02/26/2004 01:37 PM Senate L&C
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ALASKA STATE LEGISLATURE
SENATE LABOR AND COMMERCE STANDING COMMITTEE
February 26, 2004
1:37 p.m.
TAPE(S) 04-15, 16
MEMBERS PRESENT
Senator Con Bunde, Chair
Senator Ralph Seekins, Vice Chair
Senator Gary Stevens
Senator Hollis French
MEMBERS ABSENT
Senator Bettye Davis
COMMITTEE CALENDAR
SENATE BILL NO. 324
"An Act relating to floral business telephone listings and to
acts involving those listings that are considered unlawful trade
practices."
SCHEDULED BUT NOT HEARD
SENATE BILL NO. 315
"An Act relating to the administration of commercial fishing
entry permit buy-back programs."
MOVED SB 315 OUT OF COMMITTEE
SENATE BILL NO. 306
"An Act relating to the practice of naturopathic medicine; and
providing for an effective date."
MOVED SB 306 OUT OF COMMITTEE
SENATE BILL NO. 311
"An Act providing for a special deposit for workers'
compensation insurers; relating to the board of governors of the
Alaska Insurance Guaranty Association; relating to covered
workers' compensation claims paid by the Alaska Insurance
Guaranty Association; stating the intent of the legislature, and
setting out limitations, concerning the interpretation,
construction, and implementation of workers' compensation laws;
relating to restructuring the Alaska workers' compensation
system; eliminating the Alaska Workers' Compensation Board;
establishing a division of workers' compensation within the
Department of Labor and Workforce Development and assigning
certain Alaska Workers' Compensation Board functions to the
division and the Department of Labor and Workforce Development;
establishing a Workers' Compensation Appeals Commission;
assigning certain functions of the Alaska Workers' Compensation
Board to the Workers' Compensation Appeals Commission; relating
to agreements that discharge workers' compensation liability;
providing for hearing officers in workers' compensation
proceedings; relating to workers' compensation awards; relating
to an employer's failure to insure and keep insured or provide
security; providing for appeals from compensation orders;
relating to workers' compensation proceedings; providing for
supreme court jurisdiction of appeals from the Workers'
Compensation Appeals Commission; providing for a maximum amount
for the cost-of- living adjustment for workers' compensation
benefits; providing for administrative penalties for employers
uninsured or without adequate security for workers'
compensation; relating to assigned risk pools and insurers; and
providing for an effective date."
HEARD AND HELD
SENATE BILL NO. 27
"An Act relating to pesticide use; relating to program receipts
collected by the Department of Environmental Conservation for
registrations and licenses relating to pesticides; and providing
for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 315
SHORT TITLE: ENTRY PERMIT BUY-BACK PROGRAM
SPONSOR(s): SENATOR(s) STEVENS B BY REQUEST OF SALMON INDUSTRY
TASK FORCE
02/11/04 (S) READ THE FIRST TIME - REFERRALS
02/11/04 (S) L&C, FIN
02/24/04 (S) L&C AT 1:30 PM BELTZ 211
BILL: SB 306
SHORT TITLE: NATUROPATHIC MEDICINE
SPONSOR(s): SENATOR(s) SEEKINS
02/06/04 (S) READ THE FIRST TIME - REFERRALS
02/06/04 (S) L&C, FIN
02/19/04 (S) L&C AT 1:30 PM BELTZ 211
02/19/04 (S) Heard & Held
02/19/04 (S) MINUTE(L&C)
BILL: SB 311
SHORT TITLE: INSURANCE & WORKERS' COMPENSATION SYSTEM
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/09/04 (S) READ THE FIRST TIME - REFERRALS
02/09/04 (S) L&C, FIN
02/10/04 (S) L&C AT 1:30 PM BELTZ 211
02/10/04 (S) Heard & Held
02/10/04 (S) MINUTE(L&C)
02/19/04 (S) L&C AT 1:30 PM BELTZ 211
02/19/04 (S) Heard & Held
02/19/04 (S) MINUTE(L&C)
BILL: SB 27
SHORT TITLE: TRACKING OF PESTICIDE USE
SPONSOR(s): SENATOR(s) ELLIS
01/21/03 (S) PREFILE RELEASED 1/17/03
01/21/03 (S) READ THE FIRST TIME - REFERRALS
01/21/03 (S) L&C, RES, FIN
WITNESS REGISTER
Ms. Cheryl Sutton
Staff to Senator Ben Stevens
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Present to answer questions on SB 315.
Mr. Brian Hove
Staff to Senator Ralph Seekins
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Present to answer questions on SB 306.
Mr. Wayne Aderhold
Homer AK
POSITION STATEMENT: Supports SB 306.
Mr. Michael Yourkowski
Homer AK
POSITION STATEMENT: Supports SB 306.
Ms. Shevaun Meggitt Tonseth
Anchorage AK
POSITION STATEMENT: Supports SB 306.
Dr. David Newirth, ND
Anchorage AK
POSITION STATEMENT: Supports SB 306.
Dr. Kayce Rose, ND
Anchorage AK
POSITION STATEMENT: Supports SB 306.
Dr. Madeleine Morrison-Young, ND
Anchorage AK
POSITION STATEMENT: Supports SB 306.
Ms. Pamela Hansen
Kenai AK
POSITION STATEMENT: Supports SB 306.
Ms. Jane Simons
Kasilof AK
POSITION STATEMENT: Supports SB 306.
Dr. Torrey Smith, ND
Anchorage AK
POSITION STATEMENT: Supports SB 306.
Ms. Linda Hall, Director
Division of Insurance
Department of Community & Economic Development
PO Box 110800
Juneau, AK 99811-0800
POSITION STATEMENT: Supports SB 311.
Mr. Paul Lisankie, Director
Division of Workers' Compensation
Department of Labor & Workforce
Development
PO Box 21149
Juneau, AK 99802-1149
POSITION STATEMENT: Commented on SB 311.
Mr. Jim Robison
Eagle River AK 99577
POSITION STATEMENT: Commented on SB 311.
Ms. Pam LaBolle, President
Alaska State Chamber of Commerce
nd
217 2 St.
Juneau AK 99801
POSITION STATEMENT: Supports SB 311.
Ms. Patricia Wilson
Harbor Adjustment Services
Anchorage AK
POSITION STATEMENT: Supports SB 311.
Ms. Susan Daniels, Vice President
Workers' Compensation
Northern Adjusters
Anchorage AK
POSITION STATEMENT: Supports SB 311.
Mr. Mike Klawitter, Director
Risk Management
Anchorage School District
Anchorage AK
POSITION STATEMENT: Supports SB 311.
Ms. Constance Livsey
Anchorage AK
POSITION STATEMENT: Supports SB 311.
Senator Johnny Ellis
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 27.
Ms. Geran Tarr
Chief of Staff for Senator Ellis
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on SB 27 for sponsor.
Ms. Kristin Ryan, Director
Division of Environmental Health
Department of Environmental Conservation
410 Willoughby
Juneau, AK 99801-1795
POSITION STATEMENT: Commented on SB 27.
Mr. Clay Frick
Port Alexander AK
POSITION STATEMENT: Supports SB 27.
Ms. Marie Lavigne, Executive Director
Alaska Public Health Association
Anchorage AK
POSITION STATEMENT: Supports SB 27.
Mr. Walt Parker
Anchorage AK
POSITION STATEMENT: Supports SB 27.
Ms. Michelle Wilson
Alaska Community Action on Toxics
Anchorage AK
POSITION STATEMENT: Supports SB 27.
Mr. Ken Perry
Paratex Pied Piper
th
2440 E 88 Ave., Suite A
Anchorage AK 99507
POSITION STATEMENT: Opposes SB 27.
Dr. Adam Grove, ND
Anchorage AK
POSITION STATEMENT: Supports SB 27.
ACTION NARRATIVE
TAPE 04-15, SIDE A
SB 315-ENTRY PERMIT BUY-BACK PROGRAM
CHAIR CON BUNDE called the Senate Labor and Commerce Standing
Committee meeting to order at 1:37 p.m. Present were Senators
Gary Stevens, Ralph Seekins, Hollis French and Chair Con Bunde.
Senator Bettye Davis was excused. The first order of business to
come before the committee was SB 315.
MS. CHERYL SUTTON, Staff to Senator Ben Stevens, sponsor of SB
315, was present to answer questions, but there were none.
SENATOR RALPH SEEKINS moved to pass SB 315, version D, from
committee with individual recommendations and zero fiscal note.
Senators Stevens, French, Seekins and Chair Bunde voted yea; and
SB 315 moved from committee.
SB 306-NATUROPATHIC MEDICINE
CHAIR CON BUNDE announced SB 306 to be up for consideration.
MR. BRIAN HOVE, staff to Senator Seekins, sponsor of SB 306, was
present to answer questions.
CHAIR BUNDE said he had asked if naturopathic colleges are
associated with traditional colleges and had found that they
aren't. He asked if Mr. Hove knew of any major universities that
offered a degree in naturopathy.
MR. HOVE replied that he wasn't aware of any.
CHAIR BUNDE said the Alaska State Medical Association suggests
that if SB 306 is enacted, it should be amended to keep existing
law pertaining to naturopaths in place and add a subsection that
would hold naturopaths to the same standard of care as licensed
physicians. He asked if anyone wanted to comment on that.
SENATOR SEEKINS asked what the Medical Association defines as
"same standard of care". He forged ahead saying that SB 306
allows naturopaths to practice up to the level of their
education and only prescribe drugs if they have been granted a
Drug Enforcement Association License and perform only minor
surgery.
If it means that naturopaths will have to be held to
the same standard as the doctor in the performance of
those duties, I don't see where anyone would object to
that.... They are under a greater restriction here
than a nurse practitioner or a physician's assistant
and have equivalent or better educational background
to support that....
I think all performing people in the area of medical
practice should be held to the same level of
performance or standard or performance equivalent to
the levels of authority that we're allowing them under
state law, if that's the answer to the question. I
have no problem with that.
CHAIR BUNDE said he had no problem with that either and added
that the Medical Association also wanted to keep the existing
law pertaining to naturopaths in place without prescription
rights, if applicable.
MR. WAYNE ADERHOLD, Homer resident, supported SB 306.
Naturopathic physicians have a right to practice
commensurate with their training and to provide even
more comprehensive primary care to their patients in
Alaska and I have a right to receive that care in my
home state....
MR. ADERHOLD said he uses naturopathic services for 95 percent
of his health care needs and related how he was successfully
treated for melanoma through surgery and non-toxic adjutant
therapy from a naturopathic team in Arizona, spending only
$20,000 out of pocket. Although he felt that the State of Alaska
is somewhat progressive in allowing naturopaths to practice, it
isn't as progressive as Arizona.
Naturopathic health care is supported by informed
consumers throughout this state [Alaska], because it
is effective both medically and financially. Consumers
of naturopathic services are required to take an
active part in decision-making and responsibility for
their own health. Naturopathic physicians are true
followers of the tenant, first do not harm, which
might be your standard care.
MR. ADERHOLD also supported regulations established by the
naturopathic board and informed the committee, "Malpractice
rates on naturopathic physicians are miniscule compared to those
on other physicians."
CHAIR BUNDE asked Mr. Aderhold, in the course of his melanoma
treatment, if he needed a drug that a naturopathic doctor could
have prescribed, but was not able to because of existing law.
MR. ADERHOLD replied that because he received his initial
treatment in Arizona, where naturopaths can write prescriptions
for regulated drugs, he was able to receive the one he needed.
He received mostly unregulated drugs.
MR. MICHAEL YOURKOWSKI, Homer resident, said he is a patient of
Dr. Patrick Huffman, ND, in Homer and his wife is a nurse
practitioner who works in association with him. "Together they
provide complementary medicine that patients really benefit
from."
He stressed the importance of the licensing board and the
legitimacy it would provide for people who practice naturopathy
in Alaska. He claimed his wife is a nurse practitioner and has
the right to prescribe medicine while her naturopathic
associate, who has more education, cannot.
MS. SHEVAUN TONSETH, Anchorage resident, said she fully trusts
her naturopathic doctor, Dr. Kayce Rose, and prefers to go to
her for all of her primary care instead of going to her and
another doctor. "I feel she should be able to prescribe or do
minor surgeries to what her training is...."
DR. DAVID NEWIRTH, ND, Anchorage, supported SB 306, "Based on
the fact that we do have the training we're asking to be able to
practice to that level."
CHAIR BUNDE asked him to comment on the Medical Association's
request that naturopaths be held to the same standard of care
and whether there is a different standard of care at this point.
DR. NEWIRTH replied that he didn't really know the particulars,
but he didn't see that there should be any difference in the
standard of care.
DR. KAYCE ROSE, ND, said she thought that the standard of care
is what is really at stake in SB 306.
To be able to insure that our patients are able to
receive the care that is most efficacious, most
appropriate, for whatever they are experiencing at the
time is contingent on our ability to be able to
prescribe medicine when appropriate. Our education
allows us to be the most well-trained physicians for
primary care out there because we have such a broad
spectrum of opportunities of types of therapies that
we do offer.
DR. ROSE said her patients might have to spend health care
dollars twice to get the same type of care. She related an
actual experience in which one of her patients had dangerously
high blood sugar and couldn't wait the three months to see an
endocrinologist who could prescribe the appropriate medication
and couldn't afford going to a more emergent type of health care
facility.
DR. ROSE said that naturopathic colleges are not extensions of
traditional medical schools, but they are accredited
universities and are held to the same standards as any other
university.
DR. MADELEINE MORRISON-YOUNG, ND, said she has practiced in
Eagle River for seven years. She supported all the previous
testimony and said her education included training in
antibiotics and hormones.
To be a primary care physician and doing gynecology
every day and giving people pap smears, but being
unable to prescribe them their birth control pills,
has been a real struggle in my practice for not only
obviously myself, because it's frustrating, but
financially for my patients. Sending them off with
their annuals and their pap results to another
practitioner so that they can get a simple birth
control prescription is frustrating.
DR. YOUNG said that naturopaths have been using bio-identical,
naturally compounded hormones for years and consider themselves
specialists in the area. She supported SB 306.
MS. PAMELA HANSEN, Kenai resident, supported SB 306 saying that
she, her husband and her mother use naturopathic health care.
She would like their doctor to be able to provide them all the
care they need, i.e. full prescriptive rights and the right to
do minor surgery. The state she originally came from gave these
full rights to naturopaths in 1962 and she was amazed to find
that Alaska didn't.
MS. JANE SIMONS, Kasilof resident, testified as a mother and a
senior. She has an adult disabled son who is 24 years old and
she said they are both receiving Medicaid. She is forced to use
a medical doctor who accepts Medicare and Medicaid, because she
cannot afford to pay for health care out-of-pocket. "The care
that works for us is naturopathic care."
DR. TORREY SMITH, ND, said he has practiced in Anchorage since
1992 and supported SB 306. He wanted the freedom to use the
skills he has and feels are most appropriate for his patients.
He also wants to be able to give patients the choices they would
like to have and need in dealing with their health care issues.
CHAIR BUNDE noted that he hadn't heard a single person testify
against this bill, but he still was searching for the answer to
the question of the same standard of care that the Medical
Association has asked about. He would let the bill move from
committee today with the proviso that he could amend it if it
was necessary.
SENATOR SEEKINS moved to pass SB 306 from committee with
individual recommendations and attached fiscal note. Senators
French, Seekins, Stevens and Bunde voted yea; and SB 306 moved
from committee.
SB 311-INSURANCE & WORKERS' COMPENSATION SYSTEM
CHAIR CON BUNDE announced SB 311 to be up for consideration.
MS. LINDA HALL, Director, Division of Insurance, Department of
Community & Economic Development (DCED), said she would answer
questions that had been asked in the last couple of days and
that first, Director Lisankie, Division of Workers'
Compensation, would explain the transition process for people
currently in the system. She would address Chair Bunde's
question about the cost of attorney fees and litigation in
relation to premium and then she would comment on the
appointment process.
MR. PAUL LISANKIE, Director, Division of Workers' Compensation,
Department of Labor and Workforce Development (DOLWD), addressed
the question about a woman who gets workers' compensation based
on her spouse's work experience with atomic testing in Amchitka
in the 1970s. She was having a hearing before the board in March
and wanted to know how SB 311 would affect her claim because its
effective date is July 1, 2004 and provides that anything being
heard before the board as of that date would continue to be
heard until 45 days afterwards. He did not believe her claim
would be affected.
If she wished to appeal, she would appeal to the
Superior Court. The only thing I would add is...if
there was someone else who had a claim based on the
Amchitka testing and if their hearing wasn't concluded
under the current law before July 1, then they would
be susceptible to the changes just like anybody else
would. There is nothing specific to an Amchitka claim
that would affect it.
SENATOR HOLLIS FRENCH asked if the Amchitka claim person would
operate under the old system for 45 days or to the end of her
claim.
MR. LISANKIE clarified:
The 45 days is just a closeout period after the
effective date so that anything that was heard by the
effective date by the existing board would be
determined by the existing board. They would have 45
days after the effective date to wrap up any decision
they hadn't gotten out by then. So, it would continue
in the current system. It would not change.
SENATOR FRENCH pointed out if further fact finding or another
hearing was necessary, she might not have a board to appear in
front of if the commission had started functioning.
MR. LISANKIE responded that his answer would only apply to her
current claim. If a hearing took place after the effective date,
the new provisions would apply.
SENATOR FRENCH said this woman does not have a new claim; it's
just taking a long time to resolve.
MR. LISANKIE said he understood Senator French's question now
and answered:
I believe you're correct that the hearing that took
place would be resolved in the current system, but if
for some reason another hearing was to be scheduled
after the effective date, then it would be under the
new system.
CHAIR BUNDE reminded the committee that he had a question about
the appointment process and asked if the commissioners would be
appointed and confirmed.
MS. HALL replied:
Generally, the appointment process in this bill is
exactly the same as the current appointment process is
for the board. They would be nominated by the governor
and confirmed by the Senate.... The change is these
would now become fulltime positions, but there's still
an executive position for a limited term. They're not
court positions; they're administrative law judge
positions, which normally aren't vetted through a
third party screening process. One of the things we've
talked about after the question came up is there
are...not large numbers of workers' compensation
attorneys. So, it's a fairly small pool and experience
and reputations are not as well-known as other types
of attorneys tend to be.... So, we have a concern that
a judicial council would even have sufficient numbers
of people to interview and make recommendations.
Generally, my comment on that is that nothing would
prohibit a governor from seeking, informally,
recommendations from various organizations and I would
anticipate that that would occur. It does, typically,
today in board positions.
CHAIR BUNDE said the ad hoc group wanted to have input and he
asked how long this bill had been in the public domain and if
any attempt had been made to share it with that group.
MS. HALL replied that the ad hoc committee was not consulted in
the process of this particular bill.
The bill genesis came from primarily me - not that
piece of it. But, primarily the pieces I have proposed
in legislation and administratively are dramatically
increasing the cost of workers' compensation for
employers. I've made a proposal, as you're all aware,
because we've heard it in this committee, to increase
assessments for the Guaranty Fund. Effective January
1, the rate approval done by the Division of Insurance
averaged 22 percent. We have an increasing cost of
claims and, as I put forth legislation that I know has
an impact on the availability of workers' compensation
the goal was to find a way to, frankly, put a light at
the end of the tunnel, to attempt to find ways to
start to get some control over the claim costs. I will
talk about litigation also and to find ways to do that
without reducing benefits to workers. I think that was
an important element of what we looked at. This was, I
think, in our minds a systemic change to streamline
and bring predictability into the appeals process, not
to change benefits.
I think there are very important issues and we
discussed them a little bit when we discussed the
Oregon system. I think there are issues that need to
be addressed that could affect benefits, that could
affect reemployment benefits, various things, that I
think are very appropriate for a group of labor and
management to get together and discuss and to work on
and have input.... I think, if that sheds any light,
the short answer was no, we didn't take it to them.
SENATOR RALPH SEEKINS said he felt it incumbent upon
legislators, since they have made this the exclusive remedy, to
make sure that worker's compensation claims are resolved fairly
and in a timely fashion. At the same time, they should make sure
the compensation is adequate and fair to the injured worker. He
asked her if this legislation meets those hurdles and what are
the major benefits to the state and the workers that she has
laid out in the bill.
MS. HALL replied:
To me the major benefit is a more efficient, more
predictable system - that as cases are heard by
hearing officers or the appeals commission, there is a
precedent set that can then allow other injured
workers or employers who take exception to a ruling -
maybe to a decision of an insurance company, to
wherever that dispute comes from - that allows that to
be adjudicated more quickly and more efficiently. But,
we have a precedent so that we have something to
evaluate. Do I have a claim? Has this case been heard
and a definitive type of answer given as to whether
this is compensable or not, whether these are
appropriate benefits. That is the advantage I see to
the system. [END OF SIDE A]
TAPE 04-15, SIDE B
MS. HALL continued:
In 2002, for example, we had $202 million of workers'
compensation premium; $11 million of that was expended
in attorney fees, approximately 5 percent; $1.2
million in actual litigation costs, about .6 percent.
I did that for five years. The percentages of attorney
fees ranged from a high in 1998 of 7.8 percent of
actual premium dollar to a low in 2002 of 5 percent.
So, they have been going down - not steadily; there
are jagged peaks. Litigation costs have gone from a
high of 1.7 percent of earned premium to - 2002 was .6
percent, a little bit higher than the 2001 .5
percent.... Attorney fees range from 5 to 7 percent of
the cost of premium.
CHAIR BUNDE asked what the total premium is.
MS. HALL answered the total premium was $202 million in 2002. In
1998, it was $132 million.
CHAIR BUNDE announced that it was not his intention to move the
bill today in order to have further input.
MR. JIM ROBISON, Alaska resident for 58 years, said he is a 55-
year member of Laborers Local 331, a former president of the
AFL-CIO, a former workers' compensation board member and a
former commissioner of the Department of Labor. He said:
I've been involved with workers' compensation a long
time. The Workers' Compensation Act has been a
political football ever since Governor J.P. Strong
spoke to the 1915 Territorial Legislature about the
need to cover the injured worker. In 1981, in order to
get rid of the politics as much as possible, the
Alaska AFL-CIO and the Associated General Contractors
of Alaska agreed to a workers' compensation ad hoc
committee to review the Workers' Compensation Act to
see if any changes were needed and it jointly lobbied
the governor and the Legislature on any agreed-upon
legislation to improve the act.
We convene this committee as needed. In the past 23
years, we have had the support of the governors and
the Legislature in our efforts. At the present time,
the ad hoc committee represents the employer and is
comprised of Vic Kattenaugh, Judith Peterson, April
Wiley, Laura Jackson and John Garrett. And for labor,
the representatives are Kevin Dougherty, myself, Dave
Ford, John Giuchici and Barbara Huff-Tuckness. This
committee will meet on March 2 to review and consider
SB 311 and I'll convey the timeframes you have
outlined so that we can jointly give our views on this
bill.
Mr. Chairman, I'm not here representing the ad hoc
committee, I'm only representing myself, but this is
an important bill and I thank you for holding it in
committee to receive the input from the ad hoc
committee.
SENATOR SEEKINS wondered why the scope of people who want to
comment on this bill had not been broadened beyond the
Association of General Contractors to the rest of the employers
in the State of Alaska.
MR. ROBISON explained that the Chamber of Commerce was asked by
the employer group to become involved, but it didn't want to and
he didn't know why.
MS. PAM LABOLLE, President, Alaska State Chamber of Commerce,
supported SB 311. Members feel that elements in it favor
improvement of the system.
MS. PATRICIA WILSON, Harbor Adjustment Services, supported SB
311 and echoed previous comments about how it would increase the
efficiency and predictability of the workers' compensation
system. The current system is frustrating for both the injured
workers and the people who handle their claims.
MS. SUSAN DANIELS, Vice President, Workers' Compensation,
Northern Adjusters, said it inherited the 700 Fremont insolvency
claims in July 2003 and they are in all different stages of this
process. She supported SB 311 and said:
I think the underlying premise is important to
recognize that the legislative intent and the workers'
comp laws don't seem to be our major stumbling block,
but rather the adjudication process, the delays, the
lack of a simple speedy remedy for the injured workers
and people involved in the decision making on these
cases. It's become very complicated and the law, in
terms of paying or denying claims, is very
inconsistent. So, many times adjusters were faced with
the decision of whether a claim is covered or not
based on a substantial amount of grey area - end up
having to refer a lot more cases to defense attorneys
for a legal opinion, which is not only increasing the
cost of the attorney fee end, but, short of that, more
claims are being paid than perhaps the legislative
intent of the law intended to be covered.
MR. MIKE KLAWITTER, Director, Risk Management, Anchorage School
District, said his district has about 6,500 employees and is one
of the largest self-insurers in the state. He thought SB 311 is
a positive step for workers' compensation in Alaska for the
reasons already stated, particularly efficiency and consistency.
MS. CONSTANCE LIVSEY, Anchorage attorney, said the bulk of her
practice is representing employers before the Workers'
Compensation Board. She supported SB 311 and wanted to clarify
two aspects of it.
First, this bill does not in any way remove or alter
the presumption of compensability in favor of injured
workers. That presumption, for those of you who like
to thumb through the legislation, is found in AS
23.30.120. The bill does not alter that in any way.
This is purely a matter of procedure and not a matter
of substance. The bill is also not the product of
collaboration between the administration and WCCA
[Workers' Compensation Committee of Alaska]. We were
not involved in the drafting of the bill and, in fact,
WCCA first got a copy of the bill after it was
generally available on the street sometime in late
January.
Let me speak to a couple aspects of the bill that I
believe will significantly improve the adjudication
process for the contested or litigated workers comp
claims. The two-tier system proposed in the bill to
create both a hearing officer level and a commissioner
level would significantly accelerate the adjudication
process. In fact, that two-tier system is far more
common around the country than the system we now have.
The proposed structure, I believe, would elevate the
qualifications of the decision-makers and that's
significant because workers' compensation is a very
arcane area of the law. It's a unique set of laws;
it's a unique body of procedure. It's not something
you wake up in the morning knowing how to do.
If we have decisions made by experienced
practitioners, I'm convinced you'll have a process
that is fairer, that is faster and that offers more
certainty. Surely, that benefits all parties. As it
stands now, one board panel can reach a conclusion
different from that reached by another board panel.
One superior court judge can reach a conclusion that
is different than that reached by another superior
court judge. And so, as Ms. Daniels testified, you end
up with a great deal of inconsistencies that cost
litigation. That benefits no one.... The superior
court appeals process is lengthy. It commonly takes a
year or a year and a half to get the matter briefed
and decided. You can get, as I mentioned, inconsistent
rulings that have no binding precedential value on
other cases. And quite frankly, the superior court
judges are primarily trial court judges, not appeal
judges. I don't get the impression that they have any
significant experience in workers' compensation
matters and it simply is a disfavored area of their
workload.
Finally, a superior court decision carries no weight
at [indisc]. It's an odd rule and one with which
people may not be generally familiar, but in an appeal
from the administrative agency decision, the Alaska
Supreme Court gives no deferential value to the
superior court's decision. In other words, they simply
directly review the decision of the board. Simply put
then, the entire year, year and a half, worth of
superior court process lends nothing to the ultimate
decision. For all of those reasons and several others
I probably don't have time for today, I urge a vote in
favor or this bill.
CHAIR BUNDE asked for any other comments and upon hearing none,
set the bill aside.
SB 27-TRACKING OF PESTICIDE USE
CHAIR CON BUNDE announced SB 27 to be up for consideration.
SENATOR JOHNNY ELLIS, sponsor, said:
Large amounts of pesticides are used every year in
urban and rural Alaska, including around schools, our
parks, agricultural lands, grocery stores, public
buildings, homes, gardens and just about everywhere
you can imagine. Pesticides are linked to a variety of
health problems including cancer, developmental
disorders, reproductive failure, birth defects,
allergies and asthma.... Despite these known risks, we
have no accurate information on which pesticides are
used, where and in what amounts. In order to make
informed and effective good public policy decisions to
protect water quality, public health and subsistence
foods, Alaskans need that reliable kind of information
on pesticide use.
In 2001, there were 4,571 pesticide labels -
individual pesticide products that were registered and
approved for sale in our state. In 2004, that number
is up to approximately 5,500. Alaska is the only state
that does not collect registration fees on pesticides
registered for sale and use in our state.... The word
chump has come up in some of the conversations here
that we're the only state that does not charge Dow
Chemical and Monsanto, outside multi-national
corporations, that are manufacturers of these
pesticides sold in our state. Every other state
charges a reasonable fee and that's what this bill
proposes to do, as well.
What will the bill specifically do? It would require
those who use pesticides for commercial and contract
purposes to provide notice regarding the application
of pesticides to the DEC [Department of Environmental
Conservation]. That would be an easy thing. They
already collect this information. In their yellow page
ads, those distributors and appliers here in the State
of Alaska use e-mail. It would be a matter of e-
mailing DEC this information that's already collected.
The Department of Environmental Conservation is
required to make the reporting process for those
convenient. So, that's a consideration for business -
to make it as easy as possible to make the information
available to the public through the website and to
researchers and public officials in a timely manner.
In the reports we have a protection for business to
protect the privacy of the applicators and their
clients.
The bill establishes a seven-member pesticide advisory
board; the bill requires a registration fee to be
collected as noted and helps with the information
collected to be used. We're looking for good science
and good data. The information would be used in those
areas that I mentioned before - water quality, public
health and subsistence. Because pesticides are
designed to be toxic chemicals that kill living
organisms and are widely used in our communities, the
public has a right to know, in my opinion, about the
pesticides used around us.
I note there is broad support across the state for
this legislation.... I'll lend on a personal note -
you know, I've known a lot of folks who have suffered
from breast cancer and asthma, immune system
shutdowns, various ailments and their doctors
invariably ask them about their exposure to these
kinds of chemicals. The fact is in Alaska, we don't
require this information, we don't keep track of it,
we don't look at it and use it as part of our making
of public policy.
CHAIR BUNDE asked how the notification would take place.
SENATOR ELLIS replied that he envisions the information would be
provided to the DEC electronically where it would be compiled
and then accessed by the public. He is not looking for the DEC
to mail out notices of impending pesticide use. "It would be a
passive kind of system."
CHAIR BUNDE rephrased his answer saying, "It would be incumbent
upon the public to access the information?"
SENATOR ELLIS indicated yes.
CHAIR BUNDE supposed that it wouldn't affect his neighbor who is
using "Round-Up," but that the "Round-Up" would cost more to pay
for the fee. Senator Ellis indicated this was correct.
SENATOR ELLIS said, since every other state is charging the
manufacturers a reasonable fee for each of the chemicals,
theoretically Alaska consumers are bearing the cost of those
registration fees.
CHAIR BUNDE asked if he was aware of any other regulations in
municipalities affecting registration of pesticides. "Is there
any duplication going on here?"
MS. GERAN TARR, Chief of Staff for Senator Ellis, wanted to
clarify the notice of commercial pesticide spraying, a separate
component from the tracking mechanism. Section 4 of SB 27 is
modeled after the Municipality of Anchorage's successful
program. She explained that paper notification must be given to
areas contiguous to the sprayed areas. People must be able to
see that notification at their home or place of business and
make an educated decision about whether or not they want to be
in that area while the application was taking place or whether,
because of health issues or small children, they would want to
leave and come back later.
SENATOR BUNDE said there are always residue issues and asked if
the notices had to be up only during the actual application or
was there a time period after that.
MS. TARR replied that the bill says at least 48 hours before the
spraying and not more than 72 hours. "We want it close enough to
the application time that it's reasonable and timely, but not so
far before...."
CHAIR BUNDE asked, "But not after the spray." She indicated that
is correct. He said that the program had gone very smoothly in
Anchorage and asked if the bill has a reporting mechanism for
poisoning or pollution from pesticides.
MS. TARR replied that issue isn't a component of this
legislation. Currently, if exposure to a pesticide takes place,
the DEC or someone in the public health sector would be
notified. The Environmental Protection Agency (EPA) used to have
an office that collated data on pesticide poisoning, but it was
disbanded because of budget constraints.
SENATOR ELLIS said:
We're trying to be as circumspect and limited in
requirements for DEC. We think if we charge this
reasonable fee and they compile the information, at
least it's available for people to be aware of it and
access it if they need it, if their health requires
it, but not to create new bureaucracies or a lot of
requirements.
MS. TARR said that section 5 asks applicators to report to the
DEC and pointed out that the applicators are already keeping
track of this information.
SENATOR SEEKINS asked what a broadcast chemical is.
MS. TARR said that is an older term that was used for what is
now called "pesticides."
SENATOR SEEKINS asked why there isn't a definition in the bill.
MS. TARR explained that a lot of pesticide applications in the
past were done aerially, so the idea was that they were
broadcast chemicals. More recently, new categories of chemicals
have been created, like insecticides, fungicides, pesticides.
SENATOR SEEKINS asked what the difference was between custom,
commercial or contract applicator.
MS. TARR replied that language was suggested by the drafters and
encompasses all the people who apply pesticides in a commercial
capacity statewide.
SENATOR SEEKINS asked if any of those terms include farmers.
MS. TARR replied that farmers would be required to report only
if they hire a commercial applicator to do their application.
Non-commercial persons buying a chemical over-the-counter have
no reporting requirement.
SENATOR SEEKINS asked specifically if that included share-
cropping, where two people agree to split the crop in exchange
for one doing the application.
MS. TARR answered, "If they haven't hired a commercial company
to do the application, it doesn't include them."
SENATOR SEEKINS asked if commercial application companies are
required to have any type of license to apply pesticides.
MS. TARR replied that currently they are and the program is
partly funded with federal money that is administered through
the cooperative extension agencies. Section 3 of SB 27 talks
about regulations for licensing of the applicators. Alaska
charges a registration fee, so the state match for the federal
funds is actually paid for by the applicators.
SENATOR SEEKINS asked what language on line 15, page 4, meant -
"The department may conduct a statistically valid household
pesticide use survey to acquire data that would complement
information received."
MS. TARR replied that one component of this bill is the creation
of a pesticide advisory board that is voluntary. Members are not
eligible for per diem or travel benefits. Part of the board's
mission is to come up with a way to address the issue of
household use. Opponents of this bill maintain that the majority
of pesticide applications in the state are actually done by
private individuals in their home, which Senator Ellis does not
dispute. In the interests of respecting a private citizen's
privacy, a component for household use is not in the bill.
Instead the department is directed to come up with a survey that
could be done on a statewide basis about what products are used
in homes and other relevant information.
SENATOR SEEKINS asked, since they don't intend to regulate
household pesticide use, why would that data need to be
gathered.
SENATOR ELLIS stepped in and said the department might think it
is useful information to get a picture of what is going on in
the state, but he didn't have any intention of going there in
the future. He hoped the pesticides weren't contributing to
health problems in Alaska, but if they are, people should know
about it.
SENATOR SEEKINS asked if the $150 fee is being charged so the
state will know which products and how much of them are being
used in the state.
MS. TARR explained that manufacturers of the products have to
register their products in each state before they can be sold.
This is the level at which the fee will be collected. Over-the-
counter products are not tracked in SB 27 beyond what is
registered for sale in the state. The $150 fee is collected
because that would pay for the program. All other states
currently charge fees. If retail level sales were to be tracked,
some other tracking mechanism would have to be developed.
CHAIR BUNDE added that DEC could probably answer some of these
questions.
SENATOR FRENCH said he has received a lot of positive feedback
from his constituents on this. He asked how much revenue this
program would bring in and how much would it cost.
MS. TARR replied that the registration fees would bring in about
$495,000 per year based on a drop-off rate of 40 percent. She
explained when other states have adopted a registration fee,
some companies decide not to register all of their products for
sale, because their inventories indicate how much product has
been shipped, what's selling and what's not. In 2008 the
licensing fee, which is charged on a tri-annual basis, brings a
bump in revenue. Operating costs are significantly less than the
revenue generated, which could be used to fund other programs in
a time of fiscal need.
SENATOR GARY STEVENS said he could see what SB 27 is trying to
do and that the board has an important function, but he was
concerned that its structure insured that its members would only
be from the Anchorage Bowl. A lot of other people are impacted,
however, in fisheries, for instance. People from Kodiak would be
precluded from serving because it would cost them substantial
monies to travel to the meetings. He asked why transportation
costs are not being covered.
SENATOR ELLIS replied that he is mindful of trying to control
costs and that video and teleconferencing are used all the time.
"I have no pride of authorship about the composition of the
board - [we're] totally open to your suggestions.... I just
think it's the kiss of death to have this cost very much money
or to require a general fund obligation...."
SENATOR STEVENS said he could not dispel the feeling that people
from the Aleutian area might be precluded from serving on this
board.
MS. KRISTIN RYAN, Director, Division of Environmental Health,
Department of Environmental Health (DEC), said the pesticide
program resides in her division. She presented a brief overview
of the existing program:
A pesticide is any substance or a mixture of
substances intended for preventing, destroying,
repelling or mitigating any pests. So, that goes from
anything from an insect to animals to bacteria and
viruses. Pesticides have been regulated in the U.S.
since at least 100 years through various government
agencies. In 1947, Congress passed the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA) as
the primary federal law for pesticide management in
the U.S. The federal law includes a registration and
reregistration of all pesticides sold in the U.S. [END
OF TAPE].
TAPE 04-16, SIDE A
MS. RYAN continued:
...the amount, the frequency and the timing of its use
and the storage and disposal practices. According to
EPA [Environmental Protection Agency], its evaluation
during this registration process is meant to determine
and put stipulations on its use so that it will not
have any adverse affect on humans or environments or
non-targeted species.
The EPA requires restrictions to be placed on the
labeling of a pesticide. No pesticide is allowed to be
used without following the label requirements. That
breaks not only state law, but federal law. EPA does
an extensive evaluation of its use to insure that it
won't harm species it's not intended to if used
properly. EPA, in turn, enters into cooperative
agreements with states, which they have done with the
State of Alaska, to implement some aspects of the
federal program. The State of Alaska trains and
certifies pesticide applicators in cooperation with
the Cooperative Extension Service. [Indisc.]
implements a field-based outreach program that focuses
primarily on agricultural worker protection,
groundwater protection and endangered species
protection. We do inspections of records of certified
applicators to insure that they are maintaining the
records we require in our regulations currently.
We also, in addition to the federal program, have a
state registration system where we, in turn, register
pesticides that EPA has already deemed appropriate. As
you've already heard from Senator Ellis' staff that
there is a large percentage and it has been increasing
every year. We're a little over 5,500 this year for
pesticides registered for use in Alaska. We receive
approximately 400 new registrations a year and we
deny, I would say, on the average of 10 a year based
on concerns that it's inappropriate to use in our
climate. We also stick an additional percentage of
those pesticides approved by EPA on a restricted use
list, meaning that they are only allowed to be used by
certified applicators.
Recently, we passed some regulations that do require
schools to publicly notify and post warnings before
pesticides are used in the state. So, they do already
have the requirement to notify the public before they
spray pesticides.
One final thing, just to clarify, the way I read the
legislation, we would only be requiring commercial
applicators to comply with certain aspects of this
legislation, but if you determine a commercial
applicator as someone who is certified by the state,
and we have approximately 994 certified recipients
right now, but some recipients receive multiple
certifications. So, that doesn't mean there's 994
people. They would all be required to report their
usage of the chemicals. Oftentimes, farmers are
required to become certified due to other rules
related to pesticide usage.
CHAIR BUNDE asked how far from a school notification has to be
posted currently or does it just have to be announced.
MS. RYAN replied that she wasn't sure of the actual distance,
but regulation says a sign is required to be posted indicating a
pesticide treated area and to keep out.
CHAIR BUNDE said she could get back to him on the distance.
MR. CLAY FRICK, Port Alexander, said he is a commercial troller
and supports SB 27.
I feel our commercial fishing industry would be best
served by having such legislation. As you know,
commercial fishing is the largest private sector
employer in the state and all we can do to promote our
fisheries, it will be so much better for it.
MR. FRICK said he thought consumers are becoming more aware of
the quality of wild raised salmon coming from a pristine
environment over farmed salmon. He noted that this legislation
also gained a seal of approval from the Marine Stewardship
Council as an important item to promote the sale of Alaska's
salmon. "The chemicals that we use in our environment have been
proved to be toxic to fish...."
He pointed out that the organic market is booming and toxins in
the environment are a growing concern. Growers in California,
like the Great Tree and Fruit League and the Western Growers
Association, have endorsed a similar law in California. It
basically quantifies and verifies what sort of chemicals are
being spread in the environment.
MS. MARIE LAVIGNE, Executive Director, Alaska Public Health
Association, supported SB 27. The association champions a
community's right to know in an effort to reduce the risk of
exposure to toxic substances and to best protect the public's
health.
We firmly believe the right to know about chemicals in
one's community, workplace or near one's child's
school is not only an important right in our
democracy, but a vital component of public health....
Hazard reduction activities and right to know programs
are an essential means of protecting individuals and
communities from harm due to the release of hazardous
chemicals. At this time, Alaskans lack access to
records to safeguard their own exposure to pesticides.
She said a recent survey indicates that 93 percent of voters
favor disclosure of pesticide use.
MR. WALT PARKER, Anchorage resident, said he is a survivor of
the federal herbicide and pesticide efforts of territorial days.
He reported that he has worked with the Arctic Council for the
last 10 years on a variety of programs dealing with
contaminants. The council has a pretty good handle on the Arctic
part of the issue, but not on the Alaskan part. It's important
to have a firm database in Alaska against which to measure
airborne pollutants and other things arriving by various means.
He felt that SB 27 provides the foundation for what Alaska needs
to participate with the federal agencies as Northeast Asia
replaces Europe and North America as the industrial center of
the world in the next 20 years.
MS. MICHELLE WILSON, Alaska Community Action on Toxics, said it
is a non-profit, statewide membership organization dedicated to
insuring the health of Alaskan communities. "We believe everyone
has a right to clean air and clean water and foods free from
toxic contamination...."
She said she strongly supports SB 27, especially the section
requiring modest label registration fees based on national
averages and steps to improving public notification of pesticide
use. She added that pregnant women, nursing mothers, children,
elders and especially those with heart conditions, chronic
illnesses and asthma are very susceptible to adverse health
effects from pesticide exposure.
We feel despite the risks of pesticide exposure, that
Alaskans are not being given adequate or timely
notification of these applications. SB 27 is an
important first step to assuring public right to know
about quantities, types and locations of pesticides in
our workplaces, our parks, our public lands and
buildings. Current onsite notification is absent or
not enforced. Notification law allows for the public
or workers in jobs to evaluate their own risks and
take precautions when necessary.
She recommended amending section 4 (2) to extend notification
from 48 to 72 hours after a pesticide application, an idea that
was unanimously adopted by the Anchorage School Board in 2000.
After spraying is when the public is especially vulnerable to
the risk of inhalation residue from pesticides.
MS. WILSON said further that after this bill was written the
State of Alaska changed regulations to allow aerial spraying of
toxic chemicals for forestry purposes, contrary to over 330
comments ranging from local governments and native councils to
Alaska shellfish and salmon industry representatives and other
agencies. Upon receiving a permit from DEC, the only
notification for aerial spraying consists of a public notice in
the newspaper. "For the hunter, the berry picker and the
fishermen, there is no notice that an area will be sprayed by
chemicals."
In conclusion, she said that the program would be self-
supporting.
MR. KEN PERRY, Anchorage resident, said he would submit written
testimony on why he opposes SB 27.
DR. ADAM GROVE, ND, supported SB 27 saying that he would forward
a couple of editorials he wrote for the newspaper describing the
ill effects of pesticides. He thought getting information out to
the public was a good first step, as well as the Pesticide
Advisory Board.
CHAIR BUNDE thanked him for his comments and said SB 27 would be
set aside for a future meeting. There being no further business
to come before the committee, he adjourned the meeting at 3:30
p.m.
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