04/19/2018 09:00 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB81 | |
| HB355 | |
| HB208 | |
| HB123 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 355 | TELECONFERENCED | |
| += | SB 81 | TELECONFERENCED | |
| += | HB 208 | TELECONFERENCED | |
| += | HB 123 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 19, 2018
9:07 a.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Pete Kelly
Senator Bill Wielechowski
Senator Mike Shower
MEMBERS ABSENT
Senator Mia Costello
COMMITTEE CALENDAR
SENATE BILL NO. 81
"An Act relating to criminal and civil history requirements and
a registry regarding certain licenses, certifications, appeals,
and authorizations by the Department of Health and Social
Services; and providing for an effective date."
- MOVED CSSB 81(HSS) OUT OF COMMITTEE
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 355(JUD)
"An Act relating to the crime of criminally negligent burning;
relating to protection of and fire management on forested land;
relating to prohibited acts and penalties for prohibited acts on
forested land; requiring the Alaska Supreme Court to establish a
bail schedule; and providing for an effective date."
- HEARD & HELD
HOUSE BILL NO. 208
"An Act relating to trusts and powers of appointment; and
providing for an effective date."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 123(HSS)
"An Act relating to disclosure of health care services and price
information; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 81
SHORT TITLE: DHSS CENT. REGISTRY; LICENSE; BACKGROUND CHK
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/08/17 (S) READ THE FIRST TIME - REFERRALS
03/08/17 (S) HSS, JUD
02/02/18 (S) HSS AT 1:30 PM BUTROVICH 205
02/02/18 (S) Heard & Held
02/02/18 (S) MINUTE(HSS)
02/05/18 (S) HSS AT 1:30 PM BUTROVICH 205
02/05/18 (S) -- MEETING CANCELED --
03/14/18 (S) HSS AT 1:30 PM BUTROVICH 205
03/14/18 (S) Heard & Held
03/14/18 (S) MINUTE(HSS)
03/16/18 (S) HSS AT 1:30 PM BUTROVICH 205
03/16/18 (S) Moved CSSB 81(HSS) Out of Committee
03/16/18 (S) MINUTE(HSS)
03/19/18 (S) HSS RPT CS 2DP 2NR NEW TITLE
03/19/18 (S) NR: WILSON, MICCICHE
03/19/18 (S) DP: BEGICH, VON IMHOF
04/16/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/16/18 (S) <Above Item Removed from Agenda>
04/16/18 (S) MINUTE(JUD)
04/18/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/18/18 (S) Heard & Held
04/18/18 (S) MINUTE(JUD)
04/19/18 (S) JUD AT 9:00 AM BELTZ 105 (TSBldg)
BILL: HB 355
SHORT TITLE: FIRE; FOREST LAND; CRIMES; FIRE PREVENTION
SPONSOR(s): REPRESENTATIVE(s) GUTTENBERG
02/16/18 (H) READ THE FIRST TIME - REFERRALS
02/16/18 (H) RES, JUD
02/28/18 (H) RES AT 1:00 PM BARNES 124
02/28/18 (H) Heard & Held
02/28/18 (H) MINUTE(RES)
02/28/18 (H) RES AT 6:00 PM BARNES 124
02/28/18 (H) Heard & Held
02/28/18 (H) MINUTE(RES)
03/05/18 (H) RES AT 1:00 PM BARNES 124
03/05/18 (H) Heard & Held
03/05/18 (H) MINUTE(RES)
03/09/18 (H) RES AT 1:00 PM BARNES 124
03/09/18 (H) Moved CSHB 355(RES) Out of Committee
03/09/18 (H) MINUTE(RES)
03/12/18 (H) RES RPT CS(RES) NT 4DP 3NR 1AM
03/12/18 (H) DP: LINCOLN, DRUMMOND, JOSEPHSON, TARR
03/12/18 (H) NR: BIRCH, PARISH, TALERICO
03/12/18 (H) AM: RAUSCHER
03/14/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/14/18 (H) Heard & Held
03/14/18 (H) MINUTE(JUD)
03/19/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/19/18 (H) Heard & Held
03/19/18 (H) MINUTE(JUD)
03/26/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/26/18 (H) Scheduled but Not Heard
03/30/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/30/18 (H) <Bill Hearing Canceled>
04/02/18 (H) JUD AT 1:00 PM GRUENBERG 120
04/02/18 (H) Heard & Held
04/02/18 (H) MINUTE(JUD)
04/02/18 (H) JUD AT 7:00 PM GRUENBERG 120
04/02/18 (H) Moved CSHB 355(RES) Out of Committee
04/02/18 (H) MINUTE(JUD)
04/04/18 (H) JUD RPT CS(JUD) NT 3DP 1NR 2AM
04/04/18 (H) DP: KREISS-TOMKINS, STUTES, CLAMAN
04/04/18 (H) NR: LEDOUX
04/04/18 (H) AM: EASTMAN, KOPP
04/09/18 (H) TRANSMITTED TO (S)
04/09/18 (H) VERSION: CSHB 355(JUD)
04/10/18 (S) READ THE FIRST TIME - REFERRALS
04/10/18 (S) JUD
04/17/18 (S) JUD AT 9:00 AM BELTZ 105 (TSBldg)
04/17/18 (S) Heard & Held
04/17/18 (S) MINUTE(JUD)
04/18/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/18/18 (S) Heard & Held
04/18/18 (S) MINUTE(JUD)
04/19/18 (S) JUD AT 9:00 AM BELTZ 105 (TSBldg)
BILL: HB 208
SHORT TITLE: TRUSTS; COMM PROP TRUSTS; POWERS OF APPT
SPONSOR(s): JOHNSON
03/31/17 (H) READ THE FIRST TIME - REFERRALS
03/31/17 (H) JUD
04/10/17 (H) JUD AT 1:00 PM GRUENBERG 120
04/10/17 (H) Scheduled but Not Heard
04/12/17 (H) JUD AT 1:00 PM GRUENBERG 120
04/12/17 (H) Heard & Held
04/12/17 (H) MINUTE(JUD)
04/14/17 (H) JUD AT 1:00 PM GRUENBERG 120
04/14/17 (H) Moved HB 208 Out of Committee
04/14/17 (H) MINUTE(JUD)
04/15/17 (H) JUD RPT 2DP 5NR
04/15/17 (H) DP: KOPP, CLAMAN
04/15/17 (H) NR: EASTMAN, FANSLER, KREISS-TOMKINS,
LEDOUX, REINBOLD
05/10/17 (H) TRANSMITTED TO (S)
05/10/17 (H) VERSION: HB 208
05/11/17 (S) READ THE FIRST TIME - REFERRALS
05/11/17 (S) L&C, JUD
01/30/18 (S) L&C AT 1:00 PM BELTZ 105 (TSBldg)
01/30/18 (S) Moved HB 208 Out of Committee
01/30/18 (S) MINUTE(L&C)
01/31/18 (S) L&C RPT 2DP 2NR
01/31/18 (S) DP: COSTELLO, MEYER
01/31/18 (S) NR: MICCICHE, GARDNER
02/19/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/19/18 (S) Heard & Held
02/19/18 (S) MINUTE(JUD)
02/21/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/21/18 (S) Heard & Held
02/21/18 (S) MINUTE(JUD)
02/26/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/26/18 (S) Scheduled but Not Heard
03/14/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/14/18 (S) Heard & Held
03/14/18 (S) MINUTE(JUD)
03/16/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/16/18 (S) Scheduled but Not Heard
04/11/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/11/18 (S) <Bill Hearing Canceled>
04/13/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/13/18 (S) <Bill Hearing Canceled>
04/16/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/16/18 (S) <Above Item Removed from Agenda>
04/16/18 (S) MINUTE(JUD)
04/18/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/18/18 (S) Scheduled but Not Heard
04/19/18 (S) JUD AT 9:00 AM BELTZ 105 (TSBldg)
BILL: HB 123
SHORT TITLE: DISCLOSURE OF HEALTH CARE COSTS
SPONSOR(s): SPOHNHOLZ
02/13/17 (H) READ THE FIRST TIME - REFERRALS
02/13/17 (H) HSS, JUD
03/02/17 (H) HSS AT 3:00 PM CAPITOL 106
03/02/17 (H) Heard & Held
03/02/17 (H) MINUTE(HSS)
03/09/17 (H) HSS AT 3:00 PM CAPITOL 106
03/09/17 (H) Moved CSHB 123(HSS) Out of Committee
03/09/17 (H) MINUTE(HSS)
03/10/17 (H) HSS RPT CS(HSS) 5DP 2NR
03/10/17 (H) DP: JOHNSTON, TARR, EDGMON, SULLIVAN-
LEONARD, SPOHNHOLZ
03/10/17 (H) NR: KITO, EASTMAN
03/24/17 (H) JUD AT 1:00 PM GRUENBERG 120
03/24/17 (H) Heard & Held
03/24/17 (H) MINUTE(JUD)
03/27/17 (H) JUD AT 1:00 PM GRUENBERG 120
03/27/17 (H) Heard & Held
03/27/17 (H) MINUTE(JUD)
03/29/17 (H) JUD AT 1:00 PM GRUENBERG 120
03/29/17 (H) Moved CSHB 123(HSS) Out of Committee
03/29/17 (H) MINUTE(JUD)
03/31/17 (H) JUD RPT CS(HSS) 1DP 1NR 4AM
03/31/17 (H) DP: CLAMAN
03/31/17 (H) NR: EASTMAN
03/31/17 (H) AM: KOPP, KREISS-TOMKINS, FANSLER,
REINBOLD
04/07/17 (H) TRANSMITTED TO (S)
04/07/17 (H) VERSION: CSHB 123(HSS)
04/10/17 (S) READ THE FIRST TIME - REFERRALS
04/10/17 (S) HSS, JUD
03/16/18 (S) HSS AT 1:30 PM BUTROVICH 205
03/16/18 (S) Heard & Held
03/16/18 (S) MINUTE(HSS)
04/04/18 (S) HSS AT 1:30 PM BUTROVICH 205
04/04/18 (S) Moved SCS CSHB 123(HSS) Out of
Committee
04/04/18 (S) MINUTE(HSS)
04/06/18 (S) HSS RPT SCS 4DP NEW TITLE
04/06/18 (S) DP: WILSON, BEGICH, VON IMHOF, GIESSEL
04/16/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/16/18 (S) <Above Item Removed from Agenda>
04/16/18 (S) MINUTE(JUD)
04/19/18 (S) JUD AT 9:00 AM BELTZ 105 (TSBldg)
WITNESS REGISTER
CHRIS MAISCH, State Forester and Director
Division of Forestry
Department of Natural Resources (DNR)
Fairbanks, Alaska
POSITION STATEMENT: Supplemented his earlier comments on HB 355.
REPRESENTATIVE DELENA JOHNSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 208.
DAVE G. SCHAFTEL, representing self
Shaftel Law Offices PC
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 208.
RICHARD HOMPESCH, representing self
Hompesch Evans & Averett Attorneys at Law
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 208.
MATT BLATTMACHR, Vice President
Peak Trust Company
Anchorage, Alaska
POSITION STATEMENT: Testified in support of the original draft
of HB 208.
BHREE ROUMAGOUX, Attorney
Shaftel Law Offices
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 208.
SUSAN BEHIKE FOLEY, President
University of Alaska Foundation and
Chief Development Officer
UA System
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 208.
BETH CHAPMAN, Attorney
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 208.
JAMIE DELMAN, Attorney
Shaftel Law Offices
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 208.
ANNE HELZER, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 208.
ALEX SLIVKA, Chair
University of Alaska Foundation
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 208.
VANCE SANDERS, representing self
Juneau, Alaska
POSITION STATEMENT: Testified in support of the original draft
of HB 208.
ABIGAIL O'CONNER, representing self
Anchorage Alaska
POSITION STATEMENT: Testified in support of the original draft
of HB 208.
PAUL KARLKAUFMAN Attorney
Shaftel Law Offices
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 208.
MICHAEL CAVLALIERE, representing self
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of the original draft
of HB 208.
REPRESENTATIVE IVY SPOHNHOLZ
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 123.
BERNICE NISBETT, Staff
Representative Spohnholz
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a sectional analysis of HB 123,
version: B.
ACTION NARRATIVE
9:07:40 AM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 9:07 a.m. Present at the call to
order were Senators Shower, Kelly, Wielechowski, and Chair
Coghill.
SB 81-DHSS CENT. REGISTRY; LICENSE; BCKGROUND CHK
9:08:51 AM
CHAIR COGHILL announced the consideration of SB 81. [CSSB
81(HSS) was before the committee.] He found no questions or
discussion and solicited a motion.
9:09:03 AM
SENATOR KELLY moved to report SB 81, [version D], from committee
with individual recommendations and attached fiscal note(s).
9:09:09 AM
CHAIR COGHILL announced that there being no objection, CSSB
81(HSS) moved from the Senate Judiciary Standing Committee.
9:09:18 AM
At ease
HB 355-FIRE; FOREST LAND; CRIMES; FIRE PREVENTION
9:12:05 AM
CHAIR COGHILL called the committee back to order and announced
the consideration of HB 355. [The Senate committee substitute,
version U as amended, was before the committee.] He advised that
Chris Maisch would like to supplement his comments on Amendment
3 that the committee adopted yesterday.
9:12:55 AM
CHRIS MAISCH, State Forester and Director, Division of Forestry,
Department of Natural Resources (DNR), Fairbanks, Alaska,
thanked the committee for the opportunity to readdress Amendment
3 and apologized for not providing a more complete answer at the
time.
He said you need to read subsection (b) in Section 7 in
context with Sections 5, 6, and 7. They all use language
similar to that being removed. These sections work together
to address the "other lands" piece that was removed.
He read the last sentence in Section 5 and explained that
it talks about how the division would identify the other
types of land uses that would require a permit. That would
be a regulation process which would include public comment
and discussion of those types of uses. The type of uses the
division envisions is primarily commercial uses such as
timber harvesting, land clearing for residential
development or agricultural activities. He noted that the
latter is a common source of escaped fire. The regulation
process would identify the other types of activities. Very
few activities would be restricted; lawn mowing would be
allowed.
Section 7 allows the division to enforce those regulations
and removing the part about other activities would prevent
the division from enforcing things that are already in
regulation, such as jag burning.
Those sections work with Section 15 that enumerates the
penalties. This would likely fall under the bail schedule they
hope to develop under this statute. This is where not having a
permit might fall. More serious things like an escaped fire that
developed into a project fire might fall under a misdemeanor
charge.
He reiterated the importance of looking at these sections in
context to clearly understand the impact of Amendment 3.
CHAIR COGHILL asked Mr. Maisch to work with the sponsor of the
amendment to see if he was willing to change it. If it stands,
it appears that the division will struggle with enforcing other
activities. He opined that the division should have the
authority it needs but it's important to recognize the potential
for overreach.
9:16:58 AM
SENATOR KELLY said he supported the amendment because it wasn't
clear that the regulation process for the fire permit would
include public participation, and because the discussion
indicated that a burning permit would be required throughout the
summer. He asked Mr. Maisch to comment on those two issues.
MR. MAISCH said existing statute has the qualifier that the
regulations the commissioner sets regarding fire permits are
only for extreme fire danger situations.
CHAIR COGHILL asked Senator Shower to present Amendment 4.
9:18:35 AM
SENATOR SHOWER moved Amendment 4, 30LS-1382\O.19, noting that he
withdrew it from consideration yesterday.
30-LS1382\O.19
Radford
4/17/18
AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSHB 355(JUD)
Page 6, following line 16:
Insert a new bill section to read:
"* Sec. 21. AS 41.15.950 is amended by adding a new
subsection to read:
(c) A person is not required under this
section to disclose a deadly weapon under
AS 11.61.220(a)(1)(A) to a peace officer
described under (a)(1) of this section."
Renumber the following bill sections accordingly.
Page 7, line 2:
Delete "sec. 21"
Insert "sec. 22"
Page 7, line 3:
Delete "sec. 21" in both places
Insert "sec. 22" in both places
Page 7, line 4:
Delete "Sections 23 and 24"
Insert "Sections 24 and 25"
Page 7, line 5:
Delete "sec. 25"
Insert "sec. 26"
9:18:40 AM
CHAIR COGHILL objected.
SENATOR SHOWER said he learned last night that House members
support the current draft of Amendment 4. It is a much simpler
version than was presented during the process in that body.
CHAIR COGHILL summarized that the amendment talks about the
requirement to disclose a deadly weapon under AS
11.61.220(a)(1)(A). He asked if that relies on the definition of
a peace officer in AS 11.81.900.
SENATOR SHOWER said that's correct. The discussion yesterday was
about AS 41.15.950 and that the state essentially declares that
for the purpose of enforcing this chapter, an employee of the
department or anybody authorized by the commissioner is
identified as a peace officer. The bill allows investigation
authority so they can show up on a property in an authoritative
role and write tickets. What the amendment tries to do is
prevent a confrontation by clarifying that people do not have to
disclose a firearm to these government representatives who are
identified as peace officers but are not trained by law
enforcement.
9:20:52 AM
CHAIR COGHILL commented that the amendment would probably be
more beneficial to the individual who was carrying a firearm
than a peace officer who is a fire prevention officer. He asked
Mr. Maisch the department's view of the amendment.
MR. MAISCH agreed that fire prevention officers (FPO) are
defined as peace officers in the context of enforcing Title 41.
He said his perspective is that disclosure of weapons is
important to FPOs for general safety reasons. These officers
often work alone in remote locations and they would have a
better overall sense of the situation if they knew someone was
carrying a firearm. He clarified that they would not enforce
that statute because they are not trained for that.
9:22:33 AM
SENATOR WIELECHOWSKI that his concern is that it's very broad.
He didn't believe that most people would perceive that a peace
officer/FPO is somebody to whom they need to affirmatively
reveal, but it would be a crime if they didn't.
9:23:18 AM
CHAIR COGHILL removed his objection. Finding no further
objection, Amendment 4 was adopted.
9:23:30 AM
SENATOR SHOWER moved Amendment 5, 30-LS1382\O.24.
30-LS1382\O.24
Martin/Radford
4/17/18
AMENDMENT 5
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSHB 355(JUD)
Page 4, line 1:
Delete "knows of a fire or"
Insert "[KNOWS OF A FIRE OR]"
9:23:50 AM
CHAIR COGHILL objected for an explanation.
SENATOR SHOWER said this amendment, too, tries to keep the
enforcement authority from being overly broad. His concern is
that anyone who knows of a fire potentially makes too many
people culpable.
CHAIR COGHILL asked Mr. Maisch to comment on the amendment.
9:24:53 AM
MR. MAISCH said we would oppose this amendment because it
removes the duty to report a fire. It's important for anybody
who has knowledge of a fire to disclose that so the response is
quicker and control potentially more efficient. Public
cooperation is important.
CHAIR COGHILL commented that it is basically the duty to report.
MR. MAISCH answered yes.
CHAIR COGHILL asked what the penalty is for failure to report.
MR. MAISCH replied a person could potentially be cited but it's
unlikely that would happen. Quick response and suppression of a
fire is a matter of public safety.
CHAIR COGHILL clarified that this removes the language from
existing statute.
MR. MAISCH agreed.
SENATOR WIELECHOWSKI said he didn't like placing an affirmative
duty on innocent bystanders and is always wary of granting
prosecutorial discretion on such things, but a fire could
devastate a community. Thus, he's leaning in favor of granting
that discretion and opposing the amendment.
9:26:57 AM
CHAIR COGHILL maintained his objection. He commented on
emergency situations in his area caused by fires that went
unreported.
SENATOR KELLY said it seems that the duty to report is due care
so he's okay with the amendment.
9:28:12 AM
CHAIR COGHILL said he was maintaining his objection because
removing the phrase leaves the due care to prevent or control to
the person who set the fire.
SENATOR KELLY indicated that he was switching his position on
the amendment.
CHAIR COGHILL asked for a roll call.
9:29:14 AM
A roll call vote was taken. Senator Shower voted in favor of
amendment 5 and Senators Coghill, Kelly, Wielechowski voted
against it. Therefore, amendment 5, O.24, failed by a 1:3 vote.
9:29:20 AM
CHAIR COGHILL held HB 355 in committee.
HB 208-TRUSTS; COMM PROP TRUSTS; POWERS OF APPT
9:29:41 AM
CHAIR COGHILL announced the consideration of HB 208 and stated
that the purpose today was to take public testimony. He asked
the sponsor if she wanted to provide opening comments.
9:30:31 AM
REPRESENTATIVE DELENA JOHNSON, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 208, thanked the committee for hearing the
bill. She said the more questions she answers, the more
convinced she becomes that this is a good bill. It brings a
significant amount of money into the state without costs. She
directed attention to the handout that has good explanations of
decanting and fiduciary responsibility.
9:32:28 AM
CHAIR COGHILL opened public testimony on HB 208.
9:33:00 AM
DAVE G. SHAFTEL, representing self, Shaftel Law Offices PC,
Anchorage, Alaska, said he has been practicing in the area of
trusts and estate law since the late 1970s. He advised that
since the bill was heard last, members of the Estate Planning
Section of the Alaska Bar Association have said either they
oppose the proposed decanting provisions of HB 208 or they would
like the Estate Planning Section to thoroughly review them
before any changes are made. Another major concern articulated
in the responses is that the bill grants the trustee very broad
powers to change the dispositive intent after the person who
made the trust dies or becomes incapacitated. He provided
examples to demonstrate that this could lead to abuse.
MR. SHAFTEL said HB 208 also raises some very basic procedural
fairness concerns. For example, a trustee who decides to modify
where the property is going only has to give notice to one
beneficiary. Furthermore, the bill says that the trustee only
has a fiduciary duty to one beneficiary. That is totally
inappropriate because trustees should have a fiduciary duty to
all beneficiaries.
9:40:14 AM
RICHARD HOMPESCH, attorney representing self, Fairbanks, Alaska,
stated that he strongly disagrees with Mr. Shaftel's testimony.
He pointed out that all beneficiaries of a trust are entitled to
an accounting under AS 13.36.080 and any decanting should be
included in that accounting. Since 2013, the law has required
notice of decanting to the settlor if living, the persons who
have the power to remove the trustee who is exercising the
decanting power, and a qualified beneficiary. HB 208 does not
substantively change that rule. It does change the phrase "a
qualified beneficiary" to "at least one qualified beneficiary."
MR. HOMPESCH said he believes that a trustee who wants to abuse
the settlor's intent has ample opportunity to do so by making
outright distributions, perhaps contrary to the settlor's
intent, instead of using decanting. Notice is not required for
an outright distribution and if other beneficiaries review the
accounting and think it was outside the standard, those
resources are gone and there may not be much recourse other than
to sue the trustee. By contrast, if a beneficiary later objects
to a decanting, the money is still available; they can go to
court and ask that the monies be returned to the original trust.
Thus, the objections to HB 208 are unfounded, he said.
9:45:33 AM
MATT BLATTMACHR, Vice President, Peak Trust Company, Anchorage,
Alaska, stated that Peak Trust Company supports HB 208 but not
the proposed amendments. They may have unintended and negative
consequences. The bill has been four years in the making due to
its complexity and the desire to get the statute just right.
Peak Trust Company believes that the concerns of those who
oppose HB 208 have been considered and properly addressed under
other Alaska statutes or federal law, even if not expressly
stated in the bill. Further, Alaska statutes require a trustee
to discover and make effective the dispositive intent of a
grantor whether under a will or trust. That cannot be changed.
Additionally, a trustee has a duty to all beneficiaries. This is
an unchangeable right and the language in HB 208 cannot be
interpreted to say otherwise. He urged the committee to pass HB
208.
9:48:07 AM
BHREE ROUMAGOUX, Attorney, Shaftel Law Offices, Anchorage,
Alaska, said she has worked in estate planning, is a trustee,
and a beneficiary. She said the decanting statute needs to be
updated and it would not be difficult to get to something that
protects all parties and gives trustees the flexibility that's
required due to changes in tax laws and changes in life
situations. The statute should also allow people to do it in
ways that are not as costly as going to court for modification
of an irrevocable trust. She also opined that the fiduciary
standard in the proposed AS 13.36.158(e) should be modified so
it applies to all beneficiaries. The current language in that
subsection should not be passed.
9:51:07 AM
SUSAN BEHIKE FOLEY, President, University of Alaska Foundation,
and Chief Development Officer, UA System, Anchorage, Alaska,
related that before she moved to the university, she spent much
of her professional career as a trust and estate planning
attorney in Alaska. She stated that the University of Alaska is
concerned about the effect HB 208 could have on donations
Alaskans make to the university upon their deaths. Their donors
are primarily average Alaskans who prepare documents for their
estates believing that their wishes will be honored. Ensuring
that will happen is the university's concern. Because planned
gifts to the university are a vital source of revenue for the
university, they have been actively working to improve HB 208.
They have honed their recommendations to three suggested
changes:
• Clarify the trustee's fiduciary duties.
• Protect gifts to charities like the UA
Foundation, that are not claimed as deductions
for tax purposes.
• Require notice of decanting to charities to
ensure organizations like the UA Foundation are
not left out of the loop.
Without these changes, the University of Alaska Foundation
cannot support HB 208, she said.
9:54:04 AM
BETH CHAPMAN, Attorney, Juneau, Alaska, stated that she has been
a trust and estates attorney for 30 years and was intimately
involved in drafting HB 208 and she supports the original
version. It fulfills the settlor's intent and continues to
provide the protections to beneficiaries in existing law. It
will give trustees more flexibility to make changes to trusts
instead of outright distributions. This ultimately protects
beneficiaries.
She opined that the proposed amendments, including those from
the university, would not improve the bill. She pointed out that
any charitable gift for which a charitable deduction has been
taken cannot be changed going forward.
9:55:34 AM
JAMIE DELMAN, Attorney, Shaftel Law Offices PC, Anchorage,
Alaska, stated that he was strongly opposed to HB 208 and wanted
to comment on some of the supporting testimony. Mr. Blattmachr
and Ms. Chapman noted that intent is not jeopardized by this
bill but Section 14 deletes the language that prevents a
decanting if there is substantial evidence of a contrary intent
of the settlor. Ms. Chapman also noted that charitable gifts for
which a deduction has been claimed would be protected but many
Alaskans make charitable gifts as remainder beneficiaries in
their trust documents or they don't need a charitable deduction
because they don't have over $11 million in assets. Mr. Hompesch
also argued that beneficiaries can request an accounting. This
is true if the beneficiary knows they are a beneficiary but that
is not always the case. It is difficult to imagine how they
could request an accounting from a trust they don't know
anything about, he said. The argument that the assets are
protected in a distribution in further trust is unfounded in the
sense that a beneficiary could be completely cut out under HB
208 and know nothing about it until years later when much of the
money may already have been spent.
He reiterated that he strongly opposes HB 208.
9:58:57 AM
ANNE HELZER, Attorney, Anchorage, Alaska, stated that she
opposes HB 208 as currently drafted. She advised that over the
last eight years she has assisted hundreds of Alaskans in the
area of estate and trust planning and she finds it concerning
that she only learned of this bill a month ago. She pointed out
that abuse by fiduciaries is neither an unforeseeable event nor
is it uncommon, especially among the elderly. She opined that
the decanting of a trust should only happen in limited
circumstances and for very good reasons. Flexibility may be a
good thing but checks and balances are needed. Earlier testimony
that disputes could be pursued in court underestimates the cost
involved to a beneficiary to bring an action in court. It's a
David and Goliath situation, she said and reiterated her
opposition to HB 208 as currently drafted.
10:04:24 AM
ALEX SLIVKA, Chair, University of Alaska Foundation, Anchorage,
Alaska, said he wanted to echo the comments of Mr. Shaftel and
Susan Foley. He advised that the University of Alaska benefits
from a large number of planned gifts amounting to millions of
dollars that benefit UA programs, students, and campuses across
the state. In these times of tight state funding, this is a top
priority for the Foundation, the Board of Regents, and the
university leadership, he said.
He expressed concern that the current draft of HB 208 may have
unintended consequences. He urged the committee to adopt the
changes Ms. Foley described to help safeguard the University of
Alaska Foundation and a crucial source of funding.
10:05:48 AM
VANCE SANDERS, Attorney, Juneau, Alaska, said he has practiced
in Alaska since 1984 and a significant portion of his practice
is representing disabled people. He noted that the statute Mr.
Hompesch referenced that allows decanting has been very helpful
in meeting the changing requirements for SSI benefits that many
of his clients rely on. He stated strong support for HB 208 as
written.
10:07:19 AM
ABIGAIL O'CONNER, representing self, Anchorage Alaska, said she
supports HB 208 without any of the proposed amendments. However,
that does not mean she and other supporters wouldn't be willing
to work with their colleagues on further amendments. It's that
the amendments proposed so far have issues She opined that the
notice requirement is not a change. The language in existing
statute says notice is to be given to "a qualified beneficiary"
and the bill clarifies that to say, "at least one qualified
beneficiary." She opined that beneficiaries are entitled to
notice and that it's reasonable for a beneficiary to
specifically request notice if a trust is ever decanted.
She pointed out that decanting is in current statute and there
are existing concerns over abuse. These concerns should not
stand in the way of enhancing the decanting statutes. The
flexibility this bill proposes will be very helpful. If a
trustee wants to frustrate the settlor's intent, they can do so
by distributing all the assets outright to one beneficiary, by
improperly managing the money, or by improperly investing. There
are already remedies for these potential abuses of trust and
there would be a remedy for this one two. She reiterated her
strong support for HB 208.
10:10:17 AM
PAUL KARLKAUFMAN Attorney, Shaftel Law Offices, Anchorage,
Alaska, said he practices estate planning and charitable giving
and he represents nonprofit organizations. He is also a member
of the Anchorage Library Foundation Board and wanted to focus on
the charitable implications of HB 208. He advised that the
Alaska Chapter of Fundraising Professionals has asked for more
time to consider the effect of HB 208 because they only learned
about it last month. If there was a serious intention to ask for
the input of stakeholders, they should have an opportunity to
speak.
MR. KARLKAUFMAN stated opposition to HB 208 and outlined its
impact on Alaska charities.
• Section 4 gives a trustee authority to change the
charitable beneficiary despite contrary donor intent.
• Section 14 deletes the provision in existing law that
prohibits decanting where there is substantial evidence of
the contrary intent of the donor.
• A donor's intent is protected under Section 16 only if a
charitable deduction applies. It does not protect an
identified charity. Only the ultra-wealthy would be
protected. Even if a charitable deduction is claimed,
Section 16 does not prevent a trustee from changing the
charitable beneficiary.
• The lack of notice to all beneficiaries in Section 20 means
an Alaska charity will almost certainly not receive notice
if it has been removed as a beneficiary. Charities are
often not aware they are a beneficiary until the trustee
notifies them.
MR. KARLKAUFMAN concluded that lack of notice, change in the
fiduciary standard, removal of the requirement to honor the
donor's intent, minimal protection of charitable deductions, and
the retroactive application of HB 208 all place Alaska charities
at risk.
10:13:59 AM
MICHAEL CAVLALIERE, Attorney, Fairbanks, Alaska, said he
supports the original draft of HB 208. The changes made to the
decanting statute will allow flexibility and give trustees the
ability to respond to changing circumstances in a beneficiary's
life or changes in the tax laws. The decanting provision allows
these changes to be made in a cost-effective manner. He said he
understands the concerns voiced about abuse, but trustees have
the duty to always act in the best interest of the beneficiaries
and that is not being changed or eliminated. Also, there is
already ample opportunity for abuse under current laws such as
outright distributions to one beneficiary to the exclusion of
the others. No notice is required in that circumstance He
reiterated his support for HB 208.
10:15:53 AM
CHAIR COGHILL closed public testimony on HB 208 and held the
bill in committee. He noted that he would be looking for a
pathway forward.
HB 123-DISCLOSURE OF HEALTH CARE COSTS
10:16:45 AM
CHAIR COGHILL announced the consideration of HB 123. [SCS CSHB
123(HSS) was before the committee.]
10:17:11 AM
REPRESENTATIVE IVY SPOHNHOLZ, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 123, said this bill is a first step in the
marathon to address health care costs in Alaska. The first
health insurance in the U.S. was created in 1930 and Medicare
and Medicaid were added in 1965. She said no one measure will
resolve the complex problem of paying for health care, but HB
123 is a first bite at the apple that gives more power to
consumers. She continued to introduce HB 123 speaking to the
following sponsor statement:
HB 123 empowers consumers to make informed decisions
about their health care options by ensuring accessible
information on medical pricing. The bill will require
health care providers to publish health care price
information in public spaces and on their websites and
to submit that price information to the Department of
Health and Social Services. Individual providers must
disclose the total undiscounted costs of their 25 most
commonly provided health care services and procedures.
Larger medical facilities would provide the same price
information for their 50 most common health care
services and procedures.
Alaska has the second most expensive health care costs
per person in the nation as a result of a small
insurance market with limited provider competition.
Health care spending in Alaska increases faster than
the rate of inflation despite the fact that Alaska's
use of health care services is lower than the
nationwide average.) Because of the murkiness around
health care prices, consumers have little power to
influence the cost of desperately needed medical
services.
Medical price transparency across the nation could
2
save the U.S. $36 billion in health care spending.
More than 30 states are pursuing legislation to
increase price transparency across the nation;
however, Alaska currently has no price transparency
law in place. Price transparency can allow consumers
to take financial control of their health care and
exercise more choice in their providers. Transparency
can also begin the public dialogue between
stakeholders in the health care industry regarding the
variation of health care costs within Alaska.
HB 123 provides a simple approach to comprehensive,
consumer-friendly health care price information for
consumers. It may also help reduce the price of health
care spending and increase the accessibility to
quality health care, while being unburdensome to
health care providers and facilities. Empowering
consumers with price information allows patients to
compare providers and "shop" for high-value, cost-
effective care. While health care prices are
negotiable, health care is not. Alaskans deserve to
know what health care services and procedures will
cost before they step into the doctor's office.
REPRESENTATIVE SPOHNHOLZ advised that during the Interim they
made some changes to the bill that passed the House. Originally
the bill required only undiscounted prices (rack rate) to be
posted. Doctors pointed out that most consumers do not pay that
rate and the Senate Health and Social Services amended the bill
to list Medicaid rates so a range of prices are described. The
bill now also allows a disclaimer that says the actual rate may
be different than the listed rates. The billing office or
insurance company would have the complete information. She noted
that health care providers have broad discretion in what the
disclaimer says.
Another new provision is for a good faith estimate that is
similar to the Municipality of Anchorage ordinance. This would
be given to consumers on request. One difference is that
inpatient and emergency departments are not required to
immediately provide an estimate. The good faith estimate may
also be provided verbally if it meets the patient's needs.
Efforts were made to come up with something that is practical
and easy to implement. The list of most frequently offered
services will only need to be run once a year and posted by
January 30.
REPRESENTATIVE SPOHNHOLZ said HB 123 is not a silver bullet. It
will not bend the cost curve in health care this year, but it is
a good place to start.
10:24:35 AM
CHAIR COGHILL said he was flagging the use of Medicaid to
describe the range of prices for discussion at the next hearing.
10:25:21 AM
SENATOR WIELECHOWSKI said he believes the bill is a good step
forward but wonders about the next step.
10:25:44 AM
REPRESENTATIVE SPOHNHOLZ explained that the bill is designed to
put information into the community about health care costs to
hopefully incentivize further price transparency and the way
care is paid for. Health care in the U.S. isn't really an
option. Rather, it's sick care. Health care providers are paid
to give care when consumers are sick. Helping people to get and
stay healthy isn't incentivized. She noted that she and other
legislators are looking at ways to explore value-based
compensation so health care providers are incentivized to help
people get healthier.
CHAIR COGHILL said his first response to the bill was more
negative than positive because he questioned the value to the
consumer. He acknowledged that he was coming around. He asked
for sectional review.
REPRESENTATIVE SPOHNHOLZ said she appreciates the time he has
taken to learn about the bill. Health care is a very complex
subject.
10:29:13 AM
BERNICE NISBETT, Staff, Representative Ivy Spohnholz, Alaska
State Legislature, Juneau, Alaska, reviewed the following
sectional analysis for HB 123, version 30-LS0380\B:
Section 1
AS 18.15.360.
Subsection (a) (p. 1, line 14, p. 2, line 1): has been
amended to authorize the Department of Health and
Social Services (DHSS) to collect, analyze, and
maintain databases of information related to health
care services and price information collected under AS
18.23.400.
Section 2
AS 18.23.400.
(p. 2, line 4): this is a new section that mandates
the disclosure and reporting of health care services
and price information.
Subsection (a) (p. 2, lines 7-16): providers will
compile a list of the 25 most commonly performed
health care services from the previous year and for
each of the services state the procedure code, the
undiscounted price, facility fees, and the payment
rates for Medicaid.
Subsection (b) (p. 2, lines 17-25): facilities will
compile a list of the 50 most commonly performed
health care services from the previous year and for
each of the services state the procedure code, the
undiscounted price, facility fees, and the payment
rates for Medicaid.
Subsection (c) (p. 2, line 26-31): if a provider or
facility has fewer than 25 or 50 health care services
performed, respectively, the provider or facility will
compile a list of all health care services performed
with the procedure code, undiscounted price, facility
fees, and the payment rates for Medicaid.
Subsection (d) (p. 3, lines 1-7): a provider in a
group practice is not required to compile and publish
a price information list if the group practice
compiles and publishes a list, and the prices and fees
that the provider charges are reflected in the list
published by the group practice.
10:30:59 AM
CHAIR COGHILL said he looks for some modification of that
provision.
10:31:06 AM
MS. NISBETT continued.
Subsection (e) (p. 3, lines 8-30): providers and
facilities will publish their list each year by
January 31stand submit the list to DHSS along with
their name and location. The lists will be posted in
font size no smaller than 20, in a public area with
the DHSS website address listed, and a statement
explaining that the price posted may be higher or
lower than the amount paid by the patient. The list
will also include a statement that says the patient
will be provided an estimate upon request, and the
provider or facilities' in-network preferred provider.
Lastly, the lists will be posted on the website of the
facility or provider if they have one.
10:31:49 AM
CHAIR COGHILL asked if it will also list an in-network.
MS. NISBETT answered yes; it will list the in-network preferred
provider for the facility or provider. Responding to a further
question she agreed that in a hospital the posting could list
multiple providers.
MS. NISBETT continued.
Subsection (f) (p. 3, line 31, p. 4, lines 1-4): once
a year, DHSS will gather the compiled lists from the
health care providers and facilities and post the
information on their website. The lists will also be
entered into the DHSS database under AS 18.15.360(a).
Subsection (g) (p. 4, lines 5-25): when a patient
requests a good faith estimate (GFE) of nonemergency
health care services, the provider, facility, or
insurer will have 10 days to provide the GFE verbally,
in writing, or by electronic means. If the GFE is
received verbally, the provider, facility, or insurer
will keep a record of that GFE. The provider,
facility, or insurer is not required to disclose the
total charges for the anticipated course of treatment
but should provide a portion of the total charges of
the course of treatment, or a range of the charges for
the anticipated service if the provider or facility
cannot reasonably assess what the services should be.
Subsection (h) (p. 4, lines 26-31, p. 5, lines 1-17):
a GFE must include a brief description in plain
language of the health care services, products,
procedures, and supplies, the in-network preferred
providers, the procedure code, facility fees, and the
suspected identity of others that may charges for a
service, product, procedure or supply in connection
with the nonemergent health care service, along with
an explanation of whether the charges are included are
in the GFE.
Subsection (i) (p. 5, lines 18-21): a provider,
facility, or insurer that provides an GFE will not be
liable for damages if the GFE is different from the
amount charged to the patient.
Subsection (j) (p. 5, lines 22-25): a facility that is
an emergency department will not be required to
provide a GRE or post that they will provide GFE upon
request.
Subsection (k) (p. 5, lines 26-31, p. 6 lines 1-2):
Civil penalties for providers and facilities that do
not comply with posting the price information in
subsections (a) through (e) will be $100 a day after
March 31st. This amount will not exceed $10,000. Civil
penalties for providers, facilities, or insurers who
do not provide a GFE upon request in subsections (g)
and (h) after 10 business days will be $100 a day but
will not exceed $10,000.
Subsection (l) (p.6, lines 3-5): providers and
facilities that are penalized are entitled to a
hearing conducted by the office of administrative
hearings.
Subsection (m) (p. 6, lines 6-8): municipalities may
not enforce an ordinance that imposes health care
price disclosure requirements inconsistent with the
regulations in Section 2.
CHAIR COGHILL offered his understanding that this is fairly
close to the Municipality of Anchorage ordinance.
REPRESENTATIVE SPOHNHOLZ confirmed that this was modeled on that
ordinance.
MS. NISBETT continued.
Subsection (n) (p. 6, lines 9-31, p. 7, lines 1-21):
health care facility excludes the Alaska Pioneers'
Home, the Alaska Veterans' Home, an assisted living
home, a long-term care nursing facility licensed by
the department, a hospital operated by the United
States Department of Veterans Affairs, the United
States Department of Defense, or any other federal
institution are described. Department, facility fee,
health care facility, health care insurer, health care
provider, health care service, nonemergency health
care service, patient, third party, and undiscounted
price are also defined.
Section 3
(p. 7, lines 22-26): An individual who has health
insurance can request a GFE of nonemergency health
care services and receive the same information listed
in subsection (g) and (h).
Section 4
(p. 7, lines 27-31, p. 8 line 1): The DHSS can adopt
regulations to implement the changes in this Act.
Section 5
(p. 8, line 2): Section 4 of this Act will take effect
immediately.
Section 6
(p. 8, line 3): Except for Section 5 of this Act, the
effective date is January 1, 2019.
10:38:00 AM
CHAIR COGHILL outlined the path for the next hearing and held HB
123 in committee.
10:38:09 AM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Committee at 10:38
a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 123 - Explanation of changes (ver. O to ver. B).pdf |
SJUD 4/19/2018 9:00:00 AM |
HB 123 |
| HB 123 - Letters of Opposition.pdf |
SJUD 4/19/2018 9:00:00 AM |
HB 123 |
| HB 123 - Letter of Support - Fairbanks Chamber.pdf |
SJUD 4/19/2018 9:00:00 AM |
HB 123 |
| HB 123 - Letters of Support.pdf |
SJUD 4/19/2018 9:00:00 AM |
HB 123 |
| HB 123 - Sectional Analysis (ver. B).pdf |
SJUD 4/19/2018 9:00:00 AM |
HB 123 |
| HB 123 - Sponsor Statement.pdf |
SJUD 4/19/2018 9:00:00 AM |
HB 123 |
| HB 123 - Supporting Document - ADN Article.pdf |
SJUD 4/19/2018 9:00:00 AM |
HB 123 |
| HB 123 - Supporting Document - Health Care Price Transparency Laws.pdf |
SJUD 4/19/2018 9:00:00 AM |
HB 123 |
| HB 123 - Supporting Document - How Price Transparency Can Control the Cost of Health Care.pdf |
SJUD 4/19/2018 9:00:00 AM |
HB 123 |