Legislature(2001 - 2002)
04/24/2002 01:36 PM 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
ALASKA STATE LEGISLATURE
SENATE HEALTH, EDUCATION & SOCIAL SERVICES COMMITTEE
April 24, 2002
1:36 p.m.
MEMBERS PRESENT
Senator Lyda Green, Chair
Senator Loren Leman, Vice Chair
Senator Gary Wilken
Senator Jerry Ward
Senator Bettye Davis
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 352(HES) am
"An Act extending the dates for assignment of performance
designations of public schools and the dates for reports and
monitoring based on those designations; and providing for an
effective date."
MOVED OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 209(HES)
"An Act directing the Department of Health and Social Services to
establish a foster care transition program; relating to that
program; and providing for an effective date."
MOVED SCS CSHB 209(HES) OUT OF COMMITTEE
SENATE BILL NO. 306
"An Act establishing the Prescription Drug Assistance Task Force;
and providing for an effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 245(L&C) am
"An Act relating to marital and family therapists."
HEARD AND HELD
HOUSE BILL NO. 348
"An Act relating to violations of domestic violence protective
orders."
MOVED OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
HB 352 - No previous action to record.
HB 209 - See HESS minutes dated 4/15/02.
SB 306 - See State Affairs minutes dated 3/21/02.
HB 245 - See Labor and Commerce minutes dated 2/21/02.
WITNESS REGISTER
Dr. Mark Leal
Department of Education &
Early Development
th
801 W 10 St.
Juneau, AK 99801-1894
POSITION STATEMENT: Provided information about reporting
requirements in HB 352
Mr. Richard Benavides
Staff to Senator Davis
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 306 for the sponsor
Ms. Rosalie Walker
AARP - Juneau Chapter
Juneau, AK
POSITION STATEMENT: Supports SB 306
Mr. Richard Cauchi
National Council of State Legislatures
No address provided
POSITION STATEMENT: Provided information on other state action
taken to address prescription drug costs
Mr. Steve Ashland
Division of Senior Services
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Supports SB 306
Representative Peg Wilson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 245
Ms. Caren Robinson
Alaska Mental Health Trust Authority
Department of Revenue
th
550 W 7 Ave., Suite 1820
Anchorage, AK 99501
POSITION STATEMENT: Supports HB 245
Ms. Katherine Reardon
Department of Community & Economic Development
PO Box 110800
Juneau, AK 99811-0800
POSITION STATEMENT: Supports HB 245
ACTION NARRATIVE
TAPE 02-32, SIDE A
Number 001
CHAIRWOMAN LYDA GREEN called the Senate Health, Education &
Social Services Committee meeting to order at 1:36 p.m. Senators
Ward, Leman, Davis and Green were present. The committee took up
HB 352.
HB 352-SCHOOL PERFORMANCE REPORTS
DR. MARK LEAL, Department of Education and Early Development
(DOEED), reminded members that Senator Wilken requested more
information about reporting requirements at a prior meeting.
Senator Wilken was concerned about the number of asterisks on the
school report card because DOEED did not report student results
if fewer than 10 students were tested. As a result, he worked
with Dr. Nick Stayrook from Fairbanks and Gary Wiley (ph) from
Kenai to resolve that problem and brought an example of a format
for the committee's review. DOEED would, through department
regulation, report the results of student testing at very small
schools by the percent proficient for the entire school.
Therefore, if a school had two or three students in each grade
level, the total number of students of all grade levels would be
added for each subject - reading, writing and math, and the
percent proficient in that subject across all grade levels would
be published.
CHAIRWOMAN GREEN informed members that their packets contain a
list of Alaska schools and their student populations. The smaller
schools range from 11 schools with 10 students to six schools
with one student. DOEED will aggregate the scores of all students
from the small schools and determine the percentage proficient in
each subject so that no student can be identified. She asked Dr.
Leal if her understanding is correct.
DR. LEAL said it is and that this approach will get at the
frustration that nothing is reported about particular schools.
The information will not be as precise as the grade level
information, but that information cannot be reported because of
the a possible breach of confidentiality when dealing with a
small number of students. One of DOEED's concerns about reporting
the small numbers, even on an aggregate basis, is that very small
numbers tend to fluctuate dramatically from year to year. One
student's scores could skew the results and make it look like the
school is improving while, in reality, the change is the result
of one new student with high scores. He said DOEED will caution
against making wild claims about improvements for very small
groups of students tested.
CHAIRWOMAN GREEN asked if this method will be used until the full
report card is published or whether this method will continue
after the designator committee is in place.
DR. LEAL said this method will be the protocol for how DOEED
reports data in the school report cards in the future.
CHAIRWOMAN GREEN asked Senator Wilken if he is satisfied that in
the meantime the information provided to the legislature will be
adequate.
SENATOR WILKEN said he is. He commented that he thought using the
method would be a simple fix but he has since been shown it is
much more complex. He is pleased with DOEED's attempt to make it
understandable to most people. He feels the most important thing
is to get as much detail as possible without violating privacy
rules but that should be dealt with in regulation, not
legislation. He said he appreciates the work that Dr. Leal has
done.
CHAIRWOMAN GREEN announced that all members were present. She
then noted the Senate version of this legislation already moved
from this committee but she requested that it be returned. She
feels this legislation is now something everyone can be proud of.
SENATOR WARD moved CSHB 352(HES)am from committee with individual
recommendations and its accompanying fiscal note. There being no
objection, the motion carried.
CHAIRWOMAN GREEN announced the committee would take up HB 209.
HB 209-PROGRAM FOR FORMER FOSTER CHILDREN
CHAIRWOMAN GREEN announced that a proposed committee substitute
(Version O) was before the committee.
SENATOR LEMAN moved to adopt Version O as the working document of
the committee.
CHAIRWOMAN GREEN explained that the previous language on page 1,
line 12, said, "reach or have reached the age of 18 while in
state foster care." The new language reads, "reach or have
reached the age of 16 or older while in state foster care and
have not yet reached the age of 21." That change was made as a
result of committee discussion at the last hearing. In addition,
Version O includes the committee's amendment regarding public and
private organization participation.
SENATOR WARD moved SCS CSHB 209(HES) and its accompanying fiscal
notes from committee with individual recommendations.
CHAIRWOMAN GREEN announced that with no objection, the bill moved
from committee. The committee took up SB 306.
SB 306-PRESCRIPTION DRUG ASSISTANCE TASK FORCE
MR. RICHARD BENAVIDES, staff to Senator Davis, sponsor of SB 306,
made the following statement about the bill.
While Congress debates proposals to add a prescription
drug benefit to Medicare, many states are taking steps
to better protect vulnerable residents from rising out-
of-pocket costs and declining insurance coverage of
prescription drugs. According to the National
Conference of State Legislatures, over 40 states have
considered legislation between 1999 and 2001 to address
prescription drug issues ranging from creation and
modification of pharmacy assistant programs to creation
of purchasing pools and discount purchasing programs
for seniors and persons with disabilities.
SB 306 would only involve Alaska's growing senior
population. The AARP has reported that the annual
growth rate for Medicaid spending on medications rose
23.4 percent in Alaska from 1996 to 1998 with fully a
third of Alaskan seniors having no prescription drug
coverage whatsoever. Between October 31, 1999 and
October 31, 2000, 5,546 Alaskans aged 65 or above who
were eligible for the state's Medicaid program received
263,633 prescriptions at a cost to the state of over
$10 million. Alaska has a number of options for
expanding access to prescription drugs and or reducing
the cost of prescription drugs for our senior
population. Although this is not the traditional role
for states, many states are moving into this void
created by delays at the federal level at adopting a
prescription drug supplement to Medicare.
SB 306 creates a method to look for ways to provide
meaningful relief for seniors in this critical area
without creating large new expenditure programs.
SENATOR LEMAN commented that the Governor would appoint all but
one member of the task force. Recent task forces have had a
larger legislative membership so that the people's branch has
more representation. He said he can understand the make-up based
on the fact that the task force is Administration driven. He then
noted that one of the governor's appointees is to be a person
affiliated with AARP over the age of 55. He questioned that age.
MS. ROSALIE WALKER, President of the local chapter of AARP and a
board member of the Older Persons Action Group, said she sent
members written testimony and will not repeat that but she will
address Senator Leman's question about the appointee over age 55.
AARP used to be the acronym for the American Association for
Retired Persons but, as of this year, the name was changed
entirely because the membership age dropped from 55 to 50. The
Association has found that many baby boomers are taking care of
their parents and need AARP's services just as much as older
people do. Consequently, the name American Association of Retired
People no longer applied. Because the acronym AARP is world
renowned, it was adopted as the official name of the new
organization. She noted AARP and the Older Persons Action Group
support SB 306; prescription drug coverage is a priority of both
groups. She hopes Alaska gets ahead of the national debate and
that the task force can provide the new legislature with
information so that it can hit the ground running. She offered to
answer questions.
CHAIRWOMAN GREEN asked Ms. Walker where the gap exists in
coverage and whether it happens when one transitions from
independent insurance coverage to Medicare.
MS. WALKER said the very poor are taken care of but those on the
borderline and middle-income people fall through the cracks
because of the restrictions of Medicaid.
CHAIRWOMAN GREEN asked if, at age 60, one has coverage for
prescriptions at what point that coverage stops.
MS. WALKER said, "It's across the ages. It's not really the age
that's the problem it's the prescription folks."
SENATOR DAVIS said it also has to do with the fact that when a
person turns 65, the first payer is Medicare, which does not
cover prescription drugs. Therefore if a person has no other
insurance to pick up that cost, no prescriptions are covered.
MS. WALKER informed members that she has state insurance coverage
so her prescription bills go to Medicare, which then sends them
to Aetna, which often sends them to her, depending on the
medication, so she ends up paying anyway.
CHAIRWOMAN GREEN commented that this is not just an insurance
issue.
MS. WALKER said insurance is an integral part of this issue and
the task force will have to examine the insurance activities in
addition to what states are doing in regard to prescription
drugs.
SENATOR LEMAN referred to the $5,000 cost under the contractual
category in the fiscal note and asked if the department will be
required to place a certain number of ads in newspapers. He said
he is assuming that would account for a significant portion of
the $5,000.
MS. NANCY WELLER, Division of Medical Assistance, DHSS, informed
members that the Department of Administration prepared the fiscal
note and that DHSS did not submit one.
MR. RICHARD CAUCHI, National Council of State Legislatures
(NCSL), then gave the following testimony.
For the record, NCSL is a bipartisan research
organization that works directly for the 50 states and
as such we take no position on legislation. I'm here to
just pass on information regarding activities across
the country on the state level and if you have any
questions.
Just briefly, as you've already covered some of the
details here, there's no question that prescription
drugs have been on legislative agendas as well as in
the headlines and the evening news across the country
for a couple of years, at least, now. What we've
observed, is that state legislators and policymakers
are quite concerned about that issue and see it as a
high priority but at the same time they face
potentially conflicting goals and this speaks to the
idea of a task force, or similar effort, looking at
[indisc.].
On the one hand, generally, the initial interest comes
from a desire to either increase access or increase
coverage to those lacking [while] at the same time
legislators are aware that the states are purchasers,
and that they are looking at - to save state funds in
that capacity. A variation of that is that states very
often are looking to avoid entitlements while they are
sympathetic or, actually, to establish new programs
they often do not let those programs become a permanent
or [indisc.] obligation. That's the distinction between
the state programs and federal programs, which are
permanent and entitlement forms.
The discussion of prescription drugs also on the state
level also is substantially distinct from the federal
debate. Certainly the idea and the discussion about the
Medicare benefit has been uniform across the country
and has attracted attention that would have impact on
states. But much of what states have done so far has
really been state-specific, including ideas and
programs that have been in place for quite a number of
years. As you are probably aware, as of this moment
Congress has not acted on this but as was referred to,
a number of states have taken specific actions. 28
states have statutes on this and bills and it was
already [indisc.] 40 states.
In general, there have been three areas where states
have taken action but, in fact, within those areas
there are a lot of variations that speak to the idea of
a task force rather than a simple solution. Numerically
most states have created subsidy programs with
pharmaceutical assistance programs but even in that
area there's no single model. Some states have taken
this action because they were able to use tobacco
settlement funds so you have states like Indiana,
Kansas, Florida, and South Carolina, which created
programs just in the last year. Because of that money
being available, Nevada became the first state to try
to subsidize a private insurance policy rather than
actually subsidize the transaction for the purchase of
pharmaceuticals. Illinois, just this January, became
the first state to successfully negotiate and get
approval for a federal matching program that will
enable the state to pay 50 percent and the federal
government to pay 50 percent for a subsidy program.
Again this is a brand new idea. It's within the
Medicaid program but it's serving a population that
hasn't yet been - that otherwise has not been covered
under Medicaid and many states are looking again and
it's early to say where that fits.
At the same time, subsidy payments are not a consensus
across the country. Just in the last year bills have
been rejected in states like Colorado, Arkansas, Iowa,
South Dakota, West Virginia. The current budget
situation in the state is certainly one of the factors
about a certain hesitancy to just jump in and create
brand new programs. On a [indisc.], states have been
looking at experiments with discounts and prices.
Generally these are not subsidies but are trying to
utilize either bulk purchasing or existing discount
structures to pass those on to some parts of the
population. A few states have tried to use the Medicaid
price and make that available to larger populations,
specifically Medicare. California and Florida and, to
some extent, Maine are trying that approach. The idea
of discount cards is one that has spread among several
states - Iowa, New Hampshire, West Virginia have
programs of that sort up and running and, as you
probably know, President Bush has proposed a national
program but that's still not in operation.
The word Medicaid has been said several times but there
are slightly separate [indisc.] a number of initiatives
- many discussions about cost containment within the
Medicaid program and those talks are often pretty
directly tied to the rest of the discussion in Medicaid
- there's discussion - it actually moves toward
preferred drug lists or formularies that would be in
part based on the cost of the product. [There are] also
plans for expanded and prior authorization, initiatives
that would move toward generic substitutions and on a
separate tax and somewhat beyond just Medicaid the idea
of bulk purchasing via the state agencies buying their
purchasing so that you don't have the prison agency
doing one thing and the mental health agency doing
another but rather requiring that those be joined and,
finally, in this [indisc.] the idea of multi-state
purchasing. There are now three different groupings -
northern New England. The Northeast has a legislative
association and has a sort of a pharmacy working group
among southern states of the eastern states that are
all looking to do buying-purchasing with cost savings
in mind. For some reason there are a lot of diverse
solutions but no single pattern out of that.
As for task forces, several states did establish task
forces or special interim committees in this area and
NCSL and myself followed several of those. A few, by
example, Maryland, at the end of the year 2000,
established a very formal process, which was
cooperative both among the legislative branch and
executive branch. Out of that came a major piece of
legislation that either created or overhauled three
different pharmaceutical programs - both were subsidies
and discounts. In Nebraska and in Oklahoma there were
special interim committees that were established with
members of both branches and legislative staff doing
detailed analysis. Those two states have not passed
legislation as of this point. In Hawaii they did a
major study throughout much of the year 2001. They
produced a comprehensive report in February of this
year and in the last eight weeks the legislature has
passed - both the House and Senate in Hawaii has passed
two major bills that are now in conference committee.
In California, they also did a 2001 legislative study
and produced a fairly formal report that covered all of
their options. In their case they have not passed a
plan and reflected the content of that.
Finally, on the example of Wyoming, similarly in 2001
did a formal interim committee for nine months and
based on that they did, in fact, propose legislation,
which was signed into law about a month ago. So there's
a good deal happening - again no single pattern and no
single solution that people would put forward but a
study is one approach. If there are questions I'd be
happy to...
CHAIRWOMAN GREEN asked Mr. Cauchi if he knows the status of this
issue in Congress.
MR. CAUCHI said he is not ideally situated to comment on Congress
but there are a number of proposals by the U.S. House and Senate
and the Executive Branch. He would guess that at the moment there
is no single plan. The differences surround at what income levels
people should be covered or whether to cover everyone on
Medicare, and what kind of cost sharing or co-payments might be
established. That seems to be one of the contrasts between
federal proposals and state plans. Some states pay 95 per cent or
more of the cost of purchases.
MR. STEVE ASHLAND, Division of Senior Services, Department of
Administration (DOA), said his agency would provide
administrative support for the task force. The Department of
Administration supports SB 306; it has seen and heard about the
problems seniors have with access to prescription drugs. A task
force may come up with some viable solutions for the legislature
to consider next year. In response to Senator Leman's question
about the fiscal note, the contractual money is for publication
purposes. One publication typically used by the division is the
Senior Voice. The division tries to minimize costs as much as
possible; that publication reaches about 20,000 senior citizens.
He offered to answer questions.
SENATOR LEMAN said he wants the notice to get out to the right
people and it sounds like the division will do so by using the
Senior Voice but he is concerned that the state is imposing
requirements that are not useful that increase the cost.
MR. ASHLAND said he is relatively new to the state system so he
is not sure what the publication process entails, but the
division will try to be as prudent as it can to keep the costs
down. He pointed out the cost of publication was calculated based
on the amount used by the Long Term Care Task Force.
SENATOR LEMAN encouraged Mr. Ashland to make use of electronic
notification wherever possible and to target the publications
that will be most useful. He acknowledged the division is already
doing that.
CHAIRWOMAN GREEN asked Senator Wilken if the Long Term Care Task
Force discussed access to prescription drugs.
SENATOR WILKEN didn't recall.
MR. ASHLAND said the division made a presentation last week on
the accomplishments of the Long Term Care Task Force and what
remains to be accomplished. The task force made 31
recommendations but prescription drug coverage was not among
them. He believes the issue was discussed but was not considered
to be urgent at that time.
CHAIRWOMAN GREEN asked members to hold questions about the make-
up of the task force and its goals until the bill is rescheduled.
SENATOR LEMAN suggested adding a few legislators to the list of
members because the task force may generate ongoing legislative
issues. He also suggested changing the reference to "American
Association of Retired Persons" to "AARP."
SENATOR DAVIS asked if those changes could be made readily so
that the legislation can move along.
CHAIRWOMAN GREEN took note and then announced the committee would
take up HB 245.
HB 245-MARITAL & FAMILY THERAPISTS
REPRESENTATIVE PEGGY WILSON, sponsor of HB 245, explained that
the measure adds the Board of Marital and Family Therapists to
the list of professionals that the Department of Community and
Economic Develop (DCED) can contract with to provide assistance
and treatment to persons who abuse alcohol, drugs or other
substances. It also increases consumer protection for Alaskans
who are seeking professional counseling. Section 2 gives the
board the authority to order a licensed marital and family
therapist to submit to a reasonable physical and mental
examination if the board has credible evidence sufficient to
conclude that the therapist's physical and mental capacity to
practice safely is at issue. Section 3 allows individual client
contact to be counted as hours toward licensing. Section 4
requires a therapist to communicate to law enforcement officers
if a victim has identified that the victim intends to do serious
harm.
CHAIRWOMAN GREEN asked where it says "must."
REPRESENTATIVE WILSON referred to Section 4 on page 3. Subsection
(a) requires confidentiality between the client and therapist
except when a threat of imminent serious physical harm to an
identified victim has been made.
CHAIRWOMAN GREEN asked if that is a requirement.
REPRESENTATIVE WILSON replied, "No, it is not a requirement. It
is just a consumer protection because without this, they wouldn't
be able to do that and yet the therapist feels that if it's a
true risk, they need to be able to have that authority."
REPRESENTATIVE WILSON went on to explain that the new language in
Section 5 (page 4, line 26) complies with the national board
language and imposes disciplinary sanctions for sexual
misconduct.
SENATOR WARD asked if Alaska statute contains sanctions for a
case in which a medical professional and a client want to marry
one year after the client/patient relationship is over.
REPRESENTATIVE WILSON did not know the answer.
SENATOR WARD said someone brought to his attention that this bill
will prevent two consenting adults from marrying for two years.
He asked if medical doctors are similarly restricted by statute.
REPRESENTATIVE WILSON said that is not the case with medical
doctors and that this only applies to family and marital
therapists.
SENATOR WARD asked where the prohibition against marrying after
the client/patient relationship is over exists in statute.
TAPE 02-32, SIDE B
MS. CAREN ROBINSON, representing the Marriage and Family
Therapists Association, said to her understanding, a similar
provision is in statute for social workers and psychologists, and
it is a national standard set out by the Marital and Family
Therapists' Association. The reasoning behind the restriction is
that a therapist has a power relationship with a client so should
wait two years after the therapist/client relationship is
terminated before having a sexual relationship.
CHAIRWOMAN GREEN asked who that applies to now.
MS. ROBINSON repeated it applies to psychologists and social
workers, and it might apply to professional counselors.
SENATOR WARD asked if a provision is in law that prohibits a
psychologist from marrying a client for two years after the
professional relationship has been terminated.
MS. ROBINSON said to her understanding yes, but she informed
members that Larry Holman, President of the Marital and Family
Therapists' Association, was available to answer questions.
SENATOR LEMAN said he reads it as a ban on sexual misconduct but
not a ban on marriage. He said he cannot imagine that the
regulations would define sexual activity within marriage as being
sexual misconduct.
SENATOR WARD said the person who contacted him said such a
provision exists.
CHAIRWOMAN GREEN said she believes it refers to the establishment
of a relationship between the time one is a patient and marries.
SENATOR LEMAN said his point is that the language in the bill
before the committee does not say that but he acknowledged that
such a ban could exist in regulation.
CHAIRWOMAN GREEN asked Representative Wilson to finish her review
of the bill while the regulations are checked.
REPRESENTATIVE WILSON explained that Section 7 requires that
before therapy begins, a client be informed of all of the facts,
including the credentials of the therapist, fee schedules and
exceptions to the confidentiality rule.
CHAIRWOMAN GREEN asked what happens if that information is not
furnished.
MS. ROBINSON replied that a client could report such a violation
to the board who would decide whether to sanction the therapist.
CHAIRWOMAN GREEN said, according to Sec. 087.63.230 on page 5,
line 9, the client may not be charged a fee for those services
unless the client was furnished a copy of a professional
disclosure statement. She said she has never received that
information from a medical professional prior to "starting a
conversation with them."
MS. ROBINSON said that provision is in the professional
counselors' statute and is the direction being taken on a
national level to provide for consumer understanding. She noted
the information could be described in a small brochure. She
believes that providing that information will protect consumers
who are often in crisis and vulnerable.
REPRESENTATIVE WILSON added that another reason for disclosure is
that marriage and family therapists are being placed under the
umbrella of many boards.
MS. CATHERINE REARDON, Director of the Division of Occupational
Licensing in the Department of Community and Economic Development
(DCED), informed members that the provisions of this bill are
identical to provisions in other occupational licensing statutes,
although not in all mental health provider statutes. This
particular disclosure statement is identical to a requirement in
the professional counselors' statute. She noted that the
profession itself believes it is a good idea to require a
disclosure statement, which is the reason it was included in the
bill. The public is, in general, less familiar with the different
types of mental health professionals, what they are buying and
how the billing systems work, therefore she believes there is a
higher need to educate patients.
SENATOR WARD asked Ms. Reardon if she could answer his question
about marriage being a violation of a professional's license.
MS. REARDON explained that several professions that are licensed
by DCED, physicians, professional counselors and marriage and
family therapists, have the right to adopt codes of ethics by
regulation. Those codes of ethics include prohibitions against
sexual contact with clients for a certain time period after
therapy is terminated. The medical statute (AS 08.64.326) does
not specify two years but it gives the board the authority to
define a time limit. The physicians' statute prohibits and
defines what sexual misconduct and it explains the conditions for
terminating a professional relationship so that a sexual
relationship would be acceptable. She felt the idea of sexual
contact after a patient is no longer seeing a physician is not as
big of a concern because the patient's psychological reliance on
the physician is not as great as it can be with mental health
professionals. Mental health professionals believe there should
be a period of time in which the "influence can wear off and they
are standing on their own two feet before the romantic
relationship begins." She repeated that although the statutes may
not specify a two year waiting period, they allow boards to adopt
codes of ethics that specify conditions.
SENATOR WARD noted the person who contacted him said there was
nothing in law that prohibits any licensed professional from
getting married to a client after the therapist/client
relationship is terminated. He asked if that is true.
MS. REARDON said she does not think that statement is not correct
for all of the mental health professions. The codes of ethics for
professional counselors and marital and family therapists that
were adopted by regulation require "cooling off" periods.
MR. LARRY HOMAN (ph), President of the Association for Marriage
and Family Therapy, told members that the ethical guidelines
written by the psychological association, professional
counselors, marriage and family therapists and social workers
require a two-year waiting period. Most likely, those
professionals would not go to jail for a violation but would lose
their licenses if they engaged in sexual conduct while in the
therapist/client relationship. However, after that relationship
is terminated, the guidelines are gray. He noted the guidelines
were designed to protect the client. He agreed that the
therapist/client relationship is quite different than a
physician/client relationship.
2:40 p.m.
CHAIRWOMAN GREEN asked what professions Mr. Homan was referring
to.
MR. HOMAN replied psychologists, clinical social workers,
professional counselors, and marriage and family therapists.
SENATOR WARD asked if the first three have a two-year waiting
period and whether that includes a ban on marriage.
MR. HOMAN said they do have a two-year waiting period, but the
guidelines do not specify a ban on marriage. He said the intent
of the guidelines is to prevent a dual relationship, meaning
personal and professional, so he does not believe, "you could get
around the marriage thing because obviously that is a personal
relationship so it would be interpreted as a personal, romantic
kind of relationship which obviously would include marriage."
SENATOR WARD asked if, by regulation, the first three professions
cannot marry a patient for two years without being in violation.
MR. HOMAN said the regulation does not specifically say they
cannot marry but he believes that is how the boards would
interpret the regulation because of the personal nature of the
relationship.
SENATOR WARD asked if the national professional boards allow
marriage.
MR. HOMAN said they [the codes of ethics] do not address marriage
specifically in those words. They address the personal, romantic
relationship that comes with a dual relationship, and he guesses
that would include marriage. He noted the marriage and family
therapist guidelines put forth by the American Association of
Marriage and Family Therapy, do not specifically prohibit
marriage but they do prohibit sexual relationship for two years
after the professional relationship has been terminated.
CHAIRWOMAN GREEN asked Ms. Reardon if the language she referred
to was in regulation.
MS. REARDON explained that the statute gives the boards the
authority to adopt codes of professional conduct. She believes
the boards adopted those codes by regulation.
CHAIRWOMAN GREEN asked Ms. Reardon to describe what she means by
a code of ethics.
MS. REARDON said a code of ethics is a written set of rules on
professional behavior. They are actually incorporated into the
regulations by reference, so although the code might not be
printed in the regulations, a document can be provided.
SENATOR WARD asked for a copy of the codes of ethics of the three
professions.
MS. REARDON offered to provide them.
SENATOR LEMAN commented that he believes marriage should
terminate the ban on sexual activity and that would be consistent
with the intent of regulating the profession. He asked
Representative Wilson for feedback on that position in the
future.
MR. HOMAN said the intent is to limit a romantic relationship
between a therapist and a client and sex is just one part. He
said one has to look at what kind of relationship is acceptable.
It has been argued that the professional should honor the power
difference in the relationship and that the rule was designed so
that a client would not be taken advantage of while
psychologically fragile and unable to use good judgment.
CHAIRWOMAN GREEN referred to lines 24 and 25 on page 4 and asked
what "engaged in unethical conduct in connection with the
delivery of professional services to clients" encompasses.
MR. HOMAN said that itemizing misconduct in the bill spells it
out more clearly, although it is also contained in the ethical
guidelines. He noted sexual misconduct is considered a very
serious breach of ethics.
MS. REARDON said professional misconduct is not limited to the
seven grounds for disciplinary sanctions listed in the bill. AS
08.63.050 says the board shall adopt a code of ethical practice
for marital and family therapy. That is most likely the
statutory authority the board would have used to adopt a code of
ethics. If a member violated the code of ethics, he or she would
be disciplined under subsection (5) on page 4, line 18 of the
bill.
SENATOR WARD said he agrees that a person is vulnerable when
under a therapist's care and should not be taken advantage of.
However, he did not know there was a law prohibiting marriage
after the professional relationship was terminated and is
surprised to find such an interpretation because he does not
consider sexual activity within marriage to be sexual misconduct.
He repeated his request for copies of the codes of ethics of the
three boards.
CHAIRWOMAN GREEN asked Ms. Reardon to supply the committee with a
rundown of the wording in statute regarding what the authority is
for the comparable professions. She said she does not see such
language in statute.
SENATOR WARD asked if the sponsor researched the question about
marriage or whether it has been asked by anyone else.
REPRESENTATIVE WILSON said that question was never raised to her.
She said the intent of the bill is to protect the consumer and
that the only time a charge would be filed is if the consumer was
hurt or violated in some way. She assumed if the relationship led
to marriage, no charge would be filed with the board.
SENATOR WARD said anyone could bring the charge to the board. He
said he does not want to sanction an improper relationship but he
is amazed to find that marriage would be illegal.
SENATOR WILKEN said he has three questions. The first relates to
Section 2 (page 2, line 6), which allows the board to order a
therapist to submit to a physical or mental examination with
cause and, according to page 5, line 2, if the therapist does not
submit, his or her license can be pulled. He said his concern is
that the words "reasonable" and "credible" invite litigation. He
asked if that is new language or similar to other statutes.
MS. REARDON said that language exists in several statutes,
although not all. She believes those words are important to act
as checks on the board. If the division was investigating a
therapist, it would ask the board to order an examination. If the
therapist objected, he or she could be summarily suspended. The
summary suspension statute says the division must provide a
hearing within 7 days because the person loses his or her license
immediately and cannot wait for a decision. At that hearing, the
division must provide credible evidence upon which the
examination was requested. She said she understands Senator
Wilken's concern but, on the other hand, when a practitioner has
developed a serious substance abuse problem or has a relapse, the
division cannot wait several months to stop the practice. Another
problem that could occur is mental illness or dementia, in which
the practitioner does not believe he or she has a problem but
outside observers believe a problem exists. A professional
assessment needs to be done to get an answer to protect the
public. She noted that provision has rarely been invoked.
SENATOR WILKEN said his second question relates to the
qualifications on page 3, line 4, and asked why the word
"individuals" was added.
MS. ROBINSON said it was added because in family situations, it
might be in the best interest of the family to have individual
sessions with each member. Those hours would be counted toward
the required 1500 hours for certification.
SENATOR WILKEN asked if therapists were able to counsel
individuals before.
MS. ROBINSON said they could not count those hours toward
licensure.
SENATOR WILKEN referred to the new language on the bottom of page
3 and asked if a therapist would be liable if he or she does not
communicate with a law enforcement officer when there is a
threat. He asked if that paragraph obligates the practitioner to
report.
MS. ROBINSON said she assumes it does not and that the idea is to
encourage the therapist when they have knowledge of a danger to
report it. That provision grants immunity from liability for
reporting. She then asked members to keep in mind, regarding
Senator Leman's position, that the job of family and marital
therapists is to work with married couples so she believes it is
in everyone's best interest that the therapist not get involved
in a sexual relationship with a family member. The goal should be
to keep the family intact and help members work through a crisis.
She said she is aware of situations where a couple got a divorce
during therapy because of sexual misconduct by the therapist. She
added that people who go to a therapist are usually in some kind
of a vulnerable situation. The therapist is in a position of
power as the family expects to get good advice.
SENATOR WARD said no one disagrees with that position but the
scenario brought to him flies in the face of common sense as it
is between two adults who were not married and who want to marry
two years after the professional relationship terminated.
MS. REARDON said the time the professional relationship no longer
exists is not black and white. Although a person may have
terminated sessions, the professional relationship may persist
for some time.
CHAIRWOMAN GREEN said looking at comparable language in the
social worker statutes regarding the reporting of a potential
danger in relationship to children says "shall." She asked Ms.
Reardon to provide her with information about whether family and
marriage therapists are required to report child or elder abuse
or threats of abuse.
SENATOR LEMAN said, in response to Ms. Robinson's comment, that
he agrees with the restriction for the reasons she stated but
that his earlier comment was an attempt to get to the issue of
whether or not marriage should terminate that ban. He said he
understands that marriage does not happen without courtship and
that could be interpreted to be in violation of that professional
standard.
CHAIRWOMAN GREEN asked members to get any additional questions to
her or the sponsor.
HB 348-VIOLATION OF A DOMESTIC VIOLENCE ORDER
REPRESENTATIVE ERIC CROFT, sponsor of HB 348, said the measure
corrects a judicial decision made in 2001 regarding what standard
of proof is necessary to prosecute a violation of a restraining
order. The court decision has made it very difficult to prosecute
those cases as the prosecutor has to prove what "is in somebody's
head." He said the standard being asserted in HB 348, reckless
disregard for the violation standard, is the proper mental state
and one that allows these prosecutions to continue without asking
the prosecutors to do an impossible task.
CHAIRWOMAN GREEN reminded members that HB 348 has a Senate
Judiciary Committee referral where that issue can be addressed.
MS. ANNE CARPENETI, Assistant Attorney General, informed the
committee that the Department of Law supports HB 348 as it will
help the department prosecute cases of violations of protective
orders.
SENATOR WARD moved HB 348 from committee with individual
recommendations. There being no objection, the motion carried.
There being no further business to come before the committee,
CHAIRWOMAN GREEN adjourned the meeting at 3:10 p.m.
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