Legislature(1995 - 1996)
04/09/1996 03:10 PM House HES
| Audio | Topic |
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* 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
April 9, 1996
3:10 p.m.
MEMBERS PRESENT
Representative Cynthia Toohey, Co-Chair
Representative Con Bunde, Co-Chair
Representative Gary Davis
Representative Norman Rokeberg
Representative Caren Robinson
Representative Tom Brice
Representative Al Vezey
MEMBERS ABSENT
None
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 165(L&C)
"An Act relating to psychologists and psychological associates."
- SUBCOMMITTEE APPOINTED
CS FOR SENATE BILL NO. 91(HES)
"An Act creating the crime of criminal transmission of human
immunodeficiency virus (HIV)."
- HEARD AND HELD
CS FOR SENATE BILL NO. 158(L&C) am
"An Act relating to pharmacists and pharmacies."
- SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 259(FIN)
"An Act extending the termination date of the Alaska Commission on
Aging; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: SB 165
SHORT TITLE: PSYCHOLOGISTS & PSYCHOLOGICAL ASSOCIATES
SPONSOR(S): HEALTH, EDUCATION & SOCIAL SERVICES BY REQUEST
JRN-DATE JRN-PG ACTION
04/25/95 1230 (S) READ THE FIRST TIME - REFERRAL(S)
04/25/95 1230 (S) HES, L&C
01/17/96 (S) HES AT 9:00 AM BUTROVICH ROOM 205
01/17/96 (S) MINUTE(HES)
01/18/96 2166 (S) HES RPT CS 4DP SAME TITLE
01/18/96 2166 (S) ZERO FISCAL NOTE TO SB & CS (DCED)
01/30/96 (S) L&C AT 1:30 PM FAHRENKAMP RM 203
01/30/96 (S) MINUTE(L&C)
01/31/96 2262 (S) L&C RPT CS 2DP 2NR SAME TITLE
01/31/96 2262 (S) PREVIOUS ZERO FISCAL NOTE (DCED)
02/02/96 (S) RLS AT 10:15 AM FAHRENKAMP RM 203
02/02/96 (S) MINUTE(RLS)
02/07/96 2324 (S) RULES TO CALENDAR 2/9/96
02/09/96 2359 (S) READ THE SECOND TIME
02/09/96 2359 (S) L&C CS ADOPTED UNAN CONSENT
02/09/96 2359 (S) ADVANCED TO THIRD READING UNAN
CONSENT
02/09/96 2359 (S) READ THE THIRD TIME CSSB 165(L&C)
02/09/96 2360 (S) PASSED Y19 N0 E1
02/09/96 2363 (S) TRANSMITTED TO (H)
02/12/96 2718 (H) READ THE FIRST TIME - REFERRAL(S)
02/12/96 2718 (H) HEALTH,EDUCATION AND SOCIAL SERVICES
04/02/96 (H) HES AT 3:00 PM CAPITOL 106
04/02/96 (H) MINUTE(HES)
04/04/96 (H) HES AT 3:00 PM CAPITOL 106
04/04/96 (H) MINUTES(HES)
04/09/96 (H) HES AT 3:00 PM CAPITOL 106
BILL: SB 91
SHORT TITLE: CRIMINAL TRANSMISSION OF HIV
SPONSOR(S): SENATOR(S) TAYLOR,Halford
JRN-DATE JRN-PG ACTION
02/20/95 331 (S) READ THE FIRST TIME - REFERRAL(S)
02/20/95 331 (S) HES, JUD
03/08/95 (S) HES AT 9:00 AM BUTROVICH RM 205
03/08/95 (S) MINUTE(HES)
03/10/95 (S) MINUTE(HES)
03/10/95 577 (S) HES RPT CS 3DP SAME TITLE
03/10/95 577 (S) ZERO FISCAL NOTES (ADM, LAW)
03/20/95 (S) JUD AT 1:30 PM BELTZ ROOM 211
03/20/95 (S) MINUTE(JUD)
03/21/95 720 (S) JUD RPT 3DP 1DNP (HES)CS
03/21/95 720 (S) PREVIOUS ZERO FNS (ADM, LAW)
03/22/95 (S) RLS AT 12:30 PM FAHRENKAMP RM 203
03/22/95 (S) MINUTE(RLS)
03/24/95 790 (S) RLS RPT 3CAL 2DNCAL CALENDAR 3/27
03/27/95 790 (S) READ THE SECOND TIME
03/27/95 790 (S) HES CS ADOPTED UNAN CONSENT
03/27/95 791 (S) ADVANCE TO 3RD RDG FLD Y11 N7 E2
03/27/95 791 (S) THIRD READING 3/28 CALENDAR
03/28/95 824 (S) READ THE THIRD TIME CSSB 91(HES)
03/28/95 824 (S) PASSED Y13 N7
03/28/95 824 (S) ZHAROFF NOTICE OF RECONSIDERATION
03/30/95 850 (S) RECONSIDERATION NOT TAKEN UP
03/30/95 851 (S) TRANSMITTED TO (H)
04/05/95 1015 (H) READ THE FIRST TIME - REFERRAL(S)
04/05/95 1015 (H) HES, JUDICIARY
04/09/96 (H) HES AT 3:00 PM CAPITOL 106
WITNESS REGISTER
DR. ROBB STOKES
P.O. Box 20949
Juneau, Alaska 99802
Telephone: (907) 586-3580
POSITION STATEMENT: Testified on CSSB 165(L&C)
SUSAN BAXTER
1007 West 3rd Street, Suite 301
Anchorage, Alaska 99501
Telephone: (907) 272-0155
POSITION STATEMENT: Testified in support of CSSB 165(L&C)
SHEILA CLARSON
P.O. Box 671634
Chugiak, Alaska 99567
Telephone: (907) 688-6404
POSITION STATEMENT: Testified in support of CSSB 165(L&C)
KATHRYN CARSSOW
1335 O Street
Anchorage, Alaska 99501
Telephone: (907) 274-7909
POSITION STATEMENT: Testified in support of CSSB 165(L&C)
ALLEN MOMA
P.O. Box 231453
Anchorage, Alaska 99523
Telephone: (907) 562-1846
POSITION STATEMENT: Testified on CSSB 165(L&C)
KAREN FORREST
408 Gold Street
Juneau, Alaska 99801
Telephone: (907) 463-1536
POSITION STATEMENT: Testified on CSSB 165(L&C)
KAREN GIBSON
P.O. Box 110623
Anchorage, Alaska 99511
Telephone: (907) 346-1986
POSITION STATEMENT: Testified in support of CSSB 165(L&C)
CATHERINE REARDON, Director
Division of Occupational Licensing
Department of Commerce & Economic Development
P.O. Box 110806
Juneau, Alaska 99811-0806
Telephone: (907) 465-2534
POSITION STATEMENT: Testified on CSSB 165(L&C)
JERRY REINWAND, Lobbyist
Blue Cross of Washington & Alaska
2 Marine Way, Number 219
Juneau, Alaska 99801
Telephone: (907) 586-8966
POSITION STATEMENT: Testified on CSSB 165(L&C)
SHARON MACKLIN, Lobbyist
Alaska Psychological Association
315 5th Street, Number 8
Juneau, Alaska 99801
Telephone: (907) 586-9518
POSITION STATEMENT: Testified on CSSB 165(L&C)
BARBARA GABIER, Program Coordinator
Division of Occupational Licensing
Department of Commerce & Economic Development
P.O. Box 110806
Juneau, Alaska 99811-0806
Telephone: (907) 465-2572
POSITION STATEMENT: Answered questions on CSSB 165(L&C)
JENNIFER JONES
2453 West 27th Avenue
Anchorage, Alaska 99517
Telephone: (907) 243-2868
POSITION STATEMENT: Testified on CSSB 165(L&C)
SENATOR ROBIN TAYLOR
Alaska State Legislature
Capitol Building, Room 30
Juneau, Alaska 99801-1182
Telephone: (907) 465-4906
POSITION STATEMENT: Prime sponsor of SB 91
BARBARA BRINK, Attorney
Alaska Public Defender Agency
900 West 5th Avenue, Number 200
Anchorage, Alaska 99501
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on CSSB 91(HES)
AMY EILERTSEN, Director
Stop AIDS Project
520 East 4th Avenue
Anchorage, Alaska 99501
Telephone: (907) 278-5019
POSITION STATEMENT: Testified on CSSB 91(HES)
JOHN MIDDAUGH, MD., Chief
Epidemiology Section
Division of Public Health
Department of Health & Social Services
P.O. Box 240249
Anchorage, Alaska 99524-0249
Telephone: (907) 561-4406
POSITION STATEMENT: Testified in opposition to CSSB 91(HES)
JAYNE ANDREEN, Executive Director
Council on Domestic Violence & Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4356
POSITION STATEMENT: Testified in opposition to CSSB 91(HES)
LYNN STIMLER, Executive Director
American Civil Liberties Union of Alaska
P.O. Box 201844
Anchorage, Alaska 99520
Telephone: (907) 258-0044
POSITION STATEMENT: Testified in opposition to CSSB 91(HES)
RACHEL KING, Board Member
Alaskan AIDS Assistance Association
West Fireweed Lane
Anchorage, Alaska 99501
Telephone: (907) 276-3989
POSITION STATEMENT: Testified on CSSB 91(HES)
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified in opposition to CSSB 91(HES)
ACTION NARRATIVE
TAPE 96-37, SIDE A
Number 001
The House Health, Education and Social Services Standing Committee
was called to order by Co-Chair Con Bunde at 3:10 p.m. Members
present at the call to order were Representatives Bunde, Toohey,
Rokeberg, Robinson and Vezey. Members absent were Representatives
G. Davis and Representative Brice. A quorum was present to conduct
business.
CO-CHAIR BUNDE announced the calendar for the meeting was CSSB
165(L&C), "An Act relating to psychologists and psychological
associates"; CSSB 91(HES), "An Act creating the crime of criminal
transmission of human immunodeficiency virus (HIV)"; SB 158, "An
Act relating to pharmacists and pharmacies;" and SB 259, "An Act
extending the termination date of the Alaska Commission on Aging;
and providing for an effective date."
CSSB 165(L&C) - PSYCHOLOGISTS & PSYCHOLOGICAL ASSOCIATES
CO-CHAIR BUNDE said this was the second hearing on CSSB 165(L&C)
and asked Dr. Stokes to come forward to testify.
Number 088
DR. ROBB STOKES said the committee had requested he obtain the
recommendations of other board members with respect to the length
of supervision required. The licensing examiner, Wanda Fleming,
was able to get three responses which constitutes a quorum of the
board. One board member recommends two years of licensed practice
which means three years pre-license, licensure, two years and then
petition the board. He noted that current statute requires a
person to petition the board, even with the five years. The Chair
of the board recommends one year; three years pre-license,
supervision for one year post license and then the person would be
independent.
CO-CHAIR BUNDE asked if that would be independent without
petitioning the board?
DR. STOKES said the individual has to petition the board in all
cases. He stated his recommendation was to leave it at three years
pre-license and allow a person to petition the board when they
become licensed. It ranges from two, one to zero post license.
CO-CHAIR TOOHEY questioned if he is the only board member who
agrees with that, what chance does a person have petitioning the
board?
DR. STOKES replied in his opinion, a very good chance because the
board is very flexible. He added that 99 percent of psychological
associates who apply, including psychologists, are rejected because
they don't have adequate course work as delineated in statute.
Plans are set up for these individuals and they complete those
plans. If an individual lacks certain courses but can demonstrate
they have met the criteria for the course work by presenting a
syllabus or a letter from their instructor, the board will accept
it. He added that 99 percent of the psychological associates that
are rejected because they don't have the course work, do just that.
REPRESENTATIVE TOM BRICE arrived at 3:12 p.m.
CO-CHAIR BUNDE inquired if 99 percent of the people who petition
the board are rejected.
DR. STOKES said no, the board does everything they can and 99
percent of those rejected will do whatever needs to be done to get
their license. He commented that the committee had not heard
testimony from those individuals, but has heard testimony from the
other 1 percent.
CO-CHAIR BUNDE asked of the people who petition, how many are
rejected?
DR. STOKES said 50 percent, including psychologists. He added
there was no difference in psychologists or psychological
associates in terms of rejecting applications and it's almost
always because the person doesn't have the course work required by
statute.
CO-CHAIR BUNDE clarified that of the 50 percent that get rejected,
the majority of those individuals are given a remedial course of
action, are able to meet the criteria and are then accepted.
DR. STOKES responded that was correct and the board is very lenient
in setting up plans for them and those people do get licensed.
CO-CHAIR BUNDE asked if it was correct that of the people who apply
for licenses, 90 percent are licensed?
DR. STOKES reiterated if those individuals choose to go back and
meet the requirements.
CO-CHAIR TOOHEY asked why a student would go to a school that
wasn't following the criteria of the Board of Psychological
Associates? Also, why would Postsecondary Education allow a
student to get a student loan and go to a school that does not meet
the academic standards for licensure?
DR. STOKES said that was an excellent question and one that has
been raised in the past. He explained there is no connection
between the university and the board. One of the big problems is
that students do not read the statutes and the requirements before
they apply. Dr. Kappes, Chair of the Board, has been able to get
two courses approved and they will now be taught at the University
of Alaska, so psychological associates can meet those requirements.
The one course that has been in people's way is called Human
Development which Dr. Stokes took as an undergraduate, as do most
people. He said he has tried to get that course out because it has
stood in the way of almost every psychological associate who has
applied, but he has been voted down. However, if students are able
to show they have met what the board considers adequate
understanding in human development in their course work, the board
will grant it.
CO-CHAIR TOOHEY said this was appalling to her. She is a nurse who
went to school in Alaska, applied for a nursing degree, took the
required courses at school, got her degree, took the state board
exams and became a practicing nurse. She asked why there is such
a breakdown in the psychological field?
DR. STOKES commented that the board gets applications from schools
all over the country, but he didn't know why there was a breakdown.
He added the board is held to the statutes that were in place
before they became members of the board.
CO-CHAIR BUNDE suggested that perhaps some of the students in
Alaska's program would be testifying and the committee could find
out if they have the same problems. He said it is kind of
illogical to think that an Alaskan school would not meet the Alaska
requirements.
Number 607
DR. STOKES gave the committee some history to point out his
advocacy because it was being alleged that since he had the
intelligence and the motivation to get a Ph.D. and do the eight
years somehow that was negative. When he applied for licensure the
requirement was one year, then licensed, and supervised for the
rest of your life. During that time period, it was changed to
three years. He petitioned the board to allow him to do the one
year, but he was turned down. He and another psychological
associate found that untenable and through Senator Fahrenkamp were
able to get legislation passed for the five years in order to get
independence. He commented that he has worked towards getting
psychological associates more independent, not the other way
around.
CO-CHAIR BUNDE confirmed Dr. Stokes' testimony was that the current
bill says three years before licensure, two years after licensure.
DR. STOKES interjected the bill before the committee states two
years before licensure, take the exams, and then the person is
independent.
CO-CHAIR BUNDE asked if Dr. Stokes was recommending three years,
take the exam and then become independent.
DR. STOKES confirmed that and added another board member is
recommending take the exam, one year and then become independent;
another board member recommends three years, take the exam and then
two years. That brings it to an average of one year post getting
the degree. He reiterated his recommendation of three years and to
get rid of the five years totally.
CO-CHAIR TOOHEY asked if three years post was correct?
DR. STOKES replied no, it was three years pre-licensure.
CO-CHAIR TOOHEY remarked it was three years pre- and one year post,
for a total of four years.
DR. STOKES stated that was correct.
CO-CHAIR BUNDE explained that was only one board member's
contention.
DR. STOKES pointed out his contention was to get rid of the five
years, petition the board and then independence.
CO-CHAIR TOOHEY commented that she had lost faith in the board's
ability to go back to what she thinks is reasonable. It is her
belief that eight years supervision for anyone with a master's
degree was ludicrous. Her recommendation was that the board come
up with regulations outlining what course work was required and
either the schools follow that criteria or they don't get the
students.
DR. STOKES reiterated that the board is held to the existing
statutes and in the four years he has served on the board, to his
knowledge the board has never rejected a petition. He added that
at the last board meeting there were two petitions by people who
had completed the five years and the board granted them
independence.
CO-CHAIR TOOHEY said she believed there had been testimony at the
last meeting that there were 400 people who had graduated and were
waiting for their license.
DR. STOKES recalled the testimony indicated there were 400 people
who had graduated, but only a small amount had applied for
licensure.
CO-CHAIR BUNDE commented there were people on teleconference
waiting to testify.
SUSAN BAXTER testified via teleconference from Anchorage that she
was licensed in December 1995 after a fairly long process. When
she applied to the board the first time for the examination, she
was refused. In the process she sought specific guidance from the
board in terms of what she might be able to do to meet the
requirements. Specifically, the requirement that she lacked was
course work at the graduate level in human development. There were
no classes available in the state of Alaska at that time in human
development; however, the university had taken some steps to infuse
that (indisc.) in other courses, so the university felt at that
time they were meeting that requirement; however, the board did not
recognize that course work. She went through a rather significant
process to inform the board of her own qualifications and the
course work she had received. Because she had worked in the field
of early childhood during her three years supervision, the board
found her qualified. She did, however, express concern that the
board had requirements which were not possible by their own
interpretations. She shares the concerns about the interaction
between the university program and the board's interpretation of
what (indisc.). There are a number of students caught in the same
situation that she was; a change in interpretation of the statute
from the previous board to the present board.
MS. BAXTER said in terms of supervision, she is now licensed but
she had an extra year of supervision which gave her a total of four
years supervision. The one year does not count however because the
period of time that counts begins at the time the license is
issued, so even though she has four years of supervision now, she
still has to do an additional five years.
Number 1057
CO-CHAIR BUNDE asked if it would be fair to characterize Ms.
Baxter's position as supporting the bill in its current form?
MS. BAXTER replied yes.
Number 1072
SHEILA CLARSON testified via teleconference from Anchorage that she
is a licensed psychologist at the Ph.D. level, currently in private
practice in Anchorage and secretary of the Alaska Psychological
Association. She testified in support of CSHB 165(L&C) and she
wished to testify from the perspective of the impact on the rural
mental health programs. From 1988-1994, she was employed as the
chief psychologist for the Alaska Area Native Health Service and
her job was to provide support, technical assistance and training
in the development of mental health programs around the state. A
major issue had to do with the problems created by the fact that
mental health programs in the Bush could not hire master's level
psychologists as easily as they could hire social workers or nurse
practitioners because it was so much more difficult for the people
with a masters in psychology to be licensed as psychological
associates. People who wish to work in the rural region and have
a masters in psychology from a program, for example at the
University of Alaska Anchorage, are at a disadvantage if they do
wish to be employed in the Bush because social workers and
psychiatric nurse practitioners can be licensed after two years.
From the perspective of the mental health programs, in many cases
the individual who was thought to be the best person for the job
was not licensed and needed to work under supervision because they
were a master's level psychologist (indisc.) so a social worker or
a nurse practitioner would be hired instead. Her reason for
supporting this bill is that she believes it brings master's level
practitioners in line with other mental health practitioners like
social workers and psychiatric nurse practitioners. She believes
that's fair and it provides additional resources to rural mental
health programs that want to hire those people.
CO-CHAIR BUNDE asked if Ms. Clarson felt the bill as currently
written is adequate with two years of supervised practice?
MS. CLARSON responded yes, she did.
CO-CHAIR BUNDE asked if there were any questions of the witness.
Hearing none, he invited Kathryn Carssow to testify.
Number 1291
KATHRYN CARSSOW testified via teleconference from Anchorage that
she has a master's level degree in clinical psychology and wanted
to address a couple of points raised by Dr. Stokes. First, the
course work issue regarding psychological associates and the board
is a very hot issue presently and is of deep concern to her.
However, she didn't feel that was what this bill was about. She
believes the board will be taken care of. The Governor's Office
has listened to the tapes from the last two board meetings and
inasmuch as the board is up for reappointment she is not concerned
about that issue because she thinks a reasonable board will take
care of it in a fair and just way. This bill has been in front of
individual board members as well as the full group for over six
months and she feels the inconsistent input on how to change the
years of supervision is a little late and poorly done. She said it
is representative of this board of not being flexible and felt the
board is impulsive, arbitrary and hostile towards the master's
level psychological associates. She expressed her disappointment
with the board in the way it is reacting. She concluded that she
supports CSHB 165.
CO-CHAIR BUNDE asked if it was Ms. Carssow's position that the
board of which a member teaches the psychological associate program
at UAA is hostile to their own students?
MS. CARSSOW responded in the affirmative. She added it was her
personal feeling that over the years there has been a difference on
the faculty, but when she entered the program she had a written
statement that said this University of Alaska clinical psychology
program, of all the programs provided in the state, was the only
one that had a curriculum which provided that students be eligible
to sit for licensing. She believed the board was aware of that
curriculum and was supportive of it. The university was acting in
good faith with a program that in terms of cultural diversity and
human development those requirements were infused very purposefully
and very thoughtfully in the curriculum. She has a letter from the
Dean's Office supporting that approach. Suddenly, a year ago last
fall, the board re-interpreted its regulations and started
requesting that students go back and get these courses, one of
which, human development, was not even provided. The Chair of the
board sits on the graduate study committee. She sat in his classes
as a graduate student. He also was part of her graduate student
orientation and never once did he indicate to her that she may not
be eligible for licensure. Instead, she had a written statement
that she would be eligible for licensure. She added that it had
been insinuated that she had asked to sit for licensing, but in
fact she cannot ask to sit for the examination until she has three
years of supervision.
CO-CHAIR TOOHEY asked if the University of Alaska Anchorage program
was accredited by the American Psychological Association?
MS. CARSSOW said she would let Mr. Moma answer that question.
Number 1463
ALLEN MOMA, Alaska Psychological Association and Co-Chair of the
committee that originated this bill, testified the American
Psychological Association (APA) does not endorse or certify
master's level programs; they only certify doctoral level programs.
Currently, the master's level program at UAA is in the process of
gaining certification from the North American Association of
Master's Level Programs, which he surmised would be in place in the
next year or two. He added the UAA does have certification at the
university and their product is such that it has been certified by
the Collegiate Certification Board (indisc.).
CO-CHAIR BUNDE said he understood that, and asked if that qualifies
them to teach psychology.
MR. MOMA responded that was correct.
CO-CHAIR BUNDE asked Karen Forrest to come forward to testify.
Number 1540
KAREN FORREST testified that she has a masters degree in clinical
and counseling psychology, is working toward licensure as a
psychological associate under Dr. Stokes and has two years
supervision in at the present time.
CO-CHAIR BUNDE asked where she had gone to school?
MS. FORREST replied Western Washington University in Bellingham.
She said it appeared the biggest controversy focused on the number
of years for licensing. She noted a comparison had been made to
teachers and how much supervision they might need and urged the
committee to look at more similar fields such as clinical social
work and marriage and family therapists. She distributed
information she had received from the Division of Occupational
Licensing on the requirements and the scope of practice for
psychological associates, social workers and marriage and family
therapists. It seemed like the main defense against the bill was
that the scope of practice for a psychological associate was much
more extensive. She noted that it is different and asked the
committee to review the different scopes of practice and make their
own decision in terms of depth of practice. She encouraged the
committee in making the decision to think about the purpose of the
license; if it is to protect the public, she wasn't sure that more
supervision after the two years is going to protect the public.
She said she knew of a tremendous number of people who were not
seeking licensure at all, and don't fall under the regulations,
because of the overwhelming procedure.
CO-CHAIR BUNDE asked why it is that people don't realize before
they pursue their degree what a seemingly onerous challenge it is
to become licensed as a psychological associate.
MS. FORREST thought that people begin graduate studies for
different purposes. In her particular case, she did not begin
graduate studies for the purpose of being a full time therapist in
this field, but rather for her own personal reasons, interests and
intellectual stimulation. She realized after going through the
program, this is what she would like to do. She added there is a
lack of consistency between programs throughout the country and
licensing requirements in different states. She could have become
licensed much more easily in the state of Washington than in
Alaska.
CO-CHAIR BUNDE asked if Washington has reciprocity with other
states?
MS. FORREST said she could have stayed and sought licensure there
and there would have been reciprocity, but she was born and raised
in Juneau and didn't want to give up her Alaska residency.
CO-CHAIR BUNDE asked if it was fair to say that people who seek the
degree and then choose not to work in the field or not to seek
licensure are not necessarily seeking licensure because of the
onerous requirements, but because they have chosen to study in that
field and will apply it somewhere else or for self-fulfillment.
MS. FORREST imagined there were other people like that; she started
taking the program for those reasons, but she was aware of a
tremendous number of people who had gone through master's level
programs and may qualify in another state, but are not seeking
licensure in Alaska because of the tremendous procedures involved.
Number 1759
REPRESENTATIVE ROBINSON asked Ms. Forrest if she knew what the
rules were in Washington State?
MS. FORREST stated when she went through the program, it was her
understanding there was a grandfather clause that would have
allowed her to take the exam when she graduated, but it was being
changed to two years of supervision, take the exam and then be
independent.
Number 1799
KAREN GIBSON testified in support of the legislation as it is
written. She noted this bill has received the support of the
professional psychology organization. Their subcommittee drafted
the bill so the body that represents all the psychologists in the
state, whether licensed or not, support it and both universities in
Anchorage support it.
CO-CHAIR BUNDE asked if it was the psychologists or psychological
associates who supported the bill?
MS. GIBSON responded that both can be members of the Alaska
Psychological Association. She continued that the major thrust of
this bill is to seek parity and noted the information before the
committee shows the education and supervisory experience required
before licensure; however, what it doesn't show is that the
educational requirements are different. For example, at UAA a
person has to have at least 1,000 hours of supervised clinical
experience before graduation even though it's not in statute. The
practicum at the university is videotaped for the student and
everyone else to critique. To become a licensed social worker,
their statutes state that a person only needs a masters degree, but
to become a psychological associate a person needs a masters
degrees, but it specifies a minimum of 48 semester hours and
certain areas must be covered. A person only needs 33 hours to be
a licensed marital and family therapist. Even though the bill is
seeking some parity in the amount of time after graduation, people
who have a masters degree in psychology have received far more
training than the other disciplines which are the only comparable
disciplines for licensure. That was the point she wanted to
stress.
Number 1889
REPRESENTATIVE AL VEZEY said he would characterize 33 hours as one
academic year.
MS. GIBSON responded it would be a tough academic year, but it
could be done.
REPRESENTATIVE VEZEY commented that he would characterize 48 hours
as one and one-half year.
MS. GIBSON said it's a two and one-half year program. A person has
to do 20 hours a week for a year in a site and there has to be a
certain amount of course work before beginning clinical work. The
48-hour program at UAA, which the degree is a 50-hour minimum,
takes at least two and one-half years because of the timing of the
courses.
CO-CHAIR BUNDE asked Mike Tibbles to apprise the committee of the
insurance issues that were raised at the last hearing.
Catherine Reardon joined Mr. Tibbles at the witness table to
discuss the insurance questions.
Number 1946
CATHERINE REARDON, Director, Division of Occupational Licensing,
Department of Commerce & Economic Development, testified she had
requested that a person from the Division of Insurance be available
to provide some backup information; however, that person was not
prepared to testify.
CO-CHAIR BUNDE asked what the resolution was to the question that
had been raised at the last hearing on the bill.
MS. REARDON said having not been present at the last hearing, her
understanding was the question related to insurance reimbursements
for psychological associates versus psychologists; specifically can
the psychological associate bill at the same rate even though a
psychologist may have more training than the psychological
associate. She stated that both psychologists and psychological
associates already appear in the nondiscrimination section of the
insurance statutes which indicates that providers can't be
discriminated among. She noted that was the same section of
statute that was of concern with the physician assistants
legislation. It is her understanding that generally insurance
companies reimburse for a specific procedure; in this case for
mental health care it could be for counseling, and that insurance
companies tend to set a standard and customary rate for that
procedure or treatment and not to distinguish between which
licensed health care professional provides it. When she asked the
question if insurance companies could choose to reimburse different
amounts depending on which type of licensee provided the service,
the answer as she understands it is that it has never been tested
in court and perhaps the theory that the treatment is not identical
if it is provided by someone with a different background education
could be used as an argument for different standard and customary
rates.
CO-CHAIR TOOHEY believed the committee was given a totally
different answer at the last hearing. She felt it was dishonest to
be treated by a psychological associate and billed at the rate for
a psychologist. She believed it was important that the issue be
addressed, particularly at a time when attempts are being made to
lower the cost of medical care. The other issue is why should a
person become a psychologist when you can get the same fee for
being a psychological associate.
REPRESENTATIVE GARY DAVIS arrived at 3:50 p.m.
Number 2117
REPRESENTATIVE VEZEY said this all points to Title 21 dealing with
the insurance discrimination statutes. He noted that two years ago
the statute was changed so direct entry mid-wives couldn't be
discriminated against and four years ago psychologists,
psychological associates and licensed clinical workers were added
to that statute. It appeared to him the problem some people were
having with the bill was not whether these people could be licensed
in two, four or five years, but rather what kind of financial
burden would it be compelling the group insurance providers to pay
for this service by granting them this license privilege in
connection with an anti-discrimination statute.
MS. REARDON said she didn't believe this bill would change the
situation concerning billing. She explained the state doesn't set
the rates health care providers can charge and she assumed the
legislature didn't want to get into how much different
professionals could charge for their services. In terms of the
reimbursement, a professional can charge whatever he/she wants and
then the amount that would be reimbursed is up to the insurance
policy. Even if the psychologists and psychological associates
were removed from the non-discrimination statute, all that would
happen is their patients would have to pay for the service out of
their pockets. She wasn't sure it would necessarily result in the
type of distinguishing between the different professionals in terms
of their billings that was being discussed.
CO-CHAIR BUNDE commented that an individual had called him earlier
and expressed some serious concerns that the insurance companies
were really practicing medicine because they were deciding, in
essence de facto, by what service they would cover and how much
they would pay. The individual offered that perhaps if the non-
discrimination clause was deleted, the insurance companies may quit
practicing medicine.
Number 2234
CO-CHAIR TOOHEY asked what the point was of having the non-
discrimination list if the insurance companies were not taking
advantage of it? If the insurance companies are paying a fee for
a particular service, regardless of who provides the service, she
questioned whose responsibility it was to cut the cost of medicine?
She maintained it is each persons's responsibility to oversee it
and when a particular service is being provided, a person should
demand that it be provided by a nurse or physician assistant for
example, because it will be cheaper. She believed the Division of
Insurance should be looking at those things.
Number 2275
JERRY REINWAND, Lobbyist for Blue Cross of Washington & Alaska,
said he really hadn't intended to create a problem by raising the
question at the last hearing, but he did think there was an
underlying issue that gets to the unfair discrimination issue and
that's why he had asked the question, "Can, for example, if we get
a bill for the same scope of service from somebody who charges $500
an hour or the same person arguably is providing the same scope of
service for $50 an hour and under the unfair discrimination
statute, which -- can we say we don't pay the $50 and we can pay
the $500 one?" In all fairness to the Division of Insurance, he
said it was a huge gray area and the division is looking at this
very question. His specific question last week was, "Does this
bill in any way open the flood gate a little bit more so that
because of the unfair discrimination statute that psychologists,
psychological associates and clinical social workers are now on the
books for, does that somehow increase costs to either the state
and/or insurance companies and ultimately policy holders?" He does
believe there is a link there. He didn't really want to cause a
problem with this bill particularly, but he thinks there is a
bigger policy question involved. He added this probably isn't the
vehicle to attack the issue, however.
CO-CHAIR TOOHEY asked if it would be in the best interest of the
insurance company to handle the issue of setting different degrees
of pay for different degrees of education, not service.
MR. REINWAND replied he really hadn't thought about it in that
context.
TAPE 96-37, SIDE B
Number 001
MR. REINWAND continued he would like to leave the unfair
discrimination statute for the committee to consider as he felt it
could have some interesting interpretations. He added there have
been conflicting interpretations from the division and he would
probably be asking the committee to revisit this issue at some
point.
CO-CHAIR TOOHEY asked if there were three levels of mental health
providers - psychological associates, psychologist or a
psychiatrist - which one would Mr Reinwand want to pay?
MR. REINWAND said probably from the insurance company's point of
view and hopefully from the patient's as well, a person would want
to go to the health care provider that provided the best service
for the least cost; that's ultimately what everyone is after.
Whether this bill does that and whether the unfair discrimination
statute ultimately results in that is another question.
Number 051
REPRESENTATIVE ROKEBERG asked if Blue Cross makes a differentiation
between a temporary licensed psychological associate and a licensed
psychological associate in terms of paying a fee?
MR. REINWAND said he didn't know. He added that he has asked his
client, Blue Cross, a series of questions and he hasn't yet gotten
any answers back, but he would check on it.
REPRESENTATIVE ROKEBERG said he felt that was really the question.
There certainly is a differential between the experience level and
as far as he could tell, this bill as well as the existing statute
does not draw a differentiation between those people that are
temporarily licensed and those who are not.
CO-CHAIR BUNDE asked if there was any further testimony on CSSB
165(L&C).
Number 094
SHARON MACKLIN, Lobbyist for the Alaska Psychological Association
said she would try to answer a couple of questions that had been
raised. Regarding the scope of practice, she referred to page 3,
Section 5, and said that could be coordinated with the last page of
the document that had been distributed to the committee on the
scope of practice for a psychological associate. She said that is
the only section that includes the scope of practice and this bill
does not expand the scope of practice that psychological associates
would be providing. Another question that was raised had to do
with whether insurance companies pay different rates for the cost
of services by psychological associates, psychologists, masters of
social workers and marriage and family therapists. She said when
the issue of unfair discrimination was raised several years at the
time when psychologists, psychological associates and masters of
social workers were added, part of the testimony brought forward
was that these people provided services at a lesser rate and they
are more available in rural Alaska and in less urban areas. She
added that psychiatrists who are Mds probably charge the most, but
are not located all over the state so not everyone has access to
mental health services through a psychiatrist. Therefore, more
services can be provided by adding other levels of mental health
providers and their rates are different. She noted that SB 165 was
introduced last year but didn't have any hearings. It's had two
hearings in the Senate this year and passed the Senate by a big
majority vote. Some of the other insurance companies have had a
chance to review this and no questions were raised until now. She
invited questions from committee members.
CO-CHAIR TOOHEY asked if continuing education was required for
psychological associates and psychologists?
DR. STOKES responded 20 hours annually was required for both.
REPRESENTATIVE ROKEBERG asked Ms. Macklin if she was saying this
bill didn't expand the scope of service of a psychological
associate? He said, "Correct me if I'm wrong, Ms. Macklin, but it
seems it deletes specificity and the specified areas on the license
which could be provided or work done by an associate, and expands
it to almost anything. I'm not sure that's the intention, but that
certainly looks like an expansion of services to me."
MS. REARDON responded that under current law the division does
license psychological associates as counseling or clinical and that
is printed on the license. However, it was her understanding there
have not been any distinctions made in terms of what is legal for
someone who has clinical written on their license and what is legal
for someone else who has counseling written on their license to do.
She understood that both types are able to do the whole range of
psychological services as long as the person stays within their
area of knowledge and competence. It was her impression that
although the division is printing a certain thing on the license,
it does not come in any way with a list of things that a person
should or shouldn't do under that license that really distinguishes
one from the other. She said that perhaps Dr. Stokes had a
different understanding and deferred the question to him.
DR. STOKES said the only difference is under Title 47 which
involved civil commitment. Only a psychological associate with a
specialty in clinical psychology is considered a mental health
professional. Whereas, a psychological associate with a counseling
specialty is not considered a mental health professional (indisc.).
Number 342
MS. FORREST mentioned that she would like to address Representative
Rokeberg's question. She referred to page 3, line 7 of CSSB
165(L&C) which states "A psychological associate shall be licensed
to provide psychological services..." and said the statute defines
psychological services. Thus, it is spelled out (indisc.-paper
shuffling).
REPRESENTATIVE ROKEBERG asked Ms. Reardon if the word "temporary"
appears on the license?
MS. REARDON replied yes.
REPRESENTATIVE ROKEBERG asked for verification that it would read
"Temporary psychological associate."
MS. REARDON clarified that she had been referring to the temporary
psychologists license; there are no temporary psychological
associate licenses at this time.
REPRESENTATIVE ROKEBERG asked if a person under the three year
supervision plan is licensed as a psychological associate or is the
person not granted a license for those three years?
MS. REARDON deferred the question to her Program Coordinator,
Barbara Gabier.
Number 417
BARBARA GABIER, Program Coordinator, Division of Occupational
Licensing, Department of Commerce & Economic Development, said
currently there is no temporary license or licensure required while
an associate level graduate is getting the three years of
experience.
CO-CHAIR BUNDE asked if that was because they work under the direct
supervision of a psychologist?
MS. GABIER confirmed that.
CO-CHAIR TOOHEY asked if the person would receive a temporary
license for five years after graduation?
MS. GABIER replied no. She explained that currently when a person
graduates, he/she has to get the three years of supervised
experience before applying for the exam. Then after licensure, the
person would have to practice for five years before applying for
independent practice.
CO-CHAIR BUNDE announced there were two additional people in
Anchorage who would like to testify.
Number 454
MR. MOMA testified that he was with the Alaska Psychological
Association. He said with regard to the issue of scope of
practice, the underlying theme is based on the American
Psychologist Association's ethics guidelines which specify that a
person cannot perform a procedure in which they have no training
and expertise in performing. He referenced the examples of
biofeedback and hypnosis that were given at the last hearing and
said he had checked with a variety of people, both master's level
individuals and Ph.D. level individuals to try to find out if
biofeedback or hypnosis was part of a typical Ph.D. program; both
of the areas are not part of a typical Ph.D. program. Both a
master's level person or a Ph.D. level person would be required to
get additional training in order to perform those types of
services. The point is that (indisc.) tried to tie to the national
standard for acceptability of practice as opposed to specifying a
laundry list of things that a person can or can't do. He said the
issue had been raised about why psychological associates or
individuals receiving a masters degree were suddenly interested in
having a license. He explained that over the last few years,
managed care has come into play as insurance companies have become
more cost conscious and are starting to require a license of
individuals before they will reimburse. That is not just for
individuals in private practice, but also for individuals working
for agencies. What is happening is that agencies will not hire a
psychological associate because they can't get reimbursement from
the insurance companies. The (indisc.) is starting to dry up which
has made the need for a license more critical now than it has been
in the past.
MR. MOMA said that insurance companies usually reimburse based on
a standard they set internally and usually reimburse at the usual
and customary charge for a given service as it is provided. There
are mechanisms in place for insurance companies to determine what
an acceptable fee is to be charged. Another point that comes into
play relating to insurance companies is typically individuals,
particularly children in smaller communities in Alaska, are being
transported into Anchorage to spend time at North Star, Charter
North or some type of facility when that child might be able to
receive services in their home community if there were individuals
available with the training and the ability to provide services.
Presently, a number of smaller communities don't have anyone to
provide those services because there is no reimbursement mechanism
in place.
MR. MOMA conveyed a story relating to the board where an individual
in Anchorage had completed her three years of training, had sat for
her exam, passed her exam and was at the end of her five year
period of supervision. The board at its last meeting decided she
didn't have the human development and multi-cultural (indisc.)
classes that are part of the board's determination, so the board
denied her the ability to practice independently based on not
having those two classes. Part of the reason they have implemented
the temporary license idea has to do with being able to meet with
the board and have a contractual relationship to agree on a
proposal for an acceptable standard and an acceptable course of
training so at the end of that training a person could get a
license. What's happening now, especially with this board, is that
the rules have been changed and individuals who have been on a time
line for eight years are not being notified and accommodations are
not being made for the individual to get the course. In
conclusion, he believes this bill provides psychological associates
and mental health services in rural communities. Also it improves
the oversight of the board on mental health providers who are
practicing in the community currently.
Number 735
JENNIFER JONES from Anchorage said she had nothing more to add to
the discussion on CSSB 165(L&C).
Number 745
DR. STOKES said the board is being painted as negative. He pointed
out the board did not write the statutes and the individuals who
are upset with the statutes should be angry at whoever wrote the
statutes. The board is held by law to follow the statutes. His
recommendation for the additional year is because of psychological
testing. Several years ago, the primary reason for complaints and
litigation against psychologists and psychological associates was
sexual activity between the therapist and the patient. In the last
year that has changed. The primary reason for litigation and
complaints filed with the Division of Occupational Licensing has to
do with child custody evaluations involving psychological testing.
It is his opinion that without the additional year of supervision
specific to psychological testing, psychological associates under
this bill are setting themselves up for malpractice suits and
litigation. His concern is to protect psychological associates by
ensuring they are prepared and to protect the public at the same
time.
Number 804
CO-CHAIR BUNDE closed public testimony on CSSB 165(L&C).
REPRESENTATIVE ROKEBERG expressed concern about the definition of
psychological services and how it fits into the statute. Also, he
was concerned about the length of time, the lack of differential
between a temporary license and another license, and also the
questions regarding the insurance issue. He felt that additional
work was needed and he wasn't prepared to vote on the bill at this
time.
CO-CHAIR BUNDE announced he would place CSSB 165(L&C) in a
subcommittee to be chaired by Representative Rokeberg and
Representatives Vezey and Robinson as members.
CO-CHAIR BUNDE turned the gavel over to Co-Chair Toohey.
CSSB 91(HES) - CRIMINAL TRANSMISSION OF HIV
Number 881
CO-CHAIR TOOHEY said the committee would be taking testimony only
and would not be moving CSSB 91(HES) out of committee at this
meeting.
Number 929
SENATOR ROBIN TAYLOR, Sponsor, said Senate Bill 91 was introduced
because of an article, which he had provided committee members with
a copy, relating to one of the more winning race car drivers on the
Nascar circuit named Richmond. He earned $2.3 million and won 13
Winston Cup races. He also was infected with AIDS, never bothered
to notify his sexual partners and it is estimated he's probably
going to kill 30 women. He already died. The picture in the
article is that of a beautiful woman who has graced the covers of
Glamour, Seventeen and Cosmopolitan magazines. Her doctor is
quoted as saying, "She suffers today from temporal wasting"; in
other words her skull is caving in as a complication of the AIDS.
He referred to another article about a heterosexual woman infected
with AIDS who said, "I feel if I have to die of a horrible disease,
I won't be going alone." This woman lives in the Dallas area where
she frequents bars and attempts to infect as many man as she can.
He added that Dallas is rated number 12 nationally for AIDS; they
have over 3,200 recorded cases in their community. Another reason
he introduced this legislation is because of an individual named
Governor Jim Edgar, current Governor of Illinois, who wanted to be
kind and considerate. He explained that a woman had been convicted
and sentenced to three years in prison because after being
diagnosed with AIDS, she intentionally attempted to infect other
people with the disease by having unprotected sex. Governor Edgar,
who wanted to be a nice person, commuted her sentence. Three weeks
after her sentence was commuted, "Tracy Eichman, 34, was arrested
by Rockford police on Tuesday after offering to perform sexual acts
for a police officer for $20, authorities said. She was being held
in the Winnebago County Jail on $25,000 bond. She faces one to
three years in prison if convicted on the new charges. In February
1991, Eichman was sentenced to 3 years in prison after being
convicted." Governor Edgar commuted her sentence so she could get
back out on the street and infect more people. Senator Taylor
referred to an article about a heterosexual male, William Barker,
who had tested positive for the AIDS virus and threatened to take
all the women with him that he could before he dies. He quoted
from the article, "Barker was arrested April 9 after a parole
officer received a tip that Barker was deliberately trying to
infect women with AIDS, Stewart said. Police found Barker and the
women in a motel room. She became hysterical when officers told
her Barker had AIDS." Senator Taylor added that any one of us
would probably become hysterical to find out such information after
the fact.
SENATOR TAYLOR directed the committee's attention to the article
about a homosexual who knowing that he was diagnosed with AIDS had
a sexual relationship with a 17-year-old boy. He noted that the
United States military doesn't handle it quite the same way as
Governor Edgar, and instead dishonorably court martialed him and he
is serving 10 years. His crime is, "He was likely to transmit HIV.
The crime of transmitting HIV or being likely to transmit and
engaging in such acts that would transmit it in Texas is a felony."
SENATOR TAYLOR said this issue was brought to his attention by a
friend, John Walsh, of America's Most Wanted television show.
Before Mr. Walsh started his television program, he came to Alaska
and worked with many individuals to bring about changes concerning
lost and sexually abused children and background checks for people
who deal with children. On one of Mr. Walsh's programs, he asked
the public to call in if they knew of a heterosexual man from
Georgia who was estimated to have infected at least 30 women. They
believed he could be hiding out in any one of the states that did
not have a law against this type of conduct. A map was displayed
on the television screen and to Senator Taylor's chagrin, Alaska
was one of those states which attracts people like that. The most
risk an individual would run is being prosecuted for reckless
endangerment, which is a misdemeanor and carries a maximum of one
year in jail. He informed the committee that CSSB 91(HES) passed
overwhelming in the Senate.
SENATOR TAYLOR said that Illinois' law was taken to the state
Supreme Court to find out if it was constitutional. He noted the
legislation before the committee was taken directly off the
Illinois legislation. The case was upheld by the Illinois Supreme
Court and at the time it was upheld, there were two cases pending.
In one case a woman was charged with knowingly spreading the virus
when she had sex without telling her partner. In the second case
a man was charged with raping a woman when he knew he was infected
with the virus. Senator Taylor said he couldn't understand why
anyone would want to protect and make life more comfortable for a
person that fails to inform their sexual partners they are infected
with this virus and knowing full well they could be transmitting
not a disease, but a death sentence. He said he didn't understand
it and would like to be informed of what the reasons are because he
certainly hopes they are sufficient that if in fact there are
people in Alaska currently (latest indications are there are over
500 who are currently infected) if there is only one or two
individuals who are being so cavalier or who are so filled with
anger and rage over contracting this disease, do we really want to
risk that? Will it have a "chilling" effect on people coming
forward to being examined? The response is no. Illinois
prosecuted only three people, but at least those three were
prosecuted and he would be willing to bet that Governor Edgar was
not going to turn any more of them loose. In fact, Governor Edgar
is quoted as saying, "In the future, if he has a clemency request
from a person like that, he wants to do a much more careful
examination of whether or not they are going to survive if the are
turned loose."
SENATOR TAYLOR commented that Miami had the very same problem
several years ago and Florida passed similar legislation. A trial
judge in Miami had a lady who was a prostitute before him for the
third time and was in the final stages of AIDS. The judge knew she
was in that condition when she was released the two previous times,
but the third time the judge locked her up because she was trying
to kill people. He commented the social libertarians however
thought she was being denied her freedom and added for some reason
there seems to be a bizarre schizophrenic twist in American society
today.
SENATOR TAYLOR informed the committee of an incident involving a
local sandwich shop who had an employee with hepatitis. The shop
was closed down and every employee was tested to find out who had
the disease, who was spreading it and why. That's not even being
done with the AIDS virus. He remarked that hepatitis kills; his
brother-in-law died because of hepatitis. He asked what was being
done in the world today about typhus, and where is "Typhoid Mary"?
Do we allow her to work in the school kitchens? No, she is charged
with a crime if she does that. Does it prevent people from being
tested for typhus? No, in fact barriers have been established to
ensure that people who work in those facilities are tested for that
disease. He asked how comfortable do you feel getting on an
airplane knowing what is happening with tuberculosis today? Does
it keep people from getting tested for TB? The answer is no. Do
we as responsible citizens take actions that will hopefully prevent
that from ever being transmitted to another person? He thought
people did.
SENATOR TAYLOR said criminal activity is just another form of
irresponsible activity. He questioned if that was any more
irresponsible than Mr. Richmond, the wealthy, playboy, race car
driver who wants to infect women all over the country and decides
he's not going to tell anyone. Four of the infected women have
already died, and there are estimates of another 30 waiting. He
wondered how anyone would explain to any of the family members that
he was a super hero and shouldn't have been charged with any
criminal activity. On the other hand if he had been charged, it
probably would have been on national news and had a deterring
effect on other individuals from trying the same irresponsible,
deadly act. He encouraged committee members to pass CSSB 91(HES)
from committee.
CO-CHAIR TOOHEY asked if there were any questions of Senator
Taylor.
Number 1583
REPRESENTATIVE ROKEBERG asked Senator Taylor to explain the concept
of intent in criminal law.
SENATOR TAYLOR said there was a legal opinion from the Attorney
General's Office in the packet, stating that intent would be
required. In this instance, the intent that is required is within
the bill. It's a general intent crime, that a person merely
intends to do this act. It has to be done knowingly, and the only
way to get to knowingly is the person has to be knowingly diagnosed
as having AIDS. Once that diagnosis has been made, if a person
participates in a sexual act with another consenting adult, they
must inform the other adult of the AIDS diagnosis and give that
other person the opportunity to know and to take additional
precautions or not participate in that act.
REPRESENTATIVE ROKEBERG asked about the defense of wearing a
prophylactic in that case?
SENATOR TAYLOR replied this has nothing to do with wearing a
prophylactic, but merely notifying the sexual partner. That is the
only act that is required by this legislation.
REPRESENTATIVE ROKEBERG asked what would happen if the individual
with HIV took a preventive measure, but did not inform the sexual
partner?
SENATOR TAYLOR responded the person would be guilty if he/she did
not inform the partner. He emphasized that if an individual knew
they had AIDS, did not inform their sexual partner and went forward
with an act likely to transmit would be guilty.
REPRESENTATIVE ROKEBERG thought there would be a problem with
criminal intent under criminal construction if there was no intent
to transmit by wearing a prophylactic.
SENATOR TAYLOR remarked that an individual cannot avoid it by doing
that. He added that if an individual with HIV has informed their
sexual partner of the virus, it doesn't matter if the individual is
wearing a prophylactic or not because the knowledge has been
communicated to the person who may be the victim, and that person
then has the consensual right to risk that activity if they wish to
do so. He emphasized the important thing is that the potential
victim know and have the opportunity to make a rational decision.
CO-CHAIR TOOHEY asked if there were other questions of Senator
Taylor? Hearing none, she invited testimony from individuals via
teleconference.
Number 1784
BARBARA BRINK, Attorney, Alaska Public Defender Agency, testified
from Anchorage that unlike Senator Taylor, she believes that Alaska
law already covers this type of behavior. She said Senator Taylor
had questioned why the state would want to protect a person who is
engaging in this risky behavior to which she responded, Alaska does
not protect this person; Alaska punishes this person and punishes
the person severely. She did not understand at the beginning the
impetus for this legislation, because if the legislature wants to
prosecute someone who is deliberately and recklessly setting about
to infect someone with the virus, Alaska laws already exist that
provide a range of prosecutorial charges and punishment to cover
every set of conduct mentioned by Senator Taylor. She disagreed
with the analysis that the only thing a person could be charged
with is reckless endangerment. The assault statutes in the state
of Alaska were constructed as a whole to deal with any situation
where violence is perpetrated upon a person, and as a whole they
cover every situation where an act or acts intentionally,
recklessly or even just carelessly in causing harm to another
person. The assault statutes also prosecute differently, depending
on the actual seriousness of the harm caused. She said the
behavior described by Senator Taylor could be prosecuted as
attempted murder, assault in the first degree, assault in the
second degree and all the way down to reckless endangerment
depending upon the actual harm caused. Alaskans are protected from
this type of behavior and this legislation is unnecessary in order
to prosecute someone who infects the virus deliberately, recklessly
or knowingly.
MS. BRINK further stated in contrast, drafting a piece of
legislation to cover a particular crime has raised a host of
problems. She said, "it makes this a Class B felony offense for
a person who has tested positive for the HIV virus, and I want to
distinguish that from someone who is diagnosed with AIDS - those
are two different things. A person who is (indisc.) positive for
the HIV virus may engage in sexual activity with someone and be
prosecuted and charged with this crime, even though they never
develop the AIDS virus and the person they've engaged in conduct
with never actually develops the virus." To have this thrown in
the middle of the assault statutes is out of whack proportionally
with the danger and with the harm. She pointed out there is
epidemiological evidence that the risk of transmission of the HIV
from a single incident is only 1 in 1,000. She said that
Representative Rokeberg had raised a good question about when a
person wears a prophylactic or a condom and under those
circumstances, the chance of transmission is about 1 in 10,000.
This legislation would make this a Class B felony with a 10-year
sentence when there is little danger and little harm. By creating
a special class of people she was concerned that this bill, if
enacted, would violate the equal protection. She said we have
taken a single class of people, those persons infected with HIV,
and set about criminalizing their conduct. What about people who
knowingly infect others with syphilis, gonorrhea, herpes or as
Senator Taylor mentioned, tuberculosis or hepatitis - why isn't
that behavior being criminalized? To single out this class of
persons is not rationally related to protection to the health of
the public. Additionally, it is over broad and interferes with
Alaskans' right to privacy. The sexual behavior of an entire class
of people is being damned when it is not necessary and not
productive.
MS. BRINK remarked she has real and demonstrable concerns that this
will accomplish just the opposite of what Senator Taylor wants to
accomplish. Everyone wants to slow down the spread of HIV and
protect people. Public education regarding transmission of the HIV
virus to enable people to voluntarily modify their behavior is far
more cost effective than punishing it after the fact. If people
are told we want them to get tested but they cannot engage in
intimate sexual conduct if they test positive, will have a negative
effect on the number of people getting tested. This legislation
would have a definite impact of deterring people. Therefore,
rather than reducing the risk of the spread of HIV, she believes
this legislation will increase it. Increasing public education and
removing restrictions on the availability of sterilized, disposable
hypodermic needles and encouraging hygienic HIV practices would be
far more cost effective in stopping the spread of HIV than this
bill.
TAPE 96-38, SIDE A
Number 001
REPRESENTATIVE ROKEBERG asked if Ms. Brink was suggesting that
incarceration is not a deterrent to criminal activity?
MS. BRINK replied no, she never suggested that.
REPRESENTATIVE ROKEBERG said he asked the question because he
thought that's what she had said.
MS. BRINK said when she had spoken of deterrents, she believed that
criminalizing the conduct of whether or not a person knows they are
HIV positive would deter people from getting tested.
CO-CHAIR TOOHEY asked if there were further questions of Ms. Brink.
Hearing none, she asked Amy Eilertsen to present her testimony.
Number 064
AMY EILERTSEN, Director, Stop AIDS Project, testified from
Anchorage. As a former student of Representative Bunde's at UAA,
she urged him to pay special attention to the repercussions of CSSB
91(HES). She commented that as a registered nurse directing the
safer techniques of a prevention project, her goal is to reduce the
spread of HIV in the injectable drug users in Anchorage. She said
in a high risk population such as this, denial and fear of knowing
one's HIV status is a big barrier to HIV testing. The important
and indispensable part of HIV testing protocol is the risk
reduction counseling that people receive. This counseling informs
people on how not to get (indisc.) spread HIV and other sexually
transmitted diseases. She believed this bill would reduce the
number of people being tested for HIV. People would not only be
afraid to know their status because of the shock and social stigma
surrounding HIV, but people would be terrified of the legal
repercussions regarding being tested and perhaps finding out they
have HIV. Not being tested would mean not receiving this life-
saving personalized risk reduction counseling. Without this
counseling, those who do not have HIV would probably be at greater
risk for getting HIV. In the state of Alaska, there have been
approximately 87,000 tests going through the state laboratory of
which 560 have come up positive as of December 31, 1995.
MS. EILERTSEN said according to the Center for Disease Control and
prevention statistics, 9 out of 10 people who have HIV are not
being tested for HIV. She commented, "So Senator Taylor, we can
say that between 3,000 and 5,000 residents of the state of Alaska
have HIV; 560 of these have been counseled on how not to give HIV
to people, the other 1,000 have not." She believes the solution is
further education. She reiterated her belief that this legislation
would reduce the number of people being HIV tested and would
probably increase the spread of HIV. She called the committee's
attention to page 1, line 12, which indicates that a woman who
knowingly passes HIV to her fetus purposefully will not be
prosecuted, and yet a person who has HIV can have sex with someone
who does not have HIV transmitted to them and be prosecuted under
this bill. She thanked the committee for giving her the
opportunity to testify.
Number 320
SENATOR TAYLOR asked Ms. Eilertsen if all the people she counsels
follow her directions and to the best of her knowledge have all
those people informed their sexual partners? Or does she have
people she is counseling who continue to have an active sex life
without informing any of their sexual partners?
MS. EILERTSEN asked what would they be informed their sexual
partners of?
SENATOR TAYLOR responded informing them of the fact they have been
diagnosed.
MS. EILERTSEN interjected the people she has been counseling have
not necessarily been diagnosed or tested positive for HIV. She
maintained that was her point - if people come in to be tested,
they may come up negative and this is an opportunity to coach
people on how to stay negative. If people don't come in to be
tested because they are afraid of being criminally prosecuted, the
opportunity for individualized education does not exist.
SENATOR TAYLOR reiterated his question that of those people Ms.
Eilertsen knows to have tested positive and infected with AIDS that
she is counseling, are they restricting their sexual activity or
does she in fact have people who are sexually active and not
telling their sexual partners they have been diagnosed?
MS. EILERTSEN apologized for not quite understanding the question
in that people who have tested positive for HIV don't necessarily
(indisc.), so she doesn't know about people with AIDS.
SENATOR TAYLOR thought she was in charge of a center that had
something to do with AIDS.
MS. EILERTSEN said the center counsels people on how not to get
HIV.
Number 447
JOHN MIDDAUGH, MD., Chief, Epidemiology Section, Division of Public
Health, Department of Health & Social Services, testified that he
has been responsible for overseeing the development of the AIDS
policies and enhancing the prevention efforts since 1982, when the
first person was diagnosed in Alaska with AIDS. He appreciated the
very grave concerns that have been reflected in the submission of
Senator Taylor's bill and he believed that everyone shared the goal
in an abhorrence of the idea that a person would knowingly and
intentionally attempt to infect other individuals with a disease,
regardless of what that disease is. He believed that current
statutes and policies exist in the state to take care of the
instances when it is able to be shown that that intention exists.
He said the department, division, AIDS program and AIDS task force
oppose this legislation and it's difficult to sort out some of the
issues in this very powerful and important area about why that is.
DR. MIDDAUGH said this legislation adds two major new components to
the existing statutes and procedures. One is it removes the issue
of intention and it does not take into account whether transmission
of HIV does or does not occur. It also fails to include any
scientific information about the likelihood or infectiousness of an
individual attempting to infect another. Now, that's not the
(indisc.-paper shuffling) support anything, it's simply to say that
we know that during the period of infectivity with HIV, that at
some times individuals are not infectious at all. Late in the
course of illness when AIDS occurs, then it's been able to be shown
that the virus is more present and the person is presumably more
infectious. However, none of this information is reflected in the
proposed legislation. He said what we are doing then is
criminalizing an infectious agent in the absence of disease or
potentially in the absence of a degree of infectiousness to another
person. As the committee had heard, that analogy then occurs in
that we have a registry of 1400 Alaskans who are hepatitis B
surface antigen carriers. The risk of transmission of hepatitis B
through sexual contact is far greater than HIV, perhaps as much as
10,000 to 100,000 times greater. Dr. Middaugh said we have an
ability today to diagnose and fingerprint many kinds of viruses and
infectious agents. Would we propose that we would criminalize the
behavior of a mother who dropped her child at a daycare center with
a fever, conjunctivitis, or a little rash and then learned the
child had measles and had infected another child at the daycare
center. The history of public health is that the ability to
prevent infections generally requires the enrollment of individuals
in a manner to prevent disease transmission and that often attempts
to prevent or criminalize diseases has in fact had the opposite
effect and led to the lack of early detection, the lack of
effective prevention, and has led to greater problems of disease
transmission. Dr. Middaugh said because of these reasons, he feels
it is very important that this type of legislation not be
supported. It would have very little benefit to either attempting
to punish individuals who have an intention to attempt to harm
another through transmission. Frankly, if a person was attempting
to do a person in, the infection of HIV is a very inefficient way
to do it because of its low risk of transmission during an
individual or several encounters.
DR. MIDDAUGH pointed out there were additional housekeeping type
problems with this legislation. One is that the legislation
discusses an affirmative defense that the defendant knew he/she was
infected and informed the other individual, and that consent was
given. He said, "Well, we know that many individuals who are
engaged in different activities, occasionally use drugs or alcohol
and that later recall of what was or wasn't transmitted and what
consent or level of knowledge was given, can be quite problematic."
He mentioned another problem is the definition of any contact
between one or another that might or could result in the
transmission of HIV. He said, "Does that mean theoretically could
or is likely to; in other words, we know that for hospital workers
taking care of persons with AIDS, who have been stuck with a needle
after the needle has been first in the person with AIDS, that the
risk of the hospital person becoming infected from being stuck is
1 or 2 in 1,000 needle sticks. It's not a highly infectious agent,
but circumstances and risk factors are able to be weighed and are
being increasingly understood about the likelihood of
transmission."
DR. MIDDAUGH stated another housekeeping problem with the bill is
that under the provision related to "dispenses, delivers,
exchanges, sells, or in any manner transfers to another person any
nonsterile intravenous or intramuscular drug paraphernalia." He
said that a person with diabetes who is HIV infected would have no
legal mechanism of disposing of their diabetes syringe and in fact
would be committing a criminal act if they turned it over to
another person under this legislation. He knew that wasn't
intended by the sponsor, but the problem with trying to legislate
specifically against one single disease in order to accomplish a
different goal he thinks is very counter-productive to the combined
efforts of 1) to make sure there are mechanisms to avoid an
intentional transmission of any lethal or potentially lethal
infection and 2) more importantly, to try to prevent the disease.
The final point he wished to make is that we have an effort that's
in place to work with individuals who are infected with HIV and
enlist their cooperation in identifying all of their contacts. He
remarked that what ensued when Magic Johnson announced his HIV
status was that thousands of people went and got tested because
they were concerned they may have HIV and almost none were
infected. In other words, huge numbers of tests of low risk, but
worried persons. Alaska is a low prevalence HIV state and our
greatest efforts to prevent transmission are to work with all
infected persons, identify their contacts who are the most likely
themselves to be infected and to enlist and work with them to
change their behaviors in order to prevent opportunities for the
virus to be transmitted in the future. For the multiplicity of
these reasons, he urged the committee to make a difficult decision,
but not to pass this bill.
Number 923
REPRESENTATIVE ROKEBERG referenced Dr. Middaugh's concerns about
intimate contact and asked if kissing would be a method of
transmitted the HIV virus?
DR. MIDDAUGH responded that it is not thought to be a likely
transmission, but it potentially, theoretically could be considered
to result if, for instance, there was a cut in one person's mouth
and the other person had blood in their mouth from dental work,
vigorous brushing of teeth or braces abrading the mouth. He added
this is one of the difficulties of attempting to achieve a goal by
legislating against the disease that has a complicated scientific
epidemiology and mode of transmission.
REPRESENTATIVE ROKEBERG asked about the known cases of the disease
being transmitted by dental practitioners.
DR. MIDDAUGH said no one knows for certain, but in the Kimberly
Burgelis tragedy, there is suspicion that that particular dentist
may have wilfully infected others to call attention to the plight
of the absence of funding and support to deal with the disease, but
it is also clear there was inadequate sterilization of the dental
instruments in that instance. He commented there was also quite a
bit of IV drug abuse in that practice and among many of the
individuals who were found to have been infected.
Number 1022
REPRESENTATIVE ROBINSON asked Dr. Middaugh if he was aware of any
case in Alaska where someone knowingly transmitted HIV?
DR. MIDDAUGH replied no.
CO-CHAIR TOOHEY said there had been testimony on Representative
Ogan's bill, which is basically the same as Senator Taylor's, from
a woman who had prosecuted an individual who knowingly had infected
others in Juneau.
DR. MIDDAUGH said he was unaware of the case.
CO-CHAIR TOOHEY offered to provide him with the tape of the
committee hearing.
Number 1069
REPRESENTATIVE VEZEY said there had been previous testimony to the
effect that this legislation was unnecessary because it is already
a crime to do the things mentioned in this bill. There has also
been testimony in opposition because it may discourage people from
being tested for HIV. He felt this was putting into statute what
constitutes a convictable offense; however, he did feel this
legislation was ahead of the curve in terms of perpetrators and
victims. He viewed this bill as simply saying that a person has
committed a crime if he/she knowingly infects another person,
whether or not you kill the victim and that we as a society can
recognize that that form of behavior is not acceptable and can
remove such a person from society where innocent victims are
exposed. He commented that's what most of the laws do - they
remove people from society. He noted there had been discussions
about people with tuberculosis and we have tried to address them
with great compassion, but we have allowed people with tuberculosis
to be arrested and removed from society until the disease can be
brought under control.
DR. MIDDAUGH said Representative Vezey's points were important
ones, but in the case of tuberculosis, that is only done when a
person is highly infectious with pulmonary tuberculosis. He added
there is an effective drug which totally eliminates the
infectiousness and there's an accurate test to both detect the
infectiousness as well as detect when the infectiousness goes away.
He added it is their hope to soon have some drugs and weapons that
will be able to eliminate infectiousness. He said, "The state of
being HIV positive is one where not only is it not infectious
during the whole period of many years, but unlike tuberculosis
where if I had tuberculosis I could give it to you in just our
discussion regardless of your behavior. With HIV, just my own
behavior in the absence of another criminal offense, such as forced
criminal sexual penetration or rape or some form of assault, you
would not be at risk of getting HIV regardless of my HIV status and
infectiousness because it is not transmitted to you by the air or
easily like tuberculosis." He didn't totally disagree with the
concepts, but the different behaviors, medically and biologically,
of the risk factors and likelihood of transmission make a big
difference in this disease versus others and he felt there were
(indisc.) consequences of criminalizing a diagnosis in the absence
of disease or potential infectiousness or in fact, potential harm.
This bill does also not require that a person be infected in order
to have the defendant found guilty of a criminal act.
Number 1248
REPRESENTATIVE VEZEY said he appreciated Dr. Middaugh's comments,
but this bill does not make a crime out of social intercourse. It
does establish that it is a crime to engage in sexual intercourse
or other form of bodily fluid transmission if a person knows their
body fluids may carry a contagion. He said he related this more to
rabies than to tuberculosis or a lot of other diseases. He added
we would not allow a rabid person to wander in society and the
public would insist this person be removed from society. He viewed
this as a tool which would allow us to remove from society this
infinitesimal small number of persons who are infected because
their social behavior is totally unacceptable.
DR. MIDDAUGH said he agreed with that intent when the behavior is
unacceptable and removal is necessary. He said, "I think the
problem that I would view is that the consequences of this
legislation could be very negative in terms of being able to both
identify and elicit partners from individuals infected and to work
with them to identify their contacts and that the likelihood that
we would be able to then effectively use the legislation to achieve
a goal, which is to try to remove individuals who may be wilfully
attempting to infect others, would be a very small benefit compared
to the existing legislation that we have which does still provide
in our existing legislation for weighing, as you heard before, the
likelihood of risk and consequences." The concern with this bill
is that it does not do that.
CO-CHAIR TOOHEY asked if there were further questions for Dr.
Middaugh. Hearing none, she called on Jayne Andreen to testify.
Number 1398
JAYNE ANDREEN, Executive Director, Council on Domestic Violence &
Sexual Assault, Department of Public Safety, expressed the
council's concern with CSSB 91(HES). She said last year one of the
strongest concerns the council had related to the potential
transmission of the mother to an unborn fetus whether or not she
knows that she is an HIV carrier. She pointed out that issue has
been dealt with on page 1, line 12. She stated this is a difficult
bill and it's difficult to listen to the testimony, but basically
the council feels that current offenses covered under this bill can
already be charged under state law. She echoed the concern
expressed that this legislation would decrease the amount of
voluntary testing that would take place for people throughout
Alaska. She said it was interesting to note how conversations have
a tendency to "mushroom off" when discussing bills, and as the
council was discussing this bill, one of the issues that came up
was sexual assault victims and the potential risk they face being
exposed to HIV. She said that issue had been discussed before the
legislature previously and currently there is legislation which
gives the victim the opportunity to have the alleged offender
tested. The council proposed, for future reference, having some
type of aggravator added for sexual offenses when the offender
knows he/she is an HIV carrier.
Number 1475
REPRESENTATIVE VEZEY said he finally understood that the assumption
exists that fewer people will get tested for HIV if they think it
might be associated with a crime. According to the legal experts
however, it's already a crime to recklessly expose another person
to HIV, so he didn't think anything would change in that regard.
He added that it kind of defies logic that we know for a medical
fact that drugs are available currently that will extend the life
of AIDS patients and will reduce symptoms and side effects of the
disease. He questioned if people would knowingly forego the
possibility of meaningful medical treatment to avoid the
possibility of criminal prosecution for something they can already
be prosecuted for? It just didn't make any sense to him.
MS. ANDREEN said that is one of the council's concerns and there is
no way to gauge what the outcome would be. She said, "The concern
I think primarily is the way it currently exists, there isn't
anything in the statutes that says if you are HIV positive and you
have unprotected sex with someone and don't tell them about it, you
would be charged with these offenses. It's when it actually is put
-- you know, it's under existing assault and attempted murder and
murder offenses that a person could be charged at this time. When
you have a bill that actually lists out that if you are HIV, this
is what can happen to you if you do X, Y, Z is what the concern is,
is that it will really focus the attention in for people."
Number 1589
SENATOR TAYLOR remarked that of all the people who testified on the
Senate side who testified that they feared a reduction in the
number of people coming forward to be tested, not one of the people
who so testified called one state where this has been criminalized
and asked them what happened; Senator Taylor had and no one single
state has seen any decline in testing after passing and
criminalizing conduct where a person fails to notify their partner.
He affirmed that is all that is required - just notify your partner
before engaging in sex with them. For those people who testify
there will be a "chilling effect" he would like to see their
statistics, because he was not able to find any such statistics
from the 22 different states he contacted.
Number 1643
REPRESENTATIVE ROKEBERG was curious and disturbed by Ms. Andreen's
comment regarding an aggravator provision in terms of developing
statutes relating to domestic violence victims. He inquired if Ms.
Andreen was implying that victims of domestic violence should
receive special statutory treatment as opposed to something like
this.
MS. ANDREEN hoped that wasn't what she had said and thanked
Representative Rokeberg for allowing her to clarify. What she had
been talking about in cases of sexual assault, sex offenses, was
that if the offender knows that he/she is HIV positive, that an
aggravator be written into the statute that could be reviewed at
the time of sentencing to increase the sentence.
REPRESENTATIVE ROKEBERG thought that was what this bill was all
about.
CO-CHAIR TOOHEY said no, she thought it was Representative Kott's
bill last year that addressed the person who knowing had HIV and
was convicted of sexual assault.
REPRESENTATIVE ROKEBERG asked if that had been enacted?
CO-CHAIR TOOHEY responded it was passed.
Number 1710
LYNN STIMLER, Executive Director, American Civil Liberties Union of
Alaska, said the ACLU opposes CSSB 91(HES). She wanted to point
out why the ACLU thinks this legislation is particularly vague and
over broad, so that people with common intelligence can't really
guess at the meaning of it. She noted that in the statute,
intimate contact can mean any contact, because it's sexual
penetration or contact in which the body of one person and the body
fluid of another in a manner that could result. She said,
"Potentially that raises the issue because HIV has been detected in
minute amounts in saliva, perspiration and tears -- it raises the
issue of whether an athlete - a young high school student whose
gotten HIV and was participating in sports and got a bloody nose,
would he be theoretically possible and under this statute, I think
it would be grounds for prosecution, that the intimate contact
provision if an HIV positive high school athletic was playing in a
field." She questioned if all HIV people should be quarantined
from all athletic activity under this statute? The New England
Journal of Medicine in 1987 said it is unrealistic to require proof
with absolute certainty that HIV is not transmitted in certain
ways, which means because we don't know, this statute is on its
face vague. The other issue the ACLU wished to address was that
the National Academy of Sciences in 1986 said any admonition to
avoid intimate bodily contact and the exchange of bodily fluid can
convey at best a vague message; it is not specific enough. The
ACLU believes that because the point of testing is for people who
don't know about their status, to come in and get information and
counseling which can keep them from transmitting this virus, it's
very important that testing be as open as possible. The ACLU does
not agree with Senator Taylor in that they feel Hepatitis B and
tuberculosis are being tested for the very purposes that they are
not criminalized. Additionally, this bill shifts the burden of
proof. Normally the state of Alaska has to prove every element of
a crime which is part of the due process guarantee. In this bill,
instead of the state having to prove the defendant did not inform
their partner, the defendant has to somehow prove that he did. She
further commented she believes CSSB 91(HES) violates privacy and
equal protection.
Number 1898
RACHEL KING, Board Member, Alaskan AIDS Assistance Association,
testified from Anchorage that she had been involved with AIDS
education for the past 10 years. She has seen a tremendous amount
of fear and loathing around the whole issue of AIDS and HIV. She
believes that two big fears - the fear of homosexuality and the
fear of IV drug use has kept education from going forward as it
should. She stated that education is the best weapon against AIDS
and the board's biggest concern with CSSB 91(HES) is that the
provision that requires people to know they are infected with HIV
will in fact prevent people from wanting to find out their HIV
status. Senator Taylor had pointed out that in doing surveys from
other states the rate of testing did not decline due to the
criminalization of HIV; however, she said that didn't mean that
more people wouldn't have gotten tested had those laws not gone
into effect. Testing is on the rise everywhere and perhaps it
would have continued to go up in those states.
CO-CHAIR TOOHEY asked Anne Carpeneti from the Department of Law to
present her testimony.
Number 1981
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, testified there are two reasons the Department
of Law opposes CSSB 91(HES). First, the department agrees with
Barbara Brink in that this behavior is already covered by other
criminal statutes, beginning with attempted murder in the first
degree which is an unclassified felony. Secondly, the people who
are in risk groups who fear the diagnosis, wouldn't be tested and
this would not encourage testing by criminalizing a person who
knows that he/she is infected by their behavior, but not
criminalizing the behavior of people who don't know.
Number 2024
REPRESENTATIVE ROKEBERG commented that Ms. Brink had spoke to the
litany of assault statutes and asked if there was anything
specifically defined in the assault statutes which addresses the
transmission of the HIV virus.
MS. CARPENETI responded the statutes do not specify HIV
transmission.
REPRESENTATIVE ROKEBERG asked how those statues would have any
deterring effect on this type of activity if they are not specific?
MS. CARPENETI said they are specific in terms in outlawing the
egregious behavior that Senator Taylor has described; that being a
person intentionally going around having sex with people and
transmitting the virus. She added that Alaska's statutes don't
specify generally a particular activity, but rather prohibit
general activity.
Number 2057
REPRESENTATIVE ROKEBERG commented he was not familiar with the
state's criminal statutes, but he wondered if Alaska has a felony
aggravated assault statute.
MS. CARPENETI responded the state has felony assault statutes.
Assault in the first, second and third degree are felonies and
assault in the fourth degree is a misdemeanor.
REPRESENTATIVE ROKEBERG inquired about assault as opposed to
battery.
MS. CARPENETI said the criminal code revision committee did away
with the distinction between battery and assault.
REPRESENTATIVE ROKEBERG asked if assault in the state of Alaska is
physical contact?
MS. CARPENETI said it includes battery.
Number 2090
REPRESENTATIVE DAVIS asked if any of the other 20+ states had
existing statutes they believed would have covered this type of
behavior?
MS. CARPENETI said she didn't know, but she would be happy to work
with the sponsor to obtain that information.
SENATOR TAYLOR commented that every state had the same generic type
assault, intentional murder - everything that Alaska has, and every
state decided they couldn't keep a prostitute off the street or
couldn't convict under those statutes.
CO-CHAIR TOOHEY asked if the committee had any further questions.
Number 2132
SENATOR TAYLOR asked if we still intend to require consent for
sexual acts in the state. Also, could he give his consent to a
sexual act with someone if he does not know what they may bring
with them?
CO-CHAIR TOOHEY speaking as a nurse said any woman or any man in
this state or any state that has sex without being protected
deserves to get sick. Anyone that has sex in this day and age with
an unknown partner, will get some type of disease.
SENATOR TAYLOR commented that Co-Chair Toohey had used the word
"unknown." He questioned if a wife was consenting to have sex with
a husband who finds out that he has HIV but fails to notify her?
He didn't think so, because the wife didn't know the full facts.
When that husband lies and misleads and does it intentionally,
knowing he has the illness, yet chooses to go forward with the act,
the wife then becomes a nonconsensual victim. In Senator Taylor's
opinion it is very close to rape, but our laws don't cover it.
That is why this bill is before the committee.
CO-CHAIR TOOHEY asked if there were any further questions. Hearing
none, she closed public testimony.
ADJOURNMENT
CO-CHAIR TOOHEY adjourned the meeting of the House Health,
Education and Social Services Committee at 5:28 p.m.
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