03/06/2003 03:04 PM House HES
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ALASKA STATE LEGISLATURE
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES
STANDING COMMITTEE
March 6, 2003
3:04 p.m.
MEMBERS PRESENT
Representative Peggy Wilson, Chair
Representative Carl Gatto, Vice Chair
Representative Kelly Wolf
Representative Paul Seaton
Representative Cheryll Heinze
Representative Sharon Cissna
Representative Mary Kapsner
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 25
"An Act relating to health care decisions, including do not
resuscitate orders and the donation of body parts, and to powers
of attorney relating to health care, including the donation of
body parts; and providing for an effective date."
- MOVED CSHB 25(HES) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 25
SHORT TITLE:HEALTH CARE SERVICES DIRECTIVES
SPONSOR(S): REPRESENTATIVE(s) WEYHRAUCH, Ogg
Jrn-Date Jrn-Page Action
01/21/03 0038 (H) PREFILE RELEASED (1/10/03)
01/21/03 0038 (H) READ THE FIRST TIME -
REFERRALS
01/21/03 0038 (H) HES, JUD, FIN
02/13/03 (H) HES AT 3:00 PM CAPITOL 106
02/13/03 (H) Heard & Held
02/13/03 (H) MINUTE(HES)
02/27/03 (H) HES AT 3:00 PM CAPITOL 106
02/27/03 (H) Heard & Held
02/27/03 (H) MINUTE(HES)
03/06/03 (H) HES AT 3:00 PM CAPITOL 106
WITNESS REGISTER
LINDA SYLVESTER, Staff
to Representative Bruce Weyhrauch
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented amendments to CSHB 25, Version H,
and answered questions from the committee.
EDIE ZUKAUSKAS, Attorney
Disability Law Center of Alaska, Inc.
Anchorage, Alaska
POSITION STATEMENT: Testified on CSHB 25(HES) and answered
questions from the members.
MARIA WALLINGTON, M.D., Ethicist
Providence Health System
Anchorage, Alaska
POSITION STATEMENT: Testified in support of CSHB 25, Version H,
asked and answered questions from the committee.
SHELLY OWENS, Health Program Manager
Division of Community Health and Emergency Medical Services
Department of Health and Social Services
Juneau, Alaska
POSITION STATEMENT: Testified in support of CSHB 25, Version H,
and answered questions from the members.
BOB TAYLOR, Acting Director
Commission on Aging
Department of Administration
Juneau, Alaska
POSITION STATEMENT: Testified in support of CSHB 25, Version H,
and answered questions from the members.
ACTION NARRATIVE
TAPE 03-22, SIDE A
Number 0001
CHAIR PEGGY WILSON called the House Health, Education and Social
Services Standing Committee meeting to order at 3:04 p.m.
Representatives Wilson, Gatto, Wolf, and Heinze were present at
the call to order. Representatives Seaton, Cissna, and Kapsner
arrived as the meeting was in progress.
HB 25-HEALTH CARE SERVICES DIRECTIVES
Number 0080
CHAIR WILSON announced that the first order of business would be
HOUSE BILL NO. 25, "An Act relating to health care decisions,
including do not resuscitate orders and the donation of body
parts, and to powers of attorney relating to health care,
including the donation of body parts; and providing for an
effective date."
CHAIR WILSON told the committee the sponsor has provided a new
version of CSHB 25(HES) [23-LS0137\H, Bannister, 3/6/03] which
will come before the committee today. [No motion was made, but
Version H was treated as the working document.]
Number 0153
LINDA SYLVESTER, Staff to Representative Bruce Weyhrauch, Alaska
State Legislature, explained that the changes in the bill
include incorporation of all the mental health changes discussed
in a previous meeting and the inclusion of the anatomical gift
donations language. She told the committee they worked closely
with Life Alaska, which is the clearinghouse for organ donations
for Alaska. Ms. Sylvester said Jens Saakvitne is online to
answer any questions the committee might have. She also pointed
out the many individuals who are online or in the audience that
are available to answer questions from the members.
Number 0369
REPRESENTATIVE GATTO asked the status on the surrogates issue.
Number 0403
MS. SYLVESTER told the committee that Edie Zukauskas, an
attorney for the Disability Law Center of Alaska, Inc. will
address Representative Gatto's question. Ms. Sylvester went on
to say that she got together with Edie Zukauskas and Dr.
Wallington to discuss exempting surrogates from any mental
health care decisions. If a person has mental health issues,
that person can make a directive for his/her general health care
issues, but is precluded from assigning a surrogate.
Number 0487
REPRESENTATIVE GATTO asked what the legal definition of a
surrogate is with respect to this bill.
EDIE ZUKAUSKAS, Attorney, Disability Law Center of Alaska,
Inc.("Disability Law Center"), replied there is probably more
than one definition, depending on the context in which it is
used. The Disability Law Center's concern with surrogates in
this bill is that the mental health community has never before
been involved with surrogates because their goals and values
differ from family and friends. What the Disability Law Center
would like to accomplish with this bill is to assure that the
mental health community could partake in the benefits of the
bill, but assure that a surrogate not be appointed in the event
it is a mental health issue. Ms. Zukauskas said she does not
believe it is a major issue; however, it is imperative to hear
from the consumers. She told the committee that Richard Rainery
[Executive Director, Alaska Mental Health Board, Department of
Health and Social Services] is familiar with this issue and
believes it can be dealt with in the House Judiciary Standing
Committee.
Number 0603
CHAIR WILSON said she agrees with Edie Zukauskas that the House
Judiciary Standing Committee would be the appropriate venue to
deal with this issue. Chair Wilson told the committee Bob
Briggs of the Disability Law Center was unable to meet with the
committee today. The center is still working on a definition of
mental health treatment, and believes that issue can also be
dealt with in the House Judiciary Standing Committee.
MS. ZUKAUSKAS responded to Representative Gatto's request for a
general definition of surrogate by saying a surrogate is someone
who acts in the place of another when that person is unable to
speak for himself or herself.
Number 0668
MS. SYLVESTER pointed out the definition of a surrogate in the
bill on page 30, line 9, which says "'surrogate' means an
individual, other than a patient's agent or guardian, authorized
under this chapter to make a health care decision for the
patient." She told the committee the bill lays out the
hierarchy of individuals in the order of who might be a
surrogate.
Number 0750
REPRESENTATIVE HEINZE asked if the issue previously discussed by
Dr. Wallington [at an earlier hearing] concerning situational
depression was clarified in the new bill.
Number 0835
MARIA WALLINGTON, M.D., Ethicist, Providence Health System,
responded that the issue has been resolved since the exclusion
of surrogates is limited to only those issues surrounding mental
illness. She said her concern was that someone who had other
medical issues needing to be decided would be left with no one
to decide for him/her if surrogates were eliminated.
REPRESENTATIVE HEINZE asked Dr. Wallington about her concern
expressed in a previous meeting where a physician might be
unaware of a patient's having situational depression in his/her
medical background.
DR. WALLINGTON responded that her concern was based on the exact
opposite situation. She was concerned about someone who had
been treated for situational depression who now needed treatment
for a medical problem unrelated to that depression; however, the
individual could not speak for himself or herself.
Number 0842
CHAIR WILSON asked Dr. Wallington if the new version of the bill
addresses her concerns.
DR. WALLINGTON responded that she is happy with the bill.
Number 0859
REPRESENTATIVE SEATON asked if the section on "do not
resuscitate" (DNR) orders addressed the concerns of the nurses
association.
MS. SYLVESTER explained that the DNR section authorizes the DNR
protocol. She said a hospital may have its own policies that
may be driven by concerns other than the statutes, such as
liability. So the hospital may have policies that are more
restrictive than what the statute would allow. For example, the
state does not force physicians to treat someone in a particular
way; there is a mechanism to opt out. An analogy would be that
an individual would not expect a hospital run by the Catholic
Church to provide abortions on demand; even though state law
allows abortion, the hospital is not forced to provide that
procedure.
Number 0990
REPRESENTATIVE GATTO asked if a surrogate has any authority to
overrule a policy in a situation where an individual has an
order for DNR, but a hospital has a policy of resuscitating.
Number 1020
SHELLY OWENS, Health Program Manager, Division of Community
Health and Emergency Medical Services, Department of Health and
Social Services, spoke of the importance of having the ability
to give oral DNR orders for communities that do not have a
resident physician or for emergency medical technicians (EMTs)
to be able to receive a verbal DNR from the primary physician.
She told the committee this is currently in existing law and
does not change in this bill. Ms. Owens said the division's
primary goal is to assure that the Comfort One Program remains
intact if this bill passes. She said she understands the
nurses' concern that there could be a conflict in a situation
where a physician is in the community and could come into the
hospital to write a DNR order, but to change that and remove the
ability to issue an oral DNR order would be problematic for bush
communities and EMTs. Ms. Owens said hospitals are able to
exercise more restrictive policies, but she is unaware of
problems resulting from that, since this is currently existing
law.
REPRESENTATIVE GATTO spoke about the conflict between the
surrogate with a DNR order and the hospital's policy that
prevents honoring it. He asked what happens in that situation.
MS. OWENS responded that the bill provides that when there is a
conflict and the health care provider does not want to honor a
particular health care directive, that will be communicated.
The patient will be transferred to another facility or health
care provider that will honor the directive.
REPRESENTATIVE GATTO clarified his question by saying he is
concerned about an emergency situation when there is a DNR order
but the hospital has a policy that DNR's are not honored. He
asked if there is something in statute that covers this
situation.
Number 1204
CHAIR WILSON commented that that kind of emergency is the reason
this bill is important, so that when an emergency happens those
questions are asked.
REPRESENTATIVE GATTO said he would like to know what happens in
a case where the hospital has a policy and the surrogate has a
DNR order. He asked where that is addressed in the bill.
MS. OWENS referred to page 7 of the bill, which provides that a
health care provider may decline to comply with an individual's
instruction for reasons of conscience, except for a DNR order.
She said that the Comfort One Program is for the pre-hospital
environment where a patient is at home, and an EMT or volunteer
[out in the Bush] is called.
CHAIR WILSON said she has served as an EMT in a small community
and her experience has been that the EMTs stay on top of who is
ill or terminally ill. Everyone knows which individuals have
DNR orders.
Number 1344
REPRESENTATIVE SEATON said he wants to clarify some confusion
about the nurses association's concern about conflict in a
situation where the hospital has a policy not to accept oral DNR
orders, but the statute would require her to accept an oral DNR
order. Representative Seaton said on page 8, subsection (d)
still seems to be a problem. He told the committee that may not
be a problem unless there are hospitals in Alaska that do not
honor either oral or written DNR orders.
Number 1404
CHAIR WILSON shared her experience as a nurse where doctors are
reminded that they must write a DNR order to comply with the
hospital's policy. Chair Wilson said the nurses association's
concern was in an instance when a nurse talks to a doctor on the
phone and is given an oral DNR order in violation of hospital
policy, in which case the nurse will have to insist the doctor
come to the hospital and write the DNR order if that is the
hospital policy.
REPRESENTATIVE SEATON pointed out that the nurse would be in
violation of either the statute or hospital policy as the bill
is now written.
DR. WALLINGTON said she believes the bill says that the health
care provider must comply when there is a DNR order. She said
if that order comes through Comfort One, or through an oral or
written order, the health care provider must comply. She said
she does not think the bill is addressing how that order is
actuated.
REPRESENTATIVE SEATON said that is exactly the point. This
language would require nurses to comply with an oral DNR order
even in a case where it is against hospital policy. He said
this bill would require the institution to accept oral orders
and there is no exception to that.
DR. WALLINGTON replied that she believes what the bill says is
that an oral order may be acceptable and not that an oral order
must be accepted.
Number 1561
DR. WALLINGTON told the committee that hospitals honor Comfort
One orders when the patient is in the hospital.
Number 1624
BOB TAYLOR, Acting Director, Commission on Aging, Department of
Administration, testified to the importance of this bill to the
commission. He thanked the committee for working to make these
issues clearer and easier for the elderly and their families in
making these important decisions. He told the committee about a
public policy report he was reading recently from the National
Academy on Aging Society and the Gerontology Society of America
that talks about how important it is to take these fragmented
statutes and contain them in one place. He said that the
committee is on the cutting edge of this, as only 16 other
states have managed to pull everything together into a
comprehensive package that makes everything clear to the public
and health care providers. Mr. Taylor said the commission
applauds the committee's work and hopes the members will pass
this bill.
REPRESENTATIVE GATTO asked if there is a copy of a model from
some other states that have already made this law.
MR. TAYLOR said the National Academy forum will be looking at
what the states have done to see if one model would meet the
requirements of all the states. He said the academy is not
there yet.
MS. SYLVESTER said the model legislation the sponsor worked from
is the Five Wishes legislation that has been adopted in 37
states. This legislation came from the Uniform Health Care
Decisions Act model legislation approved by the American Bar
Association and inspired by the Florida organization, Aging with
Dignity [which was directed by Mother Teresa's attorney]. She
said the other model legislation that is in the bill is the
mental health care directives, which developed as a result of a
grassroots effort in 1996. The law on the [Uniform] Anatomical
Gift Act and the living will statute goes back to the 1970s.
Number 1839
REPRESENTATIVE CISSNA said that while Five Wishes may have been
a model, this bill is pulling all of these dissimilar things
together and putting them in a model for Alaska. She said other
states are doing the same thing.
MS. SYLVESTER responded that she recalls that Hawaii has done
this and there may be other states who have also done a very
comprehensive approach to advance directives.
Number 1917
REPRESENTATIVE SEATON spoke on a possible conceptual amendment,
on page 8, line 22, after the word "physician" to insert the
words "if oral orders are allowed by the applicable
institution". He said the purpose for this amendment would be
to provide for the non-physician health care provider in a
position of having to either violate hospital procedures or the
state statute. If oral orders are allowed by the institution,
then the health care provider would be required to follow the
order.
DR. WALLINGTON said she has no problem with the amendment.
MS. OWENS had a question about the definition of the word
"institution". She said she does not see this impacting a DNR
order in the field.
REPRESENTATIVE SEATON said he has no problem substituting the
word "hospital" for "institution" in his conceptual amendment.
MS. SYLVESTER referred to the definition of a hospital on page
28, line 29. If the word "hospital" replaced the word
"institution", she said the sponsor would not oppose the
amendment.
Number 2069
REPRESENTATIVE SEATON moved to adopt Conceptual Amendment 1. He
said on page 8, line 22, after the word "physician", insert the
words "if oral orders are allowed by the applicable hospital".
There being no objection to the amendment, the Amendment 1 was
adopted.
REPRESENTATIVE HEINZE asked what would happen if, for example,
she traveled to Texas or another state that has not adopted this
bill. Would this advance directive be honored?
DR. WALLINGTON responded that she believes hospitals would be
delighted that patients have advance directives and would be
happy to follow them. However, she told the committee she is
not a lawyer, so she is unable to speak to the legal issues.
Her thoughts are that since this bill says Alaska will accept
directives from other states, it would depend on whether there
is similar language in the other state's statutes.
Number 2155
REPRESENTATIVE GATTO moved to report CSHB 25 [Version 23-
LS0137\H, Bannister, 3/6/03], as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, CSHB 25(HES) was reported from the
House Health, Education and Social Services Standing Committee.
Number 2190
ADJOURNMENT
There being no further business before the committee, the House
Health, Education and Social Services Standing Committee meeting
was adjourned at 3:45 p.m.
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