Legislature(1997 - 1998)

04/22/1998 09:08 AM Senate HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
      SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE                   
                          April 22, 1998                                       
                            9:08 a.m.                                          
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Senator Gary Wilken, Chairman                                                  
Senator Loren Leman, Vice-Chairman                                             
Senator Lyda Green                                                             
Senator Jerry Ward                                                             
Senator Johnny Ellis                                                           
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
None                                                                           
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
CS FOR HOUSE BILL NO. 353(HES) am                                              
"An Act relating to adoption by reference in regulations; and                  
providing for an effective date."                                              
     HEARD AND HELD                                                            
                                                                               
HOUSE BILL NO. 367 am                                                          
"An Act relating to part-time public school students; and providing            
for an effective date."                                                        
     PASSED CSSB 367 OUT OF COMMITTEE                                          
                                                                               
PREVIOUS SENATE COMMITTEE ACTION                                               
                                                                               
HB 353 - No previous Senate action.                                            
                                                                               
HB 367- See HESS minutes dated 4/17/98.                                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
John Cyr, President                                                            
National Education Association of Alaska (NEAA)                                
114 Second Street                                                              
Juneau, Alaska  99801                                                          
POSITION STATEMENT:  Opposed to HB 367                                         
                                                                               
Representative Fred Dyson                                                      
Alaska State Capitol                                                           
Juneau, Alaska 99801-1182                                                      
POSITION STATEMENT:  Sponsor of HB 367                                         
                                                                               
Lisa Torkelson                                                                 
Aide to Representative Dyson                                                   
Alaska State Capitol                                                           
Juneau, Alaska  99801-1182                                                     
POSITION STATEMENT:  Answered questions on HB 367                              
                                                                               
Bruce Campbell                                                                 
Aide to Representative Pete Kelly                                              
Alaska State Capitol                                                           
Juneau, Alaska  99801-1182                                                     
POSITION STATEMENT:  Testified for the sponsor of HB 353                       
                                                                               
Paul Grossi                                                                    
Division of Workers' Compensation                                              
Department of Labor                                                            
P.O. Box 25512                                                                 
Juneau, Alaska  99802-5512                                                     
POSITION STATEMENT:  Supports HB 353 with a technical change                   
                                                                               
John B. Chenoweth                                                              
Assistant Attorney General                                                     
Department of Law                                                              
P.O. Box 110300                                                                
Juneau, Alaska  99811-0300                                                     
POSITION STATEMENT:  Answered questions regarding HB 353                       
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-37, SIDE A                                                             
Number 001                                                                     
                                                                               
CHAIRMAN WILKEN called the Senate Health, Education and Social                 
Services (HESS) Committee to order at 9:08 a.m.  Present were                  
Senators Leman, Green and Chairman Wilken.  The first order of                 
business before the committee was HB 367.                                      
                                                                               
      HB 367 - PART-TIME PUBLIC SCHOOL STUDENT ENROLLMENT                      
                                                                               
CHAIRMAN WILKEN announced a committee substitute to HB 367 was                 
prepared.                                                                      
                                                                               
SENATOR LEMAN moved to adopt SCSHB 367(HES), version B, as the                 
working document before the committee.                                         
                                                                               
CHAIRMAN WILKEN explained language was added on page 1, line 14,               
and page 2, lines 1-3, to address the issue of double counting. The            
new language will prevent a student from being counted as more than            
one FTE.  This change has the approval of DOE and Representative               
Dyson, the bill sponsor.                                                       
                                                                               
There being no objection to the adoption of SCSHB 367(HES),                    
CHAIRMAN WILKEN noted the motion carried.                                      
                                                                               
Number 046                                                                     
                                                                               
JOHN CYR, President of the National Education Association - Alaska             
(NEAA), made the following comments about SCSHB 367(HES).  When                
this issue first surfaced last year, and a similar bill passed the             
Legislature, NEA took no position on the bill.  NEA does not oppose            
private school students being allowed to attend public schools, as             
long as the money follows those students.  The problem NEA has with            
this bill is the language on page 9 that states, "... or require               
that part-time students be enrolled after full-time student                    
enrollment is completed."  Mr. Cyr explained he taught advanced                
placement U.S. history, which was a very competitive class with a              
waiting list, at Wasilla High School.  The class could not                     
accommodate all of the interested full-time students. That same                
situation is occurring in a number of public high schools in Alaska            
in honors and advanced placement classes.  He thought it is only               
fair that full-time students get first shot at those classes,                  
however, SCSHB 367(HES) gives a preference to students who attend              
part-time.  If that provision of the bill can be changed, NEA has              
no problem with the bill.                                                      
                                                                               
CHAIRMAN WILKEN asked Mr. Cyr if the NEAA position paper he                    
submitted addresses that issue.                                                
                                                                               
MR. CYR said the position paper does.                                          
                                                                               
REPRESENTATIVE DYSON joined committee members at the table.                    
                                                                               
SENATOR LEMAN referred to page 2 of the NEAA position paper, and               
specifically to the section which read:                                        
     "This development causes us a concern over the break in the               
     law on separation of church and state.  Article VII, Section              
     1, of our Constitution provides, 'No money shall be paid from             
     public funds for the direct benefit of any religious or other             
     private educational institution.'"                                        
Senator Leman asked Mr. Cyr if he was defining that provision of               
the Constitution as a law pertaining to the separation of church               
and state.                                                                     
                                                                               
MR. CYR replied, "I believe when it says, 'No money should be paid             
from public funds for the direct benefit of any religious or other             
private educational institution,' that does have to do with the                
separation of church and state.  It seems to me if we provide the              
kind of benefit that we're talking about, and what it does is it               
enhances the position of private schools.  They don't have to                  
provide those kinds of honors' courses that they would otherwise               
have to provide for their students.  They can be taken in the                  
public school.  We see that as a problem."                                     
                                                                               
Number 119                                                                     
                                                                               
SENATOR LEMAN commented he recently watched the finals basketball              
game in the 3A championship between Eielson and Anchorage Christian            
School.  That game mutually benefitted both public and private                 
school students.  He stated that mixture of students occurs in                 
other activities as well and that Alaska is well served when those             
types of activities occur.                                                     
                                                                               
MR. CYR stated NEAA is supportive of private schools in that aspect            
and it believes that parents should have the right to send their               
child to private school, if they wish to do so. NEAA does not                  
believe it is appropriate for the state to provide benefits for                
private school students that may supplant students in the public               
schools.  He emphasized if the classroom space was available, no               
one would oppose this issue but public school students who compete             
to get into classes might be turned away because a part-time                   
student wants to enroll.                                                       
                                                                               
SENATOR LEMAN stated the net result in Mr. Cyr's example would be              
the same, provided the part-time student met the academic rigor.               
                                                                               
MR. CYR said we do not know that.  If the state wants to begin to              
track and hold private schools responsible for curriculum and                  
grading decisions in the same way that public schools are held                 
responsible, then private schools will no longer be private.                   
Public school administrators do not know what an "A" or a "B" grade            
means in another school.  He added the process to get into some of             
the upper level honors classes in public schools begins early.                 
                                                                               
SENATOR LEMAN pointed out that there are 94 part-time students in              
the Anchorage School District out of 48,000, so the bill will apply            
to a fairly small number of students.   He believes we can advance             
the level of education in Alaska by making language, chemistry, or             
other classes available.  If a student became a chemical engineer              
and Alaska played a part in making that possible by providing                  
classes to part-time students, that would be consistent with the               
objectives of providing for an education system in Alaska.                     
                                                                               
MR. CYR commented that this issue is about the problems some                   
parents have had with the Anchorage School District.  He cautioned             
that the approach taken in HB 367 to remedy that problem is similar            
to using nuclear weapons to drive tacks.                                       
                                                                               
Number 219                                                                     
                                                                               
REPRESENTATIVE DYSON informed committee members a few other Alaska             
school districts have spotty performance records on accepting all              
students, but the Anchorage School District makes a policy out of              
sending part-time students to the back of the line.  The Anchorage             
School District accepts tax money paid by private school students'             
parents.  The argument that the U.S. Constitution is threatened by             
a nine year old student who attends a public school math class is              
ludicrous on its face.  The U.S. Constitution has survived a few               
hundred years of very serious challenges.  As discussed last week,             
a school district has every right to apply equally, to part and                
full-time students, the same prerequisites and preregistration                 
requirements for class enrollment.  The Anchorage School District              
will not even allow students enrolled in the state correspondence              
course to enroll in classes, under the threat that their entry                 
would threaten constitutional rights.  He noted that Mr. Cyr's                 
concern that classes have waiting lists is valid, however that                 
issue is separate.  School districts need to use whatever resources            
and criteria they have available to decide when to add classes.                
Representative Dyson said he takes extreme exception to the                    
argument that allowing part-time students to take classes in public            
schools will weaken both systems.  Nothing could be more to the                
contrary; this approach should strengthen both systems.                        
                                                                               
REPRESENTATIVE DYSON noted from testimony on last year's bill, he              
learned that several public schools were using the part-time status            
as a way to transition students back into school who had been                  
thrown out for behavioral problems.  Those schools found part-time             
attendance to be a marvelous transition tool.  They also found that            
students from correspondence, home schools, or private schools                 
were, almost without exception, a real asset to the educational                
experience of students in the public school system, and he hopes it            
was vice versa.  Representative Dyson said NEAA's position is the              
exact reason why this bill is necessary: the Alaska Constitution               
prohibits discrimination against any students.  To tell one group              
it cannot participate in public schools seems contrary to the                  
Constitution.  Well educated students are a major resource for the             
future of our state.                                                           
                                                                               
CHAIRMAN WILKEN welcomed Senators Ellis and Ward.                              
                                                                               
Number 282                                                                     
                                                                               
SENATOR GREEN noted part of NEAA's position paper does not address             
the bill.  She also stated, regarding the argument that a "B" grade            
may not be the equivalent in different schools, that same argument             
could be made among public high schools within the same, or                    
different, districts.  She added that even within school districts,            
it has been suggested that policies differ as to how children are              
allowed to enroll in courses and to participate.                               
                                                                               
CHAIRMAN WILKEN explained the changes made in the committee                    
substitute to Senators Ellis and Ward.                                         
                                                                               
SENATOR GREEN asked if the part-time students were actually being              
counted as more than one FTE by DOE.                                           
                                                                               
CHAIRMAN WILKEN answered he did not think so, but the potential to             
do so existed.                                                                 
                                                                               
SENATOR GREEN moved to delete lines 11 through 13 on page 1.                   
                                                                               
SENATOR ELLIS objected for the purpose of an explanation.                      
                                                                               
Number 309                                                                     
                                                                               
SENATOR GREEN stated that the deletion of those lines will actually            
have no effect because it is already understood that the bill only             
applies to academic subjects.  That language was added by a                    
committee to restate that position.                                            
                                                                               
SENATOR ELLIS commented if another committee explicitly added that             
language in, it must have thought it to be important.                          
                                                                               
REPRESENTATIVE DYSON clarified that the amendment was added on the             
House floor, by Representative Kubina, to ensure that the bill                 
would remain neutral on extracurricular activities.                            
                                                                               
Number 326                                                                     
                                                                               
MS. TORKELSON clarified that Representative Kubina asked if a                  
governing body could be considered the Alaska School Activities                
Association (ASAA).  After researching the issue, she found that a             
governing body, according to statute, can only mean the school                 
board.  The ASAA, since 1994 or 1995, has been a separate non-                 
profit entity; it has no relation to DOE anymore.  She gave this               
information to Representative Kubina and to Representative Porter              
who requested that the language be added for the purpose of                    
clarification.                                                                 
                                                                               
SENATOR ELLIS felt that language is comfort language that could                
prevent litigation in the future.  However, he stated he would not             
maintain his objection if the committee wants to remove it.                    
                                                                               
CHAIRMAN WILKEN stated he thinks the exclusion of those three lines            
creates a firestorm in the bill and that he would be voting against            
the amendment.                                                                 
                                                                               
Number 355                                                                     
                                                                               
REPRESENTATIVE DYSON agreed with Chairman Wilken that leaving the              
language in tends to quiet down people who get alarmed about the               
bill and its inclusion does not change the effect of the bill.                 
                                                                               
The committee took a brief at-ease.                                            
                                                                               
The motion to delete lines 11-13 on page 1 carried with Senators               
Leman, Green, and Ward voting for the motion and Senator Ellis and             
Chairman Wilken voting against it.                                             
                                                                               
SENATOR LEMAN moved to report SCSHB 367(HES) out of committee with             
individual recommendations and a zero fiscal note.  SENATOR ELLIS              
objected.  The motion carried with Senators Green, Ward, Leman and             
Chairman Wilken voting for the motion, and Senator Ellis voting                
against it.                                                                    
                                                                               
          HB 353-ADOPTION BY REFERENCE IN REGULATIONS                          
                                                                               
BRUCE CAMPBELL, staff to Representative Pete Kelly, sponsor of HB
353, made the following remarks.  HB 353 will allow a state agency,            
when it adopts a regulation that incorporates a document by                    
reference, to incorporate future amended versions of that document             
with the condition that the document is explicitly authorized by               
statute.  HB 353 provides statutory authorization to incorporate               
updated versions of any of the items listed on pages 2-3, as long              
as the appropriate notification requirements are met.  Notification            
requirements include publication in the Administrative Journal, as             
well as notification of other interested individuals, and the                  
regulations attorney in the Department of Law.  HB 353 is a                    
paperwork reduction measure.  Currently, state agencies must                   
distribute complete sets of regulations being re-promulgated for               
the purpose of incorporating an updated document.  If HB 353 is                
enacted, state agencies will be able to notice only the issue being            
updated.  HB 353 contains a specific list of codes which are                   
updated by various agencies each year; most of the items on the                
list for DHSS are the numeric codes used to identify medical                   
treatments and prescriptions for insurance and billing purposes.               
                                                                               
CHAIRMAN WILKEN asked Mr. Campbell to comment on the amendments                
before the committee.                                                          
                                                                               
MR. CAMPBELL stated Representative Kelly supports the three                    
amendments.                                                                    
                                                                               
CHAIRMAN WILKEN clarified that the amendment labeled Lauterbach A.1            
is Amendment #1 by Senator Leman; A.2 is Amendment #2, and the                 
conceptual amendment will be Amendment #3.                                     
                                                                               
SENATOR LEMAN moved to adopt Amendment #1.                                     
                                                                               
MR. CAMPBELL deferred to a representative from the Department of               
Labor to comment on Amendment #1.                                              
                                                                               
PAUL GROSSI, Director of the Division of Workers' Compensation in              
the Department of Labor (DOL), made the following comments.  The               
intent of Amendment #1 is to allow the adoption, in regulation, by             
reference of future editions of documents presently used.                      
Amendment #1 refers to the United States Department of Labor's                 
"Selected Characteristics of Occupations Defined in the Revised                
Dictionary of Occupational Titles," which describes both the                   
physical and mental demands of an occupation so that the Division              
of Workers' Compensation can determine whether an injured worker is            
capable of performing those duties.  Allowing DOL to use updated               
editions of that document requires a statutory change.  Mr. Grossi             
cautioned the amendment may need a technical change to ensure that             
all future references could be adopted because DOL changes the                 
names of the documents it uses.  The amendment refers to the United            
States Department of Labor's "Selected Characteristics of                      
Occupations Defined in the Revised Dictionary of Occupational                  
Titles."  That is the current publication available, however DOL is            
not using that edition, it uses the 1981 edition.  He suggested                
using language that refers to future amended versions, editions,               
revisions, or replacements.  DOL is currently looking at using a               
computerized system called "ONET" in the future.  That program will            
not be a revision of the Revised Dictionary, it will be an                     
electronic replacement.  DOL is in support of this legislation but             
the amendment may need to be revised.                                          
                                                                               
Number 461                                                                     
                                                                               
MR. CAMPBELL noted Jack Chenoweth, the bill drafter, was present.              
                                                                               
CHAIRMAN WILKEN asked if that technical change could be worked out             
among the interested parties and brought back to the committee.                
                                                                               
MR. CAMPBELL noted the bill was provided to the Department of Law              
which created the draft version from it.  The difference in the                
committee substitute is that the Department of Law suggested that              
a set of rules be created in the first section of the bill that                
occur within the Administrative Procedures Act.  Amendment #1                  
provides for the specificity required for that process in the                  
Department of Labor's actual code.                                             
                                                                               
CHAIRMAN WILKEN asked what committee the bill is next referred to.             
                                                                               
SENATOR GREEN replied the Senate State Affairs Committee.                      
                                                                               
CHAIRMAN WILKEN thought this issue might be appropriately addressed            
by the Senate Judiciary Committee.  He asked if Amendment #1 needs             
to be amended.                                                                 
                                                                               
JACK CHENOWETH, Assistant Attorney General, stated Mr. Grossi's                
concern is answered on page 2 of the existing bill.  Lines 15-21               
take into consideration the possibility that a document that is                
identified with a very specific title may have that title changed.             
The language on those lines reads:                                             
     (d)  A change in the form, format, or title in a future                   
     amended or revised version of a document or material                      
     incorporated by reference in a regulation under this section              
     does not affect the validity of the regulation ...."                      
The language goes on to say the regulation attorney shall correct              
the title in the Alaska Administrative Code under the editorial                
authority.  If the title cited in the language of Amendment #1                 
should change, and another document that serves the same purpose is            
substituted, the regulation attorney would simply update that in               
the regulation so that DOL could continue to make use of the most              
recent version of the document as the basis of whatever                        
applicability it may have.                                                     
                                                                               
Number 491                                                                     
                                                                               
SENATOR GREEN questioned whether that would be true even if the                
document precedes the revised dictionary of occupation titles.                 
                                                                               
MR. CHENOWETH said it would not.  The documents referenced in the              
bill would act as the baseline reference.                                      
                                                                               
MR. CAMPBELL stated the document adopted by DOL regulation is the              
"Selected Characteristics of Occupations Defined in the Revised                
Dictionary of Occupational Titles."  DOL would like to be using the            
current version which has not been adopted by regulation.                      
                                                                               
MR. GROSSI said that was incorrect.  The edition that was adopted              
by statute is not the revised edition, it is the "Selected                     
Characteristics of Occupations Defined in the Dictionary of                    
Occupational Titles."  DOL cannot update the version used, by                  
regulation, because it is strictly defined in statute.  That is one            
reason why DOL supports this amendment.                                        
                                                                               
CHAIRMAN WILKEN asked Mr. Campbell to work on the necessary                    
revisions and bring the bill back to the committee at a later date.            
                                                                               
SENATOR LEMAN suggested including language in the bill regarding               
the notification process that is similar to the standard language              
used when code upgrades occur.                                                 
                                                                               
Number 518                                                                     
                                                                               
SENATOR GREEN commented she has seen a couple of letters in                    
opposition to the bill.  She asked Mr. Campbell to address the                 
issues in those letters.                                                       
                                                                               
MR. CAMPBELL stated he is only aware of one letter of objection                
that was not sent to the sponsor nor any of the committees in which            
the bill has been heard.  The author of that letter did not address            
the topic of the bill.  The author is concerned about the nature of            
the computer program used to adopt uniform billing codes. That                 
concern may be valid but nothing in this bill addresses how Claim              
Check works.                                                                   
                                                                               
MR. CAMPBELL asked Chairman Wilken if he would like a new committee            
substitute prepared.                                                           
                                                                               
CHAIRMAN WILKEN said he would.                                                 
There being no further business to come before the committee,                  
CHAIRMAN WILKEN adjourned the meeting at 10:12 a.m.                            

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