03/12/1998 03:02 PM HES
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES STANDING COMMITTEE March 12, 1998 3:02 p.m. MEMBERS PRESENT Representative Con Bunde, Chairman Representative Joe Green, Vice Chairman Representative Al Vezey Representative Brian Porter Representative Fred Dyson Representative J. Allen Kemplen Representative Tom Brice MEMBERS ABSENT All members present COMMITTEE CALENDAR SENATE BILL NO. 17 "An Act creating the crime of criminal transmission of human immunodeficiency virus (HIV)." - HEARD AND HELD HOUSE BILL NO. 375 "An Act relating to children in need of aid matters and proceedings; relating to murder of children, criminally negligent homicide, kidnapping, criminal nonsupport, the crime of indecent exposure, and the crime of endangering the welfare of a child; relating to registration of certain sex offenders; relating to sentencing for certain crimes involving child victims; relating to the state medical examiner and reviews of child fatalities; relating to teacher certification and convictions of crimes involving child victims; relating to access, confidentiality, and release of certain information concerning the care of children, child abuse and neglect, and child fatalities; authorizing the Department of Health and Social Services to enter into an interstate compact concerning adoption and medical assistance for certain children with special needs; authorizing the establishment of a multidisciplinary child protection team to review reports of child abuse or neglect; relating to immunity from liability for certain state actions concerning matters involving child protection and fatality reviews and children in need of aid; relating to persons required to report suspected child abuse or neglect; relating to foster care placement and to payment for children in foster and other care and the waiver of certain foster care requirements; relating to the access to certain criminal justice information and licensure of certain child care facilities; amending Rule 218, Alaska Rules of Appellate Procedure; amending Rules 1, 3, 15, 18, and 19, Alaska Child in Need of Aid Rules; and providing for an effective date." - HEARD AND HELD * HOUSE BILL NO. 340 "An Act relating to child abuse and neglect, child-in-need-of-aid proceedings, and review of cases involving certain children who are in the custody of the state; amending Rules 3, 7, 10, 15, 17, and 19, Alaska Child in Need of Aid Rules; and providing for an effective date." - BILL HEARING CANCELLED * HOUSE BILL NO. 384 "An Act establishing the Legislative Commission on Family Law Reform; and providing for an effective date." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: SB 17 SHORT TITLE: CRIMINAL TRANSMISSION OF HIV SPONSOR(S): SENATOR(S) TAYLOR, Pearce, Miller, Ward Jrn-Date Jrn-Page Action 04/25/57 (S) RLS AT 10:45 AM FAHRENKAMP RM 203 01/13/97 18 (S) PREFILE RELEASED 1/3/97
01/13/97 18 (S) READ THE FIRST TIME - REFERRAL(S)
01/13/97 18 (S) HES, JUD, FIN 04/11/97 (S) HES AT 9:00 AM BUTROVICH ROOM 205 04/11/97 (S) MINUTE(HES) 04/11/97 1099 (S) HES RPT 2DP 1NR 04/11/97 1099 (S) DP: LEMAN, WARD; NR: WILKEN 04/11/97 1099 (S) ZERO FISCAL NOTES (ADM, DPS, LAW) 04/11/97 1099 (S) JUD REFERRAL WAIVED 04/15/97 (S) MINUTE(FIN) 04/22/97 (S) FIN AT 9:00 AM SENATE FINANCE 532 04/22/97 1383 (S) FIN RPT 1DP 4NR 1DNP 04/22/97 1383 (S) DP: TORGERSON; DNP: ADAMS 04/22/97 1383 (S) NR: PEARCE, SHARP, PHILLIPS, DONLEY 04/22/97 1383 (S) PREVIOUS ZERO FNS (ADM, DPS, LAW) 04/25/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203 04/25/97 (S) MINUTE(RLS) 04/25/97 1478 (S) RULES TO CALENDAR 4/25/97 04/25/97 1485 (S) READ THE SECOND TIME 04/25/97 1485 (S) ADVANCED TO THIRD READING UNAN CONSENT 04/25/97 1485 (S) READ THE THIRD TIME SB 17 04/25/97 1485 (S) MTN TO REMOVE (ADM, LAW)FN ANALYSES NOT 04/25/97 1485 (S) ADDRESSING FISCAL IMPLICATION ADP Y14 N6 04/25/97 1485 (S) COSPONSOR(S): MILLER, WARD 04/25/97 1486 (S) PASSED Y14 N6 04/25/97 1486 (S) DUNCAN NOTICE OF RECONSIDERATION 04/28/97 1513 (S) RECON TAKEN UP - IN THIRD READING 04/28/97 1513 (S) PASSED ON RECONSIDERATION Y14 N5 E1 04/28/97 1530 (S) TRANSMITTED TO (H) 04/30/97 1393 (H) READ THE FIRST TIME - REFERRAL(S) 04/30/97 1393 (H) HES, JUDICIARY, FINANCE 03/12/98 (H) HES AT 3:00 PM CAPITOL 106 BILL: HB 375 SHORT TITLE: CRIMES AGAINST CHILDREN/FOSTER CARE SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR Jrn-Date Jrn-Page Action 02/02/98 2200 (H) READ THE FIRST TIME - REFERRAL(S) 02/02/98 2201 (H) HES, JUDICIARY, FINANCE 02/02/98 2201 (H) INDETERMINATE FN (GOV/VARIOUS DEPTS) 02/02/98 2201 (H) GOVERNOR'S TRANSMITTAL LETTER 02/26/98 (H) HES AT 3:00 PM CAPITOL 106 02/26/98 (H) MINUTE(HES) 03/03/98 (H) HES AT 3:00 PM CAPITOL 106 03/03/98 (H) MINUTE(HES) 03/05/98 (H) HES AT 3:00 PM CAPITOL 106 03/05/98 (H) MINUTE(HES) 03/12/98 (H) HES AT 3:00 PM CAPITOL 106 WITNESS REGISTER SENATOR ROBIN TAYLOR Alaska State Legislature Capitol Building, Room 30 Juneau, Alaska 99801-1182 Telephone: (907) 465-3873 POSITION STATEMENT: Testified as sponsor of SB 17. JOHN MIDDAUGH, M.D., Chief Epidemiology Section Division of Public Health Department of Health & Social Services P.O. Box 240249 Anchorage, Alaska 99524-0249 Telephone: (907) 269-8000 POSITION STATEMENT: Testified in opposition to SB 17. SCOT McROBERTS, Outreach Coordinator 131 West Harvard Avenue Anchorage, Alaska 99501 Telephone: (907) 278-593 POSITION STATEMENT: Testified in opposition to SB 17. DEE JAY JOHANNESSEN, Executive Director AIDS Care Network 3650 Lake Otis Parkway, Number 100 Anchorage, Alaska 99508 Telephone: (907) 563-2437 POSITION STATEMENT: Testified on SB 17. JULIE CLOSE, Case Manager Interior AIDS Association 547 Sun Way Fairbanks, Alaska 99709 Telephone: (907) 457-2170 POSITION STATEMENT: Testified in opposition to SB 17. PAT CAHILL, Outreach Worker Interior AIDS Association 1434 Hans Way Fairbanks, Alaska 99709 Telephone: (907) 479-7190 POSITION STATEMENT: Testified in opposition to SB 17. MICHAEL HUGHES P.O. Box 230072 Anchorage, Alaska 99523 Telephone: (907) 345-3635 POSITION STATEMENT: Testified in opposition to SB 17. MARY LEE, HIV Counselor Municipality of Anchorage 8701 Spendlove Drive Anchorage, Alaska 99516 Telephone: (907) 343-4616 POSITION STATEMENT: Testified on SB 17. CHRIS CARPENTINO P.O. Box 55304 North Pole, Alaska 99705 Telephone: (907) 488-6289 POSITION STATEMENT: Testified in opposition to SB 17. CAREY CUMMINGS, Outreach Worker Interior AIDS Association 710 3rd Avenue Fairbanks, Alaska 99701 Telephone: (907) 452-4222 POSITION STATEMENT: Testified in opposition to SB 17. MARCUS ORTELEE, Volunteer Interior AIDS Association P.O. Box 82252 Fairbanks, Alaska 99708 Telephone: (907) 457-1272 POSITION STATEMENT: Testified in opposition to SB 17. ILENA CRAMER, Women's Outreach Worker Interior AIDS Association P.O. Box 81289 Fairbanks, Alaska 99708 Telephone: (907) 479-2136 POSITION STATEMENT: Testified in opposition to SB 17. SUSAN CARPENTINO P.O. Box 55304 North Pole, Alaska 99705 Telephone: (907) 477-6289 POSITION STATEMENT: Testified in opposition to SB 17. MICHAEL COONS, Paramedic P.O. Box 4229 Palmer, Alaska 99645 Telephone: (907) 745-6779 POSITION STATEMENT: Testified in support of SB 17 and in opposition to HB 375. DEAN GUANELI, Chief Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Presented criminal section of HB 375. KAREN LEONARD 310 West 76th Street, Number C Anchorage, Alaska 99518 Telephone: (907) 522-9268 POSITION STATEMENT: Testified in opposition to HB 375. YOLANDA BOMA 11640 Northern Raven Drive Anchorage, Alaska 99516 Telephone: (907) 348-0715 POSITION STATEMENT: Testified in opposition to HB 375. HARRY NEIHAUS P.O. Box 55664 North Pole, Alaska 99705 Telephone: (907) 488-9328 POSITION STATEMENT: Testified in opposition to HB 375. GENE ALTIG 4396 Al Cory Road North Pole, Alaska 99705 Telephone: (907) 488-4216 POSITION STATEMENT: Testified in opposition to HB 375. CATHY BALDWIN-JOHNSON P.O. Box 876478 Wasilla, Alaska 99687 Telephone: (907) 373-1184 POSITION STATEMENT: Testified in support of HB 375. DOUGLAS STUART Box 770 Homer, Alaska 99603 Telephone: (907) 235-2898 POSITION STATEMENT: Testified in support of HB 375. JOHN STREET P.O. Box 835 Kenai, Alaska 99611 Telephone: (907) 262-0454 POSITION STATEMENT: Testified on HB 375. RICK KRUEGER 2031 Second Avenue Ketchikan, Alaska 99901 Telephone: (907) 225-4905 POSITION STATEMENT: Testified on HB 375. NANCY SEAMOUNT Box 33794 Juneau, Alaska 99803 Telephone: (907) 586-3568 POSITION STATEMENT: Testified on HB 375. KAREN LARGENTS, Representative Anchorage Center for Families 3745 Community Park Loop Anchorage, Alaska 99508 Telephone: (907) 276-4994 POSITION STATEMENT: Testified in support of HB 375. DINO ALLEN, Chair Citizens Foster Care Review Board 3601 C Street, Suite 260 Anchorage, Alaska 99503 Telephone: (907) 563-6105 POSITION STATEMENT: Testified on HB 375. ANDY HARRINGTON 4624 Stanford Avenue Fairbanks, Alaska 99709 Telephone: (907) 479-1990 POSITION STATEMENT: Testified on HB 375. KARRE FISHER 520 3rd Street Juneau, Alaska 99801 Telephone: (907) 586-1792 POSITION STATEMENT: Testified in support of HB 375. NORM BLAKELY P.O. Box 537 Soldotna, Alaska 99669 Telephone: (907) 262-6160 POSITION STATEMENT: Testified in opposition to HB 375. LARRY ERICKSON P.O. Box 4045 Soldotna, Alaska 99669 Telephone: (907) 262-9393 POSITION STATEMENT: Testified in opposition to HB 375. LT. BILL GRIFFORD Anchorage Police Department 4501 South Bragaw Anchorage, Alaska 99507 Telephone: (907) 786-8852 POSITION STATEMENT: Testified in support of HB 375. JAY BLAIR 8963 North Douglas Juneau, Alaska 99801 Telephone: (907) 586-5775 POSITION STATEMENT: Testified in support of HB 375. DEIDRE PHAYER, Executive Director Covenant House 609 F Street Anchorage, Alaska 99501 Telephone: (907) 272-1255 POSITION STATEMENT: Testified in support of HB 375. PAM KARALUNAS 1401 Kellum Fairbanks, Alaska 99701 Telephone: (907) 456-2846 POSITION STATEMENT: Testified in support of HB 375. LINDA HAIM 900 West 5th Avenue Anchorage, Alaska 99508 Telephone: (907) 269-3521 POSITION STATEMENT: Testified in support of HB 375. DEBORAH HONEA P.O. Box 10710 Fairbanks, Alaska 99701 Telephone: (907) 457-7359 POSITION STATEMENT: Testified in support of HB 375. DAVID LEONE, Executive Director Resource Center for Parents and Children 1401 Kellum Street Fairbanks, Alaska 99701 Telephone: (907) 456-2866 POSITION STATEMENT: Testified in support of HB 375. PATRICIA GEORGE 3328 Fritz Cove Road Juneau, Alaska 99801 Telephone: (907) 789-0172 POSITION STATEMENT: Testified on HB 375. BARBARA MALCHICK, Child Advocate Office of Public Advocacy Department of Administration 900 West 5th Avenue, Number 525 Anchorage, Alaska 99501 Telephone: (907) 269-3500 POSITION STATEMENT: Testified in support of HB 375. MARION HALLUM, Guardian Ad litem Office of Public Advocacy Department of Administration 900 West 5th Avenue Anchorage, Alaska 99501 Telephone: (907) 269-3500 POSITION STATEMENT: Testified in support of HB 375. JANICE BARTA, Guardian Ad litem Office of Public Advocacy Department of Administration 900 West 5th Avenue, Number 525 Anchorage, Alaska 99501 Telephone: (907) 269-3500 POSITION STATEMENT: Testified in support of HB 375. DAVE BARTELS General Delivery Wasilla, Alaska 99654 Telephone: (907) 376-4693 POSITION STATEMENT: Commented on issues not pertaining to HB 375. ACTION NARRATIVE TAPE 98-23, SIDE A Number 0006 CHAIRMAN CON BUNDE called the House Health, Education and Social Services Standing Committee meeting to order at 3:02 p.m. Members present at the call to order were Representatives Bunde, Porter, Dyson, Kemplen and Brice. Representatives Vezey and Green arrived at 3:04 p.m. and 3:09 p.m., respectively. SB 17 - CRIMINAL TRANSMISSION OF HIV Number 0056 CHAIRMAN BUNDE announced the first item on the agenda was SB 17, "An Act creating the crime of criminal transmission of human immunodeficiency virus (HIV)." He asked the sponsor, Senator Robin Taylor to present his bill. Number 0064 SENATOR ROBIN TAYLOR, Sponsor of Senate Bill 17, directed committee members' attention to the packet of media reports, specifically the Associated Daily Press article from the Anchorage Daily News dated February 9, 1998, about the transmission of HIV and why many individuals believe it's important to have protections for the citizens of Alaska against this type of reckless and endangering criminal activity. SENATOR TAYLOR stated there are 27 other states that have similar laws. Senate Bill 17 does not criminalize the disease; it criminalizes irresponsible conduct that puts others at risk. The Department of Health & Social Services reports the majority of HIV cases in Alaska resulted from consensual sex. The question is, "Would consent have been given if the risks were known?" This legislation does not shift the burden of proof to the defendant; the state would still have to prove that the defendant knew he/she was infected and did not warn the person being exposed. The provision of an affirmative defense protects the defendant; it does not shift the burden of proof. SENATOR TAYLOR said the Department of Health & Social Services, when asked in the Senate Finance Committee, could not provide any substantiation to the claim that SB 17 would have a "chilling effect" on testing programs. In fact, the Illinois Department of Health advised the Alaska Legislative Research Section there was no decrease in testing as a result of their law. This statement came in March 1995, six years after the Illinois law had passed. Senate Bill 17 is modeled on the Illinois statute which has been upheld in both the state appellate and supreme courts. Senator Taylor stated that SB 17 will not affect any needle exchange programs. Number 0249 CHAIRMAN BUNDE pointed out the University of Alaska Anchorage had started a needle exchange program. SENATOR TAYLOR concluded that Congressman Tom Coburn of Oklahoma, a medical doctor, introduced House Resolution 1062, the HIV Prevention Act, which has 90 co-sponsors in the U.S. House of Representatives, and included in its provisions is sense of the Congress language that the states should criminalize the intentional transmission of HIV. The sponsor statement for HR 1062 states that 79 percent of Americans believe that those who knowingly infect another person should face criminal charges. House Resolution 1062 has also been endorsed by the American Medical Association (AMA). Number 0328 REPRESENTATIVE J. ALLEN KEMPLEN inquired if society had ever made a policy statement before about the criminal transmission of a virus. He was thinking in particular about the outbreak of syphilis some years ago and syphilis if it goes untreated will kill. He wondered if during the time that syphilis was a social concern and before public policies were put in place helping to mitigate that concern, were there instances of communities criminalizing the transmission of syphilis. SENATOR TAYLOR wasn't aware of a criminal penalty for the transmission of syphilis. He added that syphilis is treatable and the advancement in medicine has reduced some of the threat; however, he did not want to give anyone the impression that syphilis, gonorrhea and other diseases transmitted in that fashion are not still a very serious problem in the United States; they are. With reference to Representative Kemplen's question, he thought it could best be explained through the laws passed by the U.S. Government involving the transmission of typhus, which can be treated, but it's quite deadly. The "Typhoid Mary" statutes prevent a person with this illness from working in certain establishments because it could be transmitted to other people. In fact, those people who have failed to be properly certified and are found in those establishments, are violating the law. He said in each of the instances, a person had a chance of survival; whereas, to his knowledge, no one has survived this infection. Number 0515 REPRESENTATIVE KEMPLEN remarked the literature he's seen on HIV, just as with syphilis, medical research and technology is moving forward very quickly to produce a medical response to that virus and treating it as a public health issue seemed to be producing results. He questioned the wisdom of treating the HIV virus in the criminal arena. Number 0620 SENATOR TAYLOR advised that as of December 31, 1997, 412 Alaskans had been confirmed to have AIDS, the result of HIV infection. Since tracking began in 1982, 202 of these cases have known to have died. He couldn't imagine that anyone thinking it was anything other than a criminal act if their daughter had been infected, as the 13 young women were infected by one man on the East Coast this last year. As a consequence, that state believes it's a criminal activity. Twenty-seven other states have criminalized it because they have encountered that type of predatory person, who knows full well they run a serious health risk to others by their activities, recklessly go forward, participate in these activities, and don't even have the decency to notify their sexual partner of the risk that partner may be encountering. Number 0701 REPRESENTATIVE FRED DYSON asked if Senator Taylor had said or inferred the AMA has endorsed exactly this kind of legislation. SENATOR TAYLOR responded, not exactly. The AMA has endorsed a House Resolution that speaks to the same thing; that resolution says as part of its language, "Sense of the Congress statement," that indicates that states should criminalize the intentional transmission of HIV. REPRESENTATIVE DYSON asked, "And were they speaking just generally - the knowing transmission; in other words...." SENATOR TAYLOR responded affirmatively. CHAIRMAN BUNDE asked if there were other questions for the sponsor. Hearing none, he asked Dr. Middaugh to present his comments. Number 0765 JOHN MIDDAUGH, M.D., Chief, Epidemiology Section, Division of Public Health, Department of Health & Social Services, testified he is a physician, board certified in internal medicine, also in public health and preventive medicine, and has been in a position with the Section of Epidemiology, Division of Public Health, since 1980. He stated the first individual in Alaska with the diagnosis of AIDS was found in 1982 and one of his responsibilities and duties has been to try to work to prevent individuals being infected with the HIV virus. Number 0860 DR. MIDDAUGH requested the committee to oppose SB 17 because there is testimony from the Department of Law stating Alaska has adequate statutes that can take care of an individual who attempted knowingly to cause harm by transmitting this virus but most importantly, because criminalizing an infection is diametrically opposed to effective action to prevent disease transmission. The major priority to try to prevent individuals from becoming infected with this virus involves getting individuals to volunteer themselves to be tested; and when an individual is found who is infected with this virus, to work with that individual to name their contacts and other individuals who may also be at risk of being infected; to test those individuals and to work with those who are positive. He said the virus is fragile and hard to acquire and partner notification activities are targeted and focused to try to interrupt the chain of transmission. DR. MIDDAUGH said the division would generically oppose criminalizing any infection. There are many infectious diseases that can in fact be transmitted by similar types of behaviors and activities; hepatitis B, hepatitis C, herpes virus. In fact, the road of criminalization provides disincentives for people to come to public health and medical professionals to seek care and to put themselves at a place of identifying their activities and those others who may be at risk and that offers an opportunity, as well, to put individuals and offer them access to treatment. Number 0910 DR. MIDDAUGH stated the tremendous breakthrough that's occurred in the last couple years have been the development, for the first time, of drugs that are effective in preventing replication of the HIV virus in individuals. Unfortunately, these drugs are not yet effective in curing an individual from the infection; the drugs are extremely costly, have numerous side effects, and unfortunately, the virus can mutate and become resistant. Nevertheless, among individuals who are taking the drugs effectively, the virus load of a person can drop down to zero or near zero, which means the person would be far less able to transmit the virus to another individual. In addition, once an individual is infected with the virus, it takes an average of six to ten years in an untreated person, before illness occurs resulting in symptoms that result in a diagnosis of AIDS. He said with the advent of these new drugs, it's conceivable that individuals who are infected and are taking these medications, may go many decades without any illness and without an ability to transmit the virus to another person. Because of these advances, the Division of Public Health and the medical community have proposed making HIV a reportable condition that is required to be reported to the Division of Public Health and the division's goal is that every individual infected becomes identified and offered these voluntary services of partner notification, case management and access to the medications. Number 1007 DR. MIDDAUGH said SB 17, as written, does not criminalize transmission of the virus, but merely exposure to it. And in fact, the definition of exposure is so broad that it can encompass almost any potential exposure to bodily fluid. The Alaska State Medical Association opposes this legislation; the Public Health Association opposes this legislation; and most of the individuals involved on the front-line with public health and medical training and background are in opposition to the legislation. In anticipation of the interest in and concerns over the egregious incident in New York led him to call the Commissioner of Health at Chautauqua County to ask him what occurred there and what his opinion was about the need to criminalize HIV transmission. He recounted that an individual who was infected and had been counseled, so he knew of his infection and the risks, nevertheless sold drugs, engaged in unprotected sex and shared intravenous drug equipment with numerous women of whom many became infected. The public health response, as soon as that incident was known, was to do the partner notification, support the families and those infected, and to remove this individual from the ability to continue this behavior. In fact, that individual has been in jail in New York City since September on charges of drug abuse and burglary, awaiting sentencing, after which he will be arraigned and indicted in Chautauqua County. The Commissioner of Health, having gone through the trauma of those events in his community and the media inspection and scrutiny, opposes criminalization of HIV. He offered to answer questions for the committee and reiterated his opposition to SB 17. Number 1114 CHAIRMAN BUNDE asked if HIV was a reportable disease at this time. DR. MIDDAUGH responded that AIDS has been required to be reported since 1985, and the division is in the midst of the process with public hearings to take place on March 25 and March 26, to make HIV a (indisc.) reporting a requirement by all health care providers and laboratories in the state of Alaska to the Division of Public Health. CHAIRMAN BUNDE asked if an HIV positive person is capable of transmitting the virus or is it the person with full blown AIDS that transmits it? DR. MIDDAUGH replied the scientific ability to transmit would be dependent upon the presence of the virus and the virus is not equally present at all times during a person's lifetime. If a person were taking the medications, then the virus may drop to such a low level that a person could not infect another individual. CHAIRMAN BUNDE inquired if an untreated HIV person is capable of infecting another individual. DR. MIDDAUGH said at different times in the course of the illness. Shortly after an initial infection, the virus replicates and it is in higher presence in bodily fluids. Then it drops to a level that may or may not be very low, where there may or may not be a risk of transmission, and then late in the course of illness when the virus destroys the immune system, the virus tends to be in much higher quantities in a person, where transmission would be potentially more likely. Number 1217 REPRESENTATIVE DYSON asked Dr. Middaugh to respond to Senator Taylor's statement that this concept has been endorsed by the AMA. DR. MIDDAUGH said he had no knowledge that the AMA has endorsed criminalization of HIV. The Coburn legislation has many components to it, but one of the congressman's primary goals has been to establish reporting of HIV infection by name in the United States. Dr. Coburn has also proposed numerous other interventions related to HIV and AIDS over the last few years, but the Alaska State Medical Association opposes criminalization of HIV. He offered to provide specific information to the committee on the AMA's position on criminalizing HIV. Number 1265 REPRESENTATIVE JOE GREEN asked, "Would there be any advantage to an individual who might have lived a lifestyle such that he could suspect that he might have HIV, that with or without this bill would alter his wanting to check. For example, you have a certain lifestyle and you think you might - without it becoming a felony, I might go get checked and I may or may not have it. But with this as a felony, if I find that I have it and then do some activity that could pass that on, could that in your experience, be a deterrent for checking?" DR. MIDDAUGH said his interpretation of the legislation is that if an individual was never to be tested, that would be a form of defense that he did not know he was infected, so therefore, how could he be expected to ever be prosecuted for any behavior he undertook. He said, "Part of the concern we have is that our entire goal at the moment is get individuals who may be at risk or are at risk through their behaviors to be tested. In order to be effective in preventing infection, we have to have at risk behaviors plus infection with the virus. If individuals choose to engage in high risk behaviors and none of them are infected, the virus will not be passed on and if the individuals are infected and do not engage in high risk behaviors, the infection will not be passed on." He noted that one of the shocking things to the commissioner in Chautauqua County, was the fact that so many young women voluntarily chose to engage in high risk behaviors with this predatory individual in spite of widespread knowledge of HIV among them through extensive efforts between the health department and the education department that provided a high level of knowledge to those young women. There was a clear expectation of the need of constant affirmation of responsible behavior among all persons. Number 1369 REPRESENTATIVE GREEN recalled that Dr. Middaugh had indicated the level of infection drops and then rises within an infected person and he inquired if testing provides any benefit for a person who suspects they are infected. DR. MIDDAUGH responded during the last few years groups of anti- retro viral medications have been developed, which for the first time have been proven to be a benefit and intervening to prevent the virus from being able to continue to multiply and to attack the immune system. The drugs are expensive, have numerous side effects and involve taking a large number of pills on a very rigid schedule. Great efforts are underway to develop better drugs and, in fact, vaccines that might also instead of preventing infection where it appears technology will not be able to that, will be able to attack the virus through vaccination to neutralize the ability of the virus to cause damage to the immune system. The goal has shifted from preventing or curing an individual from infection to being able to basically, neutralize the virus in a person so that it doesn't harm the individual - the host - and also cannot be transmitted to others. He said there are great benefits to individuals today from knowing their HIV status and be appropriately put on medications, depending on the individual's status. REPRESENTATIVE GREEN asked Dr. Middaugh if a public right to know would prevent individuals from being tested? DR. MIDDAUGH said the diseases that are required to be reportable go with a very strong confidentiality provision. One of the great concerns in America and among individuals who are potentially at risk, is the balance of having anyone, other than themselves and perhaps their primary health care provider, know of this information. However, it's essential for public health agencies to be able to have this information in order to work with individuals who are infected and for primary health care providers in order to help interrupt these chains of infectious transmission and to assure access to care. The data that would be reportable would not be able to be made available to the public; it would be held completely confidential and used only with that individual and the primary health care provider to secure improved treatment and to work with individuals on a voluntary basis to identify others at risk who are engaging in similar high risk behavior. Number 1542 REPRESENTATIVE GREEN asked if SB 17 were adopted and a person finds they have HIV and infected another person, would it then become public knowledge. DR. MIDDAUGH commented that one of the reasons medical and public health people so oppose this kind of criminalization, is exactly that reason. The ability to hold in confidence, information that's used to interrupt diseases is essential. He gave the example of an outbreak of a disease such as hepatitis from a restaurant, and the public health community needed to go in and attempt to discern why the outbreak was occurring, what the agent was and how to intervene, and no one would talk to the health department because they would have to disclose potential behavior that might subject them to criminal penalties. That is a very important distinction between the role of public health and medical experts trying to prevent diseases and interrupt transmission versus the interface of individuals being asked to disclose activities that might subject them to legal penalties. Number 1606 REPRESENTATIVE AL VEZEY asked what prevents an individual who suspects they may have contracted a terminal disease from getting tested. DR. MIDDAUGH said there are many things that motivate people to conduct themselves in many different ways and that in the routine and normal state of affairs, most individuals behave responsibly, cooperate, are concerned about themselves and attempt to do reasonable, logical and rational things. There are other individuals, who in spite of education and laws, continue to behave in ways that are inexplicable. One of the reasons the person in Chautauqua County has not been sentenced is because he's undergoing evaluation for suspected mental illness. There are numerable reasons why individuals may or may not do what we wish them to do for their own good and one of the interfaces is the goal of dealing with most circumstances. The event in Chautauqua County, in the mind of the Commissioner of Health, is so extraordinary that it's understandable the abhorrence of what occurred, but that's not a reason to criminalize this disease. REPRESENTATIVE VEZEY understood that Dr. Middaugh had said that some people just behave irrationally and would not get tested. DR. MIDDAUGH said that was true. REPRESENTATIVE VEZEY commented that if a person can be prosecuted under existing law for deliberate or careless transmission of HIV, isn't that a deterrent to people getting tested. DR. MIDDAUGH replied given that the interface between law and medicine is somewhat contentious and that many people without knowledge are more than willing to give learned and unlearned opinions in areas they're not familiar with, he suggested that the representative of the Department of Law be given the opportunity to respond specifically to what laws are available related to an ability to intervene if an individual is knowingly attempting to harm someone through the transmission of any infection. He thought that part of the concern with this legislation is the potential broad sweep of its definitions and picking out one particular virus, and then trying to understand what the implications to that are for individuals both for a defense or under the circumstances by which people might argue what was said, what did they know, what did they agree to, all of which, are in a way, less of concern to intervening, to prevent the infection and to enlisting cooperation of individuals in that effort. Number 1768 REPRESENTATIVE VEZEY said suppose there's a law that allows the state to prosecute a person who is exposing others to the AIDS virus in a negligent manner. The person is locked up in jail where they have the opportunity to expose an entire new population and there are laws which prevent the individuals exposed from being notified. DR. MIDDAUGH said this is a virus that's not transmitted casually and individuals have responsibilities for the actions they assume and choose to engage in. That's one of the reasons why one of the major efforts in public health is to target individuals undergoing high risk behavior and who are getting infected, but there's also a tremendous challenge to constantly educate all individuals about the need to be responsible. He noted there's an entire group of kids growing up today who have no concept of what the older group has gone through in the last 15 years with this virus and these dangers. He thought the fundamental ability to identify and to apply appropriate treatment of individuals with the virus is one of the great efforts of public health. REPRESENTATIVE VEZEY asked will a person with the AIDS virus contract AIDS in six to ten years or die in six to ten years. DR. MIDDAUGH explained the virus enters the body and then within generally six to ten weeks, antibodies form and are then present throughout the rest of the individual's life. Today, there are tests to measure the virus, itself. Once the virus is in the body, there's what's called an incubation period and that's the period the virus resides in the body, but no symptoms or adverse measurable effects from the virus are present to make a person ill or to make anyone know the person is carrying it, except it can be detected with a blood test. Then, AIDS is a syndrome and what that means is it's a constellation of abnormalities related to illnesses, diseases, and effects on the immune system, that when they combine together meet what's a case definition of AIDS - Acquired Immune Deficiency Syndrome - and that's indicative of a certain level of impairment of the immune system and the subsequent diseases and illnesses that then attack and ravage the body. Once a person has AIDS, there's a period which is quite variable, until an individual dies from the cumulative impact of the continued virus attack on the immune system and the subsequent diseases and illnesses that affect a person. With the new medications, by placing a person on the medications earlier, then those illnesses are delayed or potentially, hopefully in the future, prevented and the impact of that virus will extend the time of AIDS. He directed the committee's attention to a handout which shows the number of deaths from AIDS has dropped dramatically in the United States and in Alaska in the last couple years, which is almost certainly due to being able to treat individuals with these anti-retro viral medications. Number 1976 REPRESENTATIVE BRIAN PORTER said he was somewhat confused on the requirement for confidentiality, but he thought some of the potential victims of the individual from New York had prior knowledge or had been informed, but still continued their relationship with him. DR. MIDDAUGH commented they knew the person was engaging in risky behaviors, but did not know the person was HIV positive. REPRESENTATIVE PORTER understood that current confidentiality requirements would not allow public health officials or anyone to communicate to a person that his/her spouse was HIV positive. DR. MIDDAUGH explained how partner notification activities work. Individuals are informed that they have been exposed or there's reason to believe they've been exposed to an infectious disease, but the identity of that person is not revealed so that, in fact, on a practical basis, it could be very obvious to an individual the source of that exposure. But the public health professional community does not breach that confidentiality by identifying specific sources of exposure, except in a rare instance which is what Chautauqua County faced of having to release this individual's name publicly and went through numerous ethics committees and looked at what their duties were to their community and what the implications were of protecting confidentiality of that reported information. Number 2071 REPRESENTATIVE GREEN said, "You indicated that this is not an easily transmitted virus. So that the public is not at risk if people are working in certain fields, is there anything in your knowledge that says that someone who tests positive would be restricted from activities - working in a hash house, working in a hospital or things like that?" DR. MIDDAUGH responded absolutely. Number 2096 SENATOR TAYLOR stressed the other criminal laws which a person could be prosecuted under require knowing and intentional conduct to actually try to kill someone; these individuals don't want to kill someone; they want to make love with them and will use every lie or every inducement to get them in bed and will never tell the partner they are HIV positive. If the drug dealer in New York had been required by law to inform the 13 young women that he was HIV positive, he would be prosecuted on that. Apparently there's a group of people who want to protect this activity and the excuse is that it may have a "chilling effect" on testing. Of the 27 states that have implemented this law, there's no citation which indicates that a decline in testing has occurred. He stressed that he wants it to have a chilling effect on the sexual activity of the people who are predatory towards Alaska's population. CHAIRMAN BUNDE announced the committee would now hear public testimony. He asked Scot McRoberts to testify from Anchorage. Number 2182 SCOT McROBERTS, Outreach Coordinator, testified via teleconference from Anchorage that he has had HIV for 14 years and is considered a long term survivor. He strongly opposed to SB 17 and urged the committee not to pass it. He said SB 17 strongly discourages individuals from seeking medical treatment. This legislation doesn't even require transmission for conviction, but just the mere cry from a person that they've been exposed. Number 2249 DEE JAY JOHANNESSEN, Executive Director, AIDS Care Network, testified via teleconference from Anchorage, in opposition to SB 17. He referred to the sponsor statement, "The sad fact is that the rate of infection in Alaska is increasing" and said that is not true. According to the State of Alaska Epidemiology Bulletin, the rate decreased every year since 1982; starting at 9.9 percent in 1982 and ending at .2 percent in 1997. Again, referring to page 4 of the sponsor statement regarding an increase in testing for HIV in Illinois since the passage of legislation, he said the reason for the increase in testing was the passage of the Ryan White Care Act of 1990, which for the first time in the United States provided funding for HIV testing and counseling. Alaska doesn't have the provision but HIV testing went up 250 percent from 1990 to 1997. He said this bill targets people living with AIDS. He referred to page 1, line 7, and said, "You have to be a person who is infected with HIV, so I, who am HIV negative, could pass off a tainted syringe and you could not prosecute me under this statute; you have to be HIV positive to be prosecuted." He said the biggest issue of the legislation is that it's not intended to punish those who have contracted HIV, it's intended to protect others who may be unknowingly exposed to the virus. An individual living in the United States in 1998, who knowingly engages in unprotected sex, is not unknowingly being exposed. We all have a responsibility to protect ourselves from HIV infection and we have the ability to do that. CHAIRMAN BUNDE thanked Mr. Johannessen for testifying and asked Julie Close to comment. Number 2333 JULIE CLOSE, Case Manager, Interior AIDS Association, testified via teleconference from Fairbanks that she currently case manages 20 individuals who are HIV positive. She said that many of these individuals are married or are in monogamous relationships ... TAPE 98-23, SIDE B Number 0001 MS. CLOSE ... and active lives. She believes this bill attempts to legislate morality, intimacy and personal choices and may encourage jilted partners to seek criminal and legal retribution once a relationship has ended. Her main concern is that this bill may discourage HIV positive individuals in her office from discussing prevention issues and obtaining safer sex materials for fear that confidentiality may be breached because of the potential of a future criminal case. Ultimately, SB 17 puts the focus of responsibility on no one, encouraging ignorance of a person's HIV status, and the belief that a law can guarantee a person's safety. The responsibility for avoiding transmission of this disease falls on everyone, HIV positive or not, aware or not, and cannot be legislated. Number 0050 CHAIRMAN BUNDE announced that HB 384 would be held over until Friday, March 20, and in all likelihood HB 340 would be held over also. He requested Pat Cahill to present his comments. Number 0056 PAT CAHILL, Outreach Worker, Interior AIDS Association, agreed with the remarks of the individuals previously testifying in opposition to SB 17. He finds this legislation upsetting because if he was HIV positive and married and he and his wife were having intimate relations, he would become a criminal. He questioned the right to legislate what he and his wife do in the privacy of their home. CHAIRMAN BUNDE thanked Mr. Cahill for his testimony and called on Michael Hughes to testify. Number 0085 MICHAEL HUGHES testified via teleconference from Anchorage, that he is distressed by the inflammatory nature of this legislation to attempt to single out a group of people based upon their sexuality; i.e., gay men. Number 0120 MARY LEE, HIV Counselor, Municipality of Anchorage, testified from Anchorage via teleconference that she's been in her current position since 1991 and an Alaskan resident for over 40 years. One of her jobs as an HIV counselor is to help a newly HIV positive person to not only deal with the (indisc.) fact that they are positive, but also to notify the partner as soon as possible. She has never had anyone refuse to tell the partner; the HIV positive individual goes to the extreme to locate a partner or partners and notify them of the HIV positive result. She stressed these people are not criminals; have never been criminals; and the people she counsels have no murderous intent. She strongly supported the comments of Dr. Middaugh, Dee Jay Johannessen and other HIV positive people. CHAIRMAN BUNDE thanked Ms. Lee for her comments and asked Chris Carpentino to present his remarks. Number 0192 CHRIS CARPENTINO testified via teleconference from Fairbanks and said he is an Alaskan resident living with HIV. While he heard many comments at the beginning of the hearing about intentional transmission of this disease, this bill doesn't say anything about intentional transmission; it just states that if he voluntarily engages and seeks contact with another person, he could be convicted of a felony. He believes that's wrong. The major things in his life, as well as anyone else's life, are food, shelter and human intimate contact. CHAIRMAN BUNDE thanked Mr. Carpentino for his testimony and asked Carey Cummings to present her testimony. Number 0218 CAREY CUMMINGS, Outreach Worker, Interior AIDS Association, testified via teleconference from Fairbanks and supported the comments of her colleagues who opposed SB 17. She said HIV is a public health issue; not a moral issue and certainly not a criminal one. Criminalizing intimate contact further stigmatizes an already highly discriminated group of people. Prevention of the spread of the virus will not be accomplished by punishing infected individuals for fulfilling the basic human need for intimacy. Furthermore, less people will be accessing HIV testing services because of fear of potential legal ramifications. Therefore, this legislation would undermine current prevention efforts for both HIV positive and HIV negative individuals and early treatment for infected individuals would be seriously compromised resulting in potential increases of AIDS related deaths at a time when treatments are improving. CHAIRMAN BUNDE thanked Ms. Cummings for her testimony and asked Marcus Ortelee to present his comments. Number 0258 MARCUS ORTELEE, Volunteer, Interior AIDS Association, testified via teleconference from Fairbanks. He has been a volunteer at the Interior AIDS Association for the last nine years. He agreed with the other witnesses that this bill should not be passed. He's known people and still knows people who have had AIDS for over 20 years and are living very healthy lives and are in monogamous relationships. He said SB 17 regulates private lives which should not be done by the state. He knows of HIV positive individuals who have HIV negative partners and engage in protected sex; it's an adult decision and should be left up to the individual. CHAIRMAN BUNDE thanked Mr. Ortelee for testifying and called on Ilena Cramer to present her remarks. Number 0298 ILENA CRAMER, Women's Outreach Worker, Interior AIDS Association, testified from Fairbanks via teleconference and said it is her job to help women ask themselves where does their personal responsibility begin. The government cannot fix all of society's woes and shouldn't even try. This bill makes intimacy illegal and more dangerous than it already is for women today. People must learn to protect themselves in this day and age. Some people would rather choose to close their eyes to their own dangerous behaviors and point fingers and find blame at other people. Having HIV is not a crime; it is a disease and a government cannot legislate a disease. She said this legislation would take all the responsibility out of the hands of people and place it in the hands of courts, clogging up the system with disgruntled ex-lovers. The only way to prevent HIV is through education, behavior change and responsible behavior. This legislation will not cut down on HIV transmission rate; it will increase ignorance, increase hatred and will punish HIV positive people who have already been punished enough. CHAIRMAN BUNDE asked Susan Carpentino to present her testimony. Number 0357 SUSAN CARPENTINO testified via teleconference from Fairbanks. She is the mother of an HIV positive young man. She strongly opposes this legislation. She suggested that if this sexually transmitted disease is going to be considered a criminal act, then all other venereal diseases should be included because if gone untreated, will cause someone to die. CHAIRMAN BUNDE thanked Ms. Carpentino for her testimony and asked Michael Coons to testify. Number 0389 MICHAEL COONS, Paramedic, testified via teleconference from the Mat-Su Legislative Information Office, in support of SB 17. He understands that Nevada has a similar law and according to television reports, is mainly targeting prostitutes and known drug users that are knowingly HIV positive and continue to engage in activities. As a health care provider, he does have concern with being infected with HIV. He related an incident whereby the family of an individual who knew he was hepatitis B terminal, refused to notify the ambulance crew who did mouth to mouth resuscitation and both ambulance crew members contracted hepatitis B. Number 0470 CHAIRMAN BUNDE thanked Mr. Coons for his comments and closed public testimony on SB 17. He announced that SB 17 would be held in committee and heard again at a later time. HB 375 - CRIMES AGAINST CHILDREN/FOSTER CARE Number 0490 CHAIRMAN BUNDE announced the next item on the agenda was House Bill 375. He noted that Dean Guaneli from the Department of Law was available to speak to the criminal section of HB 375. Number 0536 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law, said he would address three areas of criminal law under HB 375: First, being the changes to the homicide laws; second, the changes to the endangering the welfare of minor laws; and third was the child support laws. He said as a result of a couple of highly publicized homicides of infants in the last year, the Department of Law was asked to look at the homicide laws and the application with respect to the deaths of children. In doing so, it was determined that some changes could certainly be made. Essentially, those changes would, in many instances, elevate homicide offenses that are lower level homicide offenses to a high level. In some instances, crimes that would now be second degree murder have been elevated to first degree murder, particularly if a felony is being committed and the child dies or if the child has previously suffered serious physical injury at the hands of the same perpetrator and then dies in the second instance. MR. GUANELI stressed these are not easy cases to prove. Oftentimes, what happens is that when a child dies, the autopsy reveals broken bones or other injuries that had been previously inflicted, and if it can be proven those injuries were committed by the same person, then this in the department's view would serve to elevate that from a lower level offense to first degree murder. In other instances, things that would be manslaughter (indisc.) homicide have been elevated to second degree murder if there is a history of physical violence with the person who had been previously convicted of an assault on the child. With respect to manslaughter and criminally negligent homicide, the bill elevates the sentencing provisions so the presumptive term would go from five years to seven years for manslaughter involving a child. He noted the sentence is seven years for seriously injuring a child under first degree assault and only five years for committing manslaughter. It's an anomaly in the statutes, but at least with respect to children, HB 375 corrects that. With respect to criminal negligent homicide, the legislation makes a C felony a B felony and does some minor tempering with the sentencing provisions so the judges have a greater range of sentences that can be imposed. He said that oftentimes with homicide offenses, the differences between criminal negligent homicide and manslaughter and second degree murder often turn on some fine gradations of how the law defines the mental state a person has to have in committing those offenses. It's very easy sometimes for juries to give someone the benefit of the doubt and convict them of a lesser offense. Number 0687 MR. GUANELI said with respect to the laws regarding endangering the welfare of minors, after the incident of the infant dying in Fairbanks, there was a lot of soul searching by the Department of the Health & Social Services. Social workers were commenting that the District Attorney's Office never prosecutes cases involving criminal neglect of children. He believed that reflected in some ways, a misunderstanding about the criminal laws and there really is nothing in current law that reflects criminal neglect of children. There is endangering the welfare of a minor which is intentionally deserting a child under circumstances where the child can be injured, but really nothing else. In looking at those statutes, it seemed appropriate to create a statute that would address some of the more egregious situations. A couple that came to mind was leaving a child with a known sex offender when there's no one else present and leaving a child with someone who has previously physically assaulted the child. Oftentimes there are cases where a mother knows or has reason to believe that a boyfriend or the father of the child has been abusing the child, and leaves the child in that person's care and the child ends up dead. The boyfriend or the husband is prosecuted, but isn't there some culpability on the mother's part as well. Number 0776 CHAIRMAN BUNDE gave an example where a mother and her children are in an abusive relationship, the mother leaves and comes back, then one of the children is abused to the point of death. He asked would the mother, by coming back and living with the abusive father, be chargeable under these statutes. MR. GUANELI responded if the person had been previously physically assaulting the children, yes the mother would be chargeable if she went back to that relationship and left the children. The idea is leaving the children with the person with no one else available. Number 0825 MR. GUANELI explained there was another area of neglect that social workers often find in cases; that is parents who use drugs and parents who are incapacitated by alcohol to the point of being passed out in the house and there are infants in the home - parents who simply leave their infants alone for periods of time. The issue was should we criminalize that, should that be made criminal behavior, is that a criminal justice issue. This legislation makes that a violation; not a crime that a person could go to jail for but it's something where if relatives know what's going on, they can call the police and the police can take some action. It essentially brings a person into court who can be cited for the offense, the person can be fined, put on probation, ordered to seek drug or alcohol counseling, et cetera. It doesn't put the person in jail but it establishes a track record of conduct that's dangerous to the welfare of children; conduct by parents that's neglectful. He noted this is a significant change in the law and could potentially have a significant impact on the workload of some police agencies. Number 0928 MR. GUANELI said with respect to child support, in this day of welfare reform and cutting off welfare benefits, the department believes an important aspect of child care is having an adequate source of income for many single parents and there should be stronger penalties associated with the most egregious cases of criminal nonsupport. This legislation proposes to make a felony level criminal nonsupport for those people who owe an amount in excess of $10,000 and fail to pay child support. He said, "Now a couple of things I want to note about this. First of all, if you stole $500 from somebody, that would be a felony offense. Yet under current law, if you owe your ex-wife $10,000, $20,000 or $50,000 or in the most serious case I've been told of, $200,000+; that's not a felony offense. I think that that is wrong. Secondly, I don't want anyone to get the idea that someone who perhaps is -- an action is filed in an administrative agency that makes these determinations or an action is filed in court and they calculate back arrearages and let's say the person owes $15,000 -- I don't want anyone to think that all of a sudden they're a felony at that point. The offense would be committed if they owe that amount of money and they are not currently paying child support, having currently had a payment schedule that they are trying to meet. That's an important aspect. The other important aspect is in any child support criminal action, the state bears the burden of showing not only that the person isn't paying, but the person has the ability to pay. Either they have the assets and they aren't paying or they're able to work but they intentionally are not going to work. So we have a fairly high burden; we have to prove that the person isn't paying and that they have the ability to pay." Number 1035 CHAIRMAN BUNDE commented this legislation is about child protection and wondered if this portion about criminal child support would better fit in other child support legislation. MR. GUANELI said from a legal standpoint, it certainly complies with the single subject requirements under the law and constitution; in other words, he believes this is a legal and proper subject for this bill. With respect to single parents having the ability to care for their children; i.e., being able to get medical care, being able to get a babysitter if needed, he believes that child support really is germane to protection of children. Number 1195 REPRESENTATIVE GREEN said, "You also covered the $10,000 in arrears. There's another bill working its way through that indicates that if the ower [obligor] was not properly notified or timely notified, that there could be a significant amount of money built up and then all of a sudden that amount of money is due. Are you saying that there is in essentially all cases, an ability to work that out instead of just suddenly being confronted with this?" MR. GUANELI responded that's what the department envisions. The offense is for individuals who intentionally stop making payments and have the ability to make payments. Number 1238 CHAIRMAN BUNDE asked if he was correct in that there's a difference between failing to pay child support and criminal failure to pay child support. He understands that criminal failure to pay is where a person is intentionally hiding assets or .... In other words, a person who suddenly lost their job and is behind in child support is not liable to a charge of criminally failing to pay child support. MR. GUANELI said that was correct. The state bears the burden of proving beyond a reasonable doubt that a person has the ability to pay and is refusing to pay. Number 1357 REPRESENTATIVE PORTER recalled a constituent who had been paying child support directly to the obligee for some time was challenged about two weeks before the support would end and was required to produce payment records. In that case, the burden of proof was on the obligor, not the obligee, to prove that payments had been made over a number of years. He was unable to produce all the records and ended up being stuck for the amount he was unable to verify. He asked Mr. Guaneli if this type of situation would constitute a felony. MR. GUANELI said he believed the state would have the burden of proof of proving that the amount of arrearages is in excess of $10,000. It is, however, a different situation than the administrative proceedings. Number 1357 REPRESENTATIVE PORTER presumed that the provision that would make it a crime for a parent to leave a child with a known sex offender is offset if the child is left with a babysitter who is over 12 years old. He suggested raising the age level. MR. GUANELI responded it was the legislature's job to draw lines; the department drew the line at age 12 because that seemed a reasonable age at which people get sitters and it's difficult to find sitters who are 15- or 16-years of age. Number 1410 CHAIRMAN BUNDE announced the committee would begin taking testimony via teleconference. Number 1448 KAREN LEONARD testifying via teleconference from Anchorage, recognized that HB 375 attempts to resolve issues everyone is concerned about, but she said it is too broad. It goes beyond any new federal requirements and it essentially ends up "throwing the baby out with the bath water." She suggested that additional input is needed from the private sector, not just the attorney general's office and that the minimum requirements of the new federal regulations be determined and then a balanced bill be drafted over the next year so it's done right. She noted over the past year, the public has made it very clear that it wants more accountability from the Division of Family and Youth Services (DFYS); however, HB 375 does not increase accountability, but rather reduces the existing accountability to zero with immunity. If the number of children coming into the system is expanded, which HB 375 will do, where are the funds going to come from? She suggested that the next year be used to review what the Lower 48 has done to accomplish phenomenal safety records for their children and the same be done for Alaska's children. CHAIRMAN BUNDE thanked Ms. Leonard for her comments and asked Yolanda Boma to testify next. Number 1579 YOLANDA BOMA testified via teleconference from Anchorage regarding the immunity issue. She said under HB 375, the DFYS would not longer be accountable for obeying sections of regulations and procedures. This legislation makes the DFYS immune. She urged the committee not to pass HB 375. CHAIRMAN BUNDE thanked Ms. Boma for her testimony and asked Harry Niehaus to present his comments. Number 1645 HARRY NIEHAUS testified via teleconference from Fairbanks. He said there were two things he didn't like about the legislation; specifically, page 2, line 13 and page 2, line 25 through page 3, line 2. He said this legislation is vague and gives broad discretionary powers to social workers. CHAIRMAN BUNDE asked Gene Altig to present his comments next. Number 1789 GENE ALTIG testified via teleconference from Fairbanks in opposition to HB 375. In his opinion, the legislation is too complex, it endangers the family and children, it's too vague and it shows no accountability. Children are this country's greatest asset and their well-being is of utmost importance. The importance of bonding children to their parents before age 6 is (indisc.) out in this bill. It is his opinion that wrongly removing a child from the parents would do terrible damage to the child and would do more to cause anti-social behavior than minor abuse. He believed there is a need for accountability, not immunity from liability. CHAIRMAN BUNDE asked Michael Coons to testify. MICHAEL COONS testified via teleconference from Mat-Su in opposition to HB 375. His concerns are with the child fatality review and the multidisciplinary teams. He urged the committee to read his written comments that had been faxed to the committee. With respect to funding, he said that correcting the problems will require good programs, as well as money, in order to operate effectively. He's not opposed to funding programs that work, but he is opposed to funding a program without a history of quality results, such as the case of the DFYS. CHAIRMAN BUNDE asked Cathy Baldwin-Johnson to present her comments. Number 2140 CATHY BALDWIN-JOHNSON testified from Mat-Su via teleconference in support of HB 375 and said the problems are of enormous magnitude and major steps are required to correct it. She said Alaska's rate of substantiated child abuse is three times the national average. Child sexual abuse reports in the Mat-Su Borough more than doubled from 1993 to 1996 and currently, the local law enforcement agencies receive at least one to two reports daily of a child being molested. Fatal child abuse in this state is on the rise with homicide now the third leading cause of death for Alaskan children ages 1-9. In the Mat-Su Borough, 11 percent of child deaths are due to assault or homicide and 8 percent of Alaskan infants who died (indisc.-coughing) die because of abuse or neglect. She said that child abuse is a significant risk factor for juvenile crime and substance abuse. The local office of the DFYS is currently able to investigate about one-third of its over 1400 reports of child abuse and neglect each year due to lack of staff. She stressed the importance of local multidisciplinary teams to better investigate, evaluate and treat victims and their families. Better prosecution of offenders is needed in addition to better programs to prevent child abuse in the first place. TAPE 98-24, SIDE A Number 0002 CHAIRMAN BUNDE asked Douglas Stuart to present his comments. Number 0013 DOUGLAS STUART testified via teleconference from Homer and said House Bill 375 is a comprehensive, well-researched and very necessary piece of legislation and he supports the intent. When adults do not take responsibility for protecting their children or their children's rights, the social service agencies must step in to protect those endangered. Children are this generation's legacy and that legacy must be protected from neglect, abuse, violence and sexual predators. House Bill 375 empowers the agencies, foster parents, birth and adoptive parents with better ability to take over when others fail. Today's society is one of lost values, family values, neglected children, acts of violence. The inevitable result of all this is what is seen in the breakdown of family and family values. He said that House Bill 375 is the necessary answer to this situation and requested the committee to support this legislation. CHAIRMAN BUNDE thanked Mr. Stuart for his testimony and called on John Street to testify next. Number 0110 JOHN STREET testified via teleconference from Kenai. He said there's a lot of fighting going on involving issues that do not affect our children. The main thing that needs to be addressed today with this legislation is what's good for the children and this is the best thing he's seen to date because the bottom line says "best for the child." The best place for normal children is with normal loving parents, all other situations belong to the child, all choices that are out of the ordinary are for the child. He asked committee members to consider the good this bill could do and even though it's not perfect, it's the best thing so far. He urged the committee to pass HB 375 now as time is everything to some children; in some homes there is no tomorrow. CHAIRMAN BUNDE asked Rick Krueger for his comments at this time. Number 0308 RICK KRUEGER testified from Ketchikan via teleconference expressing concern with Section 11.51.115 regarding criminal nonsupport in the first degree. He had provided Chairman Bunde with a copy of the Ombudsman's investigation on his case with the Child Support Enforcement Division and as he understands this section, his assets could have been seized without him even being aware this debt was accumulating by aid to families with dependent children (AFDC) payments. He reiterated his opposition to this section. CHAIRMAN BUNDE asked Nancy Seamount to come forward to testify. Number 0413 NANCY SEAMOUNT said she had worked with children's services agencies and education continuously since 1981. During the 1980s she spent five years as an elementary counselor in Juneau schools and it was during this time she encountered most closely the problems in Alaska in terms of child protection. She began to tell anyone who would listen that no one should go to bed at night assuming that children were being protected. She called the DFYS daily to advocate with little to no effect for the children. The laws and programs that existed were, and are today, a flimsy cover for what actually exists; children living in terror and utter loneliness every day of their lives and an ineffective system that keeps mandatory reporters reporting with little to no results for children. In fact, she had vivid memories of reassuring these children after revealing abuse to her, that she would need to report it, but someone would come to help them feel safe and help their family get better. This was essentially a lie. The feeling of great powerlessness and the inability to tell this lie anymore, was one of the key reasons she chose to leave elementary counseling and work with kids at the high school as a teacher. Being in the small town of Juneau, she has watched these very children she was unable to protect grow up and for the most part, lead miserable and unhealthy lives. She looked for some of these adult survivors to testify and all of them she contacted were unable to come due to a variety of personal reasons including suicidal depression, active alcoholism, incarceration, et cetera. Number 0523 MS. SEAMOUNT said after reading House Bill 375, it is her belief that it addresses many of the key issues that have undermined the child protection system; in particular, the 12-month time limit for parents to get their act together before permanent placement occurs, the intervention and treatment in child abuse cases occurring earlier in the family's history, placements for children after extreme levels of family violence and that the DFYS would be held more accountable. CHAIRMAN BUNDE thanked Ms. Seamount for her testimony and asked Ms. Largents to present her testimony. Number 0643 KAREN LARGENTS, Representative, Anchorage Center for Families, testified from Anchorage via teleconference. She is the director of the home-based services. The family support and preservation support provided by this agency are based on values and philosophy that the best place for children to grow up is with their family when safety and permanence can be assured. She said when the state intervenes in a family's life because of risks to a child's safety, the state also has a responsibility to parents to make clear what needs to be different in order for the child to return, the time frame for the changes and then a system in receiving the services needed to make those changes. It has been the personal responsibility of the parent to make the choice to utilize those services and make the changes and to do so in a time frame that's consistent with the child's well-being. One of the greatest tragedies for a child is to lose their home and then left to drift in the foster care system. The agency believes that HB 375 and companion measure SB 272 appropriately hold both the state and the parent responsible and accountable for their respective parts in this process. There's a limit to how long a child can wait for a parent to change; the parent's time frame may be too long for a child. The agency supports this proposed legislation because it offers changes in the whole system of child protection and because it values the life of the child. CHAIRMAN BUNDE asked Dino Allen to testify at this time. Number 0682 DINO ALLEN, Chair, Citizens Foster Care Review Board, testified via teleconference from Anchorage. He said part of their mission aligns with this legislation, which is the independent review of children in foster care. The agency believes this legislation goes beyond that of any other legislation to help children who linger in out of home placement get back where they should be. Resources should be combined as much as possible to prevent child abuse and neglect and to move toward permanency for children to ensure they have a good start at becoming productive citizens. CHAIRMAN BUNDE called on Andy Harrington to comment next. Number 0760 ANDY HARRINGTON testified via teleconference from Fairbanks in general support of HB 375 and encouraged favorable committee action. His one concern was with Section 40; the requirement for the department to make reasonable effort in a timely manner to prevent the need for removing a child from the child's home, or to make it possible for the child to return safely to the child's home following removal. He said under current law, these efforts are required in virtually all cases which he believed was a wasted effort in some cases. This legislation substitutes a blanket rule to the opposite effect based on a finding by a preponderance of the evidence that certain offenses have been committed, and the offenses would include, for example, indecent exposure. He did not agree that an incident of indecent exposure proven by (indisc.) preponderance of the evidence should suffice to relieve the state's obligation to make reasonable effort. He said this is a minor criticism and overall, the bill makes some very needed changes in the child in need of aid system, but he thought the legislation would be a hollow promise if it's not backed up by sufficient resources to make sure the DFYS, the Attorney General's Office and other agencies involved are able to carry out the responsibilities this bill places on them. CHAIRMAN BUNDE thanked Mr. Harrington for his comments and next called on Karre Fisher to testify. Number 0867 KARRE FISHER testified that she is a student at Juneau Douglas High School and would like to see the provisions of HB 375 adopted. She's been frustrated with the reluctance on the part of the DFYS to remove endangered children from volatile situations. She had a friend living in an alcoholic home environment who suffered repeated abuse such as cigarette burns and bruises. A report was filed but the only result was counseling and anger management classes for the parents. Her friend remained in the home but nothing changed in the home environment and the case was closed. CHAIRMAN BUNDE thanked Ms. Fisher for sharing her comments with the committee and asked Norm Blakely to testify. Number 0995 NORM BLAKELY testified from Kenai via teleconference in opposition to HB 375. He said there were probably some good things in the bill, but he suggested that additional time be spent re-evaluating and redrafting the legislation. He expressed concern about a person being accused of sexual abuse of a child but is innocent and hasn't been able to see the child for years. CHAIRMAN BUNDE called on Larry Erickson to testify next. Number 1085 LARRY ERICKSON testified via teleconference from Kenai. He referenced page 3, line 11 - 28, and said this seems to set the philosophy of this legislation and while our children are important, he believed the studies referred to on page 11 should be identified. He expressed concern about the criminal nonsupport aspects of the legislature. In general, he's opposed to HB 375. CHAIRMAN BUNDE asked Lt. Bill Grifford to testify next. Number 1144 LT. BILL GRIFFORD, Anchorage Police Department, testified via teleconference from Anchorage and said he has seen more abuse and neglect than he cared to remember. Children abandoned, starved, slapped, kicked, beaten with belts, burned and branded, caged in dog kennels, tied up in bed, broken arms, legs and skulls; killed because they would not pick up their toys, cried too much or would not stand on their under-developed legs. He said these are the injuries we can see and feel; what cannot be seen and felt is the long term emotional harm done to children. He said this bill allows us, the protectors of the children to act in a quicker manner, to stop the violence, and move to terminate parental rights when necessary. Reducing the time to closure puts the child on the road to recovery quicker, demonstrates they can trust adults and allows the workers to get on to the next case. This bill will also allow investigative information to be shared and the ability to work more closely as a team. Combining investigative resources allows for a more efficient investigation in both time and money, reduces the duplication of effort and allows agencies to better understand the needs of each other. This bill will reduce crime in the future. He referred to the long term emotional effects of abuse and said today's abuse victims far too often become tomorrow's criminals. Many murder suspects describe a childhood filled with abuse; children learn what they are taught. This legislation is a comprehensive package and will help to protect our children and be a benefit to our children. CHAIRMAN BUNDE thanked Lt. Grifford for testifying and asked Jay Blair to testify next. Number 1265 JAY BLAIR testified in support of HB 375. He told the committee of an incident where he was visiting at a friend's house and witnessed the grandfather throw one of the younger children across the room because he didn't eat his dinner. While he is no longer a friend of this individual, he has observed that the grandfather's abuse has rubbed off on the children. He urged the committee to support HB 375. CHAIRMAN BUNDE thanked Mr. Blair for his comments and asked Deidre Phayer to testify. Number 1418 DEIDRE PHAYER, Executive Director, Covenant House, thanked the committee for the opportunity to testify on behalf of children who are at risk. As a professional who sees on a daily basis the victimization of kids she is in support of HB 375. She said this bill promotes zero tolerance for the continuing victimization of kids. These are kids who are vulnerable because the very people who are supposed to protect them are often the ones who are putting them at great risk and the abuse that she sees all too often continues without consequence. She is hopeful the resources will be attached to make this a piece of legislation that will truly improve the quality of life for our children. She said as we all know, children need to be the number one priority because their voices are silent and they are very vulnerable. She concluded, "And also please remember, as our elected officials, you are the voice of these children and they are dependent upon your wisdom and good judgment." CHAIRMAN BUNDE thanked Ms. Phayer for her comments and asked Pam Karalunas to testify. Number 1499 PAM KARALUNAS testified via teleconference from Fairbanks. She supports the intent of HB 375 and expressed her appreciation to the drafters. She works with families in which children have been molested (indisc.-child talking). She has had personal experience with the DFYS in that her daughter was taken custody of by the state. Her primary concern with HB 375 had already been expressed by Andy Harrington on Section 40 on reasonable efforts relating to child sexual abuse. She said what's not acknowledged in the legislation is that with incest cases, part of the reason incest is so damaging to children is because they love the perpetrator. This legislation does not allow for that; in fact if anything, it gives the perpetrator a bit more ammunition when advising the child not to tell; e.g., if you tell, I will no longer get to be your daddy. It eliminates any possibility for successful reunification or the therapy support for the child as far as the responsibility section in hearing the person they love taking responsibility for what happened and the role they had. She supported increased accountability for both parents and the DFYS. She encouraged the committee to take swift action. CHAIRMAN BUNDE thanked Ms. Karalunas for testifying and called on Linda Haim to testify. Number 1636 LINDA HAIM testified via teleconference from Anchorage. She's a volunteer working as a court appointed special advocate and said in the last year and a half she's been involved in the life of a baby who was taken into custody shortly after birth. She said there are two proposed changes to the law that would directly impact this child in a very positive way. Those are the changes involving the termination of parental rights and the requirement that efforts to find a permanent home for children in custody be documented. The child she represents was born with cocaine in her system and the mother had also been using alcohol throughout her pregnancy, so it is likely the child will suffer from fetal alcohol effect. She was abandoned in the hospital and her mother has made no effort to see her since. This is a woman who has more than a 13-year history with the state; she had four other children - one supposedly died of Sudden Infant Death Syndrome, two were taken into custody and subsequently adopted and the other, who is now a teenager, is so severely emotionally disturbed that finding a placement for her is next to impossible. This mother has a history of chronic mental health illnesses, substance abuse and has been arrested for child abuse. Termination of parental rights should never be done without very serious consideration; however, there are times when it is crystal clear that termination is (indisc.- coughing); this is such a case. Why then has it taken over a year and a half to file the paperwork - she believed the system was simply overwhelmed and the law does not give clear guidelines. It was obvious from the outset that this mother was an unfit parent and since the child is a Native Alaskan, it was clear that Indian Child Welfare Act (ICWA) procedures will need to be followed in finding a placement for her, which meant the father needed to be located. If he was not found to be a suitable parent, then other relatives would be pursued, followed by tribal members, et cetera, until a permanent placement could be found. Initially, she was surprised that she was the only one involved in the case making any effort to find the father and other relatives; now she's simply appalled that after a year and a half she's still the only person trying to find a permanent placement. In her opinion, the proposed changes to the law will create accountability which is sadly lacking now. CHAIRMAN BUNDE thanked Ms. Haim for her comments and asked Deborah Honea to present her testimony. Number 1740 DEBORAH HONEA testified from Fairbanks via teleconference. She and her husband are foster parents specializing in children from birth up to the age of three that have been drug and alcohol exposed or affected before birth. She agreed with the comments of the previous testifiers who supported this legislation, but in her opinion it doesn't go far enough. CHAIRMAN BUNDE thanked Ms. Honea for her testimony and asked David Leone to present his comments. Number 1767 DAVID LEONE, Executive Director, Resource Center for Parents and Children, testified from Fairbanks via teleconference in support of HB 375. He thanked everyone for their effort in putting the needed changes in legislation that protects our most precious resource in the state. He agreed with the previous speaker that children need to be our priority because they are the future. He referred to page 8, line 6, and suggested the language read, " .... knowing that a person at least 12 years old is not present, and knowing the other person ...." He expressed concerned with the verbiage in Section 11.51.100 in that he, as a parent or family member in crisis, needs to go to the sex offender registry to ensure that he's not leaving his child in an agency or with a group where there is a registered offender. Also, with respect to Section 20, he suggested verbiage be added to mandate that agencies partially or fully funded by the state do a better job of checking the background of hirees to prevent the hiring of an individual who is a registered sex offender. He referred to page 24, line 18, and suggested that "immunization" be added after medical attention. He concluded this is a very strong bill and something that's needed to protect the children. He stressed the need for consistent, continual support for prevention so these issues won't have to be revisited in the future. CHAIRMAN BUNDE thanked Mr. Leone for his comments and asked Patricia George to present her testimony at this time. Number 1922 PATRICIA GEORGE testified that she has been a school teacher for 22 years; 20 of which have been in Juneau and she wanted to share with the committee the reality of the classroom. She hears stories from children of auto accidents because the parents were drunk but the children are blamed because they screamed in fear; stories of moving to the AWARE Shelter the previous night and that mom is going to pick up the child up after school, but no one comes, and then the boyfriend calls and says send the child home. Since the boyfriend is not listed on the attendance records, the child cannot be released. Calls to the DFYS are unsuccessful; calls are made to the police; calls to the AWARE Shelter are unsuccessful because of confidentiality; three and a half hours after school is over, the mother shows up and is taking the child back to the house. She said there has definitely been an increase in these incidents during the last five years. One year she had 24 students; 4 of the 10 little girls had been molested and 6 of the kids had parents in jail at various times during the year. During the last two years, she's been advised by the DFYS staff that an investigation will not even be done unless the child is in imminent danger, or if the child is not in imminent danger, the dangerousness of the situation is evaluated on a scale and may be investigate within 72 hours or a week. She expressed the importance of proper funding for this legislation. Number 2042 CHAIRMAN BUNDE remarked the agency may need more money and that's what the committee is trying to determine, but there also needs to be a better management tool so these children don't get lost in the system. Number 2085 BARBARA MALCHICK, Child Advocate, Office of Public Advocacy, (OPA) testified via teleconference from Anchorage. She has represented hundreds of children during her 13 years with the Office of Public Advocacy. She reminded committee members it was the OPA that originally brought to the public's eye that the state's child protection system had not been doing a very good job of protecting Alaska's children. The OPA believes the government system, as well as the abusive and neglectful parents, need to be held accountable. She expressed support for HB 375 because it strikes a better balance between parents' rights to raise their children as they see fit and children's rights to live in safe and permanent homes. Although everyone gives lip service to the best interest of the child, the proposed law actually spells out in black and white that it's the child's best interests that are of primary concern. She said one of the most important aspects of the legislation is that it establishes time lines that are based more on the child's sense of time rather than the adult's sense of time. To a young child, six months to a year is virtually a lifetime to them. The time lines give a clear (indisc.) to all the participants in the child protection system; i.e., the DFYS, parents and the courts, that quicker action must be taken to ensure the child is either returned home or placed permanently with a relative or another adoptive home. This legislation tells the DFYS that timely services must be provided to families to either keep the family together or to promote unification and if those services fail, timely efforts must be made to find a permanent home for the child and document those efforts. MS. MALCHICK continued that to parents, this legislation, while preserving all their legal safeguards, gives them one year to get into treatment and make the changes necessary to allow them to take care of their child. No longer can they wait for years or until the eve of the termination trial to start treatment. To the courts this legislation says that hearings must be conducted in a timely manner, decisions made in a timely manner and appellate decisions must be made timely. But most importantly, to children this legislation says no longer will the system make you wait years and years in foster care, while your parents get chance after chance to make changes. In conclusion, she read a poem that had been written by a child who had been in foster care. CHAIRMAN BUNDE thanked Ms. Malchick for her testimony and asked Marion Hallum to present her remarks. Number 2210 MARION HALLUM, Guardian Ad litem, Office of Public Advocacy, Department of Administration, testified via teleconference from Anchorage. She has worked with children and families for the past 15 years; the last five advocating in court for abusive and neglected children. She said research clearly indicates that exposure to domestic violence is harmful to children and that children in violent homes are much more likely to be victims of child physical abuse themselves. These children are more likely to end up in the delinquency system or involved in abusive relationships as adults. Last December she was one of 96 Alaskans who attended the Governor's Summit on Domestic Violent. Overwhelmingly, delegates ranging from law enforcement to domestic violence shelter staff were contending that exposure to domestic violence should be considered child abuse. She urged committee members to pass HB 375. CHAIRMAN BUNDE thanked Ms. Hallum for testifying and asked Janice Barta to testify. Number 2303 JANICE BARTA, Guardian Ad litem, Office of Public Advocacy, Department of Administration, testified via teleconference from Anchorage. She has 14 years experience working with the child protection system in Alaska and is currently on maternity leave. It is her opinion the proposed law will protect the children. She had spent the previous day helping her replacement worker coping with a family which has been in the child protection system off and on since the late 1980s. The mother's substance abuse problem has resulted in the removal of her children ten times or more over the years, usually late at night by the police. In each case the children have been returned and a new case plan begins. Three times the DFYS has tried to terminate this parent's parental rights and in each instance, the parent has been given another chance; most recently, she entered treatment at the last minute. This week she learned the children's mother is .... TAPE 98-24, SIDE B Number 0001 MS. BARTA ... program. These four children, ages 7 - 11 have few options for permanency at this late stage. She believes the proposed changes to the law may have prevented this tragedy and can provide a brighter future for other children once it is passed. In conclusion, she said children grow up too fast to give these issues more time and study. She's seen the current law fail children for 14 years and the time to act is now. CHAIRMAN BUNDE thanked Ms. Barta for testifying and asked Dave Bartels to present his testimony. Number 0034 DAVE BARTELS testified via teleconference from Anchorage on issues not pertaining to HB 375. Number 0073 CHAIRMAN BUNDE closed public testimony on HB 375. He announced the committee would again consider HB 375 on Wednesday, March 20. ADJOURNMENT Number 0103 CHAIRMAN BUNDE adjourned the House Health, Education and Social Services Committee meeting at 5:30 p.m.