Legislature(1997 - 1998)
04/11/1997 09:09 AM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION & SOCIAL SERVICES COMMITTEE
April 11, 1997
9:09 a.m.
MEMBERS PRESENT
Senator Gary Wilken, Chairman
Senator Loren Leman, Vice Chairman
Senator Lyda Green
Senator Jerry Ward
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 102
"An Act relating to the eligibility of aliens for state public
assistance and medical assistance programs affected by federal
welfare reform legislation; and providing for an effective date."
- MOVED SB 102 OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 147(HES) am
"An Act relating to the expenses of housing nonresident charter
school students; relating to authorizing charter school programs to
provide domiciliary and other services to nonresident charter
school students; relating to duties of the state Board of
Education; and relating to the establishment of state boarding
schools."
- MOVED CSHB 147(HES) am OUT OF COMMITTEE
SENATE BILL NO. 134
"An Act relating to home schooling for elementary and secondary
students."
- MOVED CSSB 134(HES) OUT OF COMMITTEE
SENATE BILL NO. 17
"An Act creating the crime of criminal transmission of human
immunodeficiency virus (HIV)."
- MOVED SB 17 OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 102 - See Senate Health, Education & Social Services minutes
dated 3/12/97.
HB 147 - No previous Senate action to record.
SB 134 - No previous Senate action to record.
SB 17 - No previous Senate action to record.
WITNESS REGISTER
Representative Con Bunde
State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Prime Sponsor of CSHB 147(HES) am.
John Cyr, President
NEA-AK
114 Second Street
Juneau, Alaska 99801
POSITION STATEMENT: Discussed concerns with CSHB 147(HES) am.
Barbara Kangas
PO Box 7635
Kenai, Alaska 99611
POSITION STATEMENT: Expressed concern with the financing.
Senator Leman
State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Prime Sponsor of SB 134.
Rachael Moreland, Staff
Senator Leman
State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Discussed CSSB 134(HES).
Mary Trimble, President
Eagle River Chugiak Home School Association
19510 Third Street
Eagle River, Alaska 99477
POSITION STATEMENT: Commented on CSSB 134(HES).
Julie Chase
Valley Home Educators
851 W. Sheldon Road #3
Wasilla, Alaska 99654
POSITION STATEMENT: Appreciated CSSB 134(HES).
Jamie Cox, Home Schooler
Fairbanks, Alaska
POSITION STATEMENT: Supported SB 134.
Ruth Ewig, Home Schooler
Fairbanks, Alaska
POSITION STATEMENT: Supported SB 134 and SB 17.
Sharon Smith
Fairbanks, Alaska
POSITION STATEMENT: Thanked the sponsors for SB 134 and supported
SB 17.
Lisa Sites, Home Schooler
Fairbanks, Alaska
POSITION STATEMENT: Encouraged support of SB 134 and supported
SB 17.
Sharylee Zachary, Home Schooler
PO Box 1531
Petersburg, Alaska 99833
POSITION STATEMENT: Believed SB 134 would help clarify home
schooling.
Barbara Njaa, Home Schooler
PO Box 8042
Nikiski, Alaska 99635
POSITION STATEMENT: Favored SB 134.
Debbi Palm, Home Schooler
HC1 Box 956
Kenai, Alaska 99611
POSITION STATEMENT: Supported CSSB 134(HES).
Mary & Dean Nichols, Home Schoolers
205 Birch Street
Kenai, Alaska 99611
POSITION STATEMENT: Encouraged passage of SB 134.
Joanne Hardesty, Home Schooler
HC01 Box 835
Kenai, Alaska 99611
POSITION STATEMENT: Encouraged the passage of anything favorable
to home schooling.
Gregory Reeser, Home Schooler
44120 McLean Court
Soldotna, Alaska 99669
POSITION STATEMENT: Supported CSSB 134(HES).
Claudia Walton
PO Box 221166
Anchorage, Alaska 99522
POSITION STATEMENT: Asked questions.
Nancy Buell, Director
Division of Teaching & Learning Support
Department of Education
810 W 10th
Juneau, Alaska
POSITION STATEMENT: The department supported the clarification of
home schooling.
Tom Gordy, Associate Pastor
Christian Coalition of Juneau
PO Box 34832
Juneau, Alaska 99803
POSITION STATEMENT: Urged passage of SB 134.
Jack Phelps, Vice President
Alaska Private & Home Educators Association
PO Box 23267
Ketchikan, Alaska 99901
POSITION STATEMENT: Supported SB 134.
Joe Ambrose, Staff
Senator Taylor
State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Discussed SB 17.
Theda Pittman
Alaska Civil Liberties Union
PO Box 201844
Anchorage, Alaska 99520
POSITION STATEMENT: Opposed SB 17.
Dr. John Middaugh, Chief
Section of Epidemiology
Department of Health & Social Services
PO Box 240249
Anchorage, Alaska 99524-0249
POSITION STATEMENT: Opposed SB 17.
Andrea Nenzel, Executive Director
Alaska Native Assistance Association
1057 Fireweed Lane
Anchorage, Alaska 99503
POSITION STATEMENT: Opposed SB 17.
Bonnie McCorquodale, Executive Director
Interior AIDS Association
Fairbanks, Alaska
POSITION STATEMENT: Urged the rejection of SB 17.
Carey Cummings
Interior AIDS Association of Fairbanks
Fairbanks, Alaska
POSITION STATEMENT: Opposed SB 17.
Andy Binkley
Community Outreach
Interior AIDS Association
Fairbanks, Alaska
POSITION STATEMENT: Opposed SB 17.
Barbara Brink
Alaska Public Defenders
900 W. 5th Avenue, #700
Anchorage, Alaska 99501
POSITION STATEMENT: Discussed concerns with SB 17.
Anne Carpeneti, Assistant Attorney General
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Opposed to SB 17.
ACTION NARRATIVE
TAPE 97-38, SIDE A
SB 102 ALIENS AND ASSISTANCE PROGRAMS
Number 001
CHAIRMAN WILKEN called the Senate Health, Education & Social
Services Committee (HES) to order at 9:09 a.m. and introduced
SB 102 as the first order of business. Chairman Wilken noted that
Senate Finance would like to have SB 102 as part of the overall
welfare reform as well as the budget. Chairman Wilken said that he
would entertain a motion to move SB 102 out of committee.
SENATOR LEMAN moved to report SB 102 out of committee with
individual recommendations and accompanying fiscal notes. Without
objection, it was so ordered.
HB 147 STATE BOARDING SCHOOLS/CHARTER SCHOOLS
CHAIRMAN WILKEN announced that CSHB 147(HES) am was the next order
of business before the committee.
REPRESENTATIVE CON BUNDE , Prime Sponsor, informed the committee
that Mt. Edgecombe is Alaska's only authorized boarding school
which has earned an excellent academic reputation. Representative
Bunde explained that CSHB 147(HES) am proposes to increase
opportunities for state boarding schools in order to increase the
quality of education, especially in rural Alaska. The boarding
function of the boarding schools under this bill would not be
funded by the state. He had heard from some communities, rural
centers, that are interested in a boarding school program. There
are a number of small schools in rural Alaska and as the foundation
formulas move forward, the small schools will be encouraged to
consolidate. The option of a boarding school should be available.
CHAIRMAN WILKEN noted that the Superintendent of Galena had visited
him and discussed the facility there. REPRESENTATIVE BUNDE
explained that the entire Air Force facility located in Galena is
being kept in warm storage. The entire capital investment would be
available for a school program. Representative Bunde noted that
the Air Force is paying the water and sewage. Also a contractor
with some 40 employees provides food service which would also be
available to the students. Of course, Galena would like some
additional state money to begin, but Representative Bunde believed
that there are other sources.
Number 135
JOHN CYR , President of NEA-AK, was concerned with the finances. If
school districts decide to build boarding schools in rural Alaska,
that is an expensive proposition. Someone will have to pay for the
boarding of those students. Mr. Cyr stated that financing boarding
schools are too expensive unless the money is taken from regular
programs. Mr. Cyr suggested that this bill is similar to an
unfunded non-mandate.
Mr. Cyr also expressed concern with a statewide program being
administered by a local school district. Currently, statewide
programs such as Mt. Edgecombe are administered by the state, under
the department and the State School Board. Mr. Cyr believed that
process to be appropriate because the program is offered to all
children of Alaska not just those in a local district. As written,
CSHB 147(HES) am does not have a provision for that. Mr. Cyr
expressed the need for state oversight in these programs.
With regard to the concern over the lack of state oversight,
REPRESENTATIVE BUNDE explained that if a boarding school were to be
a charter school, that must be approved by the local school
district and the state school board. In that event, there would be
a level of state approval.
BARBARA KANGAS , testifying from Kenai, was concerned with the
language in Section 1 stating, "may not be paid for with state
money but may be paid for with funds contributed by sources other
than the state." Ms. Kangas informed the committee that her local
school budget was cut by $2.2 million. The Kenai has a number of
charter schools on line for next year. Ms. Kangas did not
understand how funding for another program could be mandated when
current programs cannot be funded.
REPRESENTATIVE BUNDE said that CSHB 147(HES) am was permissive and
did not mandate anything.
SENATOR WARD noted that Galena has 180 days evacuation procedure.
Senator Ward hoped that Galena would become a vocational training
program for the rural Native population. Senator Ward identified
the regional corporations and the Bureau of Indian Affairs for
Native students which would offset some of the costs as in
Wildwood. Senator Ward believed that this was an excellent concept
and such should be provided as options for the local districts.
SENATOR WARD moved to report CSHB 147(HES) am out of committee with
individual recommendations and accompanying fiscal notes. Without
objection, it was so ordered.
SB 134 HOME SCHOOLING EDUCATION PROGRAM
Number 233
CHAIRMAN WILKEN announced that SB 134 was the next order of
business before the committee.
SENATOR LEMAN , Prime Sponsor, informed the committee that this
legislation was brought to his attention by those involved in home
schooling in Alaska. SB 134 provides an exemption in the section
regarding compulsory attendance.
RACHAEL MORELAND , Staff to Senator Leman, informed the committee
that there was a blank CS if the committee would like to adopt it
for discussion purposes.
SENATOR GREEN moved to adopt CSSB 134(HES). Without objection, it
was so ordered.
RACHAEL MORELAND read the following into the record:
Senate Bill 134 adds a paragraph to the compulsory attendance
policy (AS 14.30.010(b)), providing an exemption for children
schooled at home by a parent or guardian. The original bill
required students be instructed in: reading, spelling,
mathematics, science, history, civics, literature, writing, and
English grammar. The new CS on the table deletes that language.
Currently, are no specific provisions in Alaska Statutes pertaining
to home schooled students. There are several ways current home
schoolers comply with the law. Home schoolers in technical
compliance are now required to follow provisions for Private and
Exempt Schools (AS 14.45.100-130), or they may participate in a
government-sponsored course (AS 14.45.010(b)(11)). Neither
provision was designed with home schoolers in mind. SB 134
codifies current practice by many home schoolers.
Families in which children are home schooled are numerous
throughout the state and their numbers are growing quickly. It is
time we acknowledge them by law. SB 134 recognizes the important
contribution home schooling parents and students make to our state.
SENATOR LEMAN asked how many students in Alaska are being home
schooled. RACHAEL MORELAND pointed out that there is no one roster
for home schooled students. There are various home schooling
organizations throughout Alaska. Mr. Phelps could provide an idea
of the numbers of home schooled students in Alaska. In further
response to Senator Leman, Ms. Moreland noted that the committee
packet includes information, a national survey from the Home School
Legal Defense Association whose findings are reflected in Alaska.
Ms. Moreland informed the committee of a recent reading competition
in which many correspondence students won those competitions. Ms.
Moreland informed the committee that she was home schooled, private
schooled, public schooled, and co-op schooled. Ms. Moreland said
that her home school experience was the highlight of her education
besides her college experience. Home schooling allowed Ms.
Moreland to graduate from high school earlier.
Number 326
MARY TRIMBLE , President of Eagle River Chugiak Home School
Association, informed the committee that she also answered the
phones for Alaska Private and Home Educators Association. Ms.
Trimble taught in public schools for six years and have home
schooled for eight years. Ms. Trimble appreciated last year's home
school resolution and CSSB 134(HES) is the next step.
JULIE CHASE , representing Valley Home Educators, appreciated CSSB
134(HES).
JAMIE COX , testifying from Fairbanks, supported SB 134 and
encouraged its passage. Ms. Cox said that home schooling parents
are committed and dedicated and involved in their children's lives.
Furthermore, Ms. Cox suspected that home schooled students would
score above public schooled students. Home schooled students tend
to be polite and respectful.
RUTH EWIG , testifying from Fairbanks, supported SB 134 because the
state should recognize a successful educational alternative such as
home schooling. Ms. Ewig stated that home schoolers believe in
their God given mandate to train children into good, responsible,
critically thinking adults. Home schoolers favor a traditional
approach stressing academic subjects as specified in the bill. The
180 day public school requirement does not fit a home schoolers
routine which varies. Further, home schoolers consider a subject
complete when all the subject matter is completed, not by the
number of days spent on the subject. Ms. Ewig stated that home
schooling is successful locally and nationwide while public
schooling continues to decline.
SHARON SMITH , testifying from Fairbanks, thanked those responsible
for SB 134. She said that there are many reasons why people choose
to home school their children. Ms. Smith was concerned with
education and believed that every day was an education.
LISA SITES , Leader of the Interior Home School Association and past
Leader of the North Slope Support Group, informed the committee
that when her family began home schooling she believed that home
schooling could offer her children the best education available.
Six years later and three children later and Ms. Sites is even more
convinced of that belief. Ms. Sites noted that not every home
schooler is registered through the state, but last year
approximately 1,900 home schooled students were in the Fairbanks
North Star Borough. Home schooling is a viable alternative. It is
estimated that there are about 1.2 million home schoolers across
the nation and most home schoolers score well above average. Ms.
Sites reiterated comments regarding the scheduling of home
schoolers. Ms. Sites encouraged the support of SB 134.
In response to Senator Leman, Ms. Sites clarified that the 1,900
home schoolers refers only to the Fairbanks North Star Borough.
The number was derived from those listed with the Department of
Education in Juneau as private and religious schools as well as the
correspondence figures for the Fairbanks North Star Borough and the
Alyeska Central School. That number was relevant only up to
January 1996.
Number 456
SHARYLEE ZACHARY informed the committee that she would be faxing
her and her husband's written testimony. Petersburg has about 45
home schooled children, although Ms. Zachary suspected that the
surrounding islands also had home schooled children. Ms. Zachary
said that her children are home schooled because there are certain
things that are no longer taught in public schools that Ms. Zachary
desired her children to learn. Furthermore, teachers have their
hands full. Ms. Zachary indicated that her choice to home school
her children helps alleviate the burden of the public school
teacher. Children were learning to be callous and defensive. Ms.
Zachary wanted to raise her children as part of the healing of the
nation not as part of the problem.
Ms. Zachary informed the committee that the Petersburg public
school does not allow home schoolers to participate in some of its
activities and services. Ms. Zachary was told that home schooled
students were not allowed to check out books from the public school
library nor can the home schooled students read material in the
public school library. Ms. Zachary pointed out that her tax
dollars helped purchase such items, yet her children are not
allowed to utilize them. After being informed that this was
policy, Ms. Zachary contacted the school district and was told that
there are no policies for home schoolers. On the other hand, two
home schooled boys were allowed to wrestler for the public school.
This is confusing. Ms. Zachary said that chemistry and foreign
language labs, even if charged a fee, would be easier to utilize in
the public school. SB 134 would clarify the position of home
schoolers.
SENATOR LEMAN was troubled by Ms. Zachary's experience and noted
that similar situations have been experienced in the Anchorage
School District. Representative Dyson has introduced legislation
to deal with that situation. Most school districts do cooperate
with home and private schooling parents. Senator Leman pointed out
that when home schooled or private schooled students participate in
the public school system, the foundation formula compensates for
that. Senator Leman recommended that Ms. Zachary share her
experiences with Representative Dyson. All students in the state
should have access to library materials and special courses.
SHARYLEE ZACHARY stressed that she was not present to fight the
public schools, but wanted to aid in the best education of all
children in Alaska.
Number 530
BARBARA NJAA , testifying from Kenai, informed the committee that
she was a certified teacher with Alaska and that she home schooled
her son for 10.5 years. There are a number of home schoolers in
the area who are in favor of the exemption for home schoolers in
SB 134. Ms. Njaa's son entered the local high school as a Junior
and has not had any problems. Ms. Njaa noted that she enjoyed home
schooling due to her son and other home schooled children who are
able to relate to their peers as well as adults. Ms. Njaa has been
a home school supervisor for a local private school which afforded
her the opportunity to meet parents who home school with whom she
was impressed.
DEBBI PALM , a Home Schooling parent in Nikiski, noted that she too
was a certified teacher who taught in the public schools and worked
with the correspondence program. Ms. Palm supported SB 134; it is
a viable option.
MARY NICHOLS , Home Schooling mother, said that she was in favor of
SB 134 and the amendment included in the CS which would strike the
language dealing with an organized educational program. Ms.
Nichols did, with the original language, see the potential for a
bureaucrat to verify compliance with the requirements and could
lead to further interference. Ms. Nichols believed that parents
are capable of determining the curriculum of their children without
any regulations. The home schooling families that Ms. Nichols knew
were very committed. Ms. Nichols discussed the high scores of her
home schooled children. Ms. Nichols encouraged passage of the
bill.
DEAN NICHOLS , Home Schooling father, informed the committee that he
also represented the First Baptist Church of Kenai which has
several home schooling families. With regard to the concern
surrounding socialization of home schooled students, home schooled
children are some of the most well adjusted and respectful
children.
JOANNE HARDESTY , Home Schooler, said that she had been home
schooling for about six years. Ms. Hardesty noted that her
children had taken the SAT twice and scored high. The first year
Ms. Hardesty home schooled, Ms. Njaa provided oversight on a
monthly basis. Ms. Hardesty encouraged the passage of anything
favorable to home schooling.
TAPE 97-38, SIDE B
GREGORY REESER , Home Schooler, supported SB 134 as well as the
language deletion encompassed in the CS. This bill will elevate
home schooling from a policy level to legal protection under the
law. This bill will clarify the relationship home schoolers have
with the Department of Education, the public school, and parents.
SENATOR WARD concurred with the elimination of the language that
could allow the bureaucrats to become involved in home schooling.
Senator Ward noted that he had received all the letters and
information forwarded to him on this issue. He applauded the
efforts of those to better the community.
SENATOR LEMAN applauded the Administration's cooperation in this
effort. Senator Leman noted that the fiscal note from the
Department of Education says that the department does not intend to
regulate home schoolers.
Number 563
CLAUDIA WALTON inquired as to the changes encompassed in the CS.
SENATOR LEMAN explained that the last two lines of the bill were
deleted. The language "and is receiving an organized educational
program that includes reading, spelling, mathematics, science,
history, civics, literature, writing, and English grammar" were
deleted. CLAUDIA WALTON inquired as to the definition of "home"
and indicated that "home" be defined in a broad context meaning in
the custody of the parents. Anything that can secure this
educational opportunity is beneficial. SENATOR LEMAN interpreted
"home" not to just refer to the domicile, but rather the home unit.
NANCY BUELL , Director of the Division of Teaching & Learning
Support, stated that the Department of Education supports
clarifying and helping parents who choose to school their children.
Ms. Buell noted the unpleasant position of being in "limbo" with
regard to the distinction between home school and public schooled
children. With regard to the language that has been deleted in the
CS, the department believes that all children should learn basic
skills and anything to that effect in the bill would be supported
by the department. Ms. Buell reiterated that the department does
not intend to regulate home schoolers in any way and noted that
many districts provide support for home schooling parents, even in
the form of home school coordinators. The department believes that
to be an appropriate use of the money following the child.
Number 505
In response to Senator Ward, Ms. Buell was not aware of any policy
that would prohibit a home schooled student from utilizing a public
school library. She reiterated that many districts provide the
option for home schooled students to take part in specialized
classes and such. In terms of practice, Ms. Buell could not say
what actually occurs. If there is a concern, the home schooling
parents should bring that before the local school board. In
response to Chairman Wilken, Ms. Buell agreed that the CS would not
change the fiscal note; the fiscal note would remain zero.
CHAIRMAN WILKEN inquired as to how the progress of home schooled
students is measured. NANCY BUELL said that the department is not
measuring the progress of home schooled students. If home
schoolers register as a private school, progress is recorded and
measured by tests. When registered as a private school, the home
schooler is given exempt status which allows the student to keep
the school records. If home schooling is an exemption to the
compulsory schooling law, there would be no way to know the home
schooled student's progress. In further response to Chairman
Wilken, Ms. Buell said that a child can be home schooled for
his/her entire education, but will not receive a diploma.
TOM GORDY , Christian Coalition in Juneau, informed the committee
that he was an Associate Pastor to a local church which has many
home schoolers.
Mr. Gordy identified the following advantages to home schooling:
The one to one student teacher ratio allows for quicker
learning.
The home schooled student can learn at his/her own pace.
Parents can monitor and choose the curriculum and its content.
Constant monitoring of the student's progress can occur.
Alleviates concerns/problems from negative peer pressure.
Mr. Gordy stated that home schooling should be held in the same
regard as public or private education. Mr. Gordy urged the passage
of this measure with full recommendations.
Number 427
JACK PHELPS , Vice President of the Alaska Private & Home Educators
Association (APHEA), explained that APHEA is a nonprofit education
cooperation serving the home school community in Alaska.
Currently, APHEA has a membership of 450 home schooling families
throughout Alaska. Mr. Phelps referred to Robert Neismith's book
entitled Megatrends which mentions home schooling as part of
society's trend towards decentralization and increased personal
responsibility. Estimates report that 2.5 million American
children are being educated by their parents. Home taught children
are widely recognized as well educated and socially adjusted people
and are now sought by many of the best colleges and universities.
Mr. Phelps pointed out that Michigan and Arizona have codified the
role of home schools in the range of educational options. SB 134
is patterned after the law passed in Michigan last year. Mr.
Phelps noted that the Legislature passed SCR 24 last year without
a dissenting vote which placed the Legislature on record as
asserting the importance of home schooling in Alaska. The APHEA
Board of Directors supports SB 134. Alaska parents who teach their
children at home contribute to Alaska's society by preparing
children for the full range of work force opportunities at no cost
to the state. Mr. Phelps noted that he submitted written
testimony. SB 134 is good public policy.
In response to Chairman Wilken, Mr. Phelps informed the committee
that he home taught four children all the way through high school.
Mr. Phelps named his home school and issued a diploma. The Home
School Legal Defense Association offers a diploma that parents can
fill out. With regards to that being an impediment to further
progress in education or the work force, that has not occurred in
his situation. Mr. Phelps pointed out that three of his children
attended college. When his son applied to Hillsdale, there was not
a problem. Hillsdale requested that his son take the college
entrance exam and that a list of subjects and textbooks that his
son studied be supplied.
SENATOR LEMAN commented that he had not home schooled his children,
but was impressed with the commencement exercise he attended for
APHEA a few years ago. The commencement included a subject
demonstration from K-12.
SENATOR LEMAN moved to report CSSB 134(HES) out of committee with
individual recommendations and accompanying fiscal notes. Without
objection, it was so ordered.
The committee took a brief at ease from 10:19 a.m. to 10:20 a.m.
SB 17 CRIMINAL TRANSMISSION OF HIV
Number 346
CHAIRMAN WILKEN introduced SB 17 as the last order of business
before the committee.
JOE AMBROSE , Staff to Senator Taylor, read the following Sponsor
Statement into the record:
Senate Bill 17 was introduced with the goal of putting Alaska in a
pro-active position when it comes to dealing with individuals who
knowingly place others at risk of HIV infection. SB 17 is intended
to be preventative as well as punitive and is intended to render a
criminal rather than moral judgement.
As of December 31, 1996, 369 Alaskans had been confirmed to have
AIDS. That's since tracking began in 1982. Of these cases, 194
are known to have died.
The Epidemiology section of the Division of Public Health reports
that as of December 31, 1996, 640 Alaskans had tested positive for
HIV infection. That number represents only those who have
voluntarily tested through the State Section of Laboratories.
The statistics show that HIV/AIDS affects both male and female,
across all age groups and without respect to race or residence.
The sad fact is that the rate or infection in Alaska is increasing.
If someone intentionally sets out to kill another person by
infecting them with the AIDS virus, they can be charged under state
law with attempted first degree murder. But, what do we do with
the person who does not "intend" to kill, but who still places
others in jeopardy? In 1990, the Attorney General's office
reviewed that question and suggested that ...quote..."it might be
possible to prosecute the person for reckless endangerment"... end
quote.
That is a class A misdemeanor prohibiting reckless conduct which
create a "substantial risk of serious physical injury".
Most people would equate becoming infected with HIV as something
more than a "serious injury".
Twenty seven other states have seen fit to adopt specific laws
dealing with criminal penalties for knowingly transmitting or
exposing another to HIV infection. It would only be prudent for
Alaska to have such a statute on the books.
SB 17 is brief and to the point. It creates the crime of criminal
transmission of HIV and covers actions and conduct known to
transmit the disease.
The bill also provides an affirmative defense when the person
exposed knows beforehand that the action could result in infection.
The bill also provides a provision excluding perinatal transmission
of the virus and to assure that an individual is not prosecuted for
an involuntary act.
SB 17 is not intended to punish those who have contracted HIV. It
is intended to protect others who may be unknowingly exposed to the
virus by what should be a criminal act of irresponsibility.
Mr. Ambrose informed the committee that in drafting SB 17, the
Illinois statute was used almost verbatim which was adopted in
1989. He noted that the Illinois statute was included in the
committee packet as well as a summary of the laws passed in other
states. The committee packet also includes two court rulings on
the Illinois law. On April 6, 1994 the Illinois Supreme Court held
that the statute did not violate state or federal constitutional
protections for free speech or for free association and was not
unconstitutionally vague.
Number 287
With regard to the impact on HIV testing in Illinois, the Illinois
Department of Health reported that after the law was on the books
for six years, testing for HIV/AIDS had increased not decreased.
This year the Illinois Department of Health reported a decrease in
public testing which was attributed to the increased availability
of testing in the private sector as well as home testing. The
Alaska Department of Health reported that the majority of cases
resulted in consensual conduct. Mr. Ambrose asked if consent would
have been given if the facts were known first. SB 17 merely places
the responsibility on the infected person to advise the other
person involved.
THEDA PITTMAN , Alaska Civil Liberties Union, said that ACLU opposed
SB 17 on constitutional grounds and the bill would undermine the
efforts of the public health system. HIV transmission is a public
health problem not a criminal problem. Anyone with a transmittable
disease should understand how to avoid infecting others and utilize
the appropriate precautions. In the rare instances when an
individual recklessly or intentionally transmits HIV, Alaska law
already provides the opportunity for prosecution. Therefore, this
language will not add to the prosecutor's tools, but will likely
decrease voluntary testing and the education management which
typically accompanies testing and notification. Ms. Pittman
pointed out that on page 2, lines 11-13 and lines 1-5 raise due
process concerns regarding whether the state is providing adequate
notice to prohibited behavior. The language on lines 1-5 regarding
the affirmative defense shifts the burden of proof to the defendant
as well as suggesting that the defense must seek information about
the person allegedly exposed that would otherwise be confidential.
Ms. Pittman stated that it made little sense to add a new law when
the current law contains adequate provisions. Ms. Pittman urged
the committee's opposition to SB 17.
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DR. JOHN MIDDAUGH , Chief of the Section of Epidemiology in DHSS,
opposed SB 17. The existing laws enable criminal prosecution and
punishment of egregious behaviors of intentional transmission of
HIV. Passage of SB 17 will discourage testing and participation in
efforts to identify those who have potentially been exposed.
Public health has had experience over many decades that illustrate
that criminalization of infections harms the public health efforts
to control disease transmission. Diseases such as Hepatitis B,
Hepatitis C, the Herpes virus are more likely to be transmitted in
the conducts associated with the transmission of HIV. Dr. Middaugh
was also concerned about the definition of "intimate contact" which
is so broad and could extend to many common activities that pose no
risk for disease transmission of HIV or other pathogens. Sports,
health care, EMT activity, etc. could fall under the definition of
"intimate contact".
Dr. Middaugh pointed out that the title of SB 17 reads, "An act
creating the crime of criminal transmission of human
immunodeficiency virus (HIV)" yet the bill has provisions that show
that transmission is not required for criminalization of a
potential exposure. Exposure is only when a person has contact
with the virus regardless of whether the virus actually infects
another person. In most exposures to HIV, no transmission or
infection of the exposed person occurs. Dr. Middaugh emphasized
that the department is concerned about HIV and the department's
efforts are aimed at the prevention of transmission and spread of
the disease. SB 17 will harm preventive and public health efforts
and therefore, Dr. Middaugh requested that SB 17 not be passed.
CHAIRMAN WILKEN noted the presence of Anne Carpeneti, Department of
Law, and Barbara Brink, Alaska Public Defenders.
ANDREA NENZEL , Executive Director of the Alaska Native Assistance
Association, explained that the Alaska Native Assistance
Association is a private nonprofit group which provides direct
services to persons living with HIV infection and provides
education and behavior changes for the prevention of HIV infection.
The Alaska Native Assistance Association Board and Agency are
adamantly opposed to SB 17. SB 17 will deter efforts to prevent
further HIV infection in Alaska by discouraging testing while
promoting further ignorance and discrimination. Testing and
appropriate counseling and care regarding responsible behavior to
prevent transmission is the most effective way to reduce HIV
transmission. Ms. Nenzel reiterated that the existing law provides
adequate means to prosecute and punish anyone who intentionally or
recklessly transmits HIV. SB 17 will open the door to numerous
suits and the bill is fraught with potential for abuse by unhappy
partners or people with grudges. Ms. Nenzel echoed the comments
regarding the shift of the burden of proof of innocence on the
accused person. Ms. Nenzel urged the committee to vote against
SB 17.
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BONNIE MCCORQUODALE , Executive Director of the Interior AIDS
Association, urged the committee to reject SB 17 and any other
effort to criminalize HIV transmission. Ms. McCorquodale has
worked in the HIV prevention field for almost 10 years. The
prevention of the spread of HIV is a public health issue not a
issue that can or should be addressed by the criminal justice
system. Sound public health policy encourages testing,
notification of partners, treatment, and knowledge about the
protection of others. SB 17 will discourage testing and other
potential life-saving services. HIV is preventable and persons can
protect against it. SB 17 only holds a portion of the population
responsible. Ms. McCorquodale informed the committee that the
Secretary of Health & Social Services and the National Institutes
of Health confirmed that syringe exchange programs reduce the
spread of HIV. The language in the bill which makes the exchange
of nonsterile equipment a crime may work against one of the most
effective methods for reducing HIV in Alaska. Ms. McCorquodale
emphasized that SB 17 is discriminatory and creates a criminal
class based on health status and would set prevention efforts back
years.
CAREY CUMMINGS , Interior AIDS Association of Alaska, opposed SB 17.
Ms. Cummings said that effective public policy encourages people to
make healthy individual choices and does not prohibit, limit, or
prosecute on the basis of biological behavior. SB 17 is not
prevention. By criminalizing the exchange of nonsterile
intravenous drug use equipment, those people utilizing such
programs could be prosecutable. Such criminalization would
increase the nonsterile intravenous needles on the street as well
as increasing the likelihood of the transmission of the virus. Ms.
Cummings encouraged the committee to reject SB 17 because of its
discriminatory nature.
ANDY BINKLEY, Community Outreach Worker with the Interior AIDS
Association, opposed SB 17 because it treats HIV transmission
different from other diseases which could be just as life
threatening. Mr. Binkley opposed the intravenous drug
paraphernalia language which seems headed in the wrong direction.
BARBARA BRINK, Director, Alaska Public Defender Agency, was
concerned with using criminal laws to promote public health instead
of using testing, education, and behavior modification. Ms. Brink
assured the committee that Alaska laws are already sufficiently
available to prosecute any person who either intentionally or
recklessly transmits the HIV virus. She disagreed with the 1980
assessment that one can only be charged with reckless endangerment.
The Alaska assault statutes vary with regard to what one can be
charged with based both on the person's state of mind, whether the
action was intentional, reckless, or negligent, and on the result
of that conduct. Reading from the assault in the first degree
statute, Ms. Brink clarified that a person commits assault if the
person knowingly engages in conduct that results in serious
physical injury to another under circumstances manifesting extreme
indifference to the value of human life. Someone who engages in
that type of behavior can be prosecuted for assault in the first
degree - or assault in the second degree, if a person recklessly
causes serious physical injury to another person. The Alaska
Criminal Code is based on the Oregon Criminal Code which recently
was successful in prosecuting someone when the person engaged in
such intentional behavior.
Number 045
Ms. Brink expressed concern with how broadly the statue is drafted.
The broad definition of "intimate contact" makes unlawful not only
unsafe sex, but safe sex. There is no provision for reasonable
prophylactic measures - something education efforts have been
trying to encourage. A person playing basketball, for instance,
who incurs a bleeding wound could be charged unless he/she could
prove that he/she informed everyone of his/her HIV positive status
and that the people willingly assumed that risk. The meaning of
reasonable efforts to inform medical personnel is unclear. Given
universal precautions, this seems an unnecessary addition. With
regard to the nonsterile paraphernalia provision, needle exchange
programs have been proven to be very effective. Alaska has been
chosen to receive a national grant to study the effect which she
believed would come to a halt because people would be liable for
turning in used and nonsterile needles.
Ms. Brink was concerned with the shifting of the presumption of
innocence. Normally going to trial with a criminal charge, one is
presumed to be innocent, but in this case to prove that the person
knowingly engaged in that conduct is an impossible task.
TAPE 97-39, SIDE A
Ms. Brink said that the American Bar Association has considered
using criminal laws to try to curb the transmission of HIV and
actively adopted a resolution to discourage that. A program of
public education about HIV should be implemented as the most
effective method of deterring behavior which poses a high risk of
transmitting HIV.
SENATOR LEMAN pointed out the definition for "intimate contact" on
page 2. He believed at basketball games it was policy to identify
those players who are carrying HIV which would be covered in the
subparagraph about intimate contact. BARBARA BRINK agreed that in
such organizations and circumstances as the NBA, precautions have
been taken, but "any contact" is so broad and would not be limited
to the NBA or NCAA. What if there was a car accident, more than
one person was injured, there's bodily fluids, and the people in
the car the person has been riding with have not been notified. It
is not limited to only sexual contact. SENATOR LEMAN doubted that
anyone voluntarily engaging in intimate contact would be in a car
accident.
RUTH EWIG strongly supported SB 17 because the person who had
irresponsibly spread the deadly disease to another was held
accountable. Ms. Ewig informed the committee of a newspaper
article about a person who called an ambulance for a friend. The
caller withheld the information about the friend's AIDS infection
and mouth to mouth was performed by the ambulance attendant on the
AIDS infected person.
SHARON SMITH testified in favor of SB 17 because it makes a person
accountable for spreading a deadly disease. Testing for HIV should
be mandatory.
Number 127
LISA SITES testified in favor of SB 17. There is so much
information available on social issues, but it is not really
working. Ms. Sites believed that our society has laws to protect
people when others do not take personal responsibility.
ANNE CARPENETTI, Department of Law, reiterated the department's
opposition to SB 17. The Administration does not take the position
that HIV is not a serious disease nor a serious problem. The
Administration has compassion for the people who are suffering from
the disease. The Administration believes that the best way to deal
with HIV is through a public health effort. Our criminal laws do
cover the conduct in question.
SENATOR WARD moved to pass SB 17 out of committee with individual
recommendations and the accompanying fiscal notes. There were no
objections and it was so ordered.
CHAIRMAN WILKEN adjourned the meeting at 10:55 a.m.
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