Legislature(2007 - 2008)CAPITOL 17
04/27/2007 03:00 PM House LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| HB209 | |
| HB200 | |
| HB71 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 200 | TELECONFERENCED | |
| += | HB 71 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 209 | TELECONFERENCED | |
HB 200 - WORKERS' COMP: DISEASE PRESUMPTION 4:02:37 PM CHAIR OLSON announced that the next order of business would be HOUSE BILL NO. 200, "An Act relating to the presumption of coverage for a workers' compensation claim for disability as a result of certain diseases for certain occupations." 4:03:28 PM REPRESENTATIVE NANCY DAHLSTROM, Alaska State Legislature, sponsor, explained that HB 200 establishes a presumption that certain professions carry a risk of certain diseases, specifically the professions of firefighter - whether professional or volunteer - peace officer, and emergency medical and rescue personnel - referred to as "first responders." Firefighters and first responders take great risks every day to protect the public, she remarked, and mentioned that she and her staff are still working on the fiscal issues related to the bill. REPRESENTATIVE GARDNER, referring to similar legislation heard last year, noted that HB 200 now lists prostate cancer as one of the presumptive illnesses. REPRESENTATIVE DAHLSTROM remarked that HB 200 has also been tightened up with regard to physical exams, tobacco use, and applicable timeframes. 4:06:52 PM KELLY HUBER, Staff to Representative Nancy Dahlstrom, Alaska State Legislature, sponsor, in response to a question, explained that under HB 200, the amount of time someone must work for "the department" before qualifying for the presumption is now seven years, and there is a new proposed AS 23.30.121(c)(1)(F), which says: "(F) any uncommon infectious disease the contraction of which the United States Secretary of Labor determines to be related to the hazards to which an employee in fire protection activities may be subject". In response to a further question, she noted that statute does define the term "fire fighter"; AS 09.65.295(c) reads: (c) In this section, "fire fighter" means a person employed by a municipal fire department or who is a member of a volunteer fire department registered with the state fire marshal, or a person registered for purposes of workers' compensation with the state fire marshal as a member of a volunteer fire department. MS. HUBER, in response to another question, explained that under the bill, in order to qualify, a firefighter must have worked as a firefighter for at least seven years before developing or manifesting the disease, and have passed a qualifying medical exam, either upon becoming a firefighter or during employment as a firefighter. Once these criteria have been met, under the bill there is then a presumption that the disease was the result of working as a firefighter. However, Section 1 of the bill states that the presumption of coverage may be rebutted by a preponderance of the evidence, which may include the use of tobacco products, physical fitness, weight, lifestyle, hereditary factors, and exposure from other activities. REPRESENTATIVE NEUMAN surmised that such points would be heavily debated in court, and expressed concern that the bill might exacerbate the state's current problems with workers' compensation. REPRESENTATIVE GARDNER asked how many of Alaska's firefighters would be affected by the bill. MS. HUBER offered that the firefighters who will be testifying later will present Alaska-specific statistics, and remarked that the other states which have adopted similar legislation have experienced only minor, if any, cost increases. REPRESENTATIVE RAMRAS acknowledged that very few other vocations require people to stand in harm's way, and shared his belief that the bill is proposing appropriate coverage. He mentioned a fire that occurred recently in Fairbanks, and stated his support of HB 200. REPRESENTATIVE LeDOUX asked what the interplay is currently between health insurance and workers' compensation insurance. For example, if firefighters who acquire one of the enumerated diseases are not covered under workers' compensation, are they covered under their health insurance policies? MS. HUBER suggested that someone else might be better able to answer that question, but surmised that the state's health insurance policies would cover a firefighter with one of enumerated diseases but only if it were not a preexisting condition. 4:16:54 PM LINDA HALL, Director, Division of Insurance, Department of Commerce, Community, & Economic Development (DCCED), said she has heard discussion regarding how an increase in the potential cost for medical care for firefighters would affect the workers' compensation system, but because few firefighters are currently part of the "voluntary workers' compensation system," there is very little data available. The National Council on Compensation Insurance (NCCI), she relayed, has indicated to the division that the increase to the overall workers' compensation system costs is expected to be negligible, but [HB 200] may have a significant impact on workers' compensation costs for certain class codes, specifically those generally covered "in the self- insured arena or in the program that most of the municipal entities participate in." MS. HALL remarked that the retroactive nature of some of the bill's provisions may potentially lead to a significant unfunded liability for things that have occurred in the past. Most of what occurs in the workers' compensation rating arena for insurance is prospective, and so it is particularly difficult to make estimates of system costs for something that could be retroactive, she said, but added that she would be willing to discuss this issue further with the sponsor. In response to a question, she said she does not know how the bill's provision regarding a qualifying medical examination would be applied. 4:20:51 PM MARK DRYGAS, President, Alaska Professional Fire Fighters Association (AKPFFA), after mentioning that he works for the City of Fairbanks fire department, relayed that the AKPFFA stands in strong support of HB 200. He commented that the diseases listed in the bill have an increasing effect on firefighters, and that there is very little controversy over whether such diseases are occurring in firefighters as a result of their profession. In conclusion, he asked for the committee's support of HB 200. MR. DRYGAS, in response to a question, offered his understanding that most firefighters get an exam upon becoming a firefighter and then get additional physical exams yearly, adding that it can be difficult to determine whether the occurrence of a disease in a particular firefighter is the result of repeated exposure or one instance of exposure. REPRESENTATIVE NEUMAN said he'd received a letter from the Municipality of Anchorage (MOA), and offered that it says in part: For specific employees, regardless of the cause, these bills would have the municipality prove that they are not work related. This is an impossibly high standard in most cases, and one that requires personally invasive investigation into an employee's life. MR. DRYGAS acknowledged that the bill does require the employer to dispute a claim that the occurrence of a disease was the result of the job. He offered his understanding that the cancers listed in the bill are very specific types of cancers that are well documented as being more prevalent amongst firefighters. REPRESENTATIVE NEUMAN relayed that the aforementioned letter goes on to say that no evidence has been provided to show that a problem exists with the workers' compensation system with regard to providing coverage for first responders. MR. DRYGAS opined that if true, it merely illustrates that there would not be a large number people being affected by the bill - perhaps just one person every couple of years. 4:27:03 PM MATTHEW McSORLEY, Secretary/Treasurer, Alaska Professional Fire Fighters Association (AKPFFA), characterizing HB 200 as an important bill, shared a story involving a Fairbanks firefighter who died of a cancer that resulted from his exposure to chemicals he encountered while performing his job, particularly when putting out fires at industrial complexes. Mr. McSorley explained that most homes these days contain many items that are made of plastics and various other chemicals, all of which produce large quantities of carcinogens when burned; modern-day firefighters must use air packs when fighting fires because inhaling such carcinogens even once can render a person unconscious or dead. MR. McSORLEY opined that there is an urgent need for HB 200 to pass, and pointed out that every time he fights a fire, he is contaminated by various chemicals because his skin - the largest organ in the body - absorbs the resultant smoke. This is why fire fighters get cancer two to three times more often than the general population. He then predicted the arguments that opponents of the bill would be making against it. In conclusion, he asked the committee to move the bill from committee and show support for Alaska's fire fighters and public safety officers, who, he added, need the extra protection that the bill provides. REPRESENTATIVE LeDOUX noted that language on page 2 - proposed AS 23.30.121(b)(2) - restricts the presumption to 60 calendar months following the last date of employment, and expressed concern about this limitation. MR. McSORLEY said the AKPFFA was also concerned about that limitation but had attempted to make the bill as fiscally certain as possible - without the limitation the bill would never pass and yet the extra coverage provided by the bill is needed and deserved because fire fighters engage in dangerous work. 4:34:15 PM ERIC TUOTT relayed that he is a fire fighter in Anchorage, and offered that the claims history from other states [that have adopted a similar law] illustrates that there won't be a huge increase in workers' compensation cases related to the bill. In Nevada, out of 4,000 firefighters, there were 3 cancer claims paid in the first four years after similar legislation was enacted, and none of those cancers were lung cancer, which is covered under different Nevada legislation. In Rhode Island there were 6 claims paid in the first eight years after similar legislation was enacted. In Massachusetts, during the first four years after similar legislation was enacted, there were 34 cancer claims, 15 disability claims, 19 death benefit claims paid - and this is out of 25,000 fire fighters. In Florida, where there are about 24,000 active career fire fighters, there were claims paid on .034 percent of the active work force. In Washington, after which Alaska modeled its proposed legislation, there were 13 cancer claims between 2002 and 2006, but only 6 of those claims were accepted and paid. MR. TUOTT offered that Alaska has an estimated 700 career firefighters that would be covered by HB 200, and the predictions are that there will be less than one cancer claim made every two years. In response to an earlier question, he explained that if a fire fighter were screened at some point during his/her career prior to retirement and that screening indicated that he/she was free of cancer, and then another screening conducted within five years - 60 calendar months - after retirement indicated that he/she did have one of the enumerated forms of cancer, under the bill it would be presumed that the cancer formed as a result of the fire fighter's occupation. REPRESENTATIVE GARDNER questioned whether all currently employed firefighters have already been screened, or whether the "qualifying medical exam" referred to in the bill would be a new procedure. She also asked Mr. Tuott whether the presumption provided in the bill would apply to him if he were to develop one of the enumerated cancers within the next four weeks. MR. TUOTT said the presumption wouldn't apply to him at this point because he hasn't been with the department for seven years, as is required in the bill. He relayed that fire fighters in Anchorage get an initial physical exam upon being hired and an annual physical exam thereafter, and that during those exams fire fighters are screened for cancer. He emphasized that the bill does not mandate that local governments provide medical exams. In response to a question, he offered his understanding that fire fighters in Anchorage have been receiving annual physical exams for at least the last five years, though he is not sure how long that policy has been in place. One problem with the five-year threshold, he remarked, is that many of the enumerated cancers become terminal quickly, and hence many fire fighters that have contracted cancer have died quite soon after retiring and weren't alive long enough to consider that the cancer was linked to their occupation. 4:39:56 PM JEFF BRIGGS relayed that he is a fire fighter in Anchorage, and feels that HB 200 is long overdue. He noted that 40 other states and 5 provinces in Canada currently have some form of "presumptive legislation" for fire fighters, that a handful cover every type of cancer that has been linked to fire fighting, and that even in Washington, D.C., there is pending legislation that would provide a presumption for federal fire fighters. Fire fighters as a whole, he remarked, tend to be a very empathetic, hard working, and courageous group of people, and they touch the lives of so many people, whether it be teaching a gymnasium full of children the rudiments of fire safety, participating in community events, comforting a family that has lost a loved one, or performing rescues. MR. BRIGGS recounted how one of his fire fighting mentors died of cancer less than a year after retiring, adding that that person is not the only one of his coworkers that has either died from or been diagnosed with some form of cancer or other disease related to fire fighting. Characterizing HB 200 as a very good piece of legislation, he asked the committee to pass it. 4:43:53 PM PAUL F. LISANKIE, Director, Division of Workers' Compensation, Department of Labor & Workforce Development (DLWD), in response to the question of how this proposed workers' compensation presumption would interact with a fire fighter's health insurance when he/she is employed by the state or a municipality, offered his understanding that such a person is covered by three potential payors of medical costs, and HB 200 would shift the balance such that workers' compensation becomes the more likely payor in cases of work-related injuries/illnesses. In response to another question, he indicated that members of volunteer fire departments that are registered with the state fire marshal's office are treated as employees if injured while responding to a fire or other emergency. REPRESENTATIVE LeDOUX pointed out, though, that workers' compensation benefits are based on one's wages, and yet volunteer fire fighters are not receiving any wages. MR. LISANKIE offered his understanding that under the workers' compensation Act, if a volunteer fire fighter serves in an area that has paid fire fighters, his/her benefits will be based on the wages of a paid fire fighter in that area, and if a volunteer fire fighter serves in an area that doesn't have paid fire fighters, the "governmental area" is required to set, in lieu of wages, a compensation rate that is not less than the minimum wage multiplied by 40 hours. In response to another question, he said he is not certain whether volunteer fire fighters are extended any sort of health care as part of their volunteering, and so the bill may have the biggest impact on volunteer fire fighters. REPRESENTATIVE NEUMAN asked whether a fire fighter would be better off financially being compensated through his/her health insurance or through workers' compensation. MR. LISANKIE offered that under current law, with the exception of the various forms of cancer enumerated in the bill, the workers' compensation system has been pretty good at acknowledging causality between respiratory diseases or certain cardiovascular events and a person's work as a fire fighter. However, because medical science is not nearly as certain about what causes cancer, the claimant of workers' compensation must prove causality and this can be difficult. Under HB 200, the burden of proof will shift to the employer; the employer will have to prove that a person didn't contract one of the enumerated cancers or diseases due to his/her work, and proving this will be difficult because it is unlikely that medical experts will be able provide a definitive answer that one absolutely cannot contract cancer because of exposure to certain chemicals. In response to another question, he reiterated that volunteer fire fighters probably aren't extended any sort of health insurance benefits. REPRESENTATIVE NEUMAN questioned what cost increases might result from the passage of HB 200 to a small community with only a volunteer fire dept. MR. LISANKIE replied that having to provide qualifying medical exams might result in the only additional costs to communities. He noted that the bill directs the DLWD to define via regulation what constitutes a qualifying medical exam. In response to other questions, he reiterated that it is hard to prove what causes cancer, and that currently the employee, whether currently employed or retired, must prove that the cancer is work-related in order to obtain either workers' compensation benefits or occupational disability benefits. [Chair Olson turned the gavel over to Vice-Chair Neuman.] 5:02:03 PM KEVIN SMITH, Executive Director, Alaska Municipal League Joint Insurance Association, Inc.(AMLJIA), first explained that the members of the AMLJIA pool together to cover the first $.5 million of each of the workers' compensation claims and then the AMLJIA buys excess insurance over that amount. [Vice-Chair Neuman returned the gavel to Chair Olson.] MR. SMITH then said that HB 200 would place fire fighters with seven or more years of experience into a preferred category wherein they would not be subject to the same proof requirements for occupational injuries/illnesses as other workers in either the private or public sector; instead, cardiovascular events, respiratory problems, and cancers would be presumed to be work- related. The bill would require tax-payor funded municipalities to prove a negative - that the fire fighter's cancer, for example, was not caused by the job. He opined that HB 200 is bad public policy for a number of reasons, not the least of which is that it's not really supported by science. House Bill 200 will affect approximately 9,250 first responders, he opined, and since municipalities employ the vast majority of Alaska's first responders, the AMLJIA strongly opposes the bill. MR. SMITH said the bill's potential increase in costs are difficult to gage; for example, the cost for treating cancer will vary depending upon the type of cancer, how early it is detected, and the available treatment options. He offered his understanding that for the "cancer presumption" alone, the NCCI has estimated a 15-30 percent cost increase for the affected class code, and pointed out that HB 200 contains more than just a cancer presumption. Referring to "Legislative Research Report, Report Number 07.125", Mr. Smith noted that there are only 10 states in the country that cover some form of each of the four "category diseases" as is proposed in HB 200 - heart disease, lung disease, cancer, and infectious diseases. And although the NCCI recommends a base rate for Alaska of $4.99 per $100 payroll, Nevada - one of the aforementioned 10 states - has a rate of $15.03, and California - another one of the aforementioned 10 states - has a rate of $10.94. MR. SMITH said that about half of Alaska's registered fire fighters are volunteers; most small communities cannot afford to pay for professional fire fighters and so they have volunteer fire fighters, but they still need to buy workers' compensation insurance for them. [The rates for that insurance] will necessarily have to increase to cover the costs of the presumption proposed in HB 200, he opined, and, given the rates in Nevada and California, will probably increase by hundreds of percentage points. When taxpayers in the smaller communities can't even afford to pay professional fire fighters, it's unreasonable to expect them to pay considerably more for workers' compensation. 5:07:06 PM MR. SMITH offered his understanding that many of the "jurisdictions" that provide "this coverage" don't provide a presumption for volunteers. And although proponents of the bill have used California as an example - stating that the effect of similar legislation on the actuarial assumptions for the California Public Employees' Retirement System (CalPERS) was negligible/minimal - what hasn't been said thus far is that California provides a rebate for unfunded mandates; data from 2000 to the present shows that local agency requests for reimbursement on California's fire fighter cancer presumption totals approximately $40 million - not a negligible amount, he opined. Furthermore, in order to take advantage of the presumption offered by the bill, medical screenings are necessary, and those screenings, although the costs vary, are expensive. For example, Juneau's fire and rescue agency reports that it pays approximately $1,300 per medical screening - for a medical screening and an electrocardiogram (EKG). Using that figure and multiplying it by 9,250 - the assumed number of affected employees - results in a cost of over $12 million for screenings alone. MR. SMITH reiterated that the bill is not supported by science. Cancer is a terrible disease that's probably touched everyone's lives, he remarked, adding that according to statistics gathered by the American Cancer Society (ACS), about half the men in "this room" will be diagnosed with some sort of cancer in their lifetime. Furthermore, yesterday's Anchorage paper cited a cancer statistic which indicated that prostate cancer is the second most diagnosed cancer in men after skin cancer, and that it is the second leading cause of cancer death; one third of all the women in "this room" will also be diagnosed with cancer. The causes of cancer are largely unexplained, he remarked, opining that the science behind the bill is far from conclusive [because] the International Association of Fire Fighters (IAFF) is basing its data on a type of study that is based on several other studies. MR. SMITH said that by comparison, in a different kind of study considered by epidemiologists to have a sound approach, "none of the cancers" rise to the level of medical certainty; statistically speaking, there are associations, but in none of the listed diseases has the standardized mortality ratio exceeded 200, which is the standard epidemiologists use to determine [causality]. For example, in situations involving kidney and bladder cancers, the study indicates that fire fighting is unlikely to contribute significantly, that more study is needed, and that more innovative, comfortable protective equipment needs to be developed. Nearly three out of ten men in the general population will develop one of the cancers listed in HB 200, but according to statistics in the aforementioned study, for every four cancer claims by fire fighters, three of those cancer cases would have occurred regardless of occupation. MR. SMITH, as an alternative, suggested developing a broad-based state funding source to finance "this extraordinary benefit and unfunded mandate on local government employers and taxpayers." Passage of HB 200 would "crack the door for other special interest groups that would like a similar presumption," he opined. Case in point, last year, during discussion of a similar bill, there was discussion regarding an amendment that would have added nurses to the list of those qualifying for the presumption. He characterized the bill as discriminatory, pointing out that similar laws have been challenged in Nevada on constitutional grounds, and a similar bill was overturned in New Hampshire because it violated the constitution - specifically it violated an unfunded mandate clause. MR. SMITH pointed out that many people have occupational exposure at their jobs, and that the workers' compensation system already provides such people with protection. Turning the system upside down for one class of employees is bad public policy, he remarked, characterizing HB 200 as special interest legislation that provides a tremendous benefit to a single group of employees at local taxpayer expense. Welders, construction workers, demolition crews, sanitation employees are all exposed to the same carcinogenic or contagious agents as fire fighters, but the difference is that the former groups of people are exposed to those agents on a daily basis. The ailments listed in HB 200 are already covered by workers' compensation if a connection between the ailment and work can be shown. Furthermore, according to the aforementioned study, non fire fighters can and do get the diseases enumerated in the bill, and yet most fire fighters never do. In closing, he urged the committee to not pass HB 200. 5:13:12 PM REPRESENTATIVE RAMRAS relayed that the statistics he is familiar with lead him to come to a different conclusion, and pointed out that workers' compensation insurance rates are higher for hotel workers than for fire fighters. REPRESENTATIVE NEUMAN noted that he has heard several times that as long as a connection between a disease and work can be shown, workers' compensation will pay benefits. He asked, therefore, whether fire fighters keep a record of the chemicals they are exposed to at each fire. MR. TUOTT said no, and characterized that as a nearly impossible task, adding that many chemicals, when burned together with other chemicals, can pose additional dangers. However, fire departments are required to record which personnel respond to which fires, and this data may prove helpful in the future if several fire fighters that attended the same fire come down with the same sort of cancer several years later. REPRESENTATIVE NEUMAN expressed concern that paying the costs of the proposed presumption will result in less money being available for safety equipment. MR. TUOTT replied that he does not anticipate HB 200 resulting in many claims being filed. CHAIR OLSON relayed that HB 200 would be held over, and offered his understanding that a committee substitute (CS) will be forthcoming.
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