Legislature(2013 - 2014)BUTROVICH 205
04/18/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB370 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 370 | TELECONFERENCED | |
| HB 45 | |||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 18, 2014
1:36 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Fred Dyson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Lesil McGuire, Vice Chair
Senator Donald Olson
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 370(L&C)
"An Act relating to employer-required drug testing; requiring
the Alaska Workers' Compensation Board to adopt regulations
relating to the prescription of controlled substances to
employees; and relating to the prescription of controlled
substances to employees."
- HEARD & HELD
HOUSE BILL NO. 45
"An Act relating to harassment, intimidation, or bullying by
students attending a public school in the state."
- PENDING WAIVER OF UNIFORM RULE 23
PREVIOUS COMMITTEE ACTION
BILL: HB 370
SHORT TITLE: WORKERS COMP: CONTROLLED SUBSTANCES
SPONSOR(s): LABOR & COMMERCE
03/03/14 (H) READ THE FIRST TIME - REFERRALS
03/03/14 (H) L&C, JUD
03/19/14 (H) L&C AT 3:15 PM BARNES 124
03/19/14 (H) Heard & Held
03/19/14 (H) MINUTE(L&C)
03/26/14 (H) L&C AT 3:15 PM BARNES 124
03/26/14 (H) Heard & Held
03/26/14 (H) MINUTE(L&C)
04/04/14 (H) L&C AT 3:15 PM BARNES 124
04/04/14 (H) Moved CSHB 370(L&C) Out of Committee
04/04/14 (H) MINUTE(L&C)
04/07/14 (H) L&C RPT CS(L&C) NT 1DP 4NR 1AM
04/07/14 (H) DP: OLSON
04/07/14 (H) NR: CHENAULT, HERRON, REINBOLD, SADDLER
04/07/14 (H) AM: JOSEPHSON
04/07/14 (H) L&C AT 3:15 PM BARNES 124
04/07/14 (H) <Bill Hearing Canceled>
04/11/14 (H) JUD AT 1:00 PM CAPITOL 120
04/11/14 (H) <Bill Hearing Canceled>
04/14/14 (H) JUD AT 1:00 PM CAPITOL 120
04/14/14 (H) Moved CSHB 370(L&C) Out of Committee
04/14/14 (H) MINUTE(JUD)
04/15/14 (H) JUD RPT CS(L&C) NT 1DP 4NR
04/15/14 (H) DP: KELLER
04/15/14 (H) NR: PRUITT, LEDOUX, GRUENBERG, LYNN
04/16/14 (H) TRANSMITTED TO (S)
04/16/14 (H) VERSION: CSHB 370(L&C)
04/17/14 (S) READ THE FIRST TIME - REFERRALS
04/17/14 (S) JUD
04/18/14 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
ANNA LATHAM, Staff
Representative Kurt Olson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 370 on behalf of the sponsor.
MIKE MONAGLE, Director
Division of Workers' Compensation
Department of Labor and Workforce Development (DOLWD)
Juneau, Alaska
POSITION STATEMENT: Answered questions and provided information
related to HB 370.
DON ETHERIDGE
Alaska State AFL-CIO
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 370.
BARBARA HUFF TUCKNESS, Director
Governmental and Legislative Affairs
Teamsters Local 959
Anchorage, Alaska
POSITION STATEMENT: Offered supporting comments for HB 370.
ACTION NARRATIVE
1:36:48 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:36 p.m. Present at the call to
order were Senators Dyson, Wielechowski, and Chair Coghill.
HB 370-WORKERS COMP: CONTROLLED SUBSTANCES
1:38:01 PM
CHAIR COGHILL announced the consideration of HB 370."An Act
relating to employer-required drug testing; requiring the Alaska
Workers' Compensation Board to adopt regulations relating to the
prescription of controlled substances to employees; and relating
to the prescription of controlled substances to employees."
[CSHB 370(L&C) was before the committee.]
1:38:08 PM
ANNA LATHAM, Staff, Representative Kurt Olson, Alaska State
Legislature, Juneau, Alaska, sponsor of HB 370, explained that
the purpose of the legislation was to address the overuse and
abuse of opiates and the escalating cost of prescription drugs
in workers' compensation.
She discussed the following sectional analysis:
Section 1. Amends AS 23.10.620; An employer may
require an employee to be drug tested for a controlled
substance prescribed to the employee, if the employee
has been prescribed a controlled substance listed in
schedule IA for more than 90 days as the result of a
workers' compensation claim. A negative test result
may result in the denial of future payments for the
controlled substance by the employer.
Section 2. Amends AS 23.30.005; The Workers'
Compensation Board shall adopt regulations relating to
the prescription of controlled substances to implement
AS 23.30095 (p) and (q).
Section 3. Amends AS 23.30.095; A physician may not
prescribe more than a 30 day supply of a controlled
substance listed in schedule IA under AS 11.71.140, or
a controlled opium, substances in schedule IIIA under
11.71.160, or schedule VA under AS 11.71.180. An
employer may not be liable for future payments of
schedule IA controlled substances prescribed to an
employee if the employee receives a negative drug test
result.
1:41:38 PM
SENATOR DYSON referenced subsection (g) in Section 1 and asked
what a negative test shows and means.
MS. LATHAM acknowledged that it was counterintuitive to look for
a negative result and explained that it shows that the employee
isn't taking the prescription. Presumably they don't need it for
pain management, which is a good indication that the employee is
on the way to returning to work. She noted that the House Labor
and Commerce Committee added some sideboards to protect
employees.
SENATOR DYSON commented that the bill was looking for somebody
who wasn't taking the prescription because it had been over
prescribed. The implication is that they're selling the drug or
making it available to somebody else.
MS. LATHAM agreed.
1:43:44 PM
SENATOR WIELECHOWSKI asked if the workers' compensation law says
that employers are to be notified of treatment that employees
are receiving.
MS. LATHAM replied an adjuster would commonly handle the claim,
not the employer.
SENATOR WIELECHOWSKI pointed out that the language on page 1,
lines 7-8 says "an employer may require an employee to undergo
drug testing." He asked if it was her understanding that it is
probably a violation of HIPAA for employers to be aware that
employees on workers' compensation are receiving controlled
substances.
MS. LATHAM replied workers' compensation is exempt from HIPAA
requirements.
SENATOR WIELECHOWSKI asked if adjusters typically share medical
treatments with an employer.
MS. LATHAM deferred to Mr. Monagle.
1:44:54 PM
MIKE MONAGLE, Director, Division of Workers' Compensation,
Department of Labor and Workforce Development (DOLWD), Juneau,
Alaska, explained that employers generally don't stay briefed on
a particular claim, but employers that are self-insured tend to
pay closer attention. He noted that workers' compensation law
broadly defines employer to include their insurance company or
claims administrator.
SENATOR WIELECHOWSKI questioned giving employers the authority
to require a drug test when employers generally don't know
what's going on in a workers' compensation case. He asked if
that was a fair statement.
MR. MONAGLE answered yes and restated the statutory definition
of employer under workers' compensation law.
CHAIR COGHILL asked if that might be characterized as the
employer's delegation responsibility.
MR. MONAGLE agreed that the insurer has authority to investigate
and adjust claims. He said that about 20 percent of employers
are self-insured and they tend to have risk managers.
SENATOR WIELECHOWSKI asked if an employer can only require a
test for the specific drug that was prescribed.
MS. LATHAM answered yes; that sideboard was added in the House
Labor and Commerce committee substitute (CS).
1:48:30 PM
SENATOR WIELECHOWSKI commented that the provision was an odd
policy approach because it seems to encourage a person to keep
taking prescription drugs even when they're no longer needed.
The employee who stops taking the drug because he/she is feeling
better is cut off from their workers' compensation benefit if
they're tested and the results show they're not taking the drug.
MS. LATHAM clarified that the employer would not be obligated to
pay for future prescriptions if the test was negative and the
prescription was in excess of 90 days. If the employee was still
in pain, he/she would have to contact their provider who would
be able to write another prescription.
SENATOR WIELECHOWSKI asked what happens in the situation where
pain comes and goes. The person gets a 30 supply and takes it
for 10 days. They stop taking it and the employer tests them on
day 15 and they don't have the OxyContin in their system. The
employee is cut off from the drug and then starts feeling pain
again.
MS. LATHAM offered her understanding that the entire claim would
not be controverted, just payment for the prescription.
CHAIR COGHILL noted that Mr. Monagle agreed.
1:51:22 PM
SENATOR DYSON asked who had opposed this legislation.
MS. LATHAM said the minority voiced concerns when the bill was
on the House floor.
SENATOR DYSON asked if the sponsor worked with doctors in the
pain management business.
MS. LATHAM said she hadn't worked with doctors on the
legislation and hadn't received letters of support or
opposition.
SENATOR DYSON asked if she solicited information.
MS. LATHAM replied there were hearings in House Labor and
Commerce and there was the ability to comment at that time.
SENATOR DYSON expressed concern with the response, commenting on
doctors that overprescribe and the street value of prescription
drugs. He observed that the bill tries to keep workers'
compensation from paying for drugs that aren't indicated by
diagnosis.
CHAIR COGHILL summarized that workers' compensation doesn't want
to pay for a drug if an employee isn't using it, but if the
employee is using the drug workers' compensation will continue
to pay for it. He commented that the doctor may have a problem
if he/she is writing prescriptions and they're not being used as
prescribed.
1:54:30 PM
MR. MONAGLE said the bill does two things. First, it says the
employer may test for those long-term users of opiates. Second,
it makes the employee get back in touch with their doctor and
limits the prescription to 30 days. He said he views the bill as
helping foster communication between the injured worker and
their doctor so they can stop taking the drug and return to
work.
CHAIR COGHILL asked if this was based on model legislation.
MS. LATHAM affirmed that the bill was based on model legislation
that other states are implementing.
1:58:04 PM
SENATOR DYSON expressed disappointment that the sponsor didn't
seek comment from the medical community because he didn't see
how they could object to the bill. He recapped Mr. Monagle's
testimony that the bill allows the employer to require the test
after 90 days, which isn't allowed under existing statute.
CHAIR COGHILL noted that Mr. Monagle nodded in agreement.
SENATOR WIELECHOWSKI asked Ms. Latham what type of drug testing
she envisioned.
MS. LATHAM replied the test would be a urinalysis.
SENATOR WIELECHOWSKI noted that one website says that opiates
stay in the blood system for up to 12 hours.
MS. LATHAM noted that information in the packets indicates that
the timeframe is between 12 and 24 hours.
SENATOR WIELECHOWSKI asked if this law would cut off forever a
person who tests negative because they didn't take their
prescription opiate for 13 hours.
MS. LATHAM replied the person would need to make contact with
their doctor who would determine whether or not those pain
medications were still needed. She noted that the documentation
in the packet shows that Oxycodone stays in the system for 2-4
days, morphine 48-72 hours, and codeine 48 hours.
SENATOR WIELECHOWSKI requested a list of all the schedule IA
drugs and how long they stay in the bloodstream, because his
online search indicates that opiates stay in the system for up
to 12 hours.
MS. LATHAM acknowledged that the documentation she provided
provides different time constraints.
SENATOR WIELECHOWSKI read the following language found in
subsection (q) on page 2, lines 11-14:
(q) An employer or insurer may not be liable for
future payments for a controlled substance listed in
schedule IA under AS 11.71.140 prescribed to an
employee under this section if the employee receives a
negative test result under AS 23.10.620(g).
He pointed out that under that language, insurance companies and
employers are not liable if an employee, who has chronic pain as
a result of their job, receives a negative result on an
employer-required drug test. This goes too far, he said.
MR. MONAGLE clarified that under the Workers' Compensation Act,
an employer cannot stop benefit payments to an injured worker
unless they controvert. That is a written notification to the
employee that the employer is stopping a particular benefit. The
employer is subject to penalties and interest if the benefit is
found at hearing to have been unfairly or frivolously denied. He
offered his opinion that the Workers' Compensation Board would
likely say it was an unfair or frivolous controversion if the
employee tested negative after they stopped taking the drug for
a few days because they felt fine. He further opined that he
didn't believe that employers would be willy-nilly in denying
benefits and that the bill would foster conversation and further
evaluation. He said that studies show that 70 percent of injured
workers are prescribed opiates for pain medication, but
continuing to take high doses of opiates over the long term is
not the answer for chronic pain issues.
SENATOR WIELECHOWSKI said that as a former workers' compensation
hearing officer who has done several hundred of these cases, he
respectfully disagrees with Mr. Monagle's analysis of the law.
He said it's very clear that this bill may result in the denial
of future payments when a drug test is negative. Once there is a
doctor's analysis that the test result is negative, the employer
doesn't have to worry about a claim that it was a frivolous
controversion. He asked Mr. Monagle if he disagreed.
MR. MONAGLE answered no.
SENATOR WIELECHOWSKI said the language in subsection (q) on page
2, lines 11-14, is very clear. It significantly changes the law
and treats every injured worker as though they're a criminal and
every doctor as though they're illegally prescribing opiates. He
described the law as a huge net that will catch a few bad actors
and a lot more innocent people who are in pain because they were
giving their lives to their employer. He stressed that this was
the wrong policy call.
2:06:32 PM
SENATOR DYSON disagreed. He maintained that the law was
permissive and that the employee could continue to get the
prescription if their doctor said it was necessary. This
protects the employer in the scenario that Senator Wielechowski
described.
CHAIR COGHILL noted that Ms. Latham indicated she agreed.
2:08:05 PM
DON ETHERIDGE, Alaska State AFL-CIO, Juneau, Alaska, said the
union had concerns with HB 370 initially, but is now able to
support the legislation because of the sideboards added in the
House Labor and Commerce Committee. The current bill doesn't
assume that employees who test negative are selling their
prescription drug. Also, the entire claim can't be controverted
if the test result is negative, just the payment for the drug
that the employee isn't taking.
CHAIR COGHILL asked if his expectation was that a negative test
would send the employee back to their doctor; it would not
controvert the entire claim.
MR. ETHERIDGE answered yes.
BARBARA HUFF TUCKNESS, Director, Governmental and Legislative
Affairs, Teamsters Local 959, Anchorage, Alaska, stated that she
would like to go on record as not opposed to the current version
of HB 370. Although labor hasn't embraced the bill, she said the
sideboards provide a positive opportunity to get injured workers
to continue to work with their physician. She offered her
understanding that the employer would be the insurance carrier
who would be involved in monitoring the ongoing injury and
ensuring that the injured worker moves forward in a more
controlled manner than may happen now. To the extent that the
bill helps get an injured worker back on the job, Local 959 is
supportive, she said.
2:13:54 PM
CHAIR COGHILL asked if there was relief to the injured worker
against an overly aggressive insurance company that repeatedly
denied claims.
MS. LATHAM deferred the question to Mr. Monagle.
MR. MONAGLE said insurance companies respond on a case-by-case
basis and some do better than others. If a worker finds their
insurance company is non-responsive, they can file a performance
complaint with the Division of Insurance. The remedy for an
injured worker whose benefits have been cut off by their
insurance company is to file a claim and ask for a hearing
before the Workers' Compensation Board.
CHAIR COGHILL asked if the injured worker could get their
benefit reinstated if their doctor notified the insurance
company that they needed to continue the prescription drug.
MS. LATHAM offered her understanding that the doctor would be
able to work with the injured employee before the claim was
controverted.
MR. MONAGLE said he believes that in most cases the employer
would make a reasonable payment for the prescription if the
injured employee returned to the doctor and the doctor notified
the employer that he/she was writing another prescription for
the pain medication. Case law indicates that there could be
consequences for an employer who continues to resist or deny
benefits when a doctor says they're needed, he said.
SENATOR WIELECHOWSKI continued to maintain that this law doesn't
say that. The language on page 1, lines 11-13, gives an employer
the option of denying future payments when it says:
A negative test result under this subsection for a
controlled substance prescribed to the employee may
result in the denial of future payments by the
employer or insurer for the controlled substance
prescribed to the employee but may not result in any
other adverse employment action.
The language in subsection (q) on page 2, lines 11-14, says the
following for an employer or insurer who chooses to exercise
that option:
(q) An employer or insurer may not be liable for
future payments for a controlled substance listed in
schedule IA under AS 11.71.140 prescribed to an
employee under this section if the employee receives a
negative test result under AS 23.10.620(g).
SENATOR WIELECHOWSKI said he believes it's very clear, but if
he's wrong he'd like it stated on the record.
2:19:42 PM
MS. LATHAM agreed it was an employer option.
SENATOR WIELECHOWSKI stressed that a doctor is not involved once
an employee receives a negative result on a drug test. Under
current workers' compensation law, an injured employee is
allowed to receive pain killing prescription drugs for the rest
of his life. This bill for ever takes the employer off the hook
for paying for these prescription drugs if the injured employee
doesn't take the prescription for a few days.
SENATOR DYSON agreed that the bill leaves a clear option for the
employer who is looking for an opportunity to get out of the
obligation of paying. He conceded that Senator Wielechowski's
point was legitimate.
CHAIR COGHILL said it's also a legitimate point that schedule IA
drugs are not intended to be used to mitigate chronic pain.
MS. LATHAM pointed out that an employer who was no longer liable
for future payments for a schedule IA drug could still be liable
for future payments for other pain relievers that would be
effective in treating pain.
SENATOR WIELECHOWSKI said it would be helpful to hear from a
doctor about how they prescribe drugs for chronic pain. He also
asked how often an employer could test an employee.
MS. LATHAM said that wasn't defined in the bill.
2:23:58 PM
CHAIR COGHILL recessed the meeting to a call of the chair.
5:48:38 PM
CHAIR COGHILL reconvened the meeting and announced the committee
would stay in recess until 9:00 a.m. Saturday morning 4/19/14.
[The committee did not reconvene therefore, HB 370 was held in
committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB370 Sectional Analysis.pdf |
SJUD 4/18/2014 1:30:00 PM |
HB 370 |
| HB370 Sponsor Statement.pdf |
SJUD 4/18/2014 1:30:00 PM |
HB 370 |
| HB370 Supporting Documents-AKDrugOverdoseDeaths2008-12.pdf |
SJUD 4/18/2014 1:30:00 PM |
HB 370 |
| HB370 Supporting Documents-Report Lockton & Associates 08-2012.pdf |
SJUD 4/18/2014 1:30:00 PM |
HB 370 |
| HB370 Supporting Documents-Health Partners Opiate Drug Screens.pdf |
SJUD 4/18/2014 1:30:00 PM |
HB 370 |
| HB370 Supporting Documents-Report Workers Compensation 2012 Issues Report by Joseph Paduda.pdf |
SJUD 4/18/2014 1:30:00 PM |
HB 370 |