Legislature(2001 - 2002)
04/23/2002 04:37 PM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 364
"An Act relating to medical services under the state Medicaid
program."
This was the first hearing for this bill in the Senate Finance
Committee.
Co-Chair Kelly stated this bill mirrors guidelines established by
the federal Supreme Court regarding public funding of abortion;
moreover, it encompasses Alaska statutes and language incorporated
into the FY 02 State budget. He voiced the need for "the State" to
maintain its position on procreation; however, he commented the
Alaska Court System has repeatedly undermined the Legislature's
position through such things as the definition of "medically
necessary." He stated most people think of the term "medically
necessary" as applying to a health condition; however, the Court
has repeatedly interpreted it a broad sense whereby a
psychologically upset individual would qualify. He stated that
Section 1, subsection (b) states written certification by a
treating physician must accompany the claim submitted to the State
for payment for a medically necessary abortion, and he detailed the
bill's specified medical conditions.
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union, testified via teleconference from Anchorage in opposition to
SB 364. She stated the Union has represented Planned Parenthood and
local physicians in abortion-related lawsuits against the State.
She contented there are language issues she would like to address
including: the use of adjectives that are "vague and unworkable"
such as "significantly aggravated," and "adverse physical
condition;" and who would make the determination as to the factors
that constitute "serious danger." She specified that the Alaska
Civil Liberties Union believes the patient should decide what is
significant "since she is the one who will be suffering this
significantly aggravated health problem."
Ms. Rudinger furthered that this bill would exacerbate already
difficult dealings with insurance companies over claim denials. She
stated the word "would" used repeatedly in this document is
problematic, and suggested this word be changed to "could." She
stated physicians and lawyers often speak in probabilities and tell
clients what might happen, not what would happen. She stressed that
if a woman has to wait until the doctor could firmly state the
pregnancy would be harmful, the procedures might be more expensive
and the abortion more dangerous to perform.
PAULINE UTTER, testified via teleconference from Anchorage, and
read a letter from Dr. Kathleen Todd [copy not provided], a Valdez
physician, urging the Committee not to pass SB 364 as "this bill
excludes any consideration of fetal anomalies as a legitimate
reason for abortion" which many women consider legitimate. She
continued that the bill's language additionally would require a
physician to reach a point of certainty before taking action, and
stated the government must stay neutral and not allow any entity to
oppose a woman's desire to have an abortion.
DR. JOHN MIDDAUGH, Consultant, Department of Health and Social
Services, stated he is a physician certified in internal and
preventive medicine and, on behalf of the Department, is speaking
in opposition to SB 364. He stated, as a physician, the bill's
language is difficult to interpret and to apply. He additionally
stressed the bill does not recognize the uniqueness of each patient
as "one size" does not "fit all" in health issues. He asserted
there could be numerous factors involved which make it very
difficult for physicians to be 100 percent sure of circumstances,
and he noted the omission of language addressing "a pregnant woman
carrying an infant" with abnormal medical conditions that "were not
compatible with survival." He asserted that negotiating for
reimbursement with an insurance company about the abortion decision
made between the doctor and patient is not easy to do. He urged the
Committee not to proceed with this version of SB 364.
Co-Chair Kelly voiced that Dr. Middaugh's concerns are addressed in
the bill, and furthered that if the regulations remain as they
currently are, "there is really nothing to stop wholesale elective
abortions being funded by the State, which is going on now." He
asserted the current regulation wording "is so broad that you could
perform an abortion just about based on anything with that
regulation."
Dr. Middaugh replied, "the answer would only be if in that judgment
between the physician and the patient resulted in a conclusion to
meet the medical criteria that that was a medically needed or
therapeutically indicated procedure."
Co-Chair Kelly asked Dr. Middaugh for further clarification.
Dr. Middaugh responded that in his professional opinion, he does
"not believe that there are abortions, elective abortions, being
paid for by the State." He understood this is the intent of this
bill; however, he voiced "that the wording that goes beyond
'medical necessary' is very problematic, is very difficult to
interpret, and in fact doesn't adequately, in its wording, take
into account many of the very serious circumstances that could
arise between a physician and a patient in this area."
Senator Leman inquired if Dr. Middaugh considered it
"inappropriate" "to have any constraints as a matter of public
policy" on a patient and doctor relationship as he understood Dr.
Middaugh to be saying "leave us alone, I'm a doctor, here's a
patient, you don't know my business as well as I do."
Senator Leman furthered, "should we take our statutes that we have
now that speak to medical practice and throw them out."
Dr. Middaugh responded "it is absolutely necessary to have
standards of medical practice and that it is very appropriate to
assure that there is certification by a treating physician of
medical necessity or therapeutically indicated." He continued that
nationally, physicians' competency and exercise of their "medical
and professional relationship and discharge of those obligations"
are scrutinized. He reiterated there is a need for standards.
Dr. Middaugh identified language in Section 1, subsection (b) "as
being problematic for physicians to attempt to use those wordings
in the way that they have been put forward to achieve that."
Section 1, subsection (b) language reads as follows.
(b) A claim for payment for a medically necessary
abortion that is submitted to the Department must be
accompanied by a written certification by the treating
physician that the abortion is medically necessary to treat a
serious
(1) adverse physical condition of a pregnant woman
that
(A) either is caused by the pregnancy or would
be significantly aggravated by continuation of the
pregnancy; and
(B) would seriously endanger the physical
health of the woman if the pregnancy were not terminated
by an abortion; or
(2) psychological illness of a pregnant woman who
requires medication for treatment of the illness if
(A) the medication required to treat the
illness would be highly dangerous to the fetus; and
(B) the health of the woman would be
endangered if the medication was not taken during the
pregnancy.
Senator Leman asked Dr. Middaugh if he has suggested amendments.
Dr. Middaugh recommended that deleting all text following
"medically necessary" in Section 1, subsection (b), line 12 through
subsection (B) on page two, line 8, would be acceptable to the
Department and to physicians.
This language reads as follows.
"…to treat a serious
(1) adverse physical condition of a pregnant woman
that
(A) either is caused by the pregnancy or would
be significantly aggravated by continuation of the
pregnancy; and
(B) would seriously endanger the physical
health of the woman if the pregnancy were not terminated
by an abortion; or"
(2) psychological illness of a pregnant woman who
requires medication for treatment of the illness if
(A) the medication required to treat the
illness would be highly dangerous to the fetus; and
(B) the health of the woman would be
endangered if the medication was not taken during the
pregnancy."
Co-Chair Kelly responded those deletions would allow "the same kind
of regulations that have been written that deal with psychological
health which have, in our opinion and many at this table, resulted
in the lack of abortions…its just too broad." He continued that
"you could say that someone being stressed out because they are
pregnant works for psychological health." He stated the State
should not be paying for an abortion of this nature." He summarized
if the language identified by Dr. Middaugh is deleted, there would
be no reason to pass this bill.
Dr. Middaugh stated the standards for doctors today and
patient/doctor interactions "in the process of informed consent
convey a far higher level of integrity than your comment would give
them credit to." He stressed that the standard of performance for
physicians is "pretty high," and passage of this bill without the
language he identified would be a powerful affirmation message to
the medical community and people of Alaska.
NANCY WELLER, Unit Manager, State, Federal & Tribal Relations,
Division of Medical Assistance, Department of Health and Social
Services, informed the Committee that the Department is presenting
an indeterminate fiscal note for this bill because of the
difficulty in determining a "believable estimate" as the Department
has no knowledge of how this legislation would affect decisions
made between a woman and her doctor regarding a medically necessary
abortion nor how many women would elect to carry a baby to term and
have Medicaid cover the cost of the birth.
AT EASE 5:00 PM/ 5:03 PM
Senator Ward offered a motion to "move SB 364 out of Committee with
individual recommendations and accompanying note."
A roll call was taken on the motion.
IN FAVOR: Senator Green, Senator Leman, Senator Olson, Senator
Ward, Senator Wilken, Co-Chair Kelly
OPPOSED: Senator Austerman, Co-Chair Donley
ABSENT: Senator Hoffman
The motion PASSED (6-2-1)
SB 364 was REPORTED from Committee with accompanying indeterminate
fiscal note, dated 4/22/02, from the Department of Health and
Social Services.
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