that states he is legally responsible for his partner's expenses. Given that is the determining factor to the university, it is discrimination based on marital status for it to ignore his contract with his partner, while accepting only a marriage license. MR. TUMEO noted there are literally hundreds, and Mr. Tumeo offered to provide a well-documented list, of benefits that his contract could never provide. No one in the state of Alaska can enter into a contract that provides the same rights and privileges that are provided by a marriage license. Those rights include survivorship rights for property and tax benefits. There is a whole plethora of benefits and privileges that accrue to a marriage license that in no way can be simulated by contract or enforced by the court for non-married individuals. Number 1655 REPRESENTATIVE DAVIS said therefore, apparently there are benefits that only a marriage license can provide, and there are several differences between the contract Mr. Tumeo has with his partner and a marriage contract. MR. TUMEO said there are several differences, and he would be more than happy to provide the chair with a complete listing of the types of benefits that are provided to married individuals that are denied unmarried individuals and cannot be gained through contractual relationships. REPRESENTATIVE DAVIS wanted to make clear that those rights and benefits are not also gained by a semi-marriage license, which he determined is the agreement between Mr. Tumeo and his partner. He asked if it was a "self-made marriage license." MR. TUMEO said the spousal equivalency form that he and his partner filed in no way simulates a marriage license. It is only a legal document that indicates he is economically and legally responsible for the bills accrued by his partner. Number 1703 REPRESENTATIVE VEZEY asked Mr. Tumeo if Representative Vezey appears to be an emotional person. MR. TUMEO said at the moment Representative Vezey does not appear emotional, however, Mr. Tumeo has seen Representative Vezey very emotional at times. REPRESENTATIVE VEZEY asked Mr. Tumeo why he characterizes HB 226 as an "emotional" bill. MR. TUMEO said that is somewhat from experience. At the last committee hearing on this bill, there was quite a bit of emotion and tension present. The bill touches what is traditionally an emotional issue in many venues of discussion. There are issues surrounding relationships that people feel very strongly about. People feel strongly about relationships on religious, ethical and moral grounds. When those are confronted or challenged in any way, it evokes emotion. MR. TUMEO noted that does not necessarily mean all people respond emotionally at the instant the topic arises. However, there is a building sense that can be seen in many places across the country, that gays and lesbians have gone too far. Mr. Tumeo disagrees with this. He believes that it is his responsibility and his moral obligation to ask for equal treatment. Such requests often evoke a lot of emotion. REPRESENTATIVE VEZEY asked if Mr. Tumeo would characterize this bill as an economic issue. MR. TUMEO replied that if the bill did address an economic issue, Representative Robinson's amendment, as proposed in the State Affairs Committee, clearly draws the economic tight circle which protects the state, protects the university, and protects the Human Rights Act of the state of Alaska. Number 1722 REPRESENTATIVE VEZEY asked Mr. Tumeo if he would not characterize this bill as a basic social issue. MR. TUMEO said that depends on what Representative Vezey means by "social issue." If relationships, the interactions between individuals, and privacy are social issues valid for legislative intent, then this bill could be characterized as a social issue. In fact, at times in the past the country has had legislation preventing interracial marriages and interfaith marriages. Therefore, Mr. Tumeo imagines this bill would fall into the social arena. MR. TUMEO said mankind has progressed in society to the extent that determining what type of relationship is good and bad is not something that is typically left to legislative activities. However, it is definitely something for social discussion. Number 1801 CO-CHAIR TOOHEY asked to move on, because other people are testifying. She announced the bill would be held over, and asked how long Mr. Tumeo would be in town. He said he leaves the following morning, as he has classes to teach. CO-CHAIR TOOHEY again announced the bill would be held over, because the HESS Committee members will have to do some work on it. Number 1832 SARAH BOESSER, Board Member, Committee for Equality (CFE), said her organization is statewide. The CFE askes that this discriminatory bill be stopped or amended to include domestic partners as suggested by the superior court. This bill intentionally undermines the state human rights statute, and that bodes ill for everyone. If this one exception for marital status is made here, other exceptions may follow. Upon what basis would these exceptions be allowed? MS. BOESSER said human rights laws exist in part to educate people as to what practices are discriminatory. This is so people can avoid illegal actions. In that light, the proper response to the court ruling would be the exact opposite of this bill. Lawmakers should be educated by the ruling and should conclude that this is illegal and must stop. To say instead, "We don't support marital discrimination except in certain cases," is to act in bad faith with regard to the promise of non-discrimination made to the public years ago. Number 1870 MS. BOESSER said the Juneau Human Rights Commission opposes this bill for just that reason. Ms. Boesser is sorry the State Human Rights Commissioners were not as protective of the statute. However, they may be simply acknowledging the legislature's power to amend its own law despite the court's finding that such a position violates the very statute they were appointed to uphold. MS. BOESSER said her organization supports the Robinson amendment. It does not violate statute since by adding "domestic partners," financial interdependence, not marital status is the criteria for benefits. And, as HESS Committee members heard, Harvard University research and other research finds that around the country enrollment increases of domestic partners is extremely minimal. With limiting guidelines, recognition of domestic partners does not result in increased benefit costs. Number 1897 MS. BOESSER concluded by saying thus, the financial impact of this amendment is negligible. However, if the bill passes without the amendment, the state will certainly suffer ongoing litigation costs. HESS Committee members face many important issues. Going backwards in Human Rights Laws is not one of them. The session is short, and Ms. Boesser asked HESS Committee members to save the legislature time, unnecessary cost and divisiveness by stopping this bill as written or by amending it to include domestic partners. Number 1918 REPRESENTATIVE ROKEBERG asked if discrimination concerning employee benefits and domestic relation laws were not important issues. MS. BOESSER said they were very important issues. That is why they should not be discriminatory on a basis that has been found to be illegal for years. Number 1943 DANIEL COLLISON, Vice President, SEAGLA, said as a representative of that organization he opposes passage of HB 226 which will deny domestic partner benefits to employees of the University of Alaska. Mr. Collison said one of the major arguments put forth by Representative Kelly in support of his bill is that it would be financially burdensome to the university health care plan if domestic partner benefits were extended. MR. COLLISON said this is the one issue he would like to address in his testimony. The evidence overwhelmingly suggests otherwise. In particular, Mr. Collison submitted a letter and attachments from the University of Iowa benefits administrator, a packet containing seven articles on this subject, and a comprehensive listing of corporations, universities and government entities which have extended domestic partner benefits to their employees. MR. COLLISON said those who would deny domestic partner benefits predicate a financial burden on three myths. Myth #1: If the University of Alaska opens its health care plan to the domestic partners of its employees, the plan will be inundated with new enrollees. Number 2006 MR. COLLISON explained, however, that the experience of the university of Iowa counters this myth. The University of Iowa extended benefits to an employee's common law marriage partner in 1953. In 1992, the same benefits were extended to an employee's same-sex domestic partner. Currently, the university employs approximately 26,000 people with 14,000 people eligible for benefits. Of this number, only nine-tenths of one percent (.09 percent) are in a common law marriage, while only two-tenths of one percent (.02 percent) are covered under the domestic partner relationship. MR. COLLISON continued that the University of Iowa's experience is consistent with that of other employers. In 1993, the Seagul Company executive letter reported that in those companies which extend benefits to domestic partners, participation rates are less than five percent of the work force, and frequently less than two percent of the work force. MR. COLLISON presented Myth #2: Extending health care benefits to the domestic partners of University of Alaska employees will be financially burdensome to the plan. MR. COLLISON advised that a study appearing in the June, 1994 CCH Employee Benefits Management Directions find the plans offering domestic partner health coverage to same-sex couples experience about a one percent total increase in health care costs. Plans offering health care coverage to all domestic partners experience approximately a three percent increase in health care costs. Number 2070 MR. COLLISON stated Myth #3: The medical bills of a gay male domestic partner, with, for example, AIDS-related claims, are more costly than claims of an employee's spouse or dependent. MR. COLLISON said the authors of an article in "Employee Benefit Practices" report "there is no evidence to indicate the average health care cost of a domestic partner, same sex and/or opposite sex, will be significantly higher than that of a spouse." For example, the average AIDS-related claim currently figures at $119,000. A premature birth, however, can cost as much as $1 million. Two weeks in intensive care following a heart attack can cost in excess of $50,000. This figure does not include surgery, related costs and follow up. MR. COLLISON said in fact, the experience of the University of Iowa might suggest that a health plan benefits from enrolling domestic partners rather than spouses of employees. In 1994, the University of Iowa discovered that claims for persons in domestic partner relationships averaged only $224 per person. A regular spousal claim averaged approximately $2,700. Number 2125 MR. COLLISON stated the facts overwhelmingly suggest that should the University of Alaska extend domestic partner benefits to its employees there would in fact be no significant added financial cost to the university's health plan. If the committee yet harbors concerns about the cost of such a benefit, Mr. Collison would suggest they refer the matter to a subcommittee for a thorough examination of all financial considerations. Furthermore, he would suggest that the Robinson amendment, which strictly defines a domestic partner relationship, will prevent any abuse of such benefits and minimize any cost to the university health plan. MR. COLLISON presented packets of information to HESS Committee members. Number 2166 JOHN GAGUINE, Assistant Attorney General, Department of Law, said his department is responsible for the tracking of this bill. He is present at the invitation of Co-Chair Toohey to answer questions. REPRESENTATIVE VEZEY thought the underlying question he has concerns the fact that the state of Alaska definitely does not have provisions for common law marriage. Representative Vezey's understanding of common law marriage is substantially different than what was explained by Mr. Tumeo. Representative Vezey asked for Mr. Gaguine's definition. MR. GAGUINE said the Alaska Supreme Court has made it very clear that Alaska does not have common law marriage in this state. Therefore, he is not clear on the concept. However, his understanding is that common law marriage exists when a couple has lived together for a certain period of time, and they have presented themselves as husband and wife. They are then considered married. REPRESENTATIVE VEZEY said therefore, Mr. Gaguine's understanding of the concept is the same as his. He asked if Mr. Gaguine would interpret the new Alaska law as handed down by Judge Greene as establishing a sector of common law marriage. Number 2227 MR. GAGUINE said that is a hard question. To the limited extent that benefits are being conferred, the issue can be looked at in that way. Mr. Gaguine would, however, say no because common law marriage, in the states that have it, is so much broader than just this limited decision dealing with health care benefits. CO-CHAIR TOOHEY said going back in Alaska's history, traditionally Native marriages were commitments between two people that said, "We will live together." The relationships were dissolved equally as efficiently, by saying "We will no longer live together." She asked if Mr. Gaguine knew anything about that. He did not. CO-CHAIR TOOHEY also asked what will happen if Judge Greene's decision is upheld in the appeal. MR. GAGUINE said that would depend on if the decision is made retroactive. Given the intent behind HB 226, Mr. Gaguine said the legislature would want to make it clear that the intent is not to change to the law but to restate what the legislature feels the law is. This is under the assumption that the legislature feels Judge Greene's decision was not correct, and therefore it is not changing the law, it is only restating the existing law. MR. GAGUINE said again, if the Supreme Court were to uphold Judge Greene's decision, and if the Supreme Court finds the bill is simply a change in the law and not just a clarification in the law, and it is not made retroactive, then the plaintiffs in that case would be entitled to coverage for a certain period of time. Again, however, it would seem to Mr. Gaguine that coverage would cease when the bill became effective (if the bill is passed). TAPE 95-29, SIDE B Number 000 CO-CHAIR TOOHEY asked if the Administration was taking a position on this bill. MR. GAGUINE said he could not speak to that. He understands that at the last committee meeting, the director of the Division of Retirement and Benefits spoke in favor of HB 226. REPRESENTATIVE ROBINSON interjected that the director was not authorized. That is the reason he is not present at the current meeting. She said she could probably get that in writing. Number 056 REPRESENTATIVE ROKEBERG asked Mr. Gaguine if he was familiar with the case Lilly vs. The City of Minneapolis, and he was not. Representative Rokeberg said it was published on January 31, 1995. It is in the Minnesota Appeals Court. Representative Rokeberg asked if Mr. Gaguine was familiar with the Baehr vs. Lewin case from Hawaii, and he was. REPRESENTATIVE ROKEBERG said Mr. Gaguine pointed out that it would be up to the Alaska Supreme Court as to the disposition of the Tumeo-Wattum case. If the decision were thrown out, there would be no claim on the part of Mr. Tumeo at all. MR. GAGUINE answered that would be correct. REPRESENTATIVE ROKEBERG said if the decision is upheld, then according to Mr. Tumeo there would be just a claim on the part of University of Alaska employees versus other state employees. He asked if that was correct. MR. GAGUINE said that was the key question. Mr. Tumeo pointed out the statute governing health insurance procured by the DOA which does say, as he indicated, that such insurance must be subject to a provision that it cover each eligible employee, the spouse and the unmarried children chiefly dependent upon the eligible employee for support. Mr. Tumeo seemed convinced the state would be protected if it was faced with a suit brought by a state employee along the same lines as Tumeo and Wattum vs. The University of Alaska. To Mr. Gaguine's knowledge, the state has not been faced with any such claim to date. Number 210 MR. GAGUINE has spoken with a lawyer for the university, and he has not seen a copy of Judge Greene's decision on reconsideration. What was given today is the university's petition for reconsideration. Mr. Gaguine did not know whether Judge Greene said, "No, the statute does not protect anybody," or whether she said "No, the statute does not protect the university." MR. GAGUINE continued that if, in fact, Judge Greene said the statute does not protect the university and she did not make a decision whether or not it protects the state, then maybe the state may have adequate protection. Number 297 REPRESENTATIVE ROKEBERG asked if any state employee with a fact pattern similar to Mr. Tumeo's or Ms. Wattum's brought a cause of action suit against the state for similar circumstances, given Judge Greene's ruling, is there any precedent set or would that be up to the courts to decide. MR. GAGUINE said obviously, the state is more likely to get sued now than before Judge Greene's opinion. He reiterated that this issue is whether the other statute provides the state with absolute protection. The state would hope the court would reach that conclusion. Number 362 REPRESENTATIVE ROKEBERG asked if the areas of discrimination, i.e., employee health benefits and the body of law around domestic relations are both compelling of state interest and a matter of statewide concern. MR. GAGUINE said that is a policy question that he would rather not answer. REPRESENTATIVE ROKEBERG recalled that Mr. Gaguine said he is familiar with the case from Hawaii. Representative Rokeberg summarized that the Hawaiian Supreme Court ruled, based on the amendments to the Hawaii constitution and the civil rights provision on the word "sex." They said it was not related to gender but also allowed sexual orientation. Therefore, the court ruled that same-sex marriages were allowable under the Hawaiian constitution. MR. GAGUINE advised that the court did not go quite that far. CO-CHAIR TOOHEY told Representative Rokeberg that same sex marriages were not being discussed. What was being discussed was marital status at the university for health care benefits. This can include live-in partnerships or men and women who do not want to get married. Same-sex relationships are not the only issue, and eventually Representative Rokeberg's bill concerning marriage will be heard. REPRESENTATIVE ROKEBERG read a footnote on page 15 of Judge Greene's ruling. It said, "The University would have to show that same sex marriage is prohibited in Alaska....The University provided no legal argument that such marriages are prohibited." Representative Rokeberg asked Mr. Gaguine what the effect of this footnote would be on precedent. Number 504 MR. GAGUINE felt the footnote says the judge did not want to decide that issue. She is ducking the issue, basically. MR. TUMEO asked to reply to a question. He said that Representative Rokeberg asked about the decision upon remand, and the request for reconsideration. It was a very simple, two- paragraph decision in which the court said two things. The university asked for reconsideration claiming the court had missed the very laws that Representative Kelly and Mr. Tumeo have discussed in terms of protection to the state. MR. TUMEO explained that the judge said two things. She said the court cannot miss something that was not presented to it (the university never brought those issues up in court). She also said the university had not proven that the law showed the intent of the legislature to discriminate against marital status for the university. That is not the exact wording, however, the main point is that Judge Greene ducked the issue of whether it applied to the state or not. She did not approach that issue. She basically said, the university did not make this argument before, therefore, it is not appropriate to make it on request for reconsideration. Number 601 REPRESENTATIVE ROBINSON asked Mr. Gaguine if there is any way anyone could find out how many state employees have filed for insurance who are actually not married. MR. GAGUINE said he would not know that information. Number 637 MARYLOU BURTON, Director of Statewide Budget, University of Alaska Fairbanks, read in a statement from the university into the record. "The University supports this bill. As you know, Judge Greene's decision in the Tumeo-Wattum case was that under state law, the University cannot restrict its health care benefits on the basis of marital status. We are appealing that ruling, but if we fail in our case, we may be faced with the need to limit benefits in some way, which could be not covering spouses or limiting the overall amount of benefits to individuals just to live within our financial constraints. "This bill provides the University and other employers the option to limit benefits to employees and their spouses and dependents." MS. BURTON noted that she had just read a basic statement of support for the bill. Number 714 REPRESENTATIVE ROBINSON asked Ms. Burton how much she thought the loss of Tumeo's case would cost the university. MS. BURTON said the university does not have that information at this time. In addition, she did not believe the university has the kind of data that can provide that information at this time. Number 735 REPRESENTATIVE ROKEBERG asked if it would cost more than $100. MS. BURTON said she could not say if it would, but she would suspect so. CO-CHAIR TOOHEY asked who is paying court costs for Tumeo and Wattum vs. The University of Alaska. MR. TUMEO said he paid for his own case, and Ms. Burton said the university is paying for its case. CO-CHAIR TOOHEY asked if there is any connection with the Administration of the state of Alaska, or are the university's court costs strictly out of the budget of the University of Alaska? MS. BURTON answered that to the best of her knowledge, the court costs were coming strictly out of the university's budget. Number 722 REPRESENTATIVE ROBINSON asked how much the case has cost so far. MS. BURTON answered that she does not have that information, however, someone at the university probably knows, and she could get that information for the committee. MR. TUMEO spoke to the plaintiff costs. He has individually accumulated $10,000 in legal fees, and his attorney is charging him half price. He also noted he has a legal defense fund, if anyone in the room wanted to contribute. REPRESENTATIVE ROBINSON would assume the university has personal policies that can be amended that would probably correct this problem. MS. BURTON replied that the university does have personnel policies that could presumably could be corrected in such a way that would address the problem--if that is the way the case is decided. Number 852 REPRESENTATIVE BRICE asked if currently the university pays for spousal benefits. MS. BURTON said she has been back with the university for about one and one half months, and she was sent to the HESS Committee to read a statement in lieu of someone who could not be present. She wanted to attach that disclaimer to her comments. However, she said under the university's policy, you have to pay an extra amount of money if you want your spouse or dependents covered. The coverage is not just automatic. REPRESENTATIVE BRICE said therefore, the employee pays for the increase, and Ms. Burton said yes. Representative Brice then suggested that in the instances of Tumeo and Wattum, the university would not even allow them to pay for the increase. MR. TUMEO said that was correct. CO-CHAIR TOOHEY asked the cost. MS. BURTON believed the cost was about $6.50 every pay period. Number 892 MR. TUMEO said the university charges depending on which package is chosen for you and your partner. The charge is somewhere between $4 to $7 a pay period. The university also provides a small amount, so there is some minimal charge to the university. When, in the law case, the university was asked what that amount was, the university was unable to produce statistics to show how much that was because the amount is not big enough for them to keep track of in their system. MR. TUMEO continued that the university would not even allow him to pay the university's portion to get the benefit, because it did not know how much that portion was. REPRESENTATIVE BRICE said that is what this bill is trying to restrict. It is not being requested that the university or any employers give benefits away. Just the opposite, people are willing to pay for the benefits. MS. BURTON said she could not speak on this issues. CO-CHAIR TOOHEY told her that these are the kinds of questions that HESS Committee members need answers to. She then asked Mr. Gaguine if it was the place of the legislature to intervene in a decision in the courts before that decision is finalized. MR. GAGUINE said that is obviously a policy decision for the legislature. He thinks, however, at this point there is a final Superior Court decision. The legislature is not intervening in the beginning of a lawsuit before there has been any decision rendered. There has been a decision rendered by the superior court. Number 996 CO-CHAIR TOOHEY summarized Mr. Gaguine's comments as the decision has already been made. MR. GAGUINE said the final word has not been handed down yet, as the case is in appeal. CO-CHAIR TOOHEY asked if, in fact legislation is passed that says no non-employees will be accepted on benefits unless they are duly married with a license, can the court's decision be made retroactive. MR. GAGUINE said there might be problems making the decision retroactive. There is a rule that states if the existing law has been relied upon, a change in that cannot be retroactive. Generally, some statutes can be made retroactive, however, Mr. Gaguine felt there would be problems making any decisions here retroactive. CO-CHAIR TOOHEY asked HESS Committee members what other information they would like to request from those testifying so the bill can be heard again promptly. She also asked to hear the amendment at the next hearing of the bill. REPRESENTATIVE BRICE said he still would like someone from the DHSS to address some questions. Co-Chair Toohey agreed that would be appropriate. REPRESENTATIVE ROKEBERG said there has been a brand new case that has come down, and he would like some clarification on the existing benefit statute for the state of Alaska. He suggested that Mr. Gaguine provide that information. He asked Mr. Gaguine to look up the case Lilly vs. The City of Minneapolis, and then to study the Minnesota statute as it relates to the Alaska statute. The relation will be evident. CO-CHAIR TOOHEY said she would also like a position paper from the DOA. Number 1134 REPRESENTATIVE ROBINSON asked to speak to Representative Kelly's comments on her amendment. Representative Kelly had commented that her amendment was discriminatory toward low income people. She asked HESS Committee members to take the time to read her amendment. It clearly states that it refers to a domestic partners who reside together. There is a whole series of criteria that must be met, such as having a joint banking account. REPRESENTATIVE ROBINSON stressed it was important to remember that only employed people are being addressed in her amendment and in the bill, not unemployed people. There is a whole series of criteria, and the couple must meet five of those criteria. One of them is having entered into a legally binding domestic partnership agreement. That does not cost anything to the partners. REPRESENTATIVE ROBINSON wanted to make it clear that those who are "the working poor" could definitely enter into a domestic partnership act. This amendment does not discriminate against people who are poor. Representative Robinson wanted to get that on the record. Number 1205 MARY GRAHAM, Interested Citizen, said she is opposed to HB 226 which appears to now say, "We, the State of Alaska, don't want to discriminate based on marital status in general, but we will allow extra compensation by public employers for persons who are legally married to be considered a non-discriminatory practice." In short, it says the state is not going to allow discrimination but anyone can discriminate. That is how it reads to Ms. Graham. MS. GRAHAM said, as has been pointed out in previous hearings on this bill, persons can enter into civil contracts of many sorts to become financially obligated to each other. Therefore, Ms. Graham feels HB 226 is a detriment to equal protection for all Alaskans, no an enhancement. Ultimately, it provides not equal rights but special rights for married persons. MS. GRAHAM urged HESS Committee members to dismiss this bill in light of Judge Greene's ruling, and get on with the other important business of this legislature. As noted in Judge Greene's decision, in the two Supreme Court cases that have challenged discrimination under the Human Rights Act, the courts conclude that protection against discrimination based on marital status protects the rights of unmarried couples. Although these were housing cases, Ms. Graham believes the same principles apply. Number 1285 MS. GRAHAM asked if the state should tell landlords they cannot discriminate, but public employers may. Ms. Graham did not think so, and it seems illogical to pass legislation that has already been determined to discriminate. If HESS Committee members choose to move forward with this bill, Ms. Graham asked that the bill be amended to include domestic partnership language to continue to hold to the intent of the Human Rights Act and not encourage discrimination. Number 1306 CO-CHAIR TOOHEY thanked Ms. Graham and asked a question to Mr. Tumeo. She asked if he would be allowed to pay $500 a month for the insurance if he wanted to. MR. TUMEO answered there is some level at which, of course, an individual can buy insurance. The standard is because the university is a large pool, it is less expensive to buy there. The standard cost, as he understands it, is somewhere between $150 and $190. Mr. Tumeo and his partner offered to pay that to the university and the university would not allow him to enroll his partner. CO-CHAIR TOOHEY asked when HESS Committee members would be able to hear testimony again, and it was tentatively decided that the bill would be heard again in nine days, on Thursday, April 6. ADJOURNMENT CO-CHAIR TOOHEY adjourned the meeting at 4:54 p.m.