Legislature(2001 - 2002)

04/23/2002 04:37 PM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ 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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