Legislature(2013 - 2014)SENATE FINANCE 532
03/29/2013 09:00 AM Senate FINANCE
| Audio | Topic |
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| Start | |
| SB49 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 49 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE BILL NO. 49
"An Act defining 'medically necessary abortion' for
purposes of making payments under the state Medicaid
program."
9:09:42 AM
SENATOR JOHN COGHILL, introduced SB 49, and referred to the
Sponsor Statement (copy on file).
Senate Bill 49 specifically brings clarity to the term
"medically necessary abortion" for the purposes of
making payments under Medicaid. In 2001, the Alaska
Supreme Court determined the state must pay for
medically necessary abortions for participants in the
Medicaid program. Since 2001, the term "medically
necessary abortion" has acquired a constitutional
component of unknown scope. The relatively few Alaska
cases involving abortion rights do not provide
guidance as to how broadly the term "medically
necessary abortion" is to be construed. SB 49 answers
that issue. SB 49, based on recommendations and expert
testimony from medical professionals, reasonably
provides a neutral definition for a "medically
necessary abortion." I urge you to support SB 49.
Senator Coghill stated that the Judiciary Committee had
some testifiers who identified what would be "medically
necessary." He stated that the Supreme Court had determined
that medical terms through conversations with medical
professionals on both sides of the question. The
conversations with medical professionals resulted in the
Judiciary Committee drafting a list that would satisfy both
the Supreme Court and what would be "good medically
necessary criteria." He shared that the neutral criteria
was also examined from a legal perspective. He felt that
the bill described what would be considered "medically
necessary", but it still provided the doctors the trust to
make proper decisions. He stressed that the bill's purpose
was to define the physical criteria for the life, health,
and wellbeing of the mother. He remarked that the bill did
not restrict abortions; but outlined the reasons that the
State of Alaska would pay for the abortion. He felt that
the Judiciary Committee conducted a very thorough review of
the testimony from all sides of the argument. He stated
that the Judiciary Committee held six hearings, and
approximately 60 people testified on the bill. He shared
that the last section of the bill highlighted "serious risk
to the life or physical health, includes, but not limited
to the serious risk to the pregnancy of the woman." He
stated that the bill gave the doctor the discretion, but
outlined to the patient what would be considered "medically
necessary."
9:15:51 AM
Senator Coghill referred to the provision, commonly known
as the Hyde Amendment, which dealt with rape and incest. He
stated that the State of Alaska paid for abortions that
were the result of rape or incest. He did not know of any
State of Alaska funded abortions, based on the Hyde
Amendment criteria. He stated that for ten years there were
no Hyde Amendment funded abortions in the state. He felt
that the bill outlined an adequate framework of what would
be considered "medically necessary", and considered all
others "elective." He felt that the framework was
necessary, so whoever paid for the abortion could clearly
understand the criteria.
Co-Chair Meyer stressed that the focus of the meeting
should be directed toward the financial implications.
CHAD HUTCHISON, STAFF, SENATOR JOHN COGHILL, shared a brief
executive summary as to the federal foundation, and the
terms that were used in the bill. He stated that the
definition of "medically necessary" incorporated the
statutory that was outlined in the Hyde Amendment. He
looked at tab 4 of the "HB 49 Committee Binder" (copy on
file). The Executive Order 13535, Section 1:
It is necessary to establish an adequate enforcement
mechanism to ensure that Federal funds are not used
for abortion services (except in cases of rape or
incest, or when the life of the woman would be
endangered), consistent with a longstanding Federal
statutory restriction that is commonly known as the
Hyde Amendment.
Mr. Hutchison remarked that SB 49 included provisions for
rape, incest, or danger to the life of the mother. He
encouraged the committee to read tab 7 for more information
regarding the Hyde Amendment.
9:20:45 AM
Mr. Hutchison shared that the Alaska Constitution allowed
for one extra layer of protection. He stated that the bill
included provisions related to the physical health of the
mother, which was more thorough that merely a life-
threatening circumstance. He stressed that Medicaid did not
fund elective procedures; therefore Medicaid shall not fund
elective abortions. He stated that Medicaid funded
medically necessary procedures; therefore Medicaid would
not fund medically necessary abortions. He pointed out that
the definition was so unclear, that he believed that
elective and medically necessary procedures had been
included in the previous definition. He stressed that SB 49
outlined a proper definition of what would be considered a
medically necessary abortion. He looked at tab 4a, which
provided some statistical context comparing other state's
provisions to Alaska's current model. He pointed to the
left column of page 2, which was a report from the
Guttmacher Institute that listed 32 states, plus the
District of Columbia that strictly followed the federal
foundational platform of life endangerment, rape, and
incest. He pointed out that seventeen states had a court
order or voluntary provisions to allow state funds for all
or most medically necessary abortions. He explained that
Alaska had been court ordered to fund those procedures. The
court order was based on the 2001 Planned Parenthood
decision. He looked at tab 4c, page 16:
The State, having undertaken to provide health care
for poor Alaskans, must adhere to neutral criteria in
distributing that care. It may not deny medically
necessary services to eligible individuals based on
criteria unrelated to the purposes of the public
health care program.
Mr. Hutchison looked at tab 8, and pointed out that of the
1,627 induced terminations in 2011, 623 were paid for with
Medicaid funds. He shared that the percentage of Medicaid
covered abortions in 2011 was 38.3 percent.
Mr. Hutchison looked at tab 9, page marked 114, table 3,
"Percentage distribution of women having an abortion, by
their most important reason for having an abortion, 2004
and 1987." He pointed out that less than 1 percent of women
who terminated a pregnancy in 2004 claimed to be a victim
of rape; and only 4 percent claimed to have a physical
problem with their health. He stressed that there was a
remarkable gap between the percentage of abortions
performed based on maintaining the physical health of the
mother versus the percentage of abortions in Alaska that
were covered by Medicaid. He felt that there were many
elective procedures were covered by Medicaid under the
current definition of medically necessary. He explained
that SB 49 narrowed the definition of "medically
necessary", which was based on neutral criteria directly
related to the health care field. He was confident in the
language of the bill, because it had been thoroughly vetted
by both medical and legal experts.
9:27:25 AM
Senator Dunleavy looked at tab 4a, and wondered if South
Dakota was violating the federal mandate. Mr. Hutchison
replied that South Dakota was violating the federal
mandate, but bill was not intended to violate federal
provisions.
Senator Dunleavy wondered why Alaska could not use the same
model as South Dakota. Mr. Hutchison replied that the 2001
court decision controlled the legal framework of the
language of the bill.
Senator Dunleavy surmised that the language was not based
on legislation; rather it was based on a court order. Mr.
Hutchison agreed with that summation.
Senator Hoffman wondered how a second opinion from a doctor
would be treated in the language of the bill. Senator
Coghill replied that he expected that the question would be
dealt with between the patient and the doctor. He furthered
that he was not sure how Medicaid would treat that
question, and felt that Commissioner Streur would provide
further information.
Senator Hoffman surmised that a second opinion from a
doctor based on the life and health of the mother would be
welcome in determining if an abortion was considered
"medically necessary."
Co-Chair Meyer wondered how many abortions were elective
versus what would be considered "medically necessary."
Senator Coghill shared that there were 1,629 abortions in
2011; and 38 percent were paid with Medicaid dollars. He
stated that he extrapolated that less than 6 percent of
those Medicaid covered abortions would be considered
"medically necessary." He stressed that the summation may
not be accurate, because there could be a larger issue. He
furthered that the Guttmacher Institute's research
reflected that 50 percent of abortions were because of job
related or convenience issues, which should be considered
"elective abortions."
Mr. Hutchison looked at tab 8, which discussed the figures
that the statistical analysis was based on. He clarified
that the total number of abortions was 1,627 in 2011; and
the number of abortions covered by Medicaid was 623 in
2011, which was 38.3 percent of all abortions in 2011.
9:32:37 AM
Co-Chair Meyer surmised that Medicaid money was mostly
federal money. Senator Coghill responded that the Medicaid
money was approximately 50 percent federal money and 50
percent state money, but varied year to year.
Co-Chair Kelly wondered if 0.5 percent of abortions were
medically necessary or the result of rape and incest.
Senator Coghill replied that tab 9, page 114 reflected
those figures. He announced that 0.5 percent of abortions
were the result of rape, and 4 percent of abortions were
because of physical problems with the woman's health.
Co-Chair Kelly anticipated that 4.5 percent would be a
reasonable number to use as a determination of a reasonable
number of people that would be obtaining medically
necessary abortions to be paid for with Medicaid dollars.
Senator Dunleavy wondered if federal funds would be the
only Medicaid dollars that would be used for abortions, if
the legislation passed. Senator Coghill responded that the
Medicaid dollar was a federal and state partnership.
Vice-Chair Fairclough wondered how a doctor would determine
how the abortion would be medically necessary. Senator
Coghill responded that there was a list of qualifications
that doctors would use to determine what would be
considered "medically necessary."
9:37:39 AM
Vice-Chair Fairclough looked at tab 4b, and wondered if
Alaska provided counseling to those that were victims of
rape and incest, and wondered if that assault would be
reported to the Department of Public Safety (DPS). She
pointed out that advocacy groups felt that sexual assaults
were underreported to DPS. Senator Coghill replied that the
doctors would report the assaults in cases where they were
required to report. He furthered that he was not sure
exactly how the sexual assaults would be reported. He
understood the issue regarding who decides payment under
rate, and he also understood who and how the assault would
be reported.
Vice-Chair Fairclough pointed out that victims of rape and
incest sometimes did not choose to report the crime. She
stressed that many of those victims that may become
pregnant were faced with a decision that would affect the
rest of their lives. She remarked that many of those
victims were not willing to undergo counseling, because of
the issue of disclosure. She wondered if the rape victims
were protected under the Health Insurance Portability and
Accountability Act (HIPAA), because if the crime was
reported, the state was obligated to prosecute the offense.
She stressed that the victim may be faced with a public
documentation of what they may have wanted to remain
private. Senator Coghill replied that "abortion in cases of
rape and incest" and "medically necessary abortions" were
two different issues. He remarked that the court mandate
for rape and incest was already in place.
9:42:27 AM
Vice-Chair Fairclough supported the provision of abortion
in cases of rape and incest. She felt that the issue may
need to be addressed in the bill. She looked at tab 8, and
noted the ages of the people who were seeking medical
services
Vice-Chair Fairclough looked at tab 8, and felt that
abortions under age 24 were a substantial number in the
state. She felt that those numbers might increase, and rape
statistics may also increase, because the pregnant women
may say they were raped in order to obtain an abortion.
Senator Coghill responded that there was an informed
consent portion of the bill, so Vice-Chair Fairclough's
concerns may be directly related to the informed consent
portion of the bill. He stressed that the doctors would
have that conversation with the individual who was seeking
an abortion. He remarked that the payment method and
information that was delivered in order to receive
assistance were two different matters. He pointed out that
that issue had undergone significant litigation.
Vice-Chair Fairclough would like to hear from the
Department of Law (DOL) about the consequence of reporting
that the abortion was obtained because of a rape or incest
scenario.
Mr. Hutchison remarked that the inclusion of rape and
incest had been a part of Alaska law ever since the Hyde
Amendment was enacted. He felt that the rape and incest
numbers had not changed from less than 0.5 percent since
1987.
Senator Coghill furthered that there may be a greater
problem with rape and incest in Alaska than what was
reflected in the data. He understood Vice-Chair
Fairclough's concerns, and agreed to work on that issue. He
felt that the current bill's agenda may not be appropriate,
but understood the severity of the problem of rape and
incest reporting in Alaska.
Vice-Chair Fairclough felt that the individuals who report
to be victims of rape should be treated with respect; that
their lives should remain private; and the state does not
subject those individuals to scrutiny that they may have
chosen not to participate in. Senator Coghill responded
that her concern was a legal issue that may have many
aspects.
9:47:52 AM
Co-Chair Kelly felt that Vice-Chair Fairclough's concerns
were beyond the scope of the bill. Senator Coghill stressed
that the bill was focused on when it was appropriate for
Medicaid to cover the cost of an abortion.
Co-Chair Meyer wondered if the pregnant women had access to
counseling that provided information about adoption.
Senator Coghill responded that pregnant women had access to
that kind of counseling, but he felt that there needed to
be counseling that provided information about adoption. He
furthered that there was an informed consent provision in
Alaska law that endeavored to provide women with the
counseling options about effects of abortion and adoption
options. He explained that 76 percent of women who undergo
and induced pregnancy termination do not request a copy of
the informed consent. He furthered that he had pushed to
require all women who underwent an induced pregnancy
termination to receive informed consent, but the court
ruled that women could only receive that information if
they request it. He felt that was a problem.
9:52:00 AM
WILLIAM STREUR, COMMISSIONER, DEPARTMENT OF HEALTH AND
SOCIAL SERVICES (DHSS), introduced himself.
Co-Chair Meyer requested information regarding the
indeterminate fiscal note. He specifically queried the
federal and state percentage share. Commissioner Streur
responded that he did not know the exact Medicaid
contribution percentage split between the state and federal
governments.
Senator Dunleavy wondered if it was possible to use
separate the state and federal fund accounting, based on
what the Medicaid money was used toward. Commissioner
Streur replied that it was not possible to separate the
state and federal fund accounting.
Senator Dunleavy wondered if it were possible to only
dedicate federal money to abortion, within a separate
accounting process within Alaska's Medicaid system.
Commissioner Streur replied in the negative, because the
federal government would only pay their portion of Medicaid
for the cost of Hyde covered medically necessary abortions.
9:56:38 AM
Vice-Chair Fairclough felt that the discussion was not a
pro-life versus pro-choice discussion. She requested a copy
of the certification form that the doctors use in order to
determine whether or not the abortion is considered
medically necessary. Commissioner Streur responded that the
form submitted to DHSS was a certification from the doctor.
The certification included abortion due to rape or incest;
health of the mother; or state general fund only stating
that the abortion was not an elective procedure, but based
on the doctor's professional opinion determined that the
health of the mother was in danger due to the impact of the
pregnancy. This certification was the only way a doctor
could be reimbursed. He stressed that the mother's non-
notarized statement was not submitted to DHSS.
Vice-Chair Fairclough wondered if the patient's name was
confidential. Commissioner Streur replied that the
patient's name and identification number were included in
the form.
Co-Chair Meyer noted that the state's share for abortion
procedures totaled $191,000. He queried the cost of an
individual abortion procedure. Commissioner Streur agreed
to provide that information.
Senator Olson shared that he had done that $191,000 divided
by 623 paid, was $307 per abortion procedure.
Senator Dunleavy wondered if the Medicaid determination
process was different as a result of the Hyde amendment
court action. Commissioner Streur responded that he did not
understand the question.
Senator Dunleavy wondered how the recent court decision
changed the structure of how abortions would be paid for by
Medicaid. Commissioner Streur responded that the supreme
court decision resulted in an expansion of the coverage for
abortions in the state of Alaska.
10:01:39 AM
AT EASE
10:03:19 AM
RECONVENED
10:04:16 AM
DOCTOR JOHN THORP, PHYSICIAN, UNIVERSITY OF NORTH CAROLINA
(via teleconference), shared that he helped Senator Coghill
helped define "medically necessary abortion" in the
drafting of the bill. He felt that the list was adequate in
determining what was "medically necessary."
DOCTOR JEAN BRAMER, PHYSICIAN, FAIRBANKS (via
teleconference), felt that the bill was of fiscal concern.
She shared that patients were allowed to seek a second
opinion, even when covered by Medicaid.
Vice-Chair Fairclough wondered if she had ever filled out a
certification form that specifically listed rape or incest.
Doctor Bramer responded that she did not perform abortions.
She furthered that she had participated in an abortion as a
resident. It was an extreme case where the patient had a
severe heart condition, so she had a 50 percent or higher
chance of dying during the pregnancy.
Co-Chair Meyer wondered if a second opinion would be paid
for by Medicaid. Doctor Bramer responded that the second
opinion would be covered by Medicaid.
Co-Chair Meyer felt that there were some questions that
should be addressed by the DOL.
10:11:36 AM
RECESSED
1:38:53 PM
RECONVENED
STACY KRALY, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW,
introduced herself. She shared a response regarding
information obtained by a doctor regarding rape or incest.
She stated that there were two different components:
requirements pertaining to adults and requirements
pertaining to minors. She stated that there was no
reporting requirement for an adult. That information was
confidential. She furthered that physicians were mandatory
reporters when it was determined that a miner was pregnant
by an adult who was trusted to care for that minor. She
stated that there would be no mandatory reporting
requirement, if the perpetrator was not entrusted to care
for the minor.
Co-Chair Meyer discussed housekeeping.
SB 49 was HEARD and HELD in committee for further
consideration.
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