Legislature(2005 - 2006)BUTROVICH 205

04/26/2005 08:30 AM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved SCS CSHB 95(JUD) Out of Committee
Scheduled But Not Heard
Moved CSSB 12(STA) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 20(2nd JUD) Out of Committee
        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                                                                                                                        
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                                         

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