Legislature(2005 - 2006)BUTROVICH 205
04/26/2005 08:30 AM JUDICIARY
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* first hearing in first committee of referral
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CSHB 95(RLS)-PUBLIC HEALTH DISASTERS/EMERGENCIES 8:53:39 AM CHAIR RALPH SEEKINS announced HB 95 to be up for consideration. He advised the committee they were working off the document SCS CSHB 95(STA) Version \L. 8:54:08 AM DR. RICHARD MANDSAGER, director, Division of Public Health (DPH), introduced HB 95. He presented an overview slide presentation, which can be found in the bill packet. 8:56:00 AM Slide 1 Public Health Overview Slide 2 Public Health is not Health Care. Slide 3 Division of Public Health Core Services Slide 4 Preparing for a Public Health Emergency Slide 5 Preparedness Weaknesses Slide 6 Old Public Health Enemies Slide 7 Traditional Disease Control Slide 8 The Next SARS Slide 9 Alaska Public Health Law Reform Proposal 9:02:48 AM Slide 10 Alaska Public Health Law Reform Proposal Slide 11 SCS CSHB 95(STA): An Act Relating to Public Health Slide 12 SCS CSHB 95(STA): An Act Relating to Public Health Slide 13 Sections of SCS CSHB 95(STA) Slide 14 Intent, Administration, Powers and Authority Slide 15 Balancing Individual Rights vs. Common Good Slide 16 Constitutional Constraints and Protections 9:06:30 AM Slide 17 Limitations Slide 18 Limitations continued 9:08:23 AM SENATOR HOLLIS FRENCH asked whether there was a provision in HB 95 for seeking a court order at the same time they would impose an immediate risk protocol. MR. DAN BRANCH, attorney, Department of Law (DOL), answered the question. There is a provision for a court order. Page 14, line 10 states "within 24 hours after implementation of the emergency administrative order, the department shall notify the superior court by filing a petition under (d) of this section that also alleges that the emergency action was necessary to prevent or limit the transmission of a contagious or possibly contagious disease to others that would pose an immediate threat to the public health." 9:09:53 AM DR. MANDSAGER continued the slide presentation. Slide 19 Summary of Due Process and Penalties Slide 20 State Quarantine Authority DR. MANDSAGER offered an amendment to the committee, which clarifies when the state could be sued. 9:12:22 AM A M E N D M E N T 1 Page 2, line 21, following "by": Insert "negligent" Page 2, line 22, following "state employee": Delete "and" Insert ", or" Page 2, line 22, following "if": Delete "the" Insert "a state" 9:16:08 AM Amendment one passed unanimously. 9:17:00 AM SENATOR GRETCHEN GUESS noted Page 2 lines 22-25 discuss gross negligence and intentional violations. She asked the reason HB 95 does not include actual damages. DR. MANDSAGER said that was debated vigorously during the House hearings. The employee of the Department of Health and Social Services (DHSS) has very limited authorities. The court will be involved 48 hours into the emergency and will be supervising any quarantine and isolation authority. There is an incredibly limited risk of gross negligence happening before the court is involved. SENATOR GUESS asked the reason actual damages were not considered. She said if a traveler were to be mistakenly held in Alaska due to gross negligence, that person should be able to recoup all of the extra costs sustained by missing their travel arrangements. DR. MANDSAGER could not remember a debate on that question. 9:19:59 AM CHAIR SEEKINS stated airplanes often get delayed due to mechanicals. He agreed with the $500 per day limit on expenses. SENATOR GUESS asserted airlines would at least get the person on another flight without having to pay extra. CHAIR SEEKINS suspected the person delayed by quarantine would be extended the same courtesy by the airlines. 9:21:21 AM SENATOR GUESS referred to Section 4, paragraph 7 and asked Dr. Mandsager to explain the word "surveillance." DR. MANDSAGER stated DPH does not use the word "surveillance" in the same manner as the DOL does. Surveillance is used in the context of watching disease incidents in order to identify health information. Due to privacy protection laws and departmental policy the DPH does not release detailed information about the person being diagnosed. 9:23:54 AM DR. MANDSAGER stated his job is to provide data to policy makers so that they can debate the issues. 9:24:50 AM SENATOR GENE THERRIAULT asked whether the committee should consider changing "surveillance" to "surveillance of clinical data." 9:25:40 AM MS. DEBORAH ERICKSON, deputy director, DPH, advised the term "surveillance" is commonly used in public health practice and it does refer to monitoring of health conditions in communities. SENATOR GUESS asked Dr. Mandsager the statute or regulation that requires them to hold a person's medical information private. DR. MANDSAGER answered it was in AS 18.15.355-395. 9:27:54 AM DR. MANDSAGER added the other protection is the federal Health Information Portability and Accountability Act (HIPAA). He said there are very rigid rules for those who deal with identifiable health information and protecting the confidentiality of such. SENATOR GUESS stated for the record "identifiable health information" is information that can be tracked back to a person. SENATOR FRENCH asked whether radiation would be used in any stage of a quarantine process to treat an infected individual, or decontaminate any areas. DR. MANDSAGER said no. The reason hazardous materials are included in HB 95 is because there are situations such as Chernobyl. In a radiation accident people exposed can become a risk to others. 9:29:47 AM SENATOR GUESS asked why Section 4 paragraph 11 does not include the federal government. DR. MANDSAGER agreed the federal government should be included. CHAIR SEEKINS commented it is clearly implied. 9:31:30 AM MARIE DARLIN, AARP testified in support of HB 95. 9:32:47 AM MICHAEL MACLEOD-BALL, director, Alaska Civil Liberties Union, (AkCLU) said he does not oppose HB 95 but does have some concerns about the level of authority granted to the state. He asked the committee to consider adding a definition for the term "surveillance." He expressed concern there is no definition of the term "substantial risk to public health." During dire circumstances no one will question the government's authority to act but when the issue is unclear the government should not have the authority to isolate someone against their consent. Without a clear definition, the court will not have enough information to determine whether the authority exists. 9:35:26 AM MR. MACLEOD-BALL continued the DPH believes the phrase "substantial risk to public health" defines itself. The AkCLU believes the legislature should define the phrase in order to assist the court in their decision about whether a risk to public health exists. 9:37:59 AM SENATOR THERRIAULT pointed out Page 13 line 4 and line 21 clarifies the direction for the court. The Senate State Affairs Standing Committee addressed that concern and set a higher threshold to prove a person is clear of the disease and are no longer contagious. DR. MANDSAGER agreed with Senator Therriault. In order to ask that someone be quarantined the affidavit has to be very specific. He said when the DPH considers isolation and quarantine HB 95 will require that they consider every other method first. Ordinarily a person will be quarantined in their home. HB 95 contains much specificity that the DPH must consider before imposing on a person's individual liberties. 9:41:23 AM MR. NATHAN JOHNSON, division manager, DPH, testified in support of HB 95. He asserted most of Alaska's public health statutes are antiquated. It is imperative that Alaskans be prepared for a serious public health outbreak. He said the task of defining "public health risk" is a very difficult task because nearly every disease first presents with flu-like symptoms. Global travel and mutations create many different infectious diseases. Creating too stringent a definition could block the DPH from action on a future event. 9:44:05 AM MR. JOHNSON continued two weeks ago when Anchorage set up an emergency operations center to respond to a bio-terrorism infectious disease scenario they quickly came up against issues of emergency powers. It became apparent current statutes are inadequate and fail to provide guidance. HB 95 will help provide and protect individual rights. 9:45:12 AM MS. PATRICIA SENNER, registered nurse and chairperson, Alaska Nurses Association, testified in support of HB 95. The Association supports the inclusion of quarantine specifications and authorization. She expressed unhappiness with the use of the word "hazardous" on Page 16 line 18 as it is generally used in Occupational Safety and Health Administration (OSHA) terms and congers up images of dangling power lines and such. She proposed to change the wording to "poisonous or radioactive." 9:49:30 AM CHAIR SEEKINS suggested the term "hazardous material" includes "radioactive material." 9:51:12 AM DR. MANDSAGER affirmed the DPH tried to write the language broad enough to include every possible scenario and also narrow enough to not intrude into people's lives. He said he believes the intent is stated clearly. CHAIR SEEKINS closed public testimony. SENATOR GUESS noted Page 13 discusses the petition to the courts. She asked whether the confidentiality clause covers court records. DR. MANDSAGER admitted that was a good point. MR. BRANCH said HB 95 does not cover that but the court system routinely works with confidential files. SENATOR GUESS asked whether there is a requirement clearly set forth for the court to maintain confidentiality of DPH files. MR. BRANCH directed the committee members to Page 15 line 4, which lists the hearing rights of individuals. The individual can elect to have the hearing open to public, which means otherwise it will be closed and therefore provide confidentiality. SENATOR GUESS asked the penalty for violation of confidentiality in the court system. 9:55:39 AM MR. BRANCH stated he was not aware of a provision for that. DR. MANDSAGER asserted quarantine and isolation are rare. The DPH has sought quarantine and isolation authority twice in the past ten years. SENATOR CHARLIE HUGGINS asked whether there were any breaches of confidentiality within the DPH. DR. MANDSAGER stated he is not aware of any. SENATOR THERRIAULT asked the general penalty if confidentiality is breached by DPH. 9:57:38 AM DR. MANDSAGER directed the committee to Page 9 subsection (c) and (d). DPH individuals are subject to the criminal penalties as listed under AS 18.15.365. Additionally there are federal penalties for violating the HIPAA statutes. SENATOR GUESS clarified her question regarded the penalties of individuals in the court system since HB 95 specifically references the court's authority to decipher information. MR. BRANCH detailed Page 16 lines 24-29 provides a general criminal penalty for anyone who knowingly violates the provision of the isolation and quarantine statute. 10:00:57 AM SENATOR FRENCH speculated the case would not be filed like a sealed record since it would be a matter of public concern. MR. BRANCH reiterated since the respondent has a right to elect the court proceedings be open that infers otherwise the proceedings will be closed. A reporter would not be able to look at the filings to see whether there was an isolation and quarantine petition filed. SENATOR FRENCH commented that opinion was all based on one line. MR. BRANCH said there is no other way to allow a person to have that election. SENATOR FRENCH suggested the committee attempt to make a clear statement by adding the appropriate language. 10:03:36 AM DR. MANDSAGER said the model act, which was developed out of a national consultation looking at states' statutes across the country, doesn't include a secrecy provision. Confidentiality is important but the public process is also important. The reason for ex parte process in HB 95 is to allow for expediency during an emergency. SENATOR GUESS expressed concern that a person's entire health information would be open to the public. DR. MANDSAGER answered because of HIPAA the DPH would only be listing in the affidavit the necessary information that pertains to the public risk factor. 10:07:49 AM SENATOR GUESS noted Page 12 line 13 says "the department may isolate and quarantine individuals..." She asked the reason it is not the commissioner or commissioner's designee. DR. MANDSAGER explained the last 50 years of experience in DPH proves they have handled things exceptionally well. Their regulations list specifically who the individual is that would be responsible. The statute states the only people who can request an order are the state medical officer. 10:09:08 AM SENATOR THERRIAULT referred to Page 9, lines 4-19 and asked whether the language applies only to individuals in the DPH. DR. MANDSAGER answered yes. He said HIV data is kept on a separate computer that is not connected to the Internet. Only certain people have access to the data files. The DPH collects data through voluntary means and if confidentiality was ever breached they would lose their partner relationships and everything would fall apart. 10:12:00 AM SENATOR THERRIAULT asked whether the persons referred to on Page 16, line 24 would be exclusively from DPH. MR. BRANCH inferred it was not the intent to include others, only those within the department. Subsection (l) requires the department to adopt regulations to protect as much as possible the privacy rights of individuals subject to isolation and quarantine. SENATOR GUESS asked for clarification to whom the statute is referring to on Page 16, line 24. MR. BRANCH explained it is directed towards department personnel as opposed to persons outside the department. DR. MANDSAGER added the people who violate confidentiality would only be court people or those within DPH. 10:15:01 AM SENATOR GUESS asked whether the DPH collaborates with local municipalities when carrying out isolation and quarantine procedures. DR. MANDSAGER said they do not. SENATOR GUESS asked whether HIPAA oversees stipulation in isolation and quarantine status. DR. MANDSAGER did not know. 10:17:17 AM SENATOR FRENCH said he sees a real tension between the definitions of the crime "knowingly disclosing identifiable health information" on Page 9 and the petition that is filed on Page 13 and the definition of "identifiable health information." The public has some right to know when the state is taking action to quarantine someone. He suggested clarifying by stating the petition is confidential. 10:18:50 AM CHAIR SEEKINS said he does not see that conflict. MR. BRANCH asserted there is an effort in HB 95 to distinguish between identifiable health information and information in general terms. DR. MANDSAGER commented given enough cases, it couldn't be secret because the concern of the public and employers would be such. At some level the issue of confidentiality conflicts with the public good. On a case-by-case basis, the DPH would protect the individual as much as possible. 10:21:35 AM SENATOR FRENCH stated he is still not clear where the responsibility of confidentiality lies. He asked whether the DPH is under any obligation to tell the public. DR. MANDAGER informed the committee the DPH recently performed a bioterrorism exercise for the possible release of Anthrax on a cruise ship. HB 95 clarifies the DPH would use isolation and quarantine last. They would communicate public health notices first. It is a step-by-step progression that would happen within the community. 10:24:00 AM SENATOR GUESS asked when a person submits a petition as discussed on Page 13, how would they not be in violation of the provisions on Page 9. DR. MANDSAGER responded first the person has to elect to have the hearing open. The reason the DPH would acquire the information would be because it relates to a public health purpose. MR. BRANCH said when the court issues an opinion in a child-in- need-of-aid (CINA) appeal; they use the initials or a pseudonym name. Senator Guess's concern is that a state employee would get in trouble for sharing information the court would need about the individual in the petition. That is covered on Page 8, line 26 where the department is allowed to acquire and use identifiable health information if it directly relates to a public health purpose. The proposed AS 18.15.362 is designed to prevent the department from gathering and using information unnecessarily but where it serves a valid purpose they are allowed. 10:28:16 AM CHAIR SEEKINS closed public testimony. SENATOR HUGGINS moved SCS CSHB 95(JUD) from committee with individual recommendations and attached fiscal note(s). There being no objection, the motion carried.