Legislature(1995 - 1996)
03/31/1995 01:03 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.