Legislature(2001 - 2002)
03/14/2002 01:35 PM Senate L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE LABOR & COMMERCE COMMITTEE
March 14, 2002
1:35 p.m.
MEMBERS PRESENT
Senator Ben Stevens, Chair
Senator Alan Austerman
Senator Loren Leman
Senator John Torgerson
Senator Bettye Davis
MEMBERS ABSENT
All Members Present
COMMITTEE CALENDAR
SENATE BILL NO. 220
"An Act relating to the scope of practice authorized under a
license to practice hairdressing."
HEARD AND HELD
CS FOR HOUSE BILL NO. 276(L&C)
"An Act relating to temporary permits and licenses by endorsement
issued by the Board of Nursing; and relating to the delegation of
nursing duties."
MOVED SCSHB 276(L&C) OUT OF COMMITTEE
SENATE BILL NO. 283
"An Act relating to temporary permits and licenses by endorsement
issued by the Board of Nursing; and relating to the delegation of
nursing duties."
HEARD AND HELD
CS FOR SENATE BILL NO. 265(TRA) "An Act relating to physician
assistants; providing that a physician assistant is a health care
provider covered by certain laws relating to medical malpractice
actions; adding physician assistants to the list of providers
against whom unfair discrimination relating to health care
insurance is prohibited and to the list of providers who can
provide proof of disablement or handicap for the purpose of motor
vehicle registration or for the purpose of obtaining a special
license plate or a special parking permit; and providing for an
effective date."
MOVED CSSB 265(TRA) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 274(L&C)
"An Act relating to the qualification of a physician used for an
employer's independent medical examination and to the authority
of the Alaska Workers' Compensation Board to provide an expedited
hearing when an employee needs medical treatment; and providing
for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
SB 220 - No previous action to record.
SB 283 - See HESS minutes dated 2/27/02.
HB 276 - No previous action to record.
SB 265 - See Transportation minutes dated 2/19/02.
HB 274 - No previous action to record.
WITNESS REGISTER
Ms. Jeri McIntosh
Staff to Senator Lyda Green
State Capitol Bldg.
Juneau AK 99811
POSITION STATEMENT: Commented on SB 220 for sponsor.
Ms. Beatrice Caujolle
Owner and Aesthetician
A Certain Charm Institute of Skin Care
Merchants Wharf, Ste 209
Juneau AK 99801
POSITION STATEMENT: Supported SB 220.
Ms. Catherine Reardon, Director
Division of Occupational Licensing
Department of Community and Economic Development
PO Box 110806
Juneau AK 99811
POSITION STATEMENT: Commented on SB 220.
Representative Peggy Wilson
State Capitol Bldg.
Juneau AK 99811
POSITION STATEMENT: Sponsor of HB 276.
Ms. Lynn Hartz
Board of Nursing
3104 Brookside
Anchorage AK 99517
POSITION STATEMENT: Supported HB 276.
Ms. Nancy Davis, Chief
Public Health Nursing
Department of Health and Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Supported HB 276.
Ms. Patricia Senner, President
Alaska Nurses Association
2207 E. Tudor Rd.
Anchorage AK 99507
POSITION STATEMENT: Supported HB 276.
Senator Donald Olson
State Capitol Bldg.
Juneau AK 99801
POSITION STATEMENT: Sponsor of SB 265.
Mr. Ed Hall, Physician Assistant
Academy of Physician Assistants
13601 Windward Circle
Anchorage AK 99516
POSITION STATEMENT: Supported SB 265.
Ms. Susan Mason-Bontuse, Executive Director
Sunshine Community Health Center
PO Box 787
Talkeetna AK 99676
POSITION STATEMENT: Supported SB 265.
Mr. John Riley, Chairman
Alaska Primary Care Association
6411 Italy Circle
Anchorage AK 99516
POSITION STATEMENT: Supported SB 265.
Ms. Elizabeth Ripley, Director
Community Health Planning
Valley Hospital
PO Box 1687
Palmer AK 99645
POSITION STATEMENT: Supported SB 265.
Ms. Rynnieva Moss
Staff to Representative Coghill
State Capitol Bldg.
Juneau AK 99811
POSITION STATEMENT: Commented on HB 274 for the sponsor.
Ms. Barbara Williams
Alaska Injured Workers
PO Box 101093
Anchorage 99510
POSITION STATEMENT: Opposed HB 274.
Ms. Laura Jackson, Claims Manager
University of Alaska
3890 University Lake Dr.
Anchorage AK 99508
POSITION STATEMENT: Opposed section 2 of HB 274.
Mr. David Tweden
1403 W. 40th Ave.
Anchorage AK 99503
POSITION STATEMENT: Opposed HB 274.
Ms. Murlene Wilkes
Harbor Adjusting Service
236 W. 10th
Anchorage AK 99501
POSITION STATEMENT: Opposed section 2 of HB 274.
Ms. Susan Daniels
Northern Adjusters
800 E. Dimond #3-470
Anchorage AK 99507
POSITION STATEMENT: Opposed section 2 of HB 274.
Mr. Tim McKeever, Atty.
701 W. 8th Ave.
Anchorage AK 99502
POSITION STATEMENT: Opposed sections 1 and 2 of HB 274.
Ms. Kathy Collins, Claims Administrator
ARECA Insurance Exchange
703 W. Tudor #101
Anchorage AK 99503
POSITION STATEMENT: Opposed section 2 of HB 274.
Ms. Clarice Hiratsuka
Umialik Insurance Co.
4300 Boniface #201
Anchorage AK 99504
POSITION STATEMENT: Opposed section 2 of HB 274.
Mr. Mike Klawitter, Director
Risk Management
Anchorage School District
PO Box 196614
Anchorage AK 99516
POSITION STATEMENT: Opposed section 2 of HB 274.
Mr. Paul Grossi, Director
Division of Workers' Compensation
Department of Labor & Workforce
Development
PO Box 21149
Juneau, AK 99802-1149
POSITION STATEMENT: Supported HB 274.
ACTION NARRATIVE
TAPE 02-11, SIDE A
Number 001
SB 220-SCOPE OF PRACTICE OF HAIRDRESSING
CHAIRMAN BEN STEVENS called the Senate Labor & Commerce Committee
meeting to order at 1:35 p.m. and announced SB 220 to be up for
consideration.
Ms. Jeri McIntosh, Staff to Senator Lyda Green, sponsor of SB
220, said there was a proposed committee substitute that the
sponsor wanted to be adopted for discussion purposes.
SENATOR AUSTERMAN moved to adopt the CS to SB 220. There were no
objections and it was so ordered.
MS. MACINTOSH explained:
CSSB 220 amends AS 08.13.170(f), which authorizes the
Board of Barbers and Hairdressers to issue a
hairdressing license that includes the temporary
removal of superfluous hair on the face and neck and
the application of basic make-up. These services are
typically assumed to be available from a hairdresser.
The removal of unwanted hair by means of hair waxing
and the application of basic make-up are services that
hairdressers should be allowed to practice.
Hairdressers are trained and tested in these areas and
have always performed these services. Both waxing and
basic make-up are a part of the curriculum required to
graduate. By statute, current training required for a
hairdressing license is 1650 hours. Included in the
1650 hours are fifteen practical operations of eyebrow
arching and hair removal by means of waxing, tweezing
and the use of depilatories and fifteen basic make-up
applications including skin analysis, complete and
corrective make-up and the application of false
eyelashes (12 AAC 09.160). Although the curriculum
requires that they perform these operations during the
instructional phase, once they are licensed, Alaska
state law prohibits them from performing either service
for their clients.
I respectfully request your support of CSSB 220,
allowing trained professionals to continue a practice
that they are fully qualified to do.
MS. BEATRICE CAUJOLLE, Owner and Aesthetician of A Certain Charm
Institute of Skin Care, said:
Mr. Chairman, this regards the committee substitute for
SB 220. I'm writing to comment on the proposed
amendments to the statutes governing occupational
licensing contained in CSSB 220. I've been an
aesthetician and an instructor for 13 years and have
received substantial supplementary training in Europe
and the United States to stay current with the rapid
new developments in my field and to acquire the skills
to be able to safely make these advances available to
my clients.
Many skin problems and conditions can now be
successfully treated by a well-trained aesthetician,
but previously would have had to be treated by a
physician at a much greater cost. For example, we now
have in cosmoceuticals collagen applications, elastin
applications, chemical exfoliations, such as glycolic
acids, enzyme peels, light chemical peels. We also have
creams and lotions with higher levels of active
ingredients that are available over the counter. In
addition, there are numerous electrical devices such as
lymphatic drainage assisting pumps, high frequency
stimulators, facial toners, microdermabrasion, steamer
and ozone procedures, electric brushes and exfoliating
aids.
The field of aesthetics is one which is growing
increasingly technical and increasingly effective as
new technologies are brought to bear. Several
developing technologies that have promise of great
benefits for clients are on the horizon. For example,
new technologies include safe low-level laser hair
removal devices that until now only the powerful and
expensive lasers that are required by physicians were
available. The cost of the machines alone kept small
towns like Juneau from being able to have such
services. Another device, the Lam Probe, is for safe
removal of surface capillaries and minor imperfections.
Because of this, the direction of licensure of the
field of esthetics should be in the direction of
further defining this growing and changing field so
that the public is both protected and has available at
reasonable cost the advantages of the many advances in
the esthetics field.
The proposed amendment to increase the licensed
practice of a hairdresser to include limited esthetics
is a move in the opposite direction of the field's
movement. The main activity - training and experience
of the hairdresser - is as a hairdresser. The training
needed for the most basic tasks of an aesthetician is
probably provided in a hairdresser's training so a
hairdresser could safely perform them. However, that's
not true of many, if not most, procedures beyond the
most basic, which requires specific training to be used
safely and/or effectively. For that reason I feel the
licensure of an aesthetician should be entirely
separate from the hairdressers. This would also permit
the periodic review of each field as it develops and
allow amendments appropriate and needed for each field.
MS. CATHERINE REARDON, Director, Division of Occupational
Licensing, said her division staffs the Board of Barbers and
Hairdressers, which regulates aestheticians and hairdressers and
a number of other professions. She understands that the Board
supports hairdressers being permitted to do eyebrow waxing and
tweezing and make-up application, not the fuller range of
aesthetician services.
SENATOR AUSTERMAN asked if aestheticians are covered at all under
current law.
MS. REARDON replied that they are. There is a definition of what
the practice of esthetics is and an individual must have that
license in order to perform those functions. She thought the
issue was whether hairdressers should be permitted to do a
segment of the aesthetician's scope of practice. This bill
permits the hairdressers to perform limited esthetics as defined.
Possibly the definition of the limited aesthetician functions a
hairdresser could perform was too broad.
CHAIRMAN STEVENS said that aestheticians in Senator Green's
office and the Board had been trying to find a solution to some
of these issues and had proposed amendment #1. He asked if she
had seen the amendment.
MS. REARDON replied that she had.
CHAIRMAN TORGERSON asked her if the Board didn't favor the CS.
MS. REARDON replied that they hadn't seen the work draft, so they
took their position on the broader issue.
CHAIRMAN TORGERSON asked if she said they were in favor of
removing something, but that this goes farther than that.
MS. REARDON replied that she was concerned that the (b) section
went farther.
CHAIRMAN STEVENS noted that the amendment would bring it back.
SENTOR TORGERSON asked which Board regulated the people who do
this now.
MS. REARDON replied the Board of Barbers and Hairdressers. It's a
different license, but the same board. They license hairdressers,
barbers, aestheticians, manicurists and tatooists and body
piercers.
CHAIRMAN TORGERSON asked if they should repeal all of Title 8
that deals with barbers and hairdressers.
SENATOR AUSTERMAN asked if they need to be licensed.
MS. REARDON replied that industry and consumers seemed to think
so.
SENATOR TORGERSON moved to adopt amendment #1.
SENATOR AUSTERMAN wanted to know the difference between the
amendment and the existing CS language. They are deleting
"manual" and "electric tweezers".
MS. CAUJOLLE explained that they just simplified the explanation.
She said further:
Regarding the original bill with limited esthetics - In
13 we have (a) the removal - eyebrow arching by use of
wax. What is taken out is "manual or electric tweezers
or depilatories." Electric tweezers are essentially
electrolysis. So we really don't want that to occur
without another license actually. Depilatories - those
deal with skin again because of the skin irritations
that you can receive. So it would be best to not have
it in there. Then we have also the application of
makeup - we've taken out in (b) skin analysis. With
fifteen preparatory applications of makeup, there's no
way that a hairdresser can know skin. You need hours of
education to understand and analyze skin. So, we took
that out - to make it simple makeup application as if
an individual was going to get married and they want to
have the service done within the salon, not having to
go to different places. Everything is in one place.
That's why we went ahead and simplified it. So that
it's a simple application of makeup and false
eyelashes, if necessary. That's essentially the
difference.
CHAIRMAN STEVENS asked if there was objection to amendment #1
being adopted. There were no objections and it was adopted.
CHAIRMAN STEVENS asked where the amendment came from.
MS. CAUJOLLE added that it came from the Board.
CHAIRMAN STEVENS asked if everyone was in agreement.
MS. CAUJOLLE replied, "Yes, sir."
CHAIRMAN STEVENS said they would hold the bill to allow Senator
Green to look at it.
HB 276-REGULATION OF NURSING
SB 283-REGULATION OF NURSING
CHAIRMAN STEVENS announced HB 276 and SB 283, companion bills, to
be up for consideration. He said they would use the working draft
of HB 276 for discussion.
REPRESENTATIVE PEGGY WILSON, sponsor of HB 276, said:
HB 276 is essentially a cleanup bill that brings the
nursing statutes up to date with current nursing
practice in three different ways. One, it gives
licensed nurses the authority to delegate duties to
other unlicensed personnel. Two, it increases the
length of time available for a temporary nursing
license from four to six months just for the criminal
justice background checks. It takes a little longer now
than it used to because of that. And three, it changes
the wording regarding licensure by endorsement and
brings the wording in statute into compliance with
what's already being done in the division. I have the
whole nursing board behind me, so…
SENATOR TORGERSON asked if there was a definition of "assistive
personnel" in section 5 where it says they can delegate to
unlicensed assistive personnel.
REPRESENTATIVE WILSON replied that meant unlicensed assistive
personnel, like nurses aides or someone else that would be
working with a patient or a client.
SENATOR TORGERSON asked if that was defined in statute. He had no
objection to the way it was written in the sponsor statement -
unlicensed assistive personnel (UAPs) such as aides and
technicians -
MS. LYNN HARTZ, a nurse practitioner and member of the Board of
Nursing, responded:
Whether there is a definition in statute that
determines who is an unlicensed assistive personnel -
no, because by definition unlicensed assistive
personnel is someone who doesn't have a certificate or
a license to practice and has been historically and
currently. Perhaps I could back up a little bit, if I
may. I had some testimony that might help explain this
as far as giving licensed nurses the authority to
delegate nursing duties to other personnel. This came
about when the Board of Nursing was drafting
regulations on delegation last year and we were told at
that time that nurses did not have the authority to
delegate to assistive personnel whom in general we call
UAPs (someone without a license or certificate in this
state). Therefore, the Board could not write
regulations about delegation. The Board had always
assumed that nurses had this authority to delegate to
unlicensed assistants and it even published a position
statement on that with our statutes and regs in 1993.
So that's why we view it as a cleanup section because
it's giving the Board of Nursing and nurses the
authority we thought we already had.
An example of delegation might be a nurse asking a
nurses aide to run a urine test on a patient. The
nurse's aide has no legal scope of practice. Hence the
term unlicensed assistive personnel. The legal source
of the authority to do the nursing task, in this case a
urine test, is the licensed nurse, because the nurse
does have a legal scope of practice in the state. So
the nurse transfers or delegates that authority to the
unlicensed person, in this case to do a urine specimen.
Without the ability for the nurse to delegate nursing
tasks, the unlicensed assistants have no authority to
act. Therefore, without this legislation the UAPs who
are called patient care technicians at Providence
Hospital have no legal basis to continue to perform
nursing tasks that are delegated.
At the municipality of Anchorage, UAPs are called
family service aides. It seems to be that since they
are unlicensed and certificated, different employment
agencies give them different terminology. So, at
Anchorage Health Department, they are called family
service aides. They would not be able to perform
nursing tasks delegated by public health nurses. We do
have unlicensed assistive personnel defined, but it's a
part of the position statement written in 1993, which
the Board of Nursing was told it didn't have the
authority to write, because we didn't have statutory
authority to delegate to unlicensed assistive
personnel.
SENATOR TORGERSON said he would feel better if somewhere it said
"supervised". "Right now you can go out and get somebody off the
street and give them a job. That's the part that I don't like."
MS. HARTZ said the safety component is under the regulations
promulgated by the Board. There would be supervision by
registered and licensed nurses.
SENATOR AUSTERMAN said he understood that those regulations
hadn't been adopted yet.
MS. HARTZ replied, "Just because we don't have the statutory
authority to write regulations."
CHAIRMAN STEVENS said, "But you have the regulations."
MS. HARTZ responded, "We have some proposed regulations that
we've been working on, yes, that deal with supervision, yes."
CHAIRMAN STEVENS asked, "Are they ready to be adopted as
regulations now, then?"
MS. HARTZ replied, "No. I would say we still want to work on them
some more."
SENATOR TORGERSON said he didn't care what they had, he thought
it should be in the bill. "Supervised delegation" would be one
fix for defining the level of personnel you can do this to.
"Right now it's wide open."
CHAIRMAN STEVENS asked about the concept of section 5 going into
affect once the regulations are promulgated.
REPRESENTATIVE WILSON replied that's the main reason for the
bill. The nurses have the regulations, but there is nothing in
statute saying they could adopt them.
SENATOR AUSTERMAN said the Board currently has the authority to
write regulations.
MS. HARTZ replied, "Not regarding delegation of authority and yet
it's being done daily currently in public health hospitals,
clinics."
SENATOR DAVIS asked if the unlicensed personnel were certified to
work in a hospital. Someone indicated they aren't. She asked if
they could cover the issue by limiting the authority to people
who are employed by the facility.
SENATOR AUSTERMAN said that a hospital could use a janitor in
that instance.
MS. HARTZ responded that it was professionally inappropriate for
an RN to delegate in an inappropriate or unsafe manner. They have
been telling people while they are in this gray area of practice
to please go by appendix D in the back of the statutes, which
deals completely with delegation and licenses to personnel. They
would like to refine that and that is what she meant when she
said they didn't have those regulations ready to go.
CHAIRMAN STEVENS asked if this practice has already been going
on, why do they need it in statute.
MS. HARTZ replied that was a good question and the Nursing Board
was under the misapprehension that nurses had that authority all
along and that's why that appendix was written in 1993. The Board
submitted regulations to the Department of Law and were advised
them and the Attorney General that that needed to be in statute.
CHAIRMAN STEVENS asked if there's liability involved with
administering any sort of tests, does the liability trail follow
the delegation of authority and has anyone ever sued an
institution for having an adverse reaction to a drug.
MS. HARTZ replied that it is the nurse's responsibility. Her
license would be at stake if something like that happened. The
three categories of unlicensed assistive personnel are identified
as follows:
Those who nurses supervise and to whom they delegate
some activities to, those who nurses teach, but do not
supervise to those who are not directly or indirectly
supervised or taught by nurses.
SENATOR TORGERSON said he thought they should adopt the suggested
language and that would clarify the whole thing. He suggested
replacing section 5 with some of the language.
SENATOR TORGERSON moved a conceptual amendment on page 60 where
the unlicensed assisted personnel is defined. There were no
objections and that amendment was adopted.
MS. NANCY DAVIS, Chief, Public Health Nursing, supported HB 276,
because it brings a number of protections to the public. The
language is good in terms of licensure and it makes a lot of
sense for them to look carefully at endorsement licensure and
making sure that there are current competencies. They are also
supportive of the delegation of nursing functions, because it's a
critical element of nursing practice already. It's essential to
rural health care, especially in this state, in that there aren't
licensed practitioners in all the villages and there are a lot of
health care that needs to occur through delegation.
MS. PATRICIA SENNER, President, Alaska Nurses Association,
supported SB 283. She said over the past 10 years there has been
an increase in the number and type of ancillary unlicensed health
care workers that RNs and LPNs delegate duties to and have
oversite over the work they perform.
It is imperative that we have regulations from the
Board of Nursing covering delegation of nursing tasks.
Nurses rarely hire or train the unlicensed personnel
they are required to work with, yet their employers
require them to make sure these persons perform the
tasks delegated to them in a safe and accurate manner.
Because these individuals are unlicensed, there is no
regulatory body overseeing their training and
competency.
In terms of the definition of unlicensed assistive personnel, she
said, there are family members who are hired under the Choice
program who take care of the patient and in those cases, they
would come under the authority of a registered nurse. It would be
different than a family member doing this out of the goodness of
their heart. She didn't know if there was wording saying the
caregiver had to be employed.
SENATOR TORGERSON was looking at the statute and said that it was
silent on that issue. Maybe they needed to think about that.
REPRESENTATIVE WILSON said the fact that it's not mentioned means
that it would mean anyone, whether they were employed or not.
SENATOR TORGERSON said:
That's not what this says. Not to belabor it. It says,
'The term also includes, but is not limited to
orderlies, assistants, attendants and technicians. For
the purposes of this delegation criteria, unlicensed
and assistive personnel do not include family members
of the client immediate family or guardians. So we have
to change that to say "may include" if we want to be
inclusive.
MS. REARDON asked why they need to go any further than the first
sentence of that definition, which says:
Unlicensed assistive personnel are individuals who are
not authorized to perform nursing acts or tasks that
are regulated by the Board of Nursing except pursuant
to legal delegation by a nurse.
SENATOR TORGERSON proposed amendment #2 to delete "do not" and
insert "may".
The Board is going to have to define it anyway because
those regulations were wrong for what they were doing
for delegation to people who were home and were family
members. If they're delegating that now, that can't
happen because they would be under the same law.
CHAIRMAN STEVENS asked why the regulations do not include members
of the client's immediate family.
MS. REARDON replied that this language never became regulation,
so it didn't go through the legal review process. "These are just
an advisory opinion of the Board of Nursing."
She said the reason it didn't include family members is because
of the last sentence, which says:
Family members and guardians have performed and
continue to perform these activities without specific
delegation.
I suspect they were trying not to constrict what family
members could do, since the rest of this advisory
opinion puts constraints and guidelines and rules about
the delegation.
She thought they were trying to say for family members it could
be a more flexible system.
CHAIRMAN TORGERSON said they don't write laws or regulations by
saying historically this is what happens. His conceptual
amendment left the last sentence out.
CHAIRMAN STEVENS asked if there were any objections to the
conceptual amendment.
TAPE 11, SIDE B
SENATOR DAVIS said they shouldn't put family members in there,
because they could come back on the nurses. "How can they
supervise them if they're doing it at home. The nurses are in the
hospitals working…"
SENATOR TORGERSON said he thought the family members were being
paid, which is a big difference and he didn't think they were
performing procedures.
MS. SENNER said that was the point she was making.
Family members are trained by nurses and other health
care professionals to do all kinds of advanced care,
giving I.V.s or someone comes home on a respirator and
the family member takes care of the respirator. The
issue only comes into play when they are hired, such as
under the Choice program and then they do come under
the authority of a nurse.
She thought they should say: "Unlicensed assistive personnel or
individuals who are hired to perform health care services."
You would have the employment part in there, too.
SENATOR TORGERSON said they could do that by regulation. His
objective was to define the personnel and he thought they had
done that by adopting the definitions. There is still clearly a
role for the Board of Nursing to play and the regulatory process
to implement this law.
CHAIRMAN STEVENS said there were no further objections to
amendment #2 and it was adopted.
REPRESENTATIVE WILSON supported the amendments.
SENATOR TORGERSON moved to pass SCSHB 276(L&C) from committee
with individual recommendations. There were no objections and it
was so ordered.
SB 265-PHYSICIAN ASSISTANTS/NURSE PRACTITIONERS
CHAIRMAN STEVENS announced SB 265 to be up for consideration.
SENATOR DONALD OLSON, sponsor of SB 265, said it names
physicians' assistants as bonafide health care providers. He
said:
As a physician, I have used physician assistants many
times, especially those that are experienced - are very
good resources to be depending on especially out in
rural Alaska where many of them are by themselves. The
reason I presented this is because I feel in order for
them to be recognized by the health insurance industry,
the health maintenance organizations and other health
care delivery entities out there - that they need to be
equivalent to other providers there so they can be paid
and continue on unencumbered by other aspects of the
health care delivery system. That is why I have
submitted this bill.
Section 1 amends AS 09.55.560(1) to add "physician
assistant" to the definitional clause for medical
liability statutes. Section 2 similarly amends AS
21.36.090(d) to include "physician assistant" as a
provider that may not be unfairly discriminated against
by a health insurance company, health maintenance
organization or other health delivery organization.
Section 3 responds to a third request of the academy.
It is to allow physician assistants to provide proof of
eligibility for a special, disabled veterans license
plate and for issuance of a parking permit for a
handicapped or disabled person. Eligibility is
currently provided by only physicians and advanced
nurse practitioners.
MR. ED HALL, Physician Assistant representing the Alaska Academy
of Physician Assistants, supported Senator Olson's comments on
the resolution. He said the question was raised whether this was
an attempt by physician assistants to become independent from
physicians and said:
I wanted to assure the committee that that's absolutely
and in no way accurate. All this is is a request for
recognition as a licensed provider in the state to be
included in the statute…. We don't feel as if we've
been excluded for anything vindictive or anything, but
I think these statutes were actually written years ago
before physician assistants were a recognizable
treating provider within the state. So I think this is
more of a housecleaning type of thing and bringing the
current statutes up to date…
MS. SUSAN MASON-BONTUSE, Executive Director, Sunshine Community
Health Center, supported SB 265. They are a mid-level clinic with
four physician assistants providing primary care in a rural
setting. They are working under a collaborative agreement with a
doctor in Wasilla.
These providers are critical to the on-going health
care of residents in the communities that we serve as
well as to the on-going functioning of our health
center. Because our current statutes do not include
physician assistants in the listing of health care
providers, we periodically have our billing for medical
services by these medical providers denied by third
party payers…This can represent a significant barrier
to health care. This can represent a barrier for
individuals with health insurance as well as to clinics
in terms of being able to maximize our potential
remedies - particularly for small rural health clinics…
MR. JOHN RILEY, Chairman, Alaska Primary Care Association,
supported SB 265. They exist to provide support to clinicians who
serve patients regardless of their ability to pay.
P.A.s provide a significant share of health care
services in small communities in rural Alaska and there
are several rural clinics that are staffed exclusively
by P.A.s. There are many examples of insurance
companies who are refusing to reimburse services
provided by the P.A.s because of not being on this
list. This may require insured patients to travel
outside their communities to obtain needed health care.
So ironically this creates a barrier to access for
insured patients. We urge the committee to approve this
legislation and remedy this oversight…
MS. ELIZABETH RIPLEY, Director, Community Health Planning, Valley
Hospital, fully supported SB 265 and explained that P.A.s staff
local physician offices in Wasilla and Palmer. They also staff
rural clinics such as Sunshine Community Health Center in the
Upper Susitna Valley.
Especially in our rural areas, these P.A.s work out of
sense of mission and they provide services where most
doctors would not choose to set up a practice due to
[indisc] and volume of patients. So, the mid-levels in
terms of the P.A.s are a critical piece of our mid-
level providers. This is especially important in light
of the health care workforce shortage.
SENATOR LEMAN moved to pass CSSB 265(TRA) from committee with
individual recommendations. There were no objections and it was
so ordered.
HB 274- WORKERS' COMP: HEARING/MEDICAL EXAM
CHAIRMAN STEVENS announced HB 274 to be up for consideration.
MS. RENIEVA MOSS, Staff to Representative Coghill, said that HB
274 does two basic things.
It changes a statute that currently requires a
physician who performs an IME to reside in the state
that he is licensed in. HB 274 changes it so that he
would be required to be licensed in the state that he
performs the examination in. The second thing it does
is provides that if an injured worker has a medical
condition that is not receiving medical treatment, that
injured worker can request an expedited hearing from
the Workers Comp Board. At the point of that request,
it would be up to the staff of Workers' Compensation to
determine if there is a need for medical attention and
if they make that determination, they may schedule an
expedited hearing. Under the existing system, an
average hearing takes about 138 days to be heard. If
there is a medical condition that needs medical
attention, 138 days can make a lot of difference in
whether or not that injured worker will recover. It
just gives the Workers' Comp. Board a mechanism to
prioritize Workers' Comp. cases and to expedite
hearings if medical attention is not being received.
MS. BARBARA WILLIAMS, Alaska Injured Workers Association, urged
them to reconsider the amendments they have requested.
The offerings that you have made to workers are very
inadequate. I would like offer you some information so
that you can make some informed changes that will
benefit workers and not insurers. Workers understand
the need the insured employers have to have the right
to examine workers by their own doctors. We understand
insurers and employers want and need a second opinion.
This would be an excellent check and balance if the
language were adjusted to indicate more protection for
workers. What that would look like is a licensed
physician licensed in the state of Alaska. Licensing
held in Alaska [indisc] for Workers' Compensation. When
we leave the state and we use physicians outside the
state, they do not know the requirements for Workers'
Compensation under the state. This would mean that
physicians flying to Alaska must be licensed to
practice in this state. Additionally, physicians not
licensed outside the state would provide [indisc] proof
of license and bond in the state in which the
examination occurs. Any sanctions must be noted and the
workers informed before the examination commences. A
panel of physicians must be approved by the Alaska
Workers' Compensation Board before an employee would
have to submit to this examination. Right now in their
second independent medical process they have over 40
doctors. That's the most doctors they have ever had in
a panel since I've been working with workers informally
for four years and over the fifteen years I have
actively been doing this.
Most workers are subject to panels of physicians with
many different specialties. Currently, workers do not
have the ability to appoint panels of doctors. In the
mean time, the workers are subject to [indisc] mental
psychiatric examinations and have no idea that they're
being seen for these types of mental diagnosis. There's
also no legal requirement for anybody to produce or
read our medical records for injured workers. Often
insurers hire nurse case managers to summarize the
medical records or pass the information along to the
independent medical examiner. We have found through
independent research that workers have questioned these
doctors and discovered the independent medical
evaluators had never looked at their records in some
cases. The legal requirement is only attached for the
Board to have to arrange for the second opinion that
the employer pays for.
A little known fact about this is that the fees and
services are under the reasonable and customary fees
schedule and an opinion only has a billable rate of
$350. Any other fee must be approved by the Board. If,
in fact, the insurers [indisc] fees that begin at
$1,200 and are moving up into the tens of thousands of
dollars.
Ensurers are able to manipulate the medical care the
injured workers receive. There is currently no
protection for workers in this area.
There needs to also be a legal requirement that all the
records that will be relative the client be reviewed by
the independent medical evaluator. There is currently
no such regulation for independent medical evaluators.
If an employee refuses an examination, a hearing should
be held to conclude if the employee had a good reason
for not submitting to the examination. In some cases
that I'm very familiar with, employees have to struggle
to fight to get childcare if they don't have someone to
take care of their children while they must leave the
state for these independent medical evaluations.
MS. WILLIAMS also explained that people with little
cognitive brain injuries could experience barriers such as
reading, language and cultural barriers absolutely have no
protection and they have found that Alaska has the lowest
paid attorneys representing employees.
CHAIRMAN STEVENS informed her that she was addressing issues
outside of the bill that was before the committee.
MS. WILLIAMS concluded that she didn't support the legislation
because it doesn't offer adequate protection for workers.
2:50 p.m.
MS. LAURA JACKSON, Claims Manager, University of Alaska,
said that HB 274 proposed two changes to the Workers
Compensation Act.
The first is that all physicians performing an
examination requested by the employer or the board be
licensed to practice medicine in the jurisdiction in
which the examination occurs. Although this requirement
does not impose that same requirement on the employee,
I could think of no adjuster or board member who would
object to this requirement. On the contrary, it is in
the best interests of all [indisc]…
The problematic area of the proposed amendment is
section 2 regarding the expedited hearings. It has been
noted that the Board does not have a member with
medical expertise. I believe it would be extremely
difficult to find a competent medical expert willing to
volunteer this significant amount of time for the work
this amendment would generate.
During public testimony, Paul Grossi, the Director of
the Alaska Workers Compensation Board, advised the
Board it relies on a lot of medical expertise involved
[indisc]. "Doctors' testimony and doctors' reports and
doctors' depositions." I would like to point out the
expedient time frame would preclude the development and
provision of such information for the board's use and
consideration. In other words, they would only have the
information from the employee's doctor with no
independent inputs - not even from the boards own
independent examination.
According to statistics generated by the Alaska Workers
Compensation Board, the vast majority of work comp
claims are handled quickly by adjusters. There is only
a very small percent, possibly about 1%, where a
concern arises regarding coverage. I might note in the
Act it requires clear evidence in the possession of the
adjuster in order to controvert a claim. If the
coverage is clearly questionable, how can the employer
now be denied their due process? For that is exactly
what is being proposed in this amendment. This will
increase litigation by denying the adjuster the
opportunity to have an independent medical evaluation
that can clear up the issue and allow continued
coverage without litigation and by encouraging
countless more cases to have expedited hearings
followed by inevitable appeals. The cost of this
amendment is incalculable.
First, the Board will have a greatly increased workload
to handle these hearings and the litigation, which will
follow. Second, the employer will be forced into what
may have been the unnecessary litigation of a hearing
and possible appeal. This would have a devastating
impact on the cost and availability of Workers'
Compensation Insurance in the state of Alaska.
I have been here during a number of ups and downs in
the insurance market. Post [indisc] Workers'
Compensation Insurance has become so expensive that
it's nearly unavailable already, especially to small
employers. I am convinced the increased cost of claims
caused by the amendment will have a devastating affect
on the availability of insurance and the ability to do
business and employ workers in the state of Alaska.
Finally, may I ask you to imagine for a moment that you
go home tonight and hear a knock on your door. You open
the door to find a person there wearing a neck brace
and with their arm in a sling. They hand you some
papers and tell you, 'I fell in your driveway on
Tuesday. No one was home at the time. I wanted to let
you know that I'm injured and by the way there will be
a trial regarding it in two weeks.' Do you think you
would be ready? Do you think you would have due
process? Thank you.
MS. JACKSON concluded that she was speaking against the expedited
hearings in section 2.
MR. DAVID TWEDEN said he is an injured worker and wanted to
comment on the independent medical evaluations. In his case there
was a big difference in opinions on his percentage of impairment
and he thought there should be some sort of checks and balance to
see if the injured worker was favored or the insurance adjuster.
"The fees should be customary and usual, not the insurance
adjuster paying these independent doctors a huge amount of
money."
CHAIRMAN STEVENS said he appreciated his comments about the
independent evaluators.
MR. TWEDEN added that he knows from his first independent medical
evaluation that the doctor was from Oregon and flies to Alaska
all the time to do the independent medical evaluations. He didn't
know if he was licensed to practice in the state and that should
concern everybody.
MS. MURLENE WILKES said she has been a licensed Alaska adjuster
since 1965 and has grave concerns over section 2. She said that
Mr. Grossi has assured everyone that this section would be
applied in a very limited fashion and carefully. She didn't see
any reason to add that section and objected to the broad based
language, which appears to circumvent the intent of AAC 45.070.
She understands it was recommended because in some cases failure
to authorize medical treatment has caused physical harm to an
employee. She reminded them:
The ability to deny a controversial work place incident
injury has become just next to impossible and to
controvert a claim requires "substantial evidence
supporting the position of the controversion.
MS. WILKES said that even though the definition of injury under
AS 23.30.395 does not include mental injury or mental stress, now
because of the Harris Eastlake versus State of Alaska case, they
just simply cannot deny mental claims without going through
extremely costly investigation and medical testing. While that is
going on, they have to pay.
She said that most employees have decent health coverage, but
those who don't often have VA benefits or qualify for Medicaid.
If the claim is controverted, these other systems will kick in
once they receive a copy of the controversion notice. If the
controversion is overturned, those payments are reimbursed.
I feel the amendments along with recently passed
regulations on hearings is simply a matter to create
work for a second and new panel of board positions in
Southcentral.
She noted that a number of big decisions came down from the board
in 2000 and 2001 - Gary Richardson v. University of Alaska
Fairbanks, Devita Gray v. State of Alaska, Laurie Walters v.
State, to name a few.
MS. WILKES said that the board members are not medical
professionals and, "To assume that they could make a
determination of physical harm seems in credulous to me."
She urged them to not pass the bill, but if they did, to make it
absolutely clear.
MS. SUSAN DANIELS, Northern Adjusters, said that they are
concerned on behalf of their insurers with the conflicts that
exist with section 2 and the existing provisions of Workers Comp.
Act and regulations in terms of the discovery. They are concerned
about the cost to employers and the board to add staff and to be
such a broad presentation. She urged that the legislature oppose
this section and at least reconsider specifying a much narrower
focus. Once a claim is disputed, there needs to be enough
testimony and research for the board members to make an educated
decision of what's at stake.
MR. TIM MCKEEVER said he is an attorney who works with a law firm
who works with a lot of employers and Workers' Compensation
cases. He was concerned about section 1 because it is superfluous
and opposed section 2.
The Medical Board in this state already believes that
an IME doctor who does an independent medical
examination in the state has to be licensed in this
state and I believe they have communicated that fact to
the Workers' Compensation Board. I would encourage the
committee to enquire of the State Medical Board if they
believe the doctors who do I.V.s for the state have to
be licensed. I think you find that they do and the
first section is therefore unnecessary.
MR. MCKEEVER thought:
The second section denies due process to employers
because an expedited hearing would be held in a fashion
that does not permit employers to have or take
advantage of procedures that the legislature has
previously enacted which would allow for example the
employer to get medical records, to obtain a release
from the employee, to obtain an independent medical
evaluation or if there's a dispute between the
employee's doctor and the employer's doctor, to obtain
a second independent medical examination. It is
virtually impossible for an employer to defend a claim
on very short notice without having due process to be
able to conduct appropriate investigation. The
standards in the act are also very low. It would simply
require a statement from a physician that a person
needs medical treatment or they will suffer physical
harm and that is all it would take under this bill for
them to have an expedited hearing.
MR. MCKEEVER said that if an expedited hearing results in a
payment of medical treatment, under the current version of the
Act, the only remedy an employer has to recover overpayment of
improperly paid Workers' Compensation benefits is to recover them
from future payments that are paid to the same claimant. If that
claimant is not entitled to those future benefits, there's no way
to get back the cost of the care that's been provided. "The
employer could be paying $50 or $60,000 for a surgical procedure
and never be able to get that money back. I think that's a
concern."
MR. MCKEEVER continued:
HB 274 upsets the balance that the legislature has
reached over years of tweaking the Workers'
Compensation Act. It tilts that balance unfairly in
favor of the injured worker and deprives employers of
the right of due process and the right to effectively
defend themselves. Let me conclude by saying I think
there may be cases, and I'm not familiar with any even
though I've been doing this for 20 years, where an
injured worker has been denied medical care that has
resulted in permanent physical harm to that injured
worker. But if the legislature, after deliberate
consideration, determines that is a problem, that there
are people who have been deprived of medical care that
they really need to have, then I think there are
alternatives to this legislation that would protect the
rights of employers and protect the rights of
employees. Those alternatives include, as has been
mentioned, to explore other options for payment, such
as private health insurance, V.A., I.H.S. benefits -
all of which have the right to get repaid if the Comp
carriers are determined to be responsible. So
alternative forms of payment should be explored.
Another alternate may be the Second Injury Fund, which
is a fund that exists under the jurisdiction of the
Department of Labor, which is paid for by
contributions, donations, taxes perhaps on benefits
that are being paid. It is very possible to set up a
system by which the Second Injury Fund would be
required to advance the cost of emergency and urgently
needed medical care and then to have the insurance
carriers pay the Second Injury Fund back if it's
determined that the claim is compensible.
Fundamentally, the standard needs to be higher. It
shouldn't just require an injured worker to come in and
say or have a doctor say that there's a risk of
physical harm. It should be a risk of significant
permanent physical harm rather than relatively miner
risk, given the lack of due process that an employer
would have under this section if it's enacted. I think
the standard for getting emergency hearings needs to be
substantial. This bill would change the economics of
Workers' Compensation….
TAPE 02-12, SIDE A
3:12 p.m.
MR. MCKEEVER concluded by urging them not to enact section 2 of
HB 274, but encouraged them to explore options.
MS. KATHY COLLINS, Claims Administrator, ARECA Insurance
Exchange, said they are an insurance company for electrical and
telephone utilities through the state of Alaska and has 22
members. She said the ARECA is also concerned with section 2 for
all the previously stated reasons. Based on her 18 years of
experience as a claims adjuster, she could not think of any cases
where physical harm resulted to an injured worker because she had
denied medical treatment.
My experience is that in cases where there's serious
physical harm that's imminent, those cases are clear-
cut because they are usually tied to traumatic injury
and it's obvious the injury is work related.
The issue of authorization for medical care often times
arises in cases where the relationship to the condition
or injury is not clear and by their very nature, these
cases require expert medical review often by the
injured worker's physician, the independent medical
evaluators who have to buy the insurance carrying the
employee and often by the [indisc] process.
Calling the Board to schedule an expedited hearing when
the injured worker is requesting medical care doesn't
allow the employer due process…
She summarized:
It's my experience that the situation for which this
amendment was formulated happens very rarely and in
complicated cases, which need time for preparation.
Furthermore, the amendment is ambiguous and wordy as to
what constitutes physical harm to the injured worker.
MS. CLAIRE HIRATSUKA, Claim Manager, Umialik Insurance Co., a
small company owned by the North Slope Native Corporation, said
she couldn't think of a case where an employee suffered because
they were denied medical treatment, but several times she has
scheduled a second opinion. She has been thanked by employee who
has had another treatment suggested during an IME and has
benefited from it. She didn't know how a board of non-medical
people would have the competence to decide on medical treatment.
MR. MIKE KLAWITTER, Director, Risk Management, Anchorage School
District, said they have about 5800 employees which they self-
insure Workers' Comp for. "I believe HB 274 substantially impacts
the Anchorage School District in a negative way."
He echoed previous comments regarding the section 2 expedited
hearings. It negatively impacts the school district and gains
very little for an employee. The physician licensing is also
redundant and unnecessary.
MR. PAUL GROSSI, Director, Division of Workers' Compensation,
said they support this bill, which is just minor changes.
SENATOR TORGERSON asked him to comment on section 2 not providing
a fair opportunity for one of the other parties have their own
doctors look at them or prepare themselves for a hearing.
MR. GROSSI replied that occasionally a claim is filed for an
injury that occurred a while back and there is need for
discovery, but in the vast majority of cases, the employer files
a controversion on a claim denying a particular treatment.
For a controversion to be valid, they have to have
medical evidence or some legal basis for that. I don't
understand completely the denial of due process since
the employer wouldn't have denied the benefits in the
first place, unless they had done some basic discovery
on medical treatment in order to deny the treatment in
the first place. There may be some instances, but a
relatively small number of those cases.
MR. GROSSI explained:
Basically, the employee gets injured, they file an
injury report, they go to a doctor and gets treated,
the employer can pay or not pay it and if they are
questioning the claim, they'll have the person examined
by a doctor of their choice. Choice is what we've heard
some testimony on and then they can either pay or deny
the claim or the treatment or the various benefits that
would surround that. That is they way the vast majority
of the cases are dealt with.
He pointed out that the law doesn't say that you have to have an
examination.
SENATOR TORGERSON asked if this only applied to disputed claims.
MR. GROSSI replied yes and that in the vast majority of cases
controversions are not filed. A small portion of claims are
denied and those denials have to be based on evidence or a legal
basis.
SENATOR TORGERSON asked if they have expedited hearings now and
if they do, what criteria would it fall under as far as
notification. "What does expedited hearing actually mean?"
MR. GROSSI replied that he didn't think the board would rely on
its own prognosis or diagnosis, but would rely on medical
evidence and reports before they set a hearing. The hearing would
have some preferential treatment over other standard types of
cases.
SENATOR TORGERSON asked if that should be explained in the bill.
"Should we put a timeline in here to make sure that all that's
covered?"
MR. GROSSI replied that the designee would only be determining
whether the expedited hearing should be scheduled, not
determining the underlying decision as to whether these medical
benefits should be allowed or not.
SENATOR TORGERSON asked what would happen if they deleted "upon
request by a party" and inserted "on request by both parties".
MR. GROSSI replied, "If both parties are requesting it, then the
payment could be made."
SENATOR TORGERSON asked if this was a disputed claim and the
Board is helping to negotiate liability.
MR. GROSSI replied that mostly there would be a dispute or
denial, so one side would want a hearing.
SENATOR TORGERSON asked what putting "serious physical harm"
would do instead of just "physical harm".
CHAIRMAN STEVENS pointed out that someone mentioned "permanent
harm".
MR. GROSSI said that would indicate what level of harm they
should be looking for. He said that all cases are important to
the individuals, but sometimes some cases need to be heard sooner
than others for many different reasons. This gives the Board a
tool of being able to make those kinds of distinctions between
cases.
MS. MOSS commented that this bill was heard in the House Labor
and Commerce Committee where approximately 15 people testified in
favor of the bill. It passed the House unanimously.
When an employer files a controversion, they do have
the medical information to base that controversion on.
So, the medical information is available for an
expedited hearing. All this intended for is to give
Workers' Comp a vehicle to address, and I don't think
Representative Coghill would have a problem with adding
the word "serious" to address injuries that are not
getting medical attention.
As far as the Medical Board is concerned, they may
think this is redundant, but the fact of the matter is
that the law does state that the physician only has to
be licensed in the state in which he resides.
CHAIRMAN STEVENS said that the bill needed more work before it
could pass for committee. He thought both parties agreeing to an
expedited hearing had merit.
CHAIRMAN STEVENS adjourned the meeting at 3:30 p.m.
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