04/14/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB366 | |
| HB140 | |
| HB127 | |
| HB250 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 366 | TELECONFERENCED | |
| *+ | HB 140 | TELECONFERENCED | |
| + | HB 127 | TELECONFERENCED | |
| + | HB 250 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 14, 2014
1:58 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Lesil McGuire, Vice Chair
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Fred Dyson
Senator Donald Olson
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 366(JUD)
"An Act relating to reporting an involuntary mental health
commitment to the National Instant Criminal Background Check
System; relating to the sealing of records of mental health
proceedings; and relating to relief from a disability resulting
from an involuntary commitment or an adjudication of mental
illness or mental incompetence."
- MOVED CSHB 366(JUD) OUT OF COMMITTEE
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 140(FIN) AM
"An Act relating to the proposed adoption, amendment, or repeal
of a regulation; and relating to contact with agencies about
regulations."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 127(JUD)
"An Act relating to compensation of the ombudsman and to
employment of staff by the ombudsman under personal service
contracts; relating to disclosure by an agency to the ombudsman
of communications subject to attorney-client and attorney work-
product privileges; relating to the privilege of the ombudsman
not to testify and creating a privilege under which the
ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman; and
amending Rules 501 and 503, Alaska Rules of Evidence."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 250(HSS) AM
"An Act making an expression of apology, sympathy,
commiseration, compassion, or benevolence by a health care
provider inadmissible in a medical malpractice case; requiring a
health care provider to advise a patient or the patient's legal
representative to seek legal advice before making an agreement
with the patient to correct an unanticipated outcome of medical
treatment or care; and amending Rules 402, 407, 408, 409, and
801, Alaska Rules of Evidence."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 366
SHORT TITLE: INVOLUNTARY COMMITMENT; FIREARMS
SPONSOR(s): REPRESENTATIVE(s) PRUITT
02/26/14 (H) READ THE FIRST TIME - REFERRALS
02/26/14 (H) STA, JUD
03/11/14 (H) STA AT 8:00 AM CAPITOL 106
03/11/14 (H) Moved CSHB 366(STA) Out of Committee
03/11/14 (H) MINUTE(STA)
03/12/14 (H) STA RPT CS(STA) NT 2DP 3NR 1AM
03/12/14 (H) DP: KELLER, KREISS-TOMKINS
03/12/14 (H) NR: GATTIS, HUGHES, LYNN
03/12/14 (H) AM: ISAACSON
03/17/14 (H) JUD AT 1:00 PM CAPITOL 120
03/17/14 (H) Moved CSHB 366(STA) Out of Committee
03/17/14 (H) MINUTE(JUD)
03/19/14 (H) JUD AT 1:00 PM CAPITOL 120
03/19/14 (H) Heard & Held
03/19/14 (H) MINUTE(JUD)
03/21/14 (H) JUD AT 1:00 PM CAPITOL 120
03/21/14 (H) Moved CSHB 366(JUD) Out of Committee
03/21/14 (H) MINUTE(JUD)
03/24/14 (H) JUD RPT CS(JUD) NT 5DP 1NR
03/24/14 (H) DP: LEDOUX, PRUITT, FOSTER, GRUENBERG,
LYNN
03/24/14 (H) NR: MILLETT
03/26/14 (H) TRANSMITTED TO (S)
03/26/14 (H) VERSION: CSHB 366(JUD)
03/28/14 (S) READ THE FIRST TIME - REFERRALS
03/28/14 (S) JUD
04/02/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/02/14 (S) -- MEETING CANCELED --
04/03/14 (S) STA AT 9:00 AM BUTROVICH 205
04/03/14 (S) <Pending Referral>
04/04/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/04/14 (S) <Bill Hearing Canceled>
04/07/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/07/14 (S) -- MEETING CANCELED --
04/09/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/09/14 (S) Heard & Held
04/09/14 (S) MINUTE(JUD)
04/11/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/11/14 (S) -- MEETING CANCELED --
04/14/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 140
SHORT TITLE: REGULATIONS: NOTICE, REVIEW, COMMENT
SPONSOR(s): REPRESENTATIVE(s) REINBOLD
02/22/13 (H) READ THE FIRST TIME - REFERRALS
02/22/13 (H) JUD
03/18/13 (H) JUD AT 1:00 PM CAPITOL 120
03/18/13 (H) Heard & Held
03/18/13 (H) MINUTE(JUD)
03/25/13 (H) JUD AT 1:00 PM CAPITOL 120
03/25/13 (H) Scheduled But Not Heard
03/27/13 (H) JUD AT 1:00 PM CAPITOL 120
03/27/13 (H) Scheduled But Not Heard
03/29/13 (H) JUD AT 1:00 PM CAPITOL 120
03/29/13 (H) <Bill Hearing Canceled>
04/08/13 (H) JUD AT 1:00 PM CAPITOL 120
04/08/13 (H) Moved CSHB 140(JUD) Out of Committee
04/08/13 (H) MINUTE(JUD)
04/09/13 (H) JUD RPT CS(JUD) 5DP 1NR
04/09/13 (H) DP: PRUITT, FOSTER, LEDOUX, LYNN,
KELLER
04/09/13 (H) NR: GRUENBERG
04/09/13 (H) FIN REFERRAL ADDED AFTER JUD
03/13/14 (H) FIN AT 8:30 AM HOUSE FINANCE 519
03/13/14 (H) Heard & Held
03/13/14 (H) MINUTE(FIN)
03/21/14 (H) FIN AT 1:30 PM HOUSE FINANCE 519
03/21/14 (H) Moved CSHB 140(FIN) Out of Committee
03/21/14 (H) MINUTE(FIN)
03/25/14 (H) FIN RPT CS(FIN) NT 10DP
03/25/14 (H) DP: NEUMAN, THOMPSON, EDGMON, MUNOZ,
GARA, HOLMES, T.WILSON, COSTELLO,
STOLTZE,
03/25/14 (H) AUSTERMAN
03/31/14 (H) TRANSMITTED TO (S)
03/31/14 (H) VERSION: CSHB 140(FIN) AM
04/02/14 (S) READ THE FIRST TIME - REFERRALS
04/02/14 (S) JUD, FIN
04/09/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/09/14 (S) <Above Bill Hearing Canceled>
04/11/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/11/14 (S) -- MEETING CANCELED --
04/14/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 127
SHORT TITLE: OMBUDSMAN
SPONSOR(s): RULES BY REQUEST
02/18/13 (H) READ THE FIRST TIME - REFERRALS
02/18/13 (H) STA, JUD
03/12/13 (H) STA AT 8:00 AM CAPITOL 106
03/12/13 (H) Heard & Held
03/12/13 (H) MINUTE(STA)
03/21/13 (H) STA AT 8:00 AM CAPITOL 106
03/21/13 (H) <Bill Hearing Rescheduled to 3/26/13>
03/26/13 (H) STA AT 8:00 AM CAPITOL 106
03/26/13 (H) Heard & Held; Assigned to Subcommittee
03/26/13 (H) MINUTE(STA)
02/07/14 (H) STA AT 3:00 PM CAPITOL 120
02/07/14 (H) Work Session on above Bill
02/25/14 (H) STA AT 8:00 AM CAPITOL 106
02/25/14 (H) Heard & Held
02/25/14 (H) MINUTE(STA)
02/27/14 (H) STA AT 8:00 AM CAPITOL 106
02/27/14 (H) Heard & Held
02/27/14 (H) MINUTE(STA)
03/06/14 (H) STA AT 8:00 AM CAPITOL 106
03/06/14 (H) Moved CSHB 127(STA) Out of Committee
03/06/14 (H) MINUTE(STA)
03/07/14 (H) JUD AT 1:00 PM CAPITOL 120
03/07/14 (H) <Bill Hearing Canceled>
03/10/14 (H) STA RPT CS(STA) NT 1DP 1NR 3AM
03/10/14 (H) DP: LYNN
03/10/14 (H) NR: GATTIS
03/10/14 (H) AM: KELLER, KREISS-TOMKINS, HUGHES
03/12/14 (H) JUD AT 1:00 PM CAPITOL 120
03/12/14 (H) -- MEETING CANCELED --
03/14/14 (H) JUD AT 1:00 PM CAPITOL 120
03/14/14 (H) Heard & Held
03/14/14 (H) MINUTE(JUD)
03/19/14 (H) JUD AT 1:00 PM CAPITOL 120
03/19/14 (H) Heard & Held
03/19/14 (H) MINUTE(JUD)
03/24/14 (H) JUD AT 1:00 PM CAPITOL 120
03/24/14 (H) Moved CSHB 127(JUD) Out of Committee
03/24/14 (H) MINUTE(JUD)
03/25/14 (H) JUD RPT CS(JUD) NT 3DP 2NR
03/25/14 (H) DP: GRUENBERG, LYNN, KELLER
03/25/14 (H) NR: LEDOUX, PRUITT
03/25/14 (H) FIN REFERRAL ADDED AFTER JUD
03/31/14 (H) FIN AT 8:30 AM HOUSE FINANCE 519
03/31/14 (H) Heard & Held
03/31/14 (H) MINUTE(FIN)
04/01/14 (H) FIN RPT CS(JUD) NT 9DP 1NR
04/01/14 (H) DP: GUTTENBERG, HOLMES, MUNOZ,
THOMPSON, EDGMON, T.WILSON, COSTELLO,
STOLTZE,
04/01/14 (H) AUSTERMAN
04/01/14 (H) NR: NEUMAN
04/01/14 (H) FIN AT 8:30 AM HOUSE FINANCE 519
04/01/14 (H) Moved CSHB 127(JUD) Out of Committee
04/01/14 (H) MINUTE(FIN)
04/07/14 (H) RLS AT 5:00 PM CAPITOL 120
04/07/14 (H) -- MEETING CANCELED --
04/09/14 (H) TRANSMITTED TO (S)
04/09/14 (H) VERSION: CSHB 127(JUD)
04/11/14 (S) READ THE FIRST TIME - REFERRALS
04/11/14 (S) JUD
04/14/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: HB 250
SHORT TITLE: MEDICAL MALPRACTICE ACTIONS
SPONSOR(s): OLSON
01/21/14 (H) PREFILE RELEASED 1/17/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) HSS, JUD
02/27/14 (H) HSS AT 3:00 PM CAPITOL 106
02/27/14 (H) Heard & Held
02/27/14 (H) MINUTE(HSS)
03/13/14 (H) HSS AT 3:00 PM CAPITOL 106
03/13/14 (H) Scheduled But Not Heard
03/14/14 (H) HSS AT 8:00 AM CAPITOL 106
03/14/14 (H) Moved CSHB 250(HSS) Out of Committee
03/14/14 (H) MINUTE(HSS)
03/17/14 (H) HSS RPT CS(HSS) NT 6DP
03/17/14 (H) DP: REINBOLD, PRUITT, KELLER, NAGEAK,
TARR, HIGGINS
03/24/14 (H) JUD AT 1:00 PM CAPITOL 120
03/24/14 (H) Heard & Held
03/24/14 (H) MINUTE(JUD)
03/26/14 (H) JUD AT 1:00 PM CAPITOL 120
03/26/14 (H) Moved CSHB 250(HSS) Out of Committee
03/26/14 (H) MINUTE(JUD)
03/27/14 (H) JUD RPT CS(HSS) NT 3DP 2NR
03/27/14 (H) DP: FOSTER, GRUENBERG, KELLER
03/27/14 (H) NR: LEDOUX, LYNN
04/11/14 (H) TRANSMITTED TO (S)
04/11/14 (H) VERSION: CSHB 250(HSS) AM
04/11/14 (S) READ THE FIRST TIME - REFERRALS
04/11/14 (S) JUD
04/14/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
REPRESENTATIVE LORA REINBOLD
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 140.
SARAH GEARY, Legislative Coordinator
Alaska Municipal League
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 140.
LESLEE OREBAUGH
Assisted Living Association of Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 140.
AL TAMAGNI, Leadership Chair
National Federation of Independent Business (NFIB)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 140.
LINDA LORD-JENKINS, Ombudsman
Alaska Office of the Ombudsman
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Presented HB 127.
BETH LEIBOWITZ, Assistant Ombudsman
Alaska Office of the Ombudsman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided supporting information related to
HB 127.
ERIKA O'SULLIVAN, Staff
Representative Kurt Olson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 250 on behalf of the sponsor.
MIKE HAUGEN, Executive Director
Alaska State Medical Association
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 250.
ACTION NARRATIVE
1:58:22 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:58 p.m. Present at the call to
order were Senators Wielechowski, McGuire, and Chair Coghill.
HB 366-INVOLUNTARY COMMITMENT; FIREARMS
1:59:39 PM
CHAIR COGHILL announced the consideration of HB 366. "An Act
relating to reporting an involuntary mental health commitment to
the National Instant Criminal Background Check System; relating
to the sealing of records of mental health proceedings; and
relating to relief from a disability resulting from an
involuntary commitment or an adjudication of mental illness or
mental incompetence." This was the second hearing. [CSB 366(JUD)
was before the committee.] He noted that he found nothing in the
bill that caused him concern.
SENATOR WIELECHOWSKI asked the sponsor if he was aware of any
opposition to the bill.
REPRESENTATIVE LANCE PRUITT, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 366, noting the negative testimony during
the previous hearing, said he contacted [Mr. Nelson] to try to
allay his concerns by explaining what the bill actually would
do.
CHAIR COGHILL found no further questions or comments and asked
the will of the committee.
2:01:17 PM
SENATOR MCGUIRE moved to report the CS for HB 366, Version R,
from committee with individual recommendations and attached
fiscal note(s).
CHAIR COGHILL announced that without objection CSHB 366(JUD)
moved from the Senate Judiciary Committee.
2:01:47 PM
At Ease
HB 140-REGULATIONS: NOTICE, REVIEW, COMMENT
2:02:54 PM
CHAIR COGHILL reconvened the meeting and announced the
consideration of HB 140. "An Act relating to the proposed
adoption, amendment, or repeal of a regulation; and relating to
contact with agencies about regulations." [This was the first
hearing and CSHB 127(FIN) am was before the committee.]
2:03:24 PM
REPRESENTATIVE LORA REINBOLD, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 140, explained that this legislation is
intended to address the problem of government over regulation,
which local businesses believe is stifling growth. She read the
following excerpt from the Alaska State Medical Association and
stated that it was the motivation to continue her mission to
help reform the regulatory process:
The regulatory process is deficient and closed. The
Department of Law's advice to departments on the
regulatory process dissuades public discussion or
discourse once a regulatory package is released
publicly. In fact, departments are often instructed
not to answer questions or provide additional
information during the public hearings except for
pointing to the exact language in the proposed
regulation. This leads to a frustrating and seemingly
meaningless public process, beyond submitting written
comment. Furthermore, once public hearings are held,
there is no requirement that the final regulations be
similar to the proposed regulation.
REPRESENTATIVE REINBOLD described HB 140 as a significant step
toward increased transparency in the regulatory process and a
more business-friendly climate in Alaska.
She provided the following sectional analysis: [Original
punctuation provided.]
Bill section 1. Gives the Act a short title.
Bill section 2. Amends AS 44.62.040(c) to remove the
exemption for boards and commissions. Adds language to
accommodate those agencies that have different rules
for the adoption of regulations. Allows the governor
30 days to return regulations to the adopting agency.
Bill section 3. Amends AS 44.62.190(d) to identify
additional information that may be included, if
applicable, about the reason for the proposed action,
including federal or state action requiring the
proposed action. Adds information that is to be
provided for the estimated annual costs of the
proposed action, including the costs to private
persons, other state agencies, and municipalities.
States that the estimated annual costs are to be based
on a good faith effort to estimate the costs using
information available to the state agency.
Bill section 4. Adds new subsections to the notice
statute, AS 44.62.190. The first, sec. 44.62.190(f),
prohibits court actions to challenge a regulatory
action for the inaccuracy or insufficiency of the cost
estimates. The second, sec. 44.62.190(g), requires, as
feasible, that the subject lines of electronic mail
and titles of written publications providing the
information required by AS 44.62.190(d) give the
reader a fair idea of the substance of the proposed
regulation, amended regulation, or repealed
regulation.
Bill section 5. Amends AS 44.62.200(c) to require that
a complete copy of each regulatory action, and, if
feasible, the material incorporated by reference, be
posted on the Alaska Online Public Notice System.
Bill section 6. Amends AS 44.62.200(d) to remove the
exemptions for the Regulatory Commission of Alaska,
the Board of Fisheries, and the Board of Game, from
the requirement to provide a brief description of the
changes made by the proposed regulation, amended
regulation, or repealed regulation.
Bill section 7. Adds sec. 44.62.213(a) to authorize
contact between agencies and the public when
developing regulations. Adds sec. 44.62.213(b), which
directs agencies to make a good faith effort to answer
written or at meeting questions before the public
comment period ends. After that, allows an agency to
answer the questions. Requires an answer to be written
and that the question and answer be made available to
the public. In sec. 44.62.213(c), prohibits court
actions to challenge a regulatory action for the
inaccuracy or insufficiency of answers provided under
sec. 44.62.2 13.
Bill section 8. Amends AS 44.62.215, which requires an
agency to keep a record of public comment when
adopting a regulation, to delete the exemption for
boards and commissions and to require that an agency
keep a record of public comment received
electronically or orally as well as in writing.
Bill section 9. Amends AS 44.62.245(c) to require an
agency to send certain notices to the members of the
Administrative Regulation Review Committee.
Bill section 10. Amends AS 44.62.320(b) to tie the
submission of regulations by the lieutenant governor
to the Administrative Regulation Review Committee for
review to the time the regulation is submitted to the
lieutenant governor for filing.
Bill section 11. Amends AS 44.62.320 to allow the
Administrative Regulation Review Committee chair to
submit comment on a regulation to the lieutenant
governor within 10 days after receiving the regulation
from the agency under (b) of the section.
Bill section 12. Provides applicability provisions for
the sections of the bill.
REPRESENTATIVE REINBOLD mentioned the indeterminate fiscal note
and stated that her office was talking with certain agencies to
see, based on input from this committee, whether they
potentially need to be exempted from certain provisions in the
bill.
SENATOR COGHILL recalled that the exemptions relate to Section
6.
REPRESENTATIVE REINBOLD offered to return and talk about the
specific provisions.
SENATOR WIELECHOWSKI directed attention to the letter from the
Alaska Oil and Gas Conservation Commission (AOGCC) that
expressed concerns with the bill. One concern was that, "giving
the Governor veto power over the decisions of an agency that is,
by design and statute, independent would violate that
independence." He questioned whether it wouldn't be better to
strip Section 2 from the bill.
REPRESENTATIVE REINBOLD referenced the memorandum from
Legislative Legal Services that addresses the question of
whether a quasi-judicial entity ought to be excluded from the
bill.
CHAIR COGHILL asked the sponsor to provide the committee a copy
of the opinion. He asked her understanding of the question about
the governor's veto power.
REPRESENTATIVE REINBOLD stressed the nothing in the bill gives
veto power to anyone. Section 2 does allow the governor to send
a regulation back to an agency for two reasons. The first is if
the regulation is inconsistent with law. The second is that the
governor may send the regulation back [so the agency can respond
to specific issues that were raised.]
SENATOR WIELECHOWSKI questioned giving the governor what is
tantamount to veto power over agencies that are set up to be
independent.
CHAIR COGHILL referenced Section 11 and asked if 10 days was
sufficient for the Administrative Regulation Review Committee
(ARRC) to review a regulation.
REPRESENTATIVE REINBOLD opined that it was adequate if the
committee is active and has good staff.
SENATOR MCGUIRE said she believes that 10 days strikes an
appropriate balance and she likes that the provision is
discretionary with regard to submitting the regulation to the
lieutenant governor. She offered personal experiences when she
chaired the committee.
CHAIR COGHILL noted the individuals available to answer
questions.
2:18:54 PM
SENATOR WIELECHOWSKI noted that AOGCC's first concern was that
the bill would force commissioners to participate in ex parte
communications. He asked the sponsor her thoughts on that
concern.
REPRESENTATIVE REINBOLD responded that there was nothing that
requires a commissioner to participate in ex parte
communications.
SENATOR WIELECHOWSKI read the explanation from AOGCC and
summarized that the commissioners are saying that they make
their decisions in the public, but the bill would allow people
to call a commissioner and demand an explanation of their
reasons for a proposed regulation or a change in regulation. He
pointed out that the public can't engage in that kind of back
and forth with judges and that's what raises the ex parte issue
in the bill.
REPRESENTATIVE REINBOLD responded that the commissioners can
deal with that through a "frequently asked questions" page on
the website, they could have staff respond to questions, or they
could hold a public hearing and answer questions then. The goal
is to ensure that people have an opportunity to speak with their
government, but the communication doesn't have to be direct.
SENATOR WIELECHOWSKI said he's very supportive of parts of the
bill, but is concerned that decision makers who are acting like
judges would be required to participate in ex parte
communications. He suggested including a provision that excludes
quasi-judicial decisions.
REPRESENTATIVE REINBOLD responded that Legislative Legal
Services issued an opinion that said that just because an agency
is independent or quasi-judicial does not exclude it from
provisions in the bill. However, there is a statute that states
that the way that the AOGCC writes regulations may be cause for
concern. She said her office was working with the chair of AOGCC
to address that issue.
CHAIR COGHILL advised that the committee was working on a Senate
committee substitute that would address some of the concerns and
still allow some review.
He opened public testimony.
2:22:47 PM
SARAH GEARY, Legislative Coordinator, Alaska Municipal League
(AML), Juneau, Alaska, stated support for HB 140 on behalf of
AML. She said that because many state and federal regulations
impact municipality budgets, it would be helpful for planning
purposes to have an idea of what those impacts will be. HB 140
will ensure that agencies consider the costs that regulations
potentially impose on individuals, businesses, and
municipalities. She expressed gratitude for the attempt to look
at the broader impacts of regulation changes.
2:24:11 PM
LESLEE OREBAUGH, Assisted Living Association of Alaska (ALAA),
testified in support of HB 140 on behalf of ALAA. She said the
unintended consequences and costs of regulations have long
plagued individuals and the business industry in the state. She
offered this view from the perspective of 24 years of business
ownership. Although government officials often say that they
have considered private business, it doesn't appear to make a
difference. She restated support for the legislation.
2:25:49 PM
AL TAMAGNI Leadership Chair, National Federation of Independent
Business (NFIB), Anchorage, Alaska, said his comments echo those
of the previous speaker. HB 140 gives the business community an
opportunity to voice opinions and place some responsibility on
agencies. It levels the playing field by providing full and open
disclosure.
2:26:58 PM
CHAIR COGHILL stated he would hold HB 140 for further
consideration.
HB 127-OMBUDSMAN
2:28:02 PM
CHAIR COGHILL announced the consideration of HB 127. "An Act
relating to compensation of the ombudsman and to employment of
staff by the ombudsman under personal service contracts;
relating to disclosure by an agency to the ombudsman of
communications subject to attorney-client and attorney work-
product privileges; relating to the privilege of the ombudsman
not to testify and creating a privilege under which the
ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman; and
amending Rules 501 and 503, Alaska Rules of Evidence." [This was
the first hearing and CSHB 127(JUD) was before the committee.]
2:28:32 PM
LINDA LORD-JENKINS, Ombudsman, Alaska Office of the Ombudsman,
Alaska State Legislature, Anchorage, Alaska, introduced HB 127
speaking to the following sponsor statement and sectional
description:
The Ombudsman Act (AS 24.55) has not changed much
since enactment in 1975, which speaks well for its
basic structure. The ombudsman requested and obtained
some modifications of the Ombudsman Act in 1990. It
has become apparent that the Ombudsman Act would
benefit from updates to address several issues that
have arisen since 1990.
The following is a brief sectional description of the
bill:
· Section 1 of CSHB 127(JUD) provides that the
ombudsman may receive a step increase in salary,
rather than remaining Step A of Range 26 for the
ombudsman's entire term or terms.
· Section 2 clarifies the ombudsman's authority to
hire additional staff using a personal services
contract pursuant to AS 24.55.060(f).
· Section 3 amends a section on the ombudsman's
investigatory authority to refer simply to
"agency" instead of "state agency." This brings
the section into conformance with the rest of the
Ombudsman Act (AS 24.55), which consistently
refers to the ombudsman's authority to
investigate an administrative "agency."
· Section 4 prevents a general waiver of attorney-
client privilege by an agency if it shares its
attorney's advice with the Office of the
Ombudsman in order to explain the agency's
actions.
· Section 5 improves the wording of the ombudsman's
existing privilege not to testify or produce
records regarding matters brought to the
ombudsman's attention in the course of her
duties.
· Section 6 modernizes the ombudsman's procurement
authority.
· Sections 7 and 8 state that sections 4 and 5 are
indirect court rule amendments because they
modify evidentiary rules, and that therefore
sections 4 and 5 only take effect if the
legislation is approved by a two-thirds majority
vote of each house, as required by Art. IV,
Section 15 of the Constitution of the State of
Alaska.
2:33:50 PM
SENATOR WIELECHOWSKI summarized an account of a constituent's
false arrest. He noted that she filed a complaint and it
languished for a year or so. He inquired if there are timelines
for completing an investigation and releasing the ombudsman's
report.
MS. LORD-JENKINS replied there are timelines, but they're
impractical given the workload and the fact that the office has
just one executive and one administrative secretary. She
acknowledged that she was the bottleneck because she was the
only one who could vet a case.
SENATOR WIELECHOWSKI asked how many complaints or investigations
are requested each year.
MR. LORD-JENKINS said 1,200 complaints came in last year and the
number is up 34 percent this year.
SENATOR WIELECHOWSKI asked if she had suggestions on how to
speed the process because the concern about timelines wasn't
unique to that one constituent.
MS. LORD-JENKINS responded that the solution was additional
money and staff. She explained that she doesn't request money
for additional staffing unless there is a sizeable jump in
caseload. She anticipates that she'll ask for more staff next
year.
2:38:46 PM
CHAIR COGHILL expressed a desire to send the matter to finance.
MS. LORD-JENKINS clarified that there was no finance referral.
CHAIR COGHILL commented that the authority to contract offers
some flexibility.
MS. LORD-JENKINS provided an example to show how she had used
the contracting authority in the past. In 2008 she hired two
Tier I retirees; one had worked in the office in the 1990s and
the other had broad, general governmental experience. Because
the contract workers were Tier I there wasn't a requirement to
pay into the PERS system or for health insurance. This amounted
to getting two employees for the price of one.
2:40:54 PM
SENATOR WIELECHOWSKI noted that the original version referenced
the Alaska Bar Association.
CHAIR COGHILL said several things were removed as the bill went
through the process in the other body, including looking at the
Alaska Bar Association as an agency. He offered his perspective
that a lot was expected of the ombudsman and the legislature had
been reluctant to loosen the reins.
SENATOR MCGUIRE thanked Ms. Lord-Jenkins for her work.
SENATOR WIELECHOWSKI requested more detail on sections 4 and 5.
2:43:16 PM
BETH LEIBOWITZ, Assistant Ombudsman, Alaska Office of the
Ombudsman, Alaska State Legislature, Juneau, Alaska, addressed
Section 4. She explained that the Office of the Ombudsman has
mandatory access to most state agency records, but it
specifically excludes attorney-client privileged communications
and attorney work product. However, there have been instances
where executive branch agencies have given the Office of the
Ombudsman communications from their assistant attorney general.
She noted that this is often helpful because it may help explain
the conduct.
MS. LEIBOWITZ advised that, on closer review, she realized that
case law in other states and federal cases indicates that this
could inadvertently create a general waiver of privilege for
those agencies. That's not a desirable consequence. The Office
of the Ombudsman would therefore like to preserve an agency's
ability to cooperate with an investigation without potentially
creating an unfortunate consequence in some unrelated
litigation.
She told the committee that the Office of the Ombudsman cannot
disclose that attorney-client material once it is received. It
is confidential under statute and the enhanced testimonial
privilege in this bill is designed specifically to ensure that
the information doesn't leave the office once it comes in.
SENATOR WIELECHOWSKI said that last part piqued his interest. He
inquired what the Office of the Ombudsman does if it finds that
an agency has broken the law and there are privileged
conversations about that. "Isn't that something you would want
to disclose to the public or you would want people to know
about?" he asked.
MS. LEIBOWITZ explained that the ombudsman can tell the agency
it is breaking the law and the ombudsman can tell the
legislature and the public that the agency is acting contrary to
law, but the Office of the Ombudsman cannot publicize material
that would otherwise not be public.
CHAIR COGHILL added that the ombudsman can't disclose
confidential information about children or people who are
incarcerated, but the ombudsman can tell if medical information
isn't handled correctly or people aren't being well served.
SENATOR WIELECHOWSKI pointed out that the ombudsman may be privy
to communications between an attorney and an agency director
admitting he/she broke the law. He asked if the legislature
could disclose that if the ombudsman disclosed it to the
legislature.
MS. LEIBOWITZ said her understanding of the statute is that the
ombudsman cannot disclose the information once the office is let
into that bubble of privilege. Conclusions can be reported to
the public and the legislature, but the confidence has to be
respected. She acknowledged there is a potential problem, but
she believes that it's highly unlikely that an agency would
share a communication about breaking the law.
MS. LORD-JENKINS said there have been cases where agencies have
inadvertently provided attorney-client privileged information
and the agency hasn't followed that attorney general's advice.
In those instances her office has notified the agency, the
department commissioner, and the attorney general. That
generally takes care of the problem, she said. The complainant
is told that the confidential information can't be divulged, but
that the particular allegation is justified.
SENATOR WIELECHOWSKI pointed out that Section 5 creates a
further provision that the ombudsman can't be subpoenaed,
deposed or testify on anything they found in the course of the
investigation.
MS. LEIBOWITZ argued that the basic nature of the section on
testimonial privilege hasn't changed since the Ombudsman Act was
enacted in 1975. This amendment rewrites the section to make it
absolutely clear that the ombudsman doesn't appear in court to
testify in litigation unless necessary to enforce the
ombudsman's duties under the Act. The privilege is designed to
keep the ombudsman from being an inadvertent discovery source
for other litigants.
SENATOR WIELECHOWSKI read Sec. 24.55.260 and pointed out that
the new language broadens the privilege not to testify, which
profoundly limits what the ombudsman can release. He questioned
whether it was the best policy call to say that the ombudsman
can't release any information it finds in the course of an
investigation.
MS. LORD-JENKINS stated that the purpose of the ombudsman is to
resolve complaints against state government, but the ombudsman
has never been envisioned as an entity that is an adjunct to
private litigants against the state. The job would become much
more difficult if the ombudsman had to provide free discovery
for any entity.
CHAIR COGHILL stated that he would hold HB 127 for further
consideration.
HB 250-MEDICAL MALPRACTICE ACTIONS
2:53:55 PM
CHAIR COGHILL announced the consideration of HB 250. "An Act
making an expression of apology, sympathy, commiseration,
compassion, or benevolence by a health care provider
inadmissible in a medical malpractice case; requiring a health
care provider to advise a patient or the patient's legal
representative to seek legal advice before making an agreement
with the patient to correct an unanticipated outcome of medical
treatment or care; and amending Rules 402, 407, 408, 409, and
801, Alaska Rules of Evidence." [This was the first hearing and
CSHB 250(HSS)am was before the committee.]
2:54:27 PM
ERIKA O'SULLIVAN, Staff, Representative Kurt Olson, Alaska State
Legislature, Juneau, Alaska, introduced herself.
2:56:11 PM
MIKE HAUGEN, Executive Director, Alaska State Medical
Association, Anchorage, Alaska, testified in support of HB 250.
He stated that physicians feel that open communication with
their patients is vital to ensure the best possible healthcare
outcomes. The fear of being sued can hinder open communication
and HB 250 seeks to address those concerns by making expressions
of sorrow, sympathy or apology inadmissible in a medical
malpractice case. He opined that it was appropriate to draw a
line between an admission of liability and an expression of
apology or sympathy.
MS. O'SULLIVAN addressed the intent of HB 250 paraphrasing the
following from the sponsor statement:
HB 250, also known as the "benevolent gesture" or "I'm
Sorry" bill, would render expressions of apology or
sympathy by a health care provider to a patient
related to an unanticipated outcome of treatment
inadmissible as evidence in a medical malpractice
case.
The bill is intended to clear up the gray area which
now exists between apologies and admissions of
neglect. The goal of HB 250 is to improve doctor-
patient relationships, especially in cases ending with
a less-than-favorable outcome. It is not negligence,
but rather a failure in communication between the
provider and patient, that often results in
malpractice lawsuits.
HB 250 aims to improve the climate of communication,
disclosure and analysis. Similar legislation has
already passed in over 30 states. This legislation
will enable health care providers to better fulfill
their moral and ethical responsibilities to patients
and their families through expressions of compassion
and sympathy without fear of retribution in the form
of a lawsuit.
CHAIR COGHILL noted that the terms "liability" and
"responsibility" were removed.
2:59:05 PM
SENATOR WIELECHOWSKI asked if it would be admissible if a doctor
apologized for leaving a sponge in a patient's stomach during an
operation.
MS. O'SULLIVAN said not necessarily, and directed attention to
subsection (b) on page 2, lines 18-22. The subsection is
intended to add scrutiny to a statement of apology or sympathy
that's made in conjunction with an admission of negligence or
liability. The apology is inadmissible but not necessarily the
admission of negligence or liability.
SENATOR WIELECHOWSKI mused that the apology would be
inadmissible but the admission of leaving a sponge in the
patient's stomach would be admissible.
MS. O'SULLIVAN responded that it potentially would be
admissible. Responding to a further query about apologizing for
leaving a sponge behind, she restated that the intent is that an
apology is not admissible.
CHAIR COGHILL stated he would hold HB 250 for further
consideration.
3:01:22 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 3:01 p.m.