01/25/2008 03:00 PM Senate LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| SB101 | |
| SB147 | |
| SB107 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 101 | TELECONFERENCED | |
| = | SB 147 | ||
| = | SB 107 | ||
ALASKA STATE LEGISLATURE
SENATE LABOR AND COMMERCE STANDING COMMITTEE
January 25, 2008
3:07 p.m.
MEMBERS PRESENT
Senator Johnny Ellis, Chair
Senator Bettye Davis
Senator Lyman Hoffman
Senator Con Bunde
MEMBERS ABSENT
Senator Gary Stevens, Vice Chair
COMMITTEE CALENDAR
SENATE BILL NO. 101
"An Act relating to private professional conservators and
private and public guardians."
MOVED CSSB 101(L&C) OUT OF COMMITTEE
SENATE BILL NO. 147
"An Act clarifying when a project owner or general contractor is
considered an employer for purposes of workers' compensation
exclusive liability."
HEARD AND HELD
SENATE BILL NO. 107
"An Act relating to naturopaths and to naturopathic practice;
establishing a Naturopathic Advisory Committee and an Alaska
Naturopathic Formulary Council; amending the duties of the State
Medical Board and the Board of Pharmacy relating to naturopathic
practice; and providing for an effective date."
MOVED CSSB 107(L&C) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 101
SHORT TITLE: GUARDIANSHIP AND CONSERVATORS
SPONSOR(S): LABOR & COMMERCE
02/28/07 (S) READ THE FIRST TIME - REFERRALS
02/28/07 (S) L&C, STA, FIN
03/08/07 (S) L&C AT 1:30 PM BELTZ 211
03/08/07 (S) Heard & Held
03/08/07 (S) MINUTE(L&C)
03/13/07 (S) L&C AT 1:30 PM BELTZ 211
03/13/07 (S) Moved CSSB 101(L&C) Out of Committee
03/13/07 (S) MINUTE(L&C)
03/14/07 (S) L&C RPT CS 3DP 1NR SAME TITLE
03/14/07 (S) DP: ELLIS, BUNDE, DAVIS
03/14/07 (S) NR: STEVENS
03/27/07 (S) STA AT 9:00 AM BELTZ 211
03/27/07 (S) Heard & Held
03/27/07 (S) MINUTE(STA)
03/29/07 (S) STA AT 9:00 AM BELTZ 211
03/29/07 (S) Moved CSSB 101(STA) Out of Committee
03/29/07 (S) MINUTE(STA)
03/30/07 (S) STA RPT CS 3DP 2NR SAME TITLE
03/30/07 (S) DP: MCGUIRE, GREEN, BUNDE
03/30/07 (S) NR: FRENCH, STEVENS
01/15/08 (S) RETURNED TO L&C COMMITTEE
01/24/08 (S) L&C AT 3:00 PM BELTZ 211
01/24/08 (S) -- Rescheduled to 01/25/08 --
01/25/08 (S) L&C AT 3:00 PM BELTZ 211
BILL: SB 147
SHORT TITLE: WORKERS' COMP EMPLOYER LIABILITY
SPONSOR(S): SENATOR(S) FRENCH
03/28/07 (S) READ THE FIRST TIME - REFERRALS
03/28/07 (S) L&C, FIN
01/17/08 (S) L&C AT 1:30 PM BELTZ 211
01/17/08 (S) -- MEETING CANCELED --
01/22/08 (S) L&C AT 1:30 PM BELTZ 211
01/22/08 (S) Heard & Held
01/22/08 (S) MINUTE(L&C)
BILL: SB 107
SHORT TITLE: NATUROPATHS
SPONSOR(S): SENATOR(S) DAVIS BY REQUEST
03/07/07 (S) READ THE FIRST TIME - REFERRALS
03/07/07 (S) L&C, HES, FIN
04/19/07 (S) L&C AT 1:30 PM BELTZ 211
04/19/07 (S) Heard & Held
04/19/07 (S) MINUTE(L&C)
01/15/08 (S) L&C AT 1:30 PM BELTZ 211
01/15/08 (S) -- MEETING CANCELED --
01/17/08 (S) L&C AT 1:30 PM BELTZ 211
01/17/08 (S) -- MEETING CANCELED --
01/22/08 (S) L&C AT 1:30 PM BELTZ 211
01/22/08 (S) Heard & Held
01/22/08 (S) MINUTE(L&C)
WITNESS REGISTER
DANA OWEN
Staff to Senator Johnny Ellis
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Presented SB 101 for the sponsor.
DEBORAH BEHR, Chief Assistant Attorney General
Legislation and Regulations Section
Department of Law
Juneau, AK
POSITION STATEMENT: Supported SB 101.
JOSH FINK, Director
Office of Public Advocacy
Anchorage, AK
POSITION STATEMENT: Explained SB 101.
MARIE DARLIN, Coordinator
AARP Capital City Task Force
AARP
Juneau, AK
POSITION STATEMENT: Supported SB 101.
SENATOR HOLLIS FRENCH
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of SB 147.
LINDA HALL, Director
Division of Insurance
Department of Commerce, Community & Economic Development
Juneau, AK
POSITION STATEMENT: Commented on SB 147.
PAUL LISANKIE, Director
Division of Worker's Compensation
Alaska Department of Labor and Workforce Development
Juneau, AK
POSITION STATEMENT: Commented on SB 147.
SUSAN ORLANSKY, Attorney
Feldman Orlansky & Sanders
Anchorage, AK
POSITION STATEMENT: Commented on SB 147.
JENNIFER STRICKLER, Chief
Professional Licensing
Division of Corporations, Business, and Professional Licensing,
Department of Commerce, Community & Economic Development
Juneau, AK
POSITION STATEMENT: Commented on CSSB 107(L&C).
ACTION NARRATIVE
CHAIR JOHNNY ELLIS called the Senate Labor and Commerce Standing
Committee meeting to order at 3:07:35 PM. Senators Ellis, Bunde,
Davis, and Hoffman were present at the call to order.
SB 101-GUARDIANSHIP AND CONSERVATORS
CHAIR JOHNNY ELLIS announced SB 101 to be up for consideration.
d
[CSSB 101(2 L&C) version V was before the committee.]
DANA OWEN, Staff to Senator Johnny Ellis, sponsor of SB 101,
said SB 101 has a major change. The Uniform Adult Guardianship
and Protective Proceedings Jurisdiction Act, which is a model
for a lot of states, was added. The idea is to set a uniform
standard for dealing with cases that reach across state lines.
In addition, he said Josh Fink, Director, Office of Public
Advocacy, has asked for a few small changes. On page 9, sections
17 and 18 have been added; section 17 gives the court authority
to make a finding of incapacity in absence of expert testimony
in cases where the respondent stipulates to the incapacity.
Section 18 mandates written findings in cases where the court
deviates from the priority list of potential guardians. Section
20 has the same mandate for written findings in the case of
conservators. Section 21 provides that records of cases
involving public guardians are confidential except where they
are relevant to an investigation of a public guardian who has
provided guardianship or conservator services. There are various
conforming amendments throughout the bill.
3:10:41 PM
DEBORAH BEHR, Chief Assistant Attorney General, Legislation and
Regulations Section, Department of Law, Juneau, said she also is
a uniform law commissioner for the state that brought the
Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act forward. It is good public policy for Alaska
families. She said SB 101 is supported by the National College
of Probate Judges and the National Guardianship Foundation. The
Department of Health and Social Services supported it as well.
MS. BEHR said that Alaska family are often transient and have
family members in several parts of the US. So, for example, if
she had a mother in Fairbanks, a brother in Virginia and a
sister in California and mother visits sister in California and
has a major event like a stroke and becomes incapacitated, the
court has difficulty deciding which court should handle that
case. In the time you are arguing over which court should handle
it, it's expensive to families. This bill would set up a
priority system among the states as to who should handle these
cases so they can look at what is in the best interest of an
incapacitated family member. So in the example, the family could
go to the California court and say the sister is the best person
to take care of her even though she was with the mother only a
couple of months. The California court under this bill could
easily work with the Alaska court and come up with a plan. SB
147 would also make it easier to transfer guardianship back up
to Alaska. It's cheaper and less stress for families.
3:13:26 PM
JOSH FINK, Director, Office of Public Advocacy, said Mr. Owen
went through the changes and he would give the rationale behind
them. The issue in section 17 was that under current statute,
they are required to provide psychological examination of any
respondent where a petition is filed for a protective order.
This language allows the respondent in instances where he or she
doesn't object to an appointment to forego the need for a
psychological evaluation, which can be very expensive. Rural
parts of the state need to fly a psychologist out or fly the
petitioner and a guardian in.
He explained that under current law sections 18 and 20 for
guardianships and conservatorships have a priority as to who
should be appointed a public guardian or conservator. The order
starts with the person requested by the respondent, then the
spouse, then the adult child or parent, then a relative, family
friend, private guardian and then finally, as a last resort, the
Office of Public Advocacy. This change simply asks that the
court make written findings as to why someone was appointed.
Sometimes, he explained, family members exploit the protected
person or were part of the problem and yet after the appointment
they are at his door trying to micromanage the ward's affairs.
This gives his office a written record of why that person was
not appointed. Making the court explain what it is doing is just
good policy.
MR. FINK said that section 21 is new and exempts public guardian
records from the Public Records Act, because they contain very
personal information like mental health evaluations and personal
family affairs. It's a grey area of the law right now, he
explained, and he wasn't sure if someone asked to see one of
those files that they could be shared or not.
He said section 23 on page 11 clarifies the statute to allow OPA
to go forward on a practice they have been doing since 1986. He
explained that he collects a monthly fee established in
regulation of $40 a month; and for some clients that is a
hardship. OPA can defer the fees until the client comes into
money. If a ward is transferred to a private guardian or family
member or dies, the OPA typically collects the fees after burial
expenses are paid and then have released the remaining funds to
the family. The office already does this, but this language
makes it clear.
3:18:04 PM
SENATOR BUNDE asked how a person can either agree or disagree to
a process that judges them incompetent.
MR. FINK replied that there are two standards: guardianship is a
higher level of incapacity than for conservatorship, which is
just an inability to manage finances. The current practice is a
court visitor goes out and collects whatever medical records are
available and often they are able to get the doctor to be the
expert. Often, particularly with conservatorships, the
respondent will have no objection to the appointment. In some
rural areas the judge has said a person is agreeing to the
protective order, but under the law he has to have him
evaluated. So, he has to be flown in with a caretaker or a
psychologist has to be flown out. It is exceedingly expensive.
If the ward was incapacitated such that consent was an issue, he
couldn't stipulate. There would have to be a psychological
evaluation. Competency means you have to understand the
proceedings you are involved with and what you are doing, he
added.
3:20:03 PM
MARIE DARLIN, Coordinator, AARP Capital City Task Force, AARP,
said she had provided a letter of support to the committee. With
the increasing senior population there will be a bigger need for
this kind of service, she said. Incapacitated elders often have
problems with those kinds of cases. AARP fully supported the
idea behind the legislation.
3:21:25 PM
SENATOR DAVIS moved to adopt CSSB 101(2d L&C), version V. There
were no objections and it was so ordered.
3:22:02 PM
SENATOR BUNDE moved to report CSSB 101(2d L&C) from committee
with individual recommendations and attached fiscal note(s).
There being no objection, the motion carried.
3:23:05 PM
SB 147-WORKERS' COMP EMPLOYER LIABILITY
CHAIR ELLIS announced SB 147 to be up for consideration.
SENATOR HOLLIS FRENCH, sponsor of SB 147, said this bill tries
to fix a severe inequity that the addition of three words "or
potentially liable" for securing payment or compensation to the
workers' compensation statutes created when it last went through
the legislature. This means that employers who are merely
"potentially liable" for buying a workers' compensation policy,
but who do not actually purchase a policy, can still get the
benefit of the exclusiveness of remedy provisions in workers'
compensation statutes.
3:24:37 PM
LINDA HALL, Director, Division of Insurance, Department of
Community, Commerce and Economic Development, said she has
talked with four attorneys and she is not quite sure she
understands it.
3:25:58 PM
SENATOR BUNDE asked if Tesoro didn't have workers' compensation
and hired a sub who did have workers' compensation and the sub's
employee got hurt, was his compensation limited to workers
compensation. But if Tesoro purchased workers' compensation and
the person gets hurt, is Tesoro immune from tort suits.
3:27:46 PM
MS. HALL said she couldn't answer the question.
PAUL LISANKIE, Director, Division of Worker's Compensation,
Alaska Department of Labor and Workforce Development, said he is
not an expert in tort legislation either, but he attempted to
explain:
Under the 2004 law the project owner would be
potentially liable for everybody below for their
workers' compensation only if the people that had the
primary responsibility failed to cover that
responsibility. So they would only be responsible for
that injured subcontractor if both the subcontractor
employer and the intermediary general contractor, both
of them, failed to cover the workers' compensation
coverage. Then the project owner would be responsible
for paying those workers' compensation benefits and in
exchange, in a sense, they would not be liable for
being sued for the damages. That was under '04. They
weren't very likely to have to pay workers'
compensation. I would certainly agree with that
characterization, that the primary responsibility is
with the subcontractor employer. And presumably most
of them follow the law. If they fail, then it would
move up one step to the general contractor for whom
they are working and most of them follow the law and
have workers' compensation liability coverage.
But in the event that both of those fail, then it
would flow up to the project owner and under the laws
that were changed in 2004, they would now have
responsibility for workers' compensation payments that
they didn't use to have.
But the change in '04 was they were added to the mix
of people that had this very somewhat attenuated
liability for the workers' compensation benefits to
the lower employees. They didn't use to have that. It
used to stop at the general contractor. They were the
only intermediary other than the actual employer that
was required to pay workers' compensation benefits. In
'04 the project owners were added to be kind of
suspenders on top of the belt on top of the belt. So
it was like primary responsibility with the employer,
secondary responsibility with the general contractor,
and tertiary responsibility with the project owner.
In exchange, for that, if you think it's worth
anything, you know, then they were exempt from being
sued for that same injury - even if they were
negligent.
So now what this bill before you is talking about is
taking it back in the other direction and saying that
that is a too attenuated liability. It's extremely
unlikely....that they will end up paying workers'
compensation even if they have coverage.
So, as I understand it, it will be changed so that if
for some reason they actually pay the benefits, that
they will not be sued or they cannot be sued. But the
mere fact that they might under some set of
circumstances be liable will not longer shield them
from a tort suit for their own negligence.
3:32:03 PM
SENATOR BUNDE asked if under current law the owner that doesn't
have to buy workers' comp, and if it went to trial the most they
would be liable for would be the workers' compensation benefits.
MR. LISANKIE replied with what he understood from discussions
with Ms. Hall and others that a project owner is typically a
company, and it has the responsibility to cover workers'
compensation benefits for its employees; this would be an add on
to that. The question is how much credit should be extended
potentially to an employee - not their own - but of this other
company that is working for them.
3:33:38 PM
SUSAN ORLANSKY, Attorney, Feldman Orlansky & Sanders, Anchorage,
said Mr. Lisankie's understanding of the law comports with her
understanding both of how it is working currently and how it
would be changed under this bill.
SENATOR BUNDE asked if this bill passes, then the owner would
not be forced to buy workers' compensation, but even if he
bought it, an employee of a subcontractor who got hurt could sue
the owner.
MS. ORLANSKY said she understands the way the bill would work is
if an employee of a subcontractor were hurt and the
subcontractor didn't carry workers' compensation insurance and
the general contractor didn't either, if the project owner had
workers' compensation or stepped up to the plate and provided
the equivalent of workers' compensation benefits, then he would
be exempt from a tort suit. If the cause of the accident was due
to the project owner's negligence and he didn't have workers'
compensation coverage, he could be subject to a tort lawsuit.
3:36:03 PM
SENATOR BUNDE said he agreed with Senator French about fairness.
If this passes it would be unfair for owners of companies that
would buy the insurance but still be subject to a personal
injury suit. However, it may not be any fairer to leave it in
place.
3:38:41 PM
SENATOR HOFFMAN said he still doesn't feel comfortable with the
issue.
CHAIR ELLIS said he would like to expand the discussion to allow
more members of the Senate to express themselves.
3:39:28 PM
SENATOR FRENCH added that there is a policy decision to be made
here and he agreed with expanding the discussion. There is no
perfect solution to every legal issue. However, he thought this
bill restores a fundamental balance in the workers' compensation
law.
CHAIR ELLIS said he would hold the bill for further
consideration.
SB 107-NATUROPATHS
CHAIR ELLIS announced SB 107 to be up for consideration. [Before
the committee was CSSB 107(L&C) version E.] He said the CS had
addressed the labor and commerce issues, but Senator Bunde had a
concern about possibly adding another public member to the
board.
JENNIFER STRICKLER, Chief, Professional Licensing, Division of
Corporations, Business, and Professional Licensing, Department
of Commerce, Community & Economic Development, said she would
address the composition of the board. She said that licensing
boards that have five members usually have just one public
member. Currently 10 professional licensing boards have five
members where only one is a public member. If the board grows, a
public member is added.
CHAIR ELLIS said he thought the comfort level may increase with
more public members. But adding two public members instead of
the one would make the board even numbered, so ties could be a
problem, but maybe they could operate on consensus.
3:43:24 PM
SENATOR BUNDE said he had received some communications from
people supporting the bill that said the department of law could
do any enforcement, but his experience is that they would have
neither the time nor the people to do it. He thought that the
public, particularly in the area of health, needs to be
protected and he would be far more comfortable increasing the
number of public members by two. The three naturopaths would
dominate the board and make decisions in favor of naturopaths
that may not necessarily go in favor of the general public. The
committee was not given accurate information in the first place
and he still has reservations about the bill.
SENATOR BUNDE moved a conceptual amendment (Amendment 1) to
expand the public membership to include three public members,
adding two from what it is in the CS.
3:45:49 PM
CHAIR ELLIS objected for purposes of discussion.
MS. STRICKLER didn't object to that, but wanted to state that
currently there are only 44 naturopaths licensed by the state,
37 of them have Alaska addresses. This would be a large board
regulating a very small group.
3:46:21 PM
SENATOR DAVIS offered that one could be taken away from the
doctors and two could be public members; one of the public
members could be an MD.
SENATOR BUNDE noted the fifth member was a pharmacist.
3:46:58 PM
SENATOR DAVIS asked Ms. Strickler what she thought about having
the same number of doctors and public members.
MS. STRICKLER replied that she had no comment and she would
enforce whatever they decided to do.
SENATOR DAVIS asked to make that a friendly amendment.
SENATOR BUNDE said he didn't object.
SENATOR BUNDE summarized that they would continue to have a five
member board and two would be naturopaths, two would be from the
public and one would be the pharmacist. He moved to amend the
amendment saying if an MD chose to, he could be considered for
appointment as one of the public members. There were no
objections. Without further objections conceptual Amendment 1 am
was adopted.
3:48:28 PM
SENATOR HOFFMAN moved to report CSSB 107(L&C) from committee
with individual recommendations and attached fiscal note(s).
There being no objection, the motion carried.
There being no further business to come before the committee,
Chair Ellis adjourned the meeting at 3:49:16 PM.
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