Legislature(2017 - 2018)GRUENBERG 120
04/09/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB202 | |
| HB336 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 202 | TELECONFERENCED | |
| + | HB 336 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 9, 2018
2:12 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Jonathan Kreiss-Tomkins, Vice Chair
Representative Louise Stutes
Representative Gabrielle LeDoux
Representative David Eastman
Representative Chuck Kopp
Representative Lora Reinbold
MEMBERS ABSENT
Representative Charisse Millett (alternate)
Representative Tiffany Zulkosky (alternate)
COMMITTEE CALENDAR
SENATE BILL NO. 202
"An Act relating to the liability of a Native corporation for
the release or threatened release of hazardous substances
present on certain lands."
- MOVED HCS SB 202(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 336
"An Act relating to supported decision-making agreements to
provide for decision- making assistance; and amending Rule 402,
Alaska Rules of Evidence."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 202
SHORT TITLE: NATIVE CORP. LIABILITY FOR CONTAMINATION
SPONSOR(s): SENATOR(s) HOFFMAN
02/19/18 (S) READ THE FIRST TIME - REFERRALS
02/19/18 (S) RES, JUD
02/26/18 (S) RES AT 3:30 PM BUTROVICH 205
02/26/18 (S) Moved SB 202 Out of Committee
02/26/18 (S) MINUTE(RES)
02/28/18 (S) RES RPT 4DP 2NR
02/28/18 (S) DP: GIESSEL, BISHOP, COGHILL, VON IMHOF
02/28/18 (S) NR: STEDMAN, MEYER
03/26/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/26/18 (S) Heard & Held
03/26/18 (S) MINUTE(JUD)
03/28/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/28/18 (S) Moved SB 202 Out of Committee
03/28/18 (S) MINUTE(JUD)
03/29/18 (S) JUD RPT 4DP 1NR
03/29/18 (S) DP: COGHILL, WIELECHOWSKI, SHOWER,
COSTELLO
03/29/18 (S) NR: KELLY
04/02/18 (S) TRANSMITTED TO (H)
04/02/18 (S) VERSION: SB 202
04/04/18 (H) READ THE FIRST TIME - REFERRALS
04/04/18 (H) JUD
04/09/18 (H) JUD AT 1:00 PM GRUENBERG 120
BILL: HB 336
SHORT TITLE: SUPPORTIVE DECISION-MAKING AGREEMENTS
SPONSOR(s): REPRESENTATIVE(s) MILLETT
02/07/18 (H) READ THE FIRST TIME - REFERRALS
02/07/18 (H) HSS, JUD
03/01/18 (H) HSS AT 3:00 PM CAPITOL 106
03/01/18 (H) Heard & Held
03/01/18 (H) MINUTE(HSS)
03/08/18 (H) HSS AT 3:00 PM CAPITOL 106
03/08/18 (H) Moved CSHB 336(HSS) Out of Committee
03/08/18 (H) MINUTE(HSS)
03/09/18 (H) HSS RPT CS(HSS) 6DP
03/09/18 (H) DP: JOHNSTON, CLAMAN, EDGMON, SULLIVAN-
LEONARD, KITO, TARR
04/09/18 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
MARIDON BOARIO, Staff
Senator Lyman Hoffman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of SB 202, presented the
legislation.
JOHN HALVERSON, Environmental Program Manager
Contaminated Sites Program
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 202, discussed
Amendment 1 and answered questions.
HANS RODVICK, Staff
Representative Charisse Millett
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 366, presented the
legislation and provided a sectional analysis.
PROFESSOR HELEN GAEBLER
Senior Research Attorney
University of Texas School of Law
Austin, Texas
POSITION STATEMENT: During the hearing of CSHB 336, testified.
ANNE APPLEGATE, Program Coordinator
Governor's Council on Disabilities and Special Education
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 336, testified.
IAN MINER
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 336, testified.
KEN HELANDER, Advocacy Director
American Association of Retired Persons (AARP)
Anchorage, Alaska
POSITION STATEMENT: During the hearing HB 366, testified in
support of the legislation.
HEIDI KELLY
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 336, testified.
ACTION NARRATIVE
2:12:12 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 2:12 p.m. Representatives Claman, Kopp,
LeDoux and Kreiss-Tomkins were present at the call to order.
Representatives Reinbold and Eastman arrived as the meeting was
in progress.
SB 202-NATIVE CORP. LIABILITY FOR CONTAMINATION
2:12:47 PM
CHAIR CLAMAN announced that the first order of business would be
HOUSE CS FOR SENATE BILL NO. 202(JUD), "An Act relating to the
liability of a Native corporation for the release or threatened
release of hazardous substances present on certain lands."
CHAIR CLAMAN reminded the committee that it previously heard HB
67 [companion bill to SB 202] and his plan is to pass SB 202 out
of committee today.
2:13:42 PM
CHAIR CLAMAN moved to adopt Amendment 1, labeled 30-LS1422\A.4,
which read as follows:
Page 1, line 6:
Delete "and (n)"
Delete "exception set out in (i)"
Insert "exceptions [EXCEPTION] set out in (i) and
(n)"
Page 2, line 27, through page 3, line 1:
Delete all material and insert:
"(n) A Native corporation that acquired land
under 43 U.S.C. 1601 et seq. (Alaska Native Claims
Settlement Act) is not liable under this section for a
release or threatened release of a hazardous substance
on the land unless the Native corporation, by an act
or omission, caused or contributed to the release or
threatened release of the hazardous substance."
REPRESENTATIVE STUTES objected for purposes of discussion.
2:14:06 PM
MARIDON BOARIO, Staff, Senator Lyman Hoffman, Alaska State
Legislature, explained that Amendment 1 creates an exception to
strict liability under AS 46.03.822. Under this amendment, she
advised, strict liability does not apply to Native Corporations
for any release or threatened release of a hazardous substance
on land granted under the Alaska Native Claims Settlement Act
(ANCSA) unless the Native Corporation, by an act or omission,
caused or contributed to the release or threatened release. The
amendment also removes the burden of proof from the Native
Corporation, and she added that Senator Hoffman fully supports
Amendment 1.
2:14:51 PM
CHAIR CLAMAN surmised that the intention of Amendment 1 is that
the Senate bill will track the language passed on a recent
federal law within an appropriations bill (Indisc.).
MS. BOARIO responded that Chair Claman was correct because when
this bill was introduced there was pending federal legislation,
which has since passed. When that law was passed, she advised,
it came to light that possibly Alaska's statute was not tracking
as closely as it should have, and this language makes state law
compatible with the federal law.
2:15:52 PM
REPRESENTATIVE EASTMAN offered a scenario of someone finding a
hazardous substance on another person's property and surmised
that under this amendment, if someone goes to that property and
finds "something, in order for them to be liable, we have to
prove that they were to blame for the substance."
MS. BOARIO answered that the burden of proof is on the person
who caused the contamination.
2:16:53 PM
REPRESENTATIVE EASTMAN asked whether the burden of proof is on
the Native Corporation to prove that it did not cause the
problem, or must someone, possibly the government, prove that
they did cause the contamination.
MS. BOARIO replied that Representative Eastman was correct.
2:17:14 PM
REPRESENTATIVE EASTMAN surmised that that scenario would be
different for the Native Corporation than it is for everyone
else because in other property situations the burden of proof
would be on the person to prove that they did not contaminate
the property.
MS. BOARIO deferred to Chair Claman, and said that this is a
specific situation for Alaska Native Corporations on transferred
land.
2:18:10 PM
REPRESENTATIVE KOPP commented that it appears Amendment 1 simply
makes clear that the Native Corporation owned lands were not
conveyed liability in the Alaska Native Settlement Act. In
other words, he explained, as SB 202 currently reads, the onus
is on the Native Corporation to prove it is not liable.
Wherein, under this amendment the Native Corporations are
basically moved to a neutral position, and the assumption is
that the Native Corporations were not conveyed any liability
when lands were conveyed to the Native Corporations.
MS. BOARIO replied that Representative Kopp was correct.
2:19:01 PM
REPRESENTATIVE STUTES withdrew her objection. There being no
objection, Amendment 1 was adopted.
2:19:16 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 2, labeled 30-
LS1422\A/1, which read as follows:
Page 1, line 1:
Delete "Native corporation"
Insert "person"
Page 2, line 24, through page 3, line 2:
Delete all material and insert:
"* Sec. 2. AS 46.03.822(d) is amended to read:
(d) To establish that a person had no reason to
know that the hazardous substance was disposed of on,
in, or at the facility, as provided in (c)(1) and (l)
of this section, or to establish that a person had no
reason to know that the hazardous substance was
present on the land at the time the ownership of the
land was transferred to the person, as provided in (n)
of this section, the person must have undertaken, at
the time of voluntary acquisition, all reasonable
inquiries into the previous ownership and uses of the
property consistent with good commercial or customary
practice in an effort to minimize liability. For
purposes of this subsection a court shall take into
account all relevant facts, including
(1) any specialized knowledge or experience
the person has;
(2) the relationship of the purchase price
to the value of the property if it were
uncontaminated;
(3) commonly known or reasonably
ascertainable information about the property;
(4) the obviousness of the presence or
likely presence of contamination at the property; and
(5) the ability to detect contamination by
appropriate inspection.
* Sec. 3. AS 46.03.822 is amended by adding a new
subsection to read:
(n) In an action to recover damages or costs, a
person otherwise liable under this section for a
release or threatened release of a hazardous substance
on the person's land is relieved from liability under
this section if the person proves that the
(1) person did not know and had no reason
to know that the hazardous substance was present on
the land at the time the ownership of the land was
transferred to the person; and
(2) hazardous substance was present on the
land at the time the ownership of the land was
transferred to the person."
REPRESENTATIVE STUTES objected for purposes of discussion.
2:19:27 PM
REPRESENTATIVE LEDOUX commented that "this is a very good bill,"
except it brings out a problem in Alaska's laws in general.
There is the problem that someone could be a good faith
purchaser or grantee of a property and end up getting stuck on a
strict liability standard for a hazard on the property. She
opined that that situation is not fair, which has been pointed
out in the context of Native Corporations. Amendment 2, she
explained, basically "changes our law, period, so that no good
faith person ends up to be liable." She acknowledged that this
is a huge change in Alaska law and she does not want to impede
this bill because it will help the Native Corporations with its
contaminated lands. Representative LeDoux advised that
Amendment 2 was drafted to shed light on this existing problem
in the Department of Environmental Conservation (DEC) and
environmental law wherein a future legislature may possibly
change this law for everyone. She advised that she withdraws
Amendment 2.
2:21:18 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 3, labeled 30-
LS1422\A.2, which read as follows:
Page 2, line 29, following the first occurrence of
"the":
Insert "(1)"
Page 2, line 31:
Delete "and the"
Insert ";
(2)"
Page 3, line 1, following "granted":
Insert "; and
(3) Native corporation did not have control
of the land at the time the hazardous substance was
disposed of or placed on the land"
REPRESENTATIVE KREISS-TOMKINS objected.
2:21:24 PM
REPRESENTATIVE EASTMAN referred to [SB 202, Sec. 3. AS
46.03.822, page 3, line 1], and explained that Amendment 3 adds
the language after the word "granted." as follows:
(3) Native corporation did not have control
of the land at the time the hazardous substance was
disposed of or placed on the land.
REPRESENTATIVE EASTMAN explained that the language clarifies
that a Native Corporation managed its land prior to the granting
of land, and if the corporation is already responsible for the
land "and there's things being done to it," this would not
inadvertently absolve those responsible parties of their
responsibility to make certain the hazardous substances were
appropriately disposed.
2:22:12 PM
CHAIR CLAMAN asked the sponsor of the bill, in light of the
passage of Amendment 1, whether the sponsor supports Amendment
3.
MS. BOARIO opined that Senator Hoffman would not support
Amendment 3.
2:22:49 PM
CHAIR CLAMAN noted that [within the committee packet] are
letters from Daniel Cheyette, Vice President for Lands and
Natural Resources, Bristol Bay Native Corporation; and Jaeleen
Kookesh, Vice President, General Counsel & Corporate Secretary.
He referred to the last sentence of paragraph 3, of the 4/9/18
letter from the Sealaska Corporation which read as follows
[original punctuation provided]:
Representative Eastman's amendment would be moot if
your amendment is adopted by the Committee and the
legislature.
CHAIR CLAMAN asked Representative Eastman whether the passage of
Amendment 1 moots his motion to adopt Amendment 3.
2:23:33 PM
[CHAIR CLAMAN and Representative Eastman discussed receipt of
the letter and its content.]
CHAIR CLAMAN again asked whether Representative Eastman had an
argument that the passage of Amendment 1 did not moot his motion
for the adoption of Amendment 3.
REPRESENTATIVE EASTMAN commented that it is hard for him to
understand why Amendment 3 is now moot.
2:24:20 PM
CHAIR CLAMAN directed Representative Eastman's attention to the
4/9/18 letter from the Bristol Bay Native Corporation [contained
within the committee packet] and asked that he read paragraph 4
as it explains why Amendment 3 is moot. He requested that
Representative Eastman offer a basis within which Chair Claman
should not rule Amendment 3 out-of-order.
REPRESENTATIVE EASTMAN opined that "this actually gets to the
substance" of the matter and Amendment 3 is important to
discuss.
2:24:59 PM
CHAIR CLAMAN ruled Amendment 3 out-of-order because he agreed
with the analysis provided by the Sealaska Corporation that the
adoption of Amendment 1 takes out the burdens "that you are
actually talking about."
CHAIR CLAMAN advised that even though the committee passed
Amendment 1, it raised a fiscal note issue that John Halverson
of the Department of Environmental Conservation would address.
2:25:44 PM
JOHN HALVERSON, Environmental Program Manager, Contaminated
Sites Program, Department of Environmental Conservation (DEC),
advised that there would likely be a need for a fiscal note with
Amendment 1.
CHAIR CLAMAN requested more clarity as to whether it would be an
increased fiscal note and whether there was a fiscal note
previously.
MR. HALVERSON responded that there was a zero fiscal note
previously and with Amendment 1 there would likely be an
increase in state costs because the burden of proof will have to
fall to the state.
2:26:41 PM
REPRESENTATIVE KOPP asked whether the burden is normally with
the state when it comes to DEC litigated claims on land
transfers that move from the state to private ownership, or is
the burden of proof normally with the person to whom the land
was transferred to, and whether there is a standard that applies
here.
MR. HALVERSON responded that normally it would be through the
parties to the transaction rather than to the state.
2:27:31 PM
REPRESENTATIVE KOPP said (Indisc.) transaction happened to be
the state and the person to whom the land was conveyed to, he
asked whether it would be the state's job to prove the
liability.
MR. HALVERSON answered that the burden would be on the party who
previously owned the property. This case deals with properties
that were under federal ownership and conveyed to the
corporations.
2:28:17 PM
REPRESENTATIVE KREISS-TOMKINS noted that many of these
conveyances are from the federal government to the Native
Corporations under the Alaska Native Claims Settlement Act
(ANCSA), and asked where the State of Alaska and DEC fit into
that equation, and why DEC would have any obligation if this is
a transaction between two parties that are not the State of
Alaska.
MR. HALVERSON opined that if there is a disagreement between the
current landowner and the federal government over responsibility
for contamination on the land, the state would typically look to
those parties to sort it out and it would provide oversight on
any necessary cleanup. Under adopted Amendment 1, the state may
incur some additional expenses in trying to research the history
on when contamination occurred and whether the Native
Corporation had caused or contributed to existing problems at
the site.
CHAIR CLAMAN added that one of the key concepts to recognize in
SB 202, page 1, lines 9-11, read as follows:
damages, for the costs of response, containment,
removal, or remedial action incurred by the state, a
municipality, or a village, and for the additional
costs of a function or service, including
administrative expenses for the incremental costs of
providing the
CHAIR CLAMAN advised the if there is contamination, typically
the state or municipality engages costs and then looks to the
landowner for reimbursement. The above provision essentially
says that if there is an effort by the state to try to recoup
those costs, it would have to be able to show that the Native
Corporation had caused the contamination.
2:30:26 PM
REPRESENTATIVE KOPP stated that this comes down to a fundamental
due process issue because Native Corporations are a corporation,
but they are also Alaskans and have been given land under ANSCA.
Without this amendment, they would be required to wage legal war
with the federal government, who has limitless resources. He
opined that this puts the Native Corporations on a more equal
footing wherein they are not presumed guilty until they prove
otherwise. He said that it introduces a due process protection,
which is "very important."
2:31:11 PM
CHAIR CLAMAN pointed out that no motion had been introduced to
change the committee's action on Amendment 1, and moved on to
committee discussion.
2:31:17 PM
REPRESENTATIVE EASTMAN noted that Amendment 2 was not discussed
because its sponsor withdrew the amendment. He commented that
the sponsors of this bill make a strong point that liability
ought not be placed where it does not belong, and Amendment 2
makes that same point. He said that he looks forward to being
able to support that amendment or other language at the first
opportunity.
2:32:16 PM
REPRESENTATIVE STUTES commented that she is happy to see SB 202
because her district contains some contaminated areas that have
absolutely crippled the Native Corporation from developing the
areas. She opined that possibly with SB 202, it will allow the
Native Corporations some recourse to move forward because in her
area as well, as many other rural areas, housing is a huge
problem and the Native Corporations are unable to develop their
lands for housing due to these types of issues.
2:32:56 PM
CHAIR CLAMAN commented that he is particularly pleased with
Amendment 1 because it puts state law and federal law on the
same path, which is a positive step. Thereby, he advised, the
Native Corporations would not have to look at two different
rules for two different jurisdictions as they move forward.
2:33:18 PM
REPRESENTATIVE KREISS-TOMKINS REPRESENTATIVE moved to report SB
202, labeled 30-LS1422\A, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, SB 202(JUD) passed out of the House
Judiciary Standing Committee.
2:33:41 PM
The committee took an at-ease from 2:33 p.m. to 2:51 p.m.
2:51:01 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 336, "An Act relating to supported decision-
making agreements to provide for decision- making assistance;
and amending Rule 402, Alaska Rules of Evidence."
HB 336-SUPPORTIVE DECISION-MAKING AGREEMENTS
2:51:52 PM
HANS RODVICK, Staff, Representative Charisse Millett, Alaska
State Legislature, advised that HB 336 is known as the
"Supported Decision-Making Agreements Act," (Indisc.). This
legislation basically creates a new legal framework to help
Alaskans with intellectual and developmental disabilities to
live fuller, happier, more individualized, and automatous lives.
He offered that this bill promotes a philosophy grounded in the
principles of equal rights and a belief that all individuals do
possess inherent capacities to make decisions and share opinions
regarding their lives. Working in conjunction with the
Governor's Council on Disabilities and Special Education, this
legislation is brought forward to create a new avenue to help
adults with intellectual and developmental disabilities (IDD)
receive necessary support and help those Alaskans avoid being
placed under full guardianship. Guardianship in Alaska is over-
utilized, he described, because currently there are over 100
wards per public guardian while the national recommendation
caseload is one public guardian for 40 wards. Full guardianship
is selected when there are no other less restrictive options for
individuals who need that support, and in Alaska, there are not
many other options outside of full guardianship. Individuals
with intellectual and developmental disabilities (IDD) many
times are placed under full guardianship even though they may
have the capacity to makes their own decisions. These high
caseload numbers can lead to the potential failure to meet on a
monthly basis as required by state law, and loss of independence
and self-expression and less employment opportunities for those
individuals with disabilities, he said.
2:54:10 PM
MR. RODVICK explained that HB 336 will assist the elderly in
Alaska with IDD issues and retain their inherent right to make
decisions for themselves. Likewise, he related, it will ensure
that the Office of Public Advocacy (OPA) is truly spending its
time helping and assisting those who require full guardianship.
The sponsor believes, he offered, that it is necessary to give
the Alaskans stuck in full guardianship the opportunity for
self-direction and restoring their inherent right to self-
decision making.
2:54:40 PM
REPRESENTATIVE KREISS-TOMKINS moved to adopt CS for HB 336,
labeled 30-LS1239\U, Bannister, 3/29/18 as the working document.
There being no objection, Version U was before the committee.
CHAIR CLAMAN opened invited testimony on CSHB 336.
2:56:24 PM
PROFESSOR HELEN GAEBLER, Senior Research Attorney, University of
Texas School of Law, advised that she is the Senior Research
Attorney for the William Wayne Justice Center for Public
Interest Law at the University of Texas School of Law. She
offered her appreciation for the opportunity to share some of
what they have learned in Texas about supported decision-making
following enactment of its own Supported Decision-Making (SDM)
legislation which went into effect on September 1, 2015. As
previously noted, supported decision-making (SDM) is an
important tool for persons who need some support but not
necessarily a guardianship. In Texas and elsewhere, limited
guardianship is seldom used as a lesser restrictive alternative,
and the SDM law in Texas has allowed for less restrictions on
the self-determination of persons with disabilities, and
provides an alternative that keeps families without resources
out of court. Her experience with SDM, she explained, stems
from work with her colleague, Lucy Wood who is a former
disability rights Texas attorney, and their law school's pro
bono program. Professor Gaebler then discussed the work they
have been able to accomplish that includes: SDM pro bono clinics
in and around Austin, including clinic each year at the Texas
School for the Blind and Visually Impaired, and in the Rio
Grande Valley; partnered with approximately 20 school districts;
counseled more than 360 clients and their families; facilitated
at least 78 Supported Decision-Making (SDM) agreements; provided
information about SDM and the Texas legal requirements around
guardianship alternatives for many more individuals and
families.
2:58:32 PM
PROFESSOR HELEN GAEBLER advised that for purposes of this
hearing, she attempted to gather additional information from
other legal providers and advocates. Specifically, she said,
she reached out to Disability Rights of Texas, Texas Rio Grande
Legal Aid, and the guardianship reform supported decision-making
stakeholder groups which first spearheaded the SDM movement in
Texas. As of this afternoon, she advised that she received the
following information: Disability Rights of Texas reports having
served an additional 158 clients and almost all having signed
SDM agreements as a result of meeting with the "RTX." The RTX
also performs much of the state's training pursuant to a Texas
Council on Developmental Disabilities Training Grant, and within
the first two years of that grant, the RTX reports having
trained almost 6,000 individuals on Supported Decision-Making
(SDM) and the Texas legal requirements. The training was for
self-advocates and families, legal professionals, schools,
parents, service providers, and other professionals. For its
part, she explained, Texas Rio Grande Legal Aid estimates it has
assisted approximately 100 individuals with SDM agreements and
most of these clients were transitioning use and it involved
families who were combining SDM agreements with other forms of
legal support, such as limited powers of attorney. Its lead
trial attorney advised that she has seen more and more
applicants specifically seeking SDMs and the power of attorneys
as opposed to guardianship, noting that the SDM reforms appear
to have done a lot to educate the larger population about
guardianship alternatives more generally.
3:00:17 PM
PROFESSOR HELEN GAEBLER said she would point out three trends
that have been quite consistent across all of these cases.
First, overwhelmingly the population Texas is serving is one of
transitioning use who are in or have recently graduated from a
transitional learning program. Second, the majority of clients
served, certainly through the law school, are individuals who
are on the autism spectrum, although many also may have a co-
occurring secondary diagnosis. Third, almost all of the law
school's clients have chosen their parents or other family
members to serve as their supporters, and she said that she
believes this is also the case for the RTX and (indisc.)
clients. Importantly, she commented, the feedback on these
agreements has been universally positive, the law school has not
received any complaints regarding use or misuse of the SDM
agreements, and a professor at Rio Grande Legal knows of only
two incidents from all of its client contacts and other outreach
where an agreement was not accepted by a third party. In at
least one of those cases and possibly both, the refusal to
accept was due to a lack of awareness about the SDM law in Texas
and not due to any substantive concern. In the case of
(indisc.) clients, the lead probate attorney reported that most
of the third parties she has been involved with have been happy
to have something "official" to rely upon in dealing with their
individual disability and their family. As to the challenges in
implementation, she offered, the one recurring comment has been
the challenge of educating the public about the statute and the
alternatives to guardianship more generally. Even with the
RTX's extensive training and programs like the law school's
clinics, it is slow work (coughing) all of Texas. (Audio
difficulties.) The comment she received from (indisc.) today
was that when families hear about SDM agreements, they "sigh
with relief" and are happy with the idea of not taking their
child's rights away. The consensus is that this helps families
in a meaningful manner, and she offered that this comment
certainly comports with the experience they have had at the law
school with clients. It is exciting that Alaska is
contemplating a SDM statute and, she reiterated that the
experiences in Texas have been positive and it continues to push
for implementation.
3:02:59 PM
MR. RODVICK paraphrased the sectional analysis as follows
[original punctuation provided]:
Section One: Amending AS 13, which related to
decedents' estates, guardianships, transfers, trusts
and health care decisions, by adding a new chapter
chapter 56
13.56.010: Authorizes adults to enter into a
supported decision-making agreement(SDMA) and spells
out reasons why an adult may not enter a SDMA.
13.56.020: Describes the requirements adults must
meet to be qualified as supporters in SDMAs.
13.56.030: Sets the parameters for what a SDMA
must contain to be legitimate. Also deals with
alternate supporters and sharing of information
amongst supporters.
13.56.040: This section lays out the precise
requirements for a SDMA to be valid, and how the
principal and supporter(s) may formalize the signing
of the SDMA.
13.56.050: Mandates that each supporter
acknowledge their relationship with the principal and
their responsibilities to support the principal.
13.56.060: Delineates who a witness to the
signing of the SDMA can and cannot be.
13.56.070: Clarifies when a SDMA becomes
effective and how long they last.
13.56.080: This section details how either a
principal or supporter(s) of a SDMA may terminate all
or portions of a SDMA. Likewise, explains what happens
to a SDMA if only portions of it are terminated.
13.56.090: States the general duties of
supporters.
13.56.100: Outlines the areas of a principal's
life, including health, finances, education and
communication, that a supporter may provide support
in. Also provides a way for supporters to help the
principal deal with health information covered under
federal healthcare privacy laws.
13.56.110: Prohibits supporters from wrongfully
guiding and influencing the principal in a harmful
manner. This section also prohibits supporters from
using or obtaining the principal's personal
information without their consent.
13.56.120: Requires the supporter(s) of a
principal to keep all information related to the
principal confidential, protected and shielded from
unauthorized use.
13.56.130: Directs people who interact with
principals/supporter(s) to recognize the
communication, requests and decisions made by the
principal (with support from the supporter(s)) as if
that communication, request or decision was made
solely by the principal.
13.56.140: This section absolves a person (for
three distinct reasons) from civil or criminal
liability or discipline for unprofessional conduct if
they either comply or decline to comply with an
authorization in a SDMA.
13.56.150: Delineates the circumstances in which
a principal is capable and has capacity. A principal
doesn't lack capacity based on how they communicate.
Likewise, a principal may make decisions without the
support of a supporter(s). Lastly, the existence of a
SDMA doesn't mean a principal lacks capacity.
13.56.160: Deals entirely with the affairs of a
principal that a SDMA may cover. Work, healthcare,
support services education, finances, living
arrangements and more are all discussed.
13.56.170: This section spells out the multitude
of support services, as referenced in 13.56.160, that
supporter may provide the principal as agreed upon in
the SDMA.
New Section: 13.56.180: This section creates a
statutory form for supported decision-making
agreements as prescribed in the other sections of HB
336.
1) Introduction: Principal declares their desire
to enter a SDMA.
2) Supporters: Supporters fill out their
information and select what they will be helping the
principal with. Provides for an alternate supporter to
enter the SDMA.
3) Information Access Forms: Enables supporters
to obtain the principal's private information.
4) Guardians and Conservators: Principal must
declare whether they have a guardian or conservator.
5) Notice to Third Parties: Outlines the rights
and obligations of supporters and ensures that a third
party must recognize a principal's request or decision
as declared under AS 13.56.130.
6) Duration and Termination of Agreement:
Principals may end the agreement at any time by giving
notice to their supporters.
7) Signature of Principal: Recognition of
voluntary signature of the principal to enter the SDMA
8) Signatures of Supporters: Self explanatory
9) Declaration of Supporters: Supporters and
possible alternate supporter sign again and
acknowledge their role to help the principal with the
mutually agreed upon terms.
10) Notarization or Witnessing: Provides area for
notary or two witnesses to sign and make the SDMA
official.
11) Approval by Guardian: Space for the guardian
to approve the principal entering the SDMA.
12) Approval by Conservator: Space for a
conservator to approve the principal entering the
SDMA.
13.56.190: Definitions
13.56.195: The short title of House Bill 336 is the
Supported Decision-Making Agreements Act.
Section 2: Amends Alaska Court Rule 402, Alaska Rules
of Evidence, to clarify that the execution of a SDMA
cannot be used as evidence of a principal's
incapacity.
Section 3: Amends the uncodified law of Alaska by
amending Court Rule 402 and clarifies the two-thirds
majority vote of each house needed to achieve such
action.
3:09:05 PM
REPRESENTATIVE KOPP asked whether it is the intent of this
legislation to have a non-governmental private party support
persons regardless of the age of the adult. While noting that
this legislation is for adults, he said he could imagine an 18-
year old with certain disabilities to end of life situations to
have something outside of the standard guardian relationship.
It appears that no money is involved in this legislation, and it
is simply an agreement, he opined.
MR. RODVICK said that Representative Kopp "hit the nail on the
head," because the point of supported decision-making agreements
is that they are non-governmental agreements between private
citizens. Under this legislation there are no extraneous
regulations created, there is a zero-fiscal note, and the
sponsor was able to "smooth things out" with the Department of
Health and Social Services (DHSS). The goal is to ensure that
these individuals have support networks of their family, their
friends, and individuals they know, to help them throughout
their life whether it be dealing with their taxes or otherwise.
3:10:56 PM
REPRESENTATIVE EASTMAN commented that most of the public does
not know what these supported decision-making agreements are,
and if someone from the public were to ask whether it could be
used to help someone end their life, he asked how Mr. Rodvick
would respond.
MR. RODVICK responded that the legislation does not presume that
individuals will be using supported decision-making agreements
to terminate their lives, its intent is to help people make
decisions to promote and ensure that they have positive lives
and positive outcomes. He referred to CSHB 366, Sec.
13.56.140(3) "Limitation of liability," page 3, lines 12-18,
which read as follows:
(3) declining to comply with an
authorization related to health care in a supported
decision-making agreement, if the person is declining
because the action proposed to be taken under the
supported decision-making agreement is contrary to the
good faith medical judgment of the person or to a
written policy of a health care institution that is
based on reasons of conscience.
MR. RODVICK explained that if the doctor has the good conscience
and the written policy of a health care institution that does
not believe in terminating life before its natural end, they can
certainly object. He opined that Alaska has not gone down the
road of permitting [end of life efforts].
3:12:58 PM
REPRESENTATIVE EASTMAN offered a scenario of a series of people
who all want to be involved in helping someone end their life
and they decide to use this process to pursue that goal, he
asked whether anything in the bill would prohibit those actions.
MR. RODVICK deferred to Anne Applegate of the Governor's Council
on Disabilities and Special Education, and opined that the
protections currently outlined in law would protect people from
going down that road and it is not currently under the purview
of the legislation.
3:14:07 PM
REPRESENTATIVE LEDOUX opined that under current Alaska law
assisting someone with suicide is a crime and suicide itself is
considered a crime.
REPRESENTATIVE KOPP clarified (Indisc.) would already be a crime
so anyone assisting someone in terminating their life would be
in trouble, and this bill is neutral on that issue, it does not
facilitate suicide.
3:15:16 PM
CHAIR CLAMAN opened public testimony on HB 366.
3:16:00 PM
ANNE APPLEGATE, Program Coordinator, Governor's Council on
Disabilities and Special Education, explained that the
Governor's Council on Disabilities and Special Education is the
inner-agency coordinating council for the infant learning
program, and is also the special education and (Indisc.) panel
for the Department of Education and learning development. The
council's members are the real movers behind HB 336, and the
majority of its members are those who experience disabilities or
are the family members of people with disabilities. It is their
commitment to SDMAs that brought HB 336 to the House Judiciary
Standing Committee, and continues to be the compelling force
behind this legislation. Ms. Applegate, in response to
Representative Eastman's concern, advised that the section that
dictates what type of decision-making assistance can be made is
under AS 13.56.100. Beyond looking at the specific language in
each of those subsections which provides detailed types of
support, the theme running through those subsections is about
providing assistance for a thought process, not for any type of
action. Therefore, she pointed out, in the event the discussion
was about something that was a legal action, there would not be
that type of assistance from someone supporting a thought
process.
3:18:29 PM
IAN MINER advised he is representing himself, and when he turned
18, his high school recommended that his parents obtain
guardianship in order to make his decisions as to his education,
medical entities, and finances. (Audio difficulties) 10-minute
hearing with the judge and that his parents/guardians could not
make decisions without discussing it with him first. His
parents have always helped him with his goals, he moved into his
own home, has a full-time job, and a car. He advised that when
he turned 23, his family hired a lawyer and began the two-year
process of having the order removed. (Indisc.) power of
attorney for his finances, and Supported Decision-Making
Agreements were not even an idea in Alaska when he turned 18.
In the event it had been an option, that is probably the road
they would have taken so he could have described the help and
information he wanted with the financial decisions that made him
secure. He also would have retained his rights. He
acknowledged that he does not know how his life would have been
different, but he now knows that he did not need a full
guardianship.
3:20:42 PM
KEN HELANDER, Advocacy Director, American Association of Retired
Persons (AARP), explained that the American Association of
Retired Persons Alaska is the state's largest member
organization. He related that he has the privilege of working
with the American Bar Association's Working Interdisciplinary
Networks of Guardianship Stakeholders (WINGS) project, which
looks for alternatives to court appointed guardianship. While
SDMAs are more and more common for people with developmental
disabilities, the concept is also increasingly recognized as a
useful tool for older people and advanced planning. He stressed
that AARP fully supports SDMAs and was involved in the other
states, notably Texas and Delaware, where similar legislation
was passed and implemented. The AARP works with stakeholder
groups for the assistance and development of tools to guide
named supporters in their roles and offer families and affected
individuals a framework tailored for the types of problems older
people can face that could lead to the need for a guardian. He
related that AARP Alaska will certainly do the same for this
state. He said SDMA are particularly useful for people with a
diagnosis of early stage dementia, such as Alzheimer's Disease.
These individuals have enough impairment to make a diagnosis,
but also have sufficient capacity to continue to make most of
their decisions. Nevertheless, whether by such a diagnosis or
simply by age, often these individuals become invisible to
medical providers, banks, and even family members and friends.
He offered that people will often direct conversations to the
spouse or to an adult child as though the older person was not
present and could not possibly understand anyway. Not only is
this a gross misunderstanding of the disease, it denies the
older person the dignity and respect of self-determination and
making choices. The SDMA utilizes the practice familiar to
everyone seeking council from trusted family, friends, and
professionals. The SDMAs simply structure that practice into a
legal framework which can guide decisions that must be made when
the older person's capacity may diminish as the disease
progresses. Rather than becoming invisible and ignored, SDMAs
keep the affected individual at the center of the decision-
making process. He encouraged the passage of HB 336 as a useful
tool for advanced planning.
3:23:34 PM
HEIDI KELLY advised that she represents herself as a self-
advocate for the Governor's Council on Disabilities and Special
Education. She stressed that she is honored to voice how this
legislature's actions directly affect Alaskans with
disabilities, including her and her son. Their lives are
impacted by the decisions of this legislature, and she offered
testimony as follows:
You cannot wait another second to pass this bill into
law. To understand my passion for testifying today,
my son, my daughter, and I are all on the autism
spectrum. Autism doesn't define who I am or who I
continue to become (Audio difficulties.) I am a part
of the Council appointed to use my voice for the
Governor's Council on Disabilities and Special
Education. I am an autistic speaker advocate
(indisc.) professionals and different community
members at many venues throughout Alaska with the help
of people expanding me to become a national speaker.
I have an autism-based business and have accomplished
many other things, and I hope to simply inspire
others. People never thought it would be possible
since I was the typical autistic kid that people
assume autism is all about. But I have grown up, I
learn along the way, and I continue to make a
difference. This is to simply show that if people
decided to take full guardianship of me, and not
(indisc.) my side support and teach me to use my voice
to make my own decisions with proper education, I
would not be who I am today. Full guardianship takes
away your voice when you have one to use. When my son
turned 17, I was structured to become his guardian.
Full guardianship does not work for my family, but a
Supported Decision-Making Agreement allows us to have
a voice of our own lives, yet receive all of the
information and support we need to make proper
decisions for ourselves and live our lives to the
fullest, and what would be the best route for us.
Being who I am, what I've gone through, and knowing
what my son can become, I will not take his voice
away. If any person with disabilities has any form of
communication, they should not have a court system or
a family member take their voice away from them. We
deserve a community that helps us do everything
possible to achieve our very best. Because people
allowed me to make my own decisions and give me help
with what I need, I'm here today to make a difference
because people came along my side to help me to do
that. Passing this bill is a must to help Alaskans
with disabilities have better lives. When you do what
you need to do today, you help all of us become the
best we can be. (Audio difficulties) logical part of
autism, it is still logical to use the power you have
to do the job you signed up for, which is to make a
difference for the Alaskan people. So, I thank you
ahead of time from me and many others when you move
forward with this bill. Don't wait another second or
push this off one more minute because the most
important decision you make starts right now. Thank
you.
3:27:17 PM
CHAIR CLAMAN, after ascertaining no one wished to testify,
closed public testimony on HB 336.
3:27:28 PM
CHAIR CLAMAN asked Mr. Rodvick whether the Commission on Uniform
Laws has taken a position or performed any work on this
particular concept.
MR. RODVICK responded that he did not believe so, but his office
has not heard from the Commission on Uniform Laws.
CHAIR CLAMAN noted that the Commission on Uniform Laws typically
does not perform outreach and may not contact his office. He
asked that prior to the next hearing to research whether this a
particular subject within which the commission has performed
work because it is always interesting to see whether there is
any evolving consensus that would be reflected in model
legislation.
3:27:59 PM
REPRESENTATIVE KOPP asked Chair Claman to explain to Mr. Rodvick
the types of directives involved with the Commission on Uniform
Laws.
CHAIR CLAMAN advised that he would speak with Mr. Rodvick after
this meeting.
[HB 336 was held over.]
3:29:50 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:30 p.m.