Legislature(1995 - 1996)
03/31/1995 01:03 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 31, 1995
1:03 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
Representative Bettye Davis
COMMITTEE CALENDAR
HB 125: "An Act relating to disclosures to school officials of
information about certain minors."
PASSED OUT OF COMMITTEE
HB 199: "An Act creating the crime of criminal transmission of
HIV."
HEARD AND HELD
HB 237: "An Act relating to workers' compensation insurance rate
filings; to second independent medical evaluations for
workers' compensation claims; to immunity for third-
party design professionals from civil actions by
recipients of workers' compensation benefits; to
workers' compensation death benefits; to computation of
workers' compensation benefits; to penalties for
fraudulent acts related to workers' compensation; to
immunity for employer workplace safety inspections
related to workers' compensation insurance; and
providing for an effective date."
PASSED OUT OF COMMITTEE
HB 234: "An Act relating to administrative adjudication under
the Administrative Procedure Act."
SCHEDULED BUT NOT HEARD
HB 130: "An Act relating to the adoption, amendment, and repeal
of regulations."
SCHEDULED BUT NOT HEARD
HB 10: "An Act relating to payment for emergency services
responding to certain motor vehicle accidents."
SCHEDULED BUT NOT HEARD
WITNESS REGISTER
REPRESENTATIVE SCOTT OGAN
Alaska State Legislature
State Capitol, Room 409
Juneau, AK 99801-1182
Telephone: (907) 465-3878
POSITION STATEMENT: Sponsor of HB 199
DALE GOODLAW
Blood Bank of Alaska, Incorporated
4000 Laurel
Anchorage, AK 99501
Telephone: (907) 563-3110
POSITION STATEMENT: Opposed HB 199
MARGI MOCK, Supervisor
Alaska Public Defender Agency
900 West 5th Avenue, Suite 200
Anchorage, AK 99506
Telephone: (907) 264-4400
POSITION STATEMENT: Opposed HB 199
DAVID TYLER
Alaska Fire Chiefs Association
1610 Hans Way
Fairbanks, AK 99709
Telephone: (907) 479-5672
POSITION STATEMENT: Testified in favor of HB 199
DR. PETER NAKAMURA, Director
Division of Public Health
Department of Health and Social Services
P.O. Box 110600
Juneau, AK 99811-0600
Telephone: (907) 465-3090
POSITION STATEMENT: Opposed HB 199
MARGARET BERCK, Attorney
American Civil Liberties Union
227 7th Street
Juneau, AK 99801
Telephone: (907) 586-3309
POSITION STATEMENT: Opposed HB 199
DEAN GUANELI, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Provided information on HB 199
ALLEN KINGMAN, Administrative Assistant
to Representative Scott Ogan
Alaska State Legislature
State Capitol, Room 409
Juneau, AK 99801-1182
Telephone: (907) 465-3878
POSITION STATEMENT: Provided information on HB 199
REPRESENTATIVE ELDON MULDER
Alaska State Legislature
State Capitol, Room 411
Juneau, AK 99801-1182
Telephone: (907) 465-2647
POSITION STATEMENT: Sponsor of HB 237
ROYCE ROCK
407 Denali Street
Anchorage, AK 99501
Telephone: (907) 276-3533
POSITION STATEMENT: Testified in support of HB 237
MIKE SCHNEIDER, Attorney
880 North Street, No. 202
Anchorage, AK 99501
Telephone: (907) 277-9306
POSITION STATEMENT: Testified against HB 237
STEVE CONN
Alaska Public Interest Research Group
P.O. Box 101093
Anchorage, AK 99510
Telephone: (907) 278-2661
POSITION STATEMENT: Testified against HB 237
SCOTT MCENTIRE, Injured Worker
6560 East 16th Avenue
Anchorage, AK 99504
Telephone: (907) 377-8614
POSITION STATEMENT: Testified against HB 237
WILLIE VANHEMMERT, Management Section
Ad Hoc Committee
1633 West 15th Avenue
Anchorage, AK 99501
Telephone: (907) 562-3252
POSITION STATEMENT: Provided information on HB 237
PAUL GROSSI, Director
Division of Workers' Compensation
Department of Labor
P.O. Box 25512
Juneau, AK 99811-5512
Telephone: (907) 465-2790
POSITION STATEMENT: Provided information on HB 237
ANNE CARPENETI, Committee Aide
House Judiciary Committee
State Capitol, Room 120
Juneau, AK 99801-1182
Telephone: (907) 465-4990
POSITION STATEMENT: Provided information on HB 237
PREVIOUS ACTION
BILL: HB 125
SHORT TITLE: JUVENILE RECORD INFORMATION TO SCHOOLS
SPONSOR(S): REPRESENTATIVE(S) GREEN,Toohey,Bunde,Phillips
JRN-DATE JRN-PG ACTION
01/26/95 143 (H) READ THE FIRST TIME - REFERRAL(S)
01/26/95 143 (H) HES, JUD
02/23/95 (H) HES AT 03:00 PM CAPITOL 106
02/23/95 (H) MINUTE(HES)
02/23/95 (H) MINUTE(HES)
02/23/95 (H) MINUTE(HES)
03/16/95 (H) HES AT 02:00 PM CAPITOL 106
03/16/95 (H) MINUTE(HES)
03/17/95 769 (H) HES RPT CS(HES) 2DP 1NR 2AM
03/17/95 770 (H) DP: BUNDE, TOOHEY
03/17/95 770 (H) NR: G.DAVIS
03/17/95 770 (H) AM: ROKEBERG, ROBINSON
03/17/95 770 (H) FISCAL NOTE (COURT)
03/17/95 770 (H) 2 ZERO FISCAL NOTES (DOE, DHSS)
03/17/95 792 (H) COSPONSOR(S): PHILLIPS
03/29/95 (H) JUD AT 01:00 PM CAPITOL 120
03/29/95 (H) MINUTE(JUD)
03/31/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 199
SHORT TITLE: CRIMINAL TRANSMISSION OF HIV
SPONSOR(S): REPRESENTATIVE(S) OGAN
JRN-DATE JRN-PG ACTION
02/27/95 487 (H) READ THE FIRST TIME - REFERRAL(S)
02/27/95 487 (H) STATE AFFAIRS, JUDICIARY, FINANCE
03/07/95 (H) STA AT 08:00 AM CAPITOL 102
03/07/95 (H) MINUTE(STA)
03/14/95 (H) STA AT 08:00 AM CAPITOL 102
03/14/95 (H) MINUTE(STA)
03/15/95 737 (H) STA RPT CS(STA) 2DP 1DNP 3NR
03/15/95 737 (H) DP: GREEN, OGAN
03/15/95 737 (H) DNP: ROBINSON
03/15/95 737 (H) NR: JAMES, PORTER, WILLIS
03/15/95 737 (H) INDETERMINATE FISCAL NOTE (LAW)
03/15/95 (H) 2 ZERO FISCAL NOTES (ADM, CORR)
03/29/95 (H) JUD AT 01:00 PM CAPITOL 120
03/29/95 (H) MINUTE(JUD)
03/31/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 237
SHORT TITLE: WORKERS' COMPENSATION AMENDMENTS
SPONSOR(S): REPRESENTATIVE(S) MULDER BY REQUEST,Porter
JRN-DATE JRN-PG ACTION
03/06/95 597 (H) READ THE FIRST TIME - REFERRAL(S)
03/06/95 598 (H) LABOR & COMMERCE, JUDICIARY
03/08/95 630 (H) JOURNAL CORRECTION
03/15/95 (H) L&C AT 03:00 PM CAPITOL 17
03/15/95 (H) MINUTE(L&C)
03/17/95 775 (H) L&C RPT 3DP 3NR
03/17/95 776 (H) DP: ROKEBERG, KOTT, PORTER
03/17/95 776 (H) NR: MASEK, KUBINA, ELTON
03/17/95 776 (H) 3 ZERO FISCAL NOTES(DCED,LABOR,ADM)
03/29/95 (H) JUD AT 01:00 PM CAPITOL 120
03/29/95 (H) MINUTE(JUD)
03/31/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 234
SHORT TITLE: ADMINISTRATIVE ADJUDICATIONS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
03/06/95 590 (H) READ THE FIRST TIME - REFERRAL(S)
03/06/95 590 (H) STATE AFFAIRS, JUDICIARY
03/06/95 591 (H) 14 ZERO FISCAL NOTES (ADM,DEC,F&G)
03/06/95 591 (H) (DHSS, LABOR, LAW, DPS, DOT)
03/06/95 591 (H) (4-DCED, 2-DOE)
03/06/95 591 (H) GOVERNOR'S TRANSMITTAL LETTER
03/08/95 665 (H) ZERO FISCAL NOTE (DNR) 3/8/95
03/14/95 (H) STA AT 08:00 AM CAPITOL 102
03/14/95 (H) MINUTE(STA)
03/16/95 (H) STA AT 08:00 AM CAPITOL 102
03/16/95 (H) MINUTE(STA)
03/18/95 (H) STA AT 10:00 AM CAPITOL 102
03/18/95 (H) MINUTE(STA)
03/20/95 810 (H) STA RPT 3DP 1NR
03/20/95 810 (H) DP: JAMES, GREEN, ROBINSON
03/20/95 810 (H) NR: IVAN
03/20/95 810 (H) 14 ZERO FISCAL NOTES (4-DCED,2-DOE)
03/20/95 810 (H) (ADM,DEC,F&G,DHSS,LABOR,LAW,DPS)
03/20/95 810 (H) (DOT) 3/6/95
03/20/95 810 (H) ZERO FISCAL NOTE (DNR) 3/8/95
03/31/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 130
SHORT TITLE: REGULATION ADOPTION PROCEDURES & REVIEW
SPONSOR(S): REPRESENTATIVE(S) KELLY, James
JRN-DATE JRN-PG ACTION
01/27/95 157 (H) READ THE FIRST TIME - REFERRAL(S)
01/27/95 157 (H) STA, JUD, FIN
02/14/95 (H) STA AT 08:00 AM CAPITOL 519
02/14/95 (H) MINUTE(STA)
02/14/95 (H) ARR AT 12:00 PM BUTROVICH ROOM 205
02/15/95 396 (H) COSPONSOR(S): JAMES
02/21/95 (H) STA AT 08:00 AM CAPITOL 102
02/21/95 (H) MINUTE(STA)
02/21/95 (H) ARR AT 12:00 PM BUTROVICH RM 205
02/22/95 (H) ARR AT 04:00 PM BELTZ ROOM 211
02/22/95 (H) MINUTE(ARR)
02/22/95 (S) MINUTE(ARR)
02/23/95 (H) STA AT 08:00 AM CAPITOL 102
02/23/95 (H) MINUTE(STA)
03/09/95 (H) STA AT 08:00 AM CAPITOL 102
03/16/95 (H) STA AT 08:00 AM CAPITOL 102
03/16/95 (H) MINUTE(STA)
03/18/95 (H) STA AT 10:00 AM CAPITOL 102
03/18/95 (H) MINUTE(STA)
03/20/95 805 (H) STA RPT 1DP 2NR 1AM
03/20/95 805 (H) DP: JAMES
03/20/95 805 (H) NR: GREEN, IVAN
03/20/95 805 (H) AM: ROBINSON
03/20/95 806 (H) 5 FISCAL NOTES (3-GOV, DHSS, DPS)
03/20/95 806 (H) INDETERMINATE FISCAL NOTE (LAW)
03/20/95 806 (H) 3 ZERO FISCAL NOTES (ADM,GOV,DNR)
03/22/95 840 (H) CORRECTED STA RPT CS(STA) NT 2DP
2NR 1AM
03/22/95 841 (H) DP: JAMES, PORTER
03/22/95 841 (H) NR: GREEN, IVAN
03/22/95 841 (H) AM: ROBINSON
03/22/95 841 (H) 5 FNS (3-GOV, DHSS, DPS) 3/20/95
03/22/95 841 (H) INDETERMINATE FISCAL NOTE (LAW)
3/20/95
03/22/95 841 (H) 3 ZERO FNS (ADM, GOV, DNR) 3/20/95
03/31/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 10
SHORT TITLE: PAYMENT OF COSTS OF DWI ACCIDENTS
SPONSOR(S): REPRESENTATIVE(S) DAVIES,Green
JRN-DATE JRN-PG ACTION
01/06/95 23 (H) PREFILE RELEASED
01/16/95 23 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 23 (H) STA, JUD, FIN
03/18/95 (H) STA AT 10:00 AM CAPITOL 102
03/18/95 (H) MINUTE(STA)
03/20/95 802 (H) STA RPT 4DP
03/20/95 803 (H) DP: JAMES, GREEN, IVAN, ROBINSON
03/20/95 803 (H) 2 ZERO FISCAL NOTES (DCED, LAW)
03/20/95 824 (H) COSPONSOR(S): GREEN
03/22/95 835 (H) CORRECTED STA RPT CS(STA) 4DP 1NR
03/22/95 835 (H) DP: GREEN, IVAN, JAMES, ROBINSON
03/22/95 835 (H) NR: PORTER
03/22/95 835 (H) 2 ZERO FISCAL NOTES (DCED, LAW)
3/20/95
03/31/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-39, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:03
p.m. on Wednesday, March 31, 1995. Representative Bettye Davis was
absent. All other members were present. The hearing was
teleconferenced to Anchorage, Fairbanks and Barrow. CHAIRMAN BRIAN
PORTER stated that the following bills would be heard: CSHB 125,
CSHB 199, HB 237, HB 234 and HB 130.
CSHB 125 - JUVENILE CRIMINAL RECORDS TO SCHOOLS
CHAIRMAN PORTER explained the status of CSHB 125(JUD), Version W,
dealing with criminal records being disclosed to schools. It
incorporates what the committee wants to see happen in terms of law
enforcement, which is for the Division of Family and Youth Services
(DFYS) and schools to get together to establish a process for
exchanging information that would be timely and also meet their
individual needs. Sometimes mandatory actions are not timely, due
to the fact that they are mandatory and have to be reviewed by
layers of bureaucracy. That is our goal, and this version will
hopefully guide agencies toward those provisions.
Number 080
REPRESENTATIVE CON BUNDE made a motion to adopt CSHB 125 (JUD)/W,
as the working draft. Hearing no objection, it was so ordered.
REPRESENTATIVE BUNDE made the motion to move the bill out of
committee as described. Seeing no objection, CSHB 125(JUD)/W moved
out of the House Judiciary Committee.
CSHB 199 - CRIMINAL TRANSMISSION OF HIV
Number 110
REPRESENTATIVE SCOTT OGAN, bill sponsor, introduced HB 199. He
stated this bill would make it illegal for a person who knowingly
has HIV and commits an act known to transmit HIV or AIDS to another
person, commits a class A felony. Acts that will be illegal will
include sexual contact, deliberately exposing someone to bodily
fluids, donating organs or blood, or using non-sterile devices and
needles. The reality of the issue is that if a person is
unknowingly exposed to this virus, it is likely to be a death
sentence. People infected with HIV have a grave responsibility to
the people they interact with. This law would provide recourse for
people involuntarily exposed to HIV as well as provide protection
to unsuspecting people with high risk behaviors. The largest
single group acquiring this disease today is young people, and
often they are reckless. Once the word gets around that HIV
transmission is a crime, this reckless behavior will hopefully
decline dramatically.
REPRESENTATIVE GREEN asked if we were talking about version G of
the committee substitute (CS).
REPRESENTATIVE BUNDE answered, yes, the State Affairs CS.
Number 175
DALE GOODLAW, Blood Bank of Alaska, Incorporated, testified via
teleconference. He had serious concerns as the bill relates to
blood donors throughout the state, and the donation of blood in
general. We have donors here that donate blood for their own
surgery. These donors pre-deposit their blood for use during their
surgery, and that can be up to five pints of blood. This bill
would prohibit that from occurring, therefore we would not be
rendering health care to our patients. It has been medically
justified that these patients seem to do better when they receive
their own blood. Another concern is the question of what exactly
qualifies as a positive test for HIV. Here, at the blood bank, we
are under federal guidelines. We test all of our blood for the HIV
antibody. We first apply a screening test, followed up by a
Western Blot Test. The Western Blot we have to use is a Food and
Drug Administration (FDA) licensed test. If there is any banding,
the result means either indeterminate or a true positive. The
banding has to follow a certain pattern before they are allowed to
call it indeterminate. But if there is any banding that could
result in a false positive, then they have to call that
indeterminate. At that point, based on this bill, it would show
that the totality of the evidence would fall on transmitting the
HIV virus. At what point in time would the donor fall into that
category? That is the question. We follow up on the Western Blot
tests later, to determine if the tests have turned to a true
positive. During that six month period, that donor would have had
knowledge that he may be infected with HIV. Chances are he is not,
because we do have a lot of false positive banding with this
Western Blot Test. As high as 15 percent of all healthy
individuals will show some banding on a Western Blot. During this
six month waiting period, would this donor be required to notify,
for example, his dentist, that he may be infected with the HIV
virus? These are questions that need to be addressed within this
bill for the protection of our blood donors and the general public
who contribute to the blood bank to supply our state's needs.
Number 280
REPRESENTATIVE AL VEZEY asked if this would discourage people from
giving blood. He does not see any criminal activity or
restrictions associated with giving blood in the bill. Is the
concern here that it may be an intimidating factor to somebody who
wants to donate blood?
MR. GOODLAW answered that yes, it would be intimidating. There are
restrictions placed on donors right now, as a result of federal
activity through the FDA. We have a means of pinpointing high risk
persons by going back to their past medical history, as well as
their current lifestyle, and past lifestyles as well.
There is a risk that these donors may not be truthful on the
questionnaires we give them. We have worked very hard not to get
people into the center just for the purpose of being tested for
HIV. We work very closely with the Department of Health for the
purpose of establishing alternative testing sites that we can refer
people to. In addition to those restrictions, more importantly, we
will be adding one more restriction on top of that. We would be
obligated to inform these donors that a positive test result, may
in fact result in criminal prosecution. They may be criminally
investigated based on these test results.
REPRESENTATIVE VEZEY asked why they would be criminally
investigated.
MR. GOODLAW gave the analogy of a person whose test may come back
as an indeterminate Western Blot. An indeterminate is used to
follow a patient for the course of their HIV infectivity. If there
is no advanced banding during that six months, we can rest assured
that the banding will not progress any further, based on the
resources we have. However, there is a possibility that the
banding will actually result in a true HIV. We cannot guarantee
that is not going to happen. The way we counsel our donors after
we inform them of their indeterminate results, is to make contact
with these specialists. From that point is where that six month
waiting period would actually come into play. If these people do
develop the HIV virus and can actually transmit the virus, then
they would have had knowledge as early as six months prior to that,
that the possibility was there.
REPRESENTATIVE VEZEY asked what percentage of people donate blood.
MR. GOODLAW answered that it is about 3 percent in Alaska.
REPRESENTATIVE VEZEY thought, then, that the percentage of people
whose tests showed some kind of positive banding would be very
small. Are there really that many people in this category that a
blood donor would conceivably be guilty of a criminal activity? He
felt anyone who was told that there was a possibility that they had
HIV would first think very carefully of how they interrelated to
other people.
MR. GOODLAW said there are certain bandings that are truly not
related to HIV activity, but we would not accept blood from those
types of persons. The blood supply is still protected, but their
concern is for the donor. With that knowledge of an indeterminate
HIV, that can progress on to a positive Western Blot. During that
six month period, 15 percent of not truly infected people will show
a positive banding on that blot. They never will be HIV positive,
but this one particular band will be with them for the rest of
their lives.
Number 425
REPRESENTATIVE JOE GREEN asked if a person is normally notified of
this banding pattern and put on standby for six months.
MR. GOODLAW answered that no, once a person is determined to have
any banding in the blot test, they cannot come back and donate
blood except for their own use. His concern is that this
legislation would prohibit that donor from coming back into the
center to donate blood for autologous use. Today, we do allow HIV
positive individuals to donate blood for their own use.
Number 450
REPRESENTATIVE CYNTHIA TOOHEY asked if his concern was that these
people may not return for the confirmation that they were indeed
infected.
MR. GOODLAW answered that no, that was not it. Once we have
determined an indeterminate Western Blot, we turn them over to the
infectious disease specialist. Our primary concern is with
autologous donors, and under Section 7.66.160(2), it says
"transfer, donate or provide the blood tissue..." et cetera. Now,
autologous donation is still a blood donation. Though, when we do
get the HIV positive individual in here to donate for their own
surgery, this bill would prohibit the individual from completing
that act, even though it is for themselves, and will be
appropriately tagged and marked for use only by this person.
REPRESENTATIVE VEZEY asked what citation he was talking about.
MR. GOODLAW said he was referring to SB 91.
REPRESENTATIVE VEZEY said he was looking at page 1, line 12-14
which makes it a felony to transfer to another. There are vast
differences between the Senate bill and this House bill because
they have different sponsors, but we are not looking at the Senate
bill.
CHAIRMAN PORTER asked Mr. Goodlaw if he had the House bill.
MR. GOODLAW stated he only had pages 2 and 3.
CHAIRMAN PORTER said they were referring to page 1, so that might
be where the misunderstanding lies.
Number 500
MARGI MOCK, Supervisor, Public Defender Agency, testified via
teleconference. She felt the intent behind the bill is good, with
the efforts to discourage transmission of the HIV virus. This is
a positive step, but she did not feel that criminal law was the
best means to achieve the goal. Based on the years she has been
working in the Public Defender Agency, penalizing this behavior
criminally, and providing for a five year presumptive jail sentence
could actually have a negative impact on the struggle to contain
HIV and AIDS. Every health professional she has heard testifying
on this bill has concerns that this would actually discourage
people from being tested. Though health care is not her area of
expertise, health care professionals seem to feel the best way to
prevent the spread of HIV is with behavior modification through
education. From a legal point of view, this bill will actually
discourage testing. It has been her experience that if you punish
the behavior, either by incarceration or by taking children away
from pregnant mothers who have substance abuse problems, the result
is that you simply stop pregnant mothers from seeking prenatal
care. Punishing the behavior would provide the opposite result of
what the state wants to achieve. We have existing criminal
statutes in Alaska that provide adequate means to punish someone
who either intentionally or recklessly transmits HIV. Those carry
the same penalty as this proposed bill does. You are convicted of
assault if you cause physical injury when you knowingly engage in
conduct or other circumstances that manifest indifference to the
value of human life. That is exactly what we are talking about
here. If someone knowingly infects another person, they can
actually be prosecuted for attempted murder.
Number 570
DAVID TYLER, Alaska Fire Chiefs, testified via teleconference. He
asked why we were limiting this to HIV when tuberculosis and
hepatitis are equally real problems. He had an emergency response
crew involved in a domestic dispute where there were knives
involved, and these people did not want help at all. Two troopers
and three medics were exposed to blood that night. These people
were slinging their bloody bandages across the room that night as
weapons, and he was not able to get assault charges filed or
anything.
Number 600
DR. PETER NAKAMURA, Director, Division of Public Health, Department
of Health and Social Services, stated that the department is
opposed to this bill or any similar legislation. We are fully
convinced as public health people that this would discourage
testing. Though this activity has been criminalized in other
states, and testing has not gone down in those states, the reason
testing is going up and will continue to do so, is that we are
requiring HIV testing for so many things these days. For the very
high risk persons who we have to work with, those are the ones we
need to worry about cutting down exposure to the public, not the
majority of people who are infected with HIV. The majority of
infected people are very responsible people. They are not
purposely out there exposing others to the disease. By
criminalizing it, and assuming that we would discourage testing,
we will not see those numbers reflected in the total number of
tests taken.
DR. NAKAMURA also stated that if an individual is already infected
with HIV, and if they expose another, and the individual exposed
becomes infected, you have every provision in the world to
prosecute that individual. Apparently the concern is that when an
infected individual exposes themselves to another, and that
individual does not become infected, in reality you are never going
to know anyway. Assuming that this is a consensual sexual act,
there is not going to be a complaint raised by the person who is
exposed. He will never know, and so this bill in itself would not
increase your probability of identifying individuals who are
exposing others without identifying their status.
DR. NAKAMURA suggested a change in wording of the bill that would
make it less damaging. On page 1, number 11, if the term
"excluding perinatal transmission" were added to that statement,
"deliberately exposes a person's bodily fluid to the body of
another person in a manner that could result in the transmission of
HIV, excluding perinatal transmission." As stated, if a mother is
pregnant, has HIV and transmits the virus to her fetus, that would
be a criminal act. The same would be true on line 14 where you
would add the same wording.
DR. NAKAMURA made another suggestion on page 2, lines 6 and 7,
where it says, "the parties to the intimate sexual contact were
legally married at the time of contact." He did not see where
legal marriage would have any significance to this issue at all, in
terms of consensual sexual acts. From lines 14 to 19, we feel that
whole sentence would be unnecessary, since any individuals working
with patients who are bleeding or have bodily fluid that could be
exposed to others, are all taught how to handle individuals in
these circumstances. You never know when an individual does not
meaningfully expose another person, whether they are HIV positive
or not.
CHAIRMAN PORTER pointed out that those lines Dr. Nakamura wanted to
delete are affirmative defenses.
DR. NAKAMURA just felt they were not necessary.
REPRESENTATIVE TOOHEY asked Dr. Nakamura if they had the ability to
stop or prosecute criminal transmission of HIV.
DR. NAKAMURA deferred that question to those better informed in
law.
Number 700
REPRESENTATIVE FINKELSTEIN asked what the state of research was for
the definition of sexual contact in the transmission of AIDS. This
section on page 3 sounds like the sort of contact would include
general embracing and contact with bodily fluids, which he assumed
includes saliva. What information exists on the transmission of
AIDS through saliva?
DR. NAKAMURA answered that there have been a number of studies
showing that there has never been a demonstrated transmission of
the virus through saliva. They have injected the virus into
saliva, but they feel that there is something in the saliva which
seems to have the ability to keep out or at least lower the
probability of transmission. They have never been able to detect
a case where that has ever happened.
REPRESENTATIVE FINKELSTEIN asked if Dr. Nakamura's use of the term
`bodily fluids' would include saliva.
DR. NAKAMURA answered that it would include saliva and excrement.
REPRESENTATIVE TOOHEY asked if that also includes feces and urine.
DR. NAKAMURA answered yes, it does.
REPRESENTATIVE TOOHEY then asked what would happen to HIV/AIDS
babies that are being adopted to people who will care for them
until they die. Does that make the child a criminal because there
is a possibility of transmitting the virus?
DR. NAKAMURA thought that was a legal question.
REPRESENTATIVE TOOHEY said somebody knows, even though it may be a
far fetched question.
MARGARET BERCK, Attorney, American Civil Liberties Union (ACLU),
said the ACLU is opposed to this legislation, specifically on four
points. One concern is that conduct addressed in this bill can be
prosecuted under existing law. She had one client who appeared to
have been infected by another individual. Ms. Berck brought that
to the attention of the District Attorney's Office and that young
woman was charged with a criminal offense.
MS. BERCK mentioned secondly, that the legislation that would make
this a class A felony offense would essentially discourage
individuals from determining their status. They would not seek
medical assistance or be tested. Finally, there are privacy issues
involved, both for the defendant and the victims if this were to
become law. If she were defending an individual under this
offense, she would like to know an awful lot of information about
that victim. The victim's privacy rights would come into play
during prosecution under such a statute.
MS. BERCK stated they believe that the amendments recommended by
Dr. Nakamura would make the bill more palatable. She sees no
purpose in the section which would provide an affirmative defense
to marital status. If this bill is designed to encourage people to
be honest in their intimate sexual relations, somebody who marries
you and does not tell you that they have HIV, would be given
essentially a free ride. The bottom line with this legislation is
that it is going to end up killing more people than it saves.
Number 800
DEAN GUANELI, Assistant Attorney General, Criminal Division,
Department of Law, said that four years ago, the Department of Law
received an inquiry from the federal government asking whether or
not the criminal laws in Alaska could be used to punish someone who
had tried to spread the HIV virus. He could not remember the exact
circumstances. It may have been due to a federal funding question,
but the department had to certify that Alaska laws in fact did
permit that. He took a look at our laws at the time and concluded
that indeed, there were criminal laws on the books that would allow
prosecution. Certainly if someone intended to pass the virus, and
tried to do it, that would be attempted murder, which would be a
rare circumstance though we have had a couple of cases in the
prisons where prisoners have tried to bite the guards, saying they
have HIV. Those situations have been dealt with in the prison
disciplinary context. If someone is simply reckless, there is a
criminal law to cover that. It is called "reckless endangerment"
and is a misdemeanor offense, punishable by up to a year in jail.
What this bill does is take the kind of conduct that would be
currently prosecutable under a misdemeanor offense and elevate it
from a class A misdemeanor, maximum one year in jail, to a class A
felony with a maximum of 20 years in jail on a presumptive term for
a first offense. In other words, a term that would be imposed at
five years. What has to be asked is, "What are we gaining by
elevating that level of offense from a class A misdemeanor to a
class A felony." And on the other side, "What might we be losing?"
MR. GUANELI said you have heard testimony that this kind of law
would discourage people from being tested, because once they are
tested and they know that they have the HIV virus, then one of the
elements of the offense is already proven and it might be easier to
prosecute them. He did not know whether that would, in fact,
occur, but there is a risk that it will, and you have to ask
yourselves whether that risk is worth what we are getting in
exchange. With class A misdemeanor penalties of up to a year in
jail, a person who engages in this kind of conduct may or may not
get any jail time, but there is certainly a likelihood of being put
on probation. Last year the legislature passed a provision
increasing the amount of probation up to ten years. At least the
justice system would then have some measure of control over this
person. He thought that is what we really want to do, is to
control the behavior without discouraging voluntary testing. If
you end up with a case like this that is prosecuted and someone
goes to jail for ten years, you also have to ask yourself what the
cost would be to the state. You are dealing with somebody who is
infected and if it develops into full blown AIDS, you have another
person in the correctional system who is running up huge bills for
the state to be treated for the AIDS virus, when that person could
be treated just as well, if not better, on the outside and at
certainly less cost to the state.
MR. GUANELI felt there were some problematical aspects of this
bill, one being the affirmative defense of being married, as was
mentioned. He felt that someday that circumstance may happen,
where someone gets married, and one spouse has not let the other
know that they have AIDS. In an instance like that, you might
want to prosecute under the reckless endangerment misdemeanor
offense. Under this bill, we would not be able to do that. This
bill specifically governs that conduct. It creates an affirmative
defense and so we simply would not be able to prosecute that
person.
MR. GUANELI spoke of the provision that deals with deliberately
exposing your bodily fluids to another. That should be looked at.
How realistic is it? Are people going to say, "I have HIV," when
they start bleeding? We have a situation in society where being a
homosexual is looked down upon, where there is a severe social
stigma for having the HIV virus, and to expect that when someone is
injured in an accident, or goes in for medical care, that they are
going to say, "Stay away from me, I have HIV." He felt that was
simply unrealistic. Take for example, Greg Luganis, who won the
gold medal for diving in the Olympics. He injured his head in one
of his dives, and was sitting there trying to stem the flow of
blood and not telling anybody that he has HIV. Does that mean he
has committed a class A felony, and that he ought to go to jail for
five years?
TAPE 95-39, SIDE B
Number 000
MR. GUANELI felt the question should be raised as to whether or not
that is appropriate, or whether there may be some other way to take
care of the situation, and whether this is really a public health
problem and something that ought not to be a criminal justice
problem. He agreed with the public defender who testified about
the inability to control conduct through criminal justice means.
There is a lot of validity in what she said. Because of the stigma
that has arisen because of this particular disease, it is
unrealistic to think that people are going to act precisely in the
manner that this bill wants them to act.
REPRESENTATIVE TOOHEY expressed her fright at the possibilities HB
199 has. She has very good friends who are hemophiliacs that are
children. They have been infected, and this would make these
children criminals. This is going to make criminals of all of the
women in the villages who are being infected by their drunk
husbands or boyfriends. This is a very, very bad policy.
REPRESENTATIVE FINKELSTEIN felt the same way. This subject is a
very tough one to deal with because this is one of the saddest
circumstances we face in our society today. These people have a
death sentence to start with. He asked Mr. Guaneli how many people
in Alaska fall into the category of those who flagrantly try to
intentionally transmit the virus.
MR. GUANELI answered that he was not aware of any in Alaska that
have intentionally tried to transmit the virus. He had heard of
specific individuals who do not seem to care, but in the couple of
cases they have been involved in, it seems as though their partners
are certainly aware of the high level of risk involved. Because of
that, and because it was determined that it was consensual contact
with awareness of the facts, we were not able to handle those
cases, and this bill does not change that because it talks about a
level of knowledge or awareness. We are trying to address these
cases as public health problems, trying to address this circle of
people that might come into contact with this person, trying to
tell them what the consequences could be.
REPRESENTATIVE BUNDE asked about the earlier testimony about the
people intentionally flinging their bloody bandages around, and the
gist was that maybe this bill should be expanded to contain other
highly contagious medical problems. You earlier mentioned reckless
endangerment, and he assumed that would apply to someone who
purposely tried to hit someone else with their bloody bandage if
they knew they had hepatitis.
MR. GUANELI answered yes, that would apply. The reckless
endangerment statute is not limited, and it covers any kind of
reckless conduct.
REPRESENTATIVE BUNDE asked if that has ever happened.
MR. GUANELI said he was not aware of any cases, other than the HIV
ones. It is kind of difficult to prosecute someone for an airborne
disease, such as tuberculosis.
REPRESENTATIVE TOOHEY thought the fiscal note was not valid. She
felt the cost would actually be much higher if you were paying
medical costs for incarcerated persons with AIDS.
Number 250
REPRESENTATIVE OGAN said with regards to the statement that they
take special precautions in situations involving inmates with HIV,
he had a discussion with a former director of a prison yesterday
who said they do not really know who has AIDS and who does not.
They had a list that the prison guards just kind of passed around,
warning the guards to be careful of certain inmates.
REPRESENTATIVE TOOHEY said they had testimony one day from the
Department of Corrections that said, yes, they did know how many
inmates have AIDS. They test every inmate that goes into the
prison system. She may be wrong, but she was under the impression
that they know just how many HIV infected prisoners they have.
REPRESENTATIVE GREEN mentioned that we have a real social dilemma
on our hands. If the frequency of AIDS is increasing, the system
we have now is failing. We do not seem to have this problem with
other diseases such as hepatitis. We do not allow murder because
it is fatal, but that certainly does not prevent murder. We do
have a law against it. He wondered what Dr. Nakamura saw as the
best approach to this problem if voluntary testing is a failing
situation.
DR. NAKAMURA corrected him. He did not say it is a failing
situation, it is kind of like dealing with a smoker. First you
have to know that they are smokers before you can deal with them.
There are certain smokers who have a great deal of difficulty
dealing with the problem, but if you persist and persist, there is
a very good likelihood that you can either reduce their level of
smoking, or get them to actually stop. It is harder for some than
for others to stop smoking, but you cannot deal with the problem
unless you know that they are a smoker. It is the same with HIV
and AIDS. You deal with all populations in trying to stop it, but
you really do have to focus on that high risk group. If these
people do not come in for testing because they are afraid they will
be classified as a criminal, then they will not come in for testing
and we will not know they have HIV.
REPRESENTATIVE TOOHEY said HIV in some of the villages is epidemic,
primarily among males. With the high incidence of alcohol among
the Native population and among the female population as well,
there has been testimony that in 20 years we will have nobody left
in the villages because they will all be dead from HIV because of
the sexual relaxation of the Natives. She did not want to label
anybody with promiscuity, because it is not promiscuity, it is part
of their culture. With that attitude, plus the alcohol, child
abuse, and sexual abuse of children and women in the villages; if
we criminalize this, it is not going to do any good except put the
blame on the victim, because the victim will then be labeled as a
criminal once they get tested. She said she is so opposed to this
because it is going to be more destructive than constructive, and
she is very frightened of it.
DR. NAKAMURA said he had a great deal of respect for Representative
Toohey, and therefore hated to correct her, but fortunately we do
not have an epidemic in our villages.
REPRESENTATIVE TOOHEY added, "Yet."
DR. NAKAMURA said we are very fortunate. The potential for great
transmission is there, primarily because of the small communities
involved. He would not elude it to any difference in sexual
practices, but there is no question that the potential is there for
massive spread and destruction. Fortunately, at this point, we do
not have any major epidemics. We do have the disease in the
communities, that is true.
CHAIRMAN PORTER asked if it takes an average of six months after
the time of being infected before you get a positive HIV test.
DR. NAKAMURA answered that it can vary but we say a minimum of six
months from the time of exposure until your last test, will give
you some level of comfort that you did not get infected.
REPRESENTATIVE OGAN explained that the testimony by the district
attorney referred to assault in the first degree. The difference
between assault in the first degree is that assault in the first
degree requires that the conduct actually caused physical injury.
With our bill, if a person has HIV or AIDS and knowingly engages in
a behavior that could do it, they are guilty. If I have a gun and
put five bullets in it, and I spin it around and point it at Al's
head and I pull the trigger, and it is a lucky day for both of us
and it falls on the empty cylinder, I think it is a fair assessment
that I be charged with attempted murder. The prisons may test
those people, but they are not telling the guards who are the ones
dealing with it. Health professionals do want to know whether or
not they have someone in their care with HIV or some of these other
diseases. We heard testimony that an unconscious patient would
become a criminal. That is covered in this bill. It says if "the
defendant made efforts that were reasonable considering the
circumstances to inform the medical professional..." So if he is
unconscious in a car wreck and not able to tell the professional,
that is an affirmative defense.
REPRESENTATIVE OGAN asked his aide, Allen Kingman, to address the
issue regarding marriage.
ALLEN KINGMAN, Administrative Assistant to Representative Ogan,
stated there was testimony saying that if the parties were married,
this would permit the transmission of HIV without the victim
knowing about it and being informed, but that is not the case in
our bill. It requires that the spouse be notified that the
infected person has HIV.
CHAIRMAN PORTER noted that the testimony indicated it is an
affirmative defense, so the offenses you described are off of the
books, so to speak, if the parties to the intimate sex were legally
married at the time of contact. It does not say anything about
notification.
MR. KINGMAN answered that it is a three part test. A legal
marriage is one part of the test, and the other part of the test is
in (b), the person exposed knew that the defendant was infected
with HIV, knew that the contact could result in transmission of
HIV, and voluntarily participated in the contact with the
knowledge. Marriage alone does not give someone grounds to
transmit HIV to an unwilling spouse. That would be criminal in our
opinion.
REPRESENTATIVE TOOHEY said everyone who comes into the hospital and
has blood work done, gets tested for HIV. The hospital knows that
unless that patient requests that information, they are not told,
so they could be walking out of there, being infected with HIV, and
the hospital is not allowed to tell them. That is a privacy act.
The hospital, by law, cannot divulge that information unless it is
requested and the person goes through counseling, because it is so
devastating.
Number 640
REPRESENTATIVE BUNDE made a motion to adopt Amendment one, offered
by Representative Finkelstein, who had stepped out. Amendment one:
Page 1, line 10:
Delete "deliberately"
Insert "intentionally"
MR. GUANELI explained the effect of the amendment. He was not
certain it would have a significant effect. "Deliberately" is not
defined here, but it would probably be very close to
"intentionally" in the Criminal Code. It is our preference to use
terms that are defined.
CHAIRMAN PORTER asked if the sponsor would have an objection to
that amendment.
REPRESENTATIVE OGAN answered no.
CHAIRMAN PORTER stated that the amendment appears not to have a
major effect on the bill, except to add a term that has a
definition, replacing a word having a speculative definition.
Hearing no objection, Amendment One was passed.
CHAIRMAN PORTER offered Amendment two for discussion. This is
basically the request that Dr. Nakamura had. It would preclude
from culpability, under this statute, the transmission of the virus
from a mother to her unborn child.
Amendment two:
Page 1, line 11, following "HIV":
Insert ", excluding perinatal transmission"
Page 1, line 14, following "another":
Insert ", excluding perinatal transmission"
REPRESENTATIVE FINKELSTEIN returned.
REPRESENTATIVE OGAN took a neutral stand on the amendment.
CHAIRMAN PORTER announced there was no objection. Amendment two
was adopted.
REPRESENTATIVE FINKELSTEIN offered Amendment three, which there had
already been discussion on. He explained that there are many
situations that are similar to a marriage situation, in which you
could have a violation of this also, so he agreed with Dr. Nakamura
that marriage should not be a factor to be considered.
Amendment three:
Page 2, lines 6 - 7:
Delete all material.
CHAIRMAN PORTER explained to Representative Finkelstein that while
he was gone, the committee discussed this. It was determined that
(a) is not taken by itself, but (a), (b), and (c) are taken
together because of the "and" on the end of line 10. So if you
were legally married AND knew the defendant was infected, AND used
measures designed to protect, that would be the only exclusion.
So if you are against this proposition, you would probably want to
throw everything out, not just the one portion.
REPRESENTATIVE FINKELSTEIN mentioned that if the amendment were to
be adopted, it would be a case where it was known AND the parties
used reasonable measures. If you are in a circumstance where you
are doing that, regardless of whether you are married, we have to
remember that if (b) and (c) occurred, regardless of marital
status, it would still be an affirmative offense. Without
objection Amendment three passed.
REPRESENTATIVE OGAN noted that he would have objected to that
amendment.
CHAIRMAN PORTER guessed that he would have.
REPRESENTATIVE FINKELSTEIN offered Amendment four:
Page 1, line 9:
Delete all material.
Insert "without the use of reasonable prophylactic
measures designed to minimize the risk of transmission of
sexually transmitted disease;
REPRESENTATIVE FINKELSTEIN asked how you could possibly determine
in a court what it means to engage in contact in a manner that
could result in the transmission of HIV. He had asked a question
recently about saliva, and there is tons of information on all of
this, and it is a constantly changing thing. There are no absolute
answers in any of it about which manners of sexual contacts could
result in the transmission of HIV. You would have to be a medical
expert in order to be on top of that. The only level that occurs
to anyone involved in these things is the level represented in the
amendment, which is, "without the use of reasonable prophylactic
measures designed to minimize the risk." That is where the state
of this science is at. All you can do is use the measures that are
available that are designed to minimize the risk.
REPRESENTATIVE OGAN wanted the committee to ask themselves a
hypothetical question before voting on this amendment. Would you
have sex with someone, if you knew they had HIV, using a
prophylactic device? I have made my case.
REPRESENTATIVE TOOHEY answered, "Thank you. I certainly would. It
has been done for years with married couples. There was a test
done in Sweden on a group of couples who had been married for many
years and they have not transmitted it to their partners."
CHAIRMAN PORTER asked if there was objection to the amendment.
Hearing none, Amendment four passed.
Number 830
REPRESENTATIVE FINKELSTEIN noted that he would debate the bill, and
could not support it.
CHAIRMAN PORTER gave a brief synopsis of what the current law
allows. Intentional is a class A felony. Recklessly, and
transferring it is a class B felony. Knowingly having the contact,
but not necessarily transmitting it, is a class A misdemeanor.
TAPE 95-40, SIDE A
Number 000
REPRESENTATIVE BUNDE said people could be charged for an assaultive
behavior under this, and he strongly opposed HB 199. He pointed
out that they previously passed a bill which would let people with
AIDS out of prison early. Now we want to take the people with AIDS
and put them back in. He did not know where the revolving door
would stop, but it does appeal to his satirical sense of humor.
REPRESENTATIVE GREEN asked about the zero fiscal note, and he
agreed with Representative Toohey that there should be a fairly
large fiscal note. He asked if that question could be answered.
REPRESENTATIVE TOOHEY stated that the Department of Corrections
paid $587,000 for one longtime HIV positive inmate alone, in a two
month period. Based on these types of cases, she felt they had not
been given a proper fiscal note from Corrections or Law. We need
to be honest with this, and it will be expensive if we put them
back in prison. She also felt that philosophically, David
Finkelstein was right on. If people will stop being tested because
they are afraid of being labeled a criminal, there are enough laws
on the books to prosecute those few who transmit the disease on
purpose. We need to keep people coming in to be tested in order to
prevent the spread of the virus. She feels very strongly about
this as a nurse.
CHAIRMAN PORTER closed the hearing on HB 199 and asked what the
wish of the committee was. HB 199 was held for lack of motion.
HB 237 - WORKERS' COMPENSATION AMENDMENTS
Number 140
REPRESENTATIVE ELDON MULDER, sponsor of HB 237, introduced the
bill. Sponsor statement:
"For the past 13 years, the Ad Hoc Committee on Workers'
Compensation, a private citizen initiative group with
representatives from both management and labor associations from
around the state, has been working to find solutions to the
concerns surrounding Alaska's Workers' Compensation system.
Through their efforts the Ad Hoc Committee has been very
instrumental in getting several pieces of major workers'
compensation reform passed by the legislature.
"In October of 1993, the Ad Hoc Committee began meeting regularly
and came up with the framework of what is now House Bill 237. The
Ad Hoc Committee addressed six specific problem areas in Alaska's
workers' compensation laws and came up with solutions agreeable to
both labor and management. The six issues dealt with by the Ad Hoc
Committee and now House Bill 237 are: Death benefit revision;,
immunity for workplace safety inspections (also known as Van
Biene); design professional construction site liability limit;
contractor premium adjustable rate; determination of spendable
weekly wages (also known as Gilmore); and workers' compensation
fraud. Attached to this sponsor statement is a letter from the Ad
Hoc Committee giving a break down of these six issues.
"It is my hope that the effort put forth by this group will be
recognized for its importance and House Bill 237 will be accepted
without change."
The six sections mentioned above, addressed by the Ad Hoc
Committee, are as follows:
- DEATH BENEFIT REVISION - The current death benefit has a
ten-year cap and also calls for the reduction of benefits at
the five and eight year time frame. Although the ten year cap
is still retained to control the cost of claims, it was
suggested that the reduction intervals could create hardships
for a surviving spouse with small children. It has been
estimated that the elimination of the five and eight year
reductions will result in an average premium increase of 0.6
percent.
- VAN BIENE - This portion of the bill provides immunity for
insurance carriers, trade associations and other persons
providing work site safety inspections. These inspections are
often voluntary and are conducted in the interest of promoting
safety in the workplace. Without this immunity, many of the
workplace safety inspections will be curtailed to the
disadvantage of both employees and employers.
- DESIGN PROFESSIONAL CONSTRUCTION SITE LIABILITY LIMIT -
Design professionals (i.e. architects, engineers and land
surveyors) have limited involvement at the construction site
with their main function being periodic observation for
conformance to design requirements. While the role of design
professionals is clearly defined in contract language, they
have been drawn into lawsuits based simply on their presence
at the site.
The proposed statute still allows the injured employee of the
contractor to bring suit against the design professional based
on negligent plans and specifications. However, the statute
prevents the more general charge of professional negligence
through failing to detect potentially dangerous conditions
during observation of construction. The recognition and
correction of such conditions is the sole responsibility of
the construction contractor who has control of the work.
Fourteen other states provide a similar immunity, with eight
states utilizing nearly identical language.
- CONTRACTOR PREMIUM ADJUSTMENT RATE - The construction
industry has long sought a more equitable method of
distributing the cost of workers' compensation premiums. With
the large variance in pay scale, higher paying employers pay
a larger cost for workers' compensation although some costs
related to injuries are fixed regardless of wage (e.g.
medical, vocational rehabilitation). To bring about a more
equitable system, twelve states have adopted regulations
establishing a premium adjustment program for the contracting
classifications. The process is handled administratively by
the rate setting authority.
-DETERMINATION OF SPENDABLE WEEKLY WAGES - A recent Supreme
Court decision in the Gilmore case has resulted in confusion
regarding the calculation of compensation benefits. The
proposed legislation provides a fair, efficient and
predictable method of calculating compensation benefits. The
methods developed are patterned after model language suggested
by the court in the Gilmore ruling. The legislation
recognizes the importance of establishing a fair approximation
that does not rely on various litigation for both the injured
worker and their employers.
- FRAUD - The revised section broadens the definition of
misrepresentation and gives the Board the authority to order
reimbursement of monies fraudulently obtained.
ROYCE ROCK testified via teleconference. He said Representative
Mulder stated the bill perfectly. There has been a lot of work
between labor and management, and we have a good balance from both
sides on this. He urged the committee's support on HB 237.
Number 250
MIKE SCHNEIDER, Attorney, testified via teleconference. He
previously handled a lot of workers' compensation cases. He
commented on Section 3 of the bill - Immunity for third party
design professionals. We have several liability laws, under which
you only pay your assessed percentage of fault, and thus there is
no reason to give immunity to anyone. Responsibility is the order
of the day, and there is no real reason to eliminate someone's
responsibility for their own negligent or wrongful conduct. He has
a huge problem with Section 3, because if you did not have the
factors listed in (b) (1 -3), you would not have a claim against a
third party design professional anyway. We need to look at what
this is going to accomplish. The real problem is in Section 9.
There is no evidence he is aware of that safety inspections are not
being performed, or that those performing them are being sued with
regularity. We have immunized the insurance industry and trade
associations, under this bill, from getting stuck with more than
their percentage of fault. There is no reason to do this. It
gives them a benefit that none of the rest of us are entitled to.
Number 330
STEVE CONN, Alaska Public Interest Research Group (AKPIRG)
testified via teleconference, speaking of the problems within the
bill. The workers' compensation system needs a massive overview.
This bill leaves out matters such as penalties for fraudulent or
misleading acts. There are a great deal of fraudulent attempts to
receive workers' compensation benefits in this state. What we are
not seeing, is whether or not employers are paying their premiums.
He felt portions of the section would end up being used by claims
adjusters to batter injured workers. Injured workers have been
left out of the dialogue, but we are going to make sure that
changes. He felt this bill was an inadequate reflection of the
problems that exist, and suggested it be held over, until the
legislature can convene a commission to take a brand new look at
workers' compensation. The system does not deliver what it
promises to, in exchange for civil litigation.
Number 450
SCOTT MCENTIRE, injured worker, testified via teleconference. He
explained how after he went through seven pre-hearings, both sides
represented by attorneys, he asked the board what he could do to
resolve his case, and their only response was to schedule another
pre-hearing. He hoped the committee would take the time to read
the letter he had sent. In that letter, he mentioned the fact that
the board is well aware that the workers' compensation established
in Alaska violates the Americans With Disabilities Act (ADA), yet
this Ad Hoc Committee seemed to fail to address that problem. He
understood that the workers' compensation system is supposed to be
reviewed by the Workers' Compensation Board, the Division of
Workers' Compensation, Legislative Attorneys, Legal Counsel, and
the Administrator of the Regulation Review Commission. They have
all failed to correct this problem. Another problem is using the
third edition of the (American Medical Association (AMA)
guidelines. The statute for those injuries would appear to be
covered underneath that guideline, yet they are not. They are
covered under the 1965 American Academy of Orthopedic Surgeons.
The statutes would award him with 25 percent more if he moved to
San Jose, California. He considers these to be problems that he
would like to see addressed.
Number 525
REPRESENTATIVE BUNDE told Mr. McEntire that he understands that he
is going through the system, and is probably justifiably
frustrated. He wanted Mr. McEntire to know that he has taken great
personal offense to a statement on page 4 of Mr. McEntire's letter.
He quoted, "Perhaps the Judiciary Committee could take time to read
the bill and ponder the implications instead of just sounding out
the words." Representative Bunde said that impugns the integrity
of this entire committee, and he is sorry, but it does not add to
his enthusiasm for accepting Mr. McEntire's point of view.
REPRESENTATIVE TOOHEY asked Mr. McEntire if he was working now.
MR. MCENTIRE said no, he had not been released by his doctor to
return to work yet. It had been three years since his injury.
Number 500
WILLIE VANHEMMERT, Manager, Ad Hoc Committee, testified via
teleconference. He said there had been requests for changes which
they have tried to deal with on an individual basis. He commented
that he really had no testimony to give, but was available for any
questions the committee might have.
PAUL GROSSI, Director, Division of Workers' Compensation,
Department of Labor, was also present for questions.
REPRESENTATIVE FINKELSTEIN asked who would be the best person to
describe what the bill does.
REPRESENTATIVE MULDER gave an overview of the sectional analysis.
He explained that Section 2 prohibits an increase in insurance rate
filings for workers' compensation, if that insurance rate increase
is based only on wage rate. In the construction industry, the risk
only consists of a higher wage rate. In other words, an employer
who pays a higher wage to his employee for the same work, will not
be assessed a higher wage or a higher rate.
REPRESENTATIVE FINKELSTEIN asked how workers' compensation
insurance rates are regulated. Do we review and approve the rates?
MR. GROSSI answered that the Division of Insurance handles the
rates. He understood the current system to be based on salary
paid, and various other load factors. There may be reductions for
safety inspections and things like that. It is not based strictly
on wages. The premium is based on how much you have paid out in
salaries. If two employees have the same type of business; one
employer pays the employees $12 per hour, and the other employer
pays the employees $10 per hour, your rate cannot be established
upon how much you pay your employees, but according to the risk of
the industry in which you are employing them.
CHAIRMAN PORTER restated that. You should not be penalized as an
employer if you have seen your way clear to pay your employees more
than somebody else does.
REPRESENTATIVE MULDER said Section 3 provides some protection to
design professionals who provide services for construction
projects. It makes them not civilly liable for injury to a person
if that person is injured on the job, with the exception of when
they are on the job and actually have a management function.
REPRESENTATIVE MULDER explained that Section 4 changes the second
independent medical examination of an injured employee from
mandatory to optional, at the request of the Board; in cases where
there is medical dispute over workers' compensation coverage.
REPRESENTATIVE FINKELSTEIN asked why we wanted to make the second
opinion optional.
MR. GROSSI answered that right now, it is mandatory, so that if a
medical dispute exists between an employer's medical evaluator, and
the employee's attending physician, a third examination must be
performed. This does not take into account that there are some
cases that the board can make a decision on. For example, if there
is a 2 percent difference of opinion between the doctors on
permanent and partial impairment, a mandatory examination would be
required. Instead of this examination being mandatory, the board
could make a decision based on the evidence, not needing a third
medical examination. This process would be faster, so injured
employees do not have to wait on the decision for a longer period
of time than necessary.
REPRESENTATIVE MULDER continued to say that Section 5 requires that
benefits paid to recipients residing outside of Alaska be
calculated on wages earned in Alaska. Section 6 changes death
benefits to provide that benefits not be diminished at five and
eight year intervals. Currently under workers' compensation, if a
worker is killed on the job, the surviving widow receives
compensation for up to ten years. After the first five years, she
would receive benefits at 100 percent; from the fifth through the
eighth year, it is diminished to 66 and 2/3 percent; and from
years eight through ten, it is diminished to 50 percent. This
provision would allow that benefit to remain whole throughout the
entire ten years.
REPRESENTATIVE MULDER said Section 7 provides a calculation for an
employee's gross weekly earnings. This is in response to the
Gilmore case, which pertained to the 1988 Reform Act, where the
Supreme Court threw out the provision in that computation; so
Section 7 basically follows the guidelines of what the Supreme
Court has allowed us to do.
REPRESENTATIVE MULDER described Section 8, which relates to fraud,
and imposes penalties for fraudulent or misleading acts relating to
workers' compensation benefits. This allows a more expedient
method for the board to deal with fraud, seeking redress and back
pay from the employee who made the fraudulent claim. Section 9
provides safety inspectors to not be civilly liable for acts or
omissions in performing certain workplace safety services, unless
that act or omission constitutes intentional misconduct. This
pertains to the so-called Van Biene case, which was a part of the
1988 Reform Act, which provided for workplace safety inspection
programs. It gave employers a 5 percent discount for the
inspection programs. While we felt this was an incentive to
promote work safety, the trial lawyers found it to be a potential
deep pocket, and exploited that opportunity; so we are attempting
to close that gap through Section 9. Once that vulnerability or
liability was discovered, virtually nobody offered workplace safety
inspection programs anymore; hence, both the employer lost out, in
terms of higher premiums, and the employees lost out, in terms of
a less safe workplace environment.
REPRESENTATIVE MULDER explained that Section 10 deals with the
definitions of seasonal and temporary work. He had an amendment
for that to propose to the committee. Section 11 is a transition
section for certain insurance rate filings. Section 12 is the
applicability for Section 2. Section 13 is the effective date.
CHAIRMAN PORTER offered Amendment one:
Page 3, line 19, after "occurred;:
Insert "or"
CHAIRMAN PORTER felt that was just correcting a drafting error.
REPRESENTATIVE BUNDE made a motion to move Amendment one as
described. Seeing no objection, the amendment was adopted.
REPRESENTATIVE BUNDE made a motion to move Amendment two which
would do the following:
Page 8, lines 20 -21:
Delete "does not continue through an entire calendar
year"
Insert "is not intended to continue through an entire
calendar year, but recurs on an annual basis"
REPRESENTATIVE MULDER explained that this is simply a clarification
of terminology in relation to the definition of seasonal work. It
is a more accurate reflection of what constitutes seasonal work.
REPRESENTATIVE FINKELSTEIN asked where this would make a
difference.
REPRESENTATIVE MULDER asked Mr. VanHemmert if the language on
seasonal work relates to the Gilmore part of Section 7.
MR. VANHEMMERT said that was correct. He explained that page 6,
line 11, talks about the time of injury being exclusively seasonal
or temporary. Then you take all the wages that the injured party
has earned during the year, and divide it by 50, which is an
approximation of a weekly wage. This balances out the occasions
where employees may have had a high paying job for a short period
of time, and it was anticipated to be seasonal or part time, then
they would not get the entire benefit. It kind of evens out both
ends.
CHAIRMAN PORTER asked if there was further discussion on Amendment
two, or objection. Seeing none, the amendment was adopted.
REPRESENTATIVE VEZEY offered and explained his amendment, which was
Amendment three:
Page 1, line 7, after ";":
Insert "repealing the limitation on the hours a person
may be employed in a mine; making a related technical
amendment to avoid changing the penalties for failing to
make payments into an employee benefit fund;"
Page 3, after line 5:
Insert new bill sections to read:
"Sec. 3. AS 23.10.045(b) is amended to read:
(b) Each violation of this section is a separate
offense and a person found guilty of a violation is
punishable under (c) - (d) of this section [IN ACCORDANCE
WITH THE SCHEDULE OF PUNISHMENT SET OUT IN AS 23.10.415].
Sec. 4. AS 23.045 is amended by adding new subsections to
read:
(c) A person who, whether as principal or agent,
violates this section is guilty of a misdemeanor and upon
a first conviction is punishable by a fine of not less
than $100 nor more than $500 or by imprisonment in a jail
for not less than 60 days, nor more than six months, or
by both.
(d) Upon a second conviction for a violation of
this section, the punishment is imprisonment in jail for
not less than 60 days, nor more than one year. A "second
conviction" under this section means a conviction for a
violation of this section that was committed within two
years after a previous conviction for a violation of this
section. Other convictions are first convictions."
Renumber the following bill sections accordingly.
Page 8, after line 24:
Insert a new bill section to read:
"Sec. 13. AS 23.10.405, 23.10.410, and 23.10.415 are
repealed."
Renumber the following bill sections accordingly.
He said this amendment would be beneficial to the mine workers, who
would like to work ten hour days.
REPRESENTATIVE MULDER opposed the amendment. The bill, as it
currently exists, is a balancing act. There are provisions within
here that provide additional protection for injured workers, and
there are provisions with the bill that provide additional benefits
to the employers. He felt this amendment would tip the balance of
the bill in a direction that would no longer constitute
equilibrium. He felt this amendment would be a bill killer, but
would perhaps be appropriately offered as a separate piece of
legislation. Currently, this bill has the support of the Workers'
Compensation Commission of Alaska, organized labor, the
Administration, and also the Department of Labor.
TAPE 95-40, SIDE B
Number 000
A roll call vote was taken on Amendment three. Representative
Vezey voted yes. Representatives Bunde, Toohey, Finkelstein and
Porter voted no. The amendment failed, four to one.
REPRESENTATIVE FINKELSTEIN offered Amendment four. He wanted to
put the phrase "except for seasonal or temporary work" into Section
7. He did not want to pick a particular spot for it.
CHAIRMAN PORTER opposed the amendment, saying that this bill does
not seek to deal individually with businesses or types of
businesses like cannery workers. It tries to balance across the
state for all businesses.
REPRESENTATIVE FINKELSTEIN felt his amendment would take care of
people at the very bottom of the ladder.
There was a debate on whether or not the bill excluded overtime.
CHAIRMAN PORTER noted that on page 6, line 11, it says that if at
the time of injury, the employment is exclusively seasonal or
temporary, then, notwithstanding subsections 1 through 5, which is
the exclusion of overtime, weekly earnings are calculated at 1/50th
of the total wages, which would include overtime.
REPRESENTATIVE FINKELSTEIN felt this was a very confusing section,
and did not understand how you would pick which category you are
in. You can be both seasonal or temporary, AND calculated by day,
hour or output.
Number 250
ANNE CARPENETI, Committee Aide, House Judiciary Committee, noted
that because it says, "notwithstanding those sections," paragraph
6 would prevail. Their benefits would be calculated under
paragraph 6.
CHAIRMAN PORTER and Mr. Grossi agreed.
REPRESENTATIVE FINKELSTEIN decided to modify his proposed
amendment. Another way of doing the same thing, would be, in
subsection 10, expanding it beyond permanent disability to also
include seasonal and temporary work, so that subsection 10 allows
the board to determine the calculations if it does not fairly
reflect the employee's earnings. This would put it up to the
board's discretion.
Number 375
CHAIRMAN PORTER announced that for those people waiting to testify
or listen to the hearing on HB 234 or HB 130, the committee would
not have time to hear those two bills, and would postpone them
until next Monday. In addition, the committee substitute for HB 10
would be heard on Wednesday.
There was a short discussion on the best ways to calculate benefits
on seasonal and temporary wages.
Number 545
REPRESENTATIVE FINKELSTEIN restated his proposed amendment.
CHAIRMAN PORTER requested a roll call vote. Representative
Finkelstein voted yes. Representatives Vezey, Bunde, Toohey, and
Porter voted no. The amendment failed four to one.
REPRESENTATIVE BUNDE made a motion to move CSHB 237(JUD) out of
committee, with individual recommendations and attached fiscal
notes. Hearing no objection, it was so ordered.
ADJOURNMENT
The House Judiciary Committee adjourned at 4:15 p.m.
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