Legislature(2005 - 2006)BELTZ 211

04/12/2005 03:30 PM STATE AFFAIRS

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved SCR 8 Out of Committee
Heard & Held
Bills Previously Heard/Scheduled
Moved CSSB 152(STA) Out of Committee
       CSHB 95(RLS)am-PUBLIC HEALTH DISASTERS/EMERGENCIES                                                                   
CHAIR  GENE THERRIAULT  announced  CSHB 95(RLS)am  to  be up  for                                                               
consideration and informed members it  is the House equivalent of                                                               
SB 75, previously heard by the committee.                                                                                       
4:03:51 PM                                                                                                                    
DAN BRANCH, Senior Assistant Attorney  General, Department of Law                                                               
(DOL), said he  provides legal representation to  the Division of                                                               
Public  Health. He  said DOL  approves of  the many  changes that                                                               
were made in  response to comments expressed  by various entities                                                               
and members of the House Judiciary and House Rules Committees.                                                                  
CHAIR THERRIAULT  reminded members  when SB 75  was heard  in the                                                               
Senate State  Affairs Committee,  members were  asked to  hold it                                                               
and await  the House version.   He  asked Dr. Mandsager  to bring                                                               
the committee up  to speed on the general issue  and then discuss                                                               
the changes made in the House.                                                                                                  
DR.  RICHARD  MANDSAGER,  Director, Division  of  Public  Health,                                                               
Department  of Health  and Social  Services (DHSS),  told members                                                               
CSHB  95(RLS)am reforms  Alaska's public  health laws.  Alaska is                                                               
the only  state in  the country  without quarantine  authority in                                                               
the case  of a  bioterrorism event.  Just such  an event  was the                                                               
major  reason for  the  bill's introduction  and  another was  to                                                               
address the Alaska  Law Review study in 2000  that found Alaska's                                                               
public health laws  to be antiquated. Most of those  laws date to                                                               
pre-territorial days  with a few updates  for specific epidemics.                                                               
In addition to  creating a statutory framework  to support public                                                               
health  mission  services  and   roles,  the  bill  states  clear                                                               
authority for control and updates the due process provisions.                                                                   
DR. MANDSAGER  said the House  made four categories of  change to                                                               
the  bill.  The first  category  pertains  to the  limitation  on                                                               
governmental powers.  Clearly identifying  those limits  has been                                                               
the focal point of discussion  in committees. The second category                                                               
deals  with  penalties  for  state  employees  for  violation  of                                                               
statutory provisions.  That was the  sole focus of debate  on the                                                               
House  floor.  The  third  category  is  personal  responsibility                                                               
regarding  issues raised  by Christian  Scientists and  the AkCLU                                                               
about  both  individual  responsibility and  choice.  The  fourth                                                               
category addresses miscellaneous changes.                                                                                       
4:09:48 PM                                                                                                                    
DR. MANDSAGER detailed  the specific amendments made  to the bill                                                               
as follows.   First,  the title  of the bill  was changed  to add                                                               
detail and clarity. Second, the  bill was amended to allow claims                                                               
for  damages  caused  by  medical  treatment  provided  by  state                                                               
employees. This  issue centered  on state  liability for  a state                                                               
employee  who  supervises  medical   treatment,  like  any  other                                                               
medical  practitioner in  the  state. The  decision  was to  hold                                                               
state employees  to the  same standard of  care as  other medical                                                               
practitioners.  Third, the  bill limits  the state's  immunity to                                                               
$500 per  day if it  isolates a  person with gross  negligence or                                                               
intentionally  violates  a  provision  governing  quarantine  and                                                               
isolation. The bill originally gave  the state total immunity. He                                                               
pointed out  a state employee  can only quarantine  an individual                                                               
without court supervision for a maximum of 72 hours.                                                                            
SENATOR  KIM ELTON  asked  if  state denial  of  access to  legal                                                               
counsel to  a quarantined person  would subject the state  to the                                                               
$500 per day penalty.                                                                                                           
MR. BRANCH  said that would be  a matter for the  court to decide                                                               
because   the  court   would  appoint   legal  counsel   for  the                                                               
DR.  MANDSAGER continued  to say  that the  division had  lengthy                                                               
discussions  with the  AkCLU  about the  acquisition  and use  of                                                               
identifiable health information. The  language in the bill limits                                                               
the  division's  access  to   medical  information  that  relates                                                               
directly to  a public health  purpose that cannot be  achieved at                                                               
least as well using non-identifiable  health information. He said                                                               
the division  can accomplish a  lot with  non-identifiable health                                                               
4:13:40 PM                                                                                                                    
CHAIR  THERRIAULT referred  to subsection  (2) on  page 3  of the                                                               
bill and asked  how damages caused by the failure  to establish a                                                               
quarantine would work.                                                                                                          
MR. BRANCH said  the main concern of the House  members who asked                                                               
for that  change was for an  individual to have some  recourse if                                                               
the state fails to provide the  rights set out in the statute. He                                                               
explained if someone  gets quarantined on an  emergency order and                                                               
the state fails to notify the  court within 48 hours, that person                                                               
would have  recourse to get $500  per day for that  violation. He                                                               
said the  House felt  that penalty was  necessary to  provide the                                                               
bill with "teeth."  The penalty does not apply to  the failure to                                                               
impose or  establish quarantine;  it applies when  quarantine was                                                               
imposed  and an  individual feels  his/her statutory  rights were                                                               
CHAIR THERRIAULT clarified that subsection (2) is a limitation.                                                                 
DR. MANDSAGER continued to say that  a further change is that the                                                               
collection of  health information  is limited  with a  higher bar                                                               
under AS 18.15.355-395 than other  limitations. He stated, "We're                                                               
dealing with  personal health problems.  We don't want  people to                                                               
be  branded with  some scarlet  letter  that they  have some  bad                                                               
problem and so on - that we  need to achieve a very high standard                                                               
if we're going to get information under this act."                                                                              
The bill also says that as  soon as the division is finished with                                                               
medical  information,  the  information  must  be  confidentially                                                               
expunged   immediately.  The   last   two   changes  pertain   to                                                               
misdemeanor  penalties  for   knowingly  disclosing  identifiable                                                               
health  information  or  for   knowingly  violating  a  provision                                                               
related to quarantine  and isolation. A compromise  worked out on                                                               
the House  floor was that  intentional disclosure  of information                                                               
is punishable by  a class A misdemeanor. That  is consistent with                                                               
other  statutes that  pertain to  state employee  confidentiality                                                               
4:18:12 PM                                                                                                                    
SENATOR  ELTON  asked  what  would happen  if  a  state  employee                                                               
discloses information and did not  know about the confidentiality                                                               
MR. BRANCH said  the district attorney wouldn't  prosecute such a                                                               
case because the employee's mental state could not be proven.                                                                   
SENATOR ELTON remarked ignorance of the law isn't an excuse.                                                                    
MR. BRANCH  responded the  words "knowingly"  and "intentionally"                                                               
are terms  of art defined  in AS 11.81.900. His  understanding is                                                               
that  to  act knowingly  means  the  employee  was aware  of  the                                                               
statutory  requirement and  acted anyway.  He offered  to discuss                                                               
the matter further with Senator Elton's staff.                                                                                  
SENATOR ELTON said his concern is  that a person who is given the                                                               
power of quarantine should know the law.                                                                                        
DR. MANDSAGER agreed  with Senator Elton that it  is the division                                                               
managers' responsibility to  make sure that staff  knows the law.                                                               
He continued describing the next  change made by the House, which                                                               
provides  the right  to  refuse treatment  if  the individual  is                                                               
willing to  take steps  to prevent the  spread of  a communicable                                                               
disease.  The   least  restrictive  alternative  would   be  used                                                               
whenever  possible when  isolating  or quarantining  individuals.                                                               
"Least  restrictive  alternative" is  defined  in  the bill.  The                                                               
division's experience  is that  most of time  the state  does not                                                               
have  to get  a  court  order to  isolate  an individual  because                                                               
people tend  to voluntarily agree.  The division always  needs to                                                               
pursue that route before taking court action.                                                                                   
DR. MANDSAGER said another issue  of concern was that quarantines                                                               
might  be  imposed  on  flu   victims  or  people  with  ordinary                                                               
infectious diseases. For  that reason, the bill  said the illness                                                               
must pose  a significant risk  to public health  before isolation                                                               
or quarantine can occur.                                                                                                        
SENATOR  ELTON pointed  out  that other  provisions  of the  bill                                                               
refer  to a  substantial  risk  to public  health.  He asked  why                                                               
"substantial" was used elsewhere.                                                                                               
DR. MANDSAGER noted the word  "substantial" remains in two places                                                               
in the  bill. He asked  Mr. Branch if  that matters from  a legal                                                               
CHAIR  THERRIAULT suggested  that for  consistency the  committee                                                               
should  make the  change now,  otherwise the  courts would  argue                                                               
about it for years.                                                                                                             
MR. BRANCH  said the division  worked with Legislative  Legal and                                                               
Research Services to try to get the same term used.                                                                             
DR. MANDSAGER  said the  word "substantial" is  used on  page 13,                                                               
line  19.  That  word  is   linked  to  risk  of  transmitting  a                                                               
contagious disease. The word "significant"  is used when it poses                                                               
a significant  risk to public  health. He again asked  Mr. Branch                                                               
if he thought that makes a difference from a legal standpoint.                                                                  
MR.  BRANCH   replied  there  is  justification   for  using  the                                                               
different  terms  even  though  they are  similar.  He  said  the                                                               
statement about discussing the matter  with Legislative Legal and                                                               
Research  Services  is  still  accurate.  He  believes  the  bill                                                               
appropriately distinguishes between the two terms.                                                                              
DR. MANDSAGER  said the  next change  states preference  for home                                                               
quarantine  or isolation  unless exceptional  circumstances exist                                                               
that would jeopardize  public health. The House  also requires on                                                               
page  14 that  an  affidavit  in a  court  petition must  contain                                                               
specific facts to support allegations.  The petition must include                                                               
all of the elements listed on page 14.                                                                                          
DR.  MANDSAGER  said the  next  change  removes denial  of  party                                                               
status  to  parents or  guardians  of  a  minor in  isolation  or                                                               
quarantine  proceedings. The  next change  adds a  paragraph that                                                               
says that a person exposed  to hazardous materials that can cause                                                               
serious  illness or  injury by  transmission to  others could  be                                                               
subject to quarantine or isolation.  He gave two examples: severe                                                               
radiation exposure and the Sarin  incident in Japan, where people                                                               
who were  exposed to the Sarin  gas could expose other  people to                                                               
it  when exhaling.  The division  is also  required to  submit an                                                               
annual report  to the  legislature on  its activities  under this                                                               
statute. Definitions  of "least  restrictive" and  "public health                                                               
purpose"  were added.  Indirect court  rule amendments  were also                                                               
added to address  the court changes. Last, a  provision was added                                                               
to  the bill  that urges  the division  to apply  for appropriate                                                               
funding  sources  related  to transforming  health  care  quality                                                               
through information technology.                                                                                                 
4:28:00 PM                                                                                                                    
CHAIR THERRIAULT asked Dr. Mandsager  which areas of the bill are                                                               
still contentious.                                                                                                              
DR. MANDSAGER said  the director of the AkCLU does  not feel that                                                               
the bill  goes far  enough regarding  the standards  the division                                                               
would  have  to  achieve  before   instituting  a  quarantine  or                                                               
isolation. The bill has  come a long way but he  would like it to                                                               
be more specific.                                                                                                               
SENATOR   WAGONER  asked   how  this   legislation  compares   to                                                               
quarantine legislation in other states.                                                                                         
DR. MANDSAGER  said quarantine laws  vary among the  states. Some                                                               
states  have  authority  that  can be  enhanced  or  provide  for                                                               
expedited performance  during an  emergency. Some  states updated                                                               
their emergency  powers after 911.  He said if one  compares this                                                               
bill to  the model  act that was  developed, this  legislation is                                                               
more  restrictive  regarding  governmental  powers  and  reflects                                                               
Alaska's   privacy  standards.   The  quarantine   and  isolation                                                               
provisions require  more steps  and court  action than  the model                                                               
MR. BRANCH  told members  Alaska's current  statute is  unique in                                                               
that it  does not  give the division  authority to  quarantine or                                                               
isolate for  anything but  SARS or TB.  In general,  other states                                                               
have  more  authority  because  it  is  necessary  to  deal  with                                                               
CHAIR THERRIAULT  asked if the enhanced  or expedited performance                                                               
authority that  other states have  is triggered by  a declaration                                                               
from the executive.                                                                                                             
DR. MANDSAGER said  that is usually the case, but  in some states                                                               
a commissioner of health has similar authority.                                                                                 
SENATOR ELTON recollected the  committee discussed the definition                                                               
of "condition  of public  health importance"  (page 19,  line 23)                                                               
because  obesity  could  fall under  that  definition.  He  asked                                                               
whether tightening that  definition by using the  word "acute" or                                                               
something that  more narrowly  defines collection  of information                                                               
was considered.                                                                                                                 
DR. MANDSAGER  said that  definition has  been discussed  and the                                                               
AkCLU discussed  a 2 or  3-tiered system. The  division struggled                                                               
with  that  question and  didn't  think  it  could come  up  with                                                               
language inclusive  enough to  do that.  The division  feels that                                                               
definition is balanced by the  other tests it must achieve before                                                               
it  can do  work  in the  areas of  "condition  of public  health                                                               
CHAIR THERRIAULT  asked if  the House  committees debated  how to                                                               
rein that definition  in and just couldn't come  up with workable                                                               
MR.  BRANCH said  it was  addressed but  in a  different context.                                                               
Using  Senator  Elton's example  of  establishing  obesity as  an                                                               
excuse  to  collect  private  information,   he  noted  that  the                                                               
language on  page 9, lines  10-18, limits the  division's ability                                                               
to collect identifiable information.                                                                                            
DR. MANDSAGER said all of the  amendments made in the category of                                                               
limitations of governmental powers  limit the division's power to                                                               
collect identifiable  health information,  to quarantine,  and to                                                               
isolate. The amendments  reflect the House's attempt  to strike a                                                               
balance rather than change the definition.                                                                                      
MR. BRANCH told  members that on page 9 a  provision was added to                                                               
AS  18.15.362,  which  limits   acquisition  of  information.  In                                                               
conjunction  with  AS  18.15.365,   it  is  designed  to  enhance                                                               
security safeguards.                                                                                                            
DR. MANDSAGER pointed out  that identifiable information wouldn't                                                               
be necessary  to get  obesity data; that  data could  be obtained                                                               
with non-identifiable information.                                                                                              
SENATOR ELTON  said he was  still struggling with  the definition                                                               
and asked that the AkCLU comment.                                                                                               
4:37:03 PM                                                                                                                    
CHAIR THERRIAULT asked Mr. Michael MacLeod-Ball to testify.                                                                     
MICHAEL MACLEOD-BALL, Executive  Director, Alaska Civil Liberties                                                               
Union  (AkCLU),  opined   that  this  version  of   the  bill  is                                                               
substantially  better  than  the original  version.  Although  he                                                               
appreciates  the efforts  the division  has  made to  accommodate                                                               
some of  the AkCLU's  concerns, it still  has some  concern about                                                               
the degree of privacy and  the amount of information the division                                                               
needs to  do its job and  the risks of limiting  that information                                                               
MR. MACLEOD-BALL said  the AkCLU continues to  be concerned about                                                               
the  following areas.  First, the  "conditions  of public  health                                                               
importance" enforcement provisions require  the division to prove                                                               
that a significant  risk to public health exists  to maintain its                                                               
quarantine  order on  people quarantined  against their  will. He                                                               
questioned  the enforcement  procedure  and  whether due  process                                                               
would  be  served  if  the  state  acts  improperly.  Adding  the                                                               
provisions that require the state  to prove an individual poses a                                                               
significant risk to public health  helps protect the individual's                                                               
rights. However, that  does not solve the  entire problem because                                                               
the  term "significant  risk to  public health"  is not  defined.                                                               
AkCLU's  concern   is  the  shift   in  importance  in   the  two                                                               
definitions. The  court would then decide  what "significant risk                                                               
to public  health" means because  the bill does not  provide that                                                               
The AkCLU  suggested including three concepts  in the definition:                                                               
one having to  do with the degree of contagion;  one having to do                                                               
with the severity  of the health threat; and the  third having to                                                               
do with the  means of transmission. He said the  division was not                                                               
willing  or able  to  come  up with  a  workable definition  that                                                               
included the three concepts.                                                                                                    
MR. MACLEOD-BALL  told members the  AkCLU believes  the provision                                                               
regarding access  to identifiable health information  remains too                                                               
broad in  AS 18.15.362. The AkCLU  would like to see  a provision                                                               
included that offers  protection against loss of job  and loss of                                                               
housing as a direct result of quarantine or isolation.                                                                          
MR. MACLEOD-BALL said  the ex parte language is still  an area of                                                               
concern because  the division could  get an order from  the court                                                               
without the  presence of or  representation for the  other party.                                                               
Because the  party would  already know  about the  hearings going                                                               
forward,  the   AkCLU  doesn't   see  the   need  for   ex  parte                                                               
4:44:08 PM                                                                                                                    
SENATOR  ELTON  thanked  all participants  for  the  effort  they                                                               
expended on  the legislation. He  then asked Mr.  MacLeod-Ball if                                                               
he was suggesting that the  lack of a definition for "significant                                                               
public risk"  could be  a complicating  factor because  the state                                                               
could end  up in  court with  a judge  who is  not a  health care                                                               
professional  deciding  what  constitutes  a  significant  public                                                               
health risk.                                                                                                                    
MR. MACLEOD-BALL  said he  believes it  would be  preferable that                                                               
medical  experts  find the  parameters  of  where the  court  can                                                               
operate in  this area. From  the AkCLU's perspective, it  is more                                                               
of  a  question of  making  sure  the  person  with AIDS  is  not                                                               
isolated.  Without  a definition,  an  activist  judge or  public                                                               
health  official  could  use  the   relative  ambiguity  of  that                                                               
definition and  apply it to  circumstances other than what  it is                                                               
intended for.  He emphasized that  tightening the  definition now                                                               
will prevent ambiguity later.                                                                                                   
SENATOR ELTON asked  Mr. MacLeod-Ball if he sees  anything in the                                                               
bill  that would  allow  the  state to  prevent  access to  legal                                                               
MR. MACLEOD-BALL said  he believes the Office  of Public Advocacy                                                               
(OPA) is given authority to  represent individuals under both the                                                               
testing order and  the quarantine order section. He  said how OPA                                                               
would do that in remote areas is questionable.                                                                                  
CHAIR  THERRIAULT asked  Dr. Mandsager  how much  discussion took                                                               
place  about the  possibility of  an individual  losing a  job or                                                               
housing while in isolation.                                                                                                     
DR.  MANDSAGER  said  the  division  has had  a  fair  amount  of                                                               
discussion with  the Department of  Law and the AkCLU  about that                                                               
issue.  He said  the division's  primary  job is  to protect  the                                                               
public's  health. The  number of  days a  person can  be isolated                                                               
without court  involvement is very  limited and the  division can                                                               
only  isolate  an  individual without  court  involvement  in  an                                                               
emergency. Also, if  isolation is imposed and a  person is unable                                                               
to work, the  question is whether the state should  be liable for                                                               
damages. The  judgment to date  is that  the state should  not be                                                               
CHAIR THERRIAULT asked  about the AkCLU's concern  about the loss                                                               
of  housing  and  whether  that   should  be  addressed  in  this                                                               
legislation. He questioned whether the  issue centers on a person                                                               
being evicted by a landlord.                                                                                                    
MR.  MACLEOD-BALL said  AkCLU's  concern  is that  discrimination                                                               
might befall people  who are in isolation or  quarantine. He said                                                               
it might  be better to  have that issue  be the subject  of other                                                               
legislation but this legislation is available now.                                                                              
CHAIR  THERRIAULT said  the potential  for  those problems  exist                                                               
MR. MACLEOD-BALL agreed.                                                                                                        
SENATOR ELTON said  with regard to the  definition of significant                                                               
public health risk, it makes sense  to have some kind of a recipe                                                               
for  the  court   to  follow  so  that   judges  make  consistent                                                               
DR. MANDSAGER asked Senator Elton  if his concern is mostly about                                                               
the  significant  risk to  public  health  in the  isolation  and                                                               
quarantine  section, and  not as  much about  the tests  required                                                               
before the division can collect identifiable health information.                                                                
SENATOR  ELTON said  he is  concerned about  both but  the bigger                                                               
issue is the quarantine issue.                                                                                                  
DR. MANDSAGER asked if the  tests for acquisition of identifiable                                                               
public health information on page 9, lines 13-18, make sense.                                                                   
SENATOR ELTON  replied, "It seems  to me  that number 3  would be                                                               
the squishy one. You might have  more knowledge about that than a                                                               
judge would - about what processes otherwise could be used."                                                                    
DR. MANDSAGER  said this  bill has a  much better  definition and                                                               
better  restriction on  the collection  and  use of  identifiable                                                               
health information  than the  current statute.   Although  it may                                                               
not be  perfect, the division  believes its practices  would hold                                                               
up to  scrutiny. He referred  to page 13,  line 6, and  said with                                                               
regard to  isolation and  quarantine, the  division has  not been                                                               
able to come  up with a definition of significant  risk to public                                                               
health yet.                                                                                                                     
4:54:18 PM                                                                                                                    
CHAIR THERRIAULT said he did not intend to move the bill today.                                                                 
MR.  MACLEOD-BALL pointed  out the  phrase  "substantial risk  to                                                               
public health" is on page 14, line  5 and is in the section about                                                               
allegations that  must be included  in the petition. He  said use                                                               
of "significant risk  to public health" on page 16,  line 2 is of                                                               
most concern  to AkCLU because  that is  what the court  needs to                                                               
CHAIR THERRIAULT  asked members  if they  are satisfied  with the                                                               
explanation that "substantial"  is tied to the  transmission of a                                                               
disease on  page 13, but  it is not  tied to transmission  on the                                                               
next  page.  He  suggested  that staff  discuss  with  the  legal                                                               
drafters the need to use a consistent phrase.                                                                                   
4:56:28 PM                                                                                                                    
CHAIR  THERRIAULT stated  that the  committee  would likely  take                                                               
final action on CSHB 95(RLS)am on Thursday.                                                                                     

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