02/21/2023 03:30 PM Senate HEALTH & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| SB8 | |
| SB53 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 53 | TELECONFERENCED | |
| += | SB 8 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 45 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE HEALTH AND SOCIAL SERVICES STANDING COMMITTEE
February 21, 2023
3:32 p.m.
MEMBERS PRESENT
Senator David Wilson, Chair
Senator James Kaufman, Vice Chair
Senator Löki Tobin
Senator Forrest Dunbar
Senator Cathy Giessel
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 8
"An Act repealing the certificate of need program for health
care facilities; making conforming amendments; and providing for
an effective date."
- HEARD & HELD
SENATE BILL NO. 53
"An Act relating to involuntary civil commitments."
- HEARD & HELD
SENATE BILL NO. 45
"An Act relating to insurance; relating to direct health care
agreements; and relating to unfair trade practices."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 8
SHORT TITLE: REPEAL CERTIFICATE OF NEED PROGRAM
SPONSOR(s): SENATOR(s) WILSON
01/18/23 (S) PREFILE RELEASED 1/9/23
01/18/23 (S) READ THE FIRST TIME - REFERRALS
01/18/23 (S) HSS, L&C
02/16/23 (S) HSS AT 3:30 PM BUTROVICH 205
02/16/23 (S) Heard & Held
02/16/23 (S) MINUTE(HSS)
02/21/23 (S) HSS AT 3:30 PM BUTROVICH 205
BILL: SB 53
SHORT TITLE: COMPETENCY; INVOLUNTARY CIVIL COMMITMENTS
SPONSOR(s): SENATOR(s) CLAMAN
02/01/23 (S) READ THE FIRST TIME - REFERRALS
02/01/23 (S) HSS, JUD
02/21/23 (S) HSS AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
GARY ZEPP, Staff
Senator David Wilson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the sectional analysis for SB 8.
JEFFREY SINGER, Senior Fellow
Cato Institute
Phoenix, Arizona
POSITION STATEMENT: Testified in support of SB 8.
JARED KOSIN, President and CEO
Alaska Hospital and Healthcare Association
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 8.
BILL WARD, representing self
Delta Junction, Alaska
POSITION STATEMENT: Testified in support of SB 8.
STEVE FRANK, Board Member
Foundation Health Partners
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to SB 8.
PATRICK SHIER, Representative
Pacific Health Coalition
Wasilla, Alaska
POSITION STATEMENT: Testified in support of SB 8.
MARY KASPARI, President
Interior Alaska Hospital Foundation
Delta Junction, Alaska
POSITION STATEMENT: Testified in support of SB 8.
DAWN FRAZIER, representing self
Delta Junction, Alaska
POSITION STATEMENT: Testified in support of SB 8.
ERICK CORDERO, Vice President
Alaska Policy Forum
Palmer, Alaska
POSITION STATEMENT: Testified in support of SB 8.
ANTONIA LEONARD, representing self
Wasilla, Alaska
POSITION STATEMENT: Testified in support of SB 8.
JAIMIE CAVANAUGH, Attorney
Institute for Justice
Arlington, Virginia
POSITION STATEMENT: Testified by invitation on SB 8.
ZACH YOUNG, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 8.
MATTHEW MITCHELL, Senior Research Fellow
Knee Center
West Virginia University
Morgantown, West Virginia
POSITION STATEMENT: Testified by invitation on SB 8.
SENATOR MATT CLAMAN, District H
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 53.
EMMA POTTER, Staff
Senator Matt Claman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented the sectional analysis for SB 53.
NANCY MEADE, General Counsel
Office of the Administrative Director
Alaska Court System
Juneau, Alaska
POSITION STATEMENT: Answered questions on SB 53.
ANGELA HARRIS, representing self
Juneau, Alaska
POSITION STATEMENT: Testified by invitation on SB 53.
MEGAN REGAN, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 53.
ACTION NARRATIVE
3:32:50 PM
CHAIR DAVID WILSON called the Senate Health and Social Services
Standing Committee meeting to order at 3:32 p.m. Present at the
call to order were Senators Kaufman, Dunbar, Tobin, Giessel, and
Chair Wilson.
CHAIR WILSON announced SB 45 was removed from the agenda.
SB 8-REPEAL CERTIFICATE OF NEED PROGRAM
3:33:49 PM
CHAIR WILSON announced the consideration of SENATE BILL NO. 8
"An Act repealing the certificate of need program for health
care facilities; making conforming amendments; and providing for
an effective date."
3:34:38 PM
GARY ZEPP, Staff, Senator David Wilson, Alaska State
Legislature, Juneau, Alaska, provided the sectional analysis for
SB 8 as follows:
[Original punctuation provided.]
Sections 1-3: AS 12.25.030(e) & AS 12.55.155(c)(36)
PAGE 1, LINE 4 - PAGE 2, LINE 4:
Makes conforming amendments to AS 18.20.400 and AS
18.20.499 to eliminate references to AS 18.07.111,
which is repealed under sections 9 and 10 of the bill.
Section 4: AS 18.20.400(c)
PAGE 2, LINE 8 PAGE 4, LINE 10: Makes a conforming
amendment to AS 18.26.220 by removing references to
repealed sections of law.
Section 5: AS 18.20.400
PAGE 4, LINES 11 - 23: Makes a conforming amendment to
AS 18.20.200(c)(7)(A)(i), which defines a "residential
psychiatric treatment center" licensed by the
Department of Family and Community Services.
Section 6: AS 18.20.499(2)
PAGE 4, LINE 24 PAGE 5, LINE 5: Makes conforming
amendments to AS 18.20.499(2) to eliminate references
to AS 18.07.111, which is repealed under sections 9
and 10 of the bill.
Section 7: AS 18.26.220
PAGE 5, LINES 6 16: Repeals a section of uncodified
law, section 4, chapter 275, SLA 1976, which provided
a transition to allow medical facilities in existence
or under construction before July 1, 1976 to obtain a
certificate of need.
Section 8: AS 18.35.399(9)
PAGE 5, LINES 17 - 29: Makes a conforming amendment
that removes the reference to the "certificate of
need" statute AS 18.07.111, and replaces it with the
updated statue reference under AS 18.20.400 (d),
"Definitions".
Section 9: AS 18.07.021 - 18.07.111; AS
21.86.030(c)(1); AS 44.64.030(a)(18); and AS
47.80.140(b)
PAGE 5, LINE 30 PAGE 6, LINE 1: Repeals all of AS
18.07, which describes the certificate of need program
for health care facilities, and AS 21.86.030(c)(1), AS
44.64.030(a)(18), and AS 47.80.140(b), which also
relate to the certificate of need program.
Section 10: Section 4, ch. 275, SLA 1976, is repealed:
PAGE 6, LINE 2: Repeals section 4, chapter 275, SLA
1976.
Section 11: Certificate of Need; Applicability:
PAGE 6, LINE 3 LINE 8: Amends uncodified law and
provides that the Department of Health may not take
action on or after the effective date of sections 1-
11 to revoke, enforce, or modify a certificate of need
issued to a health care facility before the effective
date of sections 1-11 of this Act.
Section 12:
PAGE 6, LINES 9 - LINE 14: Amends uncodified law by
adding a new subsection that directs the Department of
Family and Community Services to create necessary
regulations by July 1, 2025, to implement the changes
made by this Act by, but not before the effective date
of sections 1-11 of the Act.
Section 13:
PAGE 6, LINE 15: States that section 12 of this Act
takes effect immediately under AS 01.10.070(c).
Section 14:
PAGE 6, LINE 16: States that, except as provided in
section 13 of this Act, this Act takes effect July 1,
2026
MR. ZEPP noted that Sections 5, 11, and 12 erroneously refer to
the Department of Family and Community Services (DFCS) instead
of the Department of Health (DOH).
3:40:58 PM
CHAIR WILSON opened public testimony on SB 8.
3:41:21 PM
JEFFREY SINGER, Senior Fellow, Cato Institute, Phoenix, Arizona,
testified in support of SB 8 as follows:
[Original punctuation provided.]
My name is Jeffrey A. Singer. I am a Senior Fellow in
Health Policy Studies at the Cato Institute. I am also
a medical doctor specializing in general surgery and
have been practicing that specialty in Phoenix,
Arizona, for over 40 years. Thank you for allowing me
to testify before the Senate Health and Social
Services Committee regarding SB 8, which seeks to
repeal health care Certificate of Need requirements. I
appreciate this opportunity to provide my perspective
as a health care practitioner and policy analyst to
assist this committee in assessing existing policies.
3:41:34 PM
MR. SINGER continued:
Roughly four decades since the repeal of the 1974
federal law that incentivized states to establish
"Certificate of Need" (CON) requirements before new
health care facilities can developor existing ones
can add beds or equipmentCON requirements still exist
to varying degrees in 35 states. A classic example of
central planning, CON commissions are heavily
influenced by incumbent health care providers.
Attempts to reform or repeal them are often met by
fierce resistance from the incumbents who try to make
the case that they only have the interests of the
general public in mind. CON laws render state health
care systems sclerotic and unable to rapidly adjust
their infrastructure to meet the changing demands of
public health emergencies. Many governors suspended
CON laws during the public health emergency. State
legislators should formally repeal the CON laws in
those states and those where they were not suspended.
3:41:47 PM
MR. SINGER continued:
Lawmakers enacted Certificate of Need Laws based on
the theory that restricting the supply of health care
services would somehow reduce demand for those
services and thus restrain health care spending.
However, policymakers should have noticed that third-
party payers, private or government-run, pay for most
health care services. This insulates most patients
from the actual prices of health care services, while
the third-party payers absorb the costs. Consumer-
patients with little skin in the game have no
incentive to be cost-effective. When price signals are
inoperative, demand continues despite restrictions in
supply. Shortages inevitably develop while prices paid
by third-party payers increase at a greater rate than
would have otherwise occurred. This is basic
economics.
3:42:29 PM
MR. SINGER continued:
The only way to reduce health care expenditures when
health care consumers are largely insulated from price
effects is to decrease availability and access to
health care. In a George Mason University Mercatus
Center working paper, a review of 20 academic studies
found that CON laws largely failed to achieve their
goal of reducing health care costs and concluded that
the overwhelming evidence is that CON laws are
associated with higher per-unit costs and higher
expenditures. The numbers speak for themselves.
National per capita health expenditures increased from
$2354 in 1974 to $12,914 in 2021 (in constant 2021
U.S. dollars).
3:43:04 PM
MR. SINGER continued:
Despite the ineffective nature of these laws, states
still have a variety of CON laws on the books today.
The various states differ in the type and number of
restricted facilities and expenditures. For example,
Ohio restricts only long-term care services, while
Kentucky restricts more than 24 different types of
health care facilities. The state where I reside and
practice medicine, Arizona, repealed all of the CON
laws except for ambulance services in 1990. The
Arizona Hospital Association supported this action. By
1990, California, Colorado, Idaho, Kansas, Minnesota,
New Mexico, South Dakota, Texas, Utah, Wisconsin, and
Wyoming repealed all of the CON laws.
Hospital administrators argue against the repeal of
CON laws claiming these laws allow them to generate
enough revenue to provide 24-hour emergency services
and uncompensated care. Physicians and other health
care practitioners also provide uncompensated care and
other services. Yet state professional organizations
don't argue for creating a certificate of need
requirement before allowing additional doctors,
nurses, psychologists, physical therapists, etc., to
set up practices in a state. And they would be
publicly derided if they did so.
3:43:47 PM
MR. SINGER continued:
New health care practitioners entering the state may
provide competition to incumbents. This has not
stunted the growth of the health care professions.
Instead, it has benefitted health care consumers by
increasing choice and access.
Lawmakers should heed the lessons the public health
crisis provided and act now to repeal CON laws and rid
their health care systems of discredited central
planning reminiscent of a bygone era.
3:44:32 PM
JARED KOSIN, Present and CEO, Alaska Hospital and Healthcare
Association, Anchorage, Alaska, testified in opposition to SB 8.
He stated that to treat the repeal of CON as a binary choice
grossly over-simplifies the issue. Healthcare is complex. The
wholesale removal of CON directly threatens care access for
vulnerable people, transparency, and overall healthcare costs,
which is why most states still have CON laws. He agreed that
healthcare costs are too high. However, healthcare is not a free
market and will not respond as one because the prices for over
50 percent of healthcare services rendered are set and paid for
by the government.
MR. KOSIN stated that eliminating CONs paves the way for a
proliferation of ambulatory services that only serve patients
with private insurance. This happened in Georgia, Pennsylvania,
Ohio, and other states. Repeal of CON jeopardizes patients with
Medicare and Medicaid. It also undermines the ability to offer
core services at community hospitals. The repeal of CON laws
leads to a proliferation of surgery and imaging centers;
emergency care, labor and delivery, inpatient rehabilitation,
and dialysis are impossible without these services in hospitals.
He stated that people would not be better off having more
surgery and imaging centers when hospitals cannot provide
emergency services or deliver babies.
MR. KOSIN opined that balance is needed. The CON program is
flawed; it has not been updated in twenty years. All the
regulations for the CON program are in Alaska's Administrative
Code. Modernizing regulations is the solution. He urged the
legislature to direct the Department of Health to work with
stakeholders on refining the Alaska Administrative Code and vote
no on SB 8.
3:46:58 PM
BILL WARD, representing self, Delta Junction, Alaska, testified
in support of SB 8. He stated that since 2018 a bill to repeal
CON has been before the legislature. He has watched each bill
die due to the legislature's irresponsible method of delaying
bills to the end of a session for a budget battle. The
legislature ignores action on important bills. Delta Junction
needs advanced medical care facilities. CON restrictions
exacerbate the situation. Delta Junction has two clinics that
provide good urgent and routine care. Fairbanks' hospitals have
handled emergency, advanced diagnostics, and extended care. The
need for medical care in Delta Junction is recognized, but CON
laws prevent the expansion of care. Delta Junction patients are
transported to Fairbanks if not stabilized within one day
because the clinics lack the proper diagnostic equipment.
Ambulance transport to Fairbanks is impeded by the weather and
increased road use. Delta Junction's population is rising, and
its citizens are aging. CON laws keep all eastern Alaska from
receiving proper healthcare.
3:50:42 PM
STEVE FRANK, Board Member, Foundation Health Partners,
Fairbanks, Alaska, testified in opposition to SB 8. He stated
that Foundation Health Partners has a hospital, clinic, and
long-term care facility. The foundation is a locally owned
nonprofit organization. Surgery and imaging are two services
that bring in money for the foundation. Repealing CON would
allow others to take these services from the foundation but not
offer the services that would not earn them a profit. Passing
CON will hurt the foundation and cause Medicaid to increase. CON
is a complicated issue. He warned the legislature to be careful
in their decision because repealing CON will not reduce costs;
it will increase the Medicaid budget.
3:52:58 PM
PATRICK SHIER, Representative, Pacific Health Coalition,
Wasilla, Alaska, testified in support of SB 8 and said he favors
measures that enlist the power of the competitive markets in
pursuit of better healthcare access and pricing. The Pacific
Health Coalition is a private nonprofit coalition of 49 self-
funded health plans across Alaska and the Pacific Northwest. The
coalition assists the 240,000 members in finding ways to provide
the best pricing and value in quality healthcare. Member's plans
saved over $721 million in 2021, an increase of over $100
million from the prior year. The coalition did this by
leveraging available competitive principles. Competition is
responsible for historic discounts in many areas, such as
orthopedic surgery in south-central Alaska, where a provider
approached the coalition to negotiate lower fees to reduce
members' engagement in medical tourism. He opined that CON's
intervention in healthcare had once been warranted, but it has
since outlived its usefulness by creating barriers to Alaska's
healthcare industry. Repealing CON would be the first step in
unraveling many distortions in the healthcare industry.
Repealing CON would help providers and consumers think of new
ways to achieve high-quality, effective healthcare delivery in
Alaska.
3:55:08 PM
MARY KASPARI, President, Interior Alaska Hospital Foundation,
Delta Junction, Alaska, testified in support of SB 8 and
provided a brief history of CON. She said Delta Junction is an
underserved healthcare area in Alaska where CON laws do not
help. From Delta Junction to the Canadian Border, there is no
advanced health care available for Alaskans, only day clinics.
The nearest hospital is 100 miles away, and getting there can be
difficult due to weather, military convoys, and trucking
services. A person does not realize the severity of the issue
until it is their loved one in a life-threatening situation
where time is of the essence. Repealing CON will increase Delta
Junction's ability to knit necessary medical services in the
community with the vast surrounding service area.
3:56:55 PM
DAWN FRAZIER, representing self, Delta Junction, Alaska,
testified in support of SB 8. She said outlaying communities
drive through Delta Junction to get to a hospital in Fairbanks.
People in those communities have driven in dangerous road
conditions to reach Fairbanks to save lives. Community
volunteers have worked hard to improve healthcare by
establishing a clinic and pharmacy. The volunteers are now
working to develop a small community hospital like those in
Valdez, Nome, Cordova, and Wrangell. It is a big task for a
worthy cause but receives no support from CON. Healthcare
foundations, corporations, and organizations can weigh in on the
decisions affecting Delta Junction, while its residents pay more
for their care, additional for travel, hotels, and meals. The
CON process is cumbersome, unfair, and influenced by profit and
expenses. She opined that it is time to do away with the CON
program. During COVID hospitals did not have enough beds due to
CON laws.
3:59:58 PM
ERICK CORDERO, Vice President, Alaska Policy Forum, Palmer,
Alaska, testified in support of SB 8. He stated that CON is
detrimental to Alaskans. CON makes opening new healthcare
facilities in Alaska difficult and expensive because patients
pay higher costs for lower-quality care and have fewer options.
CON laws require businesses to prove their services are
necessary before entering the market, which limits accessibility
and innovation. The laws also make it challenging to adapt to
emerging healthcare needs quickly. Allowing existing providers
to give input on their potential competition is not in the best
interest of patients. COVID prompted Alaska and other states to
suspend CON requirements to ensure healthcare facilities could
deliver essential services. The suspension of CON created no
problems but made the healthcare system more responsive to
emerging needs. Alaska needs to follow the example of states
that have removed CON laws.
4:01:45 PM
ANTONIA LEONARD, representing self, Wasilla, Alaska, said she
supports SB 8, the repeal of CON.
4:02:31 PM
CHAIR WILSON stated the committee would hear from previously
invited testimony that could not testify due to time
constraints.
4:02:38 PM
JAIMIE CAVANAUGH, Attorney, Institute for Justice, Arlington,
Virginia, testified by invitation on SB 8 and said that from a
policy perspective, several states with CON laws purposely
exclude rural areas from the program. Alabama, Oregon,
Tennessee, Washington, and Florida excluded rural areas from
their Con programs to encourage hospitals and other healthcare
facilities to expand into new areas. She opined that Utah and
Colorado had not had a hospital closure since 2005, and neither
state has CON laws. Therefore, it cannot be CON laws that
prevent rural hospital closures. In 1987 the federal government
repealed CON laws because findings showed the laws failed to
control healthcare costs and were insensitive to community
needs. Since then, various US government agencies have continued
to be consistent and support CON repeal. In 2019 the Federal
Trade Commission (FTC) and the Antitrust Division of the
Department of Justice submitted testimony supporting Congress's
repeal. They testified that CON proponents concede that CON laws
allow incumbent providers to earn greater profits than they
would in a competitive environment. They argued that these
providers use profits to cross-subsidize charity care. However,
the evidence does not show that CON laws advance that goal.
Empirical evidence contradicts the notion that dominant
providers use market power to cross-subsidize charity care. DOJ
and the FTC reviewed empirical evidence in a peer-reviewed
journal and found that CON does not increase the amount of
cross-subsidized charity care. They found that CON laws lead to
higher costs, lower quality, and decreased access to care. She
urged support for SB 8.
4:05:32 PM
ZACH YOUNG, representing self, Anchorage, Alaska, testified in
support of SB 8. He said CON laws are antiquated and have done
the opposite of their intent. Alaska has severe medical care
needs and a lot of rural communities. CON has caused undue
hardship to Alaska's rural communities that should have
hospitals. He stated his belief that repealing CON will provide
affordable healthcare and competition within the hospital
system, thereby creating more efficiency for the entire state of
Alaska.
4:07:16 PM
CHAIR WILSON closed public testimony on SB 8.
4:07:34 PM
MATTHEW MITCHELL, Senior Research Fellow, Knee Center, West
Virginia University, Morgantown, West Virginia, said he wished
to address the comment that healthcare is not a free market and
Medicaid costs will increase with the repeal of CON. He said 3
out of 10 Americans live in a state without CON, and their
experience, as reported through 100 different studies, is
greater access to higher quality and lower cost care. Alaska
does not have to speculate what will happen with its repeal. A
paper by Nancy Miller, Charlene Harrington, and Elizabeth
Goldstein titled Access Community-Based Long Term Care:
Medicaid's Role was published in 2002 in the Journal of Aging
and Health. They found that CON is associated with higher per
capita Medicaid community-based care expenditures. Two other
studies found that CON's repeal does not affect Medicaid
spending. Zero studies out of 40 found that Con is associated
with reduced spending on Medicaid.
4:09:44 PM
CHAIR WILSON held SB 8 committee.
4:10:15 PM
At ease.
SB 53-COMPETENCY; INVOLUNTARY CIVIL COMMITMENTS
4:12:18 PM
CHAIR WILSON reconvened the meeting and announced the
consideration of SENATE BILL NO. 53 "An Act relating to
involuntary civil commitments."
4:12:49 PM
SENATOR MATT CLAMAN, District H, Alaska State Legislature,
Juneau, Alaska, sponsor of SB 53, stated that his office began
working on SB 53 at the request of legislators wanting to
respond to constituent Angela Harris's tragic experience.
SENATOR CLAMAN moved to slide 2 and read:
[Original punctuation provided.]
Angela was returning books to the Loussac Library in
Anchorage when a man stabbed her in the back. The
perpetrator had attacked two other women less than two
months earlier, and was released by the court after he
was found incompetent to stand trial. We believe this
individual should not have been released to the
community. A petition for an involuntary commitment
should have been filed based on his prior attacks and
his psychiatric condition that made him a danger to
the community.
4:13:43 PM
SENATOR CLAMAN turned to slide 3 and read:
[Original punctuation provided.]
In working on this legislation, we reviewed the
extensive legal history of John Hinckley. You may
remember that John Hinckley was arrested for his
assassination attempt on President Ronald Reagan in
1981. Hinckley was charged with attempted
assassination of the President; assault on a federal
officer of the United States; and illegal use of a
firearm. In the trial, the jury found Hinckley not
guilty by reason of insanity. Immediately upon this
finding by the jury, Hinckley was committed to Saint
Elizabeths Hospital for an indeterminate period of
time an involuntary commitment.
From 1981 to 2022, the restrictions imposed on
Hinckley by the court were lessened as his psychiatric
condition improved. During his hold, Hinckley
petitioned the court numerous times for release.
4:14:26 PM
SENATOR CLAMAN continued:
For example, in 1999 Hinckley filed a motion for
conditional release. The court was required to make
findings of fact and conclusions of law whether the
proposed release would benefit the patient and be safe
for the public. The court denied the motion because of
Hinckley's history of deception, the hospital's
repeated inability to control his actions, and an
incident where Hinckley attempted to stalk a member of
the staff. Hinckley's counsel appealed the decision,
and the appellate court affirmed the ruling of the
lower court.
In 2008, Hinckley was approved by the court for
limited conditional release for overnight stays at his
mother's home. The plan included very detailed
requirements for the plan of his stay, who was meant
to supervise Hinckley, and how many times he was meant
to meet with the local psychiatrist during these
stays.
In 2013, Hinckley was approved for eight 17-day visits
with the purpose of these visits being genuine
integration into the community. The court found that
Hinckley's narcissistic personality disorder was not
evidence of potential dangerousness but maintained
concerns about his failure to integrate himself into
the community.
4:15:26 PM
SENATOR CLAMAN continued:
In 2016, the hospital and government agreed that
Hinckley's primary diagnoses had been in full and
sustained remission for well over twenty years. Most
experts agreed that he had received the maximum
benefits possible in an in-patient setting. The court
approved full-time convalescent leave with additional
and modified conditions.
Ultimately, in 2021, the court held a status
conference at which government counsel and Mr.
Hinckley's counsel discussed his mental stability,
compliance with conditions set by the court, and their
agreement specific to Mr. Hinkley's 2022 unconditional
release.
You may ask why talk about John Hinckley. Here's
why:
Hinckley was a person with a mental illness who spent
many years in involuntary commitment and who was only
released when he no longer presented a danger to the
community.
4:16:22 PM
SENATOR CLAMAN turned to slide 4 and said:
Senate Bill 53 deals with Title 12, which is related
to criminal charges, and Title 47, which is related to
civil proceedings.
The determination of whether an individual is
competent or incompetent to stand trial, in addition
to restoration to competency if deemed incompetent, is
a process set out in the Code of Criminal Procedure in
Title 12. The standard for determining an individual's
competency to stand trial is found both in statute and
in a long history of case law. A simplified
explanation of competency, an important consideration
of the court, is whether the individual understands
the charges against them, can assist their lawyer, and
is therefore able to plead guilty or not guilty to the
charges.
Competency is not a defense and is unrelated to the
mental state of the individual at the time of the
crime. In order to protect constitutional due process
rights of individuals in our legal system, a person
who is incompetent to stand trial cannot be convicted
of a crime. This is because a person has the right to
understand the crime with which they are charged and
the consequences of the crime they've been charged
with.
A separate process is used for involuntary commitment
in Title 47 Welfare, Social Services, and
Institutions. The standard for involuntary commitment
is whether an individual, as a result of their mental
illness, is a danger to themselves or others.
4:17:57 PM
SENATOR CLAMAN turned to slide 5 and said:
[Original punctuation provided.]
Senate Bill 53 creates a duty for the Department of
Law to file a petition seeking involuntary commitment
when: a defendant is found incompetent to stand trial
at the expiration of the final period for competency
restoration, the defendant is charged with a felony
offense against the person, and they present a danger
to themselves or others.
The legislation does not specify which side of the
Department of Law files the petition, either criminal
or civil division, and this is meant to allow the
Attorney General's office more management flexibility
in determining who makes these petitions.
4:19:56 PM
SENATOR CLAMAN turned to slide 6 and said:
[Original punctuation provided.]
In our conversations with Angela, we grew to
understand the direct impact current statute has had
on her ability to find the assurance she needs moving
forward. The legislation before you creates a five-
year involuntary hold option for individuals who meet
the following qualifications:
• They have been found incompetent to stand trial
on a felony offense against the person
• They have been previously subject to involuntary
commitment orders for 30, 90, and 180-day holds
• They have a history of felony offenses against
the person
• And they present a danger to themselves or others
This expansion of Alaska's involuntary commitment
statutes reflects the reality that there exists a
small number of individuals who, as a result of
behavioral health issues, present a danger and are not
suitable for community-based treatment options.
4:19:37 PM
SENATOR CLAMAN turned to slide 7 and said:
[Original punctuation provided.]
As a matter of protecting the due process of
individuals in the state of Alaska's care, Senate Bill
53 includes language that the respondent may petition
for early discharge. The court must find, in order to
accept a petition for early discharge, that the
respondent is no longer a risk to themselves or
others.
4:20:08 PM
EMMA POTTER, Staff, Senator Matt Claman, Alaska State
Legislature, Juneau, Alaska, presented the sectional analysis
for SB 53 as follows:
[Original punctuation provided.]
Section 1
AS 12.47.110. Commitment on finding of incompetency
Adds a new subsection (f) clarifying that the
Department of Law has a duty to file an involuntary
commitment petition when a person has been found
incompetent to stand trial and the criminal charges
are being dismissed due to the defendant's inability
to be restored to competency.
Section 2
AS 47.30.771. Additional five-year commitment Adds a
new section creating additional five-year involuntary
commitment. Five-year commitment petitions are filed
at the expiration of 180-day commitments for
individuals who meet the following criteria: the
respondent is mentally ill and as a result is likely
to cause harm to self or others; the respondent has a
history of repeated felony offenses against a person
under AS 11.41, or attempts of harm to self; the
respondent has been found incompetent to stand trial
under AS 12.47.100 and 12.47.110 for a felony offense
against a person under AS 11.41; and commitment of the
respondent for greater than 180 days but not greater
than five years is necessary to protect the public.
Clarifies that findings of fact relating to the
respondent's behavior made at 30-day, 90-day, and 180-
day commitment hearings shall be admitted as evidence
and may not be rebutted except that newly discovered
evidence may be used for the purpose of rebutting the
findings. Instructs the department to submit an annual
report to the attorney general, public defender,
public advocate, Alaska Court System, and the attorney
of record of the respondent detailing how many
respondents are committed under this section and how
much time remains on each order of commitment.
Section 3
AS 47.30.780. Early discharge Amends subsection (a) to
include reference to new subsection (c) of AS
47.30.780.
Section 4
AS 47.30.780. Early discharge Adds new subsections
which require that the professional person in charge
may not discharge respondents from involuntary
commitment unless the court enters an order officially
terminating the involuntary commitment after a
hearing. This section requires a court decision on
discharge of a respondent from involuntary commitment.
Section 5
AS 47.30.805. Computation, extension, and expiration
of periods of time Amends section (a) to include five-
year commitments. States that five-year commitment
period expires at the end of five years after the 180-
day period of treatment.
4:22:57 PM
SENATOR GIESSEL asked Senator Claman why he chose five years for
the commitment period.
4:23:05 PM
SENATOR CLAMAN stated he sought to establish balance by not
taking away too many rights. For example, a 50-year commitment
seems excessive regarding due process and what a court would
approve. Five years has some equivalencies to certain felony
sentences. The five-year hold provides time for the offender's
successful planning and community integration. Having hearings
every six months puts an undue burden on victims such as Angela.
4:25:24 PM
SENATOR DUNBAR referred to page 2, lines 12-15, and asked for an
explanation of "repeated." He wondered whether a person would
need more than one prior offense to receive a five-year
commitment.
4:26:37 PM
SENATOR CLAMAN opined that the court of appeals determined
"repeated" to mean more than one. He said he leans towards
removing the word "repeated" because one prior felony offense
should be adequate. The first incident is not enough, but the
second incident would be enough to receive a five-year
commitment.
4:27:33 PM
SENATOR DUNBAR opined that a person would not receive a five-
year commitment until a third felony incident occurred based on
how SB 53 was written.
4:28:00 PM
SENATOR CLAMAN said his understanding and the court of appeals
opinion would be that a second incident would be the basis to
move forward. He thinks "repeated" should be removed from SB 53.
4:28:33 PM
SENATOR DUNBAR asked how other states have handled involuntary
civil commitment.
4:28:53 PM
SENATOR CLAMAN replied that there are two topics associated with
involuntary commitment. The first is how long an incompetent
person should be held to establish competency. The second is the
length of time for a civil commitment. SB 53 seeks to make
Alaska one of the first states to have a long involuntary civil
commitment based on facts about a person's unprosecuted criminal
conduct. He said he was not familiar with other states'
incompetency hold laws. Recently, Colorado has allowed
individuals to be held to try and restore them to competency
using the length of the potential criminal charge. If someone
was facing a 99-year sentence, they could be held involuntarily
for 99 years to try and restore their competence. He stated his
belief that this creates due process concerns somewhere after
year one but before year ninety because it is like putting
someone in jail without holding a trial.
4:30:48 PM
SENATOR KAUFMAN referred to Page 2, line 10, and asked if the
requirements are inclusive.
4:31:20 PM
SENATOR CLAMAN said page 2, line 18 uses the word "and, which
means requirements 1 - 4 in subsection (b) must all be true.
4:31:40 PM
SENATOR TOBIN asked whether an incompetent person stands trial
for their crime once declared competent.
SENATOR CLAMAN replied that there are three outcome scenarios
for an incompetent individual who has committed a crime:
• If, after a period of hold to restore competency, the
person is not restored to competency, that fact is brought
before the court, and the court dismisses the charges based
on incompetency.
• If a person is deemed competent sometime after the court
has dismissed charges based on incompetency, the charges
against them can be reinstated.
• If the court dismisses charges based on incompetency and
sometime after that, the person is deemed competent, the
original charges can be reinstated.
• If the person is deemed competent after a period of hold to
restore competency, the charges proceed.
4:33:23 PM
CHAIR WILSON asked Senator Claman whether the three outcomes of
a commitment hold were included in SB 53 and if it mentions
there is no statute of limitations for incompetency.
4:33:53 PM
SENATOR CLAMAN replied that SB 53 does not require the
specification of the statute of limitations that apply to
certain crimes. There is no statute of limitations for murder,
sexual assault, or abuse. He suggested seeking a legal opinion.
4:34:37 PM
CHAIR WILSON questioned whether SB 53 needs to contain language
stating a person could face original charges once found
competent.
4:34:55 PM
SENATOR CLAMAN opined that it would not prevent charges from
being filed. He deferred to the general counsel.
4:35:29 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, Juneau, Alaska, said AS
12.47.110(b) clarifies what happens when somebody is found
incompetent. She summarized AS.47.100(b) as follows:
If the person is what we call not restorable after two
six-month periods, the charges shall be dismissed
without prejudice; without prejudice meaning the
prosecutor is free to refile. But it also says if the
defendant remains incompetent for five years, the same
time period as Senator Claman's bill, by the way,
after the charges have been dismissed, the defendant
may not be charged again, for that same facts, except
if the original charge is an A felony or an
unclassified felony. So, I think that's very clear;
for the more serious crimes, you can do it at any
point, but after five years, the 11.41 crimes that are
B or C felonies or below could be recharged because
the case was dismissed without prejudice.
4:36:41 PM
SENATOR TOBIN said a patient or individual under SB 53 who has
committed a crime must petition a competency declaration. She
asked if an individual could game the system by not applying for
a declaration of competency.
4:37:24 PM
SENATOR CLAMAN said he is concerned that a decision of
incompetency under Title 12 is being confused with an
involuntary commitment decision under Title 47. SB 53 is more
about involuntary commitment than competency. Involuntary
commitment results from a person's mental health posing a
defective danger to oneself or others. He stated his
understanding that courts ultimately decide competency. A
medical professional can opine that a person is competent to
stand trial, but the decision is not made solely by a physician
or evaluator. SB 53 seeks to establish that before a person's
release from an involuntary commitment by a physician or
evaluator, they must have a court hearing and receive a non-
dangerous finding before being released.
SENATOR TOBIN said she wants to ensure that the court could hold
a person accountable following the five-year jeopardy period if
they are competent.
SENATOR CLAMAN responded that after being held incompetent for
five years, the court could not charge a person that didn't have
a Class A or unclassified felony charge against them. However,
if four years and six months into an involuntary hold, a person
was found competent, the court could bring charges against them.
4:39:59 PM
CHAIR WILSON asked how it is justifiable to hold a person in an
involuntary hold for five years if the sentence they would have
received for the crime committed was less than five years.
4:40:45 PM
SENATOR CLAMAN replied that there is no criminal sanction when a
person is declared incompetent and criminal proceedings are
dismissed. Once this happens, the individual is held
involuntarily based on their psychiatric condition if they are a
danger to themselves or others. He stated there are people in
the Alaska Psychiatric Institute who are on serial 380-day holds
based on a finding of danger to the community. The ability to
hold an individual is unrelated to the criminal process because
incompetency means they do not understand the process.
4:41:43 PM
CHAIR WILSON turned to invited testimony on SB 53.
4:41:55 PM
ANGELA HARRIS, representing self, Anchorage, Alaska, gave her
invited testimony as follows:
I was stabbed while returning borrowed items at the
Loussac Library on Sunday afternoon, February 13,
2022. My family and I've lived in Alaska since 2005. I
am a mother to four children, all of whom I've
regularly taken to the library since they were young.
I have two daughters serving in the United States
Navy; one promoted me to grandma a month ago. And
[I've] a senior and junior. I am serving on active-
duty coast guard. My assailant, Corey Lee Ahkivgak,
drove a dirty Leatherman knife into my spine, between
L2 and L3, penetrating my spinal cord.
Mr. Ahkivgak was located and arrested by APD later
that afternoon while I was awaiting emergency surgery
to remove the knife and the blood clots that damaged a
nerve bundle in my spinal cord. The stabbing left me
paralyzed from the waist down and with decreased
sensation in my upper extremities. I was unable to
live in my home until we made modifications at our
house to become handicap accessible and safe for me to
navigate. My parents flew in from the Lower-48 to live
in our home with my two youngest children for eight
months.
I'm now on a long road to recovery. I attended
physical therapy and occupational therapy five days a
week for approximately nine months, and I see a
counselor no less than twice a week to help work
through the PTSD of my assault.
After the assault, I was unable to see or hug any of
my family members due to the COVID protocol. I was
left to deal with the physical, mental, and emotional
impact on my own. To have one designated approved
visitor after I was transferred to St. Elias
Rehabilitation Center, we had to petition committee
members to request access. After many declines and
being subpoenaed by the Grand Jury, I requested to be
discharged against the doctor's orders because I could
no longer navigate the tragedy on my own. Eventually,
the committee agreed to approve one visitor. The
designated member was permitted to enter and exit the
building only once a day.
4:44:35 PM
MS. HARRIS continued:
Take a moment to imagine sitting alone, left to
process the absolute worst event in your life. Sepsis
[indiscernible], as the knife was unclean, and your
parents and your children can only see from a window.
Worse than this, imagine that it's you on the other
side of the window looking at your loved one wounded
by a man who has been arrested on multiple occasions
and released back into our community because the law
has no provisions for him.
Mr. Ahkivgak has a history of assaulting women. In
2018 he violently attacked his mother with a frying
pan. He attacked two other women on December 10, 2021.
He was declared incompetent and not restorable, and he
was released back to the public on January 6, 2022. On
February 10, 2022, he was arrested for trespassing.
Thirty-eight days after his release, he stabbed me on
February 13, 2022. He was declared incompetent, and he
could be released back into the public after his next
competency hearing in a few months. There's no longer
a record of these assaults, and the courts have been
very unclear on whether or not they maintain
information on those cases that are dropped due to
incompetence.
Furthermore, I no longer have the right to know when
he is released because I'm told it violates his HIPAA
rights. We need improvements to the state's mental
health system, particularly regarding violent
offenders, and we need to close the loophole and
current laws that allow people to commit violent
crimes only to be released back into our community. We
need to give victims more peace.
4:46:21 PM
MS. HARRIS continued:
As I work towards healing, it's difficult for me to
live with the reality that my assailant could be
released after the next 180-day hearing. I attended
several block hearings, hearings where numerous cases
are grouped and heard one after another when the
issues are very similar. And I was appalled at how
often the defense was able to get their clients
released from custody simply because there's a
waitlist for restitution, and it was too long, and it
began to encroach upon the defendant's rights. I'm a
firm believer that everything happens for a reason,
and I know that Jesus would not have put me in this
position if I couldn't handle it. With that being
said, I intend to share my story while I continue to
attend physical and occupational therapy appointments
to physically heal with the hopes of reducing the
amount of senseless violent assaults.
Aaron, who was the main provider of our home was
unable to work as he had to care for me to take me to
and from my daily outpatient care appointments. The
State offers no financial assistance to supplement his
lost income, and because he was not considered a
victim, he was not offered support for the trauma that
he experienced by watching his partner of 12 years lay
on the floor with a knife in her back. There's no
reimbursement for items needed to assist victims in
daily living. Victims for Justice has a $40,000 cap on
services provided. I would have blown through that the
first hour after my attack. If I were not on active
duty with the United States Coast Guard at the time of
my attack, I would have very limited resources and
cannot imagine the ruins of other victims and what
they've experienced. As the perpetrator, Mr. Ahkivgak
has more rights, options, and resources at his
disposal than I do as his victim.
My attack is an example of why we need to be tougher
in our laws and build out mental health facilities to
get violent offenders the help that they need and to
properly prosecute them once they're restored. API
serves our entire state, yet they're operating on a
very limited capacity with a maximum of 80 beds, and
only 10 of those are designated for restoration. If
the state of Alaska has a robust Mental Health Trust,
where are the funds being allocated if not API?
4:48:37 PM
MS. HARRIS continued:
We must address the common element of inadequate
mental health services for violent offenders and their
victims. I just share with you my experience and
navigation through this process. I share this with you
and all fellow Alaskans to emphasize that we must
close the loopholes that allow violent offenders to
victimize more innocent Alaskans. It's currently up to
the victims to pursue a civil commitment if their
assailant has been released due to incompetence. Why
hasn't the state taken on this responsibility?
Not every victim has resources to heal themselves,
much less pursue a civil commitment request against
their assailant. I listened in on the block hearings,
and I've heard victims plead with the courts to keep
their attacker from being released, only to hear that
they couldn't hold them because it exceeds a
reasonable amount of time for them to get evaluated or
treated.
The moment an offender commits a criminal act against
a fellow citizen, then their right of privacy should
be outweighed by the victims, and the public's right
to know because this is a public safety issue. SB 53,
presented here today by Senator Claman, is an
opportunity for you and your elected positions to make
changes that are beneficial for all Alaskans, whether
victim or offender. Senate Bill 53 is a good starting
point, but I encourage each of you to learn more about
the issues and find solutions to prevent what happened
to me from happening to others. Without your support,
my story will become normal for far too many Alaskans.
My final question to all of you - Is my sequence of
events going to be the new normal, or do you have the
internal fortitude to support and pass this bill so
there are less Alaskans presenting with the same
scenario as I've lived? Thank you for your attention
and your time.
4:50:38 PM
SENATOR KAUFMAN thanked Ms. Harris for her testimony.
4:51:08 PM
At ease.
4:52:02 PM
CHAIR WILSON opened public testimony on SB 53.
4:52:32 PM
MARK REGAN, Legal Director, Disability Law Center, Juneau,
Alaska, testified in opposition to SB 53 but apologized on
behalf of the system for what happened to Ms. Harris. He stated
that if state officials had the capacity in places like the
Alaska Psychiatric Institute and could have filed a civil
commitment petition before the state deemed Mr. Ahkivgak
incompetent to proceed, he would not have been released to the
community, and the tragedy would not have happened. He stated
that the problem is not loopholes in the system; rather, the
state has not set up the system to deal with the problem. He
said a particular part of the system's setup is the idea of
competency restoration. API is not the right place for
competency restoration because it participates in the overload
at API.
There are 80 beds at API, and ten are devoted to competency
restoration. Competency restoration should not occur in jail and
cannot happen at API because the ten beds are full. There are
long waitlists of people in prison who have been found
incompetent without a place to go through competency
restoration. A positive outcome of this tragedy would be
revising the competency restoration system allowing more people
to receive treatment. The solution is not to impose mandatory
civil commitment of up to five years. Had the system functioned
correctly, the solution would have been for the state to file a
petition for civil commitment.
4:56:23 PM
CHAIR WILSON stated he has heard that people are using
incompetency hearings as an easier way to get charges dropped
because of the time constraints and limits on the Department of
Law. He asked how many evaluations are on the waitlist and if
more people are needed to handle the workload. He asked if it is
possible for victims of attackers in civil commitment to be
notified of their attacker's release, like the Victim
Information and Notification Everyday system (VINELink).
VINELink empowers survivors of convicted criminals. He stated he
does not see it as a HIPPA violation because personal
information is not released.
4:58:06 PM
SENATOR CLAMAN replied that he would provide the committee with
the number of people in restoration holds. He knows the number
of people in sequential long-term civil commitments. His office
is looking into options for notice requirements that do not run
afoul of HIPPA. He stated his belief that while the state could
not integrate notification of civil commitment release with the
criminal system, other options could be available since civil
commitment proceedings are not confidential. He asked if the
committee would like the statistics on the current number of
civil commitments.
4:59:35 PM
CHAIR WILSON responded yes, and also the number of people in
criminal commitments since the systems would be similar.
4:59:47 PM
SENATOR CLAMAN stated that the Department of Family and
Community Services had reported ten individuals with long-term
civil commitments, and he provided their commitment dates.
5:01:09 PM
CHAIR WILSON closed public testimony and held SB 53 in
committee.
5:01:47 PM
There being no further business to come before the committee,
Chair Wilson adjourned the Senate Health and Social Services
Standing Committee meeting at 5:01 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 8 Singer-Written Testimony Alaska Sen. Health and Social Services Committee.docx |
SHSS 2/21/2023 3:30:00 PM |
SB 8 |
| SB 8 ADN Op-Ed_What's really crowding Alaska's hospitals_2.2.23.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 8 |
| SB 8 Providence Opposes SB 8 Repeal of CON.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 8 |
| SB 53 v A..PDF |
SHSS 2/21/2023 3:30:00 PM |
|
| SB 53 SHSS Presentation v. B.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 53 |
| SB 53 Sponsor Statement.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 53 |
| SB 53 Sectional Analysis version B.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 53 |
| SB 53 FN Dept Law.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 53 |
| SB 53 FN DFCS API.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 53 |
| SB 53 FN DOA OPA.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 53 |
| SB 53 FN DOA Public Defender.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 53 |
| SB 53 Research - KTUU Article 2.15.2022.pdf |
SFIN 5/3/2023 9:00:00 AM SHSS 2/21/2023 3:30:00 PM SJUD 3/10/2023 1:30:00 PM SJUD 3/29/2023 1:30:00 PM |
SB 53 |
| SB 53 v B.PDF |
SHSS 2/21/2023 3:30:00 PM |
SB 53 |
| SB 45 Amdmt S.1.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 45 |
| SB 45 Amdmt S.2.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 45 |
| SB 45 Amdmt S.3.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 45 |
| SB 45 Amdmt S.4.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 45 |
| SB 45 Amdmt S.6.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 45 |
| SB 8 - FHP opposition letter to S-HSS.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 8 |
| SB 8 - Dr Mitchell's Peer Reviewed CON data.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 8 |
| SB 8 - KMC Opposes SB8 - 2.20.23.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 8 |
| SB 8 Support Hanson 2.21.23_Redacted.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 8 |
| SB 8 - NCSL - Rural Hospital Closures CON and Ambulatory Surgical Centers.pdf |
SHSS 2/21/2023 3:30:00 PM |
SB 8 |