Legislature(2015 - 2016)CAPITOL 106
03/22/2016 03:00 PM HEALTH & SOCIAL SERVICES
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ALASKA STATE LEGISLATURE HOUSE HEALTH AND SOCIAL SERVICES STANDING COMMITTEE March 22, 2016 3:12 p.m. MEMBERS PRESENT Representative Paul Seaton, Chair Representative Liz Vazquez, Vice Chair Representative Neal Foster Representative Louise Stutes Representative Geran Tarr Representative Adam Wool MEMBERS ABSENT Representative David Talerico COMMITTEE CALENDAR HOUSE BILL NO. 315 "An Act relating to an electronic visit verification system for providers of certain medical assistance services." - HEARD & HELD HOUSE BILL NO. 334 "An Act relating to visitation and child custody." - HEARD & HELD HOUSE BILL NO. 328 "An Act prohibiting smoking in certain places; relating to education on the smoking prohibition; and providing for an effective date." - HEARD & HELD PREVIOUS COMMITTEE ACTION BILL: HB 315 SHORT TITLE: ELECTRONIC VISIT VERIFICATION: MEDICAID SPONSOR(s): REPRESENTATIVE(s) VAZQUEZ 02/17/16 (H) READ THE FIRST TIME - REFERRALS 02/17/16 (H) HSS 03/22/16 (H) HSS AT 3:00 PM CAPITOL 106 BILL: HB 334 SHORT TITLE: CHILD CUSTODY;DOM. VIOLENCE;CHILD ABUSE SPONSOR(s): REPRESENTATIVE(s) MUNOZ 02/22/16 (H) READ THE FIRST TIME - REFERRALS 02/22/16 (H) HSS, JUD 03/22/16 (H) HSS AT 3:00 PM CAPITOL 106 BILL: HB 328 SHORT TITLE: REGULATION OF SMOKING SPONSOR(s): REPRESENTATIVE(s) TALERICO 02/22/16 (H) READ THE FIRST TIME - REFERRALS 02/22/16 (H) HSS, JUD, FIN 03/22/16 (H) HSS AT 3:00 PM CAPITOL 106 WITNESS REGISTER ANITA HALTERMAN, Staff Representative Liz Vazquez Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Presented HB 315 for the bill sponsor, Representative Vazquez. ALLISON LEE, State Director; Chair Rescare Alaska Alaska PCA Providers Association Anchorage, Alaska POSITION STATEMENT: Testified during discussion of HB 315. DENISE TOCCO Sandata Technologies Port Washington, New York POSITION STATEMENT: Testified in support of HB 315. GREY MITCHELL, Director Division of Labor Standards & Safety Department of Labor & Workforce Development Juneau, Alaska POSITION STATEMENT: Answered questions during discussion of HB 315. CONNIE SIPE, Executive Director; Co-Chair Center for Community Alaska PCA Providers Association Anchorage, Alaska POSITION STATEMENT: Testified during discussion of HB 315. REPRESENTATIVE CATHY MUNOZ Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Presented HB 334 as the sponsor of the bill. AL LEVY, Chair Board of Psychologist and Psychological Associate Examiners Anchorage, Alaska POSITION STATEMENT: Testified during discussion of HB 334. DEBBIE HOLBROOK, Attorney Juneau, Alaska POSITION STATEMENT: Testified during discussion of HB 334. ANDY HARRINGTON Fairbanks, Alaska POSITION STATEMENT: Testified during discussion of HB 334. JOHN HOAG, Attorney Petersburg, Alaska POSITION STATEMENT: Testified in opposition to HB 334. KATHRYN SODEN, Senior Staff Attorney Legal Program Alaska Network of Domestic Violence and Sexual Assault (ANDVSA) Anchorage, Alaska POSITION STATEMENT: Testified in opposition to HB 334. SARALYN TABACHNICK, Executive Director AWARE Juneau, Alaska POSITION STATEMENT: Testified in opposition to HB 334. KIRSTEN SWANSON, Attorney Juneau, Alaska POSITION STATEMENT: Testified during discussion of HB 334. FRED VALDEZ, Attorney Anchorage, Alaska POSITION STATEMENT: Testified in opposition to HB 334. JOSEPH COULTER-KHAN Anchorage, Alaska POSITION STATEMENT: Testified in opposition to HB 334. CATHY COULTER-KHAN Anchorage, Alaska POSITION STATEMENT: Testified in opposition to HB 334. JOSHUA BANKS, Staff Representative Dave Talerico Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Presented HB 328 on behalf of the bill sponsor, Representative Talerico. MICHAEL PATTERSON Juneau, Alaska POSITION STATEMENT: Testified in support of HB 328. DALE FOX, President/CEO Alaska CHARR Juneau, Alaska POSITION STATEMENT: Testified in opposition to HB 328. KAREN PERDUE American Cancer Society Fairbanks, Alaska POSITION STATEMENT: Testified in support of HB 328. EDY RODEWALD Juneau, Alaska POSITION STATEMENT: Testified in support of HB 328. EMILY NENON, Alaska Government Relations Director American Cancer Society Anchorage, Alaska POSITION STATEMENT: Testified during discussion of HB 328. GARY FERGUSON, M.D. Senior Director of Community Health Services Alaska Native Tribal Health Consortium Anchorage, Alaska POSITION STATEMENT: Testified in support of HB 328. ALEX MCDONALD, Owner Ice Fog Vapor Fairbanks, Alaska POSITION STATEMENT: Testified in opposition to HB 328. SHARON WOLKOFF Kodiak Area Native Association Kodiak, Alaska POSITION STATEMENT: Testified in support of HB 328. ACTION NARRATIVE 3:12:55 PM CHAIR PAUL SEATON called the House Health and Social Services Standing Committee meeting to order at 3:12 p.m. Representatives Seaton, Stutes, Vazquez, Foster, and Wool were present at the call to order. Representative Tarr arrived as the meeting was in progress. [Chair Seaton passed the gavel to Vice Chair Vazquez.] HB 315-ELECTRONIC VISIT VERIFICATION: MEDICAID 3:14:18 PM VICE CHAIR LIZ VAZQUEZ announced that the first order of business would be HOUSE BILL NO. 315, "An Act relating to an electronic visit verification system for providers of certain medical assistance services." 3:14:37 PM ANITA HALTERMAN, Staff, Representative Liz Vazquez, Alaska State Legislature, paraphrased from the Sponsor Statement [included in members' packets], which read, in part: This bill requires the implementation and use of EVV systems for PCA services in Alaska. The EVV systems monitor and verify home health services delivered by PCAs by tracking whether home visits occurred and the time spent in the home. The EVV system will verify in real time the physical location of the provider (PCA) and the recipient after they both "sign in" and "sign out" of the EVV system. The "sign in" and "sign out" is usually done by land-line or cell phone and the location is verified by the EVV program. Thus, the EVV system reduces waste, abuse and fraud by capturing and reporting actual time worked by the PCA or home care provider. The goal of HB 315 is to ensure the State only pays providers for approved services rendered by appropriate home health agency personnel while within the recipients' home or other authorized setting. This ensures that Medicaid recipients receive services as authorized. It is anticipated that billing errors, fraud, and abuse will be reduced significantly through verification of home visits through these efforts. As Alaska's population is aging, the demand for PCA and home care services will increase. Accordingly, it is will become increasingly more important to ensure that home care is delivered properly and that publicly funded resources are being managed and spent appropriately. It is anticipated that Alaska has the potential to realize savings of between $15 million and $37 million dollar. MS. HALTERMAN relayed that some of the major benefits of the proposed HB 315 included that the technology could potentially provide early identification for adult protective service issues by identifying neglect situations and triggering alerts to the agencies when a care giver did not show up at the home, which would also realize savings for reducing payment of services not rendered. She directed attention to supportive documents which addressed the return on investment [included in members' packets]. 3:17:02 MS. HALTERMAN paraphrased from some proposed changes [included in members' packets] from the original bill to a not yet introduced committee substitute (CS) for HB 315, labeled 29- LS1287\W, Glover, 2/18/16 [included in members' packets], which read: Upon reviewing the bill as it had been written, I'd realized that home and community based and personal care attendant services are NOT always provided in the home but that sometimes they are provided in other settings. The language change on version W addresses the need for more flexibility with language to accommodate the various settings where services may be provided. The addition of language to allow for "other approved settings" addressed that issue. 3:17:50 MS. HALTERMAN moved on to paraphrase proposed changes [included in members' packets] from the not yet introduced Version W to a not yet introduced committee substitute (CS) for HB 315, labeled 29-LS1287\E, Glover, 3/21/16 [included in members' packets], which read: Version E keeps the change made in version W and adds a few others as follows: 1. Prior to requesting a hearing over this bill, SDS inquired of our office about the development of the new system they appear to have thought they were to develop in light of language used in versions A and W of this bill. The changes to version H make it clear that the Department shall procure an electronic visit verification system and not develop one of their own. The development of a system would be costly and the Department alerted me on March 16, 2016 that this bill would likely have a $5 million dollar fiscal note, this lead us to understand that they had not understood the intent of this bill. In addition, the changes in version H also add a stipulation that the system must allow providers to electronically document the service in near real-time where it is technically feasible. This will allow us to address allowing more flexibility in remote areas with no telephone, cell phone or computer access. It has been discovered that vendors appear to offer another solution for those settings that actually is entered after the visit occurs. These vendors offer a unique number to assure that the above information is collected and stored when technology solutions are not feasible. The bill ensures that any vendor must be capable of meeting these requirements. 2. The PCA providers have raised issues with a third party employment relationship concern that has been addressed by the Federal Department of Labor and our office felt the need to place assurances in the bill that address this issue. We do not intend to replace the role of the PCA provider or Home and Community based provider agencies in the role of employer. In order to address that concern, we changed the language of the bill in order to ensure the providers still have the ability to be alerted to concerns that need to be managed by the agency. Therefore it seems advisable to add language that requires the vendor to alert the provider agency of any gaps or missed appointments in order for them to remediate the issue. The state also should have the option to receive these alerts and the new CS addresses that issue. 3. The final change addresses integration concerns that agencies raised. Some claim to have proprietary systems that they feel will no longer be usable with a vendor based EVV system. The final version E adds a new section that addresses this by requiring the vendor to integrate any existing EVV systems into the vendor solution. 4. We had leg legal define "real time" as "within a couple of minutes of the occurrence". This was done in order to identify any gaps in service or to allow adult protective service issues to be identified as early as possible for the most vulnerable beneficiaries. 3:21:34 PM MS. HALTERMAN summarized that the bill "is easy to use, it doesn't require hardware or software, and it does assure that the services that are paid for by state government are actually being rendered within those homes." 3:21:50 PM VICE CHAIR VAZQUEZ opened public testimony. 3:22:15 PM ALLISON LEE, State Director; Chair, Rescare Alaska, Alaska PCA Providers Association, stated support for electronic visit verification (EVV) systems for PCA (personal care attendant) services, and pointed to some issues with the not yet proposed committee substitute. She directed attention to a white paper stating general support for the proposed bill [included in members' packets], and she noted that the Department of Health and Social Services had the authority to establish requirements for EVV without any legislation. 3:23:55 PM DENISE TOCCO, Sandata Technologies, stated support for proposed HB 315, and reported that Sandata Technologies was a vendor currently which offered EVV systems in seven states, and had been providing this EVV technology to payers and providers for the past 36 years. She stated that the EVV systems had proven to remove fraud and improve quality by ensuring that only visits that were properly verified were allowed to be submitted as claims. She declared that the third party outcomes showed that EVV programs could reduce claims costs by as much as 50 percent without changing the benefit structure or care delivery model, as the savings were a result of the removal of fraud. She estimated that EVV systems could provide a "minimum claims reduction of 5 percent," which represented an estimated $50 million savings in the first year prior to any Federal Medical Assistance Percentages (FMAP). She relayed that Centers for Medicare & Medicaid Services (CMS) had recently approved enhanced FMAP rates at 90 percent for one time fees and 75 percent for recurring fees for two states with EVV programs. She declared that proposed HB 315 was an important first step toward improving efficiency and insuring care, after which the Department of Health and Social Services could evaluate and procure an EVV solution that works best for Alaska. She suggested that Sandata Technologies recommended a single vendor solution in order to maximize program savings, and increase quality of care with consistent monitoring and alerts. She also recommended that an EVV solution be required to integrate with existing provider software systems, to help maintain the investments made by local providers. She shared that the majority of home care providers in most states had not made an investment in technology and would welcome solutions to help automate their businesses. She reported that EVV solutions were sold as a software service, and that there was not any software or hardware to buy. She relayed that it would take four to six months to implement a statewide program. She reiterated support for the proposed HB 315. 3:26:32 PM MS. TOCCO, in response to Representative Tarr, said that she was affiliated with Sandata Technologies, a vendor providing EVV software to state programs. REPRESENTATIVE TARR asked if Sandata anticipated an interest in providing the services, should the proposed bill pass. MS. TOCCO replied that Sandata would like to bid on any public procurement as a result of the proposed bill. 3:28:52 PM GREY MITCHELL, Director, Division of Labor Standards & Safety, Department of Labor & Workforce Development, in response to Representative Tarr, explained that he did not have any specific information about the services, as his involvement was for the potential impacts on labor laws and any EVV requirement issues that may impact the state. 3:29:42 PM MS. TOCCO, in response to Representative Tarr, offered an explanation as an industry vendor, and not specifically as a representative from her company. She explained that non-urban visits could be verified through a variety of ways, including telephonic verification of visits, cellular GPS solutions, home- based device solutions, and she acknowledged that the geography of Alaska offered some unique challenges. She shared that her company had operated in many large states with rural areas, where connectivity could be a challenge, and the company, and other vendors, had found multiple solutions for verification of visits. 3:30:44 PM REPRESENTATIVE WOOL asked about the changes in technology over the past 36 years that Sandata Technologies had been in business. MS. TOCCO replied that her company had used telephones, and had held the original patents on electronic visit verification (EVV) although that had since expired. 3:31:16 PM CONNIE SIPE, Executive Director; Co-Chair, Center for Community, Alaska PCA Providers Association, reported that Alaska PCA Providers Association represented the largest provider companies in Alaska. She stated support of the proposed bill, in concept, and directed attention to the aforementioned white paper [included in members' packets]. She expressed desire to work on the not yet introduced committee substitutes. She relayed that the Medicaid expenditures for PCAs in the last year had been about $89 million in Alaska, pointing out that the provider agencies were "economic engines in the communities where we provide many, many hours of jobs and work." She reported that the white paper had urged a standards based method, used by Washington and other states, which had set a standard for the kind of EVV systems to be used statewide, so that the providers could use an integrated software system. She noted that the State of Alaska was still requiring hard copy time sheets signed by the worker and the client. She offered belief that one uniform state system could be very inefficient as there were large providers from multiple states with different systems. She expressed concern with a real time window as it imposed an implied monitoring obligation that could be difficult to staff. She relayed information from a CMS seminar during which some states had been told they were "joint employers" of personal care attendants, as indicated by an EVV system with real time access by the state. She stated that, as there were not any clear federal regulations, this was currently based on interpretation by the U.S. Department of Justice. She pointed out that this could affect the state's liability for overtime pay to a personal care attendant. She pointed out that, although the aggregate cost of Medicaid spent on personal care attendants seemed large, this was so much less per client than the cost of nursing homes. She reported that the personal care attendants were the lowest paid per unit service in the Alaska Medicaid system. 3:37:24 PM REPRESENTATIVE TARR relayed that this issue had arisen in the past, as there had been a re-evaluation of the time allotted for personal care services (PCAs). She relayed that some services had been re-scheduled into 15 minute increments, which she opined had scaled back the amount of time allocated to patients. She asked if this was putting a lot of strain on the system to provide the services in the allotted time, and possibly taking away from provider time with the client. MS. SIPE reported that Medicaid costs for the PCAs had come down from over $100 million annually, partially as an effort by the Department of Health and Social Services to become more prescriptive about the amount of time and service. She noted that, in other states, many consumers did not have land line phones, and not all PCAs had a cell phone or availability of a land line. She expressed concern for this, sharing that sometimes workers were met by a crisis immediately upon arrival at a job, and were not able to sign-in right away. She reminded that the agencies were in a constant back and forth with workers and clients, so were much more aware of the goings-on, and that this provider information and data were kept available to the state upon request. 3:41:01 PM REPRESENTATIVE TARR asked how frequently the association was audited. MS. SIPE relayed that the state would draw 50 of the higher risk service providers each year, of which a number were PCA agencies and home and community based providers. She shared that her agency included 10 providers and had been audited three times, although never found to have any problems. She noted that, as they were subject to audit for seven years, they kept the records for that far back. 3:42:30 PM VICE CHAIR VAZQUEZ asked about the periods of time for the three audits. MS. SIPE offered her belief that the state audits were for service in 2006, then again for services in 2010 and in 2011. VICE CHAIR VAZQUEZ asked about the compensation received from the Department of Health and Social Services for every 15 minutes of service. MS. SIPE stated that the Medicaid base rate for personal care in Anchorage, although there were some regional adjustments because of cost, was $6.10 for each 15 minute unit. She reported that many PCAs in this area had Certified Nursing Assistant (CNA) certificates, and asked to be paid $15 - $16 per hour. She added that all the unpaid costs, support costs, and supervisory costs were also paid out of this, as they only billed for the actual services delivered. She pointed out that the agency paid the travel time, as it was not billed to Medicaid. MS. SIPE, in response to Vice Chair Vazquez, said that the regional cost in SE Alaska was 9 percent higher, adding about $2 per hour. She relayed that the PCAs started at $14.58 or $15.02, and, dependent on prior experience, could start higher, up to $16 per hour. She said that it was difficult to pay less than $16 per hour in Anchorage, although in smaller communities in SE Alaska PCAs were sometimes paid $14.50 - $15 per hour. VICE CHAIR VAZQUEZ asked if the agency offered health insurance. MS. SIPE replied that the agency would be obligated to start providing health insurance for people with variable hours, fluctuating around 30 hours per week, on July 1. She stated that it was likely they would not be able to provide this, and would then also have to drop the health insurance for 40 hour per week workers as the agency could not afford to pay the insurance premiums. She acknowledged that this would result in the payment of penalties. She reported that the monthly insurance premium for a worker with no dependents was $950 per month, with a fairly high deductible. She stated that it was not possible to pay these premiums for those only working 30 hours per week. She shared that the agency was looking at lower cost policies with higher deductibles that would still meet the Patient Protection and Affordable Care Act (PPACA) requirements. She said that part time workers received the required benefits of unemployment insurance, a small Christmas bonus, and an occasional paid holiday each year. She reported that the [profit] margin was very low as there was a lot of paid time for training, no-shows, supervisors, billing clerks, compliance staff, and "other things." [HB 315 was held over.] HB 334-CHILD CUSTODY;DOM. VIOLENCE;CHILD ABUSE 3:47:10 PM VICE CHAIR VAZQUEZ announced that the next order of business would be HOUSE BILL NO. 334, "An Act relating to visitation and child custody." 3:47:42 PM REPRESENTATIVE CATHY MUNOZ, Alaska State Legislature, explained that she had given a lot of thought to AS 25.24.150, and its judgements for custody. She relayed that she had met several individuals who had experienced significantly damaged relationships with their children due to the application of this law. She paraphrased from the Sponsor Statement, which read: HB 334 was introduced to give judges more discretion in determining the best interest of the child in custody cases. Currently, AS 25.24.150 includes a provision that if a parent has been accused of domestic violence that parent may not be awarded sole or joint physical or legal custody of the child. Although there is a rebuttable presumption in place to overcome this provision, it is a lengthy process involving the requirement to complete a one year batterer's intervention program. Domestic violence is broadly defined to include an ex-parte domestic violence order, a violation of an order, misdemeanor assault, or allegations of abuse. In 2004, HB 385 was signed into law which established the rebuttable presumption. The intent of this legislation was to ensure those with a criminal history of domestic violence were held accountable for their actions and that the children in question were protected. At times the provisions of AS 25.24.150 are used for custodial advantage. In these instances, the discretion of the court is limited and the best interest of the child is affected. The U.S. Department of Health and Human Services states, "Fatherless children are at a dramatically greater risk of drug and alcohol abuse." Additionally, they state "Fatherless children living in homes without contact with their biological father are twice as likely to drop out of school." HB 334 seeks to give flexibility to judges, while maintaining the presumption for those with criminal domestic violence convictions while ensuring that the well- being of children remains our primary priority. REP. MUNOZ read from the proposed bill, page 4, line 29: The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence... REP. MUNOZ expressed her concern with the "engaged in domestic violence" language. She declared that there was a rebuttable presumption in which the parents accused or convicted of domestic violence on one or more occasions could complete a one year batters' intervention program, although the parent could only see the child under supervised conditions on a very limited basis during this year. She reported that Alaska had some of the toughest domestic violence laws in the U.S. She stated that the changes proposed in the bill would not weaken the laws, and the domestic violence orders or the process for filing would not change. She shared that the proposed changes to the law would require a conviction of domestic violence for those provisions of AS 25.24.150 to apply in custodial decisions, and would result in more equity, due process, and the best interest of the child to be the first priority in determining custodial arrangements. She shared an anecdote for the problems with the statute. 3:54:43 PM [Vice Chair Vazquez returned the gavel to Chair Seaton] REPRESENTATIVE MUNOZ, in response to Representative Tarr, explained that the current law could be used for custodial advantage, as it was as ex-parte filing which did not require both parties to be present. She shared that any contact during this time could result in a violation of the ex-parte order, and be considered a domestic violence incident. 3:56:35 PM CHAIR SEATON opened public testimony. 3:56:47 PM AL LEVY, Chair, Board of Psychologist and Psychological Associate Examiners, stated that he was representing himself and the interests of his clients. He declared that he was opposed to HB 334. He shared that he was a therapist in private practice in Anchorage, he worked with children and families many of which were families going through divorce, and that he had been addressing domestic violence and its effects for almost 30 years. He emphasized that passage of proposed HB 334 would "roll back the clock 30 years in terms of protecting children and victim parents to a time when there was little recourse for victims and children." He declared that children and victim parents had the right to live free of abuse and the threat of violence, they deserved safety. He stated that the proposed bill would cost too much money at a time when the state could least afford it, as it would dramatically increase costs to the State of Alaska. He explained that raising the bar from a finding of domestic violence by the preponderance of evidence to the conviction of a crime of domestic violence, which was beyond a reasonable doubt, would lead to increased demands on the state attorney general, as well as municipal prosecutors to prosecute every case of domestic violence. He stated that there would also be increased demands on the state troopers, police departments, the public defender's office, the Office of Public Advocacy, the courts, and the Office of Children's Services. He emphasized that the rebuttable presumption worked, it required the judge to find the domestic violence, and the current law did a good job protecting vulnerable children and victim parents. He acknowledged that errors for finding domestic violence when none had occurred could happen, although these cases were the exception, and not the rule. He declared that due process rights were currently observed, as parents facing accusations of domestic violence were afforded the opportunity to face their accuser, hear and see the evidence, and offer evidence in return. He stressed that the proposed bill was not restoring any lost rights to accused parents, but was, instead, denying the right to safety for vulnerable children and victim parents. He declared that raising the standard to a criminal conviction beyond a reasonable doubt was unreasonable and unrealistic to the victims of domestic violence. He said that education and better training for judges, custody investigators, attorneys, and social workers was needed, as this would increase knowledge, accuracy, and understanding about domestic violence. He relayed that safety was the highest priority, not parents' rights. 4:04:12 PM REPRESENTATIVE TARR mused that the challenge was that "human relationships are so complex." She pointed to the potential to behave in damaging ways during custody battles and the dissolving of relationships. She asked if there was a way to address these circumstances for who was telling the truth. MR. LEVY offered his belief that the primary need was for better training in education, as every dollar invested would bring ten times the return in dividends for savings in cost, heartache, and damage to people. He suggested to not cut the budget for the Alaska Network on Domestic Violence and Sexual Assault and instead, to provide the resources necessary for education and training. He suggested required training on domestic violence to police officers, social workers, judges, and other key players. He relayed that 10 percent of divorce and custody cases take up 90 percent of the court time. He acknowledged that these cases typically involved serious questions of harm, substance abuse, and domestic violence, and required close scrutiny by trained experts who knew what to look for. He suggested that more resources be provided to state custody investigators, as currently there was an income cut-off which made it difficult for many people, with income above that amount, to afford a private custody investigator. He reminded the committee that every dollar spent on prevention would "reap huge benefits down the road." 4:08:15 PM DEBBIE HOLBROOK, Attorney, relayed that she had practiced domestic relations and family law, as well as civil law over the past 40 years. She shared that she had been a mediator for the court system, as well as a guardian ad litem, and that she was aware that all the sociological studies on the adjustment of children after divorce was to make sure that the children had frequent and open access to both parents. She reported that the changes in the custody statute since 2004 had included references to domestic violence which did not require a conviction, so consequently there were now attempts to litigate domestic violence crime in the midst of civil divorce cases without affording the accused any of the criminal safeguards and protections afforded someone if they were charged with a crime. She opined that this had led to serious problems, and she stated her support of the proposed bill. She offered her belief that "the pendulum has swung too far on this domestic violence issue at least with regards to private custody cases. I have seen that allegations alone have become a bludgeon to be used against fathers in custody cases." She stated that once the allegation was made there was no longer a presumption of innocence. She explained that the issuance of an ex parte restraining order was the start of the difficulties for fathers, as this could result in no contact or only supervised visits with the children. She offered her belief that young fathers were not in the financial position to afford an attorney and were often quite naïve and unaware about the custody statutes, the repercussions, and the breadth of the definition for domestic violence. She relayed that her experience indicated that many women were encouraged to use this as a "weapon." She said that many judges were worried about looking soft on domestic violence, and often cited that their hands were tied by the statute. She opined that most people were not aware of how very broad the definition for domestic violence had become, and could now include texting, yelling, and telephone conversations. She declared that she was not trying to minimize domestic violence, but that requirement of conviction allowed the accused some protections when accused of something this serious. She opined that the legislature needed to be aware when removing obstacles, and that children needed access to both parents. 4:16:02 PM ANDY HARRINGTON said that he had done a lot of pro bono work over the years. He offered six points supporting his understanding that the approach of the proposed bill was not a good idea. He offered his first point that the history of domestic violence proven by a preponderance of the evidence before a civil court was an appropriate basis to apply the presumption that was currently in the statute. He stated that the requirement for a conviction proved before another court by a reasonable doubt would run the risk of erasing some of the progress that had been made over the last several years on the overwhelming domestic violence problem. He noted that the Alaska Supreme Court had already given the statute an appropriately narrowed interpretation which prevented it from being abused and misused in many situations, and that this should be taken into account. He suggested that the proposed bill could expand application of the presumption, as the history of domestic violence meant two incidences, or one incident that caused serious physical injury. He offered his belief that this needed to be thought through quite carefully, as it could broaden the application. 4:17:46 PM [Chair Seaton passed the gavel to Vice Chair Vazquez] 4:18:06 PM MR. HARRINGTON stated that there many reasons why there were more incidents of domestic violence than there were convictions, including under reporting, lack of law enforcement, and courts that needed to decrease hours. He suggested that, should the legislature couple this change with a significant increase in law enforcement, prosecutors, public defenders, and courts, it might then make some sense. He stated his concern with the disparate impact on rural and urban areas, as there was "an unfortunate reality that criminal law enforcement cannot be as responsive to Alaska's rural areas as it is in urban areas. We can't afford to achieve that equality." He offered his belief that this was another reason why the requirement for a conviction before the presumption of guilt was applied was not a good idea. He asked that the legislators not make up their minds based on hearing one side of an anecdote that may or may not be representative of what was happening on a larger scale. VICE CHAIR VAZQUEZ asked for him to cite the Supreme Court decision regarding this statute. MR. HARRINGTON, in response, relayed that, in 270 P.3d 737 (2012), the court had held that completion of a batterer's intervention program was not the only way to rebut the presumption, and that the Superior Court was not prevented from completing a best interest analysis. REPRESENTATIVE WOOL asked about earlier testimony that the definition of domestic violence had expanded to include texting, phone calls, and yelling, and whether this broader definition had now included more people "under the umbrella of domestic violence." He asked if this could preclude someone from having any visitation with their child. MR. HARRINGTON opined that these and similar incidences could be a violation of the domestic violence statute if committed in violation of an existing protective order. He expressed agreement that it was appropriate to be held accountable. He shared that, if the point was made that the definition of domestic violence was too broad, then perhaps it should be reviewed to determine if it encompasses items that it should not, and then adjust the definition. He offered his belief that the approach of the proposed bill was not the right solution to that particular problem. REPRESENTATIVE WOOL suggested that this may be a case by case situation. 4:23:13 PM JOHN HOAG, Attorney, said that he had sent in comments [included in members' packets]. He reported that he had volunteered and handled about 90 domestic violence cases pro bono over the past 9 years. He stated that rarely had he seen a case with one incident of domestic violence, as most cases had patterns of domestic violence that usually occurred over time. He expressed agreement with earlier testimony that it was "the most un- reported crime probably there is." He said that requiring a conviction was a bad idea, and he testified against the amendments. He clarified that attorneys were appointed if a person could not afford them in a custody case if there had been issues of domestic violence. He offered his opinion that judges were very reluctant to order supervised visitation, and that it was usually arranged through family or friends, and it was not a cost factor. He reported that the Supreme Court had deemed there must be a pathway for unsupervised visitation. He stated that the cases where this supervision remained in place were most often when the party did not follow the court directives. He urged the committee not to pass this bill, as it was his experience that most women did not use this as a weapon. He suggested that the definition of domestic violence be expanded to cover abusive relationships and the terrible effect on children. 4:27:01 PM KATHRYN SODEN, Senior Staff Attorney, Legal Program, Alaska Network of Domestic Violence and Sexual Assault (ANDVSA), stated that she was speaking in opposition to proposed HB 334. She shared that she had worked with ANDVSA for more than five years, and had represented men and women who had experienced domestic violence in family law cases. She expressed her concern that there were many reasons for a lack of criminal conviction for domestic violence, although the victims and the children still needed the protections of the law. She said that the rebuttable presumption law had protected children in many cases where there were not any criminal convictions. She shared two anecdotes, the first of which included four to five criminal charges for domestic violence being filed against the abusive mother, but subsequently being dismissed. She relayed that the domestic violence rebuttable presumption had then been applied and the custody of the children was awarded to the father. She stated that this made the children safer. In the second case, the mother had endured years of abuse from the father, but had never sought help from the police because she did not speak English and was isolated within an ethnic community. Again, although there were no convictions against the father, the court applied the rebuttable presumption law and awarded custody of the children to the mother. She stated that in both cases, when the presumption was applied, the abusive parent still had frequent regular and open contact with the children while that parent was required to get services to address the problem. She declared that the rebuttable presumption law was working as it should to keep Alaskan kids safe. She reiterated her opposition to the proposed bill. MS. SODEN, in response to Representative Tarr, said that, in her experience, an ex parte protective order alone was not considered as an incident of domestic violence, in order for the court to apply the presumption law. She said that the presumption law required a preponderance of evidence, which was not the standard for an ex parte that domestic violence had occurred. She relayed that the system could make the finding of domestic violence upon further litigation, as then both sides would have the opportunity to be heard. She said that it was not her experience that the courts would cut off kids from their parents for a year, and that the courts were very hesitant to take away visitation even in extremely abusive situations. She declared that it was important to keep the presumption law in its current state as it allowed the victim's parent the safety of having sole legal and primary physical custody until the abuser gets treatment for the issues. She stated that it was an extremely rare circumstance for the court to cut off all contact with the children. 4:33:18 PM SARALYN TABACHNICK, Executive Director, AWARE, stated that the proposed bill was going in the wrong direction for supporting victims of domestic violence, particularly children. She pointed out that not every victim of domestic violence even reported to law enforcement. She shared that her experience at AWARE was for children who had been ordered by courts to spend unsupervised time with an abusive parent, one that had been hurtful to their mother, a parent they were afraid of, and a parent who may be directly abusive to the child, as well. She stated that much more often at AWARE it was mothers who were trying to protect their children. The committee took a brief at-ease. 4:35:55 PM MS. TABACHNICK continued her testimony, stating that often the children were sent to be with a parent who terrified them. She reported that often this was a regular repetitive pattern. She pointed out that unless a child could articulate what was terrifying for them, there was not any protection for them, and that they could not tell until they felt safe. She continued and stated that children will not feel safe until they were free from harm and fear. She relayed that children were being raised learning that their needs and feelings did not matter, their boundaries were not respected or important, and they did not have rights to boundaries. She stressed that this set up the most vulnerable children to be harmed. She declared that she found proposed HB 334 "to be one of the most disheartening bills I've ever spoken to in my nearly 30 years at AWARE. If anything, we need laws that further protect children; not laws that make it more difficult to keep them safe." She reported that research had indicated that children were most helped and healed after divorce when both parents got along. She addressed the fear induced by domestic violence, and pointed out that texting and telephone calls by a person who has committed domestic violence were another source of fear. She stated that "we all deserve to live without fear and without concern for fear particularly in our intimate partner relationships and in our parenting relationships." 4:38:26 PM REPRESENTATIVE TARR relayed that there could be hundreds of phone calls and texts harassing an individual and creating a feeling of being in real danger. MS. TABACHNICK stated that these were power and control tactics which was what domestic violence was about, the control of another person by keeping them in fear. 4:39:30 PM KIRSTEN SWANSON, Attorney, paraphrased from a letter she had submitted to the committee, which read: [included in members' packets.] I am writing this letter in support of HB 334. This bill will address some of the unintended consequences in the domestic violence statutes. No one should be the victim of violence from a domestic partner, but the current statutes are encouraging unnecessary litigation and hurting children. Domestic violence restraining orders are civil cases, not criminal cases so the burden of proof is minimal. This makes it much easier for someone to now use the court system as a weapon against the other parent. Frequently, people will file a restraining order before they file for divorce or custody of their children. This allows the person who makes the allegation to kick the other parent out of the home, restrict all access to the children, freeze the bank accounts and change the locks. Once the parties are involved in the custody case any allegations of domestic violence have a tendency to severely curtail access of the parent being accused of abuse to their children. It also makes the case more litigious and hostile so that it is unlikely that the parents will be able to mediate their differences and successfully co-parent their children. The presumption in custody cases is that the non-abuser is the better parent. Therefore, a person who can convince the court that they are victims of past domestic violence will get full custody of the children. Unfortunately, the presumption advantage has encouraged people to exaggerate and make up stories to get the other parent labeled as a perpetrator of domestic violence. Even if the domestic violence allegation is more than ten years ago, has nothing to do with the children, does not include violence and was never previously reported to anyone the allegation is enough to immediately deny access of the other parent to the children. Children are then left confused and hurt as to why a parent they love has suddenly and without warning disappeared from their life. The increase in domestic violence restraining order hearings and domestic violence allegations in custody cases clogs the court system with unnecessary litigation. It costs the judicial system resources better used in prosecuting criminal cases of domestic violence. It encourages custody hearings to be contentious, winner take all affairs that make it difficult for parents to put aside their differences, put the best interests of their children first and learn to co-parent their children. HB 334 will actually protect victims of domestic violence and children in custody cases by removing the impetus for exaggerating and lying about prior arguments and disagreements. When the court system is inundated with questionable claims of domestic violence it has an impact of making domestic violence seem less serious. This hurts people who truly are victims in need of help as their cases end up delayed due to an overburdened court system. 4:44:17 PM FRED VALDEZ, Attorney, stated that he had primarily practiced family law for the past 35 years, and had been a prosecutor of domestic violence for 1.5 years. He said that he was against the proposed bill. He reported that the crime being charged was often not the first instance of domestic violence, as often it was not until after many incidences that the victim took the initiative and called for help. Hence, a standard of conviction of a domestic violence crime was not a good standard for change. He suggested other changes to guard against the use of domestic violence as a tool to gain advantage in the battle over custody. He stated that the judges had a very good grasp for these situations. He shared court room presentations of some texts, stating that they were "too vile to even repeat in this testimony. They threaten, they coerce, they call names..." He expressed agreement that these texts were about power and control, emphasizing that, as Alaska had a huge domestic violence problem, the proposed bill was a step backwards. 4:47:12 PM JOSEPH COULTER-KHAN read from a prepared statement, which read: My name is Joseph Coulter-Khan. I am fourteen years old. I am here to tell you why I think HB 334 is a step in the wrong direction. My father has not been convicted of domestic violence, but I am legitimately terrified of him. When I lived with him, I saw him yell constantly. I saw him beat up my sister and shove her down the stairs. I saw him constantly threaten my mother, my sisters, and me. He embarrasses me in public with his yelling and anger. I'm afraid of being with him. Every time I get a phone call my stomach drops, I start to sweat, to panic, pace, and go into a whole anxiety attack. I start hyperventilating. I don't want to live with that kind of pressure and anxiety. It is a negative energy and distracts me from my schoolwork and from doing the things that I love. Because my father has not been convicted of domestic violence, if HB 334 passes I would have to go with someone who has abused me for 10-12 years. Why should I be with him? Why should he have the right to me when he is the one who abused me? If he has a say in everything I do, he may make decisions that are not the best for me. He told me that if he gets full custody he will take me to Arizona and not let me contact my mother at all. He says bad things to me about my mother. Some mothers are too afraid to call the police because they are afraid of what the abusers will do to them when they get out. So then there are abusers who get custody because they aren't held accountable for their abuse. My childhood was stressful and now that I'm away from my father I'm feeling better. If I have to spend more time with him, it will waste the rest of the childhood that I have. I won't have a regular childhood. You don't know my father. You don't know what he's done. But there is no conviction of domestic violence. HB 334 violates my rights as a minor to safety from my abusive father. 4:50:54 PM CATHY COULTER-KHAN said that she was also a victim of domestic violence, and shared her educational background, including that she was a Fulbright Scholar and a PhD. She stated that she had spent more than 20 years in an abusive marriage in which she was physically and emotionally abused. She shared an incident of violence in which her husband was subsequently arrested. She stated that she did not leave simply because she did not have the means to leave and she could not see an escape route. She did not know where she would go and how would she support herself and her children. As a result, she denied everything and the charges were dropped, and there was not a conviction for domestic violence. She pointed out that the proposed bill would not have allowed that instance of domestic violence to be consequential in a current hearing, as it had happened more than five years prior. She explained that abusers would isolate, denigrate, and cut their victims off from any source of independence. Life was a series of crises and day to day survival. She relayed instances of abuse, shame, and mockery her husband had heaped on her children until one of her daughters had entered the crisis center during her junior year in high school. She pointed out that there had never been a conviction of domestic violence. She reported that it was not until after more than 20 years of abuse that she was able to leave, because she had a job that would support her, and she had family and friends who supported her. She stated that this was her fourth year of divorce litigation, and that her husband had not paid any child support for almost three years, even as he left her with marital debt and froze their assets. She declared that he was using the legal system to perpetuate power and control, and that custody of the children was a means to exert control. She acknowledged that her evidence was flimsy, as there were not any convictions, and it was difficult to put together sufficient evidence to protect her children. She asked how women without an education, a job, or a family to support them could get a conviction. She stated that requiring the conviction was to support the abusers, perpetuate the abuse, and endanger the children. She stated her opposition to the proposed bill. VICE CHAIR VAZQUEZ noted the committee was running out of time and "we're going to have to cut off testimony on this particular bill. I apologize." [HB 334 was held over.] HB 328-REGULATION OF SMOKING 4:57:40 PM VICE CHAIR VAZQUEZ announced that the next order of business would be HOUSE BILL NO. 328, "An Act prohibiting smoking in certain places; relating to education on the smoking prohibition; and providing for an effective date." 4:58:21 PM JOSHUA BANKS, Staff, Representative Dave Talerico, Alaska State Legislature, said that they had a committee substitute that mirrored the Senate version of the proposed bill. He paraphrased from the Sponsor Statement [included in members' packets], which read: Current Alaska law prohibits smoking in many areas of the state, including healthcare facilities, schools, childcare facilities, and public meeting rooms in government buildings. Many communities and businesses have voluntarily created smoke-free workplaces allowing over one-half of Alaskans to live and work in smoke-free buildings. There are however many businesses and smaller communities who have chosen not, or are not able to take similar action in their buildings, leading to exposure to second-hand smoke and the resulting negative health effects. House Bill 328 seeks to safeguard working Alaskans and their children from the adverse effects of secondhand smoke by providing a statewide smoke-free workplace law for businesses and public places. Certain boroughs, cities, and the unorganized borough who do not have the ability to create and enforce smoke-free workplace laws will be covered under HB 328. State level Medicaid expenditures that can be attributed to smoking is about $67 Million per year, which can be reduced as we limit unwanted exposure to second-hand smoke. HB 328 does not make smoking in Alaska illegal, but rather puts reasonable limitations for where someone can smoke. This bill does not prohibit outdoor smoking, except within certain areas near building entrances/exits, air intakes, and other specifically designated public gathering places. It does not legislate who a business can hire and free standing tobacco and e-cigarette shops are excluded from HB 328. 5:01:31 PM REPRESENTATIVE STUTES asked about the reasonable standards he referenced, and questioned where smoking would be allowed in Alaska if the proposed bill passed. MR. BANKS replied that smoking would be allowable in your home and outside as long as it was not within a certain distance to buildings. REPRESENTATIVE STUTES asked where currently it was possible to smoke in the State of Alaska. MR. BANKS offered to list the places. 5:04:11 PM MICHAEL PATTERSON offered his personal experience with smoking and breathing in various areas around the state, depending on local rules for smoking in public places. He declared that he did not have the right to put his smoke on other people. He shared that he had COPD, and that second hand smoke from tobacco, as well as dust and chemicals could set it off. He said that e-cigarettes had carcinogens, and that they were not safe, comparing them to "a biological weapon" because of their particle size and its ability to travel through most objects. He stated that he would be exposed and have no warning because the smell was like many other things. He testified in support of the proposed bill. 5:09:00 PM DALE FOX, President and CEO, Alaska CHARR, stated that CHARR opposed smoking bans in bars, as the proposed bill expanded the smoking ban in bars across Alaska. He declared that CHARR supported freedom of choice. He said that every community with this freedom of choice had many smoking and non-smoking venues. He stated that the public allowed freedom of choice, and that this proposed bill would invalidate the actions of these local communities. He challenged the concept that this action was good for business, reporting that many businesses experienced 30 percent loss of business the first year, with subsequent declines in business until the fourth year, when business was back to even. He stated that the average bar was not happy to lose money. He declared that the anti-smoking league would not stop with this message to take smoking outside, but would return with bans in other places such as sidewalks, docks, parks, wilderness trails, and other places. He said that it was up to the elected officials to decide the amount of freedom allowed in America. REPRESENTATIVE TARR asked about those members of CHARR who advocated opposite positions. MR. FOX replied that the board and the government affairs committee had taken a unanimous position in opposition to government edicts on smoking. He said that many businesses in the industry had gone smoke free whether for economics or personal choice. 5:13:24 PM KAREN PERDUE, American Cancer Society, shared her background in public health and tobacco control policy, which included 8 years as the Commissioner and 10 years as the Deputy Commissioner of the Department of Health and Social Services. She reported that she had also been the CEO and President of the Alaska State Hospital and Nursing Home Association, and that virtually all of the hospitals in the state, as well as the employees and patients, were tobacco-free. She explained that the proposed bill simply asked people to take smoking outside. She stated that the culture expectation set by the hospitals was for an understanding of the importance of public health intervention. She declared that second hand smoke was real and documented, sharing that all the women in her family had been medically compromised from smoking, even though some had never smoked. There was a higher correlated risk from exposure to second hand smoke. She shared that the Fairbanks Borough had not passed an ordinance similar to Anchorage and Juneau, as the borough did not have health powers. However, the proposed bill would make the regulation of smoking consistent between the city and the borough. She shared that the city ordinance did not include private facilities. She expressed her concern for workers exposed to second hand smoke. She supported that the proposed bill included e-cigarettes and, as the science had not yet caught up with the technology, it could not be said that e- cigarettes were healthy. She pointed out that it was not often that a bill had no cost to the state, and yet saved the state money in health costs. She stated her support for the proposed bill. REPRESENTATIVE WOOL asked where someone could smoke in Fairbanks. MS. PERDUE offered her belief that the city ordinance did not allow smoking in private businesses except for bars and restaurants. She opined that there was not any regulation beyond state law outside the city. VICE CHAIR VAZQUEZ asked for clarification that the borough did not have any health authority. MS. PERDUE said that the borough had very limited health powers, and that was also the case in other boroughs in Alaska. 5:19:10 PM EDY RODEWALD stated that second hand smoke was "the cloud that threatens the health and the well-being of Alaskans," people who have chosen not to smoke but cannot escape the harmful effects of smoke. She shared that she had worked in a bar as she worked through college, and that her father, a heavy smoker, died at 37 years of age from lung cancer. She stated that this differentially impacted people at the lower economic levels, reporting that Alaska Natives smoked at twice the rate and that second hand smoke impacted children, who had no choice. She declared that the majority of people don't smoke, and don't allow smoking in their homes, but smoking was allowed in public places. She opined that smoking was reckless behavior, and that most smokers agreed. She said it was time to remove smoke from indoor work places, and declared her support of the proposed bill. 5:21:09 PM EMILY NENON, Alaska Government Relations Director, American Cancer Society, stated that she had been working on the issue of smoke free workplaces in Alaska for the past 15 years at the local level and reported that significant areas of the state don't have local health controls to adopt regulations. She pointed out that there were areas in Fairbanks where the city ordinance did not prohibit smoking inside all workplaces. She maintained that the organization's position was to take smoking outside and to provide equal protection for all workers in the workplace. 5:23:13 PM REPRESENTATIVE WOOL asked if all the municipalities with health powers had enacted smoking bans. MS. NENON replied "for the most part, yes," and that she would provide the list to the committee. She relayed that all the major population centers with that power at the borough level had already taken action, with Bethel being the first area to pass this in 1998. REPRESENTATIVE WOOL asked how many of the major population areas would be affected by the proposed bill. MS. NENON replied that this proposed bill would provide protections for about half of the state population that was not yet covered. She directed attention to a chart listing the borough powers [included in members' packets]. She stated that public education was a key to the ease of enforcement, as the laws were largely self-enforcing. She opined that Alaska was ready to take the step to protect all workers. 5:25:36 PM GARY FERGUSON, M.D., Senior Director of Community Health Services, Alaska Native Tribal Health Consortium, reported that there was strong support for smoke-free workplace laws in Alaska, and he offered an anecdote of a restaurant in Unalaska. He pointed to a recent poll which reported that 69 percent of Alaskans across subgroups including geographic location, age, and political party, strongly supported the proposed bill. He shared that 72 percent of Alaskans supported the inclusion of e- cigarettes in a smoke-free workplace law, and that a majority of Alaska Native adults supported smoke-free restaurants and believed that smoking should not be allowed in in-door work areas. He acknowledged that tobacco use was still high among Alaska Natives. He stated that the proposed bill would provide comprehensive protection from second-hand smoke and e-cigarette aerosol for employees and customers in all workplaces and public places. He explained that the proposed bill simply asked that those who choose to smoke or use e-cigarettes to take it outside in order to protect the health and safety of all Alaskans. 5:28:21 PM ALEX MCDONALD, Owner, Ice Fog Vapor, stated his opposition to HB 328, as he had many issues with the bill as currently written. He said it was "a huge invasion in the privacy of people's homes." He stated that many homes would have to become smoke- free places to allow health care providers to come and help with care. He declared that Alaska had a long history of respecting people's privacy, which the proposed bill went against. He said that the proposed bill also stripped a business owner of the choice to run the business as they wished, and would take away local choice for communities to regulate these products as they saw fit. He pointed out that, as Alaska was a huge state, something that worked in one area of the state may not work in another area. He declared that every other controlled substance was given local option in Alaska. He expressed concern with the inclusion of vaporizers in the proposed bill, as these products did not produce combustion or any combustion by-products. He referenced an English report which said that e-cigarettes released negligible levels of nicotine into ambient air with no identified health risk to by-standers. He shared one study which concluded that it could be unhealthier to breathe air in big cities compared to standing in a room with someone who was vaping. He said the technology was being embraced in England to help smokers stop the use of tobacco products, and had concluded that e-cigarettes could save lives and long term health care costs, and were not a gateway to smoking. 5:31:08 PM SHARON WOLKOFF, Kodiak Area Native Association, stated that she had done tobacco cessation work, and was now working in tobacco prevention. She offered anecdotes about her family and its history around smoking. She testified in support of smoke free workplaces, so not to worry about the health of loved ones. She expressed agreement with the freedom of choice for everyone to enjoy the establishments. 5:34:41 PM VICE CHAIR VAZQUEZ closed public testimony on HB 328. [HB 328 was held over.] 5:35:02 PM ADJOURNMENT There being no further business before the committee, the House Health and Social Services Standing Committee meeting was adjourned at 5:35 p.m.