05/04/2021 03:00 PM House HEALTH & SOCIAL SERVICES

        SB 65-LIABILITY CONSULTING HEALTH CARE PROVIDER                                                                     
                                                                                                                                
3:09:40 PM                                                                                                                    
                                                                                                                                
CO-CHAIR SNYDER announced that the  first order of business would                                                               
be CS FOR  SENATE BILL NO. 65(JUD), "An Act  relating to immunity                                                               
for  consulting  physicians,  podiatrists,  osteopaths,  advanced                                                               
practice registered nurses,  physician assistants, chiropractors,                                                               
dentists, optometrists, and pharmacists."                                                                                       
                                                                                                                                
3:10:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SPOHNHOLZ  moved to  adopt  Amendment  1 to  CSSB
(JUD), labeled 32-LS0002\G.1, Fisher, 4/30/21, which read:                                                                    
                                                                                                                                
     Page 1, line 3:                                                                                                            
          Delete "and pharmacists"                                                                                            
          Insert "pharmacists, physical therapists, and                                                                       
     occupational therapists"                                                                                                 
                                                                                                                                
     Page 3, line 3:                                                                                                            
          Delete "or"                                                                                                           
          Following "AS 08.80":                                                                                                 
       Insert ", or a physical therapist or occupational                                                                        
     therapist licensed under AS 08.84"                                                                                         
                                                                                                                                
REPRESENTATIVE PRAX objected.                                                                                                   
                                                                                                                                
REPRESENTATIVE SPOHNHOLZ  explained that to be  consistent in who                                                               
is included and  who is excluded, Amendment 1  would add physical                                                               
therapists and  occupational therapists to the  list of providers                                                               
covered  in the  bill,  which  includes chiropractors,  dentists,                                                               
optometrists, and pharmacists.                                                                                                  
                                                                                                                                
3:11:25 PM                                                                                                                    
                                                                                                                                
SENATOR JESSE  KIEHL, Alaska State Legislature,  as prime sponsor                                                               
of SB 65, offered his  appreciation for the conversations that he                                                               
and  Representative Spohnholz  have had  about Amendment  1.   He                                                               
maintained that [CSSB  65(JUD)], as offered to  the committee, is                                                               
consistent     in    that     all     the    included     medical                                                               
professions/disciplines have certain  similarities in their scope                                                               
of practice,  although they  cover a broad  range of  health care                                                               
providers.  The health care providers  on the list have the power                                                               
of  diagnosis, as  well as  their treatment  powers within  their                                                               
specific  area  of  training  and   expertise.    While  physical                                                               
therapists  and occupational  therapists  are extremely  valuable                                                               
health  care  providers,  with  a  civil  liability  bill  it  is                                                               
important to consider  the relative risk when  the legislature is                                                               
going  to grant  total  immunity in  civil law.    For the  other                                                               
providers  on  the list,  the  scopes  of practice  involve  much                                                               
higher  relative risks  of physical  harm within  their scope  of                                                               
practice.                                                                                                                       
                                                                                                                                
SENATOR KIEHL continued  his response.  He  flagged the potential                                                               
for a  difference in the  scope of practice between  the treating                                                               
provider and the  professional who is consulted.   He pointed out                                                               
that the treating  provider has a more limited  scope of practice                                                               
and  the  medical provider  who  is  consulted  has a  much  more                                                               
extensive scope  of practice  and training.   Under the  bill the                                                               
treating provider retains full liability,  so it is important for                                                               
this bill to  make sure that the treating provider  has the scope                                                               
of practice  and scope of  training to fully evaluate  the advice                                                               
he  or  she  is  given  in  that unpaid  consult.    He  said  he                                                               
appreciates the  intention of the  amendment's sponsor,  but that                                                               
he is more comfortable with the bill as presented.                                                                              
                                                                                                                                
3:13:57 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KURKA  asked whether  he is  correct understanding                                                               
that Senator  Kiehl's concern  is if  a physical  or occupational                                                               
therapist gets  medical advice from  a doctor and then  works off                                                               
that advice to treat a patient,  the doctor should be held liable                                                               
because the  license of a  physical or occupational  therapist is                                                               
not on the same playing field as a doctor.                                                                                      
                                                                                                                                
SENATOR KIEHL  replied that the  bill does  not create a  duty of                                                               
care for consultations outside the  grant of civil immunity here,                                                               
but specifically to the grant  of civil immunity, that difference                                                               
described by Representative Kurka is a concern.                                                                                 
                                                                                                                                
3:15:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SPOHNHOLZ, in relation  to the sponsor's statement                                                               
about  diagnosis and  treatment,  pointed out  that  in Alaska  a                                                               
physical therapist  and an occupational  therapist do not  need a                                                               
referral from  another provider.   For  example, a  person having                                                               
trouble with  his or her  shoulder can  choose to see  a physical                                                               
therapist  without  a  doctor's  prescription.    Therefore,  she                                                               
maintained, physical  therapists and occupational  therapists are                                                               
equivalent.  They have their  own board, she continued, and given                                                               
the comparative  other professions included  in the bill,  all of                                                               
which have very different scopes  of practices, it seems there is                                                               
a lot of parody here.                                                                                                           
                                                                                                                                
CO-CHAIR  SNYDER commented  that the  committee is  talking about                                                               
adding  physical therapists  and occupational  therapists to  the                                                               
group of individuals  that could be called and  are protected, as                                                               
opposed  to  the  provider  doing  the calling.    She  said  she                                                               
therefore questions why adding them wouldn't be wanted.                                                                         
                                                                                                                                
SENATOR  KIEHL answered  that Amendment  1  runs both  directions                                                               
because it  defines a health  care provider for purposes  both of                                                               
making the phone  call and receiving the call, not  that it would                                                               
have to be by phone.                                                                                                            
                                                                                                                                
CO-CHAIR SNYDER  asked whether it  is correct that  the liability                                                               
protection is to the one receiving the call.                                                                                    
                                                                                                                                
SENATOR KIEHL [nodded in the affirmative].                                                                                      
                                                                                                                                
3:17:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE MCCARTY asked whether he  is correct that the bill                                                               
sponsor is saying that the group  included in SB 65 is at greater                                                               
risk  in  court-type  situations   than,  say,  a  mental  health                                                               
provider, or physical therapist, or occupational therapist.                                                                     
                                                                                                                                
SENATOR KIEHL  confirmed that Representative  McCarty's statement                                                               
is correct.                                                                                                                     
                                                                                                                                
3:18:24 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PRAX,  to  provide  context, asked  how  often  a                                                               
physical  therapist or  an occupational  therapist  would call  a                                                               
specialist as compared to a  general practitioner for example who                                                               
would call specialists more often.                                                                                              
                                                                                                                                
REPRESENTATIVE SPOHNHOLZ replied that  that is possibly true, but                                                               
she is unaware of  evidence to show that it is  true or not true.                                                               
She said  calls could be  going either way  with how the  bill is                                                               
currently crafted.   With the  way the  bill is drafted,  and the                                                               
way Amendment  1 is considered,  she added, a  physical therapist                                                               
or occupational  therapist could  call a general  practitioner or                                                               
orthopod  for consultation.   Since  Alaska has  direct entry  to                                                               
physical  therapy  and occupational  therapy  it  makes sense  to                                                               
include  physical  therapists   and  occupational  therapists  to                                                               
ensure that that two-way communication is happening effectively.                                                                
                                                                                                                                
3:21:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  MCCARTY  expressed  his  understanding  that  the                                                               
concern is that  an orthopod could call a  physical therapist and                                                               
then the physical  therapist would be the  consulting person, and                                                               
SB 65 is to protect the consulting individual.                                                                                  
                                                                                                                                
REPRESENTATIVE SPOHNHOLZ  responded that, given the  way the bill                                                               
is drafted, it could go either way.                                                                                             
                                                                                                                                
CO-CHAIR SNYDER pointed out that  the liability protection is for                                                               
the person being called.                                                                                                        
                                                                                                                                
REPRESENTATIVE MCCARTY  said that  is his understanding  as well.                                                               
So, he continued,  that gets into the question  of how frequently                                                               
physical or  occupational therapists  are consulted,  and whether                                                               
that puts them in greater  civil liability type things that exist                                                               
in  the industry  of health  care.   He  stated that  what he  is                                                               
hearing from the bill sponsor is  that this category of people is                                                               
at a higher risk than others.                                                                                                   
                                                                                                                                
CO-CHAIR SNYDER replied that that is what is being assumed.                                                                     
                                                                                                                                
3:22:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SPOHNHOLZ  asked  the bill  sponsor  whether  the                                                               
aforementioned  is  the case.    Given  the  bill is  drafted  to                                                               
include chiropractors,  she stated,  the assumption is  that they                                                               
are at higher  risk of potential liability for  consulting than a                                                               
physical therapist, osteopath, or  physician's assistant, yet she                                                               
is unsure whether evidence of that has been seen.                                                                               
                                                                                                                                
SENATOR  KIEHL  answered that  chiropractors  were  added in  the                                                               
[Senate Health  and Social Services Standing  Committee], and one                                                               
of  the  meaningful  distinctions   among  those  professions  is                                                               
diagnostic power.  He said it  is good law that in Alaska someone                                                               
can  go directly  to  see a  physical  therapist or  occupational                                                               
therapist, and  because their scope  of practice does  not extend                                                               
to diagnosis, their exposure when  looking at statute is limited;                                                               
whereas the  other medical  professions included  in the  bill do                                                               
have the power  of diagnosis in their statutes.   Almost all have                                                               
the  power of  prescription, and  to a  greater or  lesser extent                                                               
optometrists  can prescribe  a limited  quantity of  opioids; the                                                               
exception there would  be the pharmacists themselves.   The scope                                                               
of  practice of  pharmacists is  quite  limited.   The number  of                                                               
topics on which a pharmacist  might provide a consultation to one                                                               
of the  other providers on  the list is limited  to pharmacology,                                                               
so  there aren't  broader concerns  about their  ability to,  for                                                               
example, evaluate advice they are given  or to be asked advice on                                                               
a topic.   He expressed his hope that  this covers Representative                                                               
Spohnholz' thoughts about the consistency of the list.                                                                          
                                                                                                                                
3:25:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PRAX maintained  his objection.   He  offered his                                                               
appreciation for  what Representative Spohnholz is  saying to try                                                               
to make this applicable equally from  the point of the law.  But,                                                               
he continued, what is  being done on the other side  is to give a                                                               
privilege to  certain groups.   He  said he  is hesitant  to make                                                               
that broader at this time but might reconsider at another time.                                                                 
                                                                                                                                
REPRESENTATIVE KURKA stated  he is split both ways  on who should                                                               
receive  the liability  protection  under certain  circumstances,                                                               
but he also  sees that physicians should  take responsibility for                                                               
their advice  in other situations.   He can see  situations where                                                               
individuals  are  consulted   in  their  respective  professions,                                                               
whether  or  not they  are  physical  therapists, and  maybe  the                                                               
liability protection  for their  profession versus  the situation                                                               
where they  are getting  advice from  a different  licensure, and                                                               
there is the possibility that these are separate things.                                                                        
                                                                                                                                
3:28:18 PM                                                                                                                    
                                                                                                                                
CO-CHAIR ZULKOSKY  offered her  appreciation for  the explanation                                                               
of looking  at the provider types  included in the bill  and what                                                               
aligning  all  of  them  means  with  respect  to  the  power  of                                                               
diagnosis and the level of risk  that is associated among them in                                                               
terms  of prescribing  power or  rendering  diagnoses.   Physical                                                               
therapists and  occupational therapists may not  necessarily have                                                               
the power  of diagnosis, and they  also do not have  the level of                                                               
risk in  terms of the treatment  that they provide.   While there                                                               
is parody  in the  type of  treatment that  might be  provided, a                                                               
physical therapist,  for example, is not  doing high manipulation                                                               
like a chiropractor  would be doing.  She asked  how there is not                                                               
parody  if  there  is  a  lower  level  of  risk  that  might  be                                                               
experienced in  consulting a  physical therapist  or occupational                                                               
therapist or vice versa.                                                                                                        
                                                                                                                                
SENATOR KIEHL responded  that the relative level of  risk gets to                                                               
the need to  grant statutory immunity.  Where that  level of risk                                                               
is lower, he  said, the need to grant a  total immunity from suit                                                               
is also  significantly lower.   Excluding someone from  this list                                                               
of total immunity  from lawsuit doesn't create some  duty of care                                                               
where it  didn't exist  before, it isn't  exposing them  to brand                                                               
new  lawsuits  that  others  are   being  exempted  from.    That                                                               
comparative risk  of harm is  a significant factor in  looking at                                                               
who needs to be covered under the bill.                                                                                         
                                                                                                                                
3:31:49 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SPOHNHOLZ suggested  that SB  65 tries  to create                                                               
comfort on the  part of a consulting provider  to provide candid,                                                               
effective consultation to another  provider, a positive intent of                                                               
this bill  that she supports.   This is  an issue of  parody, she                                                               
opined,  because  physical  therapists  diagnose  and  do  spinal                                                               
manipulation just as chiropractors  do.  Physical therapists have                                                               
a very broad  range of practice and given the  expanding scope of                                                               
their practice over  time and that they  do provide consultation,                                                               
it's  an  issue  of  parody  if chiropractors  are  going  to  be                                                               
included.   Physical therapists do  many of the same  things plus                                                               
other invasive  procedures that they  didn't do 50 years  ago but                                                               
are doing  now.  There  are specialties in physical  therapy just                                                               
like there  are specialties in nursing,  physician assistants, or                                                               
medical doctors.   This is  a matter of  parody, and if  they are                                                               
not going  to be included  then perhaps  chiropractors, dentists,                                                               
and optometrists should  be taken out.  But, if  all of those are                                                               
going to be included, then  not including physical therapists and                                                               
occupational therapists would be an oversight.                                                                                  
                                                                                                                                
3:34:14 PM                                                                                                                    
                                                                                                                                
A roll  call vote was  taken.  Representatives  Kurka, Spohnholz,                                                               
McCarty, Prax, Zulkosky,  and Snyder voted in  favor of Amendment                                                               
1.  Therefore, Amendment 1 was adopted by a vote of 6-0.                                                                        
                                                                                                                                
REPRESENTATIVE MCCARTY  commented that  this is a  marvelous bill                                                               
that frees up  the ability for professionals to  consult with one                                                               
another to improve health care  professions without the threat of                                                               
lawsuits.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  PRAX thanked  the  bill sponsor  for agreeing  to                                                               
personally call one  of his constituents who  had questions about                                                               
the bill.                                                                                                                       
                                                                                                                                
3:36:07 PM                                                                                                                    
                                                                                                                                
CO-CHAIR ZULKOSKY moved  to report CSSB 65(JUD),  as amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying [zero] fiscal note.                                                                                                
                                                                                                                                
REPRESENTATIVE KURKA  stated that he  is not going to  oppose the                                                               
bill at  this time and probably  will support it on  the floor as                                                               
written, but he  is concerned about adding a lot  of new language                                                               
in statute.   The sponsor has  been clear that the  intent is not                                                               
to  create a  duty  of care  that wasn't  there  already, but  he                                                               
questions why a  new list is being created that  is not somewhere                                                               
else.   He  is  concerned about  the  unintended implications  of                                                               
creating this immunity, but the intent of the bill is important.                                                                
                                                                                                                                
There being  no objection, HCS  CSSB 65(HSS) was reported  out of                                                               
the House Health and Social Services Standing Committee.