Legislature(2003 - 2004)

04/29/2004 08:08 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 29, 2004                                                                                         
                           8:08 a.m.                                                                                            
                                                                                                                                
TAPE(S) 04-56                                                                                                                   
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Ralph Seekins, Chair                                                                                                    
Senator Scott Ogan, Vice Chair                                                                                                  
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
Senator Hollis French                                                                                                           
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
None                                                                                                                            
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 369                                                                                                             
"An  Act  exempting  a  person   who  allows  a  student  of  the                                                               
University of Alaska  to gain practical work  experience with the                                                               
person  while   participating  in  a  practicum   from  vicarious                                                               
liability   as   an   employer,   and   exempting   the   student                                                               
participating in  a practicum from  the Alaska Wage and  Hour Act                                                               
and workers' compensation coverage."                                                                                            
     MOVED CSSB 369(L&C) OUT OF COMMITTEE                                                                                       
                                                                                                                                
SENATE JOINT RESOLUTION NO. 33                                                                                                  
Urging our United States Senators to  work to allow a timely vote                                                               
on the floor on all judicial nominations.                                                                                       
     SCHEDULED BUT NOT HEARD                                                                                                    
                                                                                                                                
HOUSE BILL NO. 188                                                                                                              
"An Act  relating to the  authority of the Department  of Natural                                                               
Resources  to  issue  citations for  certain  skiing  violations;                                                               
relating  to  establishing a  bail  schedule  for certain  skiing                                                               
violations and to procedures for  issuing a citation for a skiing                                                               
violation."                                                                                                                     
     MOVED HB 188 OUT OF COMMITTEE                                                                                              
                                                                                                                                
CS FOR HOUSE BILL NO. 25(JUD)                                                                                                   
"An  Act relating  to  health care  decisions,  including do  not                                                               
resuscitate   orders,  anatomical   gifts,   and  mental   health                                                               
treatment  decisions,  and  to powers  of  attorney  relating  to                                                               
health care, including anatomical gifts and mental health                                                                       
treatment decisions; and providing for an effective date."                                                                      
     MOVED SCS CSHB 25(JUD) OUT OF COMMITTEE                                                                                    
                                                                                                                                
CS FOR HOUSE BILL NO. 514(FIN) am                                                                                               
"An Act  relating to child support  modification and enforcement,                                                               
to  the   establishment  of  paternity   by  the   child  support                                                               
enforcement agency, and to the  crimes of criminal nonsupport and                                                               
aiding  the  nonpayment of  child  support;  amending Rule  90.3,                                                               
Alaska Rules of  Civil Procedure; and providing  for an effective                                                               
date."                                                                                                                          
     SCHEDULED BUT NOT HEARD                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB 369                                                                                                                  
SHORT TITLE: UNIV. STUDENT PRACTICUM LIABILITY/WAGES                                                                            
SPONSOR(s): JUDICIARY                                                                                                           
                                                                                                                                
03/19/04       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/19/04       (S)       L&C, JUD                                                                                               
04/20/04       (S)       L&C AT 2:00 PM BELTZ 211                                                                               
04/20/04       (S)       Scheduled But Not Heard                                                                                
04/22/04       (S)       L&C AT 1:30 PM BELTZ 211                                                                               
04/27/04       (S)       L&C AT 1:30 PM BELTZ 211                                                                               
04/27/04       (S)       Moved CSSB 369(L&C) Out of Committee                                                                   
04/27/04       (S)       MINUTE(L&C)                                                                                            
04/28/04       (S)       L&C RPT CS 3DP 1DNP  NEW TITLE                                                                         
04/28/04       (S)       DP: BUNDE, SEEKINS, STEVENS G;                                                                         
04/28/04       (S)       DNP: FRENCH                                                                                            
04/29/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
                                                                                                                                
BILL: HB 188                                                                                                                  
SHORT TITLE: BAIL SCHEDULE FOR SKIING VIOLATION                                                                                 
SPONSOR(s): REPRESENTATIVE(s) HAWKER                                                                                            
                                                                                                                                
03/12/03       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/12/03       (H)       RES, STA                                                                                               
02/25/04       (H)       RES AT 1:00 PM CAPITOL 124                                                                             
02/25/04       (H)       Moved Out of Committee                                                                                 
02/25/04       (H)       MINUTE(RES)                                                                                            
02/26/04       (H)       RES RPT 5DP 2NR 1AM                                                                                    
02/26/04       (H)       DP: HEINZE, LYNN, KERTTULA, MASEK,                                                                     
02/26/04       (H)       DAHLSTROM; NR: STEPOVICH, GUTTENBERG;                                                                  
02/26/04       (H)       AM: GATTO                                                                                              
03/23/04       (H)       STA AT 8:00 AM CAPITOL 102                                                                             
03/23/04       (H)       Moved Out of Committee                                                                                 
03/23/04       (H)       MINUTE(STA)                                                                                            
03/24/04       (H)       STA RPT 2DP 1DNP 4NR                                                                                   
03/24/04       (H)       DP: COGHILL, WEYHRAUCH; DNP: HOLM;                                                                     
03/24/04       (H)       NR: SEATON, GRUENBERG, LYNN, BERKOWITZ                                                                 
04/14/04       (H)       TRANSMITTED TO (S)                                                                                     
04/14/04       (H)       VERSION: HB 188                                                                                        
04/15/04       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/15/04       (S)       JUD                                                                                                    
04/26/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
04/26/04       (S)       Heard & Held                                                                                           
04/26/04       (S)       MINUTE(JUD)                                                                                            
04/29/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
                                                                                                                                
BILL: HB  25                                                                                                                  
SHORT TITLE: HEALTH CARE SERVICES DIRECTIVES                                                                                    
SPONSOR(s): REPRESENTATIVE(s) WEYHRAUCH                                                                                         
                                                                                                                                
01/21/03       (H)       PREFILE RELEASED (1/10/03)                                                                             
01/21/03       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/21/03       (H)       HES, JUD, FIN                                                                                          
02/13/03       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
02/13/03       (H)       Heard & Held                                                                                           
02/13/03       (H)       MINUTE(HES)                                                                                            
02/27/03       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
02/27/03       (H)       Heard & Held                                                                                           
02/27/03       (H)       MINUTE(HES)                                                                                            
03/06/03       (H)       HES AT 3:00 PM CAPITOL 106                                                                             
03/06/03       (H)       Moved CSHB 25(HES) Out of Committee                                                                    
03/06/03       (H)       MINUTE(HES)                                                                                            
03/10/03       (H)       HES RPT CS(HES) NT 7DP                                                                                 
03/10/03       (H)       DP: GATTO, WOLF, HEINZE, SEATON,                                                                       
03/10/03       (H)       CISSNA, KAPSNER, WILSON                                                                                
03/26/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/26/03       (H)       -- Meeting Canceled --                                                                                 
03/28/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/28/03       (H)       Heard & Held                                                                                           
03/28/03       (H)       MINUTE(JUD)                                                                                            
03/31/03       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/31/03       (H)       Moved CSHB 25(JUD) Out of Committee                                                                    
03/31/03       (H)       MINUTE(JUD)                                                                                            
04/07/03       (H)       JUD RPT CS(JUD) NT 5DP                                                                                 
04/07/03       (H)       DP: SAMUELS, HOLM, GARA, OGG, MCGUIRE                                                                  
04/07/03       (H)       FIN REFERRAL WAIVED                                                                                    
05/06/03       (H)       TRANSMITTED TO (S)                                                                                     
05/06/03       (H)       VERSION: CSHB 25(JUD)                                                                                  
05/07/03       (S)       READ THE FIRST TIME - REFERRALS                                                                        
05/07/03       (S)       HES, JUD                                                                                               
05/16/03       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
05/16/03       (S)       Heard & Held                                                                                           
05/16/03       (S)       MINUTE(HES)                                                                                            
03/08/04       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
03/08/04       (S)       Heard & Held                                                                                           
03/08/04       (S)       MINUTE(HES)                                                                                            
03/24/04       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
03/24/04       (S)       Heard & Held                                                                                           
03/24/04       (S)       MINUTE(HES)                                                                                            
04/02/04       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/02/04       (S)       Bill Postponed to 04/07/04                                                                             
04/07/04       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/07/04       (S)       -- Rescheduled to 5:30 pm 04/07/04 --                                                                  
04/07/04       (S)       HES AT 5:30 PM BUTROVICH 205                                                                           
04/07/04       (S)       -- Rescheduled from 1:30 04/07/04 --                                                                   
04/14/04       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/14/04       (S)       Heard & Held                                                                                           
04/14/04       (S)       MINUTE(HES)                                                                                            
04/16/04       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/16/04       (S)       Heard & Held                                                                                           
04/16/04       (S)       MINUTE(HES)                                                                                            
04/19/04       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/19/04       (S)       Moved SCS CSHB 25(HES) Out of Committee                                                                
04/19/04       (S)       MINUTE(HES)                                                                                            
04/20/04       (S)       HES RPT SCS 2DP 3NR SAME TITLE                                                                         
04/20/04       (S)       DP: DYSON, WILKEN;                                                                                     
04/20/04       (S)       NR: GUESS, GREEN, DAVIS                                                                                
04/26/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
04/26/04       (S)       Heard & Held                                                                                           
04/26/04       (S)       MINUTE(JUD)                                                                                            
04/29/04       (S)       JUD AT 8:00 AM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Mr. Pete Kelly                                                                                                                  
University of Alaska                                                                                                            
Fairbanks, AK                                                                                                                   
POSITION STATEMENT:  Presented SB 369                                                                                         
                                                                                                                                
Mr. Jamo Parrish, Counsel                                                                                                       
University of Alaska                                                                                                            
Fairbanks, AK                                                                                                                   
POSITION STATEMENT:  Answered questions about SB 369                                                                          
                                                                                                                                
Representative Mike Hawker                                                                                                      
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Sponsor of HB 188                                                                                        
                                                                                                                                
Mr. Paul Swanson, Manager                                                                                                       
Eaglecrest Ski Area                                                                                                             
City and Borough of Juneau                                                                                                      
POSITION STATEMENT:  Supports HB 188                                                                                          
                                                                                                                                
Ms. Linda Sylvester                                                                                                             
Staff to Representative Weyhrauch                                                                                               
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Presented HB 25                                                                                          
                                                                                                                                
Senator Fred Dyson                                                                                                              
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Supports HB 25                                                                                            
                                                                                                                                
Dr. Maria Wallington, Ethicist                                                                                                  
Providence Hospital                                                                                                             
Anchorage, AK                                                                                                                   
POSITION STATEMENT: Supports HB 25                                                                                            
                                                                                                                                
Mr. Pat Luby                                                                                                                    
AARP - Alaska                                                                                                                   
Juneau,AK                                                                                                                       
POSITION STATEMENT: Supports HB 25                                                                                            
                                                                                                                                
Ms. Carol Edwards                                                                                                               
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Supports HB 25                                                                                            
                                                                                                                                
Mr. Chip Wagoner                                                                                                                
Alaska Catholic Conference                                                                                                      
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Supports HB 25                                                                                            
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 04-56, SIDE A                                                                                                            
                                                                                                                                
CHAIR RALPH SEEKINS  first formally adjourned the  April 28, 2004                                                             
Senate  Judiciary meeting  and then  called the  April 29  Senate                                                               
Judiciary  Standing  Committee  meeting  to order  at  8:08  a.m.                                                               
Senators  Therriault,  Ellis,  French   and  Chair  Seekins  were                                                               
present. He explained  that the previous day's meeting  was a bit                                                               
confusing and,  upon reflection, he determined  that his original                                                               
ruling  that  Senator French's  motion  to  pass  SB 246  out  of                                                               
committee failed was correct according to Uniform Rule 24(a).                                                                   
                                                                                                                                
SENATOR ELLIS responded, "Mr. Chairman,  I believe your statement                                                               
is  incorrect.  There  was  a quorum  present  in  the  committee                                                               
yesterday. Two  votes to one  vote does move  the bill on  to the                                                               
next committee of referral with individual recommendations."                                                                    
                                                                                                                                
CHAIR SEEKINS asked according to what rule.                                                                                     
                                                                                                                                
SENATOR  ELLIS  did not  have  the  Uniform Rules  available  but                                                               
stated that  he was  appealing the  ruling of  the chair  on this                                                               
matter.                                                                                                                         
                                                                                                                                
CHAIR SEEKINS  stated that a ruling  of the chair in  a committee                                                               
is not appealable.  He noted that Senator Ellis  could appeal the                                                               
ruling to the full Senate.                                                                                                      
                                                                                                                                
SENATOR ELLIS  said he  would consider  his options  but believes                                                               
the bill  moved out of committee.  He then said he  went to Chair                                                               
Seekins' office  several times to  sign the committee  report but                                                               
it  was  kept  from  him,  which  he  considers  to  be  improper                                                               
behavior. He  asked Chair Seekins  to reconsider allowing  him to                                                               
sign the committee report.                                                                                                      
                                                                                                                                
CHAIR  SEEKINS  repeated that  his  original  ruling was  correct                                                               
under the  Uniform Rules  and that Senator  Ellis was  welcome to                                                               
appeal that ruling to the full body.                                                                                            
                                                                                                                                
SENATOR FRENCH  asked for a  brief at-ease to review  the Uniform                                                               
Rules.                                                                                                                          
                                                                                                                                
CHAIR SEEKINS said the committee  would continue its business and                                                               
that he would take several  at-eases, during which Senator French                                                               
could review the rules.                                                                                                         
                                                                                                                                
         SB 369-UNIV. STUDENT PRACTICUM LIABILITY/WAGES                                                                     
                                                                                                                                
SENATOR PETE  KELLY, representing the University  of Alaska (UA),                                                               
told  members  that  SB  369  addresses a  problem  that  UA  has                                                               
encountered. About  five years  ago, UA was  given money  for the                                                               
first time over and above  the amount needed for operating costs.                                                               
With  that, the  Board  of Regents  and  President established  a                                                               
number of new  degree programs that are more "hands  on," most of                                                               
which  deal   with  medical  professions  and   the  construction                                                               
industry. A number of these  programs require a certain number of                                                               
hours  of practicum  work.  As UA  has  approached providers  for                                                               
practicum  purposes, it  has learned  that  liability has  become                                                               
more  of  a problem  that  is  discouraging some  employers  from                                                               
participating in the  programs. Many of the  programs are growing                                                               
and UA anticipates  continued growth. This year  in Fairbanks, UA                                                               
was able  to only arrange  the bare minimum requirements  for its                                                               
dental  program. That  situation brought  the UA's  attention the                                                               
need to address  a statutory resolution to give  some relief from                                                               
liability to the providers.                                                                                                     
                                                                                                                                
MR. KELLY  said SB 369  states that  for purposes of  a practicum                                                               
program,  the students  are not  to be  considered employees.  If                                                               
they  were  considered  as  employees,   the  employer  would  be                                                               
strictly liable,  which is where  the problem lies. SB  369 makes                                                               
participants  responsible  for  their  own liability.  If  UA  is                                                               
negligent, it  would be responsible,  likewise with  the employer                                                               
or student. He explained, "Also,  in anticipation that the courts                                                               
might determine  that the experiential  benefit of being  able to                                                               
...derive  experience and  education from  these companies  might                                                               
trigger the Fair Labor Standards  Act, we also have a recommended                                                               
section in there  dealing with minimum wage so that  it could not                                                               
be claimed that the students who  are currently not paid - and as                                                               
a matter  of fact that  is the nature  of a practicum  program is                                                               
that they  are not paid, they  are different from interns  - that                                                               
they couldn't  trigger the Fair  Labor Standards Act  and require                                                               
these providers  to give them  minimum wage." He deferred  to Mr.                                                               
Parrish  to  answer  questions.  He  affirmed  that  Mr.  Parrish                                                               
produced the 6-page analysis in members' packets.                                                                               
                                                                                                                                
CHAIR SEEKINS asked  Mr. Parrish to summarize  the liability that                                                               
UA would have if SB 369 does not pass.                                                                                          
                                                                                                                                
MR.  JAMO PARRISH,  general legal  counsel  for UA,  said SB  369                                                               
addresses the liability of the  practicum site, not the liability                                                               
of  UA. However,  UA currently  is liable  for any  negligence it                                                               
commits  and SB  369 would  not change  that. The  practicum site                                                               
would be  liable for any negligence  it commits; SB 369  does not                                                               
seek to  change that. However,  as Mr. Kelly said,  the practicum                                                               
site, if it is determined to  be an employer, would be liable for                                                               
any negligence  committed by  the student,  which is  the concern                                                               
that SB 369 would address.                                                                                                      
                                                                                                                                
CHAIR SEEKINS  asked if SB  369 will prevent a  practicum student                                                               
from initiating  a wage and hour  action at a later  date against                                                               
the company  that agreed  to provide  the student  with practical                                                               
experience.                                                                                                                     
                                                                                                                                
MR. PARRISH said that is correct.                                                                                               
                                                                                                                                
CHAIR SEEKINS announced that with  no further questions, he would                                                               
set the bill aside and move on to HB 188.                                                                                       
                                                                                                                                
           HB 188-BAIL SCHEDULE FOR SKIING VIOLATION                                                                        
                                                                                                                                
REPRESENTATIVE  MIKE HAWKER  noted that  since the  committee has                                                               
already held  a hearing  on HB  188, he  was available  to answer                                                               
questions.                                                                                                                      
                                                                                                                                
CHAIR   SEEKINS  announced   that  members   had  no   additional                                                               
questions. He then asked if anyone wished to testify.                                                                           
                                                                                                                                
MR.  PAUL SWANSON,  Eaglecrest Ski  Area, Juneau,  stated support                                                               
for HB  188 as it identifies  things pertaining to the  bail bond                                                               
addressed in the Alaska Ski Safety Act (ASSA).                                                                                  
                                                                                                                                
With  no  further  participants,  CHAIR  SEEKINS  announced  that                                                               
public testimony  was closed and  announced he would hold  it for                                                               
consideration later in the meeting.                                                                                             
                                                                                                                                
             HB  25-HEALTH CARE SERVICES DIRECTIVES                                                                         
                                                                                                                                
MS. LINDA SYLVESTER, staff to  Representative Weyhrauch, said she                                                               
would  provide  a  three-minute  synopsis  of  the  bill,  answer                                                               
questions, and  explain an amendment  proposed by  the Department                                                               
of  Health and  Social  Services (DHSS)  on  behalf of  emergency                                                               
medical technicians. She stated:                                                                                                
                                                                                                                                
     What HB 25  does is it repeals  current statute. Alaska                                                                    
     has, on the books,  a do-not-resuscitate order statute,                                                                    
     a living will - in  the power of attorney statutes...in                                                                    
     a couple  of places there  is a little  check-off where                                                                    
     you can appoint  an unnamed person to  make your health                                                                    
     care  decisions. That  will be  repealed.  In the  mid-                                                                    
     '90s, Alaska passed the  advanced directives for mental                                                                    
     health   care.  That   is  being   repealed.  And   the                                                                    
     anatomical gift  act is being repealed.  It's being put                                                                    
     into one chapter and that's HB 25.                                                                                         
                                                                                                                                
     The new law is surrogates, and  that's on page 5 of the                                                                    
     bill.  The concept  of surrogates  is not  new at  all.                                                                    
     What's new  though is  providing a  statutory guideline                                                                    
     for how  surrogates are to  function in  their decision                                                                    
     making capacity. If you sign  a document, if you have a                                                                    
     power of attorney or if  you sign an advanced directive                                                                    
     naming  your spouse  or naming  some other  individual,                                                                    
     then  you're  the principal,  they  have  the power  of                                                                    
     attorney. You call them in  HB 25 your agent. If you've                                                                    
     never gone  through the process  of signing a  power of                                                                    
     attorney, like 95  percent of us have  never done that,                                                                    
     then you  have a health  care surrogate. So  for myself                                                                    
     or  my husband,  if  I were  incapacitated, my  husband                                                                    
     would  be  making  decisions for  me.  He's  the  right                                                                    
     person  to make  decisions  for me  because  we have  a                                                                    
     relationship. I love  him, he loves me, he  knows who I                                                                    
     am and  he knows what  my values and goals  are. That's                                                                    
     the right decision.                                                                                                        
                                                                                                                                
     HB 25  sets out criteria  for who these people  will be                                                                    
     in the  order - your  spouse, your living  parent, your                                                                    
     adult child,  your sibling, that  type of a  thing. And                                                                    
     then the  guidelines for how  they make  their decision                                                                    
     for you  are based  on your  best interests  and that's                                                                    
     carefully  defined and  has been  carefully worked  out                                                                    
     and  it's  consistent  with current  medical  practice.                                                                    
     This  is a  part  of  the movement  known  as the  five                                                                    
     wishes.  Paul Malley  (ph)  testified  earlier on  this                                                                    
     notion. It's obvious.  It makes sense. It's  just a new                                                                    
     concept to be put into statute.                                                                                            
                                                                                                                                
     The concern  with surrogates, however, is  that they're                                                                    
     just not making decisions for  whether or not you get a                                                                    
     medication for a fever. Some  of the decisions are life                                                                    
     and death and  decisions of life-sustaining procedures.                                                                    
     That's a concern and it's  appropriate for the state to                                                                    
     carefully  consider  protections   to  make  sure  that                                                                    
     people are not  being taking advantage of.  So, on page                                                                    
     8,  we  have  carefully   worked  out  protections  and                                                                    
     guidelines for the withholding  and withdrawal of life-                                                                    
     sustaining  procedures. Again,  this happens  everyday.                                                                    
     Right now these decisions  are being made in hospitals.                                                                    
     It's nothing new.  We're not making new  law. We're not                                                                    
     telling  people how  to live  and die.  We're providing                                                                    
     guidelines  and protections.  According to  the Supreme                                                                    
     Court,  in the  Cruzan (ph)  case, this  is appropriate                                                                    
     for the state to do this.                                                                                                  
                                                                                                                                
     In  order  for  a  surrogate  or an  agent  to  make  a                                                                    
     decision  regarding   life-sustaining  procedures,  two                                                                    
     conditions   have   to  be   met.   You   have  to   be                                                                    
     incapacitated  and  you  have   to  have  a  qualifying                                                                    
     condition.  So a  decision to  withdraw life-sustaining                                                                    
     procedures - that could be  renal dialysis - that could                                                                    
     be CPR  - that could  be anything, those  decisions are                                                                    
     not   going   to   be  made   when   a   situation   is                                                                    
     inappropriate. You have to  have a qualifying condition                                                                    
     and the qualifying conditions are  one of two things: a                                                                    
     terminal   condition  or   a  condition   of  permanent                                                                    
     unconsciousness and  they're carefully  defined. Again,                                                                    
     they  come from  the  practice of  medicine. These  are                                                                    
     what's going  on in the  real world now.  The decisions                                                                    
     are  between  the doctor  and  the  family. There's  no                                                                    
     euthanasia   going  on.   Alaska  does   not  authorize                                                                    
     euthanasia.                                                                                                                
                                                                                                                                
     This  bill  specifically   [prohibits]  euthanasia.  In                                                                    
     Alaska, it's  manslaughter if a  doctor assists  you in                                                                    
     your  suicide and  you do  not have  a right  under the                                                                    
     Constitution  to  request  someone  to  assist  you  in                                                                    
     suicide.  That exists  outside  of HB  25.  HB 25  just                                                                    
     makes  reference to  the prohibition.  It doesn't  deal                                                                    
     with it.  That stuff  exists whether HB  25 is  here or                                                                    
     goes away.                                                                                                                 
                                                                                                                                
     The need for HB 25  is apparent and it's convenient. It                                                                    
     includes an  optional form  where individuals  can make                                                                    
     their  wishes  known  and  this  is  desirable  because                                                                    
     family members,  whether they're your agent  - you have                                                                    
     an  agent, or  if  you are  just  a surrogate  decision                                                                    
     maker,  family members  are going  to be  scrambling to                                                                    
     try  to  understand what  your  wishes  are. This  form                                                                    
     increases the  dialog and  the form  allows individuals                                                                    
     to  state their  wishes, their  attitudes, their  goals                                                                    
     and the sum of it is  that your desires for your health                                                                    
     care  will   follow  you  even  after   you  have  lost                                                                    
     capacity.                                                                                                                  
                                                                                                                                
     The amendment  that we have  is, again, offered  by the                                                                    
     Department  of  Health  and  Social  Services.  It  was                                                                    
     unclear  with the  existing language  whether or  not a                                                                    
     do-not-resuscitate  order from  out of  state would  be                                                                    
     recognized  in  the state  of  Alaska  and that's  very                                                                    
     critical for EMTs who are  out in the field. This would                                                                    
     be, if  they come upon  an individual with  a bracelet,                                                                    
     some kind of an  identification program that's operated                                                                    
     by  either  the  State  of  Alaska  or  another  state,                                                                    
     they're  very common  programs,  EMTs  are required  to                                                                    
     always resuscitate.  If they have this  band, they just                                                                    
     have to have the assurance that  - they have to be able                                                                    
     to  assume that  the band  is appropriately  issued and                                                                    
     they  can't be  required to  determine whether  a state                                                                    
     matches Alaska  law. However,  these do-not-resuscitate                                                                    
     orders will  only be executed  to the extent  that they                                                                    
     conform to Alaska law.                                                                                                     
                                                                                                                                
     I  would  also  like  to point  out  to  the  committee                                                                    
     Senator Dyson,  who has joined  us and  he's graciously                                                                    
     become  a  co-sponsor   of  this  bill.  Representative                                                                    
     Weyhrauch has  worked very  closely with  Senator Dyson                                                                    
     on  some of  the  sensitive  issues in  HB  25 and  our                                                                    
     absolute goal was  that we would never pass  a bill out                                                                    
     of the  Senate HESS  Committee until Senator  Dyson was                                                                    
     comfortable  with  it  and  supported  it.  We're  very                                                                    
     pleased that he's joining us.                                                                                              
                                                                                                                                
CHAIR SEEKINS directed attention to Amendment 1, which reads as                                                                 
follows.                                                                                                                        
                                                                                                                                
                                                      23-LS0137\Z.3                                                             
                                                         Bannister                                                              
                                                                                                                                
                      A M E N D M E N T  1                                                                                  
                                                                                                                                
                                                                                                                                
OFFERED IN THE SENATE                                                                                                           
     TO:  SCS CSHB 25(HES)                                                                                                      
                                                                                                                                
     Page 15, lines 23 - 24:                                                                                                    
          Delete "effective for the purposes of this                                                                            
     chapter to the extent it  complies with the law of this                                                                    
     state"                                                                                                                     
          Insert "recognized for the purposes of this                                                                           
     chapter.  However, the do  not resuscitate order or the                                                                    
     do  not resuscitate  identification may  be implemented                                                                    
     only  to the  extent that  the implementation  does not                                                                    
     conflict with the laws of this state"                                                                                      
                                                                                                                                
CHAIR  SEEKINS moved  to adopt  Amendment 1.  With no  objection,                                                               
Amendment 1 was adopted.                                                                                                        
                                                                                                                                
SENATOR FRED  DYSON told members he  feels like this bill  is one                                                               
of his  foster children.  He has  spent more time  on HB  25 this                                                               
session  than  on  any  other  piece  of  legislation,  with  the                                                               
exception of  the spending limit. He  said HB 25 is  an excellent                                                               
piece  of work,  and  has  been called  the  finest  end of  life                                                               
directives  bill  in  the nation.  Representative  Weyhrauch  has                                                               
pulled all of  the stakeholders into the process  during the last                                                               
16 months.                                                                                                                      
                                                                                                                                
SENATOR   DYSON   informed   members   that   two   issues   were                                                               
controversial. The  Senate HESS Committee added  language so that                                                               
there is  a presumption that  when dealing with a  comatose woman                                                               
who is  pregnant, and in  a permanent, unconscious state,  and is                                                               
terminal, that woman  would be kept alive as long  as possible to                                                               
give the  unborn child a chance  to survive outside of  the womb.                                                               
Language was added  at the request of Senator  Guess that directs                                                               
women  to   consider  including  such  language   in  end-of-life                                                               
directives. He emphasized that in  the version before members, in                                                               
all  options, if  there  is  any doubt,  the  bill presumes  that                                                               
medical staff will opt for life.                                                                                                
                                                                                                                                
He told members  that one controversial issue that a  lot of time                                                               
has been spent on is when  artificial hydration and food would be                                                               
withdrawn. He  said as he  understands the bill, that  would only                                                               
be  done   when  the  person   meets  the   following  qualifying                                                               
conditions:                                                                                                                     
                                                                                                                                
   · The person has a terminal condition and will die within a                                                                  
    relatively short period of time, meaning weeks and days.                                                                    
   · The person is in a permanent unconscious state with no                                                                     
     known  medical   technology  to  restore  health,   and  has                                                               
     executed an end-of-life directive saying  he or she does not                                                               
     want his  or her  dying body  preserved artificially.  If no                                                               
     advanced  directive  exists,  then   the  decision  is  made                                                               
     according to  the best interest  of the patient,  which must                                                               
    take into account pain by the family and medical staff.                                                                     
   · This bill allows for judicial appeal so that a party who                                                                   
     opposes the decision can go to court to get a stay.                                                                        
                                                                                                                                
SENATOR  DYSON  said  he  believes this  bill  makes  the  proper                                                               
distinction that  the default position  is life in all  cases. An                                                               
advanced directive to the contrary  would put sideboards on that.                                                               
This  bill also  updates Alaska  statutes on  organ donation  and                                                               
puts clear directives  in statute.  He repeated  that he believes                                                               
this may  be one  of the  finest pieces  of legislation  that has                                                               
come out of this legislative session.                                                                                           
                                                                                                                                
8:35 a.m.                                                                                                                       
                                                                                                                                
SENATOR   OGAN  asked   Senator   Dyson  to   elaborate  on   the                                                               
determination of the  best interest of the patient,  and how that                                                               
would  be determined  if  no family  members  are available,  for                                                               
example with an unidentifiable homeless person.                                                                                 
                                                                                                                                
SENATOR DYSON deferred to Dr.  Wallington to answer that question                                                               
but reminded  members that such a  decision will only be  made if                                                               
the patient  meets the qualifying  conditions. He  explained that                                                               
the  person   must  be  terminally   ill  and  determined   by  a                                                               
neurological  expert to  be permanently  unconscious. He  said in                                                               
the  case  of a  person  with  no  surrogate or  state  appointed                                                               
guardian, the medical team would make that decision.                                                                            
                                                                                                                                
DR. MARIA WALLINGTON, a medical  ethicist at Providence Hospital,                                                               
told members that some of the  patients will not be dying, and if                                                               
the medical team recognizes that  a patient will remain unable to                                                               
make  his   or  her   own  decision,   the  medical   staff  will                                                               
automatically go to court for  guardianship. If the patient has a                                                               
very short  time to live,  the usual practice is  that physicians                                                               
want multiple  inputs in the  decision and, as the  ethicist, her                                                               
involvement  is commonly  requested. The  bill does  not actually                                                               
require that an  ethicist be involved. She said  she believes the                                                               
bill  does a  complete  job  of trying  to  protect patients  and                                                               
reflects current practice.                                                                                                      
                                                                                                                                
CHAIR SEEKINS asked  Dr. Wallington if she agrees  that this bill                                                               
is not a step toward euthanasia.                                                                                                
                                                                                                                                
DR.  WALLINGTON  said she  absolutely  agrees  and, "We  have  no                                                               
intention  of supporting  an act  of killing  people. What  we're                                                               
trying to do  here is outline a process to  be sure that people's                                                               
wishes  [indisc.] to  assess them,  and it  gives the  process to                                                               
follow if  we don't have  that information. We are  not intending                                                               
to do away with people in any way."                                                                                             
                                                                                                                                
SENATOR OGAN questioned whether  the bill contains any safeguards                                                               
in  case a  physician believed  in the  philosophy of  speeding a                                                               
person's death.                                                                                                                 
                                                                                                                                
DR.  WALLINGTON said  HB  25 is  not an  attempt  to rewrite  the                                                               
legislation  that  deals  with   homicide  and  she  believes  it                                                               
improves direction  to the health  community by  encouraging them                                                               
to take advantage of the legal avenues available.                                                                               
                                                                                                                                
MS. SYLVESTER added  that the concern is not  so much physicians,                                                               
because  the  other factors  that  are  operating are  individual                                                               
liability and  the possibility of  losing a license  to practice.                                                               
Those factors  have created a  situation in which  doctors always                                                               
err on the  side of life because they cannot  be sued for keeping                                                               
a person alive.  She noted  that nefarious intentions on the part                                                               
of family members  who might want access to  the patient's assets                                                               
have been considered. She explained:                                                                                            
                                                                                                                                
     We trust doctors to practice  to look after life and to                                                                    
     recognize when  they're in  situations when  someone is                                                                    
     not  behaving or  talking one  thing but  their actions                                                                    
     are not  in the best  interest of the patient  they are                                                                    
     making  decisions  for.  In those  situations,  doctors                                                                    
     ethically are  bound to  not take  action but  our bill                                                                    
     goes a step farther to  remind doctors that if they are                                                                    
     in  a situation  where  something  doesn't look  right,                                                                    
     doesn't smell right, then they  stop, they don't act on                                                                    
     the decisions,  and they report it  to the institution.                                                                    
     The  intention is  that will  trigger the  ethics board                                                                    
     and that will trigger  someone going immediately to get                                                                    
     the public  guardian involved and get  others involved,                                                                    
     so the alarms are going  to go off. So we've considered                                                                    
     that  safety  valve  and  that's  probably  the  bigger                                                                    
     concern,  rather  than  doctors who  are  obligated  by                                                                    
     criminal  law to  behave in  a certain  way, and  civil                                                                    
     law,  and  then  also  by their  professional  code  of                                                                    
     ethics.                                                                                                                    
                                                                                                                                
SENATOR DYSON said he is  comfortable with the practice in Alaska                                                               
hospitals and that the intent language  in the bill is very clear                                                               
in two places  that the presumption is in favor  of life. He said                                                               
one scenario of concern, for  example, was that of an 85-year-old                                                               
man  who was  getting hospice  care  at home  and was  marginally                                                               
conscious.  He fell  in love,  married his  35-year-old caregiver                                                               
and  died shortly  afterward. His  prescribing physician  was the                                                               
"main squeeze"  of the caregiver,  who had a  substantial estate.                                                               
He  said  the  family  contacted  a medical  examiner  to  do  an                                                               
autopsy, during  which a lot  of toxic medications were  found in                                                               
the man's system. He said a  second bothersome scenario is one in                                                               
which a caregiver got a patient  to sign an advance directive and                                                               
durable power  of attorney, under  which she was the  executor of                                                               
his  considerable estate.  He  then died  within  10 days.  Those                                                               
situations  did not  occur in  hospitals. He  noted he  is making                                                               
efforts to get more funding for state medical examiner offices.                                                                 
                                                                                                                                
CHAIR   SEEKINS   asked   for  a   definition   of   "permanently                                                               
unconscious."                                                                                                                   
                                                                                                                                
DR. WALLINGTON  told members  that term is  defined in  the bill.                                                               
She explained that permanently unconscious  is already applied if                                                               
there has been  a long period of observation, a  month or longer,                                                               
depending on  the situation. She  leaves that determination  to a                                                               
neurologist.  She  added  that   determination  requires  that  a                                                               
certain length of time pass.                                                                                                    
                                                                                                                                
CHAIR  SEEKINS  asked  how  a  neurologist  would  come  to  that                                                               
conclusion.                                                                                                                     
                                                                                                                                
DR.   WALLINGTON   said   the   neurologist   would   make   that                                                               
determination based  on the  history, insult  and the  results of                                                               
brain studies. Neurologists know that  over time, if a person has                                                               
not recovered a certain level  of activity or brain function, the                                                               
chance of recovery gets smaller.                                                                                                
                                                                                                                                
CHAIR   SEEKINS   asked   if  physicians   commonly   make   that                                                               
determination now.                                                                                                              
                                                                                                                                
DR.  WALLINGTON said  physicians  make that  diagnosis when  it's                                                               
present.                                                                                                                        
                                                                                                                                
SENATOR  THERRIAULT  asked  if the  estate  planning  council  in                                                               
Alaska has reviewed this bill.                                                                                                  
                                                                                                                                
MS. SYLVESTER said she did  identify those individuals and raised                                                               
it  with them.  Beth  Chapman, a  local  attorney whose  practice                                                               
focuses  on estates,  wills, and  guardianship issues,  worked on                                                               
this bill.  Her interest  was to fix  the current  situation with                                                               
the power  of attorney and  getting decisions out of  the courts.                                                               
She pointed out that HB 25 does not address estate planning.                                                                    
                                                                                                                                
CHAIR SEEKINS took public testimony.                                                                                            
                                                                                                                                
MR. PAT LUBY,  Advocacy Director of AARP in  Alaska, told members                                                               
the development of HB 25  has involved an extremely long process.                                                               
He pointed out that the bill  creates a voluntary program in that                                                               
no  one  has  to  sign   an  advanced  directive.  However,  AARP                                                               
encourages all of  its members to sign them. AARP  sees this as a                                                               
consumer  issue;  that people  should  make  their own  decisions                                                               
about how they want  to be treated at the end  of life and convey                                                               
those  decisions to  family  members  and medical  professionals.                                                               
AARP strongly supports HB 25.                                                                                                   
                                                                                                                                
MS.  CAROL EDWARDS,  an  oncology  nurse in  Juneau  for over  20                                                               
years,  said  she is  also  the  health  policy liaison  for  the                                                               
National Oncology  Nursing Society and  a member of the  Board of                                                               
Directors  of  the  Alaska  Nurses   Association,  which  she  is                                                               
representing  today.   She  said   she  began  working   on  this                                                               
legislation four years  ago and is glad to see  its progress. She                                                               
maintained that HB 25 does not  tell people what to do; it allows                                                               
them  to  make  choices.  It  is  not  a  bill  representing  one                                                               
particular religion. She continued:                                                                                             
                                                                                                                                
     Death is something  that we all must face.  The type of                                                                    
     death that  we have can  be, in large part,  within our                                                                    
     own control. HB  25 allows us to  outline the treatment                                                                    
     that we do  or do not want in our  last days. Death can                                                                    
     be  a  beautiful  and a  peaceful  experience  for  the                                                                    
     patient as  well as  for the family  and friends  or it                                                                    
     can be  extremely traumatic  and painful  and stressful                                                                    
     for all involved....  I just want to  say that everyone                                                                    
     has a  right to pass from  this world in a  way that is                                                                    
     in harmony  with their own  beliefs, whatever  they may                                                                    
     be  and to  make these  desires known  and to  assure a                                                                    
     peaceful  ending. This  is for  the individual  himself                                                                    
     and also  for the  family that is  left behind  to make                                                                    
     this a  positive experience, as  best as it can  be. It                                                                    
     is   our   responsibility,  your   responsibility,   to                                                                    
     guarantee this  right for all Alaskans  and I sincerely                                                                    
     hope that this bill will  be passed before this session                                                                    
     is ended. Thank you so much.                                                                                               
                                                                                                                                
MR.  CHIP WAGONER,  representing the  Alaska Catholic  Conference                                                               
gave the following testimony:                                                                                                   
                                                                                                                                
     Thank you  sir. This  is the public  policy arm  of the                                                                    
     church  in  Alaska,  currently  made  up  of  the  four                                                                    
     bishops and  archbishops. The church has  been involved                                                                    
     with this  issue - the  end of  life issues -  for over                                                                    
     500  years  and  has  written extensively  on  it.  The                                                                    
     conference  supports  the  bill, which  is  before  you                                                                    
     today.  We don't  agree on  all of  the aspects  of the                                                                    
     bill  but  we  recognize  that   the  bill  is  a  vast                                                                    
     improvement and is  a good bill and, in fact,  it is an                                                                    
     excellent bill.                                                                                                            
                                                                                                                                
     There are  two qualifying conditions and  Senator Dyson                                                                    
     made  very, very  clear that  one  of those  qualifying                                                                    
     conditions   in   which  life-sustaining   support   of                                                                    
     procedures  can be  withheld or  withdrawn is  terminal                                                                    
     illness where  you're going to die  within a relatively                                                                    
     short  period of  time. This  would not  include a  45-                                                                    
     year-old person  who is otherwise healthy  but needs to                                                                    
     be on  a dialysis  machine in  order to  continue life.                                                                    
     This  is for  somebody near  death and  that qualifying                                                                    
     condition,  to  remove   or  withhold  life  sustaining                                                                    
     procedures, under  Catholic theology is  appropriate if                                                                    
     you  take  into  account  the risk,  the  burdens,  the                                                                    
     benefits on  the patient and,  in our teaching,  on the                                                                    
     community  and   on  the  family.  The   best  interest                                                                    
     standards   deal  with   resuscitation,  but   that  is                                                                    
     appropriate given  that this  is a  bill and  we're not                                                                    
     writing  church  doctrine.  It  is  something,  as  was                                                                    
     stated  by the  speaker just  before me,  [which] deals                                                                    
     with a  journey of  life. With Catholic  teachings, and                                                                    
     many other  peoples believe your  journey does  not end                                                                    
     with  your  death,  it  continues  gloriously  so  that                                                                    
     qualifying condition is one the church accepts.                                                                            
                                                                                                                                
     The  second  qualifying  condition,  we  had  a  recent                                                                    
     change  with  the statement  from  the  Holy Father  on                                                                    
             st                                                                                                                 
     March 31   of  this year  in which  he had  stated that                                                                    
     providing  of  artificial  hydration and  nutrition  to                                                                    
     permanently   -   actually    they   used   permanently                                                                    
     vegetative state, which is  somebody who is permanently                                                                    
     unconscious for  a year or more  in medical technology,                                                                    
     would be  ordinary care and  should be continued  to be                                                                    
     provided and  the bishops have  asked me to  state that                                                                    
     they do not  agree with that provision  as a qualifying                                                                    
     condition in  this bill  but we  support the  bill even                                                                    
     with that provision  in it because it is, as  I said, a                                                                    
     good bill and it has lots of other protections.                                                                            
                                                                                                                                
     The last point I would like... [END OF SIDE A]                                                                             
                                                                                                                                
TAPE 04-56, SIDE B                                                                                                            
                                                                                                                                
MR. WAGONER continued:                                                                                                          
                                                                                                                                
     ...is that  in regard to the  best interests standards,                                                                    
     the term  - you're evaluating  the treatments of  the -                                                                    
     the  benefits  of the  treatments,  the  effect on  the                                                                    
     patient, the pain  on the patient and the  like, and we                                                                    
     had wanted  an amendment to  that. We are not  going to                                                                    
     seek that  amendment or any  amendments. We  would like                                                                    
     to see this  bill move out of this  committee today and                                                                    
     we would like  to see this bill pass. But  I would like                                                                    
     to  point out  for  the record  that Section  13.52.135                                                                    
     deals with  the best  interest standards,  which states                                                                    
     that  in determining  the  best  interest, health  care                                                                    
     treatment may  not be denied  to a patient  because the                                                                    
     patient  has a  disability  or is  expected  to have  a                                                                    
     disability. With that in the  bill, and I had forgotten                                                                    
     that  it  specifically  mentioned best  interest,  with                                                                    
     that in  the bill I  think that concern  is alleviated.                                                                    
     It's  not  the  way  I  would have  written  it  as  an                                                                    
     attorney but this compromise is acceptable.                                                                                
                                                                                                                                
     I can't  tell you the number  of hours that some  of us                                                                    
     have put  into this bill  - hundreds of  hours. Senator                                                                    
     Dyson  was  correct.  His staff  is  to  be  commended;                                                                    
     Representative Weyhrauch  [is] to  be commended.  Is it                                                                    
     an absolute  perfect bill  from Catholic  theology? No.                                                                    
     Is it a  very, very good bill that  the Catholic Church                                                                    
     supports in Alaska?  Yes and we would urge  you to move                                                                    
     it out of  this committee and have it go  to the floor,                                                                    
     have  it  pass, and  have  this  law  in the  State  of                                                                    
     Alaska. And I'd be happy to answer any questions.                                                                          
                                                                                                                                
He commended  Ms. Sylvester  for the  work she  has done  on this                                                               
bill.                                                                                                                           
                                                                                                                                
CHAIR  SEEKINS  announced  that  with  no  further  participants,                                                               
public testimony was  closed and that the committee  would take a                                                               
5-minute recess.                                                                                                                
                                                                                                                                
9:02 a.m.                                                                                                                       
                                                                                                                                
Upon  reconvening,   SENATOR  OGAN   moved  CSSB   369(L&C)  from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
note(s). There being no objection, the motion carried.                                                                          
                                                                                                                                
SENATOR OGAN  then moved  HB 188  from committee  with individual                                                               
recommendations  and  attached  fiscal note(s).  There  being  no                                                               
objection, the motion carried.                                                                                                  
                                                                                                                                
SENATOR OGAN moved SCS CSHB 25(JUD) from committee with                                                                         
individual recommendations and attached fiscal note(s). There                                                                   
being no objection, the motion carried.                                                                                         
                                                                                                                                
CHAIR SEEKINS announced the next meeting would be held on                                                                       
Saturday, May 1. He then adjourned the meeting at 9:06 a.m.                                                                     

Document Name Date/Time Subjects