04/12/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB152 | |
| SCR8 | |
| HB95 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| * | SCR 8 | ||
| HB 95 | |||
| = | SB 152 | ||
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
April 12, 2005
3:39 p.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Thomas Wagoner, Vice Chair
Senator Charlie Huggins
Senator Bettye Davis
Senator Kim Elton
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 152
"An Act making a special appropriation for a survey to review
pay differentials; and providing for an effective date."
MOVED CSSB 152(STA) OUT OF COMMITTEE
SENATE CONCURRENT RESOLUTION NO. 8
Encouraging the Regulatory Commission of Alaska expeditiously to
complete its investigation of the Cook Inlet Gas Gathering
System.
MOVED SCR 8 OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 95(RLS) am
"An Act relating to the duties of the Department of Health and
Social Services as those duties pertain to public health and
public health emergencies and disasters; relating to medical
treatment, information, isolation and quarantine for the
prevention and management of conditions of public health
importance; relating to duties of the public defender and office
of public advocacy regarding public health emergencies and
disasters; relating to liability for actions arising from public
health procedures; making conforming amendments; relating to the
treatment and transportation of dead bodies; amending Rules 4,
7, 8, 38, 40, 65, 72, and 77, Alaska Rules of Civil Procedure;
and providing for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 152
SHORT TITLE: APPROP: COST-OF-LIVING SURVEY
SPONSOR(s): SENATOR(s) WAGONER
03/24/05 (S) READ THE FIRST TIME - REFERRALS
03/24/05 (S) STA, FIN
03/31/05 (S) STA AT 3:30 PM BELTZ 211
03/31/05 (S) Heard & Held
03/31/05 (S) MINUTE(STA)
BILL: SCR 8
SHORT TITLE: COOK INLET GAS GATHERING SYSTEM COMPLAINT
SPONSOR(s): RESOURCES
04/06/05 (S) READ THE FIRST TIME - REFERRALS
04/06/05 (S) STA, RES
04/12/05 (S) STA AT 3:30 PM BELTZ 211
BILL: HB 95
SHORT TITLE: PUBLIC HEALTH DISASTERS/EMERGENCIES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) HES, JUD
02/10/05 (H) HES AT 3:00 PM CAPITOL 106
02/10/05 (H) Moved CSHB 95(HES) Out of Committee
02/10/05 (H) MINUTE(HES)
02/11/05 (H) HES RPT CS(HES) NT 2DP 2NR 1AM
02/11/05 (H) DP: CISSNA, WILSON;
02/11/05 (H) NR: GARDNER, ANDERSON;
02/11/05 (H) AM: KOHRING
03/04/05 (H) JUD AT 1:00 PM CAPITOL 120
03/04/05 (H) Heard & Held
03/04/05 (H) MINUTE(JUD)
03/07/05 (H) JUD AT 1:00 PM CAPITOL 120
03/07/05 (H) Moved CSHB 95(JUD) Out of Committee
03/07/05 (H) MINUTE(JUD)
03/09/05 (H) JUD RPT CS(JUD) NT 1DP 6NR
03/09/05 (H) DP: ANDERSON;
03/09/05 (H) NR: GRUENBERG, KOTT, DAHLSTROM,
COGHILL, GARA, MCGUIRE
03/31/05 (H) RLS AT 9:00 AM FAHRENKAMP 203
03/31/05 (H) Moved CSHB 95(RLS) Out of Committee
03/31/05 (H) MINUTE(RLS)
04/01/05 (H) RLS RPT CS(RLS) NT 3DP 2NR 1AM
04/01/05 (H) DP: HARRIS, MCGUIRE, ROKEBERG;
04/01/05 (H) NR: COGHILL, KOHRING;
04/01/05 (H) AM: BERKOWITZ
04/01/05 (H) RETURNED TO RLS COMMITTEE
04/05/05 (H) TRANSMITTED TO (S)
04/05/05 (H) VERSION: CSHB 95(RLS) AM
04/06/05 (S) READ THE FIRST TIME - REFERRALS
04/06/05 (S) HES, JUD
04/08/05 (S) STA REPLACES HES REFERRAL
04/12/05 (S) STA AT 3:30 PM BELTZ 211
WITNESS REGISTER
AMY SEITZ,
Staff to Senator Wagoner
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 152 for the sponsor
ART CHANCE, Director
Labor Relations
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Answered questions about SB 152
MARY JACKSON,
Staff to Senator Wagoner
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SCR 8 for the sponsor
KATE GIARD, Chair
Regulatory Commission of Alaska
701 W Eighth Ave., Suite 300
Anchorage, AK 99501
POSITION STATEMENT: Supports SCR 8
DAN BRANCH,
Senior Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions about CSHB 95(RLS)am
DR. RICHARD MANDSAGER, Director
Division of Public Health
Department of Health &
Social Services
PO Box 110601
Juneau, AK 99801-0601
POSITION STATEMENT: Discussed House amendments to CSHB
95(RLS)am
MR. MICHAEL MACLEOD-BALL, Executive Director
Alaska Civil Liberties Union (AkCLU)
Anchorage, AK
POSITION STATEMENT: Discussed AkCLU's concerns with CSHB
95(RLS)am
ACTION NARRATIVE
CHAIR GENE THERRIAULT called the Senate State Affairs Standing
Committee meeting to order at 3:39:08 PM. Present were Senators
Davis, Huggins, Wagoner and Therriault. Senator Elton arrived
momentarily.
SB 152-APPROP: COST-OF-LIVING SURVEY
CHAIR GENE THERRIAULT announced SB 152 to be the first order of
business. He recognized Ms. Seitz and noted the proposed
amendment.
AMY SEITZ, Staff to Senator Wagoner, reminded members that the
issue of using Seattle as the out-of-state reference for the
cost-of-living survey was discussed at a previous hearing on the
bill. The discussion centered on the fact that the cost-of-
living in Seattle has increased so much that Alaska state
employees living in Seattle would get a higher pay increase than
in-state employees. The proposed amendment would change the
location for the cost-of-living survey to the greater Puget
Sound area.
SENATOR THOMAS WAGONER motioned to adopt Amendment 1, labeled
A.1.
CHAIR THERRIAULT announced that without objection, the motion
carried.
3:41:35 PM
MS. SEITZ told members the cost of the study was also discussed
and most members feel $500,000 is reasonable.
CHAIR THERRIAULT said he anticipates that the Senate Finance
Committee would wrap the cost into a larger appropriation bill
and consider the amount at that time.
SENATOR WAGONER asked that the Administration speak to the cost
of the study and how the findings would be implemented.
ART CHANCE, Director, Labor Relations, Department of
Administration, felt confident the state could get a competent
survey for $500,000. He said he does not believe the
implementation costs of the 1984 study were ever truly
determined. Many of the findings were implemented through union
negotiations and arbitrations - the process of implementation
created considerable controversy. He said unless the legislation
specifically says otherwise, the study's findings would just
count as a suggestion for employees whose wages are established
by collective bargaining. He further stated:
To the extent that we still recognize it, and we've
sort of changed the way we pay those people, their
contracts still reflect the old federal 25 percent
differential for cost of living - never able to
successfully truly change that. We were able to
bargain and adjudicate implementation with all the
other represented employees the results of the '84
study. It wasn't until ... the '89 round of bargaining
that we actually got it all implemented, applying to
all other represented employees of the executive
branch. To make it apply to non-union employees, you
would have to enact it in statute as a part of the
39.27.011 state pay plan.
The Administration has taken no position on this
aspect of it but I can tell you that I do not relish
the idea of having to bargain all of this into all of
our contracts and if I were to have to bargain that, I
would be over here asking you for money for the next
round of bargaining to support that bargaining
endeavor, particularly with those units that have
interest arbitration.
For those of you who aren't intimate to the collective
bargaining process, those employees who cannot strike
if we do not agree with them voluntarily, they submit
their proposals to an arbitrator, the state submits
its and the arbitrator decides. To get such a general
state study into those contracts I would probably have
to hire the contractor and maybe some other economist
to come in and testify to that interest arbitrator and
convince them - have the arbitrators agree with the
state that the results of such a study are, in fact,
the differentials that should be applied to those
contracts. That's particularly important with the
state troopers, since they are all over the state and
tend to be in some of the higher cost areas. I'll
guarantee you if a new study were to reflect a lower
differential to that which they currently have, they
would resist it vehemently. It's somewhat important to
some institution employees. We do have correctional
facilities and correctional officers, which are class
1 in Nome, Bethel, and there's long been agitation for
a geographic differential for Spring Creek.
So these are all things that we would have to contest
either through a negotiated agreement or through
interest arbitration. And then the legislature to
apply it to non-covered employees would have to enact
it in statute and the results of the '84, despite
several attempts, have never been enacted into
statute.
3:47:32 PM
SENATOR WAGONER asked what would happen if the federal cost-of-
living allowance (COLA) goes away, particularly with marine
highway employees.
MR. CHANCE responded marine highway employees have had
collective bargaining long before PERA, perhaps since 1962.
SENATOR ELTON asked if this bill obligates the DOA to contract
for a study sometime in the next fiscal year. He anticipated the
contract obligation to be fulfilled 18 to 24 months from now.
MR. CHANCE said it could be sooner. He thought an RFP could be
out on the street by September. He thought most of the survey
could be completed in that fiscal year but assumed the remote
site and statistical data would be done in the second fiscal
year. He noted the Division of Personnel has a good research
section so it would not be starting from scratch.
SENATOR KIM ELTON said it appears the report will go to the
executive branch and not to the legislature.
CHAIR THERRIAULT said the money would be appropriated to DOA,
which would conduct the study.
SENATOR ELTON asked if DOA would incur any obligation to vet the
study.
MR. CHANCE maintained that DOA would have an obligation to
manage it. He anticipates the Division of Personnel would make a
proposal to the legislature to adopt some sort of state
personnel pay plan to replace the current plan. It would be his
job to follow the legislative directive to achieve success in
bargaining.
3:52:48 PM
CHAIR THERRIAULT informed members the bill does not have a
fiscal note because it is an appropriation bill.
3:52:55 PM
SENATOR WAGONER motioned to report CSSB 152(STA) and attached
fiscal notes from committee with individual recommendations.
There being no objection, it was so ordered.
SCR 8-COOK INLET GAS GATHERING SYSTEM COMPLAINT
CHAIR GENE THERRIAULT announced SCR 8 to be up for
consideration.
MARY JACKSON, Staff to Senator Wagoner, told members that the
Senate and House Resources Committees met in Kenai last February
and listened to industry make 8 different points. SCR 8
addresses one of those points by encouraging the Regulatory
Commission of Alaska (RCA) to complete its investigation of the
Cook Inlet Gas Gathering System (CIGGS). The RCA has developed
an accelerated review process for the CIGGS and the complaint
before it. An RCA commissioner attended the February meeting and
spoke about the need to go forward with the complaint. SCR 8 is
to be complementary to the RCA's efforts. Furthermore, the
Senate Resources Committee chair does not intend to take sides
on this issue, she said.
3:56:24 PM
KATE GIARD, Chair, Regulatory Commission of Alaska, testified
via teleconference and told members she appreciates knowing that
the legislature cares enough about an issue to bring forth a
resolution. That enables the RCA to keep its eyes on the "bottom
line" issues that are important to the state as a whole.
She informed members that she could discuss the guidelines the
RCA is using for the case.
3:57:43 PM
CHAIR THERRIAULT asked Ms. Giard if anything in SCR 8 could be
used as justification for either party's argument.
MS. GIARD replied, "As long as I keep within the yellow line, I
think you guys are free to wander as you will." Both parties are
highly respected and have a large economic impact on Cook Inlet;
so when the parties clash the issues can be quite divisive and
technical in nature. She believes SCR 8, as drafted, is
respectful of the complexity of the issue.
CHAIR THERRIAULT asked if anything about the issue is time
sensitive or whether the legislature weighing in would benefit
one party over the other.
MS. GIARD replied:
No, because we'll ignore you if we feel that what
you're doing is going to put this case in a conflict
with due process - respectfully so. But what I hear
you saying is that you want us to expeditiously but
carefully - and certainly Ms. Jackson's opening
statements reiterated that - consider the matter.
Don't let it sit. Too much is at stake. We hear you
and we feel that ourselves.
SENATOR THOMAS WAGONER thanked Ms. Giard for her candor and
desire to bring the matter to a quick conclusion.
SENATOR KIM ELTON asked whether the RCA's definition of
"expeditious" is the same as the sponsor's definition.
MS. GIARD said she believes the sponsor means: do a good job, do
it fast, don't let it sit, but don't put it in conflict with due
process otherwise the RCA will end up in court and the issue
will never get resolved.
SENATOR WAGONER suggested that the RCA has adopted a very
aggressive schedule, which is in tune with what the resolution
requests.
MS. GIARD told members the RCA adopted that schedule in early
March as the result of conversations it had earlier in the year
on the Kenai, but the RCA has a sense of urgency on the matter
as well.
4:01:07 PM
CHAIR THERRIAULT said the legal counsel to the Legislative
Budget and Audit Committee has not expressed concern that this
decision would have any future impact on the gas pipeline from
the North Slope and spur lines to Southcentral. He asked if any
of the issues the RCA is being asked to weigh in on could apply
to those lines.
MS. GIARD said she doesn't know what ramifications the final
order will have on other gas lines on the North Slope. She said
the RCA will make a thoughtful order that addresses in detail
the statutory and decision-making process the RCA went through.
4:02:18 PM
CHAIR THERRIAULT closed public testimony and mentioned the two
fiscal notes.
4:02:52 PM
SENATOR WAGONER motioned to report SCR 8 and two attached fiscal
notes from committee with individual recommendations.
CHAIR THERRIAULT announced that without objection, the motion
carried.
CSHB 95(RLS)am-PUBLIC HEALTH DISASTERS/EMERGENCIES
CHAIR GENE THERRIAULT announced CSHB 95(RLS)am to be up for
consideration and informed members it is the House equivalent of
SB 75, previously heard by the committee.
4:03:51 PM
DAN BRANCH, Senior Assistant Attorney General, Department of Law
(DOL), said he provides legal representation to the Division of
Public Health. He said DOL approves of the many changes that
were made in response to comments expressed by various entities
and members of the House Judiciary and House Rules Committees.
CHAIR THERRIAULT reminded members when SB 75 was heard in the
Senate State Affairs Committee, members were asked to hold it
and await the House version. He asked Dr. Mandsager to bring
the committee up to speed on the general issue and then discuss
the changes made in the House.
DR. RICHARD MANDSAGER, Director, Division of Public Health,
Department of Health and Social Services (DHSS), told members
CSHB 95(RLS)am reforms Alaska's public health laws. Alaska is
the only state in the country without quarantine authority in
the case of a bioterrorism event. Just such an event was the
major reason for the bill's introduction and another was to
address the Alaska Law Review study in 2000 that found Alaska's
public health laws to be antiquated. Most of those laws date to
pre-territorial days with a few updates for specific epidemics.
In addition to creating a statutory framework to support public
health mission services and roles, the bill states clear
authority for control and updates the due process provisions.
DR. MANDSAGER said the House made four categories of change to
the bill. The first category pertains to the limitation on
governmental powers. Clearly identifying those limits has been
the focal point of discussion in committees. The second category
deals with penalties for state employees for violation of
statutory provisions. That was the sole focus of debate on the
House floor. The third category is personal responsibility
regarding issues raised by Christian Scientists and the AkCLU
about both individual responsibility and choice. The fourth
category addresses miscellaneous changes.
4:09:48 PM
DR. MANDSAGER detailed the specific amendments made to the bill
as follows. First, the title of the bill was changed to add
detail and clarity. Second, the bill was amended to allow claims
for damages caused by medical treatment provided by state
employees. This issue centered on state liability for a state
employee who supervises medical treatment, like any other
medical practitioner in the state. The decision was to hold
state employees to the same standard of care as other medical
practitioners. Third, the bill limits the state's immunity to
$500 per day if it isolates a person with gross negligence or
intentionally violates a provision governing quarantine and
isolation. The bill originally gave the state total immunity. He
pointed out a state employee can only quarantine an individual
without court supervision for a maximum of 72 hours.
SENATOR KIM ELTON asked if state denial of access to legal
counsel to a quarantined person would subject the state to the
$500 per day penalty.
MR. BRANCH said that would be a matter for the court to decide
because the court would appoint legal counsel for the
individual.
DR. MANDSAGER continued to say that the division had lengthy
discussions with the AkCLU about the acquisition and use of
identifiable health information. The language in the bill limits
the division's access to medical information that relates
directly to a public health purpose that cannot be achieved at
least as well using non-identifiable health information. He said
the division can accomplish a lot with non-identifiable health
information.
4:13:40 PM
CHAIR THERRIAULT referred to subsection (2) on page 3 of the
bill and asked how damages caused by the failure to establish a
quarantine would work.
MR. BRANCH said the main concern of the House members who asked
for that change was for an individual to have some recourse if
the state fails to provide the rights set out in the statute. He
explained if someone gets quarantined on an emergency order and
the state fails to notify the court within 48 hours, that person
would have recourse to get $500 per day for that violation. He
said the House felt that penalty was necessary to provide the
bill with "teeth." The penalty does not apply to the failure to
impose or establish quarantine; it applies when quarantine was
imposed and an individual feels his/her statutory rights were
violated.
CHAIR THERRIAULT clarified that subsection (2) is a limitation.
DR. MANDSAGER continued to say that a further change is that the
collection of health information is limited with a higher bar
under AS 18.15.355-395 than other limitations. He stated, "We're
dealing with personal health problems. We don't want people to
be branded with some scarlet letter that they have some bad
problem and so on - that we need to achieve a very high standard
if we're going to get information under this act."
The bill also says that as soon as the division is finished with
medical information, the information must be confidentially
expunged immediately. The last two changes pertain to
misdemeanor penalties for knowingly disclosing identifiable
health information or for knowingly violating a provision
related to quarantine and isolation. A compromise worked out on
the House floor was that intentional disclosure of information
is punishable by a class A misdemeanor. That is consistent with
other statutes that pertain to state employee confidentiality
requirements.
4:18:12 PM
SENATOR ELTON asked what would happen if a state employee
discloses information and did not know about the confidentiality
requirement.
MR. BRANCH said the district attorney wouldn't prosecute such a
case because the employee's mental state could not be proven.
SENATOR ELTON remarked ignorance of the law isn't an excuse.
MR. BRANCH responded the words "knowingly" and "intentionally"
are terms of art defined in AS 11.81.900. His understanding is
that to act knowingly means the employee was aware of the
statutory requirement and acted anyway. He offered to discuss
the matter further with Senator Elton's staff.
SENATOR ELTON said his concern is that a person who is given the
power of quarantine should know the law.
DR. MANDSAGER agreed with Senator Elton that it is the division
managers' responsibility to make sure that staff knows the law.
He continued describing the next change made by the House, which
provides the right to refuse treatment if the individual is
willing to take steps to prevent the spread of a communicable
disease. The least restrictive alternative would be used
whenever possible when isolating or quarantining individuals.
"Least restrictive alternative" is defined in the bill. The
division's experience is that most of time the state does not
have to get a court order to isolate an individual because
people tend to voluntarily agree. The division always needs to
pursue that route before taking court action.
DR. MANDSAGER said another issue of concern was that quarantines
might be imposed on flu victims or people with ordinary
infectious diseases. For that reason, the bill said the illness
must pose a significant risk to public health before isolation
or quarantine can occur.
SENATOR ELTON pointed out that other provisions of the bill
refer to a substantial risk to public health. He asked why
"substantial" was used elsewhere.
DR. MANDSAGER noted the word "substantial" remains in two places
in the bill. He asked Mr. Branch if that matters from a legal
perspective.
CHAIR THERRIAULT suggested that for consistency the committee
should make the change now, otherwise the courts would argue
about it for years.
MR. BRANCH said the division worked with Legislative Legal and
Research Services to try to get the same term used.
DR. MANDSAGER said the word "substantial" is used on page 13,
line 19. That word is linked to risk of transmitting a
contagious disease. The word "significant" is used when it poses
a significant risk to public health. He again asked Mr. Branch
if he thought that makes a difference from a legal standpoint.
MR. BRANCH replied there is justification for using the
different terms even though they are similar. He said the
statement about discussing the matter with Legislative Legal and
Research Services is still accurate. He believes the bill
appropriately distinguishes between the two terms.
DR. MANDSAGER said the next change states preference for home
quarantine or isolation unless exceptional circumstances exist
that would jeopardize public health. The House also requires on
page 14 that an affidavit in a court petition must contain
specific facts to support allegations. The petition must include
all of the elements listed on page 14.
DR. MANDSAGER said the next change removes denial of party
status to parents or guardians of a minor in isolation or
quarantine proceedings. The next change adds a paragraph that
says that a person exposed to hazardous materials that can cause
serious illness or injury by transmission to others could be
subject to quarantine or isolation. He gave two examples: severe
radiation exposure and the Sarin incident in Japan, where people
who were exposed to the Sarin gas could expose other people to
it when exhaling. The division is also required to submit an
annual report to the legislature on its activities under this
statute. Definitions of "least restrictive" and "public health
purpose" were added. Indirect court rule amendments were also
added to address the court changes. Last, a provision was added
to the bill that urges the division to apply for appropriate
funding sources related to transforming health care quality
through information technology.
4:28:00 PM
CHAIR THERRIAULT asked Dr. Mandsager which areas of the bill are
still contentious.
DR. MANDSAGER said the director of the AkCLU does not feel that
the bill goes far enough regarding the standards the division
would have to achieve before instituting a quarantine or
isolation. The bill has come a long way but he would like it to
be more specific.
SENATOR WAGONER asked how this legislation compares to
quarantine legislation in other states.
DR. MANDSAGER said quarantine laws vary among the states. Some
states have authority that can be enhanced or provide for
expedited performance during an emergency. Some states updated
their emergency powers after 911. He said if one compares this
bill to the model act that was developed, this legislation is
more restrictive regarding governmental powers and reflects
Alaska's privacy standards. The quarantine and isolation
provisions require more steps and court action than the model
act.
MR. BRANCH told members Alaska's current statute is unique in
that it does not give the division authority to quarantine or
isolate for anything but SARS or TB. In general, other states
have more authority because it is necessary to deal with
bioterrorism.
CHAIR THERRIAULT asked if the enhanced or expedited performance
authority that other states have is triggered by a declaration
from the executive.
DR. MANDSAGER said that is usually the case, but in some states
a commissioner of health has similar authority.
SENATOR ELTON recollected the committee discussed the definition
of "condition of public health importance" (page 19, line 23)
because obesity could fall under that definition. He asked
whether tightening that definition by using the word "acute" or
something that more narrowly defines collection of information
was considered.
DR. MANDSAGER said that definition has been discussed and the
AkCLU discussed a 2 or 3-tiered system. The division struggled
with that question and didn't think it could come up with
language inclusive enough to do that. The division feels that
definition is balanced by the other tests it must achieve before
it can do work in the areas of "condition of public health
importance."
CHAIR THERRIAULT asked if the House committees debated how to
rein that definition in and just couldn't come up with workable
language.
MR. BRANCH said it was addressed but in a different context.
Using Senator Elton's example of establishing obesity as an
excuse to collect private information, he noted that the
language on page 9, lines 10-18, limits the division's ability
to collect identifiable information.
DR. MANDSAGER said all of the amendments made in the category of
limitations of governmental powers limit the division's power to
collect identifiable health information, to quarantine, and to
isolate. The amendments reflect the House's attempt to strike a
balance rather than change the definition.
MR. BRANCH told members that on page 9 a provision was added to
AS 18.15.362, which limits acquisition of information. In
conjunction with AS 18.15.365, it is designed to enhance
security safeguards.
DR. MANDSAGER pointed out that identifiable information wouldn't
be necessary to get obesity data; that data could be obtained
with non-identifiable information.
SENATOR ELTON said he was still struggling with the definition
and asked that the AkCLU comment.
4:37:03 PM
CHAIR THERRIAULT asked Mr. Michael MacLeod-Ball to testify.
MICHAEL MACLEOD-BALL, Executive Director, Alaska Civil Liberties
Union (AkCLU), opined that this version of the bill is
substantially better than the original version. Although he
appreciates the efforts the division has made to accommodate
some of the AkCLU's concerns, it still has some concern about
the degree of privacy and the amount of information the division
needs to do its job and the risks of limiting that information
further.
MR. MACLEOD-BALL said the AkCLU continues to be concerned about
the following areas. First, the "conditions of public health
importance" enforcement provisions require the division to prove
that a significant risk to public health exists to maintain its
quarantine order on people quarantined against their will. He
questioned the enforcement procedure and whether due process
would be served if the state acts improperly. Adding the
provisions that require the state to prove an individual poses a
significant risk to public health helps protect the individual's
rights. However, that does not solve the entire problem because
the term "significant risk to public health" is not defined.
AkCLU's concern is the shift in importance in the two
definitions. The court would then decide what "significant risk
to public health" means because the bill does not provide that
guidance.
The AkCLU suggested including three concepts in the definition:
one having to do with the degree of contagion; one having to do
with the severity of the health threat; and the third having to
do with the means of transmission. He said the division was not
willing or able to come up with a workable definition that
included the three concepts.
MR. MACLEOD-BALL told members the AkCLU believes the provision
regarding access to identifiable health information remains too
broad in AS 18.15.362. The AkCLU would like to see a provision
included that offers protection against loss of job and loss of
housing as a direct result of quarantine or isolation.
MR. MACLEOD-BALL said the ex parte language is still an area of
concern because the division could get an order from the court
without the presence of or representation for the other party.
Because the party would already know about the hearings going
forward, the AkCLU doesn't see the need for ex parte
proceedings.
4:44:08 PM
SENATOR ELTON thanked all participants for the effort they
expended on the legislation. He then asked Mr. MacLeod-Ball if
he was suggesting that the lack of a definition for "significant
public risk" could be a complicating factor because the state
could end up in court with a judge who is not a health care
professional deciding what constitutes a significant public
health risk.
MR. MACLEOD-BALL said he believes it would be preferable that
medical experts find the parameters of where the court can
operate in this area. From the AkCLU's perspective, it is more
of a question of making sure the person with AIDS is not
isolated. Without a definition, an activist judge or public
health official could use the relative ambiguity of that
definition and apply it to circumstances other than what it is
intended for. He emphasized that tightening the definition now
will prevent ambiguity later.
SENATOR ELTON asked Mr. MacLeod-Ball if he sees anything in the
bill that would allow the state to prevent access to legal
counsel.
MR. MACLEOD-BALL said he believes the Office of Public Advocacy
(OPA) is given authority to represent individuals under both the
testing order and the quarantine order section. He said how OPA
would do that in remote areas is questionable.
CHAIR THERRIAULT asked Dr. Mandsager how much discussion took
place about the possibility of an individual losing a job or
housing while in isolation.
DR. MANDSAGER said the division has had a fair amount of
discussion with the Department of Law and the AkCLU about that
issue. He said the division's primary job is to protect the
public's health. The number of days a person can be isolated
without court involvement is very limited and the division can
only isolate an individual without court involvement in an
emergency. Also, if isolation is imposed and a person is unable
to work, the question is whether the state should be liable for
damages. The judgment to date is that the state should not be
liable.
CHAIR THERRIAULT asked about the AkCLU's concern about the loss
of housing and whether that should be addressed in this
legislation. He questioned whether the issue centers on a person
being evicted by a landlord.
MR. MACLEOD-BALL said AkCLU's concern is that discrimination
might befall people who are in isolation or quarantine. He said
it might be better to have that issue be the subject of other
legislation but this legislation is available now.
CHAIR THERRIAULT said the potential for those problems exist
now.
MR. MACLEOD-BALL agreed.
SENATOR ELTON said with regard to the definition of significant
public health risk, it makes sense to have some kind of a recipe
for the court to follow so that judges make consistent
decisions.
DR. MANDSAGER asked Senator Elton if his concern is mostly about
the significant risk to public health in the isolation and
quarantine section, and not as much about the tests required
before the division can collect identifiable health information.
SENATOR ELTON said he is concerned about both but the bigger
issue is the quarantine issue.
DR. MANDSAGER asked if the tests for acquisition of identifiable
public health information on page 9, lines 13-18, make sense.
SENATOR ELTON replied, "It seems to me that number 3 would be
the squishy one. You might have more knowledge about that than a
judge would - about what processes otherwise could be used."
DR. MANDSAGER said this bill has a much better definition and
better restriction on the collection and use of identifiable
health information than the current statute. Although it may
not be perfect, the division believes its practices would hold
up to scrutiny. He referred to page 13, line 6, and said with
regard to isolation and quarantine, the division has not been
able to come up with a definition of significant risk to public
health yet.
4:54:18 PM
CHAIR THERRIAULT said he did not intend to move the bill today.
MR. MACLEOD-BALL pointed out the phrase "substantial risk to
public health" is on page 14, line 5 and is in the section about
allegations that must be included in the petition. He said use
of "significant risk to public health" on page 16, line 2 is of
most concern to AkCLU because that is what the court needs to
find.
CHAIR THERRIAULT asked members if they are satisfied with the
explanation that "substantial" is tied to the transmission of a
disease on page 13, but it is not tied to transmission on the
next page. He suggested that staff discuss with the legal
drafters the need to use a consistent phrase.
4:56:28 PM
CHAIR THERRIAULT stated that the committee would likely take
final action on CSHB 95(RLS)am on Thursday.
There being no further business to come before the committee,
Chair Therriault adjourned the meeting at 4:56:38 PM.
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