Legislature(2005 - 2006)

03/27/2006 02:03 PM JUD


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                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         March 27, 2006                                                                                         
                           2:03 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Lesil McGuire, Chair                                                                                             
Representative Tom Anderson                                                                                                     
Representative John Coghill                                                                                                     
Representative Pete Kott                                                                                                        
Representative Les Gara                                                                                                         
Representative Max Gruenberg                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Peggy Wilson                                                                                                     
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 439                                                                                                              
"An  Act relating  to authorizing  the state  to join  with other                                                               
states entering into the  Interstate Insurance Product Regulation                                                               
Compact  and  authorizing  the   compact  to  supersede  existing                                                               
statutes  by approving  standards, rules,  or other  action under                                                               
the terms of the compact."                                                                                                      
                                                                                                                                
     - MOVED CSHB 439(L&C) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 442                                                                                                              
"An  Act  relating  to  the   validity  of  advance  health  care                                                               
directives,  individual  health  care instructions,  and  do  not                                                               
resuscitate orders; relating to  the revocation of advance health                                                               
care directives; relating to do  not resuscitate orders; relating                                                               
to resuscitative  measures; relating  to the liability  of health                                                               
care  providers and  institutions;  relating  to an  individual's                                                               
capacity for making  health care decisions; and  providing for an                                                               
effective date."                                                                                                                
                                                                                                                                
     - MOVED CSHB 442(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE JOINT RESOLUTION NO. 32                                                                                                   
Proposing an amendment to the  section of the Constitution of the                                                               
State of Alaska relating to marriage.                                                                                           
                                                                                                                                
     - BILL HEARING POSTPONED 3/29/06                                                                                           
                                                                                                                                
HOUSE BILL NO. 325                                                                                                              
"An Act relating to post-conviction DNA testing; and amending                                                                   
Rule 35.1, Alaska Rules of Criminal Procedure."                                                                                 
                                                                                                                                
     - BILL HEARING POSTPONED 3/29/06                                                                                           
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 439                                                                                                                  
SHORT TITLE: INSURANCE PRODUCT REGULATION COMPACT                                                                               
SPONSOR(S): REPRESENTATIVE(S) COGHILL                                                                                           
                                                                                                                                
02/10/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/10/06       (H)       L&C, JUD                                                                                               
03/01/06       (H)       L&C AT 3:15 PM CAPITOL 17                                                                              
03/01/06       (H)       Moved CSHB 439(L&C) Out of Committee                                                                   
03/01/06       (H)       MINUTE(L&C)                                                                                            
03/03/06       (H)       L&C RPT CS(L&C) NT 3DP 3NR                                                                             
03/03/06       (H)       DP: LYNN, ROKEBERG, KOTT;                                                                              
03/03/06       (H)       NR: CRAWFORD, LEDOUX, GUTTENBERG                                                                       
03/22/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/22/06       (H)       <Bill Hearing Postponed to 03/24/06>                                                                   
03/24/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/24/06       (H)       Scheduled But Not Heard                                                                                
03/27/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 442                                                                                                                  
SHORT TITLE: HEALTH CARE DECISIONS                                                                                              
SPONSOR(S): REPRESENTATIVE(S) WEYHRAUCH                                                                                         
                                                                                                                                
02/10/06       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/10/06       (H)       HES, JUD                                                                                               
02/21/06       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
02/21/06       (H)       Scheduled But Not Heard                                                                                
02/23/06       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
02/23/06       (H)       Heard & Held                                                                                           
02/23/06       (H)       MINUTE(HES)                                                                                            
02/28/06       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
02/28/06       (H)       Moved CSHB 442(HES) Out of Committee                                                                   
02/28/06       (H)       MINUTE(HES)                                                                                            
03/03/06       (H)       HES RPT CS(HES) NT 4DP 1NR                                                                             
03/03/06       (H)       DP: SEATON, GARDNER, KOHRING, WILSON;                                                                  
03/03/06       (H)       NR: CISSNA                                                                                             
03/24/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/24/06       (H)       Scheduled But Not Heard                                                                                
03/27/06       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
LINDA HALL, Director                                                                                                            
Division of Insurance                                                                                                           
Department  of   Commerce,  Community,  &   Economic  Development                                                               
(DCCED)                                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Assisted with  the presentation of  HB 439,                                                               
and responded to questions.                                                                                                     
                                                                                                                                
JOHN GEORGE, Lobbyist                                                                                                           
for the American Council of Life Insurers (ACLI)                                                                                
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Assisted with  the presentation of  HB 439,                                                               
and responded to questions.                                                                                                     
                                                                                                                                
JACQUELINE TUPOU, Staff                                                                                                         
to Representative Bruce Weyhrauch                                                                                               
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Presented HB 442 on behalf  of the sponsor,                                                               
Representative Weyhrauch.                                                                                                       
                                                                                                                                
SHELLEY OWENS, Health Program Manager                                                                                           
Section of Injury Prevention & Emergency Medical Services                                                                       
Division of Public Health                                                                                                       
Department of Health and Social Services (DHSS)                                                                                 
POSITION  STATEMENT:   During  discussion  of  HB 442,  expressed                                                               
concerns about Section 5 and support for a proposed amendment.                                                                  
                                                                                                                                
JON S. DAWSON, Attorney at Law                                                                                                  
Davis Wright Tremaine, LLP                                                                                                      
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:    Provided comments  during  discussion  of                                                               
HB 442  on  behalf  of Providence  Anchorage  Anesthesia  Medical                                                               
Group, P.C., and responded to questions.                                                                                        
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR  LESIL   McGUIRE  called   the  House   Judiciary  Standing                                                             
Committee  meeting  to  order at  2:03:17  PM.    Representatives                                                             
McGuire,  Kott,  Gara,  Gruenberg,  Anderson,  and  Coghill  were                                                               
present  at  the  call  to  order.    Representative  Wilson  was                                                               
excused.                                                                                                                        
                                                                                                                                
HB 439 - INSURANCE PRODUCT REGULATION COMPACT                                                                                 
                                                                                                                                
2:03:49 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be HOUSE BILL NO. 439, "An  Act relating to authorizing the state                                                               
to join with other states  entering into the Interstate Insurance                                                               
Product  Regulation  Compact  and   authorizing  the  compact  to                                                               
supersede  existing statutes  by approving  standards, rules,  or                                                               
other  action under  the  terms  of the  compact."   [Before  the                                                               
committee was CSHB 439(L&C).]                                                                                                   
                                                                                                                                
REPRESENTATIVE COGHILL,  speaking as the sponsor,  explained that                                                               
this legislation allows  Alaska to enter into a  compact in which                                                               
states come  together for  the purposes of  aligning some  of the                                                               
application procedures  for life insurance  annuities, disability                                                               
income,   and  long-term   care   products.     He  related   his                                                               
understanding   from   a   National   Conference   of   Insurance                                                               
Legislators (NCOIL)  meeting that  if states don't  address this,                                                               
the federal  government will.   Twenty-some states,  he remarked,                                                               
have  already joined,  but 26  states must  come together  before                                                               
[the  compact]  becomes effective.    The  legislation creates  a                                                               
single point  of filing for  the states involved in  the compact,                                                               
which would  benefit Alaska  because it would  merely have  to be                                                               
aware of and supportive of  those standards.  From the consumer's                                                               
perspective, annuities and life  insurance policies would be more                                                               
portable across  state lines.   This  legislation would  give the                                                               
compact some authority to [establish]  the uniform standards with                                                               
which the  state would  have to  comply.   He specified  that the                                                               
[compact] would  define the products  and the state  would follow                                                               
suit with those products.                                                                                                       
                                                                                                                                
2:06:55 PM                                                                                                                    
                                                                                                                                
LINDA  HALL,  Director,  Division  of  Insurance,  Department  of                                                               
Commerce,  Community, &  Economic Development  (DCCED), clarified                                                               
that 21 states have passed  the proposed interstate compact.  She                                                               
referred to the  "Speed to Market" initiative,  which attempts to                                                               
encourage [states]  to find  better ways to  get products  to the                                                               
consumer.  She  pointed out that the model  compact was developed                                                               
by  the National  Association of  Insurance Commissioners  (NAIC)                                                               
and  was  vetted for  about  four  years with  attorneys  general                                                               
around  the  country  and insurance  regulators.    This  vetting                                                               
process was  meant to ensure that  the compact meets the  laws of                                                               
the various  states entering the  compact.  Ms.  Hall highlighted                                                               
that entering into  the proposed compact will  hopefully fend off                                                               
attempts at  federal regulation  of insurance.   She  opined that                                                               
insurance should be regulated by  the states, particularly when a                                                               
state is the  size of Alaska.  She noted  that consumers are able                                                               
to  call  her office  daily  with  various complaints,  and  this                                                               
wouldn't  occur  if the  federal  government  were in  charge  of                                                               
regulating insurance.                                                                                                           
                                                                                                                                
2:09:31 PM                                                                                                                    
                                                                                                                                
MS.  HALL then  turned to  the  basic structure  of the  compact,                                                               
which proposes to create a  commission with a representative from                                                               
each state  in the compact;  typically that  representative would                                                               
be  a state's  chief  regulator.   She  explained that  insurance                                                               
products would have to be  vetted by this commission and approved                                                               
by two-thirds  of the  members of the  commission to  be adopted.                                                               
The commission will  also establish standards.   She informed the                                                               
committee that states  can opt out of the standards  in two ways:                                                               
through  legislative   action  or   through  regulation   by  the                                                               
insurance  regulator.    She  pointed   out  that  the  insurance                                                               
regulator only  has 10 days after  the adoption of a  standard to                                                               
file notice  that the state  isn't going to adopt  the particular                                                               
standard.   Ms. Hall reminded  the committee that  the commission                                                               
becomes operational only  if at least 26 states or  40 percent of                                                               
the  premium  volume  in  the  country join  the  compact.    She                                                               
explained  that products  covered are  both individual  and group                                                               
life  insurance, annuities,  disability  income [insurance],  and                                                               
long-term care [insurance].                                                                                                     
                                                                                                                                
MS.  HALL  explained that  were  the  state  to  be part  of  the                                                               
compact, filings  could still be  made to the Alaska  Division of                                                               
Insurance  or   through  the  commission.     This   attempts  to                                                               
streamline  the   process  while  maintaining  standards.     The                                                               
standards  the  compact  proposes  to adopt  appear  to  be  more                                                               
protective  than  the  standards   Alaska  currently  has.    For                                                               
example, for all  products, there will be a  minimum 10-day right                                                               
to examine, and Alaska law  doesn't require this.  Also, although                                                               
Alaska law specifies that [language  pertaining to] products must                                                               
not  be   ambiguous  or  misleading,   the  state   doesn't  have                                                               
"readability"  standards, nor  does Alaska  require a  "no lapse"                                                               
guarantee or have premium disclosure  standards.  In other words,                                                               
the  commission  is  attempting   to  provide  stronger  consumer                                                               
protections than  what Alaska has.   Generally speaking, products                                                               
filed  in Alaska  are fairly  common across  the country  because                                                               
it's more expensive for an  insurance company to develop separate                                                               
products for  each state.   She relayed that [the  division] will                                                               
accept higher standards than [current]  statute requires, and the                                                               
compact  provides   a  mechanism   for  approval  that   is  more                                                               
streamlined; furthermore,  the NCOIL and the  National Conference                                                               
of  State Legislatures  (NCSL) have  adopted a  motion to  accept                                                               
[the compact].                                                                                                                  
                                                                                                                                
2:13:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARA  inquired  as  to  what  would  prevent  the                                                               
commission  from   reducing  an  individual's   rights  regarding                                                               
insurance contracts.  He recalled  that when he represented those                                                               
who purchased disability policies,  the insurance companies would                                                               
find amazing ways not to pay on the disability.                                                                                 
                                                                                                                                
MS.  HALL  opined  that  it  would  be  difficult  to  pass  weak                                                               
standards, given  that the commission will  consist of regulators                                                               
whose primary  mission is consumer  protection.  She  pointed out                                                               
that the enforcement  of the standards remains  with each state's                                                               
division  of  insurance,  and  the compact  is  merely  a  filing                                                               
mechanism  through  which  to   obtain  approval  for  particular                                                               
products.                                                                                                                       
                                                                                                                                
REPRESENTATIVE GARA inquired as to  what would happen if language                                                               
was  included  specifying  that   the  division  won't  agree  to                                                               
standards  that provide  for  a lesser  level  of protection  and                                                               
rights for policyholders than Alaska law would.                                                                                 
                                                                                                                                
MS. HALL  said that she  didn't believe such  additional language                                                               
would result  in anything  negative.  She  then pointed  out that                                                               
the legislature  has the opportunity  to opt out of  a particular                                                               
standard, but  that assumes that  the legislature knows  that the                                                               
standard exists.                                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  whether there  is  an  official                                                               
interpretation of each section of the compact.                                                                                  
                                                                                                                                
MS. HALL  said that  she hasn't seen  any official  commentary at                                                               
this  point,  although  she  offered  to  provide  Representative                                                               
Gruenberg with the position papers and analysis by NAIC.                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG  offered   his  understanding  that  an                                                               
interstate  compact is  a contract  between states,  which has  a                                                               
priority below federal  law but above state law.   He relayed his                                                               
further understanding  that these  contracts can't be  amended or                                                               
withdrawn from except as specified in the contract.                                                                             
                                                                                                                                
2:20:39 PM                                                                                                                    
                                                                                                                                
MS.  HALL   offered  her  understanding  that   HB  439  includes                                                               
provisions allowing both for withdrawal  from the compact and for                                                               
non-participation in a particular standard.                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  whether   the  compact  can  be                                                               
amended.                                                                                                                        
                                                                                                                                
REPRESENTATIVE COGHILL pointed out that  the amendments to HB 439                                                               
thus far  have not  been to  the text  of the  compact.   He then                                                               
relayed his  belief that  the state  can make  laws that  it will                                                               
enforce outside  of this compact,  and that the state  won't give                                                               
up that much sovereignty.   Representative Coghill said he shares                                                               
the [concern]  that the  state might  wish to  go in  a different                                                               
direction than the compact with regard to consumer protection.                                                                  
                                                                                                                                
MS. HALL,  in response to  a question, reiterated that  the state                                                               
regulatory  agency has  the  ability  to opt  out  of a  standard                                                               
proposed by  the commission  by giving notice  within 10  days of                                                               
the notice of  the adoption of the standard.   She also explained                                                               
that  [the commission]  has been  meeting and  reviewing products                                                               
for almost  two years, and that  once the commission is  in force                                                               
and  operational,  those  proposed  standards would  have  to  be                                                               
adopted by  two-thirds of the  directors on the commission.   Ms.                                                               
Hall pointed out that the  standards being discussed will pertain                                                               
to product filings.                                                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG asked how notification will occur.                                                                     
                                                                                                                                
MS. HALL  said she  wasn't sure that  the commission  has adopted                                                               
operating rules yet.                                                                                                            
                                                                                                                                
2:26:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG asked  whether  the  notification by  a                                                               
state opting  out has  to be  mailed within  10 days  or received                                                               
within 10 days.                                                                                                                 
                                                                                                                                
MS.  HALL pointed  out  that given  that the  state  sits on  the                                                               
commission, the  state representative would vote  on the standard                                                               
and thus would  be aware of the situation and  the upcoming vote.                                                               
In response to  questions, she reiterated that  two-thirds of the                                                               
members of the commission must  approve [the standards]; that the                                                               
number of members of the  commission is dependent upon the number                                                               
of states  that join; and that  at least 26 states  must join for                                                               
the commission  to be operational.   She went on to  clarify that                                                               
if 40  percent of  the premium  volume in  the country  joins the                                                               
compact, the commission would be operational.                                                                                   
                                                                                                                                
REPRESENTATIVE ANDERSON,  speaking as  the chair  of the  Labor &                                                               
Workforce  Development  Committee  of   the  NCSL,  informed  the                                                               
committee that the NCSL endorsed  this [compact].  He then turned                                                               
attention  to  page 13,  line  20,  which  outlines the  opt  out                                                               
provision.   The  provision includes  language indicating  that a                                                               
compacting  state  can  opt  out  when  it  determines  that  the                                                               
standard  "does   not  provide  reasonable  protections   to  the                                                               
citizens  of  the State,  given  the  conditions in  the  State".                                                               
Therefore,  Representative Anderson  opined, Alaska  isn't locked                                                               
into anything, and HB 439 is a good step for Alaska.                                                                            
                                                                                                                                
REPRESENTATIVE COGHILL said that he  didn't want to surrender the                                                               
state's  right  to take  care  of  its  consumers.   He  posed  a                                                               
situation in  a which  an insurance  agent/company saw  a problem                                                               
with  the commission,  and  inquired as  to  how the  legislature                                                               
would come to know  about it.  He further inquired  as to how the                                                               
legislature would come to know if  a consumer had a problem.  The                                                               
aforementioned  will   impact  the   language  of   the  proposed                                                               
conceptual  amendment  included  in  the  committee  packet;  the                                                               
proposed conceptual amendment read as follows:                                                                                  
                                                                                                                                
     The state shall  not agree to rules  promulgated by the                                                                    
     commission that  provide for  a materially  lower level                                                                    
     of  protection,   or  materially  lesser   rights  than                                                                    
     provided to Alaska  policyholders and policy applicants                                                                    
     than otherwise provided by Alaska law.                                                                                     
                                                                                                                                
2:34:08 PM                                                                                                                    
                                                                                                                                
JOHN GEORGE, Lobbyist  for the American Council  of Life Insurers                                                               
(ACLI),  said   that  essentially  all  of   the  life  insurance                                                               
companies in the  U.S. are members of the ACLI.   He informed the                                                               
committee  that  the  ACLI requested  that  this  legislation  be                                                               
introduced  because it's  important consumer  legislation and  it                                                               
makes it much easier for  life insurance companies to do business                                                               
and  bring new  products to  market.   As  mentioned earlier,  it                                                               
makes sense for life insurance  to be practically the same across                                                               
the nation.  This [compact]  would allow life insurance companies                                                               
to respond  nationally and get new  products to the market.   Mr.                                                               
George  noted that  the "escape  clauses" were  carefully written                                                               
such  that a  state can  opt out  of a  specific [standard].   He                                                               
further noted that  the life insurance industry  will be policing                                                               
[the  commission]  because  it wants  a  uniformly  high  quality                                                               
standard.  Given that all the  states vote on [the standards], he                                                               
assured the committee that there will be good standards.                                                                        
                                                                                                                                
REPRESENTATIVE GRUENBERG posed a  hypothetical situation in which                                                               
[compact  commissioners] from  around  the country  meet and  are                                                               
"wined and  dined and lobbied  to death" by a  particular company                                                               
that wants  product "X."  He  asked if it would  make it somewhat                                                               
more  difficult for  consumers to  protect themselves  if product                                                               
"X" wasn't good for consumers.                                                                                                  
                                                                                                                                
MR. GEORGE opined that it would  probably be easier today to wine                                                               
and dine  individual state insurance regulators  today and obtain                                                               
low standards  in each  state individually than  it would  to get                                                               
low standards passed through the compact.                                                                                       
                                                                                                                                
REPRESENTATIVE GARA  offered his understanding that  Ms. Hall has                                                               
no objections  to the  proposed conceptual  amendment as  long as                                                               
Legislative Legal and Research Services  makes it work within the                                                               
context of the legislation.                                                                                                     
                                                                                                                                
MR. GEORGE, in response to a  question, said that he doesn't have                                                               
a problem  with the proposed  conceptual amendment so long  as it                                                               
doesn't void  the compact.   He acknowledged that  everyone wants                                                               
good protection for the public.                                                                                                 
                                                                                                                                
2:38:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  COGHILL mentioned  that  he  doesn't want  lesser                                                               
standards  or  less consumer  protection,  and  opined that  it's                                                               
probably good policy  if the language in  the proposed conceptual                                                               
amendment  makes  "them"  come  back  to  the  legislature.    He                                                               
suggested his  understanding that  as it  won't void  the compact                                                               
and proposes  a high hurdle,  he wouldn't object to  the proposed                                                               
conceptual amendment, because he agrees with the concept of it.                                                                 
                                                                                                                                
REPRESENTATIVE  ANDERSON  objected  to  the  proposed  conceptual                                                               
amendment, and stated  that the matter could be  addressed on the                                                               
House floor.   He opined  that there could  be a loophole  in the                                                               
proposed conceptual  amendment wherein someone  could continually                                                               
challenge  and make  the  compact ineffective.    He relayed  his                                                               
preference  to  have  Legislative  Legal  and  Research  Services                                                               
research  the matter  and  provide a  memorandum,  and that  they                                                               
leave any [necessary] amendment for the House floor.                                                                            
                                                                                                                                
REPRESENTATIVE  COGHILL  concurred  and   offered  to  work  with                                                               
Representative Gara on that issue.                                                                                              
                                                                                                                                
CHAIR McGUIRE  posited that typically there's  standard pro forma                                                               
language included in  a compact.  She expressed  concern that the                                                               
proposed  conceptual amendment  is  a bit  vague, and  questioned                                                               
whether  any  difference  in  its  language  from  the  compact's                                                               
language would [void] the compact.                                                                                              
                                                                                                                                
MR. GEORGE suggested that rather  than modifying the compact, the                                                               
regulator could simply be given  instructions to specify when the                                                               
state should opt out of a standard.                                                                                             
                                                                                                                                
REPRESENTATIVE  GARA   clarified  that   is  what  he   meant  to                                                               
accomplish with the proposed conceptual amendment.                                                                              
                                                                                                                                
REPRESENTATIVE  ANDERSON  inquired  as  to whether  it  would  be                                                               
possible to get a memorandum  from Legislative Legal and Research                                                               
Services regarding the appeal process.                                                                                          
                                                                                                                                
REPRESENTATIVE  COGHILL said  he would  rather have  any amending                                                               
language drafted by Legislative Legal and Research Services.                                                                    
                                                                                                                                
REPRESENTATIVE  GARA   announced  that  he  wouldn't   offer  the                                                               
proposed conceptual amendment, and  will work with Representative                                                               
Coghill  on the  legislation.   He  suggested  that perhaps  [the                                                               
commission]   could  be   required   to   send  the   legislature                                                               
notification that a particular standard  has been adopted so that                                                               
the  legislature  would know  that  it  would have  to  introduce                                                               
legislation to address the situation.                                                                                           
                                                                                                                                
CHAIR  McGUIRE  and  REPRESENTATIVE COGHILL  indicated  agreement                                                               
with that suggestion.                                                                                                           
                                                                                                                                
2:44:57 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE,  upon determining no  one else wished  to testify,                                                               
closed public testimony on HB 439.                                                                                              
                                                                                                                                
REPRESENTATIVE  ANDERSON  announced  that  committee  staff  will                                                               
contact  Legislative Legal  and Research  Services to  assess the                                                               
state and  legislature's liability and the  state's attachment to                                                               
the compact.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON moved  to  report CSHB  439(L&C) out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal  notes.   There  being  no  objection, CSHB  439(L&C)  was                                                               
reported from the House Judiciary Standing Committee.                                                                           
                                                                                                                                
HB 442 - HEALTH CARE DECISIONS                                                                                                
                                                                                                                                
2:46:18 PM                                                                                                                    
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be  HOUSE BILL  NO.  442, "An  Act relating  to  the validity  of                                                               
advance   health   care   directives,  individual   health   care                                                               
instructions,  and do  not resuscitate  orders;  relating to  the                                                               
revocation of advance health care  directives; relating to do not                                                               
resuscitate orders; relating  to resuscitative measures; relating                                                               
to  the  liability of  health  care  providers and  institutions;                                                               
relating  to  an individual's  capacity  for  making health  care                                                               
decisions; and  providing for  an effective  date."   [Before the                                                               
committee was CSHB 442(HES).]                                                                                                   
                                                                                                                                
2:46:39 PM                                                                                                                    
                                                                                                                                
JACQUELINE  TUPOU,  Staff   to  Representative  Bruce  Weyhrauch,                                                               
Alaska  State  Legislature,  sponsor,   explained  on  behalf  of                                                               
Representative  Weyhrauch  that HB  442  makes  minor changes  to                                                               
Alaska's  Health Care  Decisions Act,  which was  passed in  2004                                                               
with the goal  of modernizing and improving  Alaska's health care                                                               
laws.    Current  law  imposes   a  duty  of  investigation  upon                                                               
physicians who  are carrying out  the health care  [directives of                                                               
their  patients],  and  HB  442 would  conform  the  language  in                                                               
Alaska's  Act   to  the  language  in   the  Uniform  Health-Care                                                               
Decisions  Act, providing  for the  more appropriate  standard of                                                               
acting [with a good faith belief].                                                                                              
                                                                                                                                
MS.  TUPOU  relayed   that  the  bill  also   replaces  the  term                                                               
"attending   physician"  with   the   term  "physician"   because                                                               
according to the  doctors that the sponsor  contacted, the former                                                               
term is not  used much any more; this will  clarify the sponsor's                                                               
intent  that  all of  a  patient's  physicians should  honor  the                                                               
patient's   healthcare  directives.      Furthermore,  the   bill                                                               
clarifies when  cardiopulmonary resuscitation (CPR) can  be used,                                                               
addresses  the  issue  of  the  validity  of  orders  from  other                                                               
jurisdictions, and  indicates under what circumstances  a "do not                                                               
resuscitate"  (DNR) order  may be  revoked.   In conclusion,  she                                                               
characterized  Alaska's  Health  Care   Decisions  Act  as  being                                                               
immensely  beneficial  in  helping terminally  ill  patients  and                                                               
their families and  loved ones, and HB 442 as  attempting to very                                                               
narrowly address certain issues.                                                                                                
                                                                                                                                
REPRESENTATIVE GARA  referred to  the language  on page  4, lines                                                               
25-26,  and asked  what the  addition of  that language  will do;                                                               
that language read:                                                                                                             
                                                                                                                                
      (C)  because the patient is a woman of childbearing                                                                   
     age and AS 13.52.055 applies;                                                                                          
                                                                                                                                
MS.  TUPOU  offered   her  understanding  that  if   there  is  a                                                               
reasonable  belief that  a woman  could be  pregnant, under  that                                                               
language a physician could perform  resuscitative measures on the                                                               
woman;  this   provision  essentially  addresses  the   issue  of                                                               
liability for a physician who undertakes such measures.                                                                         
                                                                                                                                
REPRESENTATIVE GARA  said he  is supportive of  the bill,  but is                                                               
concerned  about where  the line  is drawn  between having  a DNR                                                               
order and withdrawing nutrition and  other services, and going to                                                               
the  next  step,  which  many  call euthanasia.    He  asked  for                                                               
clarification regarding what  a medical professional may  do if a                                                               
patient asks for help dying.                                                                                                    
                                                                                                                                
MS. TUPOU offered  her understanding that in order  to be granted                                                               
a DNR order,  one must have a qualifying  terminal condition, and                                                               
current  law contains  a definition  of what  would constitute  a                                                               
qualifying terminal condition.                                                                                                  
                                                                                                                                
CHAIR  McGUIRE  offered  her   understanding  of  the  difference                                                               
between  euthanasia and  a  situation that  could  involve a  DNR                                                               
order.                                                                                                                          
                                                                                                                                
MS.  TUPOU,  in  response  to questions  regarding  the  language                                                               
pertaining to  a woman  of childbearing  years, indicated  that a                                                               
physician would  have a  duty to ascertain  whether the  woman is                                                               
pregnant,  and,  if she  is,  regardless  of  what stage  of  her                                                               
pregnancy  she  is   in,  the  physician  would   at  that  point                                                               
administer resuscitative measures.                                                                                              
                                                                                                                                
2:53:59 PM                                                                                                                    
                                                                                                                                
SHELLEY  OWENS,   Health  Program  Manager,  Section   of  Injury                                                               
Prevention  &  Emergency  Medical Services,  Division  of  Public                                                               
Health, Department of Health and  Social Services (DHSS), relayed                                                               
that  she  administers  the  Comfort One  Program  and  would  be                                                               
commenting  on how  Section 5  of  HB 442  will impact  emergency                                                               
medical technicians  (EMTs) and  other emergency  responders, and                                                               
that members'  packets contain  a letter  from section  chief Tim                                                               
Bundy.  She offered her  understanding that members' packets also                                                               
contain an amendment  by the sponsor that is  intended to address                                                               
the DHSS's concerns.  She went on to say:                                                                                       
                                                                                                                                
     The  Comfort One  Program  has been  in  effect for  10                                                                    
     years,  and  it  provides   a  standard  procedure  for                                                                    
     [emergency  medical service  (EMS)] responders  outside                                                                    
     of a  hospital to  identify and honor  the wishes  of a                                                                    
     terminally ill patient not to  be resuscitated when his                                                                    
     or her  heart stops.  In  order to obtain a  DNR order,                                                                    
     ... a patient  must have a terminal condition  or be in                                                                    
     a state  of permanent  unconsciousness.  The  DNR order                                                                    
     must be  signed by a  doctor, and takes effect  only at                                                                    
     the  time of  cardiac  arrest.   If  a  DNR patient  is                                                                    
     choking on a piece of food,  breaks a hip, or gets into                                                                    
     a  car accident,  EMS personnel  will treat  them using                                                                    
     standard medical procedures.                                                                                               
                                                                                                                                
     We're concerned about the use  of the term "health care                                                                    
     provider"  in   Section  5,  ...  and   want  to  thank                                                                    
     Representative Weyhrauch  for preparing  the amendment,                                                                    
     which  would cure  our concerns.    The [term]  "Health                                                                    
     care provider" is defined in  [AS 13.52.390(23)] as "an                                                                    
     individual    licensed,    certified,   or    otherwise                                                                    
     authorized or  permitted by law to  provide health care                                                                    
     in the  ordinary course  of business  or practice  of a                                                                    
     profession".  This term  would include emergency trauma                                                                    
     technicians [ETTs]  who have  only 40 hours  of initial                                                                    
     training  in  advanced  first aid.    Section  5  would                                                                    
     authorize  providers with  limited medical  training to                                                                    
     override  a physician's  DNR order  on the  basis of  a                                                                    
     diagnosis  which  they  are not  medically  trained  to                                                                    
     make.    It wouldn't  be  possible  to train  emergency                                                                    
     providers, such as  an ETT, to diagnose if  a person is                                                                    
     dying of  their terminal  condition or  as a  result of                                                                    
     the action of the health care provider.                                                                                    
                                                                                                                                
     I understand that a concern  of the drafters is that if                                                                    
     a DNR  patient goes into cardiac  arrest during surgery                                                                    
     for  a condition  unrelated to  the patient's  terminal                                                                    
     condition, a  surgeon or  anesthesiologist may  want to                                                                    
     resuscitate  the patient;  however, it's  possible [the                                                                    
     bill  drafters] ...  didn't anticipate  the consequence                                                                    
     to the  pre-hospital medical  providers and  the Alaska                                                                    
     Comfort One  Program.  There  are over  4,000 emergency                                                                    
     medical responders  in Alaska, of which  75 percent are                                                                    
     volunteers; they  have only  seconds to  make immediate                                                                    
     life  and  death  decisions.   They're  the  heart  and                                                                    
     backbone of  our emergency  response system  in Alaska,                                                                    
     but  they aren't  doctors and  shouldn't  be given  the                                                                    
     responsibility  to revoke  a doctor's  DNR  order.   It                                                                    
     wouldn't be fair to either them or the patient.                                                                            
                                                                                                                                
     We  would   urge  you  to  accept   ...  Representative                                                                    
     Weyhrauch's amendment,  and we  would support  the bill                                                                    
     if this amendment is adopted.  Thank you.                                                                                  
                                                                                                                                
2:57:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ANDERSON indicated  a  willingness  to offer  the                                                               
aforementioned   amendment,  labeled   24-LS1618\F.3,  Bannister,                                                               
3/27/06 [later known as Amendment 1], which read:                                                                               
                                                                                                                                
     Page 3, line 10, following "patient.":                                                                                     
          Insert "This subsection does not apply when a                                                                         
     health   care  provider   performs  emergency   medical                                                                    
     services to  a patient in  the field, unless  an online                                                                    
     physician orders  the health  care provider  to perform                                                                    
     cardiopulmonary  resuscitation  or other  resuscitative                                                                    
     measures. In this subsection,                                                                                              
               (1)  "health care provider" does not include                                                                     
     a physician;                                                                                                               
               (2)  "in the field" does not include in a                                                                        
     health   care   facility,  health   care   institution,                                                                    
     hospital, or mental health facility;                                                                                       
               (3)  "online physician" means a physician                                                                        
     who is immediately  available in person or  by radio or                                                                    
     telephone,    when     medically    appropriate,    for                                                                    
     communication  of  medical  direction  to  health  care                                                                    
     providers."                                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  mentioned  that Kenneth  C.  Kirk  had                                                               
written  an article  for the  Alaska Law  Review addressing  [the                                                             
Health Care  Decisions Act]  noting a  number of  deficiencies in                                                               
the Act  and suggesting [improvements].   For  example, according                                                               
to Mr. Kirk,  there is a mis-reference  to "conservatorship" when                                                               
what is actually meant is  "guardianship".  He indicated a desire                                                               
to provide members with a copy of that article.                                                                                 
                                                                                                                                
2:59:32 PM                                                                                                                    
                                                                                                                                
JON  S. DAWSON,  Attorney  at Law,  Davis  Wright Tremaine,  LLP,                                                               
relayed  that  he   represents  Providence  Anchorage  Anesthesia                                                               
Medical Group,  P.C., a group  of anesthesiologists  that provide                                                               
anesthesia services  to [Providence  Alaska Medical Center].   He                                                               
said he wants to emphasize,  "from a real world perspective," the                                                               
importance  of passing  [HB  442].   Doctors  want  to honor  the                                                               
wishes of the patient, comply  with the law, and avoid liability.                                                               
Current  statute  speaks  to  a  requirement  that  doctors  "act                                                               
reasonably";  in  terms  of  advanced  care  directives  and  DNR                                                               
orders,  this  means that  doctors  are  required to  investigate                                                               
whether  an   order  or  directive   is  factually   and  legally                                                               
supportable.  This  is particularly an issue when  an order comes                                                               
from out of  state, and a doctor must determine  whether an order                                                               
or directive  complies with the laws  of the state from  which it                                                               
came; this  isn't possible  from a  practical standpoint,  and so                                                               
doctors are faced with either  performing a procedure against the                                                               
wishes of the  patient, or exposing themselves to  liability.  He                                                               
opined that  [HB 442]  does an excellent  job of  clarifying that                                                               
"good faith" is what is required.                                                                                               
                                                                                                                                
MR.  DAWSON  offered  his understanding  that  [Section  5]  will                                                               
address situations involving someone  with a terminal illness who                                                               
is having  some sort of procedure  done in order to  make his/her                                                               
final  months  more comfortable.    For  example, if  an  elderly                                                               
patient  has  fallen and  broken  a  hip,  it doesn't  mean  that                                                               
doctors shouldn't treat  the broken hip just  because the patient                                                               
is  suffering  from  a  terminal illness.    Under  current  law,                                                               
however,  if  an anesthesiologist  were  to  administer too  much                                                               
anesthesia to  such a  patient during  surgery, for  example, the                                                               
anesthesiologist would not be able  to correct his/her mistake if                                                               
the  patient  has a  DNR  order.    "Presumably people  who  seek                                                               
medical assistance,  even when they  have a DNR order,  want that                                                               
medical assistance  to succeed, and if  there is a mistake  or if                                                               
there is  something else unrelated  to that  [terminal] condition                                                               
that  needs to  be  corrected,  then it  ought  to be  corrected;                                                               
[Amendment 1]  ... permits that  to happen," he  remarked, noting                                                               
that [the  bill] also provides  some additional protection  for a                                                               
physician honoring a DNR order from being sued for malpractice.                                                                 
                                                                                                                                
3:05:19 PM                                                                                                                    
                                                                                                                                
MR. DAWSON,  in response  to a question,  relayed that  he'd only                                                               
read  the parts  of  Mr.  Kirk's article  that  pertained to  his                                                               
clients,  and  noted  that the  article  contains  case  examples                                                               
illustrating  how nationally  recognized cases  would have  fared                                                               
under Alaska's Health Care Decisions Act.                                                                                       
                                                                                                                                
REPRESENTATIVE  COGHILL noted  that  [Amendment 1]  says in  part                                                               
that a  "'health care  provider' does  not include  a physician",                                                               
and asked why that language is included.                                                                                        
                                                                                                                                
MR.  DAWSON  offered  his understanding  that  [Amendment  1]  is                                                               
designed to prevent EMS personnel  from being put in the position                                                               
of having to exercise their  discretion regarding DNR orders, but                                                               
if one is  actually a physician in the field,  then he/she should                                                               
have that discretion.                                                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG asked whether  the bill should contain a                                                               
retroactive  effective   date,  retroactive  to  the   date  that                                                               
Alaska's Health Care Decisions Act was effective.                                                                               
                                                                                                                                
MR. DAWSON opined that such would be appropriate.                                                                               
                                                                                                                                
REPRESENTATIVE  GRUENBERG  remarked  that  when  members  have  a                                                               
chance  to read  Mr.  Kirk's  article, they  may  not want  every                                                               
provision of the bill to be retroactive.                                                                                        
                                                                                                                                
CHAIR  McGUIRE asked  Ms. Tupou  whether the  sponsor has  had an                                                               
opportunity  to   read  Mr.  Kirk's  article   and  whether  he's                                                               
considered including any of Mr. Kirk's suggested changes.                                                                       
                                                                                                                                
MS. TUPOU  relayed that the  sponsor is familiar with  Mr. Kirk's                                                               
article  and  agrees with  some  of  Mr.  Kirk's points  but  not                                                               
others,  and that  the sponsor  would  like to  just address  the                                                               
issues  now   contained  in   the  bill   but  may   give  future                                                               
consideration to the  other points raised in  Mr. Kirk's article;                                                               
therefore,  the  sponsor  would  not be  amenable  to  any  other                                                               
amendments.                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  pointed out,  however, that  Mr. Kirk's                                                               
article addresses technical changes that could be in order.                                                                     
                                                                                                                                
MS. TUPOU reiterated that the sponsor has read that article.                                                                    
                                                                                                                                
The committee took an at-ease from 3:11 p.m. to 3:15 p.m.                                                                       
                                                                                                                                
3:16:04 PM                                                                                                                    
                                                                                                                                
CHAIR  McGUIRE, after  ascertaining that  no one  else wished  to                                                               
testify, closed public testimony on HB 442.                                                                                     
                                                                                                                                
CHAIR McGUIRE made  a motion to adopt Amendment  1 [text provided                                                               
previously].  There being no objection, Amendment 1 was adopted.                                                                
                                                                                                                                
3:16:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  made a motion  to adopt Amendment  2 to                                                               
add  a retroactive  effective  date clause  effective  as of  the                                                               
effective date of Alaska's Health Care Decisions Act.                                                                           
                                                                                                                                
REPRESENTATIVE  KOTT  sought  clarification that  such  a  clause                                                               
would pertain to the whole bill.                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG indicated that that is his intention.                                                                  
                                                                                                                                
CHAIR McGUIRE asked whether there were any objections to                                                                        
Amendment 2.  There being none, Amendment 2 was adopted.                                                                        
                                                                                                                                
3:17:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KOTT  moved to report  CSHB 442(HES),  as amended,                                                               
out  of   committee  with  individual  recommendations   and  the                                                               
accompanying zero  fiscal note.   There being no  objection, CSHB
442(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Judiciary Standing Committee meeting was adjourned at 3:18 p.m.                                                                 

Document Name Date/Time Subjects