Legislature(1995 - 1996)
03/28/1995 02:09 PM House HES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE HEALTH, EDUCATION AND SOCIAL SERVICES
STANDING COMMITTEE
March 28, 1995
2:09 p.m.
MEMBERS PRESENT
Representative Cynthia Toohey, Co-Chair
Representative Con Bunde, Co-Chair
Representative Al Vezey
Representative Gary Davis
Representative Norman Rokeberg
Representative Caren Robinson
Representative Tom Brice
MEMBERS ABSENT
None
COMMITTEE CALENDAR
* HB 214: "An Act relating to the maintenance by health care
providers of medical records in an electronic format."
PASSED OUT OF COMMITTEE
* HB 274: "An Act relating to the state's tuberculosis control
program, including provisions for certain penalties; and
providing for an effective date."
PASSED OUT OF COMMITTEE
HB 226: "An Act permitting the provision of different retirement
and health benefits to employees based on marital
status."
HEARD AND HELD
(* First public hearing)
WITNESS REGISTER
GARY PESKA, Representative
Alaska State Hospital and Nursing Home Association
P.O. Box 240185
Douglas, AK 99824
Telephone: (907) 586-1790
POSITION STATEMENT: Testified in support of HB 214.
CHAR THOMPSON, President
Alaska Health Information Management Association
HC01, Box 6201-AB
Palmer, AK 99645
Telephone: (907) 762-0273
POSITION STATEMENT: Testified in support of HB 214.
ELMER LINDSTROM, Special Assistant to Commissioner Perdue
Department of Health and Social Services
Alaska Office Building
350 Main Street, Room 229
Juneau, AK 99801
Telephone: (907) 465-3030
POSITION STATEMENT: Testified in support of HB 214.
DR. PETER NAKAMURA, Director
Division of Public Health
Department of Health and Social Services
350 Main Street, Room 403
Juneau, AK 99801
Telephone: (907) 465-3090
POSITION STATEMENT: Testified in support of HB 274.
KRISTEN BOMENGEN, Assistant Attorney General
Criminal Division
Department of Law
Room 200, Fuller Building
4th and Harris
Juneau, AK 99801
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on HB 274.
REPRESENTATIVE PETE KELLY
Room 513, State Capitol
Juneau, AK 99801
Telephone: (907) 465-2327
POSITION STATEMENT: Presented sponsor statement for HB 226.
MILDRED BOESSER, Representative
Parents, Families and Friends of Lesbians and Gays
City and Borough of Juneau Human Rights Commission
17585 Lena Loop
Juneau, AK 99801
Telephone: (907) 789-1445
POSITION STATEMENT: Testified against HB 226.
MARGARET BERCK, Attorney
American Civil Liberties Union
227 7th Street
Juneau, AK 99801
Telephone: (907) 586-3309
POSITION STATEMENT: Testified against HB 226.
TALMADGE W. BAILEY, Board Member
Southeast Alaska Gay and Lesbian Alliance
P.O. Box 34542
Juneau, AK 99803
Telephone: (907) 790-2519
POSITION STATEMENT: Testified against HB 226.
MARK TUMEO, Professor
University of Alaska Fairbanks
1324 Summit Drive
Fairbanks, AK 99712
Telephone: (907) 474-6090
POSITION STATEMENT: Testified against HB 226.
SARAH BOESSER, Board Member
Committee for Equality
P.O. Box 34542
Juneau, AK 99803
Telephone: (907) 789-9604
POSITION STATEMENT: Testified against HB 226.
DANIEL COLLISON, Vice President
Southeast Alaska Gay and Lesbian Association
P.O. Box 21466
Juneau, AK 99802
Telephone: (907) 789-5001
POSITION STATEMENT: Testified against HB 226.
JOHN GAGUINE, Assistant Attorney General
Governmental Affairs Section, Civil Division
Department of Law
P.O. Box 110300
Juneau, AK 99811
Telephone: (907) 465-2127
POSITION STATEMENT: Testified on HB 226.
MARYLOU BURTON, Director
of Statewide Budget
University of Alaska
Juneau, AK 99801
Telephone: (907) 463-3086
POSITION STATEMENT: Testified in support of HB 226.
MARY GRAHAM, Interested Citizen
235 5th Street, Number 2
Juneau, AK 99801
Telephone: (907) 586-4938
POSITION STATEMENT: Testified against HB 226.
PREVIOUS ACTION
BILL: HB 214
SHORT TITLE: MEDICAL RECORDS IN ELECTRONIC FORM
SPONSOR(S): REPRESENTATIVE(S) G.DAVIS
JRN-DATE JRN-PG ACTION
03/01/95 530 (H) READ THE FIRST TIME - REFERRAL(S)
03/01/95 530 (H) HEALTH, EDUCATION & SOCIAL SERVICES
03/28/95 (H) HES AT 02:00 PM CAPITOL 106
BILL: HB 274
SHORT TITLE: TUBERCULOSIS CONTROL
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
03/22/95 852 (H) READ THE FIRST TIME - REFERRAL(S)
03/22/95 853 (H) HES, JUDICIARY
03/22/95 853 (H) 4 ZERO FNS (2-ADM, LAW, DHSS) 3/22/95
03/22/95 853 (H) GOVERNOR'S TRANSMITTAL LETTER
03/28/95 (H) HES AT 02:00 PM CAPITOL 106
BILL: HB 226
SHORT TITLE: MARITAL STATUS AND RETIREMENT BENEFITS
SPONSOR(S): REPRESENTATIVE(S) KELLY, Rokeberg
JRN-DATE JRN-PG ACTION
03/03/95 565 (H) READ THE FIRST TIME - REFERRAL(S)
03/03/95 565 (H) STATE AFFAIRS, HES, JUDICIARY
03/18/95 (H) STA AT 10:00 AM CAPITOL 102
03/18/95 (H) MINUTE(STA)
03/20/95 808 (H) STA RPT 4DP 1AM
03/20/95 808 (H) DP: JAMES, PORTER, GREEN, IVAN
03/20/95 808 (H) AM: ROBINSON
03/20/95 808 (H) ZERO FISCAL NOTE (ADMIN/ALL DEPTS)
03/20/95 808 (H) REFERRED TO HES
03/28/95 (H) HES AT 02:00 PM CAPITOL 106
ACTION NARRATIVE
TAPE 95-28, SIDE A
Number 000
CO-CHAIR CYNTHIA TOOHEY called the meeting of the House Health,
Education and Social Services Standing Committee to order at 2:09
p.m. Present at the call to order were Representatives Davis,
Bunde, Toohey and Robinson. She announced a quorum was present to
conduct business, and read the order of the bills to be heard. At
2:10 p.m. Representative Rokeberg joined the meeting.
HB 214: MEDICAL RECORDS IN ELECTRONIC FORM
Number 087
REPRESENTATIVE GARY DAVIS, sponsor of the bill, said HB 214 will
clarify that electronically stored medical records on computer
terminals are legally acceptable in lieu of records on paper.
Hospitals and nursing homes are moving toward paperless offices in
an effort to promote efficiency. However, some providers are
hesitant to implement the electronic retention and maintenance of
medical records without a hard copy back up, due to the lack of
explicit legal authority.
REPRESENTATIVE DAVIS continued that the current statute relating to
medical records neither prohibits nor permits them to be kept
electronically. A legal memorandum from Legislative Legal Services
indicative of health care providers concerned the ability to
maintain medical records which is not clearly defined in statute or
regulation.
REPRESENTATIVE DAVIS said HB 214 would lend clarity to the medical
records statute. The current statute just says medical records
will be kept. That could be interpreted to mean records can be
kept electronically or the old-fashioned way, on paper. Some
institutions are hesitant to utilize the new and expanding
technology of computer storage.
REPRESENTATIVE DAVIS said this bill makes it legal and clarifies
the statute. This is not a mandate, it only says records may be
stored in this manner should the institution decide to do so.
Number 236
CO-CHAIR CON BUNDE assumed where the bill says, "maintain and
preserve," it means all facilities for backup will be available.
This is in case the system crashes. In such a case, information
will still be available somehow.
REPRESENTATIVE DAVIS said the whole system would be in place to
protect confidentiality through computer access. In addition,
backup, the current required length of time to maintain records,
and security will all be included.
CO-CHAIR BUNDE said he has heard stories about hackers who
challenge systems because they are there. Co-Chair Bunde assumes
these systems would not be on-line and, therefore, accessible to
hackers. He asked if Representative Davis had an idea about how
systems might be designed to thwart hackers.
REPRESENTATIVE DAVIS said discussions he has had in that regard
relate to various methods of maintaining confidentiality. There
are different ways to access records. There is fingerprint
identification access and other types of technology available. It
is the understanding of Representative Davis that since this is
such a critical area in which to maintain security, the regulations
would mandate the highest form of security available.
REPRESENTATIVE TOM BRICE joined the meeting at 2:12 p.m., and
applauded the bill.
Number 411
REPRESENTATIVE NORMAN ROKEBERG asked if the provision for mandating
tape backups and copies of data would be perhaps micromanagment.
Representative Rokeberg asked if Representative Davis would be
willing to consider that possibility.
REPRESENTATIVE DAVIS thought existing regulations concerning how a
hospital or nursing home keeps records are already stringent. The
paperwork done now would simply be done electronically. This would
include backup and all the other proper requirements. There are
those who are testifying on this bill who could properly address
those questions.
CO-CHAIR BUNDE spoke to clarify his own understanding. Nothing in
this bill would absolve the medical industry from the current
provisions for guaranteeing privacy.
REPRESENTATIVE DAVIS said that is the intent of this bill.
CO-CHAIR BUNDE asked if it would be the responsibility of the
hospital to design a system that is safe and private to insure
confidentiality.
REPRESENTATIVE DAVIS reiterated that is the intent of this bill.
Number 530
REPRESENTATIVE BRICE said he believes that considering the
advancements that take place in computer technology, to put into
statute specifically how this storage will be accomplished as far
as backup information would be inefficient. Any such provisions
would be outdated very quickly. Considering the speed of
technology development, it is probably best to leave well enough
alone and understand that general computer practices dictate
confidentiality to begin with.
Number 598
GARY PESKA, Representative, Alaska State Hospital and Nursing Home
Association (ASHNHA), said his organization supports HB 214 for all
the reasons stated by Representative Davis in his sponsor
statement. Mr. Peska offered to answer any questions HESS
Committee members may have.
Number 630
CHAR THOMPSON, President, Alaska Health Information Management
Association, which was previously known as the Alaska Medical
Records Association, said the AKHIMA totally supports HB 214. Ms.
Thompson has provided written testimony in support of this
legislation, and has listed some of the reasons her association
considers this legislation to be necessary.
MS. THOMPSON said computer-based patient records are being used
throughout the country to improve the quality of patient care and
to improve the documentation of patient care. It is necessary to
provide the legal authority in this state to allow health care
providers to maintain and preserve the medical records in an
electronic format. However, currently, as Representative Davis
noted, there is some confusion about whether or not it is legal to
maintain records in an electronic format without also maintaining
paper-based records also.
MS. THOMPSON said computer-based records are essential to
supporting the clinical decision-making process in patient care.
Maintaining information in an electronic format will allow health
care providers quicker access to essential information when a
patient walks into the door of a medical facility.
Number 724
MS. THOMPSON was sure all HESS Committee members were aware of the
scenario of a patient coming into the emergency room and their
records are not available for five minutes to 30 minutes.
Meanwhile, the medical personnel must treat that patient without
knowing, for example, that they are diabetic or have special
medical conditions that need attention.
MS. THOMPSON said relying on paper-based records means personnel
must wait for the records to arrive in the emergency room, or there
must be a reliable way to store the records in the facility, or the
patient must be aware enough to provide their medical history.
There are times, perhaps, when care suffers because the records are
not available. Also, paper-based records rely on prompt filing of
diagnostic tests. There are different case scenarios where
diagnostic tests are not filed promptly, and physicians have to
reorder a lab test to get the results he or she needs.
MS. THOMPSON continued that electronic patient records allow health
care providers to utilize clinical management computer systems
which will automatically alert them if there are any drug allergies
when they prescribe a medication. That will lead them to a new
method of treatment. To utilize those clinical management
programs, the patient's medical history must be input into the
computer.
Number 822
MS. THOMPSON added currently, health information management
professionals are required to print out all information for
computers and have the health care providers sign that form in
order to file it in the paper-based medical records. This is a
very time consuming and expensive process which does nothing to add
to the quality of patient care or add to the quality of the
documentation.
MS. THOMPSON said proponents of health care reform stress it is
imperative to reduce health care costs. Instead, when confined to
using electronic records and then also printing the reports, having
them signed and then filed, costs are added.
MS. THOMPSON said there is also an increasing move toward
communication between health care systems. One patient may go from
a hospital to a clinic to a nursing home. Each of those facilities
and health care providers keep their own paper-based records. As
patients move between health care systems, electronic patient
records will facilitate the continuity of medical care throughout
each provider. This will be without the necessity of duplicating
assessments, diagnostic tests and medical records in each facility.
This will be by allowing the transfer of electronic patient
information with the patient.
Number 918
MS. THOMPSON noted that all of this can only come about in an
efficient and effective way if the need to also maintain a paper-
based medical record system can be eliminated. There were concerns
expressed earlier by Co-Chair Bunde regarding the security and the
access of those records. Ms. Thompson assured him she was very
concerned about this also. Not only is she a proponent for
electronic patient records, but she is also probably the best
advocate for patient confidentiality. Her organization has worked
with the Department of Health and Social Services (DHSS), Health
Facility Licensing and Certification Division, to develop
regulations for electronic medical records. These regulations are
in draft format currently.
MS. THOMPSON said these draft regulations will allow for patient
information to be maintained in electronic format and provide
adequate security and backup to ensure the proper retention of
medical record data. There will also be provisions regarding
confidentiality of patient information. Draft regulations have
been developed which address essential issues relating to authentic
identification, confidentiality, access, retention and security.
Ms. Thompson agrees, however, that these provisions should not be
in statute. As things change in the electronic industry, new
technology and programs become available. She said she would like
the ability to update regulations to reflect the current
technology. It is much easier to update regulations than statutes.
Number 1019
CO-CHAIR TOOHEY said Ms. Thompson covered that very well. Co-Chair
Toohey, who is not a computer wizard, said it is a little
frightening to think medical records are going to be possibly lost
in cyberspace. However, Ms. Thompson has allayed those fears.
MS. THOMPSON said one of the recommendations that has been made is
for backup to be maintained off-site. This is in case there is an
internal disaster. In such a case, a backup copy will be available
off-site. One of the things that it will also do is provide more
security than is currently available. Currently, if a medical
record is lost due to a fire or other disaster in the hospital,
there is no way of retrieving that medical record.
Number 1059
CO-CHAIR TOOHEY asked if back-up material was currently kept in a
fire-proof container at the hospitals.
MS. THOMPSON did not exactly remember the exact regulations, but
felt that was the normal procedure for a health information
management organization services.
Number 1096
ELMER LINDSTROM, Special Assistant to Commissioner Perdue, DHSS,
said the department has reviewed HB 214 and believes that allowing
health care providers to maintain medical records in an electronic
format is desirable for a number of reasons. The department has
noted that increasingly, health care providers are maintaining
patient records, billing information and other medical records in
automated systems.
MR. LINDSTROM said the electronic format allows for increased
productivity in updating and maintaining the records, and it also
allows for multiple-site access to medical records. This has
applications to tele-medicine. For those reasons, the DHSS feels
this is a desirable development.
MR. LINDSTROM said the DHSS will be charged under the bill with
developing regulations to implement the potential law. The DHSS
would be addressing the issues that have previously come up which
relate to patient informed consent and records in that area, some
federal records requirements, record keeping for vaccines, and so
forth. However, the DHSS is confident these regulations can be
promulgated to everyone's satisfaction. The DHSS appreciates the
flexibility to take that approach.
Number 1163
REPRESENTATIVE DAVIS said the development and cost of developing
regulations is a big concern to everyone. The state watches every
fiscal note that comes along. He noted that Char Thompson has some
draft regulations available, and asked if those could be used on a
professional consulting basis. Representative Davis asked Mr.
Lindstrom if he saw those draft regulations as expediting the DHSS
process of promulgating regulations.
MR. LINDSTROM said the DHSS did submit a zero fiscal note for this
bill. There are costs associated with developing regulations, but
those can be accommodated with the existing budget. The DHSS will,
of course, take advantage of every resource in the community. The
resources of the association and others will be most helpful as the
DHSS drafts its regulations.
CO-CHAIR TOOHEY closed the meeting to public testimony and asked
for the wish of the committee. She also announced that
Representative Vezey had joined the meeting at 2:30 p.m.
Number 1210
CO-CHAIR BUNDE made a motion to move HB 214 from committee with
accompanying fiscal notes and individual recommendations. Hearing
no objection, the bill passed from committee.
HB 274: TUBERCULOSIS CONTROL
Number 1279
CO-CHAIR TOOHEY indicated HB 274 was sponsored by the Rules
Committee by request of the Governor's Office.
DR. PETER NAKAMURA, Director, Division of Public Health, DHSS, said
he was very happy to present HB 274. Tuberculosis (TB) is a
recurring problem, and has been receiving increased attention. In
addressing the most recent outbreak of TB in this state, the DHSS
encountered a number of issues that led it back to the original
statutes on TB. Those statutes were found to be inadequate and in
need of revision. One of the major issues that needed to be
revised was to assure that as the isolation of recalcitrant
patients is addressed, due process is not overlooked. It is
important patients' rights are adhered to and recognized in that
situation.
DR. NAKAMURA asked to run through HB 274 by sections, and highlight
the key issues within each section. Section 1 is basically a
definition of what is needed to protect the public health from
persons with TB who pose a threat. These are individuals who are
recalcitrant, and are either unable or unwilling to conform to the
recommendations for treatment. This section also addresses
voluntary care and monitoring to assure a system is in place in the
state for identifying patients who are diagnosed as having TB, and
assuring that their treatment is monitored until the point of
completion.
Number 1367
DR. NAKAMURA said if a patient goes from place to place, their
records should follow them so providers in the new communities will
be able to address their problems.
DR. NAKAMURA said the special concern of his division is that if
there are patients who are identified and begin treatment,
subsequently stop treatment, start again, and stop again, there is
a very real danger of developing a drug-resistant strain of TB.
Once that happens, the cost of care and the management is
significantly increased.
Number 1396
DR. NAKAMURA continued with Section 2. He said it is reminiscent
of a previous bill, but with some amendments. The amendments are
just to some of the terms. For instance, "sanitorium" is changed
to "facilities." Section 3 also refers to some amendments in the
existing bill. Again, there are wording changes. One term used is
"tuberculars." This is replaced with "persons with tuberculosis."
DR. NAKAMURA said Section 4 refers to the reporting of new cases
and the cessation of treatment. This goes back to the issue of
patients who are first diagnosed and records are placed into a
system which documents the disease. It relates to the existence of
a system which follows up and contacts the patient periodically.
This is to make sure that when a patient is on treatment, that
treatment is carried out to completion.
DR. NAKAMURA noted there is a requirement that there be written
documentation in adherence to records that the State Medical
Officer will have access to the patients records for
epidemiological purposes. It is also required that there is
contact follow up, and there is reporting of the disease to the
State Medical Officer. Examinations of suspected cases is also
mandated.
Number 1468
DR. NAKAMURA said Section 5 has an amendment changing the
examination and reporting of those with TB from licensed physicians
in the state to those "who may lawfully practice" in the state.
The key in that issue is there are physicians who are with the
federal health care system who lawfully can practice in the state,
but who are not necessarily licensed in the state.
DR. NAKAMURA continued that Section 6 repeals a section and re-
enacts portions of it. This section refers to the ability to
isolate or quarantine individuals who are less than willing to
follow the recommended therapy. Recently, there was a situation in
an Alaskan community where a patient was infected and infectious,
and did not wish to or could not conform to therapy. The
requirement was that he be isolated in the quarantine state to
assure that treatment was administered.
Number 1523
DR. NAKAMURA said this section also gives assurance of due process.
If a patient is isolated or quarantined through the order of a
medical officer of the State Health Department, this patient has a
right to ask for a repeal of that isolation within five days.
There has to be a review of the issue. Within 60 days, there has
to be a type of court hearing on the case, and a determination must
be made whether the patient is to be retained in isolation or not.
DR. NAKAMURA explained that basically, this assures due process for
the patient.
Number 1550
CO-CHAIR BUNDE had a question about the isolation process. He
asked if patients are isolated in a hospital, in their own homes,
or where.
DR. NAKAMURA said the language is written such that if it is
feasible to isolate the individual at his or her home, that can be
done. However, the isolation can also take place at a medical
facility or, in some situations where neither of the two are
available, the patient could be quarantined in any other facility
that could provide the necessary isolation.
CO-CHAIR BUNDE asked if a correctional facility could be used.
DR. NAKAMURA said yes.
Number 1584
DR. NAKAMURA said Section 7 allows the emergency detention of a
patient, and provides for due process rights. Section 8 is an
extension of Section 6, which allows for the quarantine/isolation
of a patient, and the due process. Section 9 allows for the
treatment of patients who have strong religious convictions.
Section 9 allows this to be taken under consideration, but with the
assurance that the public is protected from this individual in some
setting that would limit public exposure.
CO-CHAIR TOOHEY asked if that meant unless there is a miracle as TB
is not going to cure itself, people of a certain religious order
will have to be confined for the rest of their lives.
DR. NAKAMURA said the wording is such that the special needs of
those people can be considered. It does not say the state is
mandated to excuse them from necessary treatment, if that is felt
to be necessary.
Number 1659
CO-CHAIR TOOHEY said that in many Asian countries, people riding
bicycles wear surgical-style masks. She asked if those masks have
any deterrent on TB at all.
DR. NAKAMURA replied that the masks could have some degree of
deterrent if the mask is of such a nature that it can catch most of
the droplets. This is an airborne disease, and many of the
organisms are transmitted through droplets. This is not a foolish
precaution, it is definitely a measure of protection.
DR. NAKAMURA continued with Section 10. It is an amendment for the
protection of school children. Basically, it says teachers should
be skin tested annually. In the case the teacher already skin
tests positive, other examinations be administered. These could
include either chest X-rays or sputum samples.
Number 1701
CO-CHAIR BUNDE said that was the practice at one time in Alaska,
but those requirements were dropped. Now they are going to be
reinstated.
DR. NAKAMURA said at least within the school setting, those are
going to be reinstated. There is already a requirement that
children in the rural areas be tested on an annual basis.
CO-CHAIR BUNDE asked if Dr. Nakamura or the state has ever found a
teacher with active TB.
DR. NAKAMURA did not have an answer to that question, but he
offered to get it for Co-Chair Bunde.
CO-CHAIR BUNDE knows they have tested for TB for years, and he
didn't know if it was for the protection of teachers or children.
DR. NAKAMURA said it is a system of identifying cases of TB that
may be recurring in a community that previously was free of TB.
One of the sentinel events can be a child who turns positive. This
allows the medical agencies to try and find the source of the
infection.
Number 1742
DR. NAKAMURA summarized Section 11. It is the last amendment, and
it is an inclusion of what was in the previous bill. It allows for
penalties for violations of the aforementioned requirements. Such
violations would be a misdemeanor.
CO-CHAIR TOOHEY asked what the penalties were for such a
misdemeanor.
Number 1795
REPRESENTATIVE VEZEY asked what class the misdemeanor would fall
under, or if it was unclassified.
CO-CHAIR TOOHEY said it was a class A misdemeanor.
REPRESENTATIVE VEZEY that would carry a six-month penalty. A
person could be confined for six months, whether in a jail or
hospital.
Number 1795
REPRESENTATIVE VEZEY thought TB had been eradicated from Alaska a
few generations ago. He wondered how he is going to explain to
people in Fairbanks and the North Pole area that people are being
incarcerated or confined because they are ill. He asked Dr.
Nakamura what he would tell them if he were Representative Vezey.
DR. NAKAMURA replied he would tell them that the patients are not
being incarcerated. In fact, most patients with TB will not be
placed in such facilities. It is only patients who are
recalcitrant, and who refuse to conform to the necessary public
health practice to avoid infecting the rest of the public. Those
patients who are more than willing to take their medications and
follow the recommended therapies would never be affected by this
requirement.
REPRESENTATIVE VEZEY said therefore, if a person is diagnosed with
infectious TB, as long as that person is following medical
treatment, there is no reason to isolate that person from society.
DR. NAKAMURA said that was true. There may be a need to initially
keep the patient from exposing the rest of the public to TB until
the medication has taken effect to the point that the patient is no
longer infectious.
Number 1664
REPRESENTATIVE VEZEY asked how long that would take.
DR. NAKAMURA said the time can vary from a period of one to two
weeks to a period of several months depending on the degree of the
infection.
REPRESENTATIVE VEZEY noted that any person under medical treatment
can possibly expose other members of society for about two weeks.
However, this bill is not targeted toward those people.
DR. NAKAMURA said this bill is really targeted to those who refuse
to conform to therapy. For example, his office encountered a
person during the most recent outbreak of TB who refused to take
medication until he was quarantined and put under direct observed
therapy. There are some individuals who are just unable to manage
their own destiny. This may be because of substance abuse or for
other reasons. These individuals either cannot or will not conform
to therapy.
Number 1908
REPRESENTATIVE VEZEY said therefore, it appears there are two
classes of people that are involved here. There are those who do
not have the faculties to conduct themselves in a responsible
manner, and there are those who might, for some reasons of
conviction, not want medical treatment.
DR. NAKAMURA agreed. He said there is a need to make sure others
are not exposed to that individual without some sense of
protection.
REPRESENTATIVE VEZEY asked about the TB cycle. He asked how long
a person lives with disease.
DR. NAKAMURA said that varies. TB can manifest itself in many
different ways. A person can be exposed to TB, get an infection,
and have nothing more than a converted skin test. Those people
never actually get the disease to the point they are infectious.
There is always a possibility, about an 18 percent chance, that if
you are not treated at that point, you could break down and become
infectious with TB.
DR. NAKAMURA explained there are others who, especially if they are
weakened by other diseases or illnesses, can have the TB infection
spread through their blood. The TB can infect their brain, the
kidneys, the heart, the bones, etc. There are many ways that TB
can present itself. How it presents itself and what other
underlying conditions the patient has can determine the length of
survival.
Number 1976
REPRESENTATIVE VEZEY resolved that there was no absolute mortality
table. One cannot predict how long the disease will run.
DR. NAKAMURA said no. Some people will have the disease their
whole life, and have the continual potential to infect others, but
they will not progress to the point where they will die from the
disease.
REPRESENTATIVE VEZEY asked if anyone who tests positive for TB
could conceivably develop the symptoms of the disease at any time.
DR. NAKAMURA said TB is a funny disease. When a person is
initially infected, almost everyone has the ability to control and
confine that infection in a way that the disease does not become
active. The disease can then progress or spread to others. One
may find out he or she had the disease, and never knew it until a
chest X-ray showed calcification. Or, perhaps a person was
actually infected in the past but they never really got sick. A
certain percentage of these people will then either break down or
progress to an active disease. A person can either eventually die
from the disease or be severely impaired.
Number 2032
REPRESENTATIVE CAREN ROBINSON asked how long after a person begins
medication they are no longer infectious.
DR. NAKAMURA said that depends on a number of issues. One is the
degree of the illness to which the person already has progressed
before treatment began. If there is a cavity in a significantly
progressive disease, they may have to undergo treatment for weeks
or months before they are no longer infective. There are others
who have a very minor infection and can be non-infectious in one to
two weeks. It varies. Plus, there are some organisms that are
resistant to medications used. Until that is discovered through
lab tests, the patient may be on an ineffective drug.
REPRESENTATIVE ROBINSON asked for clarification on the quarantine
provision. They could be isolated at their house, a health
facility or a correctional institution. She asked why the state
would ever want to quarantine someone at a correctional
institution.
DR. NAKAMURA said there are situations, for instance, of an
individual in a rural community or village where the home setting
may not be ideal because of the many people in the home who may be
continually exposed to that person. In addition, that would be an
option only if the patient were not willing to wear a mask and
cooperate in other protective measures. There is no medical
facility in which such an individual can be placed.
Number 2091
DR. NAKAMURA noted that yet, the community members may be willing
to have that person stay within their community as long as they are
taking the medication and treatment. The only place where that
isolation may take place may be in a correctional facility in that
community.
REPRESENTATIVE ROBINSON said there has been some concerns and
arguments regarding contract jails. Therefore, isolation in a
correctional facility would concern her. She has not seen some of
those facilities, but some of the comments made on the floor of the
House leads her to believe that some of those facilities are not
fit for animals. Therefore, she is concerned that someone would be
placed into an unfit facility.
DR. NAKAMURA said he cannot give her the assurance she desires
because he does not know each facility. However, he would
obviously try to avoid that type of situation.
Number 2130
CO-CHAIR TOOHEY surmised that Representative Robinson was looking
at a very tiny percentage. Perhaps one infected person every five
years would be in that situation. The average person with TB is
very willing to undergo treatment.
REPRESENTATIVE ROBINSON realized that. However, she was wondering
if it should be clear that facilities should be up to standards.
That may mean more work from the DHSS. However, if this is a very
small number of cases, it may be worth it. Representative Robinson
was curious whether there have been any such cases from the most
recent outbreak in which someone had to be isolated in the jails.
DR. NAKAMURA said there was one case in which there was a very
rapid turnaround. This was because the state had the ability to
confine that individual. Reality therapy comes into play when it
is known that the state will take action if the patient is not
responsible. In that case, it may take no more than one day to
bring about that reality.
Number 2180
REPRESENTATIVE ROBINSON was under the impression that a class A
misdemeanor can result up to one year in jail. Since it can take
up to a few weeks for a patient to receive medication and be
allowed back on the street, why would the state want to inflict a
penalty that could possibly lock up someone with TB for up to one
year.
CO-CHAIR BUNDE interjected that two different things were being
spoken of in this case. One situation refers to isolating people
for their own protection and the public health. The other
situation refers to penalizing people who would knowingly infect
others. The case that brought this up was the person who was aware
he was very infectious, and insisted on getting on an airplane and
infecting seven or eight other people in the two or three hour
flight to Anchorage. That person could easily be incarcerated.
However, it would not be based on their own protection but on
public health.
DR. NAKAMURA corrected the last statement. He said there was a
patient who did get on the plane and traveled against advice.
Fortunately, no one was infected. There was the potential for
infection, however.
Number 2239
REPRESENTATIVE ROBINSON said on that issue, she understands there
are already adequate laws on the books which stipulate that if a
patient was to deny treatment, the Department of Law would be able
to charge them with other crimes such as reckless endangerment.
Therefore, perhaps more laws do not have to be added in this bill,
since such laws are already on the books.
CO-CHAIR BUNDE said it is his understanding that the state could
not prevent this person from getting on the airplane simply because
he was infectious.
CO-CHAIR TOOHEY believes there is a law to stop a person from
getting on an airplane. Co-Chair Bunde said it did not stop the
patient in question at the time.
Number 2274
KRISTEN BOMENGEN, Assistant Attorney General, Criminal Division,
Department of Law (DOL), said she was present at the meeting to
address any of the legal concerns that may arise. She asked to
briefly speak about what current law provides, and what went into
the process of recommending to the department that some change in
that law would help enable the department to more effectively carry
out its purpose in preventing the transmission of TB.
MS. BOMENGEN explained that current statutory provisions provide
for the issuance of an examination order and the issuance of
quarantine orders. Those can be issued by the DHSS. The law then
provides, if someone does not comply with those orders, that the
person be reported to a peace officer that a violation is
occurring. Criminal charges must also be filed in order to enforce
what is a public health order and what is an effort to assist a
person in obtaining medical care while protecting the public's
health.
MS. BOMENGEN said this law was put into place in 1984. Things
subsequently went fairly well because the department worked with
people and found that they were agreeable and compliant. Problems
did not occur. In this last year, some circumstances arose in
which people objected to the orders the department issued.
Therefore, the DOL Law had to file criminal charges in a case.
Number 2335
MS. BOMENGEN said it became apparent that the DOL may have been
missing some due process requirements by jumping immediately into
criminal sanctions when someone had a reason to object to the order
of a public health official.
TAPE 95-28, SIDE B
Number 000
MS. BOMENGEN said that is what is behind the orders from the DOL.
The orders are meant to fill in the gaps between the issuance of an
examination order/quarantine order, and the criminal sanction that
may be at the other end. This bill, as Dr. Nakamura addressed,
sets out the other steps that may be necessary to all the
department to be effective in this pursuit, and to allow for due
process protections.
MS. BOMENGEN continued that this legislation will allow a
medication order, for instance, so the department can issue a
treatment order which the patient would be required to follow. The
detention orders that are anticipated address circumstances in
which a person may be immediately infectious, and it is necessary
to take them out of the public. This is because they may transmit
the disease through airborne droplets. The detention order is also
designed to deal with someone who has demonstrated by previous
behavior that they will not comply with a medication order or a
treatment plan.
Number 094
MS. BOMENGEN allowed that she is a lay person, and she does not
have thorough medical knowledge of TB. However, during the course
of the case she was dealing with, there was a serious danger that
the person had not complied with the medication regimen. As a
result, the medical dose they were receiving was possibly having
the effect of creating a drug-resistant strain in that person that
could then be transmitted. Therefore, for public health reasons it
is necessary to perhaps detain a person who is not capable, for
their own reasons, of following the drug regimen in order to assure
that a more virulent, drug-resistant strain is not created.
MS. BOMENGEN said the detention orders in this bill also anticipate
that someone may be detained in their own home.
Number 161
CO-CHAIR TOOHEY said HESS Committee members are going to be hearing
a bill concerning HIV. In that context, she asked Ms. Bomengen how
HB 274 addresses HIV. She asked if testing was mandatory. If
someone is walking around unbeknownst to him/her that they have TB,
can the department, on their own volition, say it is going to test
everybody in the village. Co-Chair Toohey asked if that was legal.
MS. BOMENGEN replied that under this bill, it is anticipated that
if the department receives information that someone has been
exposed to TB, the department may take appropriate action to
determine whether TB has been transmitted to others in the area.
This bill, however, does not relate to HIV at all.
CO-CHAIR TOOHEY said this bill gives the state the tools to mandate
a test. Would not HIV testing also fall into that jurisdiction?
Number 249
MS. BOMENGEN was unaware of any reason that it would be comparable
to HIV. TB is transmitted through airborne droplets, and there is
a known treatment and cure for TB. Those factors distinguish TB
from HIV. Again, Ms. Bomengen noted that she knows legal matters,
and she is not necessarily an expert on medical matters. However,
because HIV and TB are so different, they would warrant different
treatment on that premise.
CO-CHAIR BUNDE noted, regarding mandatory testing, that HB 274 says
mandatory testing exists for people in the school system. How that
would be different from someone who is living in a small community
where there is a high possibility of widespread infection, Co-Chair
Bunde cannot imagine. Testing is mandated in the school system
because there is a great number of people who are in close
proximity where more contamination is possible.
CO-CHAIR TOOHEY asked Ms. Bomengen if there is an "opt-out" for
testing in schools for a child and for other members of a
community, if the tests are against religious convictions.
Number 355
MS. BOMENGEN said this bill provides for consideration of religious
belief. In order to assure that due process protections are
recognized within the statute if a religious belief objection is
raised, the department, if it felt it was necessary to test
someone, would issue an order and the objection may be raised under
this provision to allow for the practice of religion. There would
then be an appropriate response to those concerns. Ms. Bomengen
said she does not know what the outcome would be when it went
before the court. It would depend on the facts that were before
the court.
REPRESENTATIVE ROKEBERG said Section 10 requires the testing of
public and private school employees. Representative Rokeberg asked
Dr. Nakamura if it was true that in the past, food service handlers
and other people with public contact also had mandatory testing for
TB. If that is the case, Representative Rokeberg asked why those
tests were not being currently required.
DR. NAKAMURA said he is not quite sure of the answer to that
question. However, in this case, the purpose is to protect the
school children. They comprise a large population of susceptible
children, exposed to a teacher. The doctor is not aware of any
requirements for the TB testing of food handlers.
Number 468
CO-CHAIR TOOHEY was not sure of the exact date, but she did know a
few years ago that became an obsolete requirement for food
handlers.
REPRESENTATIVE ROKEBERG said given the situation, perhaps that
requirement should not be obsolete.
CO-CHAIR TOOHEY said TB cases occur mainly in very isolated
villages, not in Anchorage.
CO-CHAIR BUNDE said TB cases may be very isolated. However, the
last briefing on TB stressed that foreigners may be bringing in
drug resistant strains of the disease. Even one case of this would
be totally devastating because it is so difficult to treat.
However, who is tested, why, and where leads Co-Chair Bunde to his
question. There is a zero fiscal note, yet the state is going to
mandate testing and there may be people who must be quarantined
someplace other than their own house. Co-Chair Bunde said it
sounds like that would cost money.
Number 547
DR. NAKAMURA asked to respond to Representative Rokeberg's question
first, and then to answer Co-Chair Bunde's. One of the reasons the
department is focusing on the testing of teachers is because part
of the transmission of the disease is based on the period of
exposure. In schools, there may be a teacher who is exposing a
group of children on a daily basis. This is different than a food
handler exposing an individual who has a very quick, transient
exposure to the disease. There must be a significant period of
exposure to catch TB.
DR. NAKAMURA spoke of the people who were in the airplane with the
infectious individual. Those people were in the airplane and were
exposed for a significant duration of time, however, there was no
transmission of the disease. Part of this is related to the period
and degree of exposure.
REPRESENTATIVE ROKEBERG said people are creatures of habit. He
said there is a restaurant he frequently visits in Anchorage.
Representative Rokeberg said he does not want to hold up the bill,
however, he thinks this should be looked at in the next committee
of referral. Representative Rokeberg hopes there will be a good,
epidemiological answer for his question before the bill goes
further.
CO-CHAIR TOOHEY said that is a valid point, and asked Dr. Nakamura
to find out why food handlers are no longer required to be tested
for TB.
DR. NAKAMURA said it very well may be due to the success in dealing
with disease. The state has been successful to the point that it
brought the actual rate of infection in Alaska to about 9.5 per
100,000. This is an amazing control of the disease. The chance of
exposure has been significantly decreased. Probably, the rates are
still very low. That rate has decreased from 1993, when the rate
was about 12.5 per 100,000. There is a very low probability of
exposure.
Number 680
CO-CHAIR BUNDE asked Dr. Nakamura to address the fiscal note
dilemma.
DR. NAKAMURA explained the statutes allow the state to assume the
cost of treatment, but it does not mandate the state to assume the
cost of treatment. The numbers of individuals that would actually
require isolation or quarantine are very low. The state could very
well be responsible for an individual who has not insurance and has
a very low income. However, overall the numbers of individuals the
state would encounter in this type of situation would be quite low.
The financial risk to the state would therefore also be quite low.
CO-CHAIR BUNDE understood that. However, he was still concerned
about the zero fiscal note. He said that even if the cost to the
state is $10, a fiscal note should still reflect that. More
importantly, will not testing in schools involve a lot of
materials, qualified people, and travel?
CO-CHAIR BUNDE stressed that he was not speaking against the school
testing. It is something that should be done. However, Co-Chair
Bunde thinks there is a larger possibility that the teacher will be
infected by the child than vice versa. There is some expense
involved, and Co-Chair Bunde asked Dr. Nakamura to speak to that.
Number 777
DR. NAKAMURA believes most of the expense encountered would be
covered by an individual's medical insurance. It would not
necessarily be an expense to the department or to the state.
CO-CHAIR BUNDE said to set up program testing at a school, someone
will have to do tine tests. The school nurse may do those tests
are part of her regular duties. But Co-Chair Bunde wanted to know
how much it costs, just for the materials if nothing else, for 50
or 100 people to perform a tine test. If that cost is then
magnified by the 50,000 students in Alaska, the cost can be
considerable.
DR. NAKAMURA said he would have to go back and check with the
department. However, he anticipates that the state would not be
using state staff to administer the tests or to make the materials
available. This would be part of the health care requirements of
any individual who is working as a teacher, etc. The assumption is
that the tests would be covered by medical insurance and health
care.
Number 840
CO-CHAIR BUNDE asked if only teachers, and not the children, were
going to be tested.
DR. NAKAMURA said only the testing of the teachers is required.
CO-CHAIR BUNDE thought all the children were going to be tested,
like was done previously.
DR. NAKAMURA said the children are already being tested under the
present treatment protocols.
CO-CHAIR TOOHEY said under Section 3, line 1, it reads, "The
department, in establishing a comprehensive program for the control
of tuberculosis in the state, shall cooperate with state, federal
and local agencies...." She said the bill goes on to read "a
health care provider who treats a person with TB shall examine all
other persons in the household who have had contact with the
patient...." Co-Chair Toohey felt there is going to be a cost to
this bill. It is not wise to pass the bill without the money it
will take to implement the program.
DR. NAKAMURA said there are not that many new impositions in this
bill that are not being currently done. This bill is actually
revising the language and stating much of what is already taking
place.
Number 935
REPRESENTATIVE VEZEY asked Dr. Nakamura to further explain the
disease. He said someone can be exposed to the disease, and still
not contract TB.
DR. NAKAMURA said the person can either not get infected, become
infected but not ill, or they can become infected and become ill.
Many factors will determine which of those three situations will be
encountered.
REPRESENTATIVE VEZEY said therefore, a person can have contact with
the disease but not become infected. Representative Vezey asked
what a positive skin test means.
DR. NAKAMURA replied that a positive skin test means a person is
infected with the TB organism. However, it does not tell the
person whether he or she is actually ill, or when he/she was
infected. The skin test only shows that somewhere in the course of
his/her life, the TB organism was picked up and it settled
somewhere in the body. He/she is infected, but not necessarily
ill.
Number 1000
REPRESENTATIVE VEZEY said therefore, once one tests positive for
TB, he/she will always test positive?
DR. NAKAMURA said yes. It takes a few more steps to determine
whether one is actually ill from the disease. One test is the
sputum test. It shows whether there are TB organisms in a
person's sputum. If organisms are present, the person has gone
beyond the point of a simple infection. A chest X-ray will also
show that the disease has advanced.
CO-CHAIR TOOHEY said unless a person is showing symptoms of the
disease, such a fever, coughing, etc., there is no need to get an
X-ray. However, if one is feeling poorly, and one has tested
positive, he or she should be thoroughly examined. She noted that
once a person skin tests positive, he/she should always assume that
somewhere along the line there has been exposure to TB.
Number 1056
REPRESENTATIVE ROBINSON asked why, in the drafting of the bill,
class A misdemeanor was chosen instead of class B or class C. She
asked why it was felt the misdemeanor had to be class A.
MS. BOMENGEN said the misdemeanor is not different from the current
provisions in the bill. In putting the bill together, the steps
between actions were filled in. The initial steps were decided,
and the final criminal penalty has always been there. It has now
been placed in Section 11. However, AS 18.15.138 is being repealed
by this bill. That is actually an identical provision. Nothing
has changed in that regard.
MS. BOMENGEN said a number of intermediate steps have been put in
place, however. These steps can achieve the purpose of
enforcement. These make the final eventuality highly unlikely
because there is even an emergency detention order that is provided
for earlier in the bill. Again, there are intermediate steps to
be taken if someone is not complying with the department. It is
not necessary to immediately resort to criminal sanctions in order
to enforce the statute.
MS. BOMENGEN wanted to mention something in response to earlier
testimony about detainment in correctional facilities. She does
not believe it is written anywhere that is the type of facility
that is intended. In the emergency detention order section,
Section 7, the bill reads of a "health care facility or another
location." That is merely to leave the options available to the
department in circumstances where there may not be a health care
facility available, yet there is an immediate need to act to
protect the public health.
Number 1150
MS. BOMENGEN stressed it is not intended for a correctional
facility to be used as a standard place for isolation.
REPRESENTATIVE ROBINSON said there are two areas Ms. Bomengen
should look at as the bill moves through the committees.
Representative Robinson wanted to know if the penalty had to be so
stiff. Representative Robinson knows that there have been very few
cases that would warrant such a penalty in the past, and the cases
have involved people who were not only were ill with TB, but also
had possible drug and alcohol addiction. It seems to
Representative Robinson, therefore, that the penalty is a little
stiff.
REPRESENTATIVE ROBINSON also believes strongly, in reference to
Section 7, that the first attempt for detainment should definitely
be in a health care facility. Representative Robinson can see it
being more expedient to take someone to a correctional facility
instead of going through the problems of trying to find appropriate
health care.
Number 1222
CO-CHAIR TOOHEY closed the bill to public testimony and asked for
the wish of the committee. Representative Vezey made a motion to
move HB 274 from the HESS Committee with individual recommendations
and attached fiscal notes. There were no objections, and the bill
passed out of committee.
HB 226: MARITAL STATUS AND RETIREMENT BENEFITS
Number 1306
REPRESENTATIVE PETE KELLY, sponsor of HB 226, urged HESS Committee
members to adopt HB 226. The superior court recently decided
unmarried couples are entitled to the same employment benefits as
married couples. This decision was the result of a broad
interpretation of language found in the Human Rights Act which
prohibits discrimination based on marital status. The court
concluded the human rights directive was violated by the University
of Alaska when it refused health benefits to the unmarried partner
of a university employee.
REPRESENTATIVE KELLY said it is feared this decision will have a
far-reaching impact as a trickle of grievances at the University of
Alaska becomes a flood in other agencies and in private industry as
well. It is not a stretch to imagine Alascom, the National Bank of
Alaska or the AFL-CIO being sued in the near future for failing to
recognize domestic partners in their benefits packages. However,
because the definition of domestic partner is not grounded in
contract or tradition as is marriage, it is a moving target and,
therefore, impossible to predict what future relationship will
qualify under this umbrella.
REPRESENTATIVE KELLY continued that the superior court decision
targets workers' benefit packages for distribution to an unknown
panoply of partners who are able to attach themselves to state
employees. HB 226 intends to reduce this uncertainty as employers
try to create their compensation packages. It also attempts to
pre-empt the possible onslaught of domestic partner relationships
created solely to gain access to potential benefits.
REPRESENTATIVE KELLY said the court offers little solace in its
decision document when it advises the university to just
discontinue benefits to families as an option to stay in compliance
with the decision.
Number 1385
REPRESENTATIVE KELLY said the anti-discrimination laws based on
marital status are meant to prevent such things as an employer
hiring only married men or married women because they are somehow
more stable and more desirable as employees or vice versa. HB 226
will continue to offer this much needed protection, while closing
this expansive loophole. Moreover, HB 226 clearly draws a
distinction between the housekeeping arrangements of a domestic
partnership and the legal bond of marriage, credentialed by society
through thousands of years of tradition and cultural experience.
REPRESENTATIVE KELLY said as the peoples' representatives,
legislators have a compelling interest in protecting the
institution of marriage as the only vehicle capable of providing
civilization with a future generation of citizens.
Number 1417
REPRESENTATIVE KELLY wanted to send a clear message that the
institution of marriage and the families it produces are worthy of
special recognition. It is for this reason that he requests the
passage of HB 226.
REPRESENTATIVE VEZEY asked if the only change in existing law
provided for in Section 1 of the bill is the spelling of the word
"it." He cannot see the changes in Section 1.
REPRESENTATIVE KELLY explained that in current statutes, there is
a prohibition against discrimination. Representative Kelly pointed
to number 1, under AS 18.80.220. He said this was the current
statute and it reads of prohibition of discriminatory practices.
An employer cannot discriminate based on sex, age, marital status,
etc. However, in (c), Section 2, an employer may refuse to provide
benefits to a person because the person is not legally married to
an employee of the employer without violating this chapter.
REPRESENTATIVE KELLY said the bill also says that labor
organizations may negotiate the same kind of agreement.
Essentially, the bill is currently what's in place, and there is no
prohibition against a state agency or anyone negotiating a domestic
partner arrangement. It just says the organization is not guilty
of discrimination should it not choose to provide those benefits.
Number 1520
REPRESENTATIVE VEZEY said so the only change in Section 1 is the
addition of the exception clause. Representative Kelly said he was
correct.
REPRESENTATIVE BRICE provided an example of an unmarried couple who
has been living together for the last 18 years. One partner is the
breadwinner, and the other partner stays at home. They are not
legally married in terms of Justice of the Peace or religious
ceremonies. Considering the fact that the second person has no
income, is he/she going to be eligible for state medical
assistance, such as MedicAid or MediCare, whereas otherwise,
without HB 226, private insurance would pay for care? In other
words, isn't this bill simply shifting cost away from private
insurance organizations onto the state?
REPRESENTATIVE KELLY said there would be qualifications for
MediCare, AFDC, etc., that provide relief. There are
qualifications that must be met. Representative Kelly said he is
not an expert on the exact qualifications for MedicAid, but for
many of the other services, one cannot live with someone and
collect those benefits. It is required that the person live in
state housing, and the person would be required to give up certain
amounts of property. Therefore, Representative Kelly does not see
the bill as shifting costs any more than costs are now shifted.
Number 1629
REPRESENTATIVE BRICE said therefore, in other words, Representative
Kelly does not view the state as picking up these individual's
costs. It may be something the Division of Medical Assistance
might be able to answer more clearly. Representative Brice asked
if it was the understanding of Representative Kelly that those
dependent individuals would not fall under MedicAid.
REPRESENTATIVE KELLY did not know. If the point is the legislature
is trying to require that the state is somehow responsible for
these people, or the person with whom they live is responsible,
Representative Kelly does not know if this bill necessarily
addresses that. That is not the purpose of this bill. That might
be an issue that is better addressed in the statutes that enable
MedicAid.
Number 1663
REPRESENTATIVE BRICE said people will be taken care of in one way
or another--whether they walk in off the street into an emergency
room to place the burden on the facility (which eventually places
the burden on the state), or whether private insurance pays for
that help. Representative Brice said he wants to be very certain
HB 226 will not shift costs back to the state. It might be a
question that the Division of Medical Assistance (DMA) should
answer.
REPRESENTATIVE KELLY was not sure of the point Representative Brice
was trying to make. However, he thought the state cannot be held
hostage to someone who says, "If you do not provide me with medical
insurance through my spousal equivalency arrangement, I will now go
and cost you money at the emergency room." Representative Kelly
did not want to hold the state hostage in such a way.
REPRESENTATIVE BRICE felt Representative Kelly was missing what he
was trying to get at. The couple consists of Partner A and Partner
B. Partner A works, Partner B does not. They are not married, but
they have a well-established, long-term relationship. They live
together and share many things. Partner A is the only one in this
relationship that is capable of receiving benefits because of this
bill. Partner B is not. Partner B gets deathly ill, but is not
covered by Partner A's benefits. Therefore, Partner B is eligible
to go and receive state help, versus having the insurance company
pay for the care. That is the concern of Representative Brice.
Number 1772
CO-CHAIR TOOHEY asked if Representative Brice was assuming the only
way someone is eligible for MedicAid is because of an economic
level.
REPRESENTATIVE BRICE said yes, and Partner B would have no income
whatsoever.
CO-CHAIR TOOHEY said that is being assumed, because Partner B may
be the co-owner of the house or something.
REPRESENTATIVE BRICE said it may be that Partner B is the co-owner
of the house. In that case, however, Partner B would probably be
working and bringing in income. However, if Partner A is the sole
provider, and Partner B brings in no income and has no legally
recognizable assets, Partner B becomes eligible for the state's
money. Maybe this is a discussion that needs to be had with
someone from the DHSS that understands medical assistance issues
better. This might help clarify some of this.
Number 1824
CO-CHAIR TOOHEY said several people from the Department of Law were
present to answer his questions.
REPRESENTATIVE KELLY wanted to note that when the court decision
came about, the judge in the case said there was no legislative
intent, and the statute stood as an absolute prohibition against
discrimination based on marital status. The fact is that there are
plenty of examples of legislative intent. Throughout the statute,
there is exactly what Representative Kelly has put in the bill.
REPRESENTATIVE KELLY said for example, in AS 39.30.090, it says
"the Department of Administration may obtain a policy or policies
of group insurance covering state employees. Persons entitled to
the coverage under AS 39.35 or employees of other participating
government units are subject to the following conditions...."
REPRESENTATIVE KELLY said the document from which he was reading
goes on to read, "Each eligible employee of the state, the spouse,
and the unmarried children chiefly dependent upon the eligible
employee for support, and each eligible employee of another
participating governmental unit shall be covered by the group
policy unless exempt under regulations adopted by the
Commissioners."
REPRESENTATIVE KELLY said that is one example. The document, as
far as legislative intent, does not say anything about anyone who
is financially dependent on the employee, anyone in a marriage-like
relationship, or anyone who signs an affidavit of spousal
equivalency. Likewise, in Section 14.25.168 of the medical
benefits section, which will be provided to HESS Committee members,
it reads, "The following persons are entitled to major medical
insurance coverage...." Representative Kelly said it is the spouse
of a person or the natural or adopted child, etc.
REPRESENTATIVE KELLY said the document also goes into the medical
benefits for public employees, retirement, teachers' retirement,
etc. The statutes are full of examples where the state currently
has in statute exactly what Representative Kelly is trying to put
into the Human Rights Act. Representative Kelly feels it is
interesting that the judge in the University of Alaska case, Judge
Greene, was completely unaware of those statutes when she was
trying to determine legislative intent.
Number 1938
REPRESENTATIVE KELLY submitted that legislators stand on the
shoulders of all who have preceded them. There is plenty of
legislative intent to say that in fact, the state or other
organizations can discriminate when determining who is eligible for
benefits. This is as long as those discriminations meet a certain
test. Representative Kelly said he feels that is clearly in
statute, but it appears that the Human Rights Act needs to be
tweaked a bit.
REPRESENTATIVE VEZEY said he knew Representative Kelly spent a lot
of time looking into this bill. The question that keeps coming to
Representative Vezey's mind is that Alaska has never had a common
law marriage statute. Would Representative Kelly say, should the
Judge Greene's decision be allowed to stand, that there will be in
effect a common law marriage statute?
REPRESENTATIVE KELLY could not comment on that question.
Number 1982
REPRESENTATIVE ROKEBERG said he may have an answer to that
question. He passed out a document. It was a page from the
judge's decision, telling of her finding as to marital status in
the state. The page said accordingly the court determines that
Tumeo and Wattum, the plaintiffs in the case against the University
of Alaska, have proven their allegation of discrimination based on
marital status. That was the finding of the case.
REPRESENTATIVE ROKEBERG asked Representative Kelly if that was why
he was bringing this bill forward, to clarify the statute as
presently interpreted by the state of Alaska and enforced by the
state of Alaska.
REPRESENTATIVE KELLY said Representative Rokeberg was exactly
right. There is possibly a slight flaw in the current statue.
Everyone knows what marriage is. There is no one in this room that
does not understand what marriage is. Apparently, however, the
statutes were written in such a way that a loophole has been
created that a judge was able to "drive a freight train through."
That is the reason Representative Kelly wanted to change the
statute. If this problem is not fixed, an administrative nightmare
is going to be created.
REPRESENTATIVE KELLY said that an amendment offered by
Representative Robinson will create an administrative nightmare.
It clearly discriminates, and it is going to require an
administrator to sit there and decide which of these spousal
equivalency agreements are legitimate. It is going to require home
investigation to determine whether these people are eligible for
benefits that they would certainly be eligible for should they
choose to get married.
REPRESENTATIVE KELLY said no one is barring them from getting
married, and they have the opportunity to do so, just as anyone
else does, and they can receive these benefits. Once it has been
determined that spousal equivalency is equal to marriage, the only
way that can be enforced is through the creation of another entity
within the body of law, that is like "marriage-lite."
REPRESENTATIVE KELLY continued that the only way to do that,
because the state has a clear definition of what marriage is but it
does not have a clear definition of what domestic partnerships are,
is to come up with what can be found in Representative Robinson's
amendment. Such an amendment states that a domestic partnership is
based on economic considerations. That clearly discriminates.
Number 2111
REPRESENTATIVE KELLY noted that the amendment goes on to define a
domestic partnership, and how one would set up a domestic
partnership. All it really does is discriminate. It does the same
thing that the Tumeo-Wattum case accuses the University of Alaska
of doing.
CO-CHAIR TOOHEY interjected that the amendment was not before the
HESS Committee at that time.
REPRESENTATIVE ROKEBERG asked if, in the Tumeo-Wattum case, if
Judge Greene suggested what she purported to be some
recommendations or fixes to her decision. He asked if
Representative Kelly could tell HESS Committee members what those
recommendations were. Representative Rokeberg also asked if
Representative Kelly's bill was not simply just a technical
correction to the way the law is worded, and if Representative
Kelly could comment on the opinion of the State Human Rights
Commission.
Number 1216
REPRESENTATIVE KELLY said the State Human Rights Commission is in
full support of HB 226. Representative Kelly has a letter from the
commission to that effect. One slight change has been suggested in
the wording. This is a technical change to a law that is currently
functioning and functioning very well. It needs a technical change
in it to prevent this type of problem from happening in the future.
REPRESENTATIVE KELLY continued that the judge in the Tumeo-Wattum
case said essentially that how the university can deal with her
decision is to stop giving people benefits to spouses. This way,
the university would not be charged with discrimination.
Representative Kelly does not think that is a good idea. He likes
the marketplace to be able to determine those kinds of things.
REPRESENTATIVE KELLY asked to go back to the intent of his bill.
The bill in no way is a prohibition of any kind on any kind of
activity. It simply says that an organization is not guilty of
discrimination should it want to go to the marketplace to negotiate
health benefit packages with employees.
Number 2214
REPRESENTATIVE ROBINSON said she would not get into a debate right
now about her amendment, but she had copies of it and passed it
out. She simply wanted to make sure it was understood that HB 226
relates only to retirement and health insurance benefits for
employed people. That is who is being affected by the bill--
employed people. She asked if she was correct, and Representative
Kelly said that was a fair assumption.
REPRESENTATIVE ROBINSON said therefore, she will deal with the
debate over discrimination and non-discrimination when the
amendment is brought before the HESS Committee.
REPRESENTATIVE ROKEBERG asked Representative Kelly if Judge Greene
indicated that an affidavit of domestic responsibility, or some
similarly named document, would also be another fix to the problem.
REPRESENTATIVE KELLY said that was true. There were several
suggestions of that sort made by Judge Greene. Representative
Kelly did not address that option because that is the heart of the
issue. HB 226 is trying to fix that very problem, of saying that
these types of agreements have to be recognized. Judge Greene did
recommend that is one of the ways to comply with her decision.
Representative Kelly simply did not find that as disturbing as the
other options. She said spousal agreements can be recognized, or
organizations can simply stop giving health benefits to spouses of
employees.
Number 2285
REPRESENTATIVE ROKEBERG suggested that this point is the crux of
the whole case. The court is making public policy, and that is
actually the job of the legislators.
Number 2315
MILDRED BOESSER, Representing Parents, Families and Friends of
Lesbians and Gays (PFLAG)...
TAPE 95-29, SIDE A
Number 001
MS. BOESSER continued...and the City and Borough of Juneau (CBJ)
Human Rights Commission (HRC) opposes HB 226, which is legislation
which permits employers to deny benefits to an employee's domestic
partner other than a spouse, and permits labor unions to negotiate
such a denial of benefits.
MS. BOESSER said this bill amounts to discrimination on the basis
of marital status. The CBJ HRC is charged with addressing
unwarranted discrimination. It opposes the discrimination on the
basis of marital status inherent in this bill. If this bill is
intended to encourage people to make lifelong commitments, its goal
is laudable. But its aim is off-target.
MS. BOESSER said society benefits from the formation of unions
between committed adults. Commitment, not marriage, is the
hallmark of these unions, which can also entail shared finances,
mutual dependency, and responsibility for children. The
characteristics of a committed adult union do not depend on a
marriage license.
MS. BOESSER said Alaska is a state of individuals. When these
independent people create a household that often does not match a
1950s picture of the family, many couples, in spite of their
commitment to, and dependence upon one another, are not married.
Number 097
MS. BOESSER noted in some cases these couples are not free to
marry. For example, one member of a couple may remain bound by law
to a former spouse who will not cooperate or cannot be located to
dissolve the marriage. If the remaining partner is unable to
afford a lawyer to prosecute a default divorce, he or she remains
married indefinitely. Likewise, same sex couples are unable to
marry, regardless of the level of their mutual commitment and
financial dependence.
MS. BOESSER continued that if the state of Alaska is looking for
ways to encourage committed unions between adults, it should not
place undue emphasis on the legal fact of marriage. Doing so poses
a barrier to the many unmarried partners who wish to take personal
responsibility for their domestic partners. The very first
paragraph of Alaska's Constitution guarantees all of us equal
rights, opportunities and protection under the law. The CBJ HRC
opposes HB 226 because it discriminates against committed partners
who are not married to the detriment of Alaska and in violation of
the constitution.
Number 194
MARGARET BERCK, Attorney, American Civil Liberties Union (ACLU),
testified that the ACLU is opposed to HB 226 and is in favor of the
amendments that have been proposed by Representative Robinson.
Since there are others present to testify, Ms. Berck declined to
take up further time since the amendments were not before the
committee for discussion.
REPRESENTATIVE ROKEBERG asked if Ms. Berck was familiar with the
case Lilly vs. the City of Minneapolis. She said she is not.
Number 274
TALMADGE W. BAILEY, Board Member, Southeast Alaska Gay and Lesbian
Alliance (SEAGLA), read a prepared statement from the
alliance.
"Dear Committee members, the Southeast Alaska Gay and Lesbian
Alliance urges you to stop HB 226, and not pass this bill out of
your committee, as we do not believe that it is in the best
interest of the state of Alaska to move this bill forward in its
present form.
"We could support the bill if it is amended to include domestic
partnership language. If passed as is, this bill would become part
of a non-discrimination statute, and yet clearly set up an illegal
and discriminatory situation. Both legally married individuals and
"domestic partners" are in family situations, which involve
financial and emotional interdependency. It is currently illegal
to discriminate on the basis of marital status, and should continue
to be so. We believe that all of Alaska's families should be
treated equally.
"Benefits provided by the State to employees are tangible
compensation, and are calculated as part of the total compensation
package given to an employee. It is discriminatory practice to pay
some individuals more for equal work, just because they have
entered into "the only acceptable" legal contract. Both marriage
contracts and spousal equivalency contracts set up financial
interdependency, and are legally binding upon individuals. Both
of these situations represent a strong commitment between
individuals, and are not lightly entered into.
"We fully support Representative Caren Robinson's proposed
amendment to HB 226, which involves meeting stringent criteria in
order to qualify for joint benefits. This may help to allay fears
of the "rush" of individuals who would sign up for those benefits.
This amendment would easily help distinguish between those who are
truly domestic partners, and eliminate those who attempt to
establish frivolous claims.
"We do not believe it is legal for the state to pick and choose
among legal civil interdependency contracts, and determine which
ones are "better" than others. Employers should have the option to
pay benefits to all those who have entered into this contract
solely to employees, and not pay benefits for family members.
Number 455
"Lastly, the financial impact of this bill is important to note.
Research conducted by major organizations and employers who have
implemented joint benefits programs for domestic partners has
clearly shown that additional cost to the organization is
insignificant. Highest estimates to date are increases of under
five percent of benefits cost. This should not be a basis for
consideration of this bill.
"We strongly urge you to carefully consider this bill, and not to
pass it out of your committee."
Number 510
MARK TUMEO, Plaintiff in the case Tumeo and Wattum vs. the
University of Alaska; and Professor, University of Alaska Fairbanks
(UAF), thanked the co-chairs for the opportunity to testify in this
very important issue. Over the last two days, Mr. Tumeo had the
opportunity to meet with many of the members of this committee. He
apologized to Representative Vezey for not being able to meet with
him personally.
MR. TUMEO had been discussing several aspects of Representative
Kelly's bill that would allow discrimination based on marital
status, and gut the Human Rights Act of Alaska. Mr. Tumeo had the
honor of meeting with Representative Kelly for almost an hour that
day on HB 226, and he enjoyed the conversation. As the sponsor of
this legislation, Mr. Tumeo wanted a very clear picture of the
concerns that generated the bill's introduction.
MR. TUMEO asked to take a minute to discuss the two main issues
that Representative Kelly indicated caused him to introduce this
piece of legislation. First, Representative Kelly claimed an
economic concern. As Mr. Tumeo has discussed with many members of
this committee, and with Representative Kelly, this concern is not
founded in facts. Mr. Tumeo has provided the committee with
information from Harvard University that shows domestic partnership
benefits, when offered, result in only a minor increase in
enrollment, and no increase in insurance premiums.
MR. TUMEO continued that such benefits are currently offered in
over 60 major universities in the country, including state
institutions such as the University of Iowa, the University of New
York, and the University of North Carolina. Over 100 private
companies and over 60 governmental jurisdictions, including the
states of New York, Vermont and Massachusetts, offer domestic
partnership benefits, and have demonstrated that there are no
economic impacts from such actions.
Number 637
MR. TUMEO said therefore, with respect to the economic concerns of
HB 226, the bill is unnecessary. However, if the members of this
committee remain concerned, he would urge them to refer this bill
to a subcommittee where all the pertinent facts can be discussed in
detail. The bill is currently on an emotionally-driven fast track.
Given the importance of the issue and the high workload the
legislators are under, especially during budget time, it would be
wise legislative policy to allow more time for the members of this
committee to study the bill and the issues surrounding it.
MR. TUMEO said if, after reflection, the members feel there is
still an economic concern (although Mr. Tumeo doubts that would be
the case), they would be able to consider Representative Robinson's
amendment. The Robinson amendment clearly draws a tight circle
around the number of individuals who would qualify, protects the
economic interest of the state and the university, and still
protects the Human Rights Act of the state.
Number 694
MR. TUMEO recalled that the Robinson amendment was introduced in
the State Affairs Committee. It presents the legislature with a
win-win situation. It addresses perceived economic concern and
reinforces the state's law that discrimination based on marital
status is neither fair nor legal. However, Representative Kelly
has another reason for introducing this piece of legislation.
MR. TUMEO believed he spoke fairly when he said Representative
Kelly's real reason for introducing the bill is to ensure that only
those relationships that he feels are "good" are recognized. This
bill, on its face, sets up a special class of citizens--married
people. He confers on this special class special rights, most
directly, the right to be paid more for the same work.
MR. TUMEO asked what the basis is for being paid more. He answered
only that in Representative Kelly's opinion "good marriages" should
be supported. Would Representative Kelly consider going so far as
to legislate between a "good" marriage and a "bad" one to ensure
that only those relationships he felt are good get recognition and
benefits? This is clearly not the type of legislation this
committee should be involved in.
Number 760
MR. TUMEO said the bottom line is that HB 226 is not intended to
protect an economic interest. It is intended to deny equal rights
to individuals who are not in the type of relationship
Representative Kelly supports. Mr. Tumeo believes Representative
Kelly has the right to support or argue against whatever types of
relationships he wants to. However, it is not reasonable for this
legislature to place the personal moral convictions of
Representative Kelly into law.
MR. TUMEO felt it was important to reiterate HB 226 is being pushed
through the process on red herring emotional issues. Further,
Representative Kelly has totally misrepresented the case of Tumeo
and Wattum vs. the University of Alaska. Mr. Tumeo is very
familiar with this case, as he is the plaintiff. The law case in
which he is the plaintiff against the university is an
administrative lawsuit for public employees. While the decision
sets precedent, it applies directly only to Mr. Tumeo and his co-
defendant, Kate Wattum.
Number 813
MR. TUMEO noted that additionally, as Representative Kelly has
pointed out, the laws in place may already protect the state and
the Department of Administration from being forced to provide
domestic partnership benefits. However, the laws he cited, which
those in the court case were made well-aware of, do not apply to
the University of Alaska. They apply to the Department of
Administration (DOA). The University of Alaska is self insured.
It is not under the DOA's insurance policy.
MR. TUMEO stated furthermore, such rulings as the one issued by
Judge Greene and employment laws dealing with the type of
employment and discrimination are not applicable to private
companies. That is not how the law works. Representative Kelly's
claim that there will be a flood of suits against private companies
based on this ruling is wrong. It is not possible. Only public
employees can be affected by this.
MR. TUMEO said any other individual who wants benefits may apply
through the administrative channels of their agency or the
university. Once again, while this decision sets precedent, it
does not force the giving of the benefits. Furthermore, the
university has appealed the decision to the Supreme Court. As a
result, Judge Greene's decision is effectively on hold until the
Supreme Court rules. Legislation at this time is not only
unnecessary, it interferes with the process of the courts.
Number 886
MR. TUMEO urged HESS Committee members to direct this bill to a
subcommittee to allow calm, rational and detailed analysis of the
economic issues. The members of the committee will find, after
reviewing the facts, that at best, HB 226 is an unnecessary bill
that, as currently written, only serves to gut the Human Rights
Act. While Representative Robinson's proposed amendment would fix
that issue, such an amendment will be opposed by the bill's sponsor
because it would not legislate the type of Draconian interference
and personal choice which is the true basis of HB 226.
MR. TUMEO concluded by saying upon reflection, he thinks HESS
Committee members will agree that this is a divisive hate bill, and
that it would be best left in subcommittee and not take up any more
of the legislators' valuable time.
Number 929
REPRESENTATIVE ROKEBERG thanked Mr. Tumeo for coming, and
recognized that this is an important issue to him. He asked Mr.
Tumeo to tell HESS Committee members what effect the passage of HB
226 would have on his position with the university and his case, if
the bill were to pass.
MR. TUMEO answered that if HB 226 were passed as written, it would
essentially overturn the court decision as it was issued. The
judge looked at the situation in which Mr. Tumeo's side presented
documentation that they have assumed the same legal and financial
ties as are conferred by a marriage license. Given the fact that
the university said it determines benefits based on financial
interdependence, and it bases that determination solely on a
marriage license, the court says that is obviously using marital
status in determinations. That is discrimination based on marital
status as defined in the law.
MR. TUMEO said HB 226 would allow the university to do that. The
argument Representative Kelly makes that Mr. Tumeo could negotiate
his benefits is not true for a university professor. Mr. Tumeo is
a university professor and has been for the past ten years.
Professors do not negotiate their benefit packages. At best, they
may be allowed to negotiate the step at which they enter rank.
However, now that Mr. Tumeo is a tenured university professor, he
does not have the latitude to negotiate benefits, nor is he part of
a collective bargaining unit, nor does he ever intend to be a part
of one.
MR. TUMEO said therefore, he does not have the right that
Representative Kelly claims he does.
Number 1024
REPRESENTATIVE ROKEBERG said therefore, Mr. Tumeo has a direct,
vested interest in this legislation. He did not mean to imply that
is why Mr. Tumeo is here, Representative Rokeberg feels it is
beyond that. However, Mr. Tumeo pointed out that this is a
precedent only for the university. Representative Rokeberg asked
if it was not true that even though this is a precedent only for
the university it could be taken as a precedent for any other
public employee in the state to bring a cause of action against the
State of Alaska for the very same reason Mr. Tumeo did.
MR. TUMEO said no. It does not imply a cause of action to bring
suit. The only thing that would provide a cause of action to bring
suit would be a decision by the administrative body within the
employee's agency to deny the benefit. For example, another
university employee may decide to request benefits from the
University of Alaska system. That person would then file the
appropriate paperwork. If the university system determined that it
did not want to grant the benefits, it would deny that request.
MR. TUMEO explained that the employee would then go through the
official grievance process of the university. These are set up so
the university does not have floods in the court. If, upon
reflection in that grievance process, the university found it was
making the proper decision given the policies and laws of the land,
they would then deny that benefit. That would then be the cause of
action if so desired by the employee to go forward for a lawsuit.
MR. TUMEO said what the employee would have to do is be able to
argue that somehow that decision was illegal, unconstitutional or
an abuse of discretion of the administrator that made the decision.
In Mr. Tumeo's instance, it was the president of the university.
What the court decision allows is for the university to now put
into place administrative procedures by which they can make
determinations on benefits based on other issues besides marital
status. It cannot be based solely on marital status under current
law, and that is what the judge's decision says.
MR. TUMEO noted that several other universities in the country have
faced the same situation and have created mechanisms by which there
is a simple form which is filled out, presented, certified, and is
legally binding and protects both the institution and the employee,
and it is not an administrative burden. That is why there is no
cost in implementation in these institutions.
Number 1155
REPRESENTATIVE ROKEBERG asked to make a statement, and then invited
Mr. Tumeo to agree, disagree or comment. He said he has read Judge
Greene's decision, and she made an extremely good case using Alaska
statutes. That is why Mr. Tumeo won the case, and Representative
Rokeberg applauds him for that. But that is why HESS Committee
members are present at this meeting, to make that correction in the
statute. It seems to Representative Rokeberg that if anyone is a
state employee, having read the case and the plaintiffs' fact
pattern, and they want to assert their rights just as Mr. Tumeo
does, there is nothing barring them from doing that.
Representative Rokeberg asked if Mr. Tumeo agreed.
MR. TUMEO said there is one difference in the fact pattern that is
of import, and Representative Kelly has accurately pointed that
out. If Representative Rokeberg read the case, he is then familiar
with the Phillips vs. Wisconsin Personnel Commission case that is
cited in the court case. To briefly recap that case, in the state
of Wisconsin there is a similar situation as was found in Tumeo and
Wattum vs. the University of Alaska. In that case, the state has
a non-discrimination law based on marital status.
MR. TUMEO explained that the case involved two women. One worked
for the state, and one did not. The woman who worked for the state
applied for benefits under the state's policy, and requested that
her partner be covered. Failure to do so was a violation of the
state's non-discrimination law. There is a very similar fact
pattern between this case and Mr. Tumeo's case. However, in the
state of Wisconsin, there is also a law that is very similar to the
one in the state of Alaska. That law states, as a legislative
mandate to the DOA, what benefits are to be provided.
MR. TUMEO said Representative Kelly quoted that mandate. It says
the state shall provide benefits for spouses, dependents, etc. The
argument that was made successfully in the Wisconsin case was that
clear legislative intent was shown in the case of state employees
for discrimination in benefits based on marital status.
Number 1250
MR. TUMEO said the court ruled against the plaintiff in that case,
and for the state. The difference between the University of Alaska
and an employee of the state of Alaska is that the University of
Alaska does not obtain its insurance through the DOA. It is a
self-insured institution. It is therefore, not subject to that
law. The state, and the legislature, has already made it clear it
feels some ability to discriminate or have indicated there is the
potential for discrimination.
MR. TUMEO said he is not a judge, but he has been to law school.
Therefore, he will not say that someone from the state may not make
that argument and another judge may not interpret that law
differently. However, Mr. Tumeo thought a slightly different fact
pattern exists for a person who works for an agency of the state.
That is one of the reasons, and another example, of why Mr. Tumeo
thinks it would be beneficial in this instance to take some time to
review this bill and answer some of these questions.
MR. TUMEO therefore suggested that the committee solicit input from
a DOA representative and some other lawyers. He asked that the
bill be discussed in great detail. If that is done, Mr. Tumeo
thought HESS Committee members would find that it is not a
necessary piece of legislation. The state is already pretty clear
as far as benefits go. Mr. Tumeo asked to let his case work its
way through. He felt that would save time for other things.
Number 1320
REPRESENTATIVE ROBINSON said that Mr. Tumeo has some experience
regarding the Domestic Partnership Act. Representative Robinson
noted that Representative Kelly commented that he felt her
amendment was discriminatory to people who have low incomes.
Representative Robinson asked Mr. Tumeo to respond to that.
MR. TUMEO felt that interpretation was a misreading and a
mischaracterization of the amendment that was presented in the
State Affairs Committee.
CO-CHAIR TOOHEY interjected that the amendment was not currently
before the committee, and asked that it be discussed at a later
time. She asked that testimony continue.
REPRESENTATIVE ROBINSON asked if Mr. Tumeo could speak on the
amendment when it is brought before the committee, since
Representative Kelly already brought up the amendment. She asked
that Mr. Tumeo be able to respond since he is somewhat of an expert
in that area.
CO-CHAIR TOOHEY said further testimony should be heard first, and
given time, the amendment will be brought before the committee.
Number 1367
REPRESENTATIVE ROKEBERG asked Mr. Tumeo if he was aware of the
Lilly vs. the City of Minneapolis case.
MR. TUMEO said he was, and the case is currently under appeal.
REPRESENTATIVE ROKEBERG said therefore, the Mr. Tumeo's reference
to the case in documents he handed out should be scratched.
MR. TUMEO said no, because the case is under appeal. When a case
is appealed, the current law stands until the court proceedings are
completed.
Number 1426
REPRESENTATIVE ROBINSON asked about the perceived "rush" on the
system which some feel may result from Tumeo and Wattum vs. the
University of Alaska. She also asked Mr. Tumeo about his
experience and knowledge on this topic.
MR. TUMEO has several studies that indicate throughout the United
States that there are no skyrocketing costs associated with
domestic partnership benefits. Enrollment numbers increase
somewhere between .3 percent where they are measurable, to no more
on the average than two percent. There are no increases in premium
costs for those that acquire insurance. In addition, there are no
increased costs to the systems for those that are self-insured.
MR. TUMEO has copies of those studies if HESS Committee members
would like to see them.
REPRESENTATIVE ROBINSON asked Mr. Tumeo if, in his studies, he
found any facts about common law relationships. Representative
Robinson grew up in Texas, and a couple is considered to have a
common law marriage after seven years. She is curious about the
effects of common law marriages across the nation, and what those
relationships have done as far as employee benefits.
Number 1450
MR. TUMEO said he has looked somewhat into common law and the
effects on benefits, but he is not an expert in that topic. The
concept of common law marriage is that after a certain amount of
time, an individual may claim the right to financial support on the
individual with whom they have been living. Typically, common law
marriage claims come up in terms of support cases between
individuals. Common law is, by definition, law between
individuals.
MR. TUMEO explained that when common law marriage statutes come
into play is when two people live together for over seven years in
a state which recognizes common law relationships. In that seven
years, that couple had also presented themselves as married in the
way they lived, and in the things they said. If then one person
decided to terminate the relationship, the partner would have,
under common law, the right to demand support. That is where
common law marriage comes in.
MR. TUMEO said common law marriage is not a mechanism that has been
used in a court cases that he is aware of to access benefits.
Benefits are accessed via contractual agreements between parties
that are recognized by the institution or employer offering the
benefits.
Number 1509
MR. TUMEO said common law marriage is only a status recognized by
courts in terms of support between individuals.
REPRESENTATIVE ROBINSON asked Mr. Tumeo how anyone would know that
two people were actually married and getting benefits.
MR. TUMEO said that is very difficult. The state director of
benefits at the university has written a letter regarding HB 226,
saying there is no way to account for the costs, whether they would
rise or fall, because the demographics are not kept. As an
interesting note, when original benefits were applied for, Mr.
Tumeo's co-plaintiff, Kate Wattum, put down "B. McClendon" as the
partner to receive benefits. Benefits were subsequently granted by
the university. It was not until such time that Ms. Wattum
indicated that "B." stood for "Beverly," that benefits were then
pulled.
MR. TUMEO said at no time during the proceedings or during any
other proceedings when people apply for benefits at the university,
is a marriage license requested.
Number 1558
REPRESENTATIVE DAVIS said Mr. Tumeo indicated the court case showed
that Mr. Tumeo and his partner had established legal and economic
bases equal to a marriage.
MR. TUMEO said no, it was never stated that he and his partner had
a status equal to marriage. What was stated was that they had
legally binding and legally defensible economic ties. It did not,
at any time, state that their relationship was equal to marriage.
The claim was that within the university system, benefits are
granted based on the fact that the employee has an economic and
legally enforceable economic responsibility for a third party.
That is why benefits are given.
MR. TUMEO continued that the university says the only way it will
recognize that legal bind is through a marriage license. What Mr.
Tumeo's case said was that he and his partner have a contract,
which is legally executed, that gives Mr. Tumeo, as the employee,
the same financial and legal responsibility for his partner as is
conferred by a marriage license. It does not confer all the other
associated rights and privileges of a marriage license.
MR. TUMEO has signed a document that states he is legally
responsible for his partner's expenses. Given that is the
determining factor to the university, it is discrimination based on
marital status for it to ignore his contract with his partner,
while accepting only a marriage license.
MR. TUMEO noted there are literally hundreds, and Mr. Tumeo offered
to provide a well-documented list, of benefits that his contract
could never provide. No one in the state of Alaska can enter into
a contract that provides the same rights and privileges that are
provided by a marriage license. Those rights include survivorship
rights for property and tax benefits. There is a whole plethora of
benefits and privileges that accrue to a marriage license that in
no way can be simulated by contract or enforced by the court for
non-married individuals.
Number 1655
REPRESENTATIVE DAVIS said therefore, apparently there are benefits
that only a marriage license can provide, and there are several
differences between the contract Mr. Tumeo has with his partner and
a marriage contract.
MR. TUMEO said there are several differences, and he would be more
than happy to provide the chair with a complete listing of the
types of benefits that are provided to married individuals that are
denied unmarried individuals and cannot be gained through
contractual relationships.
REPRESENTATIVE DAVIS wanted to make clear that those rights and
benefits are not also gained by a semi-marriage license, which he
determined is the agreement between Mr. Tumeo and his partner. He
asked if it was a "self-made marriage license."
MR. TUMEO said the spousal equivalency form that he and his partner
filed in no way simulates a marriage license. It is only a legal
document that indicates he is economically and legally responsible
for the bills accrued by his partner.
Number 1703
REPRESENTATIVE VEZEY asked Mr. Tumeo if Representative Vezey
appears to be an emotional person.
MR. TUMEO said at the moment Representative Vezey does not appear
emotional, however, Mr. Tumeo has seen Representative Vezey very
emotional at times.
REPRESENTATIVE VEZEY asked Mr. Tumeo why he characterizes HB 226 as
an "emotional" bill.
MR. TUMEO said that is somewhat from experience. At the last
committee hearing on this bill, there was quite a bit of emotion
and tension present. The bill touches what is traditionally an
emotional issue in many venues of discussion. There are issues
surrounding relationships that people feel very strongly about.
People feel strongly about relationships on religious, ethical and
moral grounds. When those are confronted or challenged in any way,
it evokes emotion.
MR. TUMEO noted that does not necessarily mean all people respond
emotionally at the instant the topic arises. However, there is a
building sense that can be seen in many places across the country,
that gays and lesbians have gone too far. Mr. Tumeo disagrees with
this. He believes that it is his responsibility and his moral
obligation to ask for equal treatment. Such requests often evoke
a lot of emotion.
REPRESENTATIVE VEZEY asked if Mr. Tumeo would characterize this
bill as an economic issue.
MR. TUMEO replied that if the bill did address an economic issue,
Representative Robinson's amendment, as proposed in the State
Affairs Committee, clearly draws the economic tight circle which
protects the state, protects the university, and protects the Human
Rights Act of the state of Alaska.
Number 1722
REPRESENTATIVE VEZEY asked Mr. Tumeo if he would not characterize
this bill as a basic social issue.
MR. TUMEO said that depends on what Representative Vezey means by
"social issue." If relationships, the interactions between
individuals, and privacy are social issues valid for legislative
intent, then this bill could be characterized as a social issue.
In fact, at times in the past the country has had legislation
preventing interracial marriages and interfaith marriages.
Therefore, Mr. Tumeo imagines this bill would fall into the social
arena.
MR. TUMEO said mankind has progressed in society to the extent that
determining what type of relationship is good and bad is not
something that is typically left to legislative activities.
However, it is definitely something for social discussion.
Number 1801
CO-CHAIR TOOHEY asked to move on, because other people are
testifying. She announced the bill would be held over, and asked
how long Mr. Tumeo would be in town. He said he leaves the
following morning, as he has classes to teach.
CO-CHAIR TOOHEY again announced the bill would be held over,
because the HESS Committee members will have to do some work on it.
Number 1832
SARAH BOESSER, Board Member, Committee for Equality (CFE), said her
organization is statewide. The CFE askes that this discriminatory
bill be stopped or amended to include domestic partners as
suggested by the superior court. This bill intentionally
undermines the state human rights statute, and that bodes ill for
everyone. If this one exception for marital status is made here,
other exceptions may follow. Upon what basis would these
exceptions be allowed?
MS. BOESSER said human rights laws exist in part to educate people
as to what practices are discriminatory. This is so people can
avoid illegal actions. In that light, the proper response to the
court ruling would be the exact opposite of this bill. Lawmakers
should be educated by the ruling and should conclude that this is
illegal and must stop. To say instead, "We don't support marital
discrimination except in certain cases," is to act in bad faith
with regard to the promise of non-discrimination made to the public
years ago.
Number 1870
MS. BOESSER said the Juneau Human Rights Commission opposes this
bill for just that reason. Ms. Boesser is sorry the State Human
Rights Commissioners were not as protective of the statute.
However, they may be simply acknowledging the legislature's power
to amend its own law despite the court's finding that such a
position violates the very statute they were appointed to uphold.
MS. BOESSER said her organization supports the Robinson amendment.
It does not violate statute since by adding "domestic partners,"
financial interdependence, not marital status is the criteria for
benefits. And, as HESS Committee members heard, Harvard University
research and other research finds that around the country
enrollment increases of domestic partners is extremely minimal.
With limiting guidelines, recognition of domestic partners does not
result in increased benefit costs.
Number 1897
MS. BOESSER concluded by saying thus, the financial impact of this
amendment is negligible. However, if the bill passes without the
amendment, the state will certainly suffer ongoing litigation
costs. HESS Committee members face many important issues. Going
backwards in Human Rights Laws is not one of them. The session is
short, and Ms. Boesser asked HESS Committee members to save the
legislature time, unnecessary cost and divisiveness by stopping
this bill as written or by amending it to include domestic
partners.
Number 1918
REPRESENTATIVE ROKEBERG asked if discrimination concerning employee
benefits and domestic relation laws were not important issues.
MS. BOESSER said they were very important issues. That is why they
should not be discriminatory on a basis that has been found to be
illegal for years.
Number 1943
DANIEL COLLISON, Vice President, SEAGLA, said as a representative
of that organization he opposes passage of HB 226 which will deny
domestic partner benefits to employees of the University of Alaska.
Mr. Collison said one of the major arguments put forth by
Representative Kelly in support of his bill is that it would be
financially burdensome to the university health care plan if
domestic partner benefits were extended.
MR. COLLISON said this is the one issue he would like to address in
his testimony. The evidence overwhelmingly suggests otherwise. In
particular, Mr. Collison submitted a letter and attachments from
the University of Iowa benefits administrator, a packet containing
seven articles on this subject, and a comprehensive listing of
corporations, universities and government entities which have
extended domestic partner benefits to their employees.
MR. COLLISON said those who would deny domestic partner benefits
predicate a financial burden on three myths. Myth #1: If the
University of Alaska opens its health care plan to the domestic
partners of its employees, the plan will be inundated with new
enrollees.
Number 2006
MR. COLLISON explained, however, that the experience of the
university of Iowa counters this myth. The University of Iowa
extended benefits to an employee's common law marriage partner in
1953. In 1992, the same benefits were extended to an employee's
same-sex domestic partner. Currently, the university employs
approximately 26,000 people with 14,000 people eligible for
benefits. Of this number, only nine-tenths of one percent (.09
percent) are in a common law marriage, while only two-tenths of one
percent (.02 percent) are covered under the domestic partner
relationship.
MR. COLLISON continued that the University of Iowa's experience is
consistent with that of other employers. In 1993, the Seagul
Company executive letter reported that in those companies which
extend benefits to domestic partners, participation rates are less
than five percent of the work force, and frequently less than two
percent of the work force.
MR. COLLISON presented Myth #2: Extending health care benefits to
the domestic partners of University of Alaska employees will be
financially burdensome to the plan.
MR. COLLISON advised that a study appearing in the June, 1994 CCH
Employee Benefits Management Directions find the plans offering
domestic partner health coverage to same-sex couples experience
about a one percent total increase in health care costs. Plans
offering health care coverage to all domestic partners experience
approximately a three percent increase in health care costs.
Number 2070
MR. COLLISON stated Myth #3: The medical bills of a gay male
domestic partner, with, for example, AIDS-related claims, are more
costly than claims of an employee's spouse or dependent.
MR. COLLISON said the authors of an article in "Employee Benefit
Practices" report "there is no evidence to indicate the average
health care cost of a domestic partner, same sex and/or opposite
sex, will be significantly higher than that of a spouse." For
example, the average AIDS-related claim currently figures at
$119,000. A premature birth, however, can cost as much as $1
million. Two weeks in intensive care following a heart attack can
cost in excess of $50,000. This figure does not include surgery,
related costs and follow up.
MR. COLLISON said in fact, the experience of the University of Iowa
might suggest that a health plan benefits from enrolling domestic
partners rather than spouses of employees. In 1994, the University
of Iowa discovered that claims for persons in domestic partner
relationships averaged only $224 per person. A regular spousal
claim averaged approximately $2,700.
Number 2125
MR. COLLISON stated the facts overwhelmingly suggest that should
the University of Alaska extend domestic partner benefits to its
employees there would in fact be no significant added financial
cost to the university's health plan. If the committee yet harbors
concerns about the cost of such a benefit, Mr. Collison would
suggest they refer the matter to a subcommittee for a thorough
examination of all financial considerations. Furthermore, he would
suggest that the Robinson amendment, which strictly defines a
domestic partner relationship, will prevent any abuse of such
benefits and minimize any cost to the university health plan.
MR. COLLISON presented packets of information to HESS Committee
members.
Number 2166
JOHN GAGUINE, Assistant Attorney General, Department of Law, said
his department is responsible for the tracking of this bill. He is
present at the invitation of Co-Chair Toohey to answer questions.
REPRESENTATIVE VEZEY thought the underlying question he has
concerns the fact that the state of Alaska definitely does not have
provisions for common law marriage. Representative Vezey's
understanding of common law marriage is substantially different
than what was explained by Mr. Tumeo. Representative Vezey asked
for Mr. Gaguine's definition.
MR. GAGUINE said the Alaska Supreme Court has made it very clear
that Alaska does not have common law marriage in this state.
Therefore, he is not clear on the concept. However, his
understanding is that common law marriage exists when a couple has
lived together for a certain period of time, and they have
presented themselves as husband and wife. They are then considered
married.
REPRESENTATIVE VEZEY said therefore, Mr. Gaguine's understanding of
the concept is the same as his. He asked if Mr. Gaguine would
interpret the new Alaska law as handed down by Judge Greene as
establishing a sector of common law marriage.
Number 2227
MR. GAGUINE said that is a hard question. To the limited extent
that benefits are being conferred, the issue can be looked at in
that way. Mr. Gaguine would, however, say no because common law
marriage, in the states that have it, is so much broader than just
this limited decision dealing with health care benefits.
CO-CHAIR TOOHEY said going back in Alaska's history, traditionally
Native marriages were commitments between two people that said, "We
will live together." The relationships were dissolved equally as
efficiently, by saying "We will no longer live together." She
asked if Mr. Gaguine knew anything about that. He did not.
CO-CHAIR TOOHEY also asked what will happen if Judge Greene's
decision is upheld in the appeal.
MR. GAGUINE said that would depend on if the decision is made
retroactive. Given the intent behind HB 226, Mr. Gaguine said the
legislature would want to make it clear that the intent is not to
change to the law but to restate what the legislature feels the law
is. This is under the assumption that the legislature feels Judge
Greene's decision was not correct, and therefore it is not changing
the law, it is only restating the existing law.
MR. GAGUINE said again, if the Supreme Court were to uphold Judge
Greene's decision, and if the Supreme Court finds the bill is
simply a change in the law and not just a clarification in the law,
and it is not made retroactive, then the plaintiffs in that case
would be entitled to coverage for a certain period of time. Again,
however, it would seem to Mr. Gaguine that coverage would cease
when the bill became effective (if the bill is passed).
TAPE 95-29, SIDE B
Number 000
CO-CHAIR TOOHEY asked if the Administration was taking a position
on this bill.
MR. GAGUINE said he could not speak to that. He understands that
at the last committee meeting, the director of the Division of
Retirement and Benefits spoke in favor of HB 226.
REPRESENTATIVE ROBINSON interjected that the director was not
authorized. That is the reason he is not present at the current
meeting. She said she could probably get that in writing.
Number 056
REPRESENTATIVE ROKEBERG asked Mr. Gaguine if he was familiar with
the case Lilly vs. The City of Minneapolis, and he was not.
Representative Rokeberg said it was published on January 31, 1995.
It is in the Minnesota Appeals Court. Representative Rokeberg
asked if Mr. Gaguine was familiar with the Baehr vs. Lewin case
from Hawaii, and he was.
REPRESENTATIVE ROKEBERG said Mr. Gaguine pointed out that it would
be up to the Alaska Supreme Court as to the disposition of the
Tumeo-Wattum case. If the decision were thrown out, there would be
no claim on the part of Mr. Tumeo at all.
MR. GAGUINE answered that would be correct.
REPRESENTATIVE ROKEBERG said if the decision is upheld, then
according to Mr. Tumeo there would be just a claim on the part of
University of Alaska employees versus other state employees. He
asked if that was correct.
MR. GAGUINE said that was the key question. Mr. Tumeo pointed out
the statute governing health insurance procured by the DOA which
does say, as he indicated, that such insurance must be subject to
a provision that it cover each eligible employee, the spouse and
the unmarried children chiefly dependent upon the eligible employee
for support. Mr. Tumeo seemed convinced the state would be
protected if it was faced with a suit brought by a state employee
along the same lines as Tumeo and Wattum vs. The University of
Alaska. To Mr. Gaguine's knowledge, the state has not been faced
with any such claim to date.
Number 210
MR. GAGUINE has spoken with a lawyer for the university, and he has
not seen a copy of Judge Greene's decision on reconsideration.
What was given today is the university's petition for
reconsideration. Mr. Gaguine did not know whether Judge Greene
said, "No, the statute does not protect anybody," or whether she
said "No, the statute does not protect the university."
MR. GAGUINE continued that if, in fact, Judge Greene said the
statute does not protect the university and she did not make a
decision whether or not it protects the state, then maybe the state
may have adequate protection.
Number 297
REPRESENTATIVE ROKEBERG asked if any state employee with a fact
pattern similar to Mr. Tumeo's or Ms. Wattum's brought a cause of
action suit against the state for similar circumstances, given
Judge Greene's ruling, is there any precedent set or would that be
up to the courts to decide.
MR. GAGUINE said obviously, the state is more likely to get sued
now than before Judge Greene's opinion. He reiterated that this
issue is whether the other statute provides the state with absolute
protection. The state would hope the court would reach that
conclusion.
Number 362
REPRESENTATIVE ROKEBERG asked if the areas of discrimination, i.e.,
employee health benefits and the body of law around domestic
relations are both compelling of state interest and a matter of
statewide concern.
MR. GAGUINE said that is a policy question that he would rather not
answer.
REPRESENTATIVE ROKEBERG recalled that Mr. Gaguine said he is
familiar with the case from Hawaii. Representative Rokeberg
summarized that the Hawaiian Supreme Court ruled, based on the
amendments to the Hawaii constitution and the civil rights
provision on the word "sex." They said it was not related to
gender but also allowed sexual orientation. Therefore, the court
ruled that same-sex marriages were allowable under the Hawaiian
constitution.
MR. GAGUINE advised that the court did not go quite that far.
CO-CHAIR TOOHEY told Representative Rokeberg that same sex
marriages were not being discussed. What was being discussed was
marital status at the university for health care benefits. This
can include live-in partnerships or men and women who do not want
to get married. Same-sex relationships are not the only issue, and
eventually Representative Rokeberg's bill concerning marriage will
be heard.
REPRESENTATIVE ROKEBERG read a footnote on page 15 of Judge
Greene's ruling. It said, "The University would have to show that
same sex marriage is prohibited in Alaska....The University
provided no legal argument that such marriages are prohibited."
Representative Rokeberg asked Mr. Gaguine what the effect of this
footnote would be on precedent.
Number 504
MR. GAGUINE felt the footnote says the judge did not want to decide
that issue. She is ducking the issue, basically.
MR. TUMEO asked to reply to a question. He said that
Representative Rokeberg asked about the decision upon remand, and
the request for reconsideration. It was a very simple, two-
paragraph decision in which the court said two things. The
university asked for reconsideration claiming the court had missed
the very laws that Representative Kelly and Mr. Tumeo have
discussed in terms of protection to the state.
MR. TUMEO explained that the judge said two things. She said the
court cannot miss something that was not presented to it (the
university never brought those issues up in court). She also said
the university had not proven that the law showed the intent of the
legislature to discriminate against marital status for the
university. That is not the exact wording, however, the main point
is that Judge Greene ducked the issue of whether it applied to the
state or not. She did not approach that issue. She basically
said, the university did not make this argument before, therefore,
it is not appropriate to make it on request for reconsideration.
Number 601
REPRESENTATIVE ROBINSON asked Mr. Gaguine if there is any way
anyone could find out how many state employees have filed for
insurance who are actually not married.
MR. GAGUINE said he would not know that information.
Number 637
MARYLOU BURTON, Director of Statewide Budget, University of Alaska
Fairbanks, read in a statement from the university into the record.
"The University supports this bill. As you know, Judge Greene's
decision in the Tumeo-Wattum case was that under state law, the
University cannot restrict its health care benefits on the basis of
marital status. We are appealing that ruling, but if we fail in
our case, we may be faced with the need to limit benefits in some
way, which could be not covering spouses or limiting the overall
amount of benefits to individuals just to live within our financial
constraints.
"This bill provides the University and other employers the option
to limit benefits to employees and their spouses and dependents."
MS. BURTON noted that she had just read a basic statement of
support for the bill.
Number 714
REPRESENTATIVE ROBINSON asked Ms. Burton how much she thought the
loss of Tumeo's case would cost the university.
MS. BURTON said the university does not have that information at
this time. In addition, she did not believe the university has the
kind of data that can provide that information at this time.
Number 735
REPRESENTATIVE ROKEBERG asked if it would cost more than $100.
MS. BURTON said she could not say if it would, but she would
suspect so.
CO-CHAIR TOOHEY asked who is paying court costs for Tumeo and
Wattum vs. The University of Alaska.
MR. TUMEO said he paid for his own case, and Ms. Burton said the
university is paying for its case.
CO-CHAIR TOOHEY asked if there is any connection with the
Administration of the state of Alaska, or are the university's
court costs strictly out of the budget of the University of Alaska?
MS. BURTON answered that to the best of her knowledge, the court
costs were coming strictly out of the university's budget.
Number 722
REPRESENTATIVE ROBINSON asked how much the case has cost so far.
MS. BURTON answered that she does not have that information,
however, someone at the university probably knows, and she could
get that information for the committee.
MR. TUMEO spoke to the plaintiff costs. He has individually
accumulated $10,000 in legal fees, and his attorney is charging him
half price. He also noted he has a legal defense fund, if anyone
in the room wanted to contribute.
REPRESENTATIVE ROBINSON would assume the university has personal
policies that can be amended that would probably correct this
problem.
MS. BURTON replied that the university does have personnel policies
that could presumably could be corrected in such a way that would
address the problem--if that is the way the case is decided.
Number 852
REPRESENTATIVE BRICE asked if currently the university pays for
spousal benefits.
MS. BURTON said she has been back with the university for about one
and one half months, and she was sent to the HESS Committee to read
a statement in lieu of someone who could not be present. She wanted
to attach that disclaimer to her comments. However, she said under
the university's policy, you have to pay an extra amount of money
if you want your spouse or dependents covered. The coverage is not
just automatic.
REPRESENTATIVE BRICE said therefore, the employee pays for the
increase, and Ms. Burton said yes. Representative Brice then
suggested that in the instances of Tumeo and Wattum, the university
would not even allow them to pay for the increase.
MR. TUMEO said that was correct.
CO-CHAIR TOOHEY asked the cost.
MS. BURTON believed the cost was about $6.50 every pay period.
Number 892
MR. TUMEO said the university charges depending on which package is
chosen for you and your partner. The charge is somewhere between
$4 to $7 a pay period. The university also provides a small
amount, so there is some minimal charge to the university. When,
in the law case, the university was asked what that amount was, the
university was unable to produce statistics to show how much that
was because the amount is not big enough for them to keep track of
in their system.
MR. TUMEO continued that the university would not even allow him to
pay the university's portion to get the benefit, because it did not
know how much that portion was.
REPRESENTATIVE BRICE said that is what this bill is trying to
restrict. It is not being requested that the university or any
employers give benefits away. Just the opposite, people are
willing to pay for the benefits.
MS. BURTON said she could not speak on this issues.
CO-CHAIR TOOHEY told her that these are the kinds of questions that
HESS Committee members need answers to. She then asked Mr. Gaguine
if it was the place of the legislature to intervene in a decision
in the courts before that decision is finalized.
MR. GAGUINE said that is obviously a policy decision for the
legislature. He thinks, however, at this point there is a final
Superior Court decision. The legislature is not intervening in the
beginning of a lawsuit before there has been any decision rendered.
There has been a decision rendered by the superior court.
Number 996
CO-CHAIR TOOHEY summarized Mr. Gaguine's comments as the decision
has already been made.
MR. GAGUINE said the final word has not been handed down yet, as
the case is in appeal.
CO-CHAIR TOOHEY asked if, in fact legislation is passed that says
no non-employees will be accepted on benefits unless they are duly
married with a license, can the court's decision be made
retroactive.
MR. GAGUINE said there might be problems making the decision
retroactive. There is a rule that states if the existing law has
been relied upon, a change in that cannot be retroactive.
Generally, some statutes can be made retroactive, however, Mr.
Gaguine felt there would be problems making any decisions here
retroactive.
CO-CHAIR TOOHEY asked HESS Committee members what other information
they would like to request from those testifying so the bill can be
heard again promptly. She also asked to hear the amendment at the
next hearing of the bill.
REPRESENTATIVE BRICE said he still would like someone from the DHSS
to address some questions. Co-Chair Toohey agreed that would be
appropriate.
REPRESENTATIVE ROKEBERG said there has been a brand new case that
has come down, and he would like some clarification on the existing
benefit statute for the state of Alaska. He suggested that Mr.
Gaguine provide that information. He asked Mr. Gaguine to look up
the case Lilly vs. The City of Minneapolis, and then to study the
Minnesota statute as it relates to the Alaska statute. The
relation will be evident.
CO-CHAIR TOOHEY said she would also like a position paper from the
DOA.
Number 1134
REPRESENTATIVE ROBINSON asked to speak to Representative Kelly's
comments on her amendment. Representative Kelly had commented that
her amendment was discriminatory toward low income people. She
asked HESS Committee members to take the time to read her
amendment. It clearly states that it refers to a domestic partners
who reside together. There is a whole series of criteria that must
be met, such as having a joint banking account.
REPRESENTATIVE ROBINSON stressed it was important to remember that
only employed people are being addressed in her amendment and in
the bill, not unemployed people. There is a whole series of
criteria, and the couple must meet five of those criteria. One of
them is having entered into a legally binding domestic partnership
agreement. That does not cost anything to the partners.
REPRESENTATIVE ROBINSON wanted to make it clear that those who are
"the working poor" could definitely enter into a domestic
partnership act. This amendment does not discriminate against
people who are poor. Representative Robinson wanted to get that on
the record.
Number 1205
MARY GRAHAM, Interested Citizen, said she is opposed to HB 226
which appears to now say, "We, the State of Alaska, don't want to
discriminate based on marital status in general, but we will allow
extra compensation by public employers for persons who are legally
married to be considered a non-discriminatory practice." In short,
it says the state is not going to allow discrimination but anyone
can discriminate. That is how it reads to Ms. Graham.
MS. GRAHAM said, as has been pointed out in previous hearings on
this bill, persons can enter into civil contracts of many sorts to
become financially obligated to each other. Therefore, Ms. Graham
feels HB 226 is a detriment to equal protection for all Alaskans,
no an enhancement. Ultimately, it provides not equal rights but
special rights for married persons.
MS. GRAHAM urged HESS Committee members to dismiss this bill in
light of Judge Greene's ruling, and get on with the other important
business of this legislature. As noted in Judge Greene's decision,
in the two Supreme Court cases that have challenged discrimination
under the Human Rights Act, the courts conclude that protection
against discrimination based on marital status protects the rights
of unmarried couples. Although these were housing cases, Ms.
Graham believes the same principles apply.
Number 1285
MS. GRAHAM asked if the state should tell landlords they cannot
discriminate, but public employers may. Ms. Graham did not think
so, and it seems illogical to pass legislation that has already
been determined to discriminate. If HESS Committee members choose
to move forward with this bill, Ms. Graham asked that the bill be
amended to include domestic partnership language to continue to
hold to the intent of the Human Rights Act and not encourage
discrimination.
Number 1306
CO-CHAIR TOOHEY thanked Ms. Graham and asked a question to Mr.
Tumeo. She asked if he would be allowed to pay $500 a month for
the insurance if he wanted to.
MR. TUMEO answered there is some level at which, of course, an
individual can buy insurance. The standard is because the
university is a large pool, it is less expensive to buy there. The
standard cost, as he understands it, is somewhere between $150 and
$190. Mr. Tumeo and his partner offered to pay that to the
university and the university would not allow him to enroll his
partner.
CO-CHAIR TOOHEY asked when HESS Committee members would be able to
hear testimony again, and it was tentatively decided that the bill
would be heard again in nine days, on Thursday, April 6.
ADJOURNMENT
CO-CHAIR TOOHEY adjourned the meeting at 4:54 p.m.
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