02/25/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB196 | |
| HB400 | |
| SB196 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 400 | TELECONFERENCED | |
| += | HB 237 | TELECONFERENCED | |
| += | HB 255 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 196 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 25, 2008
1:42 p.m.
MEMBERS PRESENT
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Jay Ramras, Chair
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 196(FIN) am
"An Act relating to establishing a controlled substance
prescription database."
- MOVED HCS CSSB 196(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 400
"An Act relating to a person who seeks medical assistance for a
person experiencing a drug overdose."
- HEARD AND HELD
HOUSE BILL NO. 237
"An Act authorizing the governor to remove or suspend a member
of the Board of Regents of the University of Alaska for good
cause; establishing a procedure for the removal or suspension of
a regent; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 255
"An Act relating to dual sentencing of certain juvenile
offenders; amending Rule 24.1, Alaska Delinquency Rules; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 196
SHORT TITLE: PRESCRIPTION DATABASE
SPONSOR(S): SENATOR(S) GREEN
01/16/08 (S) PREFILE RELEASED 1/4/08
01/16/08 (S) READ THE FIRST TIME - REFERRALS
01/16/08 (S) L&C, FIN
01/29/08 (S) L&C AT 1:30 PM BELTZ 211
01/29/08 (S) Heard & Held
01/29/08 (S) MINUTE(L&C)
02/05/08 (S) L&C AT 1:30 PM BELTZ 211
02/05/08 (S) Moved CSSB 196(L&C) Out of Committee
02/05/08 (S) MINUTE(L&C)
02/06/08 (S) L&C RPT CS 4DP 1NR SAME TITLE
02/06/08 (S) LETTER OF INTENT WITH L&C REPORT
02/06/08 (S) DP: ELLIS, DAVIS, HOFFMAN, STEVENS
02/06/08 (S) NR: BUNDE
02/14/08 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/14/08 (S) Moved CSSB 196(FIN) Out of Committee
02/14/08 (S) MINUTE(FIN)
02/15/08 (S) FIN RPT CS 3DP 2NR SAME TITLE
02/15/08 (S) L&C LETTER OF INTENT WITH FIN REPORT
02/15/08 (S) DP: HOFFMAN, STEDMAN, THOMAS
02/15/08 (S) NR: ELTON, OLSON
02/19/08 (S) TRANSMITTED TO (H)
02/19/08 (S) VERSION: CSSB 196(FIN) AM
02/20/08 (H) READ THE FIRST TIME - REFERRALS
02/20/08 (H) JUD, FIN
02/22/08 (H) JUD AT 1:00 PM CAPITOL 120
02/22/08 (H) Heard & Held
02/22/08 (H) MINUTE(JUD)
02/25/08 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 400
SHORT TITLE: MITIGATING FACTOR: CARE FOR DRUG OVERDOSE
SPONSOR(S): REPRESENTATIVE(S) KERTTULA
02/19/08 (H) READ THE FIRST TIME - REFERRALS
02/19/08 (H) JUD, FIN
02/25/08 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
GINGER BLAISDELL, Staff
to Senator Lyda Green
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 196, presented
Version O on behalf of the sponsor, Senator Green.
REPRESENTATIVE BETH KERTTULA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 400 as the sponsor.
AURORA HAUKE, Staff
to Representative Beth Kerttula
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified and answered questions on HB 400
on behalf of the sponsor, Representative Kerttula.
ANGELA HULL
Juneau, Alaska
POSITION STATEMENT: Testified on HB 400.
RODNEY DIAL, Lieutenant, Deputy Commander
A Detachment
Division of Alaska State Troopers (AST)
Department of Public Safety (DPS)
Ketchikan, Alaska
POSITION STATEMENT: Responded to questions on HB 400.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 400.
GERALD LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Answered questions on SB 196.
ACTION NARRATIVE
REPRESENTATIVE COGHILL, acting as chair, called the House
Judiciary Standing Committee meeting to order at 1:42:30 PM.
Representatives Coghill, Samuels, Lynn, Holmes, and Gruenberg
were present at the call to order. Representative Dahlstrom
arrived as the meeting was in progress.
SB 196 - PRESCRIPTION DATABASE
1:42:59 PM
REPRESENTATIVE COGHILL announced that the first order of
business would be CS FOR SENATE BILL NO. 196(FIN) am, "An Act
relating to establishing a controlled substance prescription
database."
1:43:30 PM
REPRESENTATIVE SAMUELS moved to adopt the proposed House
committee substitute (HCS) for SB 196, Version 25-LS1092\O,
Luckhaupt, 2/23/08, as the working document.
REPRESENTATIVE GRUENBERG objected. He then withdrew his
objection.
REPRESENTATIVE COGHILL announced that Version O is before the
committee.
1:44:21 PM
GINGER BLAISDELL, Staff to Senator Lyda Green, Alaska State
Legislature, on behalf of the sponsor, Senator Green, explained
the changes contained in Version O of SB 196. She stated that
there are no changes in pages 1-3 of SB 196. She explained that
on page 4, line 9-13, proposed AS 17.30.200(d)(1), the language
suggested by the Alaska State Medical Association was deleted.
She pointed out that the specific language, "under a search
warrant, subpoena, or order issued by an administrative law
judge or a court;" was included in Amendment 1, previously
adopted by the committee.
MS. BLAISDELL, in response to Representative Coghill, answered
that practitioner is now defined as, "has the meaning given in
AS 08.80.480;".
MS. BLAISDELL referred to page 5, lines 10-14, proposed AS
17.30.200, which she conveyed includes language that addresses
Representative Coghill's concern regarding tribal and military
agreements to use the database. She offered that Legislative
Legal and Research Services added the following language:
The board shall prohibit a dispenser that is not
regulated by the state from accessing the database if
the dispenser that is not regulated by the state from
accessing the database if the dispenser has accessed
information in the database improperly, discloses
information in the database improperly, or allows
nonauthorized persons access to the database.
REPRESENTATIVE COGHILL noted that everyone under state authority
who uses the database and violates this provision will be
charged with a felony, so he said he thought that this added
language is a small consolation. However, he related his
understanding that the military would work under the United
States code so they could be charged with a crime for disclosing
information contained in the database. He cautioned that those
who are not licensed by the state and have access to this
database could pose a problem. He noted that he will continue
to work on this issue.
REPRESENTATIVE HOLMES stated that she shares some of those
concerns. She noted that she does not have an amendment to
offer at this time, but suggested adding language along the
lines that in order to enter into agreements with others that
the board has to be satisfied. She also related her
understanding that dispensers not regulated by the state would
not be subject to the felony penalties. She encouraged the
sponsor to consider allowing only the Board of Pharmacy to enter
into these agreements.
REPRESENTATIVE COGHILL agreed that some type of memorandum of
agreement should be offered.
REPRESENTATIVE GRUENBERG referred to page 5, line 10-12,
proposed AS 17.30.200(f), which in part reads, "The board shall
prohibit", and said it was designed to address Representative
Coghill's concerns. However, Representative Gruenberg said that
he is concerned that the word "improperly" will cause litigation
and "wiggle room" because it is an impossible standard to
define. He noted that "improper" is a relative term, and
strongly suggested that a more precise term be used.
1:50:13 PM
MS. BLAISDELL stated that the intent is to identify someone who
used the database differently than how it is specified in the
bill.
REPRESENTATIVE GRUENBERG suggested adding the language "contrary
to law", which would include regulation, as well.
REPRESENTATIVE COGHILL suggested instead that the provision
could read, "failure to fulfill the requirements of this
section".
REPRESENTATIVE GRUENBERG said that he preferred "contrary to
law" because that encompasses all the laws.
REPRESENTATIVE COGHILL cautioned that "contrary to law" is a
much broader approach. Thus, he suggested that the language be
narrowed down to apply only to this subsection.
1:51:50 PM
MS. BLAISDELL continued with her analysis of the changes to
Version O. She referred to a letter in the packet from the
Maine Department of Health and Human Services, dated January 18,
2006. She referred to paragraph 3, and stated that 38 U.S.C.
5701 is the specific provision that would allow the military to
participate.
REPRESENTATIVE COGHILL opined that under that code the
accountability would apply and thus he is satisfied with the
language.
MS. BLAISDELL referred to page 5, line 15, proposed AS
17.30.200(g). She explained that Amendment 3 was adopted to add
the word "promptly". She stated that on page 5, line 17, the
following language was added: "all or part of". Ms. Blaisdell
referred to page 5, line 28, proposed AS 17.30.200(h)(1), and
noted that it no longer says "prescribed or", but instead there
is a new paragraph (2) allowing a method for a person to
challenge information in the database that the person believes
is incorrect. She noted that this provision was added to
address the concern that SB 196 does not have an appeal process.
1:54:17 PM
REPRESENTATIVE GRUENBERG made a motion to [rescind] the
committee's action in adopting Amendment 2.
REPRESENTATIVE COGHILL objected.
MS. BLAISDELL explained that the definition is located on page 4
in Version O and is proposed AS 17.30.200(d)(1).
REPRESENTATIVE GRUENBERG referred to page 2, line 20, in
proposed AS 17.30.200. He explained that this provision would
adopt the definition of "practitioner". He referred to the
definition section of controlled substances in current AS
17.30.900(A) which he read, as follows:
Unless the context clearly requires otherwise, the
definition set out in AS 11.71.900 applies to this
chapter.
REPRESENTATIVE GRUENBERG stated that AS 11.71.900(19)
reads:
"practitioner" means
(A) a physician, dentist, veterinarian, scientific
investigator, or other person licensed, registered or
otherwise permitted to distribute, dispense, conduct
research with respect to, or to administer or use in
teaching, or chemical analysis of controlled substance
in the course of a professional practice or research
in this state;
(B) A pharmacy, hospital or other institution
licensed, registered, or otherwise permitted to
distribute, dispense, conduct research with respect
to, or to administer a controlled substance in the
course of professional practice or research in this
state;
REPRESENTATIVE GRUENBERG noted that the statute that he
referenced at the last House Judiciary Standing Committee
hearing was AS 08.80.480(28), which defined practitioner in a
similar fashion. He read:
(28) "practitioner" means an individual currently
licensed, registered, or otherwise authorized by the
jurisdiction in which the individual practices to
prescribe and administer drugs in the course of
professional practice;
REPRESENTATIVE GRUENBERG explained that AS 11.17.900(17)
contains the definition already implied in SB 196 and also
defines a practitioner in relation to controlled substance
activities. Title 11 specifically includes professionals such
as veterinarians and professionals engaging in experimental
research, he said. Thus the meaning of "practitioner" in Title
11 is a little broader, but he said that it would satisfy him if
the definition was referenced in this chapter of SB 196.
REPRESENTATIVE COGHILL removed his objection.
1:57:40 PM
REPRESENTATIVE GRUENBERG again made a motion that the committee
rescind it's action in adopting Amendment 2. There being no
objection, the committee rescinded it's action in adopting
Amendment 2.
1:57:51 PM
REPRESENTATIVE COGHILL explained the effect of rescinding the
adoption of Amendment 2 is to remove the language:
"practitioner" has the meaning given in AS 08.80.480.
REPRESENTATIVE GRUENBERG noted his agreement.
1:58:20 PM
REPRESENTATIVE GRUENBERG referred to page 5, lines 12-13,
proposed AS 17.30.200(f), which he stated relates to dispensers
that are not regulated by the state who "improperly" access or
disclose information in the database.
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 1 to Version O, as follows:
On Page 5, line 12:
Delete "improperly"
On page 5, line 12, following, "database":
Insert "contrary to this section"
On page 5, line 13:
Delete "improperly"
On page 5, line 13, following, "database":
Insert "contrary to this section"
REPRESENTATIVE SAMUELS objected. He inquired as to the amount
of the penalties associated with the subsection.
MS. BLAISDELL answered that if the improper access or disclosure
was by someone in a non state regulated entity, no penalty would
apply. The only penalty under the board's control would be to
deny future access to the database, unless penalties were
addressed in the memorandum of agreement (MOA) with the non
state regulated entity.
REPRESENTATIVE COGHILL explained that under SB 196, a breach
would constitute a class C felony, but if a MOA exists, the
felony would not apply.
REPRESENTATIVE SAMUELS inquired as to whether disclosure of a
name and an address constitutes a felony.
MS. BLAISDELL clarified that if a person were to access the
database beyond the scope of his/her authority, that action
would constitute a class A misdemeanor. Thus, if a medical
clerk accessed someone's name or address and did not have the
authority to do so, he/she would commit a class A misdemeanor.
However, if he/she "knowingly" disclosed that information or
attempted to manipulate the information, the person would commit
a class C felony.
REPRESENTATIVE SAMUELS stated that he agrees with the intent of
the bill, but he is speechless that a disclosure of information
would constitute a felony.
2:04:20 PM
REPRESENTATIVE COGHILL expressed his concern that a loophole
would exist for those entities covered under a MOA since the
dispensers and others who disclose information would not be
subject to the class C felony penalties.
REPRESENTATIVE DAHLSTROM inquired as to how many agency
pharmacies are non state regulated.
MS. BLAISDELL answered that non state regulated providers would
include Indian Health Service (IHS) and military entities. She
surmised that only a handful of military bases are non state
regulated pharmacies. However, she opined that a small
percentage of providers for IHS serve a significant percentage
of the native population.
MS. BLAISDELL, in response to Representative Dahlstrom, answered
that currently illegal activity exists. However, no one has
been able to track this type of activity. Under SB 196, a
system will be in place to track improper practices. She
surmised that detection will also depend on the regulations that
the Board of Pharmacy adopts. She opined that the Board of
Pharmacy would probably develop regulations that would aid in
detection, perhaps to enable enforcement to respond as quickly
as within a week of the improper or illegal activity.
2:07:35 PM
REPRESENTATIVE DAHLSTROM expressed concern about the authority
of the Board of Pharmacy to affect people's livelihood.
MS. BLAISDELL agreed that SB 196 extends additional authority to
the Board of Pharmacy. However, the outcry from the medical
community is so strongly in favor of this, [that it is
warranted]. Additionally, she opined the proposed regulations
would receive a great deal of scrutiny. Finally, she surmised
that out of 400 pharmacists and at least twice that number of
medical prescribers, that the regulations would achieve a good
balance.
REPRESENTATIVE LYNN inquired as to whether the pharmaceutical
companies samples offered to physicians are recorded and
regulated.
MS. BLAISDELL answered that most physician samples are not
scheduled substances such as painkillers.
REPRESENTATIVE COGHILL reminded members that Conceptual
Amendment to Version O is still before the committee.
2:10:00 PM
REPRESENTATIVE HOLMES inquired as to whether that would include
any regulations promulgated.
REPRESENTATIVE COGHILL answered that the authority to promulgate
regulations is given under this section, so he surmised that the
answer is yes.
2:11:24 PM
REPRESENTATIVE SAMUELS posed a scenario such that a
pharmaceutical clerk forwards the name of one customer from the
database. He inquired as to whether the clerk would be subject
to a class C felony. He further inquired whether the clerk
would be charged with multiple felonies if he/she forwarded
1,000 names from the database to a third party.
MS. BLAISDELL said she was not sure.
REPRESENTATIVE COGHILL announced that the committee would set
aside SB 196, Version O, as amended, including the committee's
action to rescind the adoption of Amendment 2 to CSSB 196(FIN)
am. SB 196, Version O, was set aside, with the question of
whether to adopt Conceptual Amendment 1 left pending.
HB 400 - MITIGATING FACTOR: CARE FOR DRUG OVERDOSE
2:14:18 PM
REPRESENTATIVE COGHILL announced that the next order of business
would be HOUSE BILL NO. 400, "An Act relating to a person who
seeks medical assistance for a person experiencing a drug
overdose." [Included in members' packets was a proposed
committee substitute (CS) for HB 400, Version 25-LS1518\M,
Luckhaupt, 2/23/08.]
2:14:29 PM
REPRESENTATIVE BETH KERTTULA, Alaska State Legislature, sponsor,
stated that she introduced HB 400 at the request of a
constituent. She explained that her staff found a New Mexico
program that is using mitigation and immunity to try to
encourage others to help people who are having drug overdoses.
She noted that the jury considers mitigating factors, as well.
She said that she decided to sponsor the bill because it can
help to save a life, which she opined "is a reasonable step."
2:17:20 PM
REPRESENTATIVE COGHILL turned the gavel over to Vice Chair
Dahlstrom.
2:17:48 PM
AURORA HAUKE, Staff to Representative Beth Kerttula, Alaska
State Legislature, stated on behalf of the sponsor,
Representative Kerttula, that a proposed committee substitute
would add an immunity provision for possession involving a
controlled substance of misconduct in the fourth to sixth
degree.
2:18:23 PM
REPRESENTATIVE SAMUELS moved to adopt the proposed committee
substitute (CS) for HB 400, Version 25-LS1518\M, Luckhaupt,
2/23/08, as the working document.
VICE CHAIR DAHLSTROM objected.
MS. HAUKE offered some statistics to support introduction of HB
400. She stated that over the past 5 years in Alaska,
approximately 85 people died per year from drug overdoses, which
is well over the national average as is the drug usage rate in
Alaska. She noted a recent New York study showed that at least
50 percent of the time witnesses do not call for medical help.
The reason most cited in not calling or in delaying to call for
help was fear of police.
REPRESENTATIVE SAMUELS inquired as to whether the sponsor could
explain the committee substitute in terms of immunity issues.
He expressed concern that someone could be granted immunity and
could later confess to having committed other crimes, perhaps
even murder. He specifically asked whether a person who
possessed a firearm and was granted immunity, if the firearm
could be used as evidence.
MS. HAUKE answered that the intent is to offer immunity for only
the possession of a controlled substance.
2:21:36 PM
ANGELA HULL stated that on March 26, 2007, her 27-year-old
daughter was at home with two other adults who were all using
drugs. Neither of the two other adults called 911. She said
that her 4-year-old granddaughter went to a neighbor to ask for
help, while her 10-year-old grandson performed cardiopulmonary
resuscitation (CPR) on his mother as he had seen done on
television. Once the other adults realized that emergency
medical help was coming, they locked the first responders out.
She said she did not know how long that her daughter was
[unconscious] and whether it would have made a difference if
medical help arrived sooner. She opined that if the other
adults using drugs had not been afraid of being arrested, they
may have called 911 and it may have made a difference to her
daughter.
MS. HULL explained that people with substance abuse problems do
not think in the same way as normal adults think. However, they
know the laws and know how to "skirt" trouble. Drug users
understand that if they are caught possessing drugs they will
not only be arrested, but will lose access to their drugs, she
stated. Instead of calling for help, the drug abusers use that
precious time to dispose of their paraphernalia and drugs, she
stated. In her daughter's instance, small children did the
right thing and called 911, she stated. It is too late for her
daughter and some of her friends, she explained, since in the
last 5 years, 7 of her daughter's friends also lost their lives
to drug overdoses. She opined that HB 400 would provide a small
safety net that could save lives.
2:25:14 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), stated that the DPS is neutral on HB 400, but understands
the goals of HB 400. He expressed concern that immunity would
transfer to all actions taken after the call. He posed a
scenario that outlined his concern such that a murder victim
could be found at the scene when police arrive. Additionally,
he explained that children who live in homes where
methamphetamine is produced can be poisoned. He posed another
scenario in which a child is brought to a hospital suffering
from meth exposure. He inquired as to whether law enforcement
would be barred from investigating the incident due to the
immunity clause in HB 400. In the event, the DPS could
investigate, would the court refuse to issue a search warrant
since the parents may be considered immune and not be subject to
any crime. Lieutenant Dial noted that the many times the ones
who would benefit from immunity offered in HB 400 are under
conditions of release and are on probation or parole. He
inquired as to whether HB 400 would conflict with the conditions
of the caller who is on probation or parole.
2:27:21 PM
REPRESENTATIVE GRUENBERG expressed the same concern as
Lieutenant Dial. He said that he did not believe he could
support Version M. He referred to penalties for several crimes,
such as the failure to report crimes against a child under AS
11.56.765, which is a class A misdemeanor for murder,
kidnapping, and sexual assault. Last year a similar statute was
passed by the legislature which adds AS ll.56.767, which is
nearly identical for failure to report violent crimes against an
adult, he stated. However, neither statute contained a
provision for a failure to report a potentially fatal overdose,
he opined. He outlined that current AS ll.56.770, which relates
to hindering prosecution of a felony in the first degree, is a
class C felony. He further advised that AS 11.56.780, which
relates to hindering prosecution of a misdemeanor in the second
degree is a class B misdemeanor. He inquired as to whether the
failure to place a telephone call in the case of a drug overdose
is currently a crime in Alaska.
LIEUTENANT DIAL answered that in those instances the DPS would
investigate and ask the district attorney's office to make a
determination.
REPRESENTATIVE GRUENBERG inquired as to whether the two adults
who barred the door and refused entry would currently constitute
a crime.
LIEUTENANT DIAL stated that the district attorney would also
make that determination.
2:30:29 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), stated that
the DOL has some concerns with HB 400. She relayed her fear
that the bill would not address the situation outlined by Ms.
Hull. She said she spoke to Captain Keith Mallard from Alaska
Bureau of Alcohol and Drug Enforcement (ABADE), who advised her
that he cannot remember ever prosecuting the second person when
two people were using drugs together and one overdosed. She
stated that she is worried that HB 400 will assist those who
provide drugs to people in avoiding arrest. She offered that it
may curb prosecution in cases such as possession of controlled
substances with the intent to sell. Although the bill only
pertains to possession, she pointed out that it doesn't limit
the quantity of the drugs involved. She offered concern over
the term "limited immunity" and concluded that the DOL has
concern with the immunity provisions in the bill.
2:33:08 PM
REPRESENTATIVE SAMUELS stated that he preferred the original
bill over Version M and withdrew his motion to adopt Version M.
REPRESENTATIVE GRUENBERG referred to his earlier questions and
asked Ms. Carpeneti to respond.
MS. CARPENETI answered that she did not believe that failure to
make a telephone call in instances of drug overdoses would
constitute a crime. In further response to Representative
Gruenberg, she said she thought that barring the door to medical
personnel might be crime. She stated that she previously held
discussions with Ms. Hauke about the crime of barring the door.
She said she discussed the possibility of relating the crime of
barring the door to hindering the delivery of medical care by a
person instead of offering immunity to those who call for
medical assistance. She related her understanding that this
matter may be covered under AS 18.08.075.
REPRESENTATIVE COGHILL inquired as to whether the discussion
could move to focus on the impact of mitigators, once the
discussion of the Title 18 issue is finished.
MS. CARPENETI noted that a person who refuses to comply with an
emergency medical technician request to deliver services is
guilty of a class A misdemeanor, upon conviction.
2:36:12 PM
REPRESENTATIVE GRUENBERG noted that AS 18.08.075(a)(5) and (b)
read:
(a) An emergency medical technician who responds
to an emergency with an ambulance service or first
responder service, who has in the technician's
possession a current emergency medical technician
identification card, and who provides emergency
medical care or other emergency medical service, has
the authority to ...
(5) enter a building, including a private
dwelling, or premises where a report of an injury or
illness has taken place or where there is a reasonable
cause to believe an individual has been injured or is
ill to render emergency medical care; ...
(b) A person who knowingly refuses to comply with
an order of an emergency medical technician authorized
under (a) of this section is, upon conviction, guilty
of a class B misdemeanor. In this subsection,
"knowingly" has the meaning given in AS 11.81.900(a).
REPRESENTATIVE GRUENBERG stated that this statute has a very
narrow meaning, and opined that the crime would not include
refusing access to fire or police.
MS. CARPENETI suggested it would be interesting to also review
the definitions that apply to the referenced statute, but noted
that she has not yet done so.
2:37:24 PM
MS. CARPENETI, in response to Representative Coghill, answered
that mitigating factors are proven to a judge by clear and
convincing evidence at sentencing, after conviction. Mitigating
factors are not proven to a jury. Furthermore, explaining how
mitigating factors would be applied, she stated that if the
sentencing range is for four years or below, the court could
reduce the sentence to zero and if the sentencing range is above
four years that the mitigating factors could reduce the sentence
by half.
MS. CARPENETI, in response to Representative Samuels, clarified
that if the lower end is a sentence of five years, that the
court could only reduce the sentence to two and one-half years.
She further added that mitigating factors give the judge
discretion, but are not required to be applied.
MS. CARPENETI related her understanding that HB 400 would only
apply to people using drugs together. She expressed concern
about the person who supplied the drugs to the person who
overdosed.
2:41:12 PM
VICE CHAIR DAHLSTROM announced her intention to hold HB 400 over
to allow the sponsor an opportunity to address the concerns with
the bill.
REPRESENTATIVE SAMUELS inquired as to whether drug overdose
would also include alcohol.
MS. CARPENETI answered that HB 400 would only apply to AS 11.71,
which relates to controlled substances and not to alcohol. She
offered to research that issue further.
REPRESENTATIVE GRUENBERG said that he hopes that this matter of
restricting access to patients will also be reviewed since
people barring the door and not allowing medical personnel to
enter could prove fatal in circumstances other than drug
overdoses.
[HB 400 was held over.]
SB 196 - PRESCRIPTION DATABASE
2:43:27 PM
VICE CHAIR DAHLSTROM announced that as the final order of
business the committee would return to the hearing on CS FOR
SENATE BILL NO. 196(FIN) am, "An Act relating to establishing a
controlled substance prescription database." [Earlier in the
meeting Version O had been adopted as the work draft, and the
committee had rescinded it action in adopting Amendment 2 to
CSSB 196(FIN) am, thereby deleting its resulting change from
Version O; left pending from earlier in the meeting was the
motion to adopt Conceptual Amendment 1 to Version O.]
The committee took an at-ease from 2:43 p.m. to 2:44 p.m.
2:44:24 PM
VICE CHAIR DAHLSTROM drew attention to Conceptual Amendment 1
[text provided previously].
2:45:15 PM
GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency (LAA), stated that Conceptual Amendment 1 would probably
be fine, but surmised that the Revisor of Statutes would
probably suggest the use of some term other than "contrary".
2:45:57 PM
REPRESENTATIVE SAMUELS removed his objection.
VICE CHAIR DAHLSTROM announced that Conceptual Amendment 1 was
adopted.
MR. LUCKHAUPT, on the question of whether a person who knowingly
violates subsection (d) by disclosing information contained in
the database could be charged multiple felonies under the
penalty provisions of Version O, surmised that if a person
disclosed the information to five people at the same time that
the person would be charged with a single felony charge. He
further surmised that if the person subsequently knowingly
disclosed information to people on separate occasions, then the
person could be charged with a felony for each occasion that the
confidential information was disclosed. He further responded
that it is possible to add language to SB 196 to make it clear
that a separate charge for each disclosure would be imposed.
REPRESENTATIVE COGHILL inquired as to whether disclosing
information from a database containing 50 names would be a
single felony.
REPRESENTATIVE SAMUELS further inquired as to whether a clerk
who discloses a single name once on each of 10 days would be
charged with 10 felony counts. Additionally, he inquired as to
whether a clerk who discloses the entire database of 40,000
people would be charged with a single felony.
MR. LUCKHAUPT referred to page 6, lines 5-6, proposed AS
17.30.200(j)(1)(A), and read:
accesses information in the database beyond the scope
of the person's authority commits a class A
misdemeanor;
MR. LUCKHAUPT offered that each day the offense was committed
would be a completed crime. He surmised it would constitute one
crime in the case of someone who improperly obtained access to
the entire database. However, he surmised that it would depend
on how the database was set up. He said he assumes that a
person would only have access to one record at a time, which
would pull up that person's information. Thus, if the clerk
would subsequently pull up a second name and record, that action
would constitute a second offense, he surmised.
2:50:20 PM
REPRESENTATIVE HOLMES referred to proposed AS
17.30.200(j)(1)(A), and offered her understanding that this
provision would cover offenses by someone who accesses the
database, but is not authorized to do so. She surmised that the
penalty provision would also cover instances in which someone
"knowingly" discloses that information. However, she pointed
out that proposed subsection does not cover any negligent
disclosure. She posed a scenario in which a person prints out
the information and leaves that information laying around or
tosses it in the trash. She noted that a prior provision in
SB 196 would require the Board of Pharmacy to adopt regulations
to protect the safety and security of the database. She
inquired as to whether the bill would rely on the board to do
so.
MR. LUCKHAUPT answered that one potential would be to prosecute
the person, such as the janitor who would use the information
he/she found. He referred to page 6 lines 12-15, proposed AS
17.30.200(j)(2), and stated that a person without authority to
access the database that "knowingly" accesses the database or
"knowingly" receives the information that the person is not
authorized to receive could conceivably violate that provision.
Otherwise, he surmised, the Board of Pharmacy would use the
highest degree of security in creating its regulations. He
further surmised that if the person disclosing is a dispenser,
the board could impose disciplinary sanctions through
proceedings.
REPRESENTATIVE HOLMES referred to page the language on 6, line
13, "knowingly receives", and inquired as to whether a person
who "knowingly receives" information would be subject to a class
C felony.
2:54:18 PM
MR. LUCKHAUPT surmised that a person who receives data may not
know the information is confidential information. He opined
that it is difficult to extrapolate for every circumstance. He
speculated that unless the person used the information that was
given to him/her, it is not likely that the person committed any
criminal act.
2:55:56 PM
VICE CHAIR DAHLSTROM posed a scenario in which the person who
receives the information recognizes that it is confidential, but
doesn't really know what the information actually pertains to so
the person passes the information on to a third party such as
the Board of Pharmacy. She inquired as to whether the third
party would be charged with a felony by accepting the
information.
MR. LUCKHAUPT answered that would depend on whether the person
would be prosecuted by the district attorney. He pointed out
that cases in which the person contacted the board would be
considered whistleblower actions. Thus, he said that he did not
think any criminal charges would apply. He pointed out that in
the scenario posed that the crime would be committed by the
pharmacist or prescriber.
2:57:53 PM
MS. BLAISDELL offered her belief that investigators could
determine who accessed the database and which records were
accessed.
MR. LUCKHAUPT related an incident in which a person accessed a
confidential law enforcement database, but the person did not
use any information and was not prosecuted. He offered that it
was highly unlikely a person who inadvertently receives
information would be prosecuted.
3:00:23 PM
MR. LUCKHAUPT, in response to Representative Gruenberg, stated
that mental states include "intentional" which would mean that
the person intended a result, that "knowingly" would mean that
the person is aware the result could happen, and "reckless"
would be when a reasonable person would understand that a result
could occur. He noted that mental states of criminal negligence
and civil negligence also have standards.
REPRESENTATIVE GRUENBERG pointed out that the intent is set out
in SB 196.
3:02:07 PM
REPRESENTATIVE GRUENBERG referred to page 5, lines 8-14,
proposed AS 17.30.200(f). He argued that this subsection does
not mention any mental state. He asked whether an "intention"
is inferred.
MS. BLAISDELL answered that the intent for these provisions
would be defined in the memorandum of agreement (MOA) between
the board and the non state entity such as the military.
REPRESENTATIVE GRUENBERG inquired as to whether that should be
left to the MOA or actually specified in SB 196.
MS. BLAISDELL answered that the MOA would be governed by federal
law.
REPRESENTATIVE COGHILL stated that he would have issues with the
proposed penalties if the MOA chooses to impose a lesser crime
for violations committed by non-state-regulated database users
than for state-regulated database users.
3:04:22 PM
REPRESENTATIVE GRUENBERG moved to report the proposed HCS for SB
196, Version 25-LS1092\O, Luckhaupt, 2/23/08, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, HCS CSSB 196(JUD) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:04 p.m.
| Document Name | Date/Time | Subjects |
|---|