Legislature(2001 - 2002)
04/17/2002 03:25 PM House L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE LABOR AND COMMERCE STANDING COMMITTEE
April 17, 2002
3:25 p.m.
MEMBERS PRESENT
Representative Lisa Murkowski, Chair
Representative Andrew Halcro, Vice Chair
Representative Kevin Meyer
Representative Norman Rokeberg
Representative Harry Crawford
Representative Joe Hayes
MEMBERS ABSENT
Representative Pete Kott
COMMITTEE CALENDAR
HOUSE BILL NO. 505
"An Act defining the term 'mental health professional' for the
purpose of statutes relating to the evaluation of prisoners who
may need psychological or psychiatric treatment, for the purpose
of statutes relating to the evaluation of children in need of
aid and delinquent minors who may need to be confined in a
secure residential psychiatric treatment center or who should be
released from such a center, for the purpose of statutes
requiring certain professionals to report the possibility that a
vulnerable adult has been abused or neglected, and for the
purpose of statutes relating to mental health civil
commitments."
- MOVED CSHB 505(L&C) OUT OF COMMITTEE
HOUSE BILL NO. 460
"An Act relating to actions for monopolies and restraint of
trade, including proof of damages; amending Rule 82, Alaska
Rules of Civil Procedure; and providing for an effective date."
- MOVED HB 460 OUT OF COMMITTEE
CS FOR SENATE BILL NO. 270(L&C)
"An Act extending the termination date of the Board of
Dispensing Opticians; relating to the regulation of dispensing
opticians; and providing
for an effective date."
- BILL HEARING POSTPONED
PREVIOUS ACTION
BILL: HB 505
SHORT TITLE:MENTAL HEALTH PROFESSIONALS
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES
Jrn-Date Jrn-Page Action
03/15/02 2548 (H) READ THE FIRST TIME -
REFERRALS
03/15/02 2548 (H) L&C, HES
04/17/02 (H) L&C AT 3:15 PM CAPITOL 17
BILL: HB 460
SHORT TITLE:ANTITRUST CIVIL COURT ACTIONS
SPONSOR(S): REPRESENTATIVE(S)CROFT
Jrn-Date Jrn-Page Action
02/19/02 2312 (H) READ THE FIRST TIME -
REFERRALS
02/19/02 2312 (H) L&C, JUD
04/17/02 (H) L&C AT 3:15 PM CAPITOL 17
WITNESS REGISTER
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Testified on behalf of the sponsor of HB
505, the House Health, Education and Social Services Standing
Committee.
WALTER MAJOROS, Director
Division of Mental Health & Developmental Disabilities
Department of Health & Social Services
PO Box 110620
Juneau, Alaska 99811-0620
POSITION STATEMENT: Testified that the State Psychiatric
Association is in support of HB 505.
SHARON BULLOCK, Licensed Clinical Social Worker;
Clinical Director, Fairbanks Community Mental Health Center
(No address provided)
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of [CSHB 505, Version
C].
WAYNE McCOLLUM, Licensed Clinical Social Worker
(No address provided)
POSITION STATEMENT: Testified in support of [CSHB 505, Version
C].
CATHERINE REARDON, Director
Division of Occupational Licensing
Department of Community & Economic Development
PO Box 110806
Juneau, Alaska 99811-0806
POSITION STATEMENT: Answered questions with regard to [CSHB
505, Version C].
REPRESENTATIVE ERIC CROFT
Alaska State Legislature
Capitol Building, Room 400
Juneau, Alaska 99801
POSITION STATEMENT: Testified as the sponsor of HB 460.
ED SNIFFEN, Assistant Attorney General
Fair Business Practices Section
Civil Division (Anchorage)
Department of Law
1031 W 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
POSITION STATEMENT: Explained the need for HB 460.
STEVEN CONN, Executive Director
Alaska Public Interest Research Group
PO Box 10-1093
Anchorage, Alaska 99510
POSITION STATEMENT: Testified in support of HB 460.
ACTION NARRATIVE
TAPE 02-59, SIDE A
Number 0001
CHAIR LISA MURKOWSKI called the House Labor and Commerce
Standing Committee meeting to order at 3:25 p.m.
Representatives Murkowski, Meyer, Rokeberg, and Crawford were
present at the call to order. Representatives Halcro and Hayes
arrived as the meeting was in progress.
HB 505-MENTAL HEALTH PROFESSIONALS
CHAIR MURKOWSKI announced that the first order of business would
be HOUSE BILL NO. 505, "An Act defining the term 'mental health
professional' for the purpose of statutes relating to the
evaluation of prisoners who may need psychological or
psychiatric treatment, for the purpose of statutes relating to
the evaluation of children in need of aid and delinquent minors
who may need to be confined in a secure residential psychiatric
treatment center or who should be released from such a center,
for the purpose of statutes requiring certain professionals to
report the possibility that a vulnerable adult has been abused
or neglected, and for the purpose of statutes relating to mental
health civil commitments."
Number 0084
REPRESENTATIVE MEYER moved to adopt CSHB 505, Version 22-
LS1631\C, Lauterbach, 4/17/02, as the working document. There
being no objection, Version C was before the committee.
Number 0100
REPRESENTATIVE FRED DYSON, Alaska State Legislature, testified
on behalf of the sponsor of HB 505, the House Health, Education
and Social Services Standing Committee. He noted that the
Senate's companion bill, SB 302, passed out of the Senate today.
He also noted that this legislation was [introduced] at the
request of the administration. Representative Dyson explained
that this legislation places current practice into law and
expands the definition of a "mental health professional." When
the original laws were enacted, several categories [of mental
health professionals] weren't contemplated or active in Alaska.
The definition of "mental health professional" in the
legislation includes licensed marital and family therapists and
licensed professional counselors, licensed clinical social
workers, and an individual in the process of qualifying for [one
of the listed professions]. This legislation increases the
number of licensed master's level professionals who will be able
to evaluate prisoners for psychological or psychiatric treatment
and minors needing to be confined or released from residential
treatment. This legislation also increases the folks required
to report incidences of harm and authorizes [those listed under
the mental health professional definition] to perform civil
commitments. Representative Dyson remarked that this is
particularly valuable in those areas outside urban centers.
CHAIR MURKOWSKI asked if the Alaska State Medical Board is
supportive of this legislation.
REPRESENTATIVE DYSON said that is his understanding.
Number 0314
WALTER MAJOROS, Director, Division of Mental Health &
Developmental Disabilities, Department of Health & Social
Services, related his belief that the State Psychiatric
Association is in support of HB 505. He said he would have to
check with his staff in regard to whether the medical board has
weighed in on this legislation. In response to Representative
Rokeberg, Mr. Majoros clarified that an LPC is a licensed
professional counselor. In further response to Representative
Rokeberg, Mr. Majoros related that the psychologists and
psychological associates are under a common board while the
social workers, marriage and family therapists, and professional
counselors are under separate boards. However, there is sunset
legislation before the legislature for one of the boards and
[that legislation] has a requirement or legislative intent that
the boards review combining.
CHAIR MURKOWSKI reminded the committee that it had adopted a
letter of intent [to the legislation dealing with the extension
of the Board of Licensed Professional Counselor]. That letter
of intent was based on the auditor's suggestion that the three
aforementioned boards be combined. Although the legislation has
passed the Senate, the Senate didn't adopt a similar letter of
intent.
Number 0524
REPRESENTATIVE ROKEBERG directed attention to page 2 of Version
C and inquired as to the intent behind including subparagraphs
(A)-(D). He highlighted the language in subparagraph (C) and
noted his assumption that the individual would have to have
qualified for a particular specialty.
MR. MAJOROS answered that the intent of subparagraphs (A)-(D) is
to expand the group of people that would be considered mental
health professionals who could do things such as preliminary
evaluations for civil commitments. There are multiple
requirements in order to maintain fairly rigorous requirements.
REPRESENTATIVE ROKEBERG questioned why subparagraphs (A), (B),
and (D) are necessary if subparagraph (C) requires the
individual to submit an application to become a licensed
practitioner under one of the boards listed.
MR. MAJOROS responded that although those subparagraphs may
overlap, all the subparagraphs together help keep any loopholes
closed. With only subparagraph (C), there would be the
possibility of allowing an unqualified individual.
REPRESENTATIVE ROKEBERG remarked that it seems that an
individual who can qualify for a board would be able to meet the
board's requirements.
MR. MAJOROS pointed out that when an individual submits an
application and pays a fee that doesn't mean that the individual
is qualified. Whether the individual is qualified is a separate
determination that should be made by the board.
REPRESENTATIVE ROKEBERG related his understanding that this
legislation attempts to expand the pool and, to a degree, lower
the standards. He said he didn't understand why an individual
would apply to a board when the individual couldn't qualify to
be accepted by the board unless that's a step in becoming fully
accredited.
Number 0871
CHAIR MURKOWSKI clarified that the pool [of mental health
professionals] is being expanded. In addition to those on the
boards, [a mental health professional] can be a person who holds
a master's degree in mental health, with 12 months of post-
masters work, and has submitted an application to the board and
worked under the supervision of a licensed individual. She
characterized it as an apprenticeship type of approach.
MR. MAJOROS noted his agreement.
CHAIR MURKOWSKI pointed out that once an individual has been a
member of a board, then the individual wouldn't have to work
under the supervision of another LPC.
REPRESENTATIVE ROKEBERG questioned why one would apply to a
board if the individual didn't meet the requirements or hadn't
passed the exam.
MR. MAJOROS informed the committee that the application [to the
board] must include the school attended, whether the courses
matched those required under the licensing law, and whether the
supervision arrangement is acceptable to the board. Therefore,
the individual would apply before being fully qualified. In
further response to Representative Rokeberg, Mr. Majoros said
that this is a standard practice for boards.
Number 1086
REPRESENTATIVE DYSON said that he wouldn't refer to this as an
apprenticeship situation because these people have done the
training and have a year of working in the field, have submitted
their paperwork, and are in the process of obtaining the license
recognized in Alaska as well as working under a licensed
supervisor. The department wants to expand the pool of folks
who can do this work [especially] in areas [that lack these type
of professionals].
MR. MAJOROS echoed Representative Dyson's earlier comment that
this [lack of mental health professionals] isn't of particular
concern in urban areas that typically have an abundance of fully
licensed mental health professionals. However, it's very
difficult to get [fully licensed mental health professionals] to
work in rural community mental health centers. Therefore,
without a provision such as this [suggested in HB 505] there
won't be enough qualified mental health professionals to do
preliminary evaluations in rural areas. This is an issue of
basic safety.
Number 1225
CHAIR MURKOWSKI directed attention to subparagraph (D) and asked
how "supervision" would be defined.
MR. MAJOROS related his understanding that "supervision" refers
to supervision that's accepted by the licensing body.
Therefore, when an individual submits an application form, the
form would specify the supervisor and the supervisor
consultation relationship. He noted his belief that there is
precedent for having an off-site supervisor, particularly in
rural areas.
CHAIR MURKOWSKI remarked that she wasn't sure that the language
clearly imparts the aforementioned explanation.
REPRESENTATIVE CRAWFORD informed the committee that his wife is
a licensed clinical social worker and during her supervisory
period she had to report to her supervisor once a week although
the supervisor wasn't on-site. Representative Crawford inquired
as to who requested that individuals who aren't [fully]
qualified be allowed [to practice].
REPRESENTATIVE DYSON said the [Department of Health & Social
Services] made the request. Representative Dyson mentioned that
his wife is a licensed clinical psychologist who had to maintain
detailed case notes that she reviewed with her supervisor during
the supervisory period of practice. Representative Dyson
related his sense that most of those practicing in [these
fields] are quite professional and [take their responsibility to
act or not act] very seriously. He pointed out that many areas
in rural Alaska are doing "work arounds." For example, the
police want the perpetrator to do something that crosses the
line to an illegal activity so that the individual can be
arrested and placed in a safe place in order to keep the
individual from hurting himself or someone else. Without a
licensed mental health professional available to [commit these
individuals], these "work arounds" are done in order to get the
individual into custody and transported to a town with a [mental
health] professional. He predicted that this [legislation]
would be abused very few times.
Number 1490
MR. MAJOROS continued to address Representative Crawford's
concern with regard to the experience of these individuals. He
informed the committee that the individual's performing these
preliminary evaluations are employees of community mental health
centers. Although these individuals have one year of
experience, every day they are involved in crisis situations.
In fact, over a year's time these individuals have built up
quite a bit of experience with mental health and substance abuse
crisis. These preliminary evaluations review fundamental areas
such as whether the individual has a mental illness, is suicidal
or homicidal or greatly disabled. Furthermore, every time a
community mental health professional makes the preliminary
determination, it is done in consultation with a practicing
psychiatrist before going to a judge.
REPRESENTATIVE DYSON said that the qualifications aren't being
lowered, these are the qualifications that people have been
practicing for years and thus [this legislation] would merely
place it in law.
Number 1545
REPRESENTATIVE ROKEBERG expressed concern that this legislation
doesn't mesh with the other occupational licenses and boards.
He reviewed the requirements for licensed social workers, which
specifies that the individual must have either a master's or a
doctorate within a 10-year period before application for
licensure and under the supervision of a licensed clinical
worker [and] either a minimum of two years of continuous full-
time employment in a post-graduate clinical social worker or a
minimum of 3,000 hours of less than full-time employment in a
period not less than two years of post-graduate. He highlighted
that the social worker requirements specify that the degree must
be obtained before making an application for licensure, which is
the case for licensed family and marital therapists.
Representative Rokeberg announced his support of the
legislation, although [this seems to be inconsistent].
CHAIR MURKOWSKI related her understanding that LPCs can't submit
an application form until a certain number of hours towards a
degree is completed. Chair Murkowski said she understood the
[statute] to mean that so long as an individual is working under
the supervision of someone who has met the requirements and the
application is pending while the additional hours are being
gained toward the LPC board certification [they would qualify as
a mental health professional under this legislation]. Chair
Murkowski asked if the Division of Occupational Licensing has
reviewed this legislation to determine there isn't any conflict
for the existing requirements for the boards.
MR. MAJOROS answered with his understanding that the
department's staff person has coordinated extensively with the
Division of Occupational Licensing and there hasn't been any
word of impediments or inconsistencies.
Number 1912
SHARON BULLOCK, Licensed Clinical Social Worker; Clinical
Director, Fairbanks Community Mental Health Center, testified
via teleconference. Ms. Bullock announced her support of [CSHB
505, Version C], particularly the portion regarding individuals
with a master's degree. She pointed out that generally a
master's program includes an interim during which the individual
is under the supervision of some agency. Once the master's
degree is obtained, the individual can apply for positions. Ms.
Bullock explained that she supports this legislation because the
current statutes only allow three master's level professionals,
the psychological associates, psychiatric nurses, and an
individual with a master's of social work (MSW) to perform the
[evaluations] for Title 47. In community mental health centers,
there are fewer MSWs applying for positions and thus there is
difficulty in filling positions with MSWs. Passage of this
legislation will allow other qualified individuals to [fill
these positions] during the two years in which they are working
towards the license. Furthermore, passage of this legislation
will [help master's level people do this legally].
CHAIR MURKOWSKI returned to the issue of how the supervision
actually works.
MS. BULLOCK explained that in her [community mental health
center] each master's level individual is seen for individual
supervision once a week for one hour. Furthermore, there are
case conferences in which there are group meetings between the
master's level individual and the licensed supervisor as well as
the psychiatrist. There are numerous licensed professionals to
which these master's level people can approach with questions.
In further response to Chair Murkowski, Ms. Bullock said that
these meetings have been done in the facility [and its staff]
has helped cover the [professionals] Railbelt when they needed
supervision. In that situation, people were sent to the area
for face-to-face supervision.
Number 2093
WAYNE McCOLLUM, Licensed Clinical Social Worker, testified via
teleconference. He informed the committee that he has worked in
Alaska for the past 20 years. Mr. McCollum announced his
support of [CSHB 505, Version C], which he viewed as critically
important in rural areas where there is difficulty in recruiting
and retaining qualified master's level individuals who can
perform the necessary evaluation. He mentioned his experience
in Tok with [the work around situations] in which the State
Troopers and Village Public Safety Officers (VPSO) are utilized
to arrest individuals needing these [preliminary evaluations].
Mr. McCollum related his understanding that the bill refers to
individuals in the process of qualifying for licensure rather
than applying for licensure. For instance, there could be a
situation in which an individual has just moved to the state and
that individual may not have experience in the field of mental
health but may be qualified in other ways. While this
individual obtains experience in the field of mental health and
is supervised by a licensed supervisor [this individual could be
working in the field].
Number 2284
CATHERINE REARDON, Director, Division of Occupational Licensing,
Department of Community & Economic Development (DCED), addressed
Representative Rokeberg's concern that subparagraph (C) allows
for a premature application. Ms. Reardon explained that when
someone submitting an application doesn't meet the
qualifications, the division informs the individual of the items
lacking for the license. The application is treated as an
incomplete application. The application would be held open and
if there has been no contact from the individual after a year,
the division sends the individual a letter. If there is still
no communication from the individual, the application is
archived and eventually destroyed. As long as the individual
communicates with the division with regard to their interest in
having their application on file, the application is maintained.
Ms. Reardon noted that the division often receives incomplete
applications and applications from individuals who haven't yet
met the qualifications. Therefore, Ms. Reardon said that the
division could work with [Version C].
TAPE 02-59, SIDE B
REPRESENTATIVE ROKEBERG referred to AS 08.95.110 and pointed out
that the language specifies that the individual would have the
work experience before making the application.
MR. REARDON related her belief that the reason for subparagraph
(C) in this legislation is because there was an interest in
having individuals be serious about becoming licensed rather
than allowing an individual to sit in this status without
engaging in the road to licensure. Perhaps submitting an
application and paying the fee would allow people to realize
what it takes to become licensed.
Number 2283
CHAIR MURKOWSKI inquired as to how long the applications are
kept current when an incomplete application is received. She
asked if there could be a situation in which an individual has
an application on file for 12 years and would it be a concern.
MS. REARDON answered that it wouldn't be a concern for the
division as long as the individual communicates with the
division each year. Ms. Reardon emphasized that the individual
would have to meet the license qualifications in effect the day
the individual [applies for a] license and thus that isn't of
concern. She related her belief that this committee substitute
attempts to clarify the language "in the process of qualifying
for licensure" which was in the original version of HB 505.
Therefore, she characterized Version C as more concrete
terminology than HB 505.
REPRESENTATIVE ROKEBERG inquired as to the status of the Senate
vehicle.
MR. MAJOROS answered that Version C is identical to the Senate
language, which was unanimously passed from the Senate today.
REPRESENTATIVE ROKEBERG related his understanding that Ms.
Reardon isn't uncomfortable with the application form because
it's not inconsistent [with that required for other licenses].
He inquired as to how the boards deal with assigning supervisors
for training.
MS. REARDON explained that generally supervisors or supervisory
plans have to be approved in order for the individual to satisfy
this supervised experience requirement of licensure. She said
she didn't believe there would be anyone who could't comply with
subparagraph (C). Whether this makes sense or not is up to the
legislature.
REPRESENTATIVE ROKEBERG inquired as to the fee schedule for pre-
licensing.
MS. REARDON said that refers to the application fee that is
generally $50, although it could be more.
REPRESENTATIVE ROKEBERG asked how these individuals currently
obtain their supervision and coordination with the professional
boards.
MS. REARDON responded that in order for their supervisory
experience to count, some of them will have to have their
supervisor and supervisory plan approved in order for it to
count. Therefore, an individual could have five years of
supervised experience that didn't count until the supervisor was
approved. She supposed the aforementioned situation might be a
reason to have the individual's submit an application form in
order that the individual would be made aware of the things
necessary to obtain the license. With regard to applications in
incomplete status, Ms. Reardon noted that applications are kept
in incomplete status unless an individual disagrees with the
division's interpretation of the law at which time the
application would go to the board for review.
REPRESENTATIVE ROKEBERG opined that it makes work for the
division in order to provide statutory credibility to the
individual, which doesn't make sense.
MS. REARDON noted that she didn't have a fiscal note for this
because she doesn't feel that it will cause the division
excessive burden.
REPRESENTATIVE ROKEBERG inquired as to why these individuals
would be applying.
MR. MAJOROS related his understanding that the application
process would indicate the individual is taking the issue of
licensing seriously. Mr. Majoros pointed out that this would be
an early warning signal that the individual is doing something
that would prohibit him/her from obtaining a license, such as an
educational program that doesn't meet the basic qualifications.
REPRESENTATIVE ROKEBERG pointed out that there isn't any
requirement for such in the existing statutory board
authorizations. Therefore, this doesn't quite mesh with
[existing statutory board requirements].
REPRESENTATIVE DYSON surmised that the [subparagraph (C)] could
be deleted or the language could be changed such that it
specifies that the individual "has met the education,
experience, and supervisory requirement of the license" of the
[applicant].
CHAIR MURKOWSKI asked whether the intent is to get more people
licensed in the various mental health professions or to allow
for a stopgap to allow individuals without full licensure to
help out in say rural Alaska.
REPRESENTATIVE DYSON related his guess that the department
intends to achieve both.
Number 1937
REPRESENTATIVE ROKEBERG said that this legislation isn't drafted
properly. Furthermore, he said he didn't believe it to be
appropriate to allow a prelicensee apprentice the same status as
[a licensed mental health professional]. This actually makes a
less qualified individual a qualified individual.
Representative Rokeberg suggested that the intent can be
accomplished without placing [a prelicensee apprentice] in the
definition [of mental health professional]. He expressed the
need to clarify that these individuals would only be considered
mental health professionals for the labor pool, not for
reimbursement.
MS. REARDON related her belief that the [mental health
professional] definition in AS 47.30[.915] only applies in the
commitment situation and doesn't apply to the insurance
nondiscrimination statute. She offered to confirm the
aforementioned. With regard to Representative Dyson's options,
Ms. Reardon said she would prefer to eliminate subparagraph (C)
because there are other ways to communicate the application and
license requirements.
MR. MAJOROS agreed that would work.
REPRESENTATIVE ROKEBERG pointed out that AS 47.30.915 is the
definition section for the entire mental health chapter.
MR. MAJOROS specified that the mental health professional
definitions applies to various mental health processes, but not
insurance reimbursement.
REPRESENTATIVE ROKEBERG turned to the existing statute, which
already allows the social worker with a master's degree and
substantial experience [to make decisions regarding commitment].
This legislation expands it, allowing other disciplines in the
mental health field to do [commitments] as well. He recommended
deleting subparagraph (C).
Number 1576
REPRESENTATIVE ROKEBERG moved that the committee adopt Amendment
1, which reads as follows:
Page 2, lines 13-14
Delete "(C) who is in the process of qualifying
for licensure by a board named in this paragraph;"
Reletter accordingly.
There being no objection, Amendment 1 was adopted.
Number 1549
REPRESENTATIVE ROKEBERG moved to report CSHB 505, Version 22-
LS1631\C, Lauterbach, 4/17/02, as amended out of committee with
individual recommendations and the accompanying zero fiscal
note. There being no objection, CSHB 505(L&C) was reported from
the House Labor and Commerce Standing Committee.
HB 460-ANTITRUST CIVIL COURT ACTIONS
CHAIR MURKOWSKI announced that the final order of business today
would be HOUSE BILL NO. 460, "An Act relating to actions for
monopolies and restraint of trade, including proof of damages;
amending Rule 82, Alaska Rules of Civil Procedure; and providing
for an effective date."
Number 1468
REPRESENTATIVE ERIC CROFT, Alaska State Legislature, testified
as the sponsor of HB 460. He began by informing the committee
that HB 460 is an Illinois Brick repealer. He explained that in
the late 1970s the U.S. Supreme Court issued an opinion saying
that under the federal antitrust laws one could only sue for
direct purchases. Therefore, the attorney general can't sue for
indirect purchases without a statute allowing such, which is
what HB 460 would accomplish. This legislation would allow suit
to be brought for indirect purchases of consumer fraud and
allows the attorney general to stand in parens patriae. Thirty
other states have done this. Had this been in place during the
recent vitamin litigation in which there was a [federal] suit
against vitamin manufacturers on the basis of too high charges,
the attorney general's office believes [Alaska] would've
received more money.
CHAIR MURKOWSKI asked if this was before the legislature in the
past couple of years.
REPRESENTATIVE CROFT said he didn't recall such legislation, but
deferred to the attorney general's office. In further response
to Chair Murkowski, Representative Croft related his belief that
the language in HB 460 is modeled after Alaska's current
consumer fraud statute, including the language related to
indirect suits and [parens patriae].
REPRESENTATIVE ROKEBERG inquired as to why the language "and the
trier of the fact finds that the defendant's conduct was wilful"
is being deleted in Section 1(1).
REPRESENTATIVE CROFT answered that it models what "we've already
done." In further response to Representative Rokeberg,
Representative Croft couldn't recall whether this only affects
antitrusts.
Number 1230
CLYDE (ED) SNIFFEN, JR., Assistant Attorney General, Fair
Business Practices Section, Civil Division (Anchorage),
Department of Law, testified via teleconference. Due to the
lack of this statute, the [department] believes the state lost
out on $700,000-$1 million in recovery. Mr. Sniffen said that
he didn't believe this statute has been before the legislature
before. Mr. Sniffen informed the committee that he is
responsible for several multi-state cases involving antitrust
claims against drug manufacturers. In each of those cases, the
ability of Alaska to make claims for indirect purchases has been
limited due to the lack of this type of legislation, although he
argues that Alaska has the ability to recover for indirect
purchasers. States with the statutes proposed in HB 460 usually
get a larger recovery, he related.
MR. SNIFFEN informed the committee that the language [was
developed] after review of the Illinois Brick repealer statutes
and Idaho statutes. He noted that Idaho's language was
developed after reviewing the language of other states and
incorporates what was viewed as the good language from other
states. Alaska has done the same.
Number 1119
CHAIR MURKOWSKI recalled Mr. Sniffen's statement that although
Alaska doesn't have this Illinois Brick repealer language, he
attempts to argue that Alaska should be able to bring actions on
behalf of direct and indirect purchasers. She asked if Mr.
Sniffen had ever prevailed.
MR. SNIFFEN said that there hasn't been a decision from a court
saying that Alaska has this authority. The cases with which he
was familiar have been settled before the court makes a decision
regarding whether the state has the authority to bring suit for
indirect purchasers. He noted that he argues that antitrust
violations are also consumer protection violations and the
Consumer Protection Act has language suggesting that the state
may have this authority. Having the language in HB 460 would
clarify the situation, he said.
CHAIR MURKOWSKI turned to page 3, subsection (j), which refers
to recovery of aggregate damages using statistical sampling.
She inquired as to what that refers.
MR. SNIFFEN explained that there are times in which it's
difficult to determine the exact amount of damages an individual
indirect purchaser may have suffered. The language in
subsection (j) allows the court to consider statistical sampling
and other methods in order to determine a damage amount that
approximates what the actual individual consumer damages might
have been. In further response to Chair Murkowski, Mr. Sniffen
said that a consumer could make arguments to the attorney
general's office that he/she should receive a larger share.
However, under these type of actions there are many people with
small individual damages that amount to a large sum in the
aggregate. To the extent a consumer believes their damages to
be significantly greater than the whole, the consumer would have
the ability to opt out of the lawsuit and bring their own case.
The statute requires the attorney general to provide notice of
the action and provide consumers with the opportunity to bring
their own case.
CHAIR MURKOWSKI characterized this as a class action [suit].
MR. SNIFFEN said that it's a modified class action [suit] that
can be brought only by the attorney general.
Number 0942
REPRESENTATIVE HAYES asked if the tobacco settlement would be an
example of the type of lawsuit at which HB 460 is aimed.
MR. SNIFFEN related his belief that in the tobacco settlement
there were many direct damages suffered by consumers. However,
he said he believes there is probably room for the tobacco
companies to argue that the settlements should've been different
for those states lacking the authority to collect or bring
claims on behalf of the indirect purchasers.
REPRESENTATIVE ROKEBERG returned to his question regarding the
reason behind the deletion of the language in Section 1(1) of HB
460.
MR. SNIFFEN answered that the language was deleted to bring this
statute in line with other federal antitrust statutes that don't
require a showing of wilfulness before recovering treble
damages. The Clayton Act allows the U.S. government to recover
treble damages for a violation of federal antitrust law without
a showing that the conduct was wilful. Mr. Sniffen related his
belief that it's a policy decision [whether] this kind of
conduct is egregious enough to warrant that penalty.
REPRESENTATIVE ROKEBERG maintained concern with the deletion of
the wilful conduct language. He asked if chapter 45 addresses
only antitrust suits.
MR. SNIFFEN replied yes.
REPRESENTATIVE ROKEBERG turned to Section 4, AS 45.50.586, and
asked why that is included.
MR. SNIFFEN pointed out that the language in Section 4 is
amended to clarify the statute and make the new section
consistent by specifying nonstate governmental entities.
Generally, [Section 4] merely codifies common law and allows
final judgments rendered in civil actions to be used as evidence
by those defendants in other actions for the same conduct.
REPRESENTATIVE ROKEBERG asked if provisions such as this aid the
attorney general's office in making settlements rather than
going to final judgment because a myriad of lawsuits could
ensue.
MR. SNIFFEN related that he didn't know whether this section has
been a help or a hindrance in settlement action. Even without
this statute there is common law that suggests that the final
judgments can be used against the defendants in other cases
under certain collateral (indisc.) contexts. Mr. Sniffen said
that he didn't have a firm answer.
REPRESENTATIVE ROKEBERG noted that there is case law about
criminal adjudicated crimes being prima facie evidence for civil
judgments in some jurisdictions.
MR. SNIFFEN said he believes the reverse to be true if one can
obtain a final judgment in civil actions. With regard to the
antitrust context, judgments rendered in antitrust cases are
generally used as evidence against the defendants in other kinds
of consumer protection matters.
Number 0621
STEVEN CONN, Executive Director, Alaska Public Interest Research
Group (AkPIRG), testified via teleconference. Mr. Conn
announced AkPIRG's support of HB 460. He noted the
appropriateness of giving the attorney general's office all the
authority it needs to serve Alaska and its consumers.
Number 0496
REPRESENTATIVE HAYES moved to report HB 460 out of committee
with individual recommendations and the accompanying
indeterminate fiscal note. There being no objection, HB 460 was
reported from the House Labor and Commerce Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Labor and Commerce Standing Committee meeting was adjourned at
4:55 p.m.
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