Legislature(2003 - 2004)
02/25/2004 08:00 AM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 25, 2004
8:00 a.m.
TAPE(S) 04-8&9
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. 333
"An Act relating to judicial relief before final administrative
decisions of state agencies."
HEARD AND HELD
CS FOR HOUSE BILL NO. 260(JUD)
"An Act relating to immunity for free health care services
provided by certain health care providers; and providing for an
effective date."
HEARD AND HELD
CS FOR HOUSE BILL NO. 252(STA)
"An Act relating to the terms and duties of the members of the
State Board of Registration for Architects, Engineers and Land
Surveyors."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 217
SHORT TITLE: GENETIC PRIVACY
SPONSOR(s): 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
02/06/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/06/04 (S) Heard & Held
02/06/04 (S) MINUTE(JUD)
02/18/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/18/04 (S) Scheduled But Not Heard
02/25/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SB 333
SHORT TITLE: IF UNREAS. AGENCY DELAY, COURT DECIDES
SPONSOR(s): SENATOR(s) THERRIAULT
02/16/04 (S) READ THE FIRST TIME - REFERRALS
02/16/04 (S) JUD, FIN
02/25/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 260
SHORT TITLE: IMMUNITY FOR PROVIDING FREE HEALTH CARE
SPONSOR(s): REPRESENTATIVE(s) SEATON
04/11/03 (H) READ THE FIRST TIME - REFERRALS
04/11/03 (H) L&C, JUD
04/28/03 (H) L&C AT 3:15 PM CAPITOL 17
04/28/03 (H) Moved CSHB 260(L&C) Out of Committee
04/28/03 (H) MINUTE(L&C)
04/30/03 (H) L&C RPT CS(L&C) 2NR 5AM
04/30/03 (H) NR: LYNN, ROKEBERG; AM: GATTO,
04/30/03 (H) CRAWFORD, GUTTENBERG, DAHLSTROM,
04/30/03 (H) ANDERSON
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (H) Moved CSHB 260(JUD) Out of Committee
05/09/03 (H) MINUTE(JUD)
05/10/03 (H) JUD RPT CS(JUD) 6DP
05/10/03 (H) DP: HOLM, GARA, OGG, GRUENBERG,
05/10/03 (H) SAMUELS, MCGUIRE
05/19/03 (H) TRANSMITTED TO (S)
05/19/03 (H) VERSION: CSHB 260(JUD)
05/20/03 (S) READ THE FIRST TIME - REFERRALS
05/20/03 (S) HES, JUD
01/28/04 (S) HES AT 1:30 PM BUTROVICH 205
01/28/04 (S) Moved SCS CS HB260 (HES) Out of
Committee
01/28/04 (S) MINUTE(HES)
01/30/04 (S) HES RPT SCS 2DP 2AM SAME TITLE
01/30/04 (S) DP: DYSON, WILKEN; AM: GREEN, GUESS
02/25/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 252
SHORT TITLE: OCC LICENSING: TERMS OF BD & CONT. EDUC
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE
04/08/03 (H) READ THE FIRST TIME - REFERRALS
04/08/03 (H) L&C, STA
05/02/03 (H) L&C AT 3:15 PM CAPITOL 17
05/02/03 (H) Moved CSHB 252(L&C) Out of Committee
05/02/03 (H) MINUTE(L&C)
05/05/03 (H) L&C RPT CS(L&C) NT 4DP
05/05/03 (H) DP: LYNN, DAHLSTROM, ROKEBERG, ANDERSON
05/07/03 (H) STA AT 8:00 AM CAPITOL 102
05/07/03 (H) Moved CSHB 252(STA) Out of Committee
05/07/03 (H) MINUTE(STA)
05/08/03 (H) STA RPT CS(STA) NT 4DP 1NR
05/08/03 (H) DP: DAHLSTROM, LYNN, SEATON, WEYHRAUCH;
05/08/03 (H) NR: BERKOWITZ
05/15/03 (H) TRANSMITTED TO (S)
05/15/03 (H) VERSION: CSHB 252(STA)
05/16/03 (S) READ THE FIRST TIME - REFERRALS
05/16/03 (S) L&C, JUD
05/19/03 (S) L&C RPT 2DP 1NR
05/19/03 (S) DP: SEEKINS, STEVENS G; NR: FRENCH
05/19/03 (S) L&C AT 8:00 AM BELTZ 211
05/19/03 (S) Moved SCS(L&C) Out of Committee
05/19/03 (S) MINUTE(L&C)
02/18/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/18/04 (S) Heard & Held
02/18/04 (S) MINUTE(JUD)
02/25/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Representative Paul Seaton
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 260
Mr. Mike Haugen
Alaska Physicians and Surgeons
4325 Laurel St.
Anchorage, AK
POSITION STATEMENT: Supports CSHB 260(JUD)
Ms. Marie Darlin
AARP - Capital City Task Force
Juneau, AK
POSITION STATEMENT: Supports CSHB 260(JUD)
Ms. Pat Senner
Alaska Nurses Association
Anchorage, AK
POSITION STATEMENT: Supports CSHB 260(JUD)
Mr. Dave Stancliff
Staff to the Administrative Regulation Review
Committee
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 333
Mr. Doug Wooliver
Alaska Court System
303 K St.
Anchorage, AK 99501-2084
POSITION STATEMENT: Answered questions in regard to SB 333
Mr. Dan Houghton
Chief Financial Officer
Alaska Regional Hospital
POSITION STATEMENT: Supports SB 333
Senator Donny Olson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 217
Ms. Robbie Meyer
American Council of Life Insurers
No address provided
POSITION STATEMENT: Expressed concerns about SB 217
Ms. Jennifer Rudinger
Alaska Civil Liberties Union
Anchorage, AK
POSITION STATEMENT: Expressed concerns about SB 217
ACTION NARRATIVE
TAPE 04-8, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:00 a.m. Senators Ogan, Ellis,
French and Chair Seekins were present. The first order of
business to come before the committee was CSHB 260(JUD).
CSHB 260(JUD)-IMMUNITY FOR PROVIDING FREE HEALTH CARE
REPRESENTATIVE PAUL SEATON, sponsor of HB 260, explained the
purpose of HB 260 is to encourage health care providers to
provide services to Alaskans who would not otherwise be able to
obtain proper health care. It does so by offering immunity to
liability for civil damages resulting from an act of omission.
HB 260 is consistent with the Volunteer Protection Act passed by
Congress in 1997. The bill requires written notification to
patients of the provider's immunity to civil prosecution.
[SENATOR THERRIAULT arrived.]
REPRESENTATIVE SEATON said the Senate HESS Committee made a
change to Section 3; it clarifies that the health care must be
provided in conjunction with a government entity or non-profit
organization and the health care provider is acting within the
scope of the provider's actively maintained license. Nothing in
the legislation provides immunity for the agency or the non-
profit agency; they must carry malpractice insurance. CSHB
260(JUD) will allow health care providers, especially those who
have retired and no longer carry malpractice insurance, to
provide services.
He noted the sideboards in the legislation are that immunity
does not apply to the organization or to gross negligence or
willful acts. He indicated members' packets contain a definition
of gross negligence and willful act used throughout the
statutes. He offered to answer questions.
SENATOR OGAN said he did not see any specific mention of retired
health care providers in CSHB 260(JUD) and asked if the bill
will apply to others.
REPRESENTATIVE SEATON said it provides immunity for anyone
working within the scope of his or her license. It is especially
critical for retired medical providers because many of them do
not carry medical malpractice insurance. He pointed out it will
not prevent compensation for expenses, so that a community could
provide transportation and housing to a medical professional
when traveling to the community to provide services but the term
"compensation" is well defined in the legislation.
SENATOR THERRIAULT asked how it might apply to a health care
provider who offered free services on a cruise ship and whether
that person would get a free cruise and be covered.
REPRESENTATIVE SEATON noted "compensation" means receiving
something of value, which is defined in the federal law as well.
CHAIR SEEKINS asked if non-profit organizations are required to
carry medical malpractice insurance.
REPRESENTATIVE SEATON deferred to Mr. Haugen for an answer.
CHAIR SEEKINS said he wondered if anyone would be liable if
these services are provided at the facilities of non-profit
organizations.
REPRESENTATIVE SEATON said the bill specifically requires
written recognition by the patient that the provider is not
liable. In addition, the provider must be working under the
authority of a non-profit organization or another agency. He
said it does not apply to an individual who provides a service
independently; there must be some contractual relationship.
SENATOR FRENCH asked how many health care providers are
currently offering free services at their own economic detriment
and how many might participate if CSHB 260(JUD) is enacted.
REPRESENTATIVE SEATON said he could not provide a number. He
said numerous medical professional associations have contacted
him and they all support this bill.
SENATOR FRENCH complimented Representative Seaton and staff on
the excellent back-up material they provided.
CHAIR SEEKINS announced that the committee would take public
testimony.
MR. MIKE HAUGEN, Director of Alaska Physicians and Surgeons,
said his association represents about 170 physicians in
Anchorage and 2 in Fairbanks. He noted statistics cite the
average age of an Alaskan physician at 51. In addition, the
state is not recruiting enough new doctors to replace them. Many
of his members are in their late 50s and 60s; he believes many
of them would take advantage of a bill like this. They are not
ready to "hang up their shingles" and walk away after
accumulating a lifetime of knowledge. He believes CSHB 260(JUD)
will give physicians an incentive to retire in Alaska and help
the communities that are not well served. A Providence Hospital
study reported that Anchorage alone has a shortage of 160 to 200
doctors.
SENATOR FRENCH asked how much medical malpractice currently
costs for a general practitioner, or non-specialist.
MR. HAUGEN said he believes a general internist pays about
$15,000 per year and that the premiums have been increasing
rapidly. He said most physicians do not carry malpractice
insurance once they retire.
CHAIR SEEKINS asked if a retired physician without malpractice
insurance could have hospital privileges throughout the state.
MR. HAUGEN could not answer that question.
CHAIR SEEKINS said he was wondering if the Fairbanks Memorial
Hospital, for example, could allow a retired physician to
perform surgery at no charge with the patient's signed
understanding that the physician did not carry malpractice
insurance.
MR. HAUGEN thought each hospital would make that determination
on an individual basis.
CHAIR SEEKINS asked Mr. Haugen, as an attorney, if he would
recommend that a hospital allow that.
MR. HAUGEN said probably not.
SENATOR OGAN asked if a paid staff person follows a direct order
of a physician who is immune from liability would also be immune
from liability.
MR. HAUGEN said he believes the facility would be liable if the
paid staffer is employed by the facility, however he hesitated
to give a definitive answer.
SENATOR OGAN asked if other states have similar legislation.
MR. HAUGEN said Alaska would be one of the last states to pass
such legislation. Over 40 states currently have similar laws.
SENATOR OGAN asked if any case law has been established.
MR. HAUGEN said he has been told that very few lawsuits have
been brought against physicians who are immunized by this type
of legislation.
SENATOR FRENCH asked what standard a paid staffer would be held
to - negligence or gross negligence.
MR. HAUGEN said the bill would not immunize paid staff so the
standard would remain the same.
CHAIR SEEKINS asked where the paid staffer would fall in the
matter of responding to that superior.
MR. HAUGEN said he could not answer that question.
REPRESENTATIVE SEATON pointed out that Version V contains a
slight drafting error.
SENATOR THERRIAULT moved to adopt Version V as the working
document before the committee.
CHAIR SEEKINS announced that without objection, Version V was
before the committee.
REPRESENTATIVE SEATON noted on page 2, line 22, the words
"medical clinic," should be inserted between "in the" and
"governmental entity."
SENATOR THERRIAULT moved to make the aforementioned addition to
page 2, line 22.
CHAIR SEEKINS announced that without objection, the motion
carried. He then took public testimony.
8:23 a.m.
MS. MARIE DARLIN, Coordinator of the Capital City Task Force for
AARP, informed members that AARP submitted a written letter of
support. AARP believes this legislation will help alleviate the
overall need for physicians in Alaska. At least 43 other states
have enacted similar legislation, so it has been tried before,
found to work, and created a win-win situation for everyone.
MS. PAT SENNER, Alaska Nurses Association (ANA), said ANA's
interest in this bill stems from its efforts to have nurses
ready to volunteer in a time of need, whether that be a natural
disaster, act of terrorism or disease outbreak. She said the
current statutes have been patched together over time and
contain holes. It would be helpful to review those statutes and
draft a more comprehensive set. However, in the meantime, the
current statutes do not cover health care providers who
volunteer to care for individuals with non-life threatening
illnesses in times of protracted emergency events. For example,
after September 11, the Red Cross sheltered air travelers who
were stranded in Anchorage. Those travelers' lives were not in
immediate danger, but they had a need for health care services.
MS. SENNER thanked Representative Seaton for amending the bill
to include "temporary emergency site," as its inclusion will
help health care providers who volunteer in emergency
situations. She said the important factors are under whose
auspices individuals volunteer and whether they are qualified to
provide health care services - not where they provide services.
The amended language addresses those factors. Another group of
health care providers covered by this bill would be employees of
the federal government who are covered by the federal government
legal system in terms of malpractice insurance. Those employees
do not carry their own malpractice insurance.
CHAIR SEEKINS asked if nurses normally carry malpractice
insurance.
MS. SENNER said the ANA encourages them to do so but they often
rely on their employers' insurance.
CHAIR SEEKINS asked where a nurse would purchase malpractice
insurance.
MS. SENNER said the ANA offers malpractice insurance except for
the delivery of babies.
CHAIR SEEKINS noted that with no further participants, public
testimony was closed. He then said he would hold the bill in
committee so that the committee could get answers to the
question of liability of staff taking direct orders and the
question of liability for nurses providing emergency care.
SB 333-IF UNREAS. AGENCY DELAY, COURT DECIDES
CHAIR SEEKINS announced that Version A of SB 333 was before the
committee.
SENATOR GENE THERRIAULT, sponsor of SB 333, told members this
legislation is the third piece of a package of bills he
introduced that makes changes to the regulatory and
administrative hearings process. SB 203 reforms the internal
administrative process with a central panel concept; SB 287
provides for legislative input into the regulatory process; and
SB 333 allows a person to take an administrative hearing case to
the superior court if he or she feels caught in an endless loop.
SENATOR THERRIAULT explained that SB 333 provides a safety valve
in the administrative process. Under current law, a person has
no access to the court system until he or she has exhausted the
administrative process. However, it is possible that a final
decision may never be reached in that process. People caught in
that process often feel that delays are an attempt to wear them
down. SB 333 establishes an extraction option by allowing the
court to intervene. It will provide an incentive to finalize
administrative hearings and leave the integrity of the
administrative process intact; however, it changes the dynamics
by putting hearing officers on notice.
MR. DAVE STANCLIFF, staff to the Administrative Regulation
Review Committee (ARRC), informed members that this reform is
based in part on testimony heard on SB 203. People said they
have been stuck in the administrative hearing process for
growing periods of time while costs accrue to both state
government and the private sector. The principle behind SB 333
is similar to the 120-day legislative session limit so applying
a time limit on the executive branch does not chart new ground.
In addition, the judicial review process under AS 44.62.300
allows a petitioner to find that a regulation is invalid. SB 333
gives the court wide discretion to determine whether or not the
petitioner is making a valid argument that he or she no longer
has the financial resources and will be damaged without quick
finality to a decision.
MR. STANCLIFF said he worked with one of Senator Ogan's
constituents who came to Senator Ogan saying he needed to get
his case into court. He said people often feel they are being
denied due process because of the expense and time the
administrative hearing process takes. SB 333 will provide some
assurance for people with fewer resources. He noted that the
cost to the private sector is 3 times the cost to state
government so SB 333 will provide a stable, predictable business
climate.
8:40 a.m.
SENATOR OGAN asked if SB 333 could act as a "stand alone" bill
even though it is part of a package.
MR. STANCLIFF said SB 333 could have been incorporated into SB
203 but the sponsor and those involved with the negotiations
felt this matter should stand independently.
SENATOR THERRIAULT clarified that the language on page 2, lines
5-12, contains the conditions that must be satisfied before a
person can ask for court intervention. SB 333 does not allow a
shortcut; the petitioner must have satisfied all procedural
requirements and show that further delay will cause financial
harm. The court must then determine that the agency has
unreasonably delayed the process.
SENATOR OGAN expressed concern that "unreasonably delayed" is a
subjective term.
SENATOR FRENCH asked how long a typical administrative hearing
takes.
MR. STANCLIFF said the length of time varies a great deal,
depending on the complexity of the matter, the agency and which
rules apply under the Administrative Procedures Act (APA). He
thought that a sufficient track record has been established from
which the court can make a determination. He also thought that
the timelines that will come into play with SB 203 will help the
court decide whether an agency has been timely. He noted the
court could establish a time certain for resolution by the
agency or decide to take it up. He said a number of people have
been stuck in the administrative hearing process for over 10
years, and a fair number over 5 years, according to statistics
gathered by the ARRC. Nothing requires an agency to resolve a
matter in finality within a certain timeframe. The number of
times an agency can ask for information is unlimited, and an
agency can continually remand decisions within areas of
expertise. He said if a person has expert legal advice, he or
she will not approach the court without a solid history and
track record of the case.
SENATOR FRENCH said he heard two answers: that the court can
look at a track record and that there is no way to tell. He said
if a track record exists, he would like to see a copy. He
pointed out that a court does not do research on its own; it
asks for evidence and whoever brings the best evidence wins. The
petitioner will have to convince the court that an agency delay
is unreasonable so it will fall on the petitioner to determine
the average length of cases. He sees that as onerous for the
petitioner and asked Mr. Stancliff if he has done any research
in that area that would give the court some guidelines.
MR. STANCLIFF said he asked the senior law judge of Colorado the
longest amount of time a person should be held in the
administrative hearing process. He said 180 days.
CHAIR SEEKINS maintained that the courts interpret words like
"egregious" or "frivolous" regularly so he does not believe a
judge would have difficulty determining an unreasonable
timeframe. He said he believes SB 333 will provide an incentive
to agencies to make sure their practices are defensible in front
of a judge.
SENATOR OGAN said the Regulatory Commission of Alaska (RCA) is
one of the more controversial agencies with administrative
hearing powers, especially in regard to the telephone industry.
That industry is one of the fastest changing, regarding
technology and services.
TAPE 04-8, SIDE B
He said by the time the telephone companies get a ruling, the
industry has morphed to a whole new dynamic and the ruling may
be a moot point. He asked if SB 333 affects the RCA and will
motivate it to issue decisions in a timelier manner.
MR. STANDCLIFF indicated SB 333 touches the RCA and every other
regulatory body in the state. He said SB 333 can save the state
and private sector an incalculable amount of money but its main
purpose is to provide a better way for the government to do
business and to balance the power of the executive branch with
the legislative and judicial branches.
SENATOR FRENCH asked if the administrative hearing process would
continue while the court makes its determination or whether the
proceeding would be automatically stayed upon an action being
filed in court.
MR. STANCLIFF said SB 333 is silent on that issue. He said he
believes the agency would be able to continue and that it might
entice the agency to wrap a case up rapidly to avoid court
action.
SENATOR THERRIAULT said he would want the administrative process
to continue. He stated:
...The fact that you are availing yourself of the
ability to go to court may [indisc.] the agency to
wrap things up. They may realize that their actions
have been egregious and rather than suffer the
embarrassment of going to court and being told so,
they'll wrap things up. What we're trying to get to
here is the final decision so I wouldn't want this
process to prevent you from getting to a final
decision. It's not like a court case, I don't think,
where you feel something has been determined
incorrectly and you want to stay the whole process
while you get that question answered necessarily on
appeal. So, unless Senator French has some reason to
do otherwise, I think letting the process forward is
probably the correct thing to do.
SENATOR FRENCH referred to the language on page 2, lines 24-28,
and said it implies that the administrative proceeding is stayed
because it says if the court decides that a person is not
eligible for judicial relief, the agency shall continue the
proceeding. He argued that direction would be unnecessary if the
proceeding was allowed to continue simultaneously.
SENATOR THERRIAULT thought that language needs further
clarification and said he does not want a court filing to
automatically stop the administrative proceeding.
SENATOR OGAN asked if the court could remand the case to the
agency.
MR. STANCLIFF explained that the language on page 2, lines 15-
22, gives the court wide discretionary authority. The court
could enjoin the administrative proceeding, which suggests to
him that until it does so, the proceeding continues. He
suggested getting an interpretation from the legal drafter.
CHAIR SEEKINS agreed.
SENATOR FRENCH asked if the bill contains a limit on the number
of times a person can go to court and claim that the
administrative proceeding is taking too long.
MR. STANCLIFF said it does not.
CHAIR SEEKINS announced the committee would take public
testimony.
MR. DOUG WOOLIVER, Administrative Attorney, Alaska Court System,
said as is the court's typical practice, it takes no position on
SB 333. He said the Alaska Court System submitted an
indeterminate fiscal note because it does not have a good sense
of how many cases will be filed. He explained that in order to
move out of the administrative setting into the superior court,
the petitioner must allege the agency is unreasonably delaying
the process and the delay is causing significant and irreparable
harm. The petitioner would file a petition but the court is
unlikely to rule without considering the agency's rebuttal and
holding a hearing to decide whether the delay is unreasonable.
He said it is entirely likely that the court system will only
see a handful of cases, particularly in light of the other
proposed reforms. He added that if the administrative hearings
were not stayed when a motion is filed, SB 333 would spur quick
agency action. He noted, however, that a significant number of
people within the administrative process will feel the process
is unreasonably delayed. He said many hundreds of cases may be
pending before the regulatory agencies and only a small number
of those could have a big impact on the court system. The court
system does not have a clear idea of whether this option will be
used judiciously. He said he is putting the court's uncertainty
on the record in case it is necessary to request relief from the
legislature next year.
CHAIR SEEKINS asked how the court would determine an
"unreasonable" delay.
MR. WOOLIVER said that determination would be fact-specific and
made on a case-by-case basis. It may depend on how many times
the agency asks for information, whether the issue is seasonal
and could vary by industry.
CHAIR SEEKINS asked how long it might take for the court to
create guidelines for future cases.
MR. WOOLIVER said that is possible to some extent but superior
court cases are not precedent setting. He said attorneys who do
a lot of work in this area would start to get a sense of
timeliness but attorneys will not necessarily present the
petitioners.
SENATOR THERRIAULT believed the expense of taking a case to
court would keep a lot of cases without merit from being filed.
He then said the purpose behind the central hearing officer
panel is to create a more efficient system.
SENATOR FRENCH asked Mr. Wooliver if he sees any right of appeal
from a superior court's determination to the supreme court.
MR. WOOLIVER said a person always has one right of appeal to the
supreme court, except criminal cases or an appellate case.
CHAIR SEEKINS asked if the regulatory agency is more likely to
appeal a decision.
MR. WOOLIVER said he believes so.
SENATOR THERRIAULT asked Mr. Wooliver to comment on Senator
French's question about the number of times a person could file
a petition and whether he believes the bill should contain a
cap.
MR. WOOLIVER said that is the legislature's call. He imagined a
first appeal might not be meritorious but a second one could be.
He noted the court has rules to deal with frequent litigants.
The court can require a person to jump through specific hoops
before filing another claim. He said the court tends to have a
high tolerance at first but then shuts the door.
The committee took a 5-minute recess.
MR. DAN HOUGHTON, Alaska Regional Hospital, recounted an
administrative hearing procedure the hospital was involved in.
The hospital appealed its 1991 [Medicaid] rate setting. A
hearing officer heard the appeal in March of 1997 and issued a
favorable decision on May 26, 2000. The decision was submitted
to Commissioner Livey, who issued his final decision in April of
2001, which reversed the hearing officer's decision. The Alaska
Regional Hospital then appealed to superior court, which ruled
favorably. However, that decision was then sent to the
commissioner's office, and the hospital awaits an oral argument
with a hearing officer. He stated support for SB 333 and said
had the Alaska Regional Hospital had the ability to take its
case to superior court earlier, the agency would have been
motivated to move the case forward and both parties would have
saved time and effort.
CHAIR SEEKINS announced that with no further testimony, he would
hold SB 333 in committee.
SB 217-GENETIC PRIVACY
SENATOR GENE THERRIAULT moved to adopt Version I of SB 217 as
the working document before the committee.
CHAIR SEEKINS announced that without objection the motion
carried.
SENATOR OGAN asked for an explanation of the changes made in
Version I.
SENATOR DONNY OLSON, sponsor of SB 217, informed members that
three changes were made in Version I:
· A letter of intent replaces the legislative findings
section in the bill
· Language that required researchers to get informed consent
to use DNA information for research purposes was deleted,
because researchers already have such requirements
· The definition of "DNA analysis" was refined to eliminate
other tests outside of the parameters of genetic studies,
for example a family history.
SENATOR OLSON added, "We also have protection for the DNA analysis under
Section 3 to make sure that the intent is still there under the genetic
characteristics."
CHAIR SEEKINS asked if this bill protects the privacy of one's DNA
analysis, not of one's family history.
SENATOR OLSON replied:
The DNA specific is what we're trying to go ahead and protect.
The integrity of that is the main reason for this legislation.
What comes out as far as predisposition for other diseases and
other problems that you can get through other means, such as
taking a family history and going and taking some of the other
blood tests, CBC for sickle cell anemia and things like that,
is not part of what's in here.
SENATOR OLSON said there are two polarized opinions: one from those who
support protection rights and the other from the insurance industry.
Version I is his best effort to accommodate those views and tackle the
main issues. He pointed out this legislation is a starting point so
problems that surface in the future can be dealt with then.
CHAIR SEEKINS asked if anything in this bill would preclude someone from
using a DNA analysis to contradict family history.
SENATOR OLSON said that is correct; SB 217 only gives an individual full
control of his DNA information to prevent exploitation. Although the DNA
analysis is the property of the individual, the bill contains three
exceptions: for criminal identification, paternity disputes and for a
medical necessity.
With no further questions for Senator Olson, CHAIR SEEKINS took public
testimony.
MS. ROBBIE MEYER, an attorney for the American Council of Life Insurers
(ACLI), a national trade association that represents about 70 percent of
the life insurance businesses nationwide, said the ACLI is committed to
the principle of genetic privacy but it has concerns with the
legislation. Life insurance companies are obligated to keep medical
information confidential. However, life insurers need to obtain, retain,
use and cautiously share consumers' personal information to perform the
very insurance functions that consumers purchase. The ACLI is opposed to
SB 217 in its current form and urges that it be amended to exclude life,
disability, and long-term care insurers. The ACLI is concerned that this
bill could unintentionally interfere or jeopardize its ability to
perform critical business functions, such as underwriting and paying
claims.
MS. MEYER said insurance companies are unique in that they are already
subject to a host of federal and state privacy laws and regulations that
govern an insurer's ability to obtain, maintain and disclose genetic
information. In addition, Alaska's Division of Insurance is in the
process of adopting a privacy regulation that will govern all insurers'
ability to disclose medical information. It will require insurers to
develop extensive security programs to protect the integrity of customer
information. Meanwhile, insurers are already subject to a federal
privacy bill and, most importantly, all insurers' ability to get any
medical information is subject to the Health Insurance Portability and
Accountability Act (HIPAA). She cautioned that the exceptions are not as
clear as they need to be with respect to retaining DNA samples. SB 217
does not distinguish between the requirements applicable to DNA samples
versus the results of DNA analyses. That gives rise to a number of
ambiguities with respect to insurers' obligations. The ACLI is concerned
about the requirement of specific consent because if anyone has the
right to revoke an insurers' ability to retain medical information,
insurers' will not be able to continue to underwrite or pay an
individual's claims. The ACLI feels the consumer's privacy with respect
to life insurance or long-term care insurance is addressed by existing
federal law and the new Division of Insurance regulations. She again
asked that life, disability and long-term care insurers be exempted from
the legislation.
CHAIR SEEKINS asked if insurers sell medical information.
MS. MEYER said they do not.
CHAIR SEEKINS asked if all ACLI members can access each others files.
MS. MEYER said ACLI has 400 members so she could not say, but if they
do, it is contrary to ACLI policy and federal law.
CHAIR SEEKINS asked how those companies can share information if doing
so is against the law.
MS. MEYER said the HIPAA privacy rule and another federal law require an
individual's consent unless the information is being shared to perform
business operations, for law enforcement purposes or other specific
purposes.
TAPE 04-9, SIDE A
MS. MEYER added the new regulations of the Division of Insurance track
the federal laws. 3AAC 26.680 contains specific provisions with respect
to disclosure of medical information.
CHAIR SEEKINS asked if ACLI believes this bill is not just a redundancy
of other laws but breaks new ground.
MS. MEYER said she believes it breaks new ground unintentionally by
virtue of the fact that it requires specific consent to get a DNA sample
or perform a DNA test. What ACLI finds troublesome is the revocable
consent to retain and disclose the information without any business
exceptions. She repeated that privacy protections are already in place
because insurers are subject to other laws.
9:55 a.m.
MS. JENNIFER RUDINGER, Executive Director of the Alaska Civil Liberties
Union (AkCLU), told members the AkCLU is opposed to Version I for the
following reasons. First, in order to protect an individual's privacy,
the bill must contain a comprehensive definition of "genetic
characteristic" or "genetic information." The AkLCU presented a written
recommendation for that definition in a letter to the committee dated
February 24. The definition in the bill is so narrow, just about
everything would be covered in the exceptions. Routine diagnostic tests
should require informed consent from the subject before the DNA is
collected, used, distributed or disclosed. The exemption means that
informed consent for genetic testing or retaining information is
unnecessary if the genetic information is discovered in the course of a
common diagnostic procedure.
MS. RUDINGER said the AkCLU believes the bill must include some "teeth"
to prevent employers and insurers from collecting genetic information
and discriminating against individuals, with certain exceptions. The
AkCLU maintains that DNA information is a constitutional privacy right
rather than a property right. A privacy right is supreme over a property
right. She believes calling human material property creates a slippery
slope. She noted the definition of "person" includes a corporate entity
but does not speak to a government agency, which the AkCLU believes
should also be liable for improper disclosure of genetic information.
The AkCLU also believes the law enforcement exemption should allow
collection of genetic information only for those activities allowable
under Alaska state law.
SENATOR OGAN asked Ms. Rudinger:
Some of your comments concern me. These ethical questions
oppose themselves repeatedly in various contexts, such as
whether people should be able to buy and sell human organs,
fetuses, babies, etcetera. Of course babies are a person so -
but I guess it's a little bit undefined whether or not they're
a person in the womb and I guess there's a little bit of an
oxymoron there with some of your positions on those issues but
are you talking about babies inside or outside the womb? I
mean obviously you can't sell a baby - that's slavery but....
MS. RUDINGER replied:
...Senator Ogan, we're talking about human material. We're
talking about people, human beings, we're talking about
fetuses, we're talking about DNA in the context of this bill.
We're talking about human genetic material.
MS. RUDINGER said the question involves a philosophical discussion that
may be outside the scope of the bill. She noted the bill refers to
genetic information as a property right. She said Roe v. Wade was not
decided on the basis of property rights, it was based on a
constitutional privacy right. She said a constitutional right would give
this matter the highest level of protection.
CHAIR SEEKINS asked about blood.
MS. RUDINGER said people sell blood, eggs and sperm and the AkCLU sees
that as a slippery slope that presents a difficult policy question for
the legislature. She said the AkCLU is concerned about human material
being considered as property that can be bought and sold because of the
fear that poor people could be induced or coerced into selling their
genetic material.
SENATOR FRENCH said he believes the definition of DNA analysis is clear
in the bill. He asked if a cholesterol test could be considered as a DNA
analysis.
SENATOR OLSON replied:
To a certain degree, we need to be careful here because a
cholesterol test obviously is one thing that gives you certain
information. Even though cholesterol itself, if you think of
it biochemically, is just an alcohol that's got some sterols
related to it, but there is the lipoproteins that are actual
carriers of the body fats and so when you start thinking about
high density lipoproteins, low density lipoproteins, the LDL
[indisc.] low density of proteins, you start getting into a
complicated detail there that's certainly not the intent of
this bill. But you are correct that in the purest, simplest
form, a cholesterol test is not included.
SENATOR FRENCH asked if his doctor runs a cholesterol test and gives him
the results, the doctor would only be in trouble under this bill if he
used that blood to test for genetic characteristics.
SENATOR OLSON said that is correct.
CHAIR SEEKINS said that chromosomal tests are routine for certain birth
defects. He asked if those tests would be prohibited under SB 217.
SENATOR OLSON said not at all. He said the intent of the bill is to
require informed consent to do any genetic testing.
CHAIR SEEKINS asked Senator Olson if he intended to include government
agencies in the definition of "person."
SENATOR OLSON answered:
I wrote the bill, Mr. Chairman, and obviously there is a fair
amount of tension between the previous testimony as well as
the testimony we just heard. The bill is intended to be
exactly the way it is right now because of what's going on -
the tension that's there, there has to be a fair amount of
give and take. There are details on one side that one wants to
go into, details that the other side really wants to get into,
but this is the best-crafted bill we have so far.
CHAIR SEEKINS said he was trying to determine whether Senator Olson was
looking at "the entire universe and not trying to split it, of people or
entities that could collect this information and possibly disseminate
it." He asked if Senator Olson does not intend to include government
agencies into that net.
SENATOR OLSON said that is correct.
SENATOR THERRIAULT asked if the bill applies to any DNA test required
under the criminal statutes.
SENATOR OLSON said that is correct. The three exceptions in the bill on
page 2 pertain to law enforcement, medical necessity, and paternity
determination.
CHAIR SEEKINS announced that he would hold SB 217 in committee so that
further questions could be answered. He then adjourned the meeting at
10:06 a.m.
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