02/06/2004 08:00 AM Senate JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 6, 2004
8:00 a.m.
TAPE(S) 04-2&3
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 217
"An Act relating to genetic privacy; and amending Rule 82,
Alaska Rules of Civil Procedure, and Rule 508, Alaska Rules of
Appellate Procedure."
HEARD AND HELD
SENATE BILL NO. 203
"An Act relating to certain administrative hearings; and
establishing the office of administrative hearings and relating
to that office."
MOVED CSSB 203(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 217
SHORT TITLE: GENETIC PRIVACY
SENATOR(s): OLSON
05/09/03 (S) READ THE FIRST TIME - REFERRALS
05/09/03 (S) HES, JUD
01/28/04 (S) HES AT 1:30 PM BUTROVICH 205
01/28/04 (S) Moved CSSB 217 (HES) Out of Committee
01/28/04 (S) MINUTE(HES)
01/30/04 (S) HES RPT CS 1DP 1NR 2AM NEW TITLE
01/30/04 (S) DP: DYSON; NR: GUESS;
01/30/04 (S) AM: GREEN, WILKEN
BILL: SB 203
SHORT TITLE: OFFICE OF ADMINISTRATIVE HEARINGS
SENATOR(s):
04/29/03 (S) READ THE FIRST TIME - REFERRALS
04/29/03 (S) STA, JUD, FIN
05/06/03 (S) STA AT 3:30 PM BELTZ 211
05/06/03 (S) Moved CSSB 203(STA) Out of Committee
05/06/03 (S) MINUTE(STA)
05/07/03 (S) STA RPT CS 1DP 3NR SAME TITLE
05/07/03 (S) DP: STEVENS G;
05/07/03 (S) NR: COWDERY, GUESS, DYSON
05/09/03 (S) JUD AT 1:00 PM BELTZ 211
01/30/04 (S) JUD AT 8:00 AM BUTROVICH 205
01/30/04 (S) Heard & Held
01/30/04 (S) MINUTE(JUD)
WITNESS REGISTER
Senator Donny Olson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 217
Ms. Jennifer Rudinger
Executive Director
Alaska Civil Liberties Union
Anchorage, AK
POSITION STATEMENT: Discussed concerns with SB 217
Mr. John George
American Council of Life Insurers
Juneau, AK
POSITION STATEMENT: Discussed concerns with SB 217
Mr. Dave Stancliff
Staff to Senator Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about the committee
substitute to SB 203
Mr. Andy Hemenway
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Answered questions about the committee
substitute to SB 203
Mr. Dave Ingram
Juneau, AK
POSITION STATEMENT: Supports SB 203 and presented suggestions
ACTION NARRATIVE
TAPE 04-2, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:17 a.m. Senators Therriault,
French and Seekins were present. The first bill to come before
the committee was SB 217.
SB 217-GENETIC PRIVACY
SENATOR DONNY OLSON, sponsor of SB 217, gave the following
sponsor statement:
SB 217 has to do with the genetic privacy laws here in
Alaska. I introduced this bill because I think the
reason for introducing such legislation is to get a
handle on this very complicated issue that is related
to genetic privacy. Genetic privacy goes back to the
make-up of every one of us as individuals that goes
back farther than we can remember historically.
We're all familiar with the useful DNA identification
that's been used for law enforcement and paternity
disputes. But there's another side to this new
technology that I feel has a special need for some
type of privacy here in the state of Alaska.
Up until the year 2000, much of this information had
been essentially hidden within our genetic code.
However, with a public consortium and a private
company, they announced that they had cracked the code
and were able to spell out the 3 billion letters of
each genetic genome, the biochemical messages that's
encoded within everyone's DNA.
This is the stepping-stone in deciphering the
blueprint that makes us human. In fact, every human
cell, including hair, blood, fingernails, body
tissues, with the exception of gametocytes [ph], the
sperm and the ovaries in particular, are made up of
the same complete set of our genetic make-up.
Consequently these genetic profiles yield information
that could be used against us.
We certainly have state laws to restrict access to
medical records, however the State of Alaska has yet
to specify any protection of our genetic information.
Medical information is presumed confidential, but with
the increasing capability to store and rapidly
transfer data, this escalates the challenge for
protecting privacy.
At the present time there are no national statutes
regarding the genetic privacy laws, however 15 states
have required informed consent for a third party to
perform or acquire genetic tests to obtain genetic
information. Twenty-three other states require
informed consent to disclose genetic information.
Let me just re-emphasize that this bill is not to
interfere with law enforcement, paternity
determination, or any kind of medical necessity.
Therefore, I've introduced SB 217 to give special
consideration to the advancing biotechnology and to
protect our privacy rights before it gets so
complicated that we can't handle it. Thank you very
much, Mr. Chairman.
CHAIR SEEKINS noted that Senator Ogan had joined the committee
and took questions from committee members.
SENATOR SCOTT OGAN asked who is opposed to SB 217 and whether
any insurance companies want access to genetic information to
determine eligibility for insurance coverage.
SENATOR OLSON said he was not sure that insurance companies are
necessarily opposed to SB 217; however, they would like to amend
it. He said insurance companies realize that technological
advances will require some action and their concerns are valid
and need to be addressed.
SENATOR OGAN told members he believes SB 217 is a good idea
because insurance is based on a pooled risk. He is concerned
that without such legislation, if genetic information became
more readily available, it could be used to discriminate against
people based on predetermined genetic conditions. He pointed out
everyone's family has some predisposition to disease.
SENATOR OLSON said the bottom line of SB 217 is that a person,
and only that person, should have the right to his or her
genetic information, and that person should have to provide
informed consent before that information is disseminated.
CHAIR SEEKINS asked about using genetic information for the
purpose of criminal identification.
SENATOR OLSON said this bill contains exemptions for law
enforcement, paternity determination, and medical necessity.
Therefore, it should have no effect on law enforcement.
CHAIR SEEKINS asked Senator Olson if law enforcement were to
keep a database of genetic information, whether that information
would be shared only within the State of Alaska or whether it
would be shared on a nationwide basis for criminal
identification purposes.
SENATOR OLSON said, as in the case of fingerprint
identification, which is shared nationwide, he anticipates that
genetic information will also eventually be shared.
CHAIR SEEKINS asked Senator Olson if he is suggesting that
genetic information used for law enforcement purposes should be
sequestered within the State of Alaska and not shared on a
national basis.
SENATOR OLSON said the intent of the bill is not to interfere
with law enforcement at all, therefore that issue is beyond the
scope of this legislation.
SENATOR HOLLIS FRENCH said he reviewed the bill with a careful
eye on the law enforcement aspects. He pointed out that the FBI
maintains a nationwide genetic database named CODIS [Combined
DNA Index System] that states have access to when seeking out
crime suspects. He explained:
If a rape is committed in Alaska and we gather
evidence of who the rapist is here and enter that
information into the database and ... if he's arrested
in New York, we can link him up to that through use of
the database but it's carefully maintained for just
that purpose. And somewhere in the materials I noted
the penalties for disclosing that information outside
that database are felony penalties. They're much more
severe than the penalties proposed by this bill. And
I, like Senator Ogan, have concerns about how the
insurance industry can use genetic information about
you in setting rates and so forth.
But I think the one aspect that I was looking at most
closely was whether this would interfere with the
collection of information for sex offenders.... It
does not interfere with it and so I think it's
carefully crafted to allow for the collection for
information in the law enforcement arena but mainly it
just sort of recognizes that Alaska has a
constitutional right to privacy and that before you
disclose someone's genetic information that you get in
a routine medical test to some insurance company or
another health agency or somebody else, that you get
that patient's point blank disclosure. It may be that
the patient wants to disclose it and is interested in
disclosing and he can do that.... But I just think
it's one of those intensely personal pieces of
information that you should have an opportunity to
disclose knowingly, instead of just disclosing at
someone else's desire. I think this bill goes a long
way to getting us on the right track as far as this
information goes.
CHAIR SEEKINS noted his point was to put the fact that the
committee is concerned about the law enforcement aspect on the
record. He then indicated an applicant for an insurance policy
must provide information about his or her family medical history
so that the insurance company can determine the risk factor. He
asked if SB 217 is enacted, whether his insurance company could
ask him to undergo a genetic screening if the company made it
available and, if he signed a waiver, the insurance company
could use that information to determine his insurability.
SENATOR OLSON said it could.
CHAIR SEEKINS asked if anything in SB 217 protects the potential
insured from being forced to provide genetic information to be
considered for a policy. He said he understands Senator Ogan's
concern, yet a family medical history already provides a vague
picture of one's genetic predisposition. He asked Senator Olson
whether he has considered how that scenario should be addressed.
SENATOR OLSON said that question has and needs to be considered.
He maintained that some type of informed consent is required in
Alaska and nationwide to protect one's family medical history
and medical record information. SB 217 is an attempt to provide
the same protection for one's genetic code so that it fits under
[medical record] information. He repeated that one can
voluntarily disclose the information; however his goal is to
make sure the information cannot be used against a person who is
unaware. He explained:
Going on to the next step, where it's going to be a
hammer that's used against you by, as you pointed out,
specifically the insurance company, I think that is
another level of legislation that needs - that could
address it at that time. At this point, all I want to
do is make sure that we have some type of protection
for our genetic code, which is establishing a privacy
or property right so that we have some control as to
who gets that information and that's it.
CHAIR SEEKINS said his concern is that an insurance company
could refuse to consider an applicant without a DNA analysis.
SENATOR FRENCH agreed with Senator Olson that the issue raised
by Chair Seekins should be the subject of a separate bill.
SENATOR OLSON said his legal education told him to [limit the
scope of the bill] at that point.
8:27 a.m.
SENATOR GENE THERRIAULT referred to Section 1 of SB 217, the
findings and purpose section, and noted that when he was the
chair of the House Finance Committee, he routinely took the
findings sections out of bills to keep the statutes streamlined.
He asked Senator Olson if the legal drafter suggested including
a findings section and whether there is any compelling reason to
include it in the bill rather than in a letter of intent.
SENATOR OLSON said because of the complexity of the genetic
information available, the bill needs specific language to
create parameters, "so that we don't have anything that just
kind of blankets over anything because all of a sudden you get
this interpretation that this means this and that means that so
that's the reason I think the drafters put it in."
SENATOR THERRIAULT asked if he requested a findings section.
SENATOR OLSON deferred to his chief of staff.
MR. DAVE GRAY, Chief of Staff to Senator Olson, said he believes
SB 217 is a composite of legislation from other state laws on
this subject.
SENATOR THERRIAULT pointed out his own bill, SB 203, before the
committee today has a shorter findings section, which he plans
to review to see if it is necessary. He repeated that when a
findings section is unnecessary, he believes the legislature
should write a letter of intent to avoid adding pages to the
statutes.
CHAIR SEEKINS noted that he does not intend to pass SB 217 from
committee today so members will have an opportunity to look at
that question.
SENATOR OLSON explained:
The information that's within not just the nucleus of
the cell but within the mitochondria and all those
other things...when you start to go and deal with
things like ribonucleic acid and deoxyribonucleic acid
and all those complexities, you have to have more than
just what the intent is because otherwise the
bill...misses, I think, how deep this really goes
because certainly there are issues - and even within
the definitions, when you're starting to talk
chromosomes and the protein that make up the
chromosomes and the genetic code that's there, that's
why...I thought that we should have the, instead of
just the intent, which is far more efficient - I
understand, but when you start looking deeper and more
and more technology goes forward...this defines in a
tighter way what we're trying to do.
SENATOR THERRIAULT noted the statute should address what is to
be enforced. The findings and intent go into the uncodified
section of the state law for the purpose of clarification.
SENATOR OGAN said the Alaskan Civil Liberties Union (ACLU) is
calling DNA a property right and believes if human genes are
property, poor people could be pressured into selling their
organs or genetic material. He said that raises ethical
questions about whether human material should be devalued to the
point of being marketable commodities. He happens to agree with
the ACLU on that matter. He said the bill refers to genetic
information as a property right and the intent language would
codify it that way in statute. He asked Senator Olson his
feeling on that issue.
SENATOR OLSON said he discussed that question with ACLU
representatives and opted not to change the language in the bill
because he feels comfortable with the property right.
SENATOR OGAN asked Senator Olson, as a medical doctor, whether
he is aware of a split in opinion among the medical community
about classifying genetic information as a property or privacy
right.
SENATOR OLSON replied:
That is a very good question, Senator Ogan....It is
appalling to sometimes see what goes on throughout the
world having, as you pointed out, studied in England,
and studied law in England at Cambridge, the stuff
that you saw out there has some type of negative
visceral reaction to it.... On the other end of the
spectrum...most students in college have had the
opportunity at one time or another to go down to the
local Red Cross and have your blood drawn and get 10
bucks or so, so that's for giving blood, which I don't
have a problem with. So you have that on the other end
of the spectrum. So between the two, ...we all fall as
to what our thoughts are on this ethical issue but I
would say that the intent of this bill, and in the
inclusion of the property right, that it's not for
certainly the sale of organs, tissues....
CHAIR SEEKINS acknowledged that the purpose of SB 217 is to
protect genetic information based on an individual right, not to
determine the ethics of selling body parts.
SENATOR OLSON agreed.
CHAIR SEEKINS took public testimony.
8:45 a.m.
MS. JENNIFER RUDINGER, Executive Director of the Alaska Civil
Liberties Union, said that the right to privacy is among the
strongest guarantees in the Alaska Constitution. The ACLU
appreciates Senator Olson's and the committee's interest in this
important issue. The ACLU made several suggestions in a letter
sent to Senator Olson and feels most strongly about two of those
suggestions. First, the ACLU would like the bill to define
"informed consent" and second, the ACLU would like to see
protections from discrimination included in the bill. She noted
that she respectfully disagrees with Senator French that
including such protections would be outside the scope of the
bill. She pointed out if the state is going to acknowledge this
important privacy right, the bill should contain some "teeth" to
protect that right. She said 46 states have some type of anti-
discrimination measure, mainly related to health insurance
policies. Alaska has two statutes that deal with that
discrimination based on genetic information; however, "genetic
information" is not defined in Alaska statute. Those statutes
say that a health care provider cannot discriminate in terms of
eligibility for health insurance based on genetic information,
among other things. She suggested, "It would be important, I
think, to beef that up a little bit and define genetic
information and then beyond eligibility, protecting people in
terms of their coverage."
MS. RUDINGER noted the other statute prohibits discrimination
based on genetic information in regard to pre-existing
conditions. She said it is important to protect people in both
the health insurance and employment context. It is a common
scenario for an employer to get consent for a genetic test from
an applicant and then to misuse the information when the
employee's disclosure of a genetic condition leads to employment
discrimination. The ACLU wants to see SB 217 protect people in
the two areas of employment and insurance.
CHAIR SEEKINS referred to page 3 of the ACLU letter, which
clarifies that in Alaska statute, a person includes corporations
and all different entities. He then asked Mr. George to testify.
MR. JOHN GEORGE, representing the American Council of Life
Insurers (ACLI), told members the ACLI has been working with
Senator Olson on its concerns with SB 217. The ACLI believes the
basis of the bill is well founded. Because insurers need to
require some medical tests, the ACLI feels the definition of
genetic testing in the bill is overly broad because that
definition would include the test results from, for example, a
cholesterol test and a serum iron test. Insurance companies use
tests that are widely accepted, cheap, and reliable. The type of
genetic testing that Senator Olson intends to protect does not
fit that description.
MR. GEORGE informed members that he provided a proposed
amendment to Senator Olson that contains a new definition. He
said he would prefer to work with Senator Olson to see if they
can agree on a new definition. He then told members that ACLI's
second concern regards adverse selection. He explained that if
an insured knows he or she has a medical condition and does not
disclose that to the insurance company, there is the possibility
of adverse selection. If a person knows that he or she is likely
to die in a year from now, that person is likely to buy more
life insurance. Insurance companies believe that if the insured
knows something about a medical condition beforehand, that
information should be disclosed to the insurance company for
underwriting purposes.
He informed members that applicants sign a disclosure form for
medical information when applying for insurance. He also noted a
good portion of the Division of Insurance's privacy regulations
have to do with disclosure of health information and what
insurance companies can do with that information. Insurance
companies are also subject to the Health Insurance Portability
and Accountability Act (HIPAA) regulations, which address
authorization by an applicant for disclosure of medical
information. SB 217 would require a separate authorization for
disclosure of genetic information. He noted if an insurance
company does business in 50 states and each state has a
different requirement, it would have to provide a different form
in each state and deal with insureds that move from state to
state. The ACLI believes the authorization forms it uses now
comply with HIPAA and are adequate for people who voluntarily
apply for insurance.
He said once an insurance company has information, it is
obligated to maintain those records. SB 217 originally allowed a
person to withdraw his or her information, however the insurance
company would be required to maintain the file. Insurance
companies are subject to audit by the Division of Insurance and
disclose client files when selling the company or applying for
reinsurance.
8:56 a.m.
CHAIR SEEKINS asked if he were to voluntarily get a DNA test to
learn how to live a better life, whether he would be obligated
to share the information with an insurance company.
MR. GEORGE said if an insurance company asked health related
questions, he would be obligated to answer them. He asked Chair
Seekins if he knew he had a disease that was diagnosed using a
non-genetic type test, he would feel obligated to disclose it.
CHAIR SEEKINS said he would feel obligated to disclose a pre-
existing condition but he was referring to a predisposition.
MR. GEORGE said the definition he plans to address with Senator
Olson addresses a predisposition and a pre-existing condition.
CHAIR SEEKINS asked if once the insurance company has that
information, it becomes the insurance company's property and can
be sold and shared.
MR. GEORGE said he was not sure how to answer that question. He
pointed out an insurance company would be prohibited from
selling the information. However, if he bought a life insurance
policy from Company A and that company decided to get out of the
life insurance business and sell to Company B, Company B would
want to review the underwriting files to determine the risk.
CHAIR SEEKINS indicated the information appears to be a saleable
commodity.
MR. GEORGE said ownership of the policy is with the policyholder
but the insurance company offering that policy can sell the book
of business. In addition, if a company wants to reinsure a
policy, the reinsurance company will want to look at that file.
He noted the privacy regulations that the Division of Insurance
is in the process of adopting contain specific guidelines about
what is permissible and what is not. Medical information is not
public information and is not available on the Internet.
CHAIR SEEKINS asked if that information is put into a database
that is available to other members of the insurance industry,
either on a membership or fee basis.
MR. GEORGE said it is not.
CHAIR SEEKINS asked, in that case, if he gave the information to
Company A, it would not be put into a database that is
accessible by Company B.
MR. GEORGE replied:
Senator, my understanding is that if we're talking
about a national database that someone can subscribe
to and just access, the answer is absolutely not. I
gave the example of Company A and B and, in that case,
it would be because there is a business relationship
and a reason for doing that. Again, what are they
doing with the information? Are they using it for a
business purpose to decide whether or not to accept
the business as opposed to selling it to your credit
card company or to your bank or to a prescription drug
company?
CHAIR SEEKINS said it seems that the intent of SB 217 is to
establish a level of privacy on an individual relationship
basis. He asked if when he shares information with Company A,
whether, without his knowledge or consent, it is a shareable
commodity with another entity. He thought that is what Senator
Olson was trying to protect. He said he wants to know what
actually happens to the data once it is shared with Company A
and asked Mr. George to get back to him with a definitive
answer.
MR. GEORGE said he feels absolutely safe in saying the
information is not saleable or shareable other than for the
specific permissive uses listed in the Division of Insurance's
regulations for claims adjusting and other purposes. It is not
available for any purpose not related to that insurance policy.
CHAIR SEEKINS noted with no further testimony, he would hold the
bill in committee and announced a 5-minute recess.
9:06 a.m.
SB 203-OFFICE OF ADMINISTRATIVE HEARINGS
CHAIR SEEKINS called the meeting back to order and announced SB
203 to be before the committee.
SENATOR GENE THERRIAULT, sponsor of SB 203, told members that
the committee substitute (CS) [version B] addresses the many
concerns of the state agencies. The purpose of SB 203 is to
implement a new system for adjudications and hearing officers to
make them consistent across statutes as much as possible. He
noted this bill is not a perfect fit to all areas of state
government. However, knowing that people resist change, the bill
has been scaled back so that it now establishes a pilot project.
He said the common goal, in working with the Murkowski
Administration, is to achieve a seamless transition.
TAPE 04-2, SIDE B
SENATOR THERRIAULT said those existing administrative hearing
jurisdictions that do not fit well at this time were removed
from version B. Those jurisdictions may, over time, be brought
into the new system by future legislative action. He explained
that the main source of tension involved whether the existing
rules and regulations would apply under the central panel
reform, or whether new regulations yet to be developed by the
chief hearing officer will control the process. He said to
address the concerns about agency expertise, version B allows
agency representatives to participate at hearings under
conditions set by the chief hearing officer. To address the
concern about maintaining agency power over policy, version B
keeps the central panel decisions as non-binding within certain
timelines and conditions. In areas of conflict with federal law,
version B authorizes the administration to follow federal
guidelines where required. In addition, at the request of the
administration, the definition of a hearing officer was removed
and replaced with a more broad description of a quasi-judicial
hearing function.
SENATOR THERRIAULT told members that the length of the bill has
decreased from about 50 to 39 pages. He asked that Mr. Stancliff
explain the details.
SENATOR THERRIAULT moved to adopt, as the working document
before the committee, the proposed committee substitute to SB
203, version B, dated 2/4/04.
CHAIR SEEKINS announced that without objection, the motion
carried.
MR. DAVE STANCLIFF, staff to the Administrative Regulation
Review Committee (ARRC) and to Senator Therriault, said the good
news is that the fundamental applications and structure in
version B are unchanged. The major changes made in the CS were
requested by the administration and several concerned
commissioners who like the existing process or are in the
process of making reforms to their hearing processes and want
the opportunity to implement them. Therefore, 12 of the
jurisdictions listed in the Senate State Affairs CS were removed
from version B. In addition, the Department of Environmental
Conservation's (DEC) emergency authority and emergency statutes
that are time sensitive and deal with environmental hazards were
exempted and the general DEC hearing functions will not fall
under the central panel for a grace period of two years. After
two years, if DEC's in-house reforms are working well, it could
make a case to the legislature for a permanent exemption.
MR. STANCLIFF said the Department of Natural Resources' (DNR)
concerns were addressed by removing DNR from the bill. Version B
is a highly polished model; one that will not be too costly to
implement. It has a very liberal transition period, requested by
the administration. The tension that Senator Therriault referred
to, between the Administrative Procedures Act (APA) and the
model, is not new. That tension exists simply because not every
agency conducts its hearings in the same way and not every
agency conducts its hearings under the APA. Those tensions are
inherent in any process that is not consistent from top to
bottom. He said the premise of this legislation was to build a
model that over time would provide top to bottom consistency,
but not to force the consistency in a way that would be too
costly or would "train wreck" legitimate, ongoing hearing
functions.
MR. STANCLIFF pointed out that a panel of five experts from
different states that assembled on February 3 was impressed with
the provision in the bill that will make the hearing officer an
administrative employee who will be appointed by the
administration. That hearing officer will write regulations and
expedite the necessary hearing process transformations. The five
experts were a bit reluctant to give high accolades for the fact
that final decision-making authority was not given to the
central panel. The experts did note that even though the panel
will not have final decision-making authority, the legislation
requires the commissioner to meet a fairly high bar to reverse a
decision. The reversal must be in writing so that if the case
advances to court, a written record will be available. He
pointed out the experts from the five states were very impressed
with the fact that the model in version B is a culmination of
all the best features of about 25 models adopted by other
states.
MR. STANCLIFF introduced Mr. Andy Hemenway, a hearing officer
with the Department of Administration (DOA) and said the two
would address the specific changes made in the CS.
9:20 a.m.
MR. STANCLIFF described the following changes to version B:
· page 5, line 31 and page 6, line 1 - language states that
this act does not create a right to a hearing that
otherwise does not exist in law
· page 6, lines 7-9 - language states that full-time hearing
officers will be subject to AS 39.25.150 personnel rules -
these positions will be partially exempt with the same
protections under the personnel rules listed in paragraphs
(7), (15) and (16)
· page 6, lines 29-30, language says a person who enters into
a contract to work as a hearing officer with the central
panel will be subject to the same rules of ethics as a
state hearing officer
SENATOR FRENCH asked how hearing officers are currently
classified in state service.
MR. STANCLIFF said it varies but for the most part, they are
fully protected employees if they are not under contract. He
noted there might be some exceptions in which an appointed
person, such as a director, would hold hearings. He deferred to
Mr. Hemenway for further information.
MR. HEMENWAY told members that most hearing officers are
partially exempt. He and a few others are classified.
SENATOR FRENCH asked if version B will maintain the status quo.
MR. HEMENWAY said that is correct.
CHAIR SEEKINS asked why a hearing officer would be under
contract.
MR. HEMENWAY referred to the list of agencies on page 4 and
explained that those agencies are statutorily required to hold
hearings if a decision is appealed, but they have no hearing
officers. When a hearing has to be conducted, a division
employee conducts the hearing or the department might contract
with an attorney for professional services to act as the hearing
officer.
CHAIR SEEKINS asked if this bill would reduce the requirement
for contract hearing officers.
MR. HEMENWAY said that is the intent but the bill creates one
additional position, the chief hearing officer. The expectation
is that the consolidation should create some efficiency and free
up time for the existing hearing officers to do some of the
currently contracted functions.
SENATOR THERRIAULT said that even with a centralized panel pool,
there may be times when outside contractors will have to perform
that function.
CHAIR SEEKINS agreed that the number of contracts will be
reduced, not eliminated.
MR. STANCLIFF continued:
· Page 7, lines 24-27 - Sec. 44.21.555 contains a
reimbursement agreement
· Page 7, beginning on line 8 - Sec. 44.21.560 was rewritten
to clarify how a resolution would occur when there is a
conflict between regulations and existing statute and
regulations adopted by the chief hearing officer
MR. STANCLIFF pointed out that the administration will appoint a
high quality person to work with the agencies and develop and
carry out regulations in a compatible manner. However, no matter
how well the system works, there will occasionally be a "rub"
between the jurisdictions as the transition goes forward. That
section is designed to address such a problem. He continued:
· Page 8, lines 13-14, address the confidentiality rule when
case information and materials are shifted to the central
panel
· Page 8, lines 16-21, allow, if an agency makes a case for
expertise, the chief hearing officer to determine what
level of participation is necessary
· Page 9, lines 22-23, subsection (f) provides a 30 day time
period for the commissioner to overturn a decision, and
says if no action is taken, the decision becomes final
· Page 10, lines 14-15, addresses any legitimate ongoing
action within an agency and prevents the central panel from
arbitrarily holding in abeyance what otherwise would be
good public policy
· Page 10, lines 24-25, say when federal requirements exist,
they prevail
· Page 10, line 28, contains a shorter definition of
administrative hearing officer at the suggestion of the
attorney general
· Page 29, lines 7-12, reinstates the requirement that the
attorney general approve contract services
· Page 34 contains the provision that puts DEC back in after
its two-year grace period - line 18 contains an exception
for the DEC functions that are extremely time sensitive and
are rarely used
· Page 39, line 29, Section 71, contains the DEC 2-year
exemption
MR. STANCLIFF told members that the transition period was
designed so that the administration can appoint a hearing
officer and start "getting the house" in order within a liberal
time period.
MR. HEMENWAY noted the start-up date is July of 2005, when the
chief hearing officer could be hired.
MR. STANCLIFF pointed out that version B addresses 85 to 90
percent of the administration's concerns. Addressing any of the
remaining concerns would have diluted the reform to the point
where it would not work as efficiently as needed. He said he
hopes the committee supports this balanced approach.
9:32 a.m.
SENATOR THERRIAULT said resistance is a natural reaction to any
system change. He noted that DEC resisted fee changes several
years ago but favored the changes after they were in effect for
a year. He said he will continue to be sensitive to agency
concerns but, hopefully, they will find that most of their
concerns have been dealt with. He asked members to consider
passing the CS from committee today so that the Finance
Committee can address the fiscal aspects of the bill.
MR. STANCLIFF told members that the five-state expert panel said
if the state wants to build a new model that garners respect,
and participant qualifications are raised, it is important to
change the title of hearing officer to administrative law judge.
He suggested that would be an easy conceptual amendment to make.
CHAIR SEEKINS asked the sponsor for his opinion of the
suggestion.
SENATOR THERRIAULT said he believes it has merit because it
would highlight that this panel will have uniform standards and
a heightened level of professionalism.
CHAIR SEEKINS asked Mr. Ingram to testify.
9:37 a.m.
MR. DAVID INGRAM told members he recently retired as a hearing
officer for 24 years with the State of Alaska. He also taught
administrative law and other legal courses at the University of
Alaska Southeast for the last 20 years and has been on the
executive committee of the administrative law section of the
Alaska Bar Association for 19 years. He thanked Senator
Therriault, Mr. Stancliff and Mr. Hemenway and all those
involved in SB 203; he is fully supportive of its general
thrust. He said anything that will help improve the level of
professionalism in administrative adjudications in Alaska is a
great idea. He has advocated for the creation of a central panel
for many years and looks forward to the day when all hearing
officers are removed from agency supervision and control. He
believes the idea of a pilot project is a good idea.
MR. INGRAM supported changing the title of hearing officer to
administrative law judge. He attended the meeting of the five
experts from other states and said that several of them noted a
discernible change in the level of professionalism when the
titles were changed in their states. He said that although it
may seem like window dressing, it would mean a lot to the
hearing officers to be referred to as administrative law judges.
In addition, many titles are now used throughout the state
agencies.
MR. INGRAM offered the following suggestions, which he believes
are very important. First, make all full-time hearing officers
employed by the state subject to the Alaska Code of Judicial
Conduct. The Supreme Court did a lot of work drafting and
adopting that code for the "black robed" judges in the state. He
said it does not contain anything unique to judges and would
apply in equal force to administrative law judges. Adopting that
code would eliminate the need to draft a new code, provide a
code of conduct at the inception of the panel, and provide an
instantaneous body of interpretive decisions to guide the
hearing officers in interpreting the code.
His second suggestion is to prohibit the practice of law by all
full-time hearing officers employed by the state. He believes
that as long as hearing officers are allowed to "moonlight," the
state will not have a professional corps of administrative
adjudicators. That activity has serious potential to conflict
with one's performance of duties. He repeated that is already
prohibited in the Alaska Code of Judicial Conduct.
9:42 a.m.
SENATOR OGAN asked if any conflicts surrounding private practice
work are regulated so that an attorney would recuse himself. He
said that the Alaska Bar Association holds attorneys to high
standards regarding conflicts.
MR. INGRAM said that is true but does not mean attorneys always
declare conflicts. The other difficulty is that the extra work
distracts them from their state duties.
CHAIR SEEKINS asked Mr. Ingram if he is suggesting that full-
time hearing officers be prohibited from moonlighting as a
lawyer but the prohibition would not apply to contract hearing
officers.
MR. INGRAM said that is correct.
SENATOR OGAN expressed concern that only the attorneys who can't
make a living on their own would apply.
MR. INGRAM said there are many applicants for any vacant hearing
officer position. His third suggestion was that all full-time
hearing officers be prohibited from acting as an advisor or
judge to another sovereign, such as another state, federal
government or Native group. He pointed out the Commercial
Fisheries Entry Commission (CFEC) allows one of its hearing
officers to be both a judge and an advisor to another sovereign.
Alaskans should be sure in the knowledge that their hearing
officers are not in a position to advise or sit on the court of
a sovereign with an interest potentially at odds with the State
of Alaska. He said, in his opinion, the CFEC situation is a
serious conflict of interest in light of potential disputes over
natural resources, fish and game, jurisdictional matters and the
Indian Child Welfare Act. He believes it is a terrible idea to
let a hearing officer engage in outside interests that may
affect the quality or integrity of his or her work for the
state.
MR. INGRAM informed members that he attached to his written
comments 4 pages of an extract from a decision he issued on
January 30, 2004 involving an application from a Ketchikan
resident. He suggested members read it to get some idea of what
is going on in the "real world" regarding professionalism and
integrity of the process.
SENATOR OGAN thanked Mr. Ingram for bringing his experience to
the committee.
MR. INGRAM said that he believes that all hearing officers would
love to be more independent and be part of a central panel.
SENATOR OGAN said when he introduced similar legislation 6 years
ago, a number of hearing officers privately gave him the "thumbs
up" for a central panel. He then said the term "administrative
law judge" is interesting because most people believe the
legislature writes law. However, the administration writes
regulations, which have the same force of law, and then enforce
them and deal with adjudications. Therefore, what is supposed to
be balanced by three branches is under one. He expressed concern
that hearing officers are pressured to rule with a little bit of
a bias toward the commissioner they work for.
MR. INGRAM said was never told how to decide a case. He suspects
he was given certain cases because he was likely to lean in a
particular way. He believes the main danger is that hearing
officers become friends with their co-workers and it is
difficult to criticize the performance of people one works with
and respects. He acknowledged that a good hearing officer can
step back.
SENATOR THERRIAULT said he clearly understands the reasons for
Mr. Ingram's first suggestion, to change the titles of the
hearing officers to administrative law judges. He asked if the
central panel adopted the Alaska Code of Judicial Conduct, Mr.
Ingram's other two suggestions, regarding outside employment,
would be addressed.
MR. INGRAM said it would take care of his suggestion to prohibit
moonlighting. However, he believes the committee should consider
amending the bill to specifically state that administrative law
judges should not act as an advisor or judge to another
sovereign because some people would argue that is not the
practice of law.
SENATOR THERRIAULT said if the legislature wants the efficiency
of a central pool, it would not want administrative law judges
with conflicts within the pool, other than life experiences,
such as being related to someone involved in a case.
CHAIR SEEKINS announced that he was closing public testimony and
asked for further comments from members.
SENATOR FRENCH thanked Mr. Ingram for his comments and said he
supports his first and fourth suggestions. He said his concern
about the second suggestion is based on a personal experience.
He noted that law clerks must be admitted to the Alaska Bar
Association to practice law and pay dues, but they cannot
practice law outside of being a law clerk. He said his problem
is with the ABA and believes it should establish a separate dues
rate for public interest lawyers.
TAPE 04-3, SIDE A
SENATOR FRENCH said he is still mulling over how Mr. Ingram's
second and third suggestions should be structured, but he
believes the bill is in good shape and appreciates the work that
has been done on it.
SENATOR THERRIAULT moved a conceptual amendment [Amendment 1] to
change the term "hearing officer" to "administrative law judge"
throughout the bill.
CHAIR SEEKINS announced that without objection, the motion
carried.
SENATOR THERRIAULT said he would prefer to get more information
on adopting the Alaska Code of Judicial Conduct before taking
action on that suggestion. He noted the next committee of
referral is the Finance Committee and, if adopting that code
will avoid having to write an entirely new code, he would
consider that as a way of handling the fiscal impact.
SENATOR THERRIAULT made a second conceptual amendment [Amendment
2] to preclude the administrative law judges from acting as an
advisor or a judge to any other sovereign.
SENATOR OGAN objected and asked what is meant by an advisor to
another sovereign. He questioned whether that would include
consulting.
SENATOR THERRIAULT said the amendment is conceptual so the
drafters will have to define that term.
CHAIR SEEKINS said he believes the intent is to address
situations in which the work is done for remuneration because
the law could not prohibit someone from giving free advice to
another.
SENATOR FRENCH read an excerpt from Mr. Ingram's letter that
cited the Alaska Code of Judicial Conduct, "A judge shall not
practice law. Notwithstanding this prohibition, a judge may act
pro se and may, without compensation, give legal advice to and
draft or review documents for a member of the judge's family."
CHAIR SEEKINS said that is how he interprets Amendment 2.
MR. STANCLIFF noted that a member of the administration felt the
term, "for remuneration or official purposes" should be used.
SENATOR FRENCH said that "official purposes" should probably be
parsed out a bit more.
SENATOR OGAN said he wanted to provide the drafter with some
discussion. He removed his objection; therefore Amendment 2 was
adopted.
SENATOR OGAN moved CSSB 203(JUD), Version B as amended, with its
attached fiscal notes from committee and asked for unanimous
consent.
CHAIR SEEKINS announced that without objection, the motion
carried. He then adjourned the meeting at 10:01 a.m.
| Document Name | Date/Time | Subjects |
|---|