Legislature(2003 - 2004)
05/08/2004 09:04 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
May 08, 2004
9:04 AM
TAPES
SFC-04 # 111, Side A
SFC 04 # 111, Side B
SFC 04 # 112, Side A
CALL TO ORDER
Co-Chair Gary Wilken convened the meeting at approximately 9:04 AM.
PRESENT
Senator Lyda Green, Co-Chair
Senator Gary Wilken, Co-Chair
Senator Con Bunde, Vice Chair
Senator Fred Dyson
Senator Lyman Hoffman
Senator Donny Olson
Senator Ben Stevens
Also Attending: REPRESENTATIVE LES GARA; SENATOR HOLLIS FRENCH;
JOEL GILBERTSON, Commissioner, Department of Health and Social
Services; CYNTHIA DRINKWATER, Assistant Attorney General,
Commercial/Fair Business Section, Consumer Protection Unit,
Department of Law; TIM BARRY, Staff to Representative Bill
Williams; CODY RICE, Staff to Representative Carl Gatto; AMANDA
WILSON, Staff to Representative Norm Rokeberg; JON BITTNER, Staff
to Representative Cheryll Heinze; SARAH GILBERTSON, Legislative
Liaison, Office of the Commissioner, Department of Fish and Game;
ROB BENTZ, Deputy Director, Division of Sport Fish, Department of
Fish and Game; JIM PRESTON, Boat Charter Owner/Operator; SUE
STANCLIFF, Staff to Representative Pete Kott; KEVIN JARDELL,
Assistant Commissioner, Department of Administration; SARA NIELSON,
Staff to Representative Ralph Samuels
Attending via Teleconference: From Offnet sites: JULIE DECKER,
Executive Director, Southeast Alaska Dive Fishery Association;
LINDA WILSON, Deputy Director, Public Defender Agency, Department
of Administration; DUANE BANNOCK, Director, Division of Motor
Vehicles, Department of Administration; WANETTA AYERS, Southwest
Alaska Municipal Conference; From Kenai: BLAINE GILMAN, Attorney
SUMMARY INFORMATION
HB 56-UNFAIR TRADE PRACTICES ATTY FEES/COSTS
The Committee heard from the sponsor and reported the bill from
Committee.
SB 308-DOMESTIC VIOLENCE PROTECTIVE ORDERS
The Committee heard from the sponsor and the Department of Law. A
Letter of Intent was adopted, and the bill was reported from
Committee.
HB 341-DIVE FISHERY MANAGEMENT ASSESSMENT
The Committee heard from the sponsor and the industry. The bill was
held in Committee.
HB 342-DRIVING UNDER INFLUENCE/ALCOHOL OFFENSES
The Committee heard from the sponsor, Representative Rokeberg's
staff, the Public Defender Agency, and the Division of Motor
Vehicles. The bill was held in Committee.
HB 452-GUIDED SPORT FISHING/ ADFG & CFEC RECORDS
The Committee heard from the sponsor, the Department of Fish and
Game, and the industry. The bill was reported from Committee.
HCR 32-AK INFO INFRASTRUCTURE POLICY TASK FORCE
The Committee heard from the sponsor, the Department of
Administration, and took public testimony. Two amendments were
adopted and the bill was held in Committee.
HB 511-CERTIFICATE OF NEED PROGRAM
The Committee heard from the sponsor, the Department of Health and
Social Services, and took public testimony. Two amendments were
adopted and the bill reported from Committee.
HB 91-RETIRED PEACE OFFICER'S MEDICAL BENEFITS
This bill was scheduled but not heard.
HB 425-SCHOOL FUNDS RELATED TO BOARDING SCHOOLS
This bill was scheduled but not heard.
CS FOR HOUSE BILL NO. 56(L&C)
"An Act relating to the award to the state of actual
reasonable attorney fees and costs, including costs of
investigation, in certain court actions relating to unfair
trade practices; and amending Rules 54(d), 79, and 82, Alaska
Rules of Civil Procedure."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken stated that this bill would allow the State to
recover enforcement, investigation, and court costs when the State
prevails in a Court case against a party that has violated Alaska
Consumer Law. He noted that a Department of Law fiscal note
accompanies the bill.
REPRESENTATIVE LES GARA, sponsor of the bill, informed the
Committee that Alaska, with three half-time attorneys, has the
smallest Consumer Protection Agency in the nation, and that, due to
insufficient funding, the Agency is limited in what it is able to
accomplish. He reminded the Committee that in 1997, Senator Dyson
had filed a bill with the intent of boosting Agency funding without
increasing the demand for additional State funds. Version 23-
LS0300\I of this bill, he stated would further the intentions of
that earlier bill by allowing the State, when it prevails in a
consumer fraud case under the State's consumer protection laws of
the Unfair Trade Practices Act, to collect reasonable attorney
costs as determined by the Court, as well as the investigation
expenses associated with the case.
Representative Gara explained that, currently, beyond the fines
that are levied when the State prevails in a case, the State
receives an average of 20-percent of its attorney expenses and none
of its investigation expenses. Passage of this legislation, he
declared, would assist in offsetting Agency expenses by collecting
funds from individuals who have violated consumers' trust or who
have, through dishonest means, undermined a law abiding business
competitor. These funds, he communicated, would be used to support
and expand the program. Therefore, he concluded that were the bill
adopted, the State would be allowed when it prevailed in a case, to
recoup expenses and thereby demonstrate that the Agency is a cost
effective function. In addition, he attested, that the funds
generated by this legislation could be used to expand staffing in
order to pursue more cases with "no net cost to the State." He
pointed out that the Department of Law's zero fiscal note, Fiscal
Note #1, specifies that the bill would not incur any additional
expenses to the State and could generate an indeterminate amount of
revenue.
Senator Dyson understood that the State currently only prosecutes
cases in which a consumer fraud case involves a pattern of multiple
victims. Continuing, he asked whether any mechanism is in place
through which to protect small businesses from frivolous lawsuits.
Representative Gara affirmed that, due to staffing constraints, the
Agency currently pursues cases in which there is a pattern of abuse
such as a situation involving a senior care facility in which there
are multiple victims as opposed to a single situation in which, for
example, a used car salesman makes untrue statements about a
vehicle he sold someone.
Representative Gara clarified that the components of this bill
would be limited to those situations involving the State rather
than being applicable to business against business lawsuits. He
stated that were the State involved in what might be a frivolous
lawsuit, a determination regarding the merits of the case would be
made. He assured that those administering the State's Unfair Trade
Practices Act do a "pretty good job" in regard to which cases are
processed and that Legislators would "express some outrage" were
the State to undertake a frivolous lawsuit.
CYNTHIA DRINKWATER, Assistant Attorney General, Commercial/Fair
Business Section, Consumer Protection Unit, Department of Law,
spoke in favor of the bill.
Senator Dyson voiced appreciation for the efforts involved in the
bill. He noted that, when similar legislation was proposed in the
past, it proposed to "empower" both the private sector and the
public sector to recover costs were they to prevail in a consumer
fraud lawsuit; however, he noted that the time, that language was
eliminated from the bill. He expressed delight in the fact that
language enabling the State to recoup damages is being pursued
through this legislation.
Co-Chair Wilken asked regarding a suggestion offered by Senator
Ralph Seekins to amend the bill, during its Senate Judiciary
Committee hearing.
Representative Gara explained that Senator Seekins proposed to
amend the bill in a manner similar to a federal anti-trust law that
would hold the State responsible for expenses in a consumer fraud
lawsuit were it to not prevail. He stated that while this might
sound like "a balanced deal," it would serve "to kill the consumer
protection function" in the Department of Law. Continuing, he
stressed that these cases are pursued to address consumer fraud
situations to which "we all abhor," and were the State, with its
limited staff and funding, to lose a case based on a technicality
or due to an unreliable witness, it would serve to create
"hesitancy" on the part of the Agency to take a case and might "set
back the function" of the Agency. Therefore, he urged the Committee
not to further that amendment.
Senator Dyson moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
There being no objection, CS HB 56(L&C) was REPORTED from Committee
with indeterminate fiscal note #1, dated April 21, 2003 from the
Department of Law.
CS FOR SENATE BILL NO. 308(JUD)
"An Act relating to warnings on domestic violence and stalking
forms; and increasing the duration of certain provisions of
domestic violence protective orders from six months to up to
one year."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken explained that the Senate Judiciary committee
substitute, Version 23-LS1672\H, would double the current maximum
length of domestic violence protective orders by allowing a judge
to issue an order for no less than six months and up to a maximum
of one year. He stated that in addition to being accompanied by
several fiscal notes, there is a Letter of Intent from the Senate
Judiciary Committee.
SENATOR HOLLIS FRENCH, the bill's sponsor, explained that this bill
would allow a judge to extend the current six-month protective
order mandate to "up to one year." He informed the Committee that
the State has two types of protective orders: a 20-day emergency
order that a petitioner could have implemented without the
involvement of the other party; and the six month protective order
which could be issued upon a court hearing involving the petitioner
and the respondent. He clarified that this bill solely addresses
the six-month domestic violence protective order, which requires
full due process before implementation.
Senator French shared that the Senate Judiciary Committee added
language to the bill, which would clarify that false statements
made during a court hearing would be subject to the penalty of
perjury.
Senator French voiced disagreement with the Public Defender
Agency's fiscal note as, he contented that the Agency simply
doubled its current associated expense level through the rationale
that the length of the protective order would be doubled. He
distributed a copy of an email exchange [copy on file], dated March
16, 2004 between himself and Bob Linton of the Department of Law in
which it is noted that, of the 23 Domestic Violence Restraining
Orders violations cases that occurred in Anchorage between January
1 and March 1, 2004, 19 were related to the 20-day restraining
order that is not affected by this legislation, and only four were
violations of the six-month order; thus, he contended that most
violations occur within the first 20 days of an order. Therefore,
he concluded that the fiscal note "is quite a bit higher" than the
expenses that would be realized were this legislation enacted.
Senator Bunde asked regarding the Senate Judiciary Committee Letter
of Intent that accompanies the bill; specifically whether any
financial impact would result.
Senator French replied that the Letter of Intent addresses language
in Sections 1 and 3 of the bill, which would require the Alaska
Court System to "conspicuously" highlight the penalty for perjury
on Court System domestic violence restraining order documents. The
Letter of Intent, he continued, would mandate that, only after
current forms are exhausted, should the Courts implement the bold
type requirement.
Senator French voiced support for the Letter of Intent.
Senator Bunde moved to adopt the Senate Judiciary Letter of Intent.
There being no objection, the Senate Judiciary Letter of Intent was
ADOPTED.
Senator Dyson moved to report the bill and the accompanying Letter
of Intent from Committee with individual recommendations and
accompanying fiscal notes.
There being no objection, CS SB 308(JUD) and the Judiciary Letter
of Intent were REPORTED from Committee accompanied by a $125,600
fiscal note, dated April 9, 2004, from the Department of
Administration and zero fiscal note #2, dated March 8, 2004 from
the Alaska Court System.
HOUSE BILL NO. 341
"An Act relating to the dive fishery management assessment."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken explained that this bill would affect the Dive
Fishery management assessment in that it would finalize a
compromise between Alaska shellfish growers and commercial
fishermen and would additionally address long-standing
controversies regarding the State's management of geoduck clams and
other shellfish stocks on aquatic farm sites. He noted that were
the Finance committee substitute, Version 23-LS1280\I, adopted by
the Committee, a title change would be required. In addition, he
noted that a Department of Revenue zero fiscal note accompanies the
bill.
Co-Chair Green moved to adopt the Version "I" committee substitute
as the working document.
There being no objection, the Version "I" committee substitute was
ADOPTED as the working document.
TIM BARRY, Staff to Representative Bill Williams, the bill's
sponsor, explained that this bill was introduced at the request of
the Southeast Alaska Regional Dive Fisheries Association (SARDFA).
He noted that the original bill incorporated "fairly mild changes"
to existing statutes governing the manner in which SARDFA assesses
its dive fishermen, Southeast Alaska communities, and dive fishery
processor members. He explained that the Association, which is
funded by either a one, three, five, or seven percent tax assessed
on its members, works with the Department of Fish and Game and the
Department of Environmental Conservation to manage and develop the
dive fishery in Southeast Alaska. This bill, he recounted, would
allow the Association's tax mechanism to be expanded to include
two, four, or six percent assessments.
Mr. Barry stated that the bill was recently amended to address an
April 2004 State Supreme Court ruling that resulted in the
Department of Fish and Game issuing cease-harvesting orders to
several geoduck farmers. Consequently, he stated that the
Association, shellfish farmers, the Department of Law, the
Department of Fish and Game, the Governor's Office and others have
reached an agreement on statutory language that would allow the
shellfish farmers to continue to farm shellfish. He pointed out
that this language is included in the Version "I" committee
substitute before the Committee. He affirmed that this agreement,
which has the support of the aforementioned entities, would
institute a title change.
Senator Dyson recalled that as this dive fishery industry was being
developed, it asked the Legislature to adopt regulations, which
would allow the industry to levy sufficient tax assessments through
which to administer and supervise operations. He stated that he
"was charmed" by the fact that the industry was willing to pay for
this endeavor. In that vein, he asked whether this legislation
would negatively affect "the bottom line for the State."
Mr. Barry replied that this legislation would not affect the State
"in any way." Continuing, he stated that enabling SARDFA to assess
a two, four, or six-percent tax would allow the Association "to
more effectively pay their own way."
Senator Bunde stated that the bill has changed since he heard it in
the Senate Labor & Commerce Committee. Continuing, he asked for
further information regarding the standing stock language in the
bill; specifically how designating aquatic farm sites in areas
where no shellfish naturally exist would benefit the shellfish
farming industry, as he contested that were the site suitable for
the species, the shellfish would be naturally occurring there. He
also asked for further information regarding the grandfathering in
of current farms and the "common property" stock that existed on
the site before the farm began.
Mr. Barry voiced the understanding that the standing stock and
shellfish farmer issue has been a topic of discussion in excess of
five years. He stated that the agreement reflected in the Version
"I" committee substitute "would define what significant and
insignificant standing stock are." Furthermore, he stated that in
those cases in which a farmer has a site designated as having an
insignificant amount of standing stocks, the farmer could harvest
the insignificant standing stock and sell it to a processor. He
noted that the any proceeds generated by standing stock, beyond the
insignificant stock, would be remitted to the State.
JULIE DECKER, Executive Director, Southeast Alaska Dive Fishery
Association, testified via teleconference from an offnet site and
informed the Committee that geoducks are able to grow in areas
where they are not currently present or do not naturally grow such
as shallow inter-tidal areas. However, she noted that it is unknown
as to whether they would grow as well in these areas as they would
in a natural habitat area. Therefore, she attested that, to attract
and encourage the growth of the "somewhat risky" shellfish farming
industry, it would behoove the State to make available natural
habitat sites, as they would provide natural feed and quicker
growth. She stated that the primary on-going issue in this industry
involves standing stock. She shared that the Alaska Court System
has ruled that areas with insignificant geoduck clams should be
available as aquatic farm sites, but that areas with significant
amounts of standing stock should be regarded as common fishery
sites. This issue, she disclosed has been heard by the Lower Court
and appealed to both the Superior and Supreme Court. She stated
that the Supreme Court has determined that State statutes do not
currently allow the Department of Fish and Game to designate any
amount of standing stock, significant or insignificant, to a
farmer. This legislation, she contended, supports the Lower Court
ruling that would change State Statute to allow farmers to harvest
an area with insignificant amounts of wild stock. She stated that
an agreement has been reached specifying that a harvest of 12,000
pounds or less would be regarded as insignificant wild stock. She
noted that the net proceeds of a harvest exceeding that poundage
would be remitted to the State. She reiterated that this issue has
been addressed for a long time and that the ability of the various
entities to reach this agreement was "quite an accomplishment."
Senator Bunde stated that this legislation involves "some
interesting common property issues." He asked whether Legislative
Legal Services has developed a position regarding this common
property stock issue.
Co-Chair Wilken understood that a Constitutional concern has
recently arisen regarding this legislation.
Mr. Barry explained that George Utermohle, Legislative Counsel,
Legislative Legal Services, has written a memorandum [copy on
file], dated May 4, 2004 to Representative Williams, indicating
that the agreement presented in this legislation would change State
statutes. Furthermore, he stated that while the recent Supreme
Court ruling specified that aquatic farmers should not continue to
harvest common stock, the Court did not address any Constitutional
issues. However, he allowed that Constitutional questions have
arisen during the years of dispute involving this issue, and that
the entities involved in the development of this agreement "are all
aware" that there may be some unresolved Constitutional issues."
Co-Chair Wilken asked that the memorandum be distributed to the
Members for review.
Mr. Barry concurred.
Senator Olson asked whether there has been any opposition to the
bill.
Mr. Barry replied in the negative.
Co-Chair Wilken stated that the bill would be HELD in Committee in
order to further clarify, with Legislative Legal Services, the
Constitutional issues being raised.
AT EASE 9:37 AM / 9:38 AM
CS FOR HOUSE BILL NO. 342(FIN) am
"An Act relating to driving while under the influence, to the
definition of 'previously convicted,' to alcohol-related
offenses, to ignition interlock devices, and to the issuance
of limited driver's licenses; and providing for an effective
date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken explained that CS HB 342(FIN)am, Version 23-
LS1292\W.A would strengthen the consequences of Driving Under the
Influence (DUI) and would provide more authority to the Wellness
Therapeutic Court. He noted that a positive fiscal note accompanies
the bill.
CODY RICE, Staff to the bill's sponsor Representative Carl Gatto,
informed the Committee that this legislation entails several
changes to the punishments and sanctions of those convicted with
DUIs including that those convicted of driving at twice the blood
alcohol content (BAC) limit of .08 percent would be required to
install an ignition interlock device on their vehicles for six
months and those convicted of driving at three times the legal BAC
limit would be required to install the devices for one year.
Mr. Rice noted that another important provision addressed in this
bill is the "look-back provision." He shared that current State
regulations specify that "misdemeanor look-backs are lifetime" in
that, he explained, were a person convicted of a DUI at the age of
18 and then again at the age of 65, it would be recognized as a
second DUI offense. He compared the unlimited DUI look-back
provision to the State's felony look-back provision, which, while
currently set at eight years, is scheduled to be increased to ten
years by the year 2006. This legislation, he explained would reduce
the lifetime look-back for misdemeanors to 15-years.
Mr. Rice noted that implementation of a 15-year look-back period
for misdemeanors would more align Alaska's look-back timeframe with
other states' misdemeanor look-back provisions, as reflected in the
chart titled " National Conference of State Legislatures Drunk
Driving Sanctions Time Frames Used by States for Inclusion of Prior
Offenses" [copy on file].
Mr. Rice further noted that while current law allows only
individuals with a single DUI offense to be eligible for a limited
driver's license, this bill would allow those with multiple DUIs to
be issued a limited driver's license, provided they fulfill certain
requirements such as completion of Wellness Courts or installation
of an ignition interlock device. He pointed out that the Members'
packets contain a flow chart titled "Limited Licenses" [copy on
file] that reflects the various requirements. He also noted that
the packets contain another flow chart titled "HB 342 - DUI
Penalties" [copy on file] that outlines the proposed penalty
changes for differing BAC levels as explained in his opening
remarks.
Senator Bunde commented that were a 15-year misdemeanor look-back
policy adopted, it would "substantially exceed" the look-back
period of any other state.
Mr. Rice replied that that is correct, with the exception being
Minnesota, which has a 15-year look-back provision.
Senator Bunde questioned the rationale for implementing a
misdemeanor 15-year look-back policy when the State's felony look-
back policy is limited to ten-years.
Mr. Rice commented that Representative Norm Rokeberg originally
proposed this provision in separate legislation, HB 175-PRIOR
CONVICTIONS FOR DUI that was absorbed into this legislation.
Senator Bunde asked whether pampering with ignition interlock
device readings could compromise their BAC readings.
Mr. Rice expressed that while older devices might have been flawed
in this regard, modern devices have been upgraded to incorporate
complicated mechanisms and such things as "rolling re-tests." He
noted that the devices are constantly being modified to prevent
pampering.
Senator Bunde surmised that these "sophisticated" devices must be
expensive.
Mr. Rice replied that use of the device would cost approximately
three dollars per day, which could be likened "to the cost of a
drink a day."
Senator Bunde calculated that this would equate to approximately a
$1,000 a year.
Mr. Rice concurred. However, he stated that, were the device
"imposed at sentencing," current statutes could allow the cost of
the device to be deducted from the "fairly substantial fines"
imposed by the Court.
Senator Bunde expressed that his questions should not be
misconstrued to be supportive of drinking and driving but rather to
acknowledge that some people do this, as a result of "a mistake or
poor judgment." He noted that another example of poor judgment is
driving without use of a seatbelt. He stated that he is considering
an amendment to incorporate seatbelt requirements into this
legislation.
Senator Olson voiced the concern that imposing restrictive devices
such as the ignition interlock device might impede the safe use of
the vehicle by the offender or by other people who might use the
vehicle.
Mr. Rice responded that the device requirements are easy to comply
with.
Senator Olson continued to voice concern that, at an inopportune
moment, the requirements of the device might not allow the vehicle
to operate in a necessary manner when being driven.
Senator Bunde asked for additional information regarding the DUI
misdemeanor look-back timeframe of 15-years.
AMANDA WILSON, Staff to Representative Norm Rokeberg, expressed
that State laws pertaining to DUIs are harsh and that the lifetime
look-back policy reinforced that position. However, she noted that
treating individuals with two DUI offenses twenty or thirty years
apart in the same manner as repeat offenders who have multiple DUIs
in a relatively short period of time is unfair and is not the
intent of the law. Therefore, she stated that the purpose of this
proposal is to "correct an oversight" rather than to lessen the DUI
penalty.
Senator Bunde asked the reason the felony look-back timeframe is
less that the 15-year misdemeanor timeframe proposed in this
legislation.
Ms. A. Wilson stated that the 15-year misdemeanor look-back time
period was determined upon review of what other states were doing.
She noted that only one other state has a lifetime look-back
policy.
Co-Chair Green asked for confirmation that this bill is the result
of the merger of other similar bills.
Mr. Rice replied that it is.
Co-Chair Wilken interjected that, due to the fact that
Representative Rokeberg sponsored one of the original bills, his
staff is available to answer questions.
LINDA WILSON, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage and
echoed the testimony that Alaska has some of toughest DWI offense
penalties in the country and that there is only one other state
with a lifetime look-back policy. She stressed that even with
limiting the look-back time period to 15-years, Alaska would
continue to have a tough stance on drinking and driving offenses.
She declared that current law is unfair in that it would treat
someone convicted of a DUI at the age of 18 and then convicted
again at the age of 72 as a second offender. She voiced support for
limiting the look-back to 15-years.
Ms. L. Wilson voiced concern that the bill does not provide
consideration to the fact that no ignition interlock devices are
available for off-road vehicles, which are utilized in road-less
areas.
SFC 04 # 111, Side B 09:53 AM
Ms. L. Wilson also voiced concern as to whether there would be the
ability to install the devices on vehicles in remote areas of the
State such as Nome, and if that ability were available, how much
the installation cost would be. She declared that requiring a
person to install the device might pose to be a difficult and
unfair thing that "might be harsh on poor people" or to those who
live in remote areas. She also questioned the manner through which
BAC would be measured and noted that the issue of whether someone's
BAC was double of triple the legal limit could result in
litigation.
DUANE BANNOCK, Director, Division of Motor Vehicles, Department of
Administration, testified via teleconference from an offnet site,
in support the bill; particularly the language that would expand
the issuance of a limited license to repeat DUI offenders provided
certain requirements are in place. He noted that currently repeat
DUI offenders are not eligible for limited licenses.
Co-Chair Wilken ordered the bill HELD in Committee in order to
address questions that were raised.
SENATE CS FOR CS FOR HOUSE BILL NO. 452(RES)
"An Act relating to licensing and regulation of sport fishing
operators and sport fishing guides; relating to licensing and
registration of sport fishing vessels; authorizing the
Department of Fish and Game and the Alaska Commercial
Fisheries Entry Commission to release records and reports to
the Department of Natural Resources and the Department of
Public Safety; and providing for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken informed the Committee that this legislation would
establish minimal licensing requirements and fees for two types of
sport fishing guide licenses: sport fishing services operator
licenses and sport fishing guide licenses. He stated that Version
23-LS1619\W and its accompanying fiscal notes are before the
Committee.
JON BITTNER, Staff to Representative Cheryll Heinze, the bill's
sponsor, informed the Committee that the sponsor is presenting this
bill at the request of the Department of Fish and Game. He noted
that the bill would create two new licenses and requirements. The
fee for a sport fishing guide license, he noted, would be $50
annually and the sport-fishing operator's license would be $100
annually, and he clarified that were a person to provide both
services, the fee would be limited to $100. Continuing, he stated
that the sport-fishing guide licensing requirement mandate the
licensee to have minimum liability insurance, first aid training,
and conduct certain "minimum" reporting requirements.
Mr. Bittner pointed out that Members' packets contain a chart
titled "Regulations after passage of HB 452" [copy on file] that
depicts current reporting requirements and those that would be
implemented were this legislation adopted. He stated that
currently, with the exception of minimal reporting requirements in
the Kenai River Management area, no reporting is required for
guided freshwater fishing. He noted that the freshwater fishing
report requirements that would be established by this bill would
provide the Department with "more useful information" and would
align with current saltwater fishing report requirements which
include such things as the number of hours fished, the number and
types of fish caught, and the general location fished.
Mr. Bittner stated that Version "W" differs from the previous
version of the bill, CS HB 452(FIN)am, Version 23-LS1619\U.A, in
regards to sport guide vessel licensing registrations. This
language, he noted, is located in Section 2, subsection Section
16.05.395 and Section 3, subsections (a), (b), and (c) on page two
of the bill. He summarized that this language would move sport
guide vessel registrations from the Commercial Fisheries Entry
Commission (CFEC) to the Division of Sport Fish, Department of Fish
and Game in order to "consolidate information" and to streamline
the process by having all the sport guide information in one State
agency. He noted that the $20 vessel registration fee currently
charged by CFEC would be eliminated were this legislation adopted
and the guide registration fee enacted.
SARAH GILBERTSON, Legislative Liaison, Office of the Commissioner,
Department of Fish and Game, commented that the sport fish industry
is important as it generates approximately $6 billion in revenue a
year. She stated that currently, while individuals participating in
the sport fishing industry, must register with the Department of
Fish and Game, there are no registration fee, license, insurance,
medical, training or reporting requirements in place. This
legislation, she continued, would establish annual $50 sport fish
guide license fees, annual $100 operator license fees applicable to
the owner of a business who employs guides, or an annual $100
combination guide/operator license.
Ms. Gilbertson stated that this legislation would also allow the
Board of Fish to establish reporting guidelines that would provide
the Department and the Board of Fish "better information" with
which to manage the fishery. This information, she shared, would
include such things as where the guides are operating, how many and
what fish are being caught, and the frequency of the operations.
She stated that rather than implementing "onerous and burdensome"
reporting requirements, the Department's desire is to make them
flexible and area appropriate.
Ms. Gilbertson stated that the bill, during its numerous committee
hearings, has been amended to best serve the desired objectives and
has garnered wide spread support from numerous sport fishing
charter boat and guide associations in Sitka, Homer, Kenai and
other areas. She noted that the language in Version "W" which moved
vessel registration to the Division of Sport Fish within the
Department of Fish and Game and eliminated the vessel fee was "the
icing on the cake for a lot of folks."
Senator Dyson asked the difference between an operator and a guide.
ROB BENTZ, Deputy Director, Division of Sport Fish, Department of
Fish and Game explained that an operator is the owner of a business
that provides boats and employs guides. He stated that,
particularly in Southeast Alaska and Cook Inlet, there are numerous
one-person businesses in which the owner owns the boat, owns the
business, operates the boat, and serves as the guide. This person,
he stated would be considered a sport fish guide.
Senator Dyson asked the difference between a charter business
operation and a situation in which a guide accompanies a client in
a boat.
Mr. Bentz stated that the definition of a guide in a charter
business "is a person that accompanies and personally assists other
people during any portion of the fishing trip." This, he attested,
is different from a transporter or an outfitter who just provide
transportation services from one point to another.
Senator Dyson asked whether a person who owns and operates a boat
but does not provide any fishing assistance to a client would be
classified as a guide.
Mr. Bentz responded yes, as he is providing a charter vessel and is
accompanying the client. He noted that there is also such a thing
as a "bare boat charter" in which people rent a boat and fish
unaccompanied by a guide.
Senator Dyson asked for further clarification regarding a situation
in which an accompanying owner/operator of a vessel is on the boat
but does not provide assistance to a client who is fishing.
Mr. Bentz expressed that were an owner/operator of a boat to take a
client out fishing but not provide them "assistance in any way," he
would be considered the operator rather than a guide, "if he had
someone down there to assist them down there on the deck."
Senator Dyson asked at what point, a trip, with a guide
accompanying clients on a boat, would be recognized as a charter
operation.
Mr. Bentz responded that when a guide accompanies clients on a boat
trip, it would be considered a chartered fishing operation the
instance they begin to fish. Continuing he stated that were the
trip to simply involve whale watching, and not engage in sport
fishing, it would not be considered a chartered fishing trip.
Senator Dyson asked in what situation a boat with a guide and
fishing clients would be required to adhere to United State Coast
Guard charter license regulations.
Mr. Bentz responded that anytime "a paying client is onboard a
vessel and they are being accompanied by an operator of that
vessel," that operator is required to possess a United States Coast
Guard operator's license. He noted that the size of the boat is not
a factor in this requirement.
Senator Dyson understood therefore that were a client to operate,
for example, an eight-foot boat, an operator license would not be
required; however, were a guide to accompany that client on a
vessel that the client operated, the guide would be required to
have a Coast Guard license.
Mr. Bentz responded, "to my knowledge, yes."
Senator Olson asked whether this legislation is being presented as
a result of a problem with the current management of the sport fish
guide industry.
Mr. Bentz responded that one reason for the legislation is to
assist in addressing the current lack of information regarding the
impact on a fishery and the number of people fishing, particularly
in remote freshwater areas He stated that while this might not be
classified as a problem, it is difficult to track overall usage. He
also noted that, as a result of the lack of information, the
Department might recommend more conservative regulations than
necessary to the Board of Fisheries.
Senator Olson opined that the Department is currently experiencing
funding shortfalls which are serving to reduce fishery management.
He voiced concern that more staff and more funding would be
required to manage the licensing process, and as result, the
Department's efforts might be further negatively impacted.
Ms. Gilbertson responded that the costs of the license program and
subsequent data analyses have been analyzed and that the proposed
program would be receipt-supported. The fee structure proposed, she
continued, would provide sufficient funding to implement the
program. She referenced the Division of Sport Fish fiscal note # 2
and noted that while the analysis specifies that four new full-time
positions and one new part-time positions would be required, the
full-time positions would be staffed by shifting four Department
funded employees, who currently process the Saltwater Log books
reports, to staff the needs of this proposal. The receipts
generated from this legislation, she attested, would then pay these
people's wages. Therefore, she declared, this proposal would be
increase staffing by only the one part-time position.
Ms. Gilbertson noted that it was made known during the bill's
hearing in the Senate Resources Committee that increasing the scope
of State government is not a desired end result. She shared that
shifting vessel registration to the Division of Sport Fish was
supported by numerous entities as it would increase efficiency in
government and create "one stop shopping."
Senator Olson asked how these fishing management changes might
affect subsistence fishing issues in areas under federal
management.
Mr. Bentz responded that this legislation would serve to alleviate
a lot of the problems that have arisen during the last few years as
the federal government, the Board of Fish, the Department of Fish
and Game and State would have better information as to who is
operating where and what they are doing. This, he stated, would
enable better management decisions to be made.
Senator Olson respectfully argued that many problems have arisen
due to the dual management scenario in which federal entities
manage one area and the State manages another. The current
situation, he declared presents hardships to residents who are
therefore "double hand-cuffed." He stated that, in his experience,
"the route" is more complicated.
Mr. Bentz agreed that this legislation would not simplify the
situation, as he noted there is the chance of controversies when
there are "two, in some cases, conflicting regulatory regimes." He
stated, however, that the information this legislation would
provide would benefit State and federal agencies.
Senator Olson referenced language pertinent to the reporting
requirements as specified in Section 6, subsection 16.40.280(b) on
page seven, lines 19-23 that read as follows.
(b) A person who holds a license issued under AS 16.40.260 or
16.40.270 shall comply with the reporting requirements in this
section and reporting requirements adopted in regulation by
the department or board. The department and the board may
adopt by regulation requirements for timely submission of
reports required under this section or under regulation
adopted by the department or board.
Senator Olson asked what consideration would be provided to
individuals in remote settings who experience difficulties in
submitting reports due to such things as infrequent or poor mail
service in respect to fines and other penalties.
AT EASE 10:18 AM / 10:18 AM
Senator Olson asked whether this language could be eliminated or
modified.
Mr. Bentz clarified that the intent of the language is to allow the
Department to develop reporting and guide regulations on a "least
intrusive, less problematic" area-by-area basis.
AT EASE 10:19 AM / 10:19 AM
Mr. Bentz declared that the regulations would be developed, by
area, with input from the guides and would be user friendly. He
stated that the Board of Fish, whose meetings are open to the
public, would formulate reporting and other guidelines dependent on
an area's circumstances.
Ms. Gilbertson reiterated that the Department would continue to
work with the industry to address the logbook reporting concern,
and she noted that recently, the Department decided to waive the
logbook submittal requirement when periods of inactivity occur. She
stressed that there is no intent to place "a burden" on operators,
and that the intent is to gather "better information" with which to
better manage the resource.
Senator Olson noted that the reporting submittal issue could be a
burden to anyone anywhere in the State as oftentimes, weather could
hinder the submittal for weeks at a time. He asked for industry
testimony in this regard.
JIM PRESTON, Boat Charter Owner/Operator, stated that the
timeliness of reporting and the obligation to maintain logbooks is
an industry concern. He disclosed that he had been fined $200 last
year for not submitting his logbook when his boat was out of
commission and, during that period of inactivity, he had forgotten
to remit his logbook. However, he acknowledged that, as a result of
industry and Department discussions, the Department has changed the
reporting requirement concerning periods of inactivity. He noted
that the Department has also specified that, were this legislation
enacted, there would be more industry/Department collaboration
regarding regulations. He stated that guides in remote areas of the
State often have to depend on air taxi pilots, ferry personnel and
others to assist in getting their logbooks reports to the
Department. In summary, he voiced the understanding that the
Department would, through cooperative efforts, address the areas of
industry concern.
Mr. Preston noted that he was speaking on behalf of operators in
Homer and other places, as some of them were unable to participate
due to being unable to access their local Legislative Information
Office.
Senator Olson asked whether Mr. Preston would support eliminating
or changing language in Section 6(b) that pertains to reporting
requirements. He noted that while he understands that additional
information would be helpful to the management of the resource, the
penalties for non-reporting or tardy reporting are of concern;
especially when someone is very busy at the peak of their season.
Co-Chair Wilken understood that language in Section 6(b) addresses
these circumstances by allowing for "timely submission of reports
required under this section or under regulation as adopted by the
department or board." Therefore, he understood that regulations
would consider the circumstances and accommodate them.
Mr. Bittner concurred.
Mr. Preston informed the Committee that he is also a member of the
advisory panel of the North Pacific Fisheries Management Council.
He stated that the Council views logbook data as a way to verify
and justify information pertinent to harvest. He stated that the
validity of the information is crucial to the legitimacy to the
data. Continuing, he noted that the Department currently relies on
the data provided by the saltwater reporting logbooks. He stated
that were this legislation adopted, it would provide the industry
legitimate standing before the Board of Fish, which, he declared,
is currently not the case. Therefore, he stated that this
legislation would provide the industry the ability to work with the
Board to develop area appropriate regulations.
Senator Olson reiterated the importance in accommodating remote
area guiding operations.
Senator B. Stevens understood that there are many requirements that
must be met in order to obtain a sport fishing guide license
including such things as being a citizen of Canada, the United
States, or Mexico; meeting first aid and six-pack license
requirements; and submittal of the proper fees. Therefore, he asked
what additional requirements must be met as referenced in Section
6, subsection (a)(6) on page six, lines five and six that reads as
follows.
(6) satisfies all additional requirements adopted in
regulation by the Board of Fisheries.
Mr. Bentz explained that this language would allow additional
things to be adopted as required by the adoption of new proposals
by the Board.
Senator B. Stevens voiced that with the exception of the vagueness
of this language, which would allow "a non-legislative institute to
create the guidelines for the qualifications of a license," he
supports the legislation.
Senator Dyson asked Mr. Preston whether a licensed fishing guide,
employed by Mr. Preston and operating one of Mr. Preston's boats,
would be required to be individually licensed by the Coast Guard.
Mr. Preston affirmed that anytime an individual is operating a boat
available for hire and has paying passengers, he is required to
have either a United States Coast Guard license, commonly referred
to as "a six-pack license," or a Master's License.
Senator Dyson asked whether the fact that the client, rather than
the guide, is operating the vessel would have a different bearing
on the Coast Guard license requirement.
Mr. Preston stated that he would defer to the Coast Guard to
provide an answer to the question.
Co-Chair Green asked whether the licensing guideline parameters
Senator B. Stevens was concerned about might be addressed in other
State statutes.
Mr. Bentz responded that the State's codified regulations do
address future license changes; however, he stated that the
language in question is specific to a Board of Fisheries proposal
that might be adopted and would modify requirements. He stated that
the Board does operate under public process guidelines.
Ms. Gilbertson pointed out that this legislation, at the
recommendation of the Alaska Outdoor Council, is scheduled to
terminate on January 1, 2010. Therefore, she noted that were it
determined that the program is not beneficial to the industry, it
could be eliminated. She stated that the Department supports the
proposed timeline, as the intent of the program is to enhance the
industry.
Senator B. Stevens voiced appreciation for Senator Green's efforts
to address his concern. However, he noted that while he continues
to question the Board's ability to dictate requirements, he would
not prevent the bill from moving forward; especially in light of
the fact that the sport fish industry supports the bill.
Senator Hoffman asked whether the sport fish industry in Southwest
Alaska has testified in regard to this legislation.
Mr. Bentz expressed that the progress of this legislation has been
continually updated and distributed to Department area offices and
to groups and lodges throughout the State. He noted that while
feedback was received from the Fairbanks and Chitna area, he could
not recall any comments being received from the Southwest region of
the State.
Senator Hoffman asked whether the Department could anticipate
whether Native Corporations in the Southwest region of the Sate
would support this legislation.
Mr. Bentz replied that he could not answer on their behalf.
Senator Olson asked, were this legislation enacted, that follow-
up reports be provided to the Legislature; particularly in regard
to the implementation of the reporting timelines.
Senator Dyson reported a conflict of interest, as he is involved in
the sport fish guiding industry.
Co-Chair Green moved to report the bill from Committee with
individual recommendations and accompanying fiscal notes.
There being no objection, SCS CS HB 452(RES) was REPORTED from
Committee with $3465,600 fiscal note #2, dated March 16, 2004 from
the Sport Fish Division, Department of Fish and Game; zero fiscal
note #3, dated April 1, 2004, from the Department of Public Safety;
and negative $92,000 fiscal note #4, dated May 6, 2004 from the
Commercial Fisheries Entry Commission, Department of Fish and Game.
CS FOR HOUSE CONCURRENT RESOLUTION NO. 32(EDT) am
Relating to information infrastructure and establishing the
Alaska Information Infrastructure Policy Task Force.
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken stated that this bill, CS HCR 32(EDT)am, Version
23-LS1717\Q.A, is sponsored by Representative Pete Kott at the
request of Economic Development International Trade and Tourism
Committee. Continuing, he noted that the bill would establish as
13-member Alaska information infrastructure taskforce, which would
be charged "with reviewing and analyzing current and long term
information infrastructure needs."
SUE STANCLIFF, Staff to Representative Pete Kott, the bill's
sponsor, reiterated that this "task force would be charged with
consideration of Alaska's role and interest in the long-term
information structure development." She stated that the goal would
be "to provide Alaska's communities with access to broadband
connectivity and provide for improved access to fiber optic
connectivity." These technological advances, she stated, "would
help bridge the divide between rural Alaska from the benefits in
technology advances realized in urban Alaska.
SFC 04 # 112, Side A 10:42 AM
Ms. Stancliff shared that Ireland is a "shining example" of what
benefit could result from public and private partnerships dedicated
to technological advancement, as it is currently the largest
exporter of software products in Europe with 300 leading electronic
companies and nine of the ten top pharmaceutical companies in the
world. She stated that these opportunities "are not out of reach
for Alaska."
Ms. Stancliff stated that the distance between Alaska's communities
and the gaps in the State's infrastructure are exacerbated "by
federal lands, federal land laws, vast distances, and the relative
newness" of the State. Furthermore, she commented that while "no
paved highway may ever connect the regions of the State "to the
outside world… a telecommunications superhighway can link them
all." She declared that "innovation engineering concepts and robust
technologies" could be implemented in the State to assist in
helping "the Alaskan economy evolve into a 21st century economic
powerhouse." She stressed that the proposed task force would be
required to assist in determining "how State government could use
its resources to create an environment in which the private sector
has the incentive to provide information technology usually
broadband fiber based technology to small rural markets." She
shared that information task forces similar to the one being
proposed have been effective in assisting rural areas develop in
Colorado and North Carolina and other states to address the digital
divide between urban and rural areas.
Ms. Stancliff informed the Committee that the task force would
consist of "two government agencies, three legislators, a
University of Alaska delegate, and seven at-large members who would
have the vision and knowledge of the industry" with the vision "to
include homeland security and missile defense, and economic
development in rural Alaska."
Senator Dyson voiced appreciation for the efforts being asserted in
these planning efforts. He opined that the Resolution, as written,
specifically denotes "fiber optic as the only solution as opposed
to satellite or microwave transmission." He stated that were this
the case, it would present "an unfortunate limitation" on the task
force.
Ms. Stancliff responded that the State's current fiber optic
communication system runs from Prudhoe Bay to Fairbanks, to
Anchorage, to Juneau and provides telecommunications to the outside
world. She noted that one issue before the task force is to
determine how to expand the infrastructure of the fiber optic
network that is currently in place. She noted that wireless
communication would be a related component.
Senator Dyson asked, for the record, whether this Resolution would
limit the horizon to just fiber optics.
Ms Stancliff replied that this Resolution would "absolutely not"
limit the scope of the task force to fiber optics.
Amendment #1: This amendment would insert "(1) the commissioner of
administration or the commissioner's designee;" into the Resolution
on page two, line 17.
In addition, the amendment would replace the number "seven" with
the number "six" on page two, line 22 of the Resolution. The
revised language would read as follows:
(5) six at-large members chosen jointly by the Speaker of the
House of Representatives and the President of the Senate.
Co-Chair Wilken moved to adopt Amendment #1 and objected for
explanation.
KEVIN JARDELL, Assistant Commissioner, Department of
Administration, explained that were this amendment adopted, the
Department, which currently "has the sole authority for the design
and implementation of all telecommunication" in the State, would
have representation on the Task Force. This representation, he
noted, would allow the Department to "mesh" its planning and policy
responsibilities with the other Task Force members' positions. He
cautioned that omitting the Department from the task force would
limit the task force's effectiveness. He noted that to really
succeed with this endeavor, public and private entities, working
together, would be necessary. He commented that the bill's sponsor
is not opposed to the Department's participation on the task force.
Ms. Stancliff affirmed that the sponsor does not object to the
amendment.
Co-Chair Wilken removed his objection.
There being no further objection, Amendment #1 was ADOPTED.
WANETTA AYERS, Representative, Southwest Alaska Municipal
Conference (SWAMC) testified via teleconference from an offnet site
in support of the bill, as it would benefit the SWAMC region. She
noted that SWAMC would support any technology that would further
telecommunication connectivity to the region. She voiced optimism
that advances in this field would assist "to bridge the digital
divide" and would enhance the economy of the region and the area's
quality of life.
Senator Dyson understood that the adoption of Amendment #1 would
require concurrence from the House of Representatives.
Conceptual Amendment #2: This amendment inserts the words, "and
wireless" following "fiber optic" on page one, line eight of the
Resolution. The revised language reads as follows:
Whereas access to fiber optic and wireless connectivity will
help bridge the digital divide that separates rural Alaska
from the benefits of technological advances realized by urban
areas; and
Senator Dyson moved to adopt Conceptual Amendment #2.
There being no objection, Amendment #2 was ADOPTED.
Senator Dyson moved to report the bill, as amended, from Committee
with individual recommendations and accompanying fiscal notes.
Co-Chair Green objected.
Co-Chair Green voiced concern regarding the $99,500 fiscal note #3,
dated March 4, 2004 from the Legislative Affairs Agency;
specifically that funding for a fulltime eleven-month staff person
would be required.
There being no objection, Senator Dyson removed his motion to
report the bill from Committee.
Co-Chair Wilken ordered the bill HELD in Committee in order to
address concerns regarding fiscal note #3.
SENATE CS FOR CS FOR HOUSE BILL NO. 511(HES)
"An Act relating to the certificate of need program for health
care facilities; and providing for an effective date."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Wilken noted that the Senate Health, Education, & Social
Services Committee (HES) committee substitute, Version 23-LS1755\X,
is before the Committee. He noted that two Letters of Intent
accompany the legislation.
SARA NIELSEN, Staff to Representative Ralph Samuels, the bill's
sponsor, stated that this bill would attempt to "level the playing
field," by altering current Certificate of Need (CON) requirements
such as those that pertain to a relocation of an ambulatory
surgical facility to a new site. In addition, she explained that
the bill would further define the term "expenditure" to aid in
correcting a current "loophole" in the CON process in which
"facilities are leasing space and equipment to themselves" to
circumvent "the one million dollar threshold," which is the point
at which a CON would be required.
Ms. Nielsen noted that the bill would also: eliminate the
requirement that an additional CON be required for expenses
associated with routine maintenance and replacement; would not
require a CON to be issued in the case of an emergency or temporary
situation such as an earthquake; and would add independent
diagnostic facility and residential psychiatric treatment centers
to the definition of a health care facility. She pointed out that
the inclusion of these two entities in the definition would require
them to adhere to CON requirements.
Ms. Nielsen stated that the bill would also require the Department
of Health and Social Services to process CON applications more
expeditiously by specifying a 60-day rather than a 90-day review
process. She noted that the bill also specifies that were a
residential psychiatric treatment center under construction at the
time this legislation enacted, it would not be required to adhere
to CON guidelines.
Ms. Nielsen explained that the Senate HES committee substitute
addressed concerns regarding the CON process that was provided for
in the House of Representatives Letter of Intent.
Amendment #1: This amendment inserts new language into Section 2 of
the bill on page two, line one, as follows.
(d) Beginning July 1, 2005, the $1,000,000 threshold in (a) of
this section shall be increased by $50,000 annually until July
1, 2014.
Co-Chair Green moved to adopt Amendment #1.
Co-Chair Wilken objected for explanation.
Co-Chair Green explained that while she had originally sought a
larger annual CON limit increase, the $50,000 annual increase is
acceptable to most concerned parties. She informed the Committee
that Alaska is one of only six states with a CON ceiling of one
million dollars or less as others have no ceiling or incorporate a
significantly higher ceiling pertinent to such things as long-term
care facilities or renovations. She stated that Alaska's current
ceiling was established in the 1980s and has never been inflation
proofed. She stated that, while this issue would continue to be re-
addressed every few years, this amendment would serve as a step in
adjusting the "woefully" low CON rate in that, by the year 2014, it
would be to "at least half of the level" it should be. This gradual
rise, she noted, would not be implemented until January 1, 2005.
Co-Chair Green noted that the Department of Health and Social
Services' Commissioner voiced concern that too rapid an increase
might negatively affect programs such as Medicaid.
Co-Chair Wilken asked for further clarification regarding what
would be affected in Sec. 2(a) were this amendment adopted.
Co-Chair Green clarified that Sec. 2(a) pertains to the CON
threshold.
Co-Chair Wilken removed this objection to Amendment #1.
There being no further objection, Amendment #1 was ADOPTED.
BLAINE GILMAN, Attorney, testified via teleconference from Kenai
and noted that his clients: The Lord's Ranch, Arkansas Counseling,
and Alaska Counseling among others; currently provide residential
psychiatric treatment for approximately 110 children in the State
of Arkansas, some of whom are from Alaska. He noted that these
clients are in the process of purchasing land in Kenai upon which
to construct a children's psychiatric treatment center. He asked
that consideration be given to implementing an October 1, 2004
effective date for the bill rather than an immediate effective date
as specified in Section 9, page five, line 27, as their project
would be negatively impacted were it required to adhere to the CON
specifications.
Mr. Gilman also requested adding the words "if necessary" to
building permit language as specified in Section 8, subsection
(c)(1)(B) on page five, line 23. He noted that while the land
currently identified for purchase by his clients is within the
Kenai Municipal Borough city limits, an alternate site is located
outside of the Municipality and, as such, is exempt from building
permit requirements. He asked that consideration be given to both
amendment suggestions.
Co-Chair Wilken asked the Department of Health and Social Services
to respond to Mr. Gilman's concern regarding the bill's effective
date.
JOEL GILBERTSON, Commissioner, Department of Health and Social
Services, affirmed that this legislation would incorporate
residential psychiatric treatment centers into the CON process. He
noted that, due to the unavailability of in-state services,
approximately half of the State's youth in need of these services
are receiving treatment outside of the State. He noted that the
effective date identified in this bill was determined based on the
Department's historical Certificate of Need process that has
addressed such things as how a project "in the works" would be
recognized. He furthered that the traditional interpretation of
grandfathering in a project that is "in the works" would include
projects that have a building permit; have a valid set of
architectural drawings; and of which valid construction has begun.
He stated that the Department's historical interpretation policy
was incorporated into the Senate HES committee substitute, as
referenced in Section 8, subsection (c) beginning on page five,
line 17 of Version "X".
Commissioner Gilbertson informed the Committee that there are,
currently, a number of private for-profit and non-profit
organizations examining whether or not to construct residential
treatment centers in the State, and he noted that were they all
furthered, they might provide more beds than the State requires.
Therefore, he communicated that the Department is supportive of
incorporating these types of facilities into the CON program as it
would provide the State the opportunity to oversee what the actual
needs of the State are and to determine the appropriate
geographical placement of these centers in order to best serve
those in need of services. He concluded therefore that the
Department supports an effective date consistent with historical
Department interpretation.
Co-Chair Wilken noted that the effective date issue had been
discussed in other committee hearings on the bill, and, while he
acknowledged Mr. Gilman's concern, he voiced understanding the
Department's "logic" in this regard.
There being no further questions regarding the effective date
clause, Co-Chair Wilken asked the Department to address the
building permit issue for facilities being constructed outside of
an organized community
Commissioner Gilbertson stated that Mr. Gilman's concern regarding
the appropriateness of requiring a building permit in an area where
none is otherwise required is "a fair comment." Therefore, he
stated that the Department would support an amendment to clarify
that were a building permit not otherwise necessary, the State
should not require it.
Conceptual Amendment #2: The intent of this conceptual amendment is
to clarify that a building permit would not be required for a
facility being constructed in a location that would otherwise not
involve a building permit, such as being outside of an organized
borough. The language being affected by this amendment is located
in Sec. 8, subsection (c) (1) (B) on page five, line 23 of Version
"X".
Senator Dyson moved to adopt Conceptual Amendment #2.
There being no objection, Conceptual Amendment #2 was ADOPTED.
Co-Chair Green asked whether the Senate HES Committee Letter of
Intent would supersede the House of Representatives Letter of
Intent.
Senator Dyson affirmed that it would.
Senator Dyson moved to adopt the Senate HES Committee Letter of
Intent.
Ms. Nielsen acknowledged that the Senate HES Committee Letter of
Intent was appropriate.
Co-Chair Green objected to the motion.
Co-Chair Green brought to the Committee's attention her on-going
concern regarding the discrepancies that exist "between regulations
and current statutes;" particularly in regards to some of the
decision making that is conducted in regards to the CON process.
She noted that this Letter of Intent specifies that CON applicant
information should not be made available before the CON has been
declared complete by the Department, as those involved in the CON
process should be assured that their preliminary information would
be kept confidential until that point.
Co-Chair Green removed her objection.
There being no further objection, the Senate HES Committee Letter
of Intent was ADOPTED.
Co-Chair Green moved to report the bill from Committee.
Senator Olson interjected that the CON process has evolved beyond
its original intent. Continuing, he declared that there is a belief
that the CON process is used as a tool by large health care
organizations to refrain smaller local health care entities from
advancing their service. Therefore, he asked how he could assure
small entities that this bill would not inhibit their ability to
compete with larger organizations or businesses.
Commissioner Gilbertson agreed that the Certificate of Need program
has been an issue of debate for a long time. He stated that the
Department endeavors to manage the CON program in a fair manner. He
stated that when reviewing a CON, one of the Department's primary
considerations is whether there is a need for the service. He noted
that the lone exception would be that the cost factor is an
additional concern in the case of long-term care facilities. He
stated, therefore, that the CON program has provided the State with
the ability to appropriately determine the level of need in a
community and statewide. He stressed that the Department has worked
aggressively to expand health care services in the State, and he
opined that the CON program "is not a barrier" to this goal. He
stated that this legislation would affect residential psychiatric
care facilities, imaging facilities, and ambulatory surgery
centers, as they are not currently included in the CON
requirements. He agreed that health care has changed since the
inception of the CON process; however, he stressed that the
Department is aware of the on-going challenge of fairly
administering the CON program during these "changing times."
Senator Olson reiterated the concern that the CON is a complicated
program and that providers in rural areas of the State are
concerned that larger organizations could use the program to the
disadvantage of smaller programs.
Commissioner Gilbertson replied that the Department reviews and
approves appropriate applications and denies inappropriate ones,
both from large and small organizations.
Senator Dyson declared that this bill would provide some
improvement to the current process. He stated that, in the bigger
picture, the process might not work well for a small entity that
wishes to offer services also offered by a larger facility.
However, he stated that assistance in the effort to address "the
deeper underlying problems" of providing health care in the State
is welcome.
Co-Chair Green restated her motion to report the bill, as amended,
and the HES Letter of Intent, from Committee with individual
recommendations and accompanying fiscal notes.
There being no objection, SCS CS HB 511(FIN) was REPORTED from
Committee, accompanied by the HESS Letter of Intent, and zero
fiscal note #1, dated March 1, 2004 from the Division of Public
Health, Department of Health and Social Services and zero fiscal
note #2, dated March 1, 2004 from the Division of Behavioral
Health, Department of Health and Social Services
AT EASE 11:20 AM / 11:21 AM
RECESS TO THE CALL OF THE CHAIR 11:21 AM / 3:54 PM.
ADJOURNMENT
[NOTE: Due to technical difficulties, the adjournment of the
meeting was not recorded.]
Co-Chair Gary Wilken adjourned the meeting at 03:54 PM.
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