Legislature(2009 - 2010)CAPITOL 106
04/08/2010 03:00 PM House HEALTH & SOCIAL SERVICES
| Audio | Topic |
|---|---|
| Start | |
| HB423 | |
| HB282 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 10 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 423 | TELECONFERENCED | |
| += | HB 282 | TELECONFERENCED | |
HB 423-POLICY FOR SECURING HEALTH CARE SERVICES
3:05:30 PM
CO-CHAIR HERRON announced that the first order of business would
be HOUSE BILL NO. 423, "An Act stating a public policy that
allows a person to choose or decline any mode of securing health
care services, and providing for enforcement of that policy by
the attorney general."
3:06:28 PM
REPRESENTATIVE GATTO reported that he met with Department of
Health and Social Services (DHSS) and Department of Law (DOL) to
work to address the concerns about school immunizations and
involuntary [psychiatric] commitment.
3:07:59 PM
The committee took an at-ease from 3:07 p.m. to 3:11 p.m.
3:11:08 PM
CO-CHAIR HERRON brought the committee back to order.
3:11:21 PM
REPRESENTATIVE CARL GATTO, Alaska State Legislature, referred to
a document labeled "Conceptual Amendments" and introduced
Conceptual Amendment 1, which read [original punctuation
provided]:
Section 3 is amended to read:
AS 44.99 is amended by adding a new section to article
2 to read:
Sec. 44.99.130. Declaration of Policy for
Securing Health Care Services
(a)
(1) The power to require or regulate a person's
choice in the mode of securing health care services,
or to impose a penalty related thereto, is not found
in the Constitution of the United States of America,
and is therefore a power reserved to the people
pursuant to the Ninth Amendment, and to the several
states pursuant to the Tenth Amendment. The state of
Alaska hereby exercises its sovereign power to declare
the public policy of the state of Alaska regarding the
right of all persons residing in the state of Alaska
in choosing the mode of securing health care services.
(2) It is hereby declared that the public policy
of the state of Alaska is that every person within the
state of Alaska is and shall be free to choose or
decline to choose any mode of securing health care
services without penalty or threat of penalty, as
defined in this bill.
(b) The policy stated in (a) of this section
(1) does not apply to health care services
required by the state, a political subdivision of the
state, or a court of the state;
(2) may not impair a contract right that
provides health care services.
(c) A public official, employee, or agent of the
state or its political subdivisions may not impose,
collect, enforce, or implement a penalty contrary to
the policy stated in (a) of this section.
(d) [THE ATTORNEY GENERAL SHALL EXPEDITIOUSLY
SEEK INJUNCTIVE AND OTHER APPROPRIATE RELIEF TO
PRESERVE THE RIGHTS OF THE RESIDENTS OF THE STATE AND
DEFEND THE STATE AND ITS OFFICIALS, EMPLOYEES, AND
AGENTS IF A LAW IS ENACTED OR A REGULATION ADOPTED
VIOLATING THE DECLARATION OF POLICY FOR SECURING
HEALTH CARE SERVICES UNDER THIS SECTION]
In this section,
(1) "health care services" means a service
or treatment, or provision of a product, for the care
of a physical or mental disease, illness, injury,
defect, or condition, or to maintain or improve
physical or mental health;
(2) "mode of securing" means directly
purchasing health care services from a health care
provider, purchasing insurance covering health care
services, [PARTICIPATING IN AN EMPLOYER OR GOVERNEMENT
SPONSORED HEALTH BENEFIT PLAN] or other means of
obtaining health care services;
(3) "penalty" means a fine, tax, [SALARY OR
WAGE WITHHOLDING] surcharge, fee, or other
[CONSEQUENCE] monetary charge.
REPRESENTATIVE GATTO explained that subsection (a) contained
"quite a bit of the Idaho language has passed legal muster and
while it has changed somewhat is pretty much a copy of the Idaho
bill." He said that subsection (b) was added for clarify for
some issues raised during an earlier discussion. Additionally,
three definitions were added. He pointed out that Conceptual
Amendment 1 is a conceptual amendment.
3:12:40 PM
CO-CHAIR KELLER made a motion to adopt Conceptual Amendment 1.
CO-CHAIR HERRON objected for purpose of discussion.
REPRESENTATIVE SEATON asked if proposed Conceptual Amendment 1
would be considered as one amendment or as separate amendments.
CO-CHAIR HERRON offered his intention to consider proposed
Conceptual Amendment 1 under one motion. He referred to the
memorandum dated April 8, 2010 from Representative Carl Gatto
titled "Explanation of Conceptual Amendment changes in HB 423,
Version R" [Included in the committee packets.]
3:14:20 PM
REPRESENTATIVE GATTO, referring to proposed Conceptual Amendment
1, pointed out that the amendment contained new language for
Section 3 of HB 423. He explained that it "spelled out" the
problems of the federal health care law with the Ninth and Tenth
Amendments to the Constitution. He stated that these violations
required Alaska to defend its constitutional rights.
3:15:52 PM
THOMAS REIKER, Staff to Representative Carl Gatto, Alaska State
Legislature, explained that a concern had been raised that HB
423 did not specifically address the Tenth Amendment or the
federal health care reform. He stated that a state cannot
nullify a federal law, but it can establish distinct policies if
a law were found to be unconstitutional. He noted that proposed
Conceptual Amendment 1 specifically outlined the Tenth Amendment
problems with the federal health care reform. He pointed to
subsection (a) (2) of proposed Conceptual Amendment 1 and said
that it was intended to be in the original bill. He said the
challenge to the federal health care reform was to the mandate.
He noted that Section 3, (d) (3) of proposed Conceptual
Amendment 1 would change the definition of penalty to simply
include a fine, tax, fee, surcharge, or other monetary charge.
He said that this conceptual amendment was crafted in response
to the state requirement to accept its health insurance. He
said that adoption of proposed Conceptual Amendment 1 would
define HB 423 as "the freedom to choose or decline to choose
without penalty or threat of penalty." He said this new
definition of penalty would allow for involuntary commitment or
exclusion from school for refusal of immunization as they would
no longer be defined as penalties. He directed attention to the
language change contained in Section 3, (b) (1), and subsection
(b) (2) of proposed Conceptual Amendment 1. He said that this
language was crafted by the Department of Law (DOL) and is
intended to ensure that HB 423 did not supersede any current
Alaska law.
3:20:59 PM
MR. REIKER added that proposed Conceptual Amendment 1 also
deleted Section 3, (d), since Section 2 of HB 423 should be
sufficient.
CO-CHAIR HERRON suggested that Section 2 of HB 423 should be
deleted as the attorney general would take action to defend any
policy.
3:22:27 PM
REPRESENTATIVE GATTO replied that it was necessary to have the
attorney general act on behalf of the state of Alaska.
CO-CHAIR HERRON agreed, but he questioned the necessity of
Section 2 as the attorney general was responsible to defend any
legislation.
REPRESENTATIVE GATTO replied that the state was initiating a
lawsuit, not defending one. He stated that he would not object
to this deletion.
CO-CHAIR HERRON stated his preference to deliberate on proposed
Conceptual Amendment 1 on a section-by-section basis. He asked
if there was any further discussion on Conceptual Amendment 1,
to delete Section 3, subsection (d) and Section 2 of HB 423.
3:25:20 PM
REPRESENTATIVE CISSNA said that she had received an opinion from
Legislative Legal and Research Services. She expressed a need
for more time to better understand that opinion, as well as the
bill itself. She asked why HB 423 had been queued in front of
other legislation.
CO-CHAIR HERRON agreed that it was a serious issue, and that he
would like to pursue this line of questioning. He noted that
the sponsor had agreed with the deletions. He suggested that it
might be necessary to schedule extra committee hearings in order
to hear other legislation. He repeated that he would prefer a
section-by-section discussion. He asked if Representative
Cissna would share the legal memo with the rest of the
committee.
REPRESENTATIVE CISSNA replied that she had previously submitted
it.
3:27:49 PM
REPRESENTATIVE CISSNA, referring to Section 2 and Section
3,subsection (d) of HB 423, from the Legislative Legal and
Research Services memo, which read:
The principal objection appears to be that the
legislature is proposing to direct the state's
attorney general in the exercise of the duties and
functions of the office.
CO-CHAIR HERRON said that the sponsor had agreed to delete
Section 2.
REPRESENTATIVE CISSNA asked if both Sections 2 and Section 3,
subsection (d) would be deleted. She opined that it could be a
dilemma to the attorney general if both the legislature and the
governor were "commanding him to do things."
3:30:36 PM
REPRESENTATIVE GATTO agreed to both deletions.
CO-CHAIR HERRON asked for other comments on both the proposed
Conceptual Amendment 1 and HB 423.
REPRESENTATIVE SEATON asked if this was a conceptual amendment
to Conceptual Amendment 1.
CO-CHAIR HERRON replied that he would reserve that option, but
agreed that proposed Amendment 1 would be:
Delete Section 2 of HB 423.
Delete Section 3, subsection (d).
3:31:31 PM
CO-CHAIR HERRON, in response to Representative Gatto, agreed
that Section 3, subsection (d) had already been deleted in
proposed Conceptual Amendment 1.
3:31:38 PM
REPRESENTATIVE SEATON, referred to proposed Conceptual Amendment
1, to Section 3, subsection (a), paragraph (1). He stated that
this subsection contained "findings" and not an actual provision
of substance for a bill.
CO-CHAIR HERRON asked for an opinion from Legislative Legal and
Research Services.
3:32:15 PM
REPRESENTATIVE SEATON asked for a legal definition of proposed
Conceptual Amendment 1. He referred to Section 3, subsection
(a), paragraph (2), which read in part:
..., that a person has the right and is free to choose
or decline any mode of securing health care services
without penalty or threat of penalty,...
3:33:14 PM
CO-CHAIR KELLER asked if the sponsor intended to delete this
language.
MR. REIKER explained that the intent was to delete Section 3,
subsection (a) of HB 423, and insert proposed Conceptual
Amendment 1, Section 3, subsection (a).
3:35:10 PM
REPRESENTATIVE HOLMES opined that Section 3, (a) (1) of proposed
Conceptual Amendment 1 appeared to be language that describes
legislative intent and not language for statute.
CO-CHAIR HERRON agreed that this needed clarification from
Legislative Legal and Research Services.
REPRESENTATIVE HOLMES asked for a clarification of proposed
Conceptual Amendment 1, in Section 3, (a) (2), which read:
"..., as defined in this bill." She opined that once a bill
becomes a statute, then it would be confusing for the reference
to a bill.
CO-CHAIR HERRON agreed and pointed out that proposed Conceptual
Amendment 1 is a conceptual amendment and the bill drafter would
appropriately "conform" the language.
3:36:13 PM
REPRESENTATIVE CISSNA asked for a definition of "mode of
securing" and "health care services."
MR. REIKER, in response to Representative Cissna, said that both
definitions were contained in Section 3, (e) of HB 423. He
clarified that proposed Conceptual Amendment 1 had added
additional language to ensure that the definitions did not
impede existing Alaska law.
3:36:55 PM
REPRESENTATIVE CISSNA asked about the implications to licensure
and regulations within the state.
REPRESENTATIVE GATTO referred to proposed Conceptual Amendment
1, to Section 3, (b)(1), and said it would keep existing
language intact.
MR. REIKER explained that the definition for penalty had been
narrowed in Section 3 of proposed Conceptual Amendment 1. He
related that Section 3, (d)(3), and language added in Section
3,(a)(2), which read, "without penalty or threat of penalty,"
was done in conjunction with Department of Law (DOL) to ensure
that existing Alaskan statutes were not affected.
3:39:13 PM
REPRESENTATIVE HOLMES cited that she wanted her health care to
be Medicare, Tri-Care, or Indian Health Care. Referring to the
language in proposed Conceptual Amendment 1 to Section 3,
(a)(2), she posed that the language enabled her to qualify for
any of these health care services, although she was not
eligible.
MR. REIKER referenced DOL and said that federal law would
supersede state law, unless federal law was found
unconstitutional. He pointed out that should the acts governing
each of these health care services be found constitutional, then
the federal law would govern.
3:40:23 PM
REPRESENTATIVE HOLMES posed a scenario in which her father
wanted health insurance from the State of Alaska, but he did not
work for the state. She asked if this language would allow any
Alaskan the right to choose any health plan, even if they did
not qualify.
MR REIKER replied that the bigger concern by DOL and DHSS was
with the requirement for health insurance. He explained that
the original amendment was to have a blanket statement that
stated there was not an effect on existing Alaska law. He
suggested a return to the language which stated that HB 423 did
not supersede existing Alaska law.
3:41:44 PM
REPRESENTATIVE HOLMES opined that Conceptual Amendment 1 stated
that anyone could buy any program they wanted, even without
meeting the qualifications.
REPRESENTATIVE T. WILSON, in response to Representative Holmes,
offered her belief that Conceptual Amendment 1 would offer
buyers a choice, but it did not require the insurance company to
accept the applicant.
REPRESENTATIVE GATTO agreed that was the intent. He said the
language might only be inferred, rather than stated. He offered
to amend Conceptual Amendment 1, as follows:
Page 1, subsection (a) paragraph (2):
Following "free to choose":
Insert "and qualify for"
3:44:11 PM
MR. REIKER, referring to Section 3 of proposed Conceptual
Amendment 1, to subsection (b)(1), offered his opinion that this
did not refer to health care services required by the state, as
the state only required its state agencies to offer those health
care services to people that qualify; therefore, the language
from subsection (a)(2) is also covered the state programs.
3:44:36 PM
REPRESENTATIVE CISSNA said that the outcomes were too complex to
do this quickly. She asked if HB 423 would close off future
options and alternatives. She asked for testimony regarding any
future limitations that this bill would create.
CO-CHAIR HERRON agreed that DOL would be asked this question.
REPRESENTATIVE GATTO relayed that there were two questions: (1)
What was the future of Alaska with regard to tort reform and
defensive medicine?; and (2) What were the possible excessive
costs with taxes and fees of the federal health care plan? He
opined that, as Alaska was a known factor, it was possible to
address tort reform and defensive medicine. He opined that it
was not possible to predict federal health care costs, but he
suggested that it was necessary to "deal with it ourselves."
3:48:30 PM
REPRESENTATIVE CISSNA offered her belief that the move to
Medicare reflected a different state direction. She asked if
the sponsor's goal was to eliminate any federal subsidy for
health care.
REPRESENTATIVE GATTO replied that Alaska was not able to
eliminate the federal health care programs. He stated that the
reason for HB 423 was to ask the courts whether the federal
government had overstepped its authority and caused harm to
Alaska. He offered his belief that it was the obligation of
every state to pursue this, instead of simply accepting the
edict of the federal government.
3:50:15 PM
REPRESENTATIVE CISSNA noted that he was talking about a federal
action that was not addressed in this bill.
REPRESENTATIVE GATTO, in response to Representative Cissna, said
that both the Ninth and Tenth Amendments were mentioned in
proposed Conceptual Amendment 1.
MR. REIKER explained that Alaska could not nullify a federal
law, but it could challenge the constitutionality of a federal
law. He stated that Alaska had the right to assert its Tenth
Amendment rights in a federal court. He pointed out that HB 423
was a statute, not a constitutional amendment, and if there were
unforeseen consequences, the bill could be revised or repealed.
3:52:47 PM
CO-CHAIR KELLER asked if a state had the right to decide not
participate in Medicaid.
JON SHERWOOD, Medicaid Special Projects, Office of the
Commissioner, Department of Health and Social Services (HSS), in
response to Co-Chair Keller, said that participation in Medicaid
was voluntary.
CO-CHAIR KELLER asked if the federal health care reform had
changed this aspect.
MR. SHERWOOD offered his belief that there was not a requirement
to maintain the Medicaid program, but that if it was maintained,
the state was held to specific requirements.
3:53:54 PM
REPRESENTATIVE T. WILSON asked if more people would qualify for
Medicaid after passage of the federal health care reform
legislation.
MR. SHERWOOD replied that Medicaid would expand to cover a broad
range of individuals who were not currently eligible under the
federal health care reform.
REPRESENTATIVE T. WILSON questioned whether more people would
choose to sign up with Medicaid since it would be less costly
than purchasing private health insurance.
MR. SHERWOOD, in response to Representative T. Wilson, said that
currently subsidies exist for low-income individuals to purchase
health care insurance. He stated that he did not know all the
choices available.
3:55:17 PM
REPRESENTATIVE T. WILSON asked if there were copays with
Medicaid.
MR. SHERWOOD replied that there were not copays for children or
pregnant women, but that there were modest copays for adults.
REPRESENTATIVE T. WILSON, reporting a concern of other states,
asked about the increased costs to Medicaid with the federal
health care reform.
MR. SHERWOOD replied that he did not know the cost impact. He
shared that there would be an increased federal subsidy. He
said that he did not know about the increased expenditures.
REPRESENTATIVE T. WILSON said that other states were concerned
with the increased costs, and she opined that it was necessary
for Alaska to determine the increased expenses.
3:57:20 PM
REPRESENTATIVE CISSNA asked if Alaska could choose the Medicaid
programs in which to participate.
MR. SHERWOOD explained that Medicaid had requirements for
mandatory categories and services. He mentioned that there was
also a wide range of optional services and eligibility
categories. He pointed out that Alaska had made its choices,
which included a broad range of options, and these choices were
submitted with a state plan amendment which required federal
approval.
3:58:50 PM
REPRESENTATIVE CISSNA asked whether the new federal health care
reform had more extensive mandates, and if so, would these allow
for choices.
MR. SHERWOOD replied that there were some new options being
analyzed. He reported that the most obvious substantial mandate
required coverage for all individuals with income up to 133
percent of the federal poverty level. Prior to the federal
health care reform, eligibility had been limited to the aged,
blind, disabled, pregnant, and children and their eligible
caretaker relatives.
REPRESENTATIVE CISSNA inquired as to whether HB 423 would change
the program options to Alaska for "the greatest good for the
greatest number of people."
MR. SHERWOOD replied that he would defer to the Department of
Law (DOL).
4:01:56 PM
MIKE FORD, Assistant Attorney General & Legislative Liaison,
Legislation & Regulations Section, Civil Division (Juneau),
Department of Law, in response to Representative Cissna, offered
that the concern was for the broad nature of the language of HB
423. He stated that he could not make any assurances, but he
reminded that the legislature had the ability to make
amendments. He opined that the committee was not binding
itself. He offered his belief that the sponsor was targeting
federal law and was working to narrow HB 423 to avoid any
implications for state law.
4:03:09 PM
REPRESENTATIVE SEATON directed attention to proposed Conceptual
Amendment 1. He referred to page 2, to Section 3, (d)(3). He
asked if the proposed deletions of "salary or wage withholding"
and "consequence" would still be included under "fine, tax,
surcharge, fee, or other monetary charge."
MR. FORD replied, "conceivably."
4:03:58 PM
REPRESENTATIVE SEATON referred to page 2, to Section 3 of the
proposed Conceptual Amendment 1. He referred to subsection (c)
and asked for clarification.
MR. FORD shared his concern and stated that the language was
broad. He offered that it was not well written, but it implied
that an individual could not be forced to pick a specific health
care service and could not be penalized for that choice.
4:06:15 PM
REPRESENTATIVE SEATON agreed to ask the question to Legislative
Legal and Research Services.
REPRESENTATIVE CISSNA offered her belief that it appeared
someone would not have to pay.
MR. FORD said that a public policy was stated in general terms,
but that statutory provisions imposed certain things. He opined
that HB 423 was written as a policy, not as statute.
DAVE JONES, Senior Assistant Attorney General, Opinions,
Appeals, & Ethics, Civil Division (Anchorage), Department of Law
(DOL), in response to the question from Representative Seaton,
said that he had no greater insight to the meaning or effect of
the provisions.
4:08:51 PM
DENNIS BAILEY, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Agency (LAA),
in response to the earlier question by Representative Seaton, on
proposed Conceptual Amendment 1 and to page 2, Section 3 (c),
and said that it was a statement of policy that also attempted
to establish mandatory laws. He offered his belief that this
leads to confusion. He opined that the broad meaning in the
general statement combined with the more specific mandates to
public officials made this difficult to understand.
4:11:42 PM
REPRESENTATIVE SEATON referred to proposed Conceptual Amendment
1 to Section 3 (a) (2) and the language "mode of securing" which
eliminates "participating in an employer or government sponsored
health benefit plan." He stated this would refer to "purchasing
insurance covering health care services" or "other means of
obtaining health care services." He asked whether not referring
to "government health benefit plan" or "participating in an
employer plan" would negate those or if those terms are included
in the phrase "other means of obtaining health care services."
MR. BAILEY answered that Representative Seaton raises a good
point, that the additional inclusion of language "or other means
of obtaining health care services" may also incorporate the
language that is struck.
MR. FORD offered that the change is an attempt to be consistent
with the change on page 2, Section 3 (d) (2). He explained that
if the scope of the bill is narrow it does not apply to state
policies or plans and this language should be deleted. He
suggested the committee may also want to remove the last phrase,
"or other means of obtaining health care services" if the
committee wants to narrow the scope.
CO-CHAIR HERRON pointed out Conceptual Amendment 1 is a
conceptual amendment.
4:14:02 PM
REPRESENTATIVE T. WILSON related her understanding that the bill
attempts to give the attorney general direction to minimize any
negative impacts the new health care may have on Alaska. She
asked whether there would be any downside for the attorney
general to "fight it legally to keeping the option open."
MR. FORD responded when the legislature requests action by the
attorney general that the request is typically done with a
resolution. He related that passing statutes raises other
issues, including separation of powers. He stated that it is
really difficult for the state to predict positive and negative
substantive effects until the final language is thoroughly
reviewed. He clarified that when the legislature requests an
official from the executive branch to take certain action, the
legislature is "speaking as a voice" and the "voice of the
legislature" typically occurs through resolutions.
REPRESENTATIVE T. WILSON asked which one sends a stronger
message.
MR. FORD characterized a bill and a resolution as "a bit like
apples and oranges. They are both fruit, but they taste
differently." If the legislature wishes to clarify an opinion,
it speaks through a resolution. Sometimes, the legislature's
voice is expressed in statute and can be combined to some
degree. As to which is more effective, it depends on the topic.
He offered that the committee is experiencing the difficulty of
using statutes in this realm.
REPRESENTATIVE T. WILSON asked why more states have decided to
pass bills instead of resolutions to address the federal health
care reform.
MR. FORD said could not answer questions about other states
since other states have different constitutions. However, he
stated that that in Alaska there are problems in proceeding this
way.
4:16:56 PM
REPRESENTATIVE SEATON referred to page 1, to proposed Conceptual
Amendment 1, to Section 3 (b)(1), which read: "does not apply
to health care services required by the state, a political
subdivision of the state, or a court of the state;". He asked
whether that would eliminate Medicare. He asked for an
interpretation of whether this refers to the State of Alaska or
a political subdivision.
MR. FORD replied that the intent is that this would apply to
Alaska programs since the legislature cannot change federal
programs or federal programs. The object is to eliminate state
programs that may affected by the bill by adding the
exclusionary provision.
4:17:52 PM
REPRESENTATIVE SEATON asked whether people would be authorized
not to pay Medicare or could object to the deduction from their
wages.
MR. FORD said he could not answer that question. He clarified
that federal law has not been changed and if there is an
obligation imposed by federal law, the obligation still remains.
MR. SHERWOOD said he did not have anything to add. He noted
that the definition of penalty was changed to eliminate specific
reference to salary or wage withholding which would be required
for payment into Medicare. He deferred to the DOL for
interpretation of the broader language of the bill.
4:19:27 PM
REPRESENTATIVE CISSNA related "we are talking about freedom and
the ability for people to make the choices and for the
administration of both [Department of] Health and Social
Services and the Department of Law." She asked for ideas of
ways to address this that would be "clearer and fit."
MR. FORD said that DOL is currently undertaking an analysis of
the legislation and will explore the options. Once its review
is completed the DOL may have answers. He suggested the
committee may wish to attempt to clarify the language to avoid
unintended consequences. He advised that he met with the bill
sponsor and raised some issues to consider and in an effort to
address those issues some additional language has been crafted,
but he said he does not claim it is the "magic bullet" for all
the concerns. The process will unfold as the bill moves
forward.
4:22:13 PM
REPRESENTATIVE HOLMES referred to page 1 of proposed Conceptual
Amendment 1, and to Section 3 (b)(1), and to the word
"required." She asked whether it should be "provided" instead
since it seems limiting and would be a narrow exclusion.
MR. FORD agreed. This language may need fine tuning, he stated.
He said that what triggered this issue is how it would apply to
the state employee health plan. He reported that state
employees are required to participate in that plan. He asked if
the intent of the bill is to allow state employees to opt out of
health care coverage. He stated if that is not the intent, some
method needs to be developed to clarify the intent. He agreed
other concerns may also need to be addressed which would require
the committee to broaden the language.
4:24:45 PM
WILDA LAUGHLIN, Special Assistant, Office of the Commissioner,
Department of Health & Social Services, introduced herself.
CO-CHAIR HERRON referred to the April 8, 2010, memorandum from
Representative Carl Gatto. He asked for comments to paragraph
2.
MS. LAUGHLIN began by noting the sponsor was open to amending
the bill. Thus, the department reviewed proposed Conceptual
Amendment 1 but is not ready to say this amendment would
alleviate all of the department's concerns.
4:26:14 PM
CO-CHAIR HERRON asked to "tackle" Conceptual Amendment 1 by
breaking it down into individual amendments. He asked for
consideration to withdraw Conceptual Amendment 1. He then
withdrew his objection.
CO-CHAIR KELLER withdrew Conceptual Amendment 1.
CO-CHAIR HERRON made a motion to adopt Conceptual Amendment 1,
to delete Section 3 (d), and to delete Section 2 of the bill.
REPRESENTATIVE T. WILSON objected for purpose of discussion.
CO-CHAIR KELLER suggested that proposed Conceptual Amendment 1
would require a change to the title of the bill.
CO-CHAIR HERRON agreed and stated that would be a conforming
amendment to Conceptual Amendment 1. He restated Conceptual
Amendment 1, and referred to page 2, lines 7-11, to delete
Section 3 (d) and to delete Section 2 of the bill. The
conforming amendment would remove part of the title, as well.
REPRESENTATIVE T. WILSON withdrew her objection. There being no
further objection, Conceptual Amendment 1 was adopted.
4:29:27 PM
CO-CHAIR HERRON referred to page 1 of the document labeled
"Conceptual Amendments" to Section 3(a), which read: "(1) The
power to require or regulate a person's choice in the mode of
securing health..." He asked Mr. Bailey if this would be part
of the bill or would constitute a "finding."
MR. BAILEY answered that the language of Section 3 (a), (1) of
Conceptual Amendment 1 would create statements of position
rather than of findings. He related that findings would be a
statement that a problem exists or would outline the
circumstances that justify the legislation. Findings are not a
preferred method to set a state policy or law. It would be
preferable to include the language in the bill itself rather
than create a findings statement. He read, "...The state of
Alaska hereby exercises its sovereign power to declare public
policy of the state of Alaska regarding the right of all persons
residing in the state of Alaska..." He was not sure that
represents a "finding," but thought it was more of a statement.
He suggested that if the topics are listed that this provision
should be redrafted as a statement of condition or a finding.
He said, "Again, it is preferable to establish what the basis
for the bill is, either in the committee hearings or in the bill
itself rather than do a findings statement."
4:31:52 PM
REPRESENTATIVE SEATON asked whether this statement would be
appropriate in a resolution.
MR. BAILEY agreed.
4:32:23 PM
REPRESENTATIVE CISSNA asked the sponsor if he would consider
introducing a resolution.
REPRESENTATIVE GATTO said he decided against it.
4:32:47 PM
CO-CHAIR HERRON referred to the document labeled "Conceptual
Amendments" to Section 3 (a)(2) and asked whether this language
is covered elsewhere in bill.
MR. BAILEY responded that the language is not the normal bill
language for a statement since it uses terms such as, "hereby"
which are not normally used. He said Section 3 (a) (2) varies
somewhat from the language in the bill, although he did not see
substantive changes. He said he preferred the existing language
in the bill. He referred to the language in "Conceptual
Amendments" to Section 3 (a) (2) and suggested removing "hereby"
and use "public policy" instead of public policy of the state.
The bill has language "consistent with the right of liberty"
that is missing from the Conceptual Amendment language. He
suggested the drafting convention is to use "a" instead of
"any." And, "as defined in this bill" for the definition of a
penalty is likely unnecessary, since the penalty provision on
page 2, line 12, Section 3 (e) already applies to the bill.
4:35:46 PM
CO-CHAIR HERRON moved to adopt Conceptual Amendment 2, on page 1
line 13 to delete "consistent with the right of liberty."
REPRESENTATIVE T. WILSON objected for the purpose of discussion.
4:36:38 PM
REPRESENTATIVE GATTO said he did not object to the suggested
changes by the drafter.
CO-CHAIR HERRON related his understanding that the bill drafter
advised that the bill language was similar except for the phrase
"consistent with the right of liberty" so deleting this
reference should make the bill similar to the conceptual
amendment.
4:37:43 PM
MR. REIKER asked about inclusion of "without penalty or threat
of penalty."
CO-CHAIR HERRON characterized the suggestion as wanting "both
the belt and suspenders" in this provision. He asked for
clarification on whether "without penalty or threat of penalty"
is already contained in HB 423.
MR. BAILEY said no, he did not believe it was covered in the
original bill and would be helpful. He said he missed that in
his initial review.
REPRESENTATIVE SEATON asked whether it would be easier to delete
current (a) and insert the new (a) in the bill.
REPRESENTATIVE T. WILSON said taking out the language
"consistent with right of liberty" does not change the bill.
She referred to page 1, line 13 of Section 3, and read: "(a) It
is the policy of the State of Alaska that a person has the right
and is free to choose or decline any mode of securing health
care services." She offered her belief that is "what we're
really trying to do in [Section 3] (a) since it still keeps in
what we want." She suggested adding the penalties in Section 3
(c).
CO-CHAIR HERRON related the debate is whether to leave in
"without penalty or threat of penalty" and add that to the end
of page 2, line 1.
4:41:00 PM
MR. BAILEY, in response to Representative T. Wilson, pointed out
that Section 3 (c) in the bill is a bit redundant, since it says
a "public official or agent of the state or its political
subdivision" may not impose a penalty. He related that contrary
to the policy stated in (a), it would emphasize that the policy
is trying to establish a rule. He suggested that it seemed
preferable to include the language in Section 3 (a) rather than
in Section 3 (c).
4:42:16 PM
REPRESENTATIVE CISSNA referred to "penalty" to the growth of
entitlements. She asked for clarity of the meaning and "are we
getting free lunch no matter what?" She stated she believed in
freedom but was unsure of what it meant without penalty.
MR. BAILEY said that the point that is stated as policy is
intended to require that one can choose a means of getting
health insurance and if you choose or do not choose would not
result in a penalty. He recalled that the penalty would be
limited to a fine, tax, or surcharge, which would be a dollar
amount.
4:44:27 PM
REPRESENTATIVE HOLMES related her understanding that by adding
to Section 3 (a) "without penalty or threat of penalty" would
allow the committee to remove Section 3 (c).
MR. BAILEY advised that Section 3 (c) essentially states when a
penalty could be imposed by a public official. That may be the
source of some of the confusion. He suggested that she is
correct, that adding "without penalty or threat of penalty" to
Section 3 (a) would allow the committee to remove Section 3 (c).
4:45:43 PM
CO-CHAIR HERRON explained Conceptual Amendment 2. On line 13,
would strike "consistent with the right of liberty" and on page
2, to add "without penalty or threat of penalty;" and on page 2,
delete lines 4-6, Section 3 (c).
REPRESENTATIVE CISSNA referred to page 1, Section 3 (a), and to
the language "securing health care services." She asked whether
securing meant signing up or actually obtaining health care
services and if this language allowed people to get health care
without paying for it.
MR. BAILEY said that securing may have an unintended meaning or
is unclear. He suggested that the intent would be to purchase
insurance, or purchase health care services may be a better way
to describe it.
4:48:05 PM
CO-CHAIR HERRON restated Conceptual Amendment 2. On line 12-13,
it is the policy of the State of Alaska that a person has the
right and is free to choose or decline any mode of securing
health care services without penalty or threat of a penalty. On
page 2, delete lines 4-6, of Section 3 (c).
CO-CHAIR KELLER asked for the reason the reference to
constitutional rights was removed.
MR. BAILEY explained that bill is trying to establish a policy
and also a law. The statement of policy may include comments to
state the purpose of the law or intentions, but when passing a
law, the goal is describe the conduct and what is permitted or
prohibited. He related language superfluous to the content of
the rule is best left out of the statutory language.
4:50:33 PM
CO-CHAIR KELLER asked whether removing the phrase would imply a
new right was being established.
MR. BAILEY answered that it is a debatable question as to
whether policy can establish a right. He said that is a
question that he cannot answer. It seemed to him that on page
1, subsection (a), that it the state's policy that a person has
a right, but he does not know that the policy establishes the
right or if it states that the right already exists.
4:51:17 PM
CO-CHAIR HERRON restated proposed Conceptual Amendment 2.
REPRESENTATIVE T. WILSON removed her objection.
REPRESENTATIVE CISSNA referred to page 1, Section 3 (a) states
that person has a right and is free to choose, deals with cash
and being able to afford health care. She asked whether "free
to choose" is statutorily "solid" language.
MR. BAILEY replied that "free to choose" would be adequate to
state the sponsor's intent, but the preferable language from a
drafting perspective would be that a person "may" choose or
decline rather than "is free to."
REPRESENTATIVE CISSNA asked about preferable language for
statutory language and asked whether a conceptual amendment to
the Conceptual Amendment should be considered.
4:53:56 PM
There being no further objection, Conceptual Amendment 2 was
adopted.
REPRESENTATIVE CISSNA referred to page 1 of HB 423, which read:
"free to choose or decline any mode of purchasing health care
services."
REPRESENTATIVE CISSNA made a motion to adopt Conceptual
Amendment 3, as follows:
On line 14:
Delete "is free to" and following "has the right and"
Insert "may"
On line 14:
Delete "securing" and following "decline any mode of"
Insert "purchasing"
4:55:24 PM
CO-CHAIR HERRON restated Conceptual Amendment 3.
On line 14:
Delete "is free to" and following "has the right and"
Insert "may"
Delete "securing" and following "any mode of"
Insert "purchasing"
REPRESENTATIVE T. WILSON objected.
REPRESENTATIVE HOLMES asked whether it would be more consistent
to eliminate "has the right and is free to" or "is free to" and
to substitute the word "may."
MR. BAILEY asked Representative Holmes to repeat the question.
CO-CHAIR HERRON said he would attempt to repeat the suggested
language. On line 14,
Delete "has the right and is free to" and
Insert "may"
MR. BAILEY suggested that "and" has to stay in.
CO-CHAIR HERRON said no. On line 14,
Delete: "has the right and is free to"
Insert: "may"
MR. BAILEY replied that is certainly an option.
CO-CHAIR HERRON asked if it was an option or a drafting
preference.
MR. BAILEY noted that to some degree "may" would change the
content so it would not only be a drafting change. He noted the
conflict between stating policy and establishing a right. He
thought it may clarify the matter to say, "It's the policy that
a person may choose" and avoid the issue of whether the person
has a right or does not have a right.
REPRESENTATIVE GATTO agreed to the change to delete "is free to"
and substitute "may." He said, "has the right" should remain.
CO-CHAIR HERRON restated for clarification that proposed
Conceptual Amendment 3.
On line 14:
Delete "is free to" and
Insert "may"
REPRESENTATIVE HOLMES added there is a second portion.
CO-CHAIR HERRON agreed. He acknowledged proposed Conceptual
Amendment 3 also included:
On line 14:
Delete "securing" and following "any mode of"
Insert "purchasing"
4:58:26 PM
REPRESENTATIVE T. WILSON suggested that a person working at a
store is not "purchasing" but is "securing" health care.
REPRESENTATIVE HOLMES asked whether a better alternative existed
to "securing."
MR. BAILEY suggested using "purchasing" or "obtaining" since any
mode of getting health insurance.
4:59:53 PM
CO-CHAIR HERRON restated proposed Conceptual Amendment 3, as
follows:
On line 14:
Delete "is free to" and
Insert "may"
Delete "securing" and
Insert "obtaining"
REPRESENTATIVE T. WILSON withdrew her objection. There being no
further objection, Conceptual Amendment 3 was adopted.
5:00:37 PM
CO-CHAIR HERRON moved to page 2 and asked for clarification on
the language for the next conceptual amendment.
MR. REIKER stated that the language for the next conceptual
amendment came from the assistant attorney general, Mike Ford.
MR. JONES said he was unfamiliar with the language, but assumed
the intent is to make certain this did not to apply to state's
health insurance or to political subdivisions.
5:02:14 PM
REPRESENTATIVE HOLMES asked about the term "required" and
whether "provided" could be substituted.
MR. JONES replied that the terms are aimed at two different
things. One of the concerns raised at the last committee
meeting was that the prior version of the bill may keep the
state from providing immunizations, quarantines, or involuntary
committals, which are required health care services. He offered
his belief that this language was designed to also address the
state's ability to require its employees to participate in
health care services. He suggested one method to address this
is to refer to "modes of securing or obtaining health care
services provided by the state, a political subdivision, or a
court of the state, in addition to health care services required
by them."
5:04:13 PM
REPRESENTATIVE HOLMES turned to Conceptual Amendment 4 of the
"Conceptual Amendments" to Version R. She made a motion to
amend Section 3 (b)(1), by adding "provided or" after
"services." Thus, proposed Conceptual Amendment 4 would read,
as follows:
(b) The policy stated in (a) of this section
(1) does not apply to health care services
provided or required by the state, a political
subdivision of the state, or a court of the state;
REPRESENTATIVE T. WILSON objected for purpose of discussion.
CO-CHAIR KELLER asked for clarification if the motion read "or"
or "and."
MR. BAILEY replied it should be "or."
5:06:42 PM
CO-CHAIR HERRON stated that proposed Conceptual Amendment 4
would be "conformed" by the drafter.
REPRESENTATIVE HOLMES related that proposed Conceptual Amendment
4 would be inserted on page 2, line 2 after "section" and
subsection (b) would read:
(b) The policy stated in (a) of this section
(1) does not apply to health care services
provided or required by the state, a political
subdivision of the state, or a court of the state;
(2) may not impair a contract right that provides
health care services.
REPRESENTATIVE T. WILSON removed her objection.
There being no further objection, Conceptual Amendment 4 was
adopted.
5:07:54 PM
CO-CHAIR HERRON made a motion to adopt proposed Conceptual
Amendment 5, to delete language on line 18, as follows:
"participating in an employer or government sponsored health
benefit plan."
REPRESENTATIVE T. WILSON objected.
MR. RIEKER suggested that the language "mode of securing" should
also be changed to "mode of obtaining."
CO-CHAIR HERRON agreed, stating that would be a conforming
amendment.
5:09:01 PM
REPRESENTATIVE HOLMES expressed concern that leaving in the
language "or other means of obtaining health care services" in
HB 423 might be interpreted as including the language deleted in
proposed Conceptual Amendment 5. Thus, what would be left in
the bill would be the following, "mode of securing" means
directly purchasing health care services from a health care
provider, purchasing insurance covering health care services, or
other means of obtaining health care services;." She explained
that "or other means of obtaining health care services" would
also include "participating in an employer or government
sponsored health benefit plan."
5:09:50 PM
CO-CHAIR HERRON amended proposed Conceptual Amendment 5, to
delete lines 18 and 19, which read:
"participating in an employer or government sponsored
health benefit plan or other means of obtaining health
care services;"
REPRESENTATIVE T. WILSON removed her objection. There being no
further objection, Conceptual Amendment 5, as amended, was
adopted.
5:10:15 PM
CO-CHAIR HERRON made a motion to adopt Conceptual Amendment 6,
on page 2, lines 20 and 21, which read as follows [original
punctuation provided]:
(3) "penalty" means a fine, tax [SALARY OR WAGE
WITHHOLDING] surcharge, fee, or other [CONSEQUENCE]
monetary charge.
REPRESENTATIVE T. WILSON objected.
REPRESENTATIVE T. WILSON removed her objection. There being no
further objection, Conceptual Amendment 6 was adopted.
5:10:50 PM
REPRESENTATIVE T. WILSON moved to report HB 423, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes.
REPRESENTATIVE HOLMES objected.
5:11:33 PM
REPRESENTATIVE CISSNA expressed concern that the process of
working on complex issues and passing the bill out in a short
time without fully understanding the outcomes is a very serious
problem in the state legislature. She offered her belief that
moving so quickly on complex issues does the state a disservice.
Thus, she said she will vote no.
REPRESENTATIVE HOLMES reiterated Representative Cissna's
comments. She appreciated that the committee took a difficult
issue and worked through it. She commended the work by the
parties involved. She said she will also vote no on HB 423
since she is troubled by the concerns raised by the DHSS and
DOL. She thought that the eagerness to react to action taken at
the federal level could have unintended consequences. She said,
"A resolution is one thing; this is actual law, so I'm
troubled..." She related that this bill will come before the
House Judiciary Committee so she will have another chance to
review the bill.
5:14:07 PM
REPRESENTATIVE T. WILSON said she wished there was more time to
work on this bill, but she did not think the state has more
time. She offered her belief that the federal government has
put the state in the position. She said reviewed actions other
states have taken and their interpretations. She suggested the
state should take a stand that other states have taken on this
issue since the federal government has mandated changes that
will "cost the states." She offered that she is willing to move
the bill forward and allow the House Judiciary Standing
Committee to review it. She related her constituents are upset
with how the health care bill may affect them. She concluded by
stating that she does not have faith in the federal system.
5:16:02 PM
CO-CHAIR KELLER expressed his outrage at the federal law, which
he said has impugned Alaskan rights and "a takeover of a
system." He said one-sixth of the economy is regulated at the
federal level. He agreed with Mike Ford, the assistant attorney
general that the committee may be reacting more quickly to make
this bill "perfect." He pointed out that any health bill will
have a level of uncertainty, but he also reserves the right to
revisit the policy issue of this bill, just as the committee
does with any other bill it passes. He expressed frustration
that the intent of the reform is to redistribute wealth. He
said he would be a strong yes vote. He thinks the discussion is
healthy.
REPRESENTATIVE SEATON remarked that health care is one of the
most critical things for the State of Alaska. Alaska has a poor
record in many of the health care situations. He said, "I find
it ironic that under the auspices of this bill, if this had been
a single payer government program, there would be no objection,
because the objection to this is that we are using private
industry and private insurance. And we have the objection to
this bill from the people who would not have the objection for
but a single payer government sponsored "all in one" health
care. So I find it ironic in that way." He said he did not
think the legislature has enough information about the new
system or the implications. He said, "I'm a do not pass." He
did not think it is good public policy and would be much more
appropriate as a resolution. He stated that he would not hold
the bill up.
REPRESENTATIVE LYNN expressed concerns with health care. He
stated that he personally is fortunate to have state, Medicare,
and military health benefits. He related that as people age,
their health care needs are more substantial. He expressed
concern for people who cannot afford medicine and routine
prescriptions are very expensive. He related that the U.S.
needs good health care and the federal government has passed a
very comprehensive bill. This bill is to accept or reject that
federal bill. He stated the importance to have the liberty to
accept or reject this reform, which is a personal decision. He
speculated that the debate will ensue over a long period of
time. This bill provides that avenue and serves a good purpose.
He offered his belief that ultimately the courts will decide.
He said, "I'm a yes vote on this."
5:23:29 PM
CO-CHAIR HERRON said it is important issue. He expressed
concern with some parts of federal law, but he also appreciated
most parts of it. His constituents will enjoy the permanent
reauthorization of Indian Health Service (IHS). He appreciated
the sponsor bringing this issue forward. He stated that the
committee rewrote the bill so that it is now an appropriate
health care policy. Next, it will go through a constitutional
debate in the House Judiciary Standing Committee.
REPRESENTATIVE HOLMES maintained her objection.
A roll call vote was taken. Representatives Lynn, Seaton, T.
Wilson, Keller, and Herron voted in favor of reporting HB 423,
as amended, from the House Health and Social Services Standing
Committee. Representatives Cissna and Holmes voted against it.
Therefore, the CSHB 423(HSS) was reported out of the House
Health and Social Services Standing Committee by a vote of 5-2.
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