Legislature(2005 - 2006)
03/27/2006 02:03 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| HB439 | |
| HB442 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 27, 2006
2:03 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Peggy Wilson
COMMITTEE CALENDAR
HOUSE BILL NO. 439
"An Act relating to authorizing the state to join with other
states entering into the Interstate Insurance Product Regulation
Compact and authorizing the compact to supersede existing
statutes by approving standards, rules, or other action under
the terms of the compact."
- MOVED CSHB 439(L&C) OUT OF COMMITTEE
HOUSE BILL NO. 442
"An Act relating to the validity of advance health care
directives, individual health care instructions, and do not
resuscitate orders; relating to the revocation of advance health
care directives; relating to do not resuscitate orders; relating
to resuscitative measures; relating to the liability of health
care providers and institutions; relating to an individual's
capacity for making health care decisions; and providing for an
effective date."
- MOVED CSHB 442(JUD) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 32
Proposing an amendment to the section of the Constitution of the
State of Alaska relating to marriage.
- BILL HEARING POSTPONED 3/29/06
HOUSE BILL NO. 325
"An Act relating to post-conviction DNA testing; and amending
Rule 35.1, Alaska Rules of Criminal Procedure."
- BILL HEARING POSTPONED 3/29/06
PREVIOUS COMMITTEE ACTION
BILL: HB 439
SHORT TITLE: INSURANCE PRODUCT REGULATION COMPACT
SPONSOR(S): REPRESENTATIVE(S) COGHILL
02/10/06 (H) READ THE FIRST TIME - REFERRALS
02/10/06 (H) L&C, JUD
03/01/06 (H) L&C AT 3:15 PM CAPITOL 17
03/01/06 (H) Moved CSHB 439(L&C) Out of Committee
03/01/06 (H) MINUTE(L&C)
03/03/06 (H) L&C RPT CS(L&C) NT 3DP 3NR
03/03/06 (H) DP: LYNN, ROKEBERG, KOTT;
03/03/06 (H) NR: CRAWFORD, LEDOUX, GUTTENBERG
03/22/06 (H) JUD AT 1:00 PM CAPITOL 120
03/22/06 (H) <Bill Hearing Postponed to 03/24/06>
03/24/06 (H) JUD AT 1:00 PM CAPITOL 120
03/24/06 (H) Scheduled But Not Heard
03/27/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 442
SHORT TITLE: HEALTH CARE DECISIONS
SPONSOR(S): REPRESENTATIVE(S) WEYHRAUCH
02/10/06 (H) READ THE FIRST TIME - REFERRALS
02/10/06 (H) HES, JUD
02/21/06 (H) HES AT 3:00 PM CAPITOL 106
02/21/06 (H) Scheduled But Not Heard
02/23/06 (H) HES AT 3:00 PM CAPITOL 106
02/23/06 (H) Heard & Held
02/23/06 (H) MINUTE(HES)
02/28/06 (H) HES AT 3:00 PM CAPITOL 106
02/28/06 (H) Moved CSHB 442(HES) Out of Committee
02/28/06 (H) MINUTE(HES)
03/03/06 (H) HES RPT CS(HES) NT 4DP 1NR
03/03/06 (H) DP: SEATON, GARDNER, KOHRING, WILSON;
03/03/06 (H) NR: CISSNA
03/24/06 (H) JUD AT 1:00 PM CAPITOL 120
03/24/06 (H) Scheduled But Not Heard
03/27/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
LINDA HALL, Director
Division of Insurance
Department of Commerce, Community, & Economic Development
(DCCED)
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 439,
and responded to questions.
JOHN GEORGE, Lobbyist
for the American Council of Life Insurers (ACLI)
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 439,
and responded to questions.
JACQUELINE TUPOU, Staff
to Representative Bruce Weyhrauch
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 442 on behalf of the sponsor,
Representative Weyhrauch.
SHELLEY OWENS, Health Program Manager
Section of Injury Prevention & Emergency Medical Services
Division of Public Health
Department of Health and Social Services (DHSS)
POSITION STATEMENT: During discussion of HB 442, expressed
concerns about Section 5 and support for a proposed amendment.
JON S. DAWSON, Attorney at Law
Davis Wright Tremaine, LLP
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 442 on behalf of Providence Anchorage Anesthesia Medical
Group, P.C., and responded to questions.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 2:03:17 PM. Representatives
McGuire, Kott, Gara, Gruenberg, Anderson, and Coghill were
present at the call to order. Representative Wilson was
excused.
HB 439 - INSURANCE PRODUCT REGULATION COMPACT
2:03:49 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 439, "An Act relating to authorizing the state
to join with other states entering into the Interstate Insurance
Product Regulation Compact and authorizing the compact to
supersede existing statutes by approving standards, rules, or
other action under the terms of the compact." [Before the
committee was CSHB 439(L&C).]
REPRESENTATIVE COGHILL, speaking as the sponsor, explained that
this legislation allows Alaska to enter into a compact in which
states come together for the purposes of aligning some of the
application procedures for life insurance annuities, disability
income, and long-term care products. He related his
understanding from a National Conference of Insurance
Legislators (NCOIL) meeting that if states don't address this,
the federal government will. Twenty-some states, he remarked,
have already joined, but 26 states must come together before
[the compact] becomes effective. The legislation creates a
single point of filing for the states involved in the compact,
which would benefit Alaska because it would merely have to be
aware of and supportive of those standards. From the consumer's
perspective, annuities and life insurance policies would be more
portable across state lines. This legislation would give the
compact some authority to [establish] the uniform standards with
which the state would have to comply. He specified that the
[compact] would define the products and the state would follow
suit with those products.
2:06:55 PM
LINDA HALL, Director, Division of Insurance, Department of
Commerce, Community, & Economic Development (DCCED), clarified
that 21 states have passed the proposed interstate compact. She
referred to the "Speed to Market" initiative, which attempts to
encourage [states] to find better ways to get products to the
consumer. She pointed out that the model compact was developed
by the National Association of Insurance Commissioners (NAIC)
and was vetted for about four years with attorneys general
around the country and insurance regulators. This vetting
process was meant to ensure that the compact meets the laws of
the various states entering the compact. Ms. Hall highlighted
that entering into the proposed compact will hopefully fend off
attempts at federal regulation of insurance. She opined that
insurance should be regulated by the states, particularly when a
state is the size of Alaska. She noted that consumers are able
to call her office daily with various complaints, and this
wouldn't occur if the federal government were in charge of
regulating insurance.
2:09:31 PM
MS. HALL then turned to the basic structure of the compact,
which proposes to create a commission with a representative from
each state in the compact; typically that representative would
be a state's chief regulator. She explained that insurance
products would have to be vetted by this commission and approved
by two-thirds of the members of the commission to be adopted.
The commission will also establish standards. She informed the
committee that states can opt out of the standards in two ways:
through legislative action or through regulation by the
insurance regulator. She pointed out that the insurance
regulator only has 10 days after the adoption of a standard to
file notice that the state isn't going to adopt the particular
standard. Ms. Hall reminded the committee that the commission
becomes operational only if at least 26 states or 40 percent of
the premium volume in the country join the compact. She
explained that products covered are both individual and group
life insurance, annuities, disability income [insurance], and
long-term care [insurance].
MS. HALL explained that were the state to be part of the
compact, filings could still be made to the Alaska Division of
Insurance or through the commission. This attempts to
streamline the process while maintaining standards. The
standards the compact proposes to adopt appear to be more
protective than the standards Alaska currently has. For
example, for all products, there will be a minimum 10-day right
to examine, and Alaska law doesn't require this. Also, although
Alaska law specifies that [language pertaining to] products must
not be ambiguous or misleading, the state doesn't have
"readability" standards, nor does Alaska require a "no lapse"
guarantee or have premium disclosure standards. In other words,
the commission is attempting to provide stronger consumer
protections than what Alaska has. Generally speaking, products
filed in Alaska are fairly common across the country because
it's more expensive for an insurance company to develop separate
products for each state. She relayed that [the division] will
accept higher standards than [current] statute requires, and the
compact provides a mechanism for approval that is more
streamlined; furthermore, the NCOIL and the National Conference
of State Legislatures (NCSL) have adopted a motion to accept
[the compact].
2:13:34 PM
REPRESENTATIVE GARA inquired as to what would prevent the
commission from reducing an individual's rights regarding
insurance contracts. He recalled that when he represented those
who purchased disability policies, the insurance companies would
find amazing ways not to pay on the disability.
MS. HALL opined that it would be difficult to pass weak
standards, given that the commission will consist of regulators
whose primary mission is consumer protection. She pointed out
that the enforcement of the standards remains with each state's
division of insurance, and the compact is merely a filing
mechanism through which to obtain approval for particular
products.
REPRESENTATIVE GARA inquired as to what would happen if language
was included specifying that the division won't agree to
standards that provide for a lesser level of protection and
rights for policyholders than Alaska law would.
MS. HALL said that she didn't believe such additional language
would result in anything negative. She then pointed out that
the legislature has the opportunity to opt out of a particular
standard, but that assumes that the legislature knows that the
standard exists.
REPRESENTATIVE GRUENBERG asked whether there is an official
interpretation of each section of the compact.
MS. HALL said that she hasn't seen any official commentary at
this point, although she offered to provide Representative
Gruenberg with the position papers and analysis by NAIC.
REPRESENTATIVE GRUENBERG offered his understanding that an
interstate compact is a contract between states, which has a
priority below federal law but above state law. He relayed his
further understanding that these contracts can't be amended or
withdrawn from except as specified in the contract.
2:20:39 PM
MS. HALL offered her understanding that HB 439 includes
provisions allowing both for withdrawal from the compact and for
non-participation in a particular standard.
REPRESENTATIVE GRUENBERG asked whether the compact can be
amended.
REPRESENTATIVE COGHILL pointed out that the amendments to HB 439
thus far have not been to the text of the compact. He then
relayed his belief that the state can make laws that it will
enforce outside of this compact, and that the state won't give
up that much sovereignty. Representative Coghill said he shares
the [concern] that the state might wish to go in a different
direction than the compact with regard to consumer protection.
MS. HALL, in response to a question, reiterated that the state
regulatory agency has the ability to opt out of a standard
proposed by the commission by giving notice within 10 days of
the notice of the adoption of the standard. She also explained
that [the commission] has been meeting and reviewing products
for almost two years, and that once the commission is in force
and operational, those proposed standards would have to be
adopted by two-thirds of the directors on the commission. Ms.
Hall pointed out that the standards being discussed will pertain
to product filings.
REPRESENTATIVE GRUENBERG asked how notification will occur.
MS. HALL said she wasn't sure that the commission has adopted
operating rules yet.
2:26:41 PM
REPRESENTATIVE GRUENBERG asked whether the notification by a
state opting out has to be mailed within 10 days or received
within 10 days.
MS. HALL pointed out that given that the state sits on the
commission, the state representative would vote on the standard
and thus would be aware of the situation and the upcoming vote.
In response to questions, she reiterated that two-thirds of the
members of the commission must approve [the standards]; that the
number of members of the commission is dependent upon the number
of states that join; and that at least 26 states must join for
the commission to be operational. She went on to clarify that
if 40 percent of the premium volume in the country joins the
compact, the commission would be operational.
REPRESENTATIVE ANDERSON, speaking as the chair of the Labor &
Workforce Development Committee of the NCSL, informed the
committee that the NCSL endorsed this [compact]. He then turned
attention to page 13, line 20, which outlines the opt out
provision. The provision includes language indicating that a
compacting state can opt out when it determines that the
standard "does not provide reasonable protections to the
citizens of the State, given the conditions in the State".
Therefore, Representative Anderson opined, Alaska isn't locked
into anything, and HB 439 is a good step for Alaska.
REPRESENTATIVE COGHILL said that he didn't want to surrender the
state's right to take care of its consumers. He posed a
situation in a which an insurance agent/company saw a problem
with the commission, and inquired as to how the legislature
would come to know about it. He further inquired as to how the
legislature would come to know if a consumer had a problem. The
aforementioned will impact the language of the proposed
conceptual amendment included in the committee packet; the
proposed conceptual amendment read as follows:
The state shall not agree to rules promulgated by the
commission that provide for a materially lower level
of protection, or materially lesser rights than
provided to Alaska policyholders and policy applicants
than otherwise provided by Alaska law.
2:34:08 PM
JOHN GEORGE, Lobbyist for the American Council of Life Insurers
(ACLI), said that essentially all of the life insurance
companies in the U.S. are members of the ACLI. He informed the
committee that the ACLI requested that this legislation be
introduced because it's important consumer legislation and it
makes it much easier for life insurance companies to do business
and bring new products to market. As mentioned earlier, it
makes sense for life insurance to be practically the same across
the nation. This [compact] would allow life insurance companies
to respond nationally and get new products to the market. Mr.
George noted that the "escape clauses" were carefully written
such that a state can opt out of a specific [standard]. He
further noted that the life insurance industry will be policing
[the commission] because it wants a uniformly high quality
standard. Given that all the states vote on [the standards], he
assured the committee that there will be good standards.
REPRESENTATIVE GRUENBERG posed a hypothetical situation in which
[compact commissioners] from around the country meet and are
"wined and dined and lobbied to death" by a particular company
that wants product "X." He asked if it would make it somewhat
more difficult for consumers to protect themselves if product
"X" wasn't good for consumers.
MR. GEORGE opined that it would probably be easier today to wine
and dine individual state insurance regulators today and obtain
low standards in each state individually than it would to get
low standards passed through the compact.
REPRESENTATIVE GARA offered his understanding that Ms. Hall has
no objections to the proposed conceptual amendment as long as
Legislative Legal and Research Services makes it work within the
context of the legislation.
MR. GEORGE, in response to a question, said that he doesn't have
a problem with the proposed conceptual amendment so long as it
doesn't void the compact. He acknowledged that everyone wants
good protection for the public.
2:38:34 PM
REPRESENTATIVE COGHILL mentioned that he doesn't want lesser
standards or less consumer protection, and opined that it's
probably good policy if the language in the proposed conceptual
amendment makes "them" come back to the legislature. He
suggested his understanding that as it won't void the compact
and proposes a high hurdle, he wouldn't object to the proposed
conceptual amendment, because he agrees with the concept of it.
REPRESENTATIVE ANDERSON objected to the proposed conceptual
amendment, and stated that the matter could be addressed on the
House floor. He opined that there could be a loophole in the
proposed conceptual amendment wherein someone could continually
challenge and make the compact ineffective. He relayed his
preference to have Legislative Legal and Research Services
research the matter and provide a memorandum, and that they
leave any [necessary] amendment for the House floor.
REPRESENTATIVE COGHILL concurred and offered to work with
Representative Gara on that issue.
CHAIR McGUIRE posited that typically there's standard pro forma
language included in a compact. She expressed concern that the
proposed conceptual amendment is a bit vague, and questioned
whether any difference in its language from the compact's
language would [void] the compact.
MR. GEORGE suggested that rather than modifying the compact, the
regulator could simply be given instructions to specify when the
state should opt out of a standard.
REPRESENTATIVE GARA clarified that is what he meant to
accomplish with the proposed conceptual amendment.
REPRESENTATIVE ANDERSON inquired as to whether it would be
possible to get a memorandum from Legislative Legal and Research
Services regarding the appeal process.
REPRESENTATIVE COGHILL said he would rather have any amending
language drafted by Legislative Legal and Research Services.
REPRESENTATIVE GARA announced that he wouldn't offer the
proposed conceptual amendment, and will work with Representative
Coghill on the legislation. He suggested that perhaps [the
commission] could be required to send the legislature
notification that a particular standard has been adopted so that
the legislature would know that it would have to introduce
legislation to address the situation.
CHAIR McGUIRE and REPRESENTATIVE COGHILL indicated agreement
with that suggestion.
2:44:57 PM
CHAIR McGUIRE, upon determining no one else wished to testify,
closed public testimony on HB 439.
REPRESENTATIVE ANDERSON announced that committee staff will
contact Legislative Legal and Research Services to assess the
state and legislature's liability and the state's attachment to
the compact.
REPRESENTATIVE ANDERSON moved to report CSHB 439(L&C) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 439(L&C) was
reported from the House Judiciary Standing Committee.
HB 442 - HEALTH CARE DECISIONS
2:46:18 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 442, "An Act relating to the validity of
advance health care directives, individual health care
instructions, and do not resuscitate orders; relating to the
revocation of advance health care directives; relating to do not
resuscitate orders; relating to resuscitative measures; relating
to the liability of health care providers and institutions;
relating to an individual's capacity for making health care
decisions; and providing for an effective date." [Before the
committee was CSHB 442(HES).]
2:46:39 PM
JACQUELINE TUPOU, Staff to Representative Bruce Weyhrauch,
Alaska State Legislature, sponsor, explained on behalf of
Representative Weyhrauch that HB 442 makes minor changes to
Alaska's Health Care Decisions Act, which was passed in 2004
with the goal of modernizing and improving Alaska's health care
laws. Current law imposes a duty of investigation upon
physicians who are carrying out the health care [directives of
their patients], and HB 442 would conform the language in
Alaska's Act to the language in the Uniform Health-Care
Decisions Act, providing for the more appropriate standard of
acting [with a good faith belief].
MS. TUPOU relayed that the bill also replaces the term
"attending physician" with the term "physician" because
according to the doctors that the sponsor contacted, the former
term is not used much any more; this will clarify the sponsor's
intent that all of a patient's physicians should honor the
patient's healthcare directives. Furthermore, the bill
clarifies when cardiopulmonary resuscitation (CPR) can be used,
addresses the issue of the validity of orders from other
jurisdictions, and indicates under what circumstances a "do not
resuscitate" (DNR) order may be revoked. In conclusion, she
characterized Alaska's Health Care Decisions Act as being
immensely beneficial in helping terminally ill patients and
their families and loved ones, and HB 442 as attempting to very
narrowly address certain issues.
REPRESENTATIVE GARA referred to the language on page 4, lines
25-26, and asked what the addition of that language will do;
that language read:
(C) because the patient is a woman of childbearing
age and AS 13.52.055 applies;
MS. TUPOU offered her understanding that if there is a
reasonable belief that a woman could be pregnant, under that
language a physician could perform resuscitative measures on the
woman; this provision essentially addresses the issue of
liability for a physician who undertakes such measures.
REPRESENTATIVE GARA said he is supportive of the bill, but is
concerned about where the line is drawn between having a DNR
order and withdrawing nutrition and other services, and going to
the next step, which many call euthanasia. He asked for
clarification regarding what a medical professional may do if a
patient asks for help dying.
MS. TUPOU offered her understanding that in order to be granted
a DNR order, one must have a qualifying terminal condition, and
current law contains a definition of what would constitute a
qualifying terminal condition.
CHAIR McGUIRE offered her understanding of the difference
between euthanasia and a situation that could involve a DNR
order.
MS. TUPOU, in response to questions regarding the language
pertaining to a woman of childbearing years, indicated that a
physician would have a duty to ascertain whether the woman is
pregnant, and, if she is, regardless of what stage of her
pregnancy she is in, the physician would at that point
administer resuscitative measures.
2:53:59 PM
SHELLEY OWENS, Health Program Manager, Section of Injury
Prevention & Emergency Medical Services, Division of Public
Health, Department of Health and Social Services (DHSS), relayed
that she administers the Comfort One Program and would be
commenting on how Section 5 of HB 442 will impact emergency
medical technicians (EMTs) and other emergency responders, and
that members' packets contain a letter from section chief Tim
Bundy. She offered her understanding that members' packets also
contain an amendment by the sponsor that is intended to address
the DHSS's concerns. She went on to say:
The Comfort One Program has been in effect for 10
years, and it provides a standard procedure for
[emergency medical service (EMS)] responders outside
of a hospital to identify and honor the wishes of a
terminally ill patient not to be resuscitated when his
or her heart stops. In order to obtain a DNR order,
... a patient must have a terminal condition or be in
a state of permanent unconsciousness. The DNR order
must be signed by a doctor, and takes effect only at
the time of cardiac arrest. If a DNR patient is
choking on a piece of food, breaks a hip, or gets into
a car accident, EMS personnel will treat them using
standard medical procedures.
We're concerned about the use of the term "health care
provider" in Section 5, ... and want to thank
Representative Weyhrauch for preparing the amendment,
which would cure our concerns. The [term] "Health
care provider" is defined in [AS 13.52.390(23)] as "an
individual licensed, certified, or otherwise
authorized or permitted by law to provide health care
in the ordinary course of business or practice of a
profession". This term would include emergency trauma
technicians [ETTs] who have only 40 hours of initial
training in advanced first aid. Section 5 would
authorize providers with limited medical training to
override a physician's DNR order on the basis of a
diagnosis which they are not medically trained to
make. It wouldn't be possible to train emergency
providers, such as an ETT, to diagnose if a person is
dying of their terminal condition or as a result of
the action of the health care provider.
I understand that a concern of the drafters is that if
a DNR patient goes into cardiac arrest during surgery
for a condition unrelated to the patient's terminal
condition, a surgeon or anesthesiologist may want to
resuscitate the patient; however, it's possible [the
bill drafters] ... didn't anticipate the consequence
to the pre-hospital medical providers and the Alaska
Comfort One Program. There are over 4,000 emergency
medical responders in Alaska, of which 75 percent are
volunteers; they have only seconds to make immediate
life and death decisions. They're the heart and
backbone of our emergency response system in Alaska,
but they aren't doctors and shouldn't be given the
responsibility to revoke a doctor's DNR order. It
wouldn't be fair to either them or the patient.
We would urge you to accept ... Representative
Weyhrauch's amendment, and we would support the bill
if this amendment is adopted. Thank you.
2:57:30 PM
REPRESENTATIVE ANDERSON indicated a willingness to offer the
aforementioned amendment, labeled 24-LS1618\F.3, Bannister,
3/27/06 [later known as Amendment 1], which read:
Page 3, line 10, following "patient.":
Insert "This subsection does not apply when a
health care provider performs emergency medical
services to a patient in the field, unless an online
physician orders the health care provider to perform
cardiopulmonary resuscitation or other resuscitative
measures. In this subsection,
(1) "health care provider" does not include
a physician;
(2) "in the field" does not include in a
health care facility, health care institution,
hospital, or mental health facility;
(3) "online physician" means a physician
who is immediately available in person or by radio or
telephone, when medically appropriate, for
communication of medical direction to health care
providers."
REPRESENTATIVE GRUENBERG mentioned that Kenneth C. Kirk had
written an article for the Alaska Law Review addressing [the
Health Care Decisions Act] noting a number of deficiencies in
the Act and suggesting [improvements]. For example, according
to Mr. Kirk, there is a mis-reference to "conservatorship" when
what is actually meant is "guardianship". He indicated a desire
to provide members with a copy of that article.
2:59:32 PM
JON S. DAWSON, Attorney at Law, Davis Wright Tremaine, LLP,
relayed that he represents Providence Anchorage Anesthesia
Medical Group, P.C., a group of anesthesiologists that provide
anesthesia services to [Providence Alaska Medical Center]. He
said he wants to emphasize, "from a real world perspective," the
importance of passing [HB 442]. Doctors want to honor the
wishes of the patient, comply with the law, and avoid liability.
Current statute speaks to a requirement that doctors "act
reasonably"; in terms of advanced care directives and DNR
orders, this means that doctors are required to investigate
whether an order or directive is factually and legally
supportable. This is particularly an issue when an order comes
from out of state, and a doctor must determine whether an order
or directive complies with the laws of the state from which it
came; this isn't possible from a practical standpoint, and so
doctors are faced with either performing a procedure against the
wishes of the patient, or exposing themselves to liability. He
opined that [HB 442] does an excellent job of clarifying that
"good faith" is what is required.
MR. DAWSON offered his understanding that [Section 5] will
address situations involving someone with a terminal illness who
is having some sort of procedure done in order to make his/her
final months more comfortable. For example, if an elderly
patient has fallen and broken a hip, it doesn't mean that
doctors shouldn't treat the broken hip just because the patient
is suffering from a terminal illness. Under current law,
however, if an anesthesiologist were to administer too much
anesthesia to such a patient during surgery, for example, the
anesthesiologist would not be able to correct his/her mistake if
the patient has a DNR order. "Presumably people who seek
medical assistance, even when they have a DNR order, want that
medical assistance to succeed, and if there is a mistake or if
there is something else unrelated to that [terminal] condition
that needs to be corrected, then it ought to be corrected;
[Amendment 1] ... permits that to happen," he remarked, noting
that [the bill] also provides some additional protection for a
physician honoring a DNR order from being sued for malpractice.
3:05:19 PM
MR. DAWSON, in response to a question, relayed that he'd only
read the parts of Mr. Kirk's article that pertained to his
clients, and noted that the article contains case examples
illustrating how nationally recognized cases would have fared
under Alaska's Health Care Decisions Act.
REPRESENTATIVE COGHILL noted that [Amendment 1] says in part
that a "'health care provider' does not include a physician",
and asked why that language is included.
MR. DAWSON offered his understanding that [Amendment 1] is
designed to prevent EMS personnel from being put in the position
of having to exercise their discretion regarding DNR orders, but
if one is actually a physician in the field, then he/she should
have that discretion.
REPRESENTATIVE GRUENBERG asked whether the bill should contain a
retroactive effective date, retroactive to the date that
Alaska's Health Care Decisions Act was effective.
MR. DAWSON opined that such would be appropriate.
REPRESENTATIVE GRUENBERG remarked that when members have a
chance to read Mr. Kirk's article, they may not want every
provision of the bill to be retroactive.
CHAIR McGUIRE asked Ms. Tupou whether the sponsor has had an
opportunity to read Mr. Kirk's article and whether he's
considered including any of Mr. Kirk's suggested changes.
MS. TUPOU relayed that the sponsor is familiar with Mr. Kirk's
article and agrees with some of Mr. Kirk's points but not
others, and that the sponsor would like to just address the
issues now contained in the bill but may give future
consideration to the other points raised in Mr. Kirk's article;
therefore, the sponsor would not be amenable to any other
amendments.
REPRESENTATIVE GRUENBERG pointed out, however, that Mr. Kirk's
article addresses technical changes that could be in order.
MS. TUPOU reiterated that the sponsor has read that article.
The committee took an at-ease from 3:11 p.m. to 3:15 p.m.
3:16:04 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 442.
CHAIR McGUIRE made a motion to adopt Amendment 1 [text provided
previously]. There being no objection, Amendment 1 was adopted.
3:16:47 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2 to
add a retroactive effective date clause effective as of the
effective date of Alaska's Health Care Decisions Act.
REPRESENTATIVE KOTT sought clarification that such a clause
would pertain to the whole bill.
REPRESENTATIVE GRUENBERG indicated that that is his intention.
CHAIR McGUIRE asked whether there were any objections to
Amendment 2. There being none, Amendment 2 was adopted.
3:17:44 PM
REPRESENTATIVE KOTT moved to report CSHB 442(HES), as amended,
out of committee with individual recommendations and the
accompanying zero fiscal note. There being no objection, CSHB
442(JUD) was reported from the House Judiciary Standing
Committee.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:18 p.m.
| Document Name | Date/Time | Subjects |
|---|