Legislature(1999 - 2000)
03/27/2000 01:20 PM House JUD
| 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 JUDICIARY STANDING COMMITTEE
March 27, 2000
1:20 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Jeannette James
Representative Lisa Murkowski
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 367
"An Act providing for the revocation of driving privileges by a
court for a driver convicted of a violation of traffic laws in
connection with a fatal motor vehicle or commercial motor vehicle
accident; and amending Rules 43 and 43.1, Alaska Rules of
Administration."
- MOVED HB 367 OUT OF COMMITTEE
HOUSE BILL NO. 435
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
- MOVED CSHB 435(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 372
"An Act relating to criminal sentencing and restitution."
- MOVED CSHB 372(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 325
"An Act relating to priorities, claims, and liens for payment for
certain medical services provided to medical assistance recipients;
and providing for an effective date."
- MOVED CSHB 325(JUD) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 53
Proposing amendments to the Constitution of the State of Alaska
relating to a preference for taking wildlife for human consumption.
- MOVED CSHJR 53(JUD) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 367
SHORT TITLE: REVOCATION OF DRIVING PRIVILEGES
Jrn-Date Jrn-Page Action
2/11/00 2180 (H) READ THE FIRST TIME - REFERRALS
2/11/00 2180 (H) STA, JUD, FIN
2/11/00 2180 (H) INDETERMINATE FISCAL NOTE (ADM)
2/11/00 2180 (H) 2 ZERO FISCAL NOTES (LAW, DPS)
2/11/00 2180 (H) GOVERNOR'S TRANSMITTAL LETTER
2/22/00 (H) STA AT 8:00 AM CAPITOL 102
2/22/00 (H) Scheduled But Not Heard
2/29/00 (H) STA AT 8:00 AM CAPITOL 102
2/29/00 (H) Scheduled But Not Heard
3/02/00 (H) STA AT 8:00 AM CAPITOL 102
3/02/00 (H) Scheduled But Not Heard
3/07/00 (H) STA AT 8:00 AM CAPITOL 102
3/07/00 (H) Moved Out of Committee
3/07/00 (H) MINUTE(STA)
3/08/00 2451 (H) STA RPT 2DP 1DNP 3NR
3/08/00 2451 (H) DP: KERTTULA, SMALLEY; DNP: GREEN;
3/08/00 2451 (H) NR: JAMES, HUDSON, OGAN
3/08/00 2451 (H) INDETERMINATE FISCAL NOTE(ADM)
2/11/00
3/08/00 2451 (H) 2 ZERO FISCAL NOTES (LAW, DPS)
2/11/00
3/27/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 435
SHORT TITLE: REVISOR'S BILL
Jrn-Date Jrn-Page Action
3/20/00 2612 (H) READ THE FIRST TIME - REFERRALS
3/20/00 2612 (H) JUD
3/27/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 372
SHORT TITLE: COMMUNITY BASED SENTENCING
Jrn-Date Jrn-Page Action
2/11/00 2184 (H) READ THE FIRST TIME - REFERRALS
2/11/00 2184 (H) JUD, FIN
3/06/00 (H) JUD AT 2:15 PM CAPITOL 120
3/06/00 (H) Heard & Held
3/06/00 (H) MINUTE(JUD)
3/27/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 325
SHORT TITLE: MEDICAL ASSISTANCE:LIENS & CLAIMS
Jrn-Date Jrn-Page Action
2/02/00 2061 (H) READ THE FIRST TIME - REFERRALS
2/02/00 2061 (H) HES, JUD, FIN
2/02/00 2061 (H) FISCAL NOTE (DHSS)
2/02/00 2061 (H) GOVERNOR'S TRANSMITTAL LETTER
2/24/00 (H) HES AT 3:00 PM CAPITOL 106
2/24/00 (H) Moved CSHB 325(HES) Out of Committee
2/24/00 (H) MINUTE(HES)
2/28/00 2329 (H) HES RPT CS(HES) 2DP 4NR
2/28/00 2329 (H) DP: GREEN, DYSON; NR: WHITAKER,
2/28/00 2329 (H) COGHILL, BRICE, KEMPLEN
2/28/00 2329 (H) FISCAL NOTE (DHSS) 2/2/00
3/27/00 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 53
SHORT TITLE: CONST AM: WILD FOOD RESOURCES
Jrn-Date Jrn-Page Action
2/07/00 2114 (H) READ THE FIRST TIME - REFERRALS
2/07/00 2115 (H) RES, JUD, FIN
2/09/00 2155 (H) COSPONSOR(S): DYSON
2/21/00 2259 (H) COSPONSOR(S): HARRIS
2/28/00 (H) RES AT 1:00 PM CAPITOL 124
2/28/00 (H) Moved CSHJR 53(RES) Out of Committee
2/28/00 (H) MINUTE(RES)
3/01/00 2352 (H) RES RPT CS(RES) NT 5DP 2NR 2AM
3/01/00 2352 (H) DP: COWDERY, BARNES, MORGAN,
WHITAKER,
3/01/00 2352 (H) MASEK; NR: JOULE, KAPSNER;
AM: HARRIS,
3/01/00 2352 (H) HUDSON
3/01/00 2352 (H) FISCAL NOTE (GOV)
3/20/00 (H) JUD AT 1:00 PM CAPITOL 120
3/20/00 (H) Heard & Held
3/20/00 (H) MINUTE(JUD)
3/27/00 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Legal Services Section - Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Presented HB 367.
MARK CAMPBELL
No address provided.
Palmer, Alaska
POSITION STATEMENT: Related his experience regarding the subject
of HB 367, which he stated is a good bill.
PAMELA FINLEY, Revisor of Statutes
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
129 Sixth Street, Room 329
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 435.
PETER TORKELSON, Staff to Representative Dyson
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 372 on behalf of the sponsor.
BLAIR McCUNE, Deputy Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Testified on HB 372; had not seen latest
version but approved of having "with the consent of the victim" on
line 6, and would have no problem with including language [to
protect against] any undue influence on the victim.
LAUREE HUGONIN, Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward Street, Room 209
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 372, Version D; expressed
concern with only limiting the exclusion to AS 11.41, and suggested
adding crimes involving domestic violence, as defined in AS
18.66.990.
JON SHERWOOD
Division of Medical Assistance
Department of Health & Social Services
P.O. Box 110660
Juneau, Alaska 99811-0660
POSITION STATEMENT: Reviewed the changes to statute encompassed in
HB 325.
LISA KIRSCH, Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Discussed subrogation rights in reference to
HB 325.
LEONARD ANDERSON
Division of Medical Assistance
Department of Health & Social Services
405 West 36th Avenue, Number 200
Anchorage, Alaska 99517
POSITION STATEMENT: Discussed HB 325 and its implementation.
EDDIE GRASSER, Staff
to Representative Masek
Alaska State Legislature
Capitol Building, Room 128
Juneau, Alaska 99801
POSITION STATEMENT: Testified on behalf of the sponsor of HJR 53.
DICK BISHOP, Vice President
Alaska Outdoor Council
211 Fourth Street, 302A
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of HJR 53, Version K.
ACTION NARRATIVE
TAPE 00-39, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 1:20 p.m. Members present at the call to order
were Representatives Kott, Green, Murkowski and Kerttula.
Representatives Croft, James and Rokeberg arrived as the meeting
was in progress. [Although discussion implied that Representative
James was present at the call to order, she actually arrived as the
meeting was in progress; Representative Rokeberg joined the final
portion of the hearing after the meeting was reconvened.]
HB 367 - REVOCATION OF DRIVING PRIVILEGES
CHAIRMAN KOTT announced that the first order of business would be
HOUSE BILL NO. 367, "An Act providing for the revocation of driving
privileges by a court for a driver convicted of a violation of
traffic laws in connection with a fatal motor vehicle or commercial
motor vehicle accident; and amending Rules 43 and 43.1, Alaska
Rules of Administration."
Number 0115
ANNE CARPENETI, Assistant Attorney General, Legal Services Section
- Juneau, Criminal Division, Department of Law, informed the
committee that the problem that HB 367 addresses occurs maybe six
to eight times a year in Alaska. She explained that perhaps a
driver dozes and crosses the center line or accidentally slides
through a stoplight and is in a traffic accident that results in
the death of a person. The driving is not such that it would rise
to a culpable criminally negligent state; the person could not be
charged with criminally negligent homicide or any crime involving
the accident. Currently, the person may be cited for crossing the
center line and the traffic offense; this is difficult for the
family of the victim who was killed and not at fault in any way.
Ms. Carpeneti explained that the problem is that it cannot be
proven beyond a reasonable doubt that the person drove with a
culpable mental state that rises to criminal negligence, which is
the lowest culpable mental state for crimes in the state.
Therefore, HB 367 was proposed.
MS. CARPENETI informed members that HB 367 provides that if a
person cited for a moving traffic violation in connection with a
fatal accident is convicted beyond a reasonable doubt of the cited
offense, and if the court finds that the accident contributed to
the death of a person, then the person cited for the moving traffic
violation should have his/her driver's license revoked for one
year.
Number 0250
REPRESENTATIVE GREEN informed the committee that 30 years or so
ago, he was driving up about a two-mile grade in the center of
three lanes. In the far right lane there was a slow moving,
improperly lit semi-truck. Upon looking in the rearview mirror,
Representative Green could see that there were two cars racing.
As those cars approached Representative Green's car, the car
approaching in the far-left lane sped around him, while the car
approaching from behind swerved so close that Representative Green
had to swerve and ended up hitting the aforementioned semi-truck in
the rear. Upon impact, the tongue of the semi-truck went through
the windshield and hit the seat where the passenger would have
been. Indeed, he noted, he was supposed to have had a passenger.
Representative Green informed the committee that he was cited for
improper passing. He asked if he would have been cited had the
passenger been present and killed. In response to Ms. Carpeneti,
Representative Green answered that he did not appeal the charge and
thus was convicted by default.
MS. CARPENETI pointed out that under HB 367, Representative Green
would have had the right to a jury trial. With regard to whether
Representative Green would have been cited had the passenger been
present and killed, Ms. Carpeneti specified that it would depend
upon the circumstances. She further specified that Representative
Green would have to have been convicted beyond a reasonable doubt
of the citation and the court would have to have found, by a
preponderance of the evidence, that the violation for which
Representative Green had been cited had contributed to the death of
the person.
REPRESENTATIVE GREEN commented, "Wouldn't that all apply, though?
I mean, I have no witnesses." He acknowledged that he himself was
a witness, but said, "I'm going to say that I didn't run into this
guy or that somebody forced me off [the road] and they're gone."
MS. CARPENETI replied yes. In response to whether that would do
any good, Ms. Carpeneti affirmed that.
REPRESENTATIVE GREEN noted that his lawyer in that instance had
advised him that it would not be worth his time [to fight the
charge].
MS. CARPENETI responded that if this bill had been in effect, then
Representative Green's lawyer would have advised him to move
forward to litigate the traffic citation. She added that she would
have been surprised if Representative green would have been
convicted under those circumstances because he was not at fault.
Number 0469
REPRESENTATIVE JAMES asked how Alaska's law compares with Oregon's
law regarding the basic speed rule. She explained that [in Oregon]
if one has an accident that could be attributed to the person's not
watching or driving at an inappropriate speed, the person would be
guilty of violation of the basic speed law. She indicated that the
basic speed law is all-inclusive.
MS. CARPENETI stated that she is not familiar with Oregon's basic
speed rule. She did not believe that people in Alaska are cited
for basic speed [violations] unless an officer believes that a
person was going faster than the conditions would warrant to be
safe. Furthermore, a person cannot be convicted unless a court
makes that determination based on evidence presented beyond a
reasonable doubt.
REPRESENTATIVE MURKOWSKI turned attention to the limited license.
She asked: If it can be established that a person's' ability to
earn a livelihood would be severely impaired without a limited
license, are there standards regarding what constitutes severe
impairment to one's livelihood?
MS. CARPENETI answered that it is a fairly common procedure in
which the court would make the determination. Usually a severe
impairment would arise when the person has no access to public
transportation or if it is impractical to obtain a ride from
someone. She agreed with Representative Murkowski that it is a
case-by-case determination.
Number 0653
REPRESENTATIVE JAMES asked whether losing a driver's license for
one year is punishment or an attempt to keep an unsafe driver off
the road.
MS. CARPENETI said she believes the main purpose of this is to keep
an unsafe driver off the road, although part of the purpose is
punishment.
REPRESENTATIVE JAMES surmised, then, that this temporary license
does not keep this individual [an unsafe driver] off the road.
MS. CARPENETI clarified that the court has to make a determination
that the limited license will not endanger the public. If that
determination cannot be made, then the person is not granted a
limited license.
REPRESENTATIVE KERTTULA pointed out that limited licenses are often
limited to the time of day when the individual needs to drive to
work.
MS. CARPENETI agreed. She specified that a limited license would
be for use during, say, 7:30 a.m. to 8:00 a.m. and 4:30 p.m. to
5:00 p.m. Nor is a limited license automatically granted. The
individual must convince the judge that he or she would not
endanger the public by driving during those limited hours.
REPRESENTATIVE GREEN expressed concern regarding the courts'
handling of DUIs [charges of driving under the influence]. He
realizes that the court cannot bring the accusation, he said, but
he has observed cases in which people have lost their license. In
three cases he observed that each time these individuals were
brought up on DUI charges - and there were multiple times - these
individuals plea bargained down to a lesser offense.
Representative Green stressed that these individuals are a menace
on the highway. He asked if the same situation would occur under
this legislation.
MS. CARPENETI remarked that she would have to know the individual
facts of those cases. She acknowledged that it is discouraging for
people to observe cases being plea bargained down, and she noted
that [the department] takes DUI charges very seriously. Ms.
Carpeneti stated that the purpose of this [bill] is to have
significant consequences under these circumstances, and therefore
she would not say [that the same situation would occur under this
bill].
REPRESENTATIVE GREEN expressed his belief that a habitual drunk who
consistently beats the system is a menace. He informed everyone
that the prosecuting attorney [of these aforementioned DUI cases]
had told him that he had too many cases and thus plea bargaining
was a much easier road. He commented, "That was disgusting."
MS. CARPENETI agreed. She pointed out that a person convicted of
a DWI/DUI can have his/her license taken under other statutory
procedures.
Number 0957
REPRESENTATIVE MURKOWSKI posed a situation in which a commercial
truck driver, through whatever reason, has [had an accident] in
which a death resulted. She surmised that this statute would
require the license of the commercial truck driver to be taken. In
and of itself, the license being taken is substantial punishment in
that the person is losing the ability to earn a livelihood. She
asked if this punishment, revocation of license for one year, is
taken into account and, perhaps, the jail time for manslaughter is
lessened. She also asked if double jeopardy would exist.
MS. CARPENETI pointed out that the purpose of HB 367 is to provide
consequences when a person cannot be charged with manslaughter or
any other crime in connection with the traffic accident.
REPRESENTATIVE MURKOWSKI surmised, then, that two different forms
of punishment would not result.
MS. CARPENETI replied no. This is for use in those cases in which
[the driving is not such that it rises to] a criminally culpable
mental state in the driving, but the person was careless.
Number 1106
MARK CAMPBELL testified via teleconference from Palmer. He noted
that Representative Ogan, his representative, had informed him of
HB 367. Mr. Campbell related his experience with this issue in
which his son was killed in a car accident six years ago. Of the
six people in the car, two were killed and four were injured when
a seventeen-year-old was speeding, lost control of the vehicle and
entered the lane of oncoming traffic. Within a week the young man
was driving a new truck. Mr. Campbell saw this young man drive
through an intersection without heeding the light, which was
brought out in court. In this situation, the maximum that the
judge could charge was $50 per person injured, which resulted in a
$300 fine. Therefore, Mr. Campbell had requested that the young
man work off that fine through community service rather than merely
pay the fine, which the judge granted. However, a little over a
year later this young man was involved in a one car accident in
which two other young lives were taken. Perhaps, if more could
have been done, this young man may have viewed his driving
privilege differently. Mr. Campbell felt that the system had
failed.
MR. CAMPBELL turned to HB 367. He commented that HB 367 seems to
leave room for the judge to allow the individual to work while
placing beneficial limitations on the individual. He clarified
that [this would be appropriate] in a circumstance such as this.
In conclusion, Mr. Campbell stated that HB 367 is a good bill that
addresses the situation where a person acts unreasonably and yet is
not criminally negligent in the sense of intent. He noted that
parents who have lost children [in similar accidents] have
contacted him and related the same experience with regard to the
individual not feeling the weight of his or her unreasonable
actions.
Number 1384
REPRESENTATIVE GREEN inquired as to whether drugs and/or alcohol
were involved in either case involving this young man. He further
inquired as to the disposition of this young man now.
MR. CAMPBELL said that in his son's case there were no drugs or
alcohol involved. In the second accident, there was beer in the
vehicle; however, he did not know whether there was an alcohol
[test]. In further response to Representative Green, Mr. Campbell
informed the committee that this young man is driving now.
CHAIRMAN KOTT asked if there was anyone else who wished to testify.
There being no one, public testimony was closed.
Number 1476
REPRESENTATIVE MURKOWSKI moved to report HB 367 out of committee
with individual recommendations and the accompanying three fiscal
notes. There being no objection, it was so ordered and HB 367 was
reported from the House Judiciary Standing Committee.
HB 435 - REVISOR'S BILL
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 435, "An Act making corrective amendments to the
Alaska Statutes as recommended by the revisor of statutes; and
providing for an effective date."
Number 1538
PAMELA FINLEY, Revisor of Statutes, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, informed the committee that this bill is prepared every
year pursuant to statute. The bill is introduced through the
Legislative Council and is primarily a cleanup bill. She pointed
out that HB 435 primarily has changes in nomenclature, conforming
federal references to new laws. There should be no policy changes
in HB 435 and there are not really any substantive changes either.
MS. FINLEY referred the committee to page 3, Section 7, which would
authorize banks to own real or personal property in connection with
a negatively amortizing loan. She explained that several years ago
the legislature amended the interest statute in order to allow
negatively amortizing loans. She understood this to essentially
allow people who are terminally ill or elderly to stay in their
homes and receive the money from their homes. "In order to do
that, I am told, the bank needs to own the property and that
statute was not amended." Essentially, Section 7 allows the policy
determined by the legislature several years ago to go into effect.
MS. FINLEY pointed out that HB 435 has an error. On page 4, line
3, the word "loan" should be bracketed, and on page 4, line 4,
"[LOAN]" should not be bracketed. She noted that the bill packet
should include an amendment to rectify this error.
CHAIRMAN KOTT announced that [the aforementioned correction] would
be accepted as a technical amendment.
Number 1680
REPRESENTATIVE MURKOWSKI noted that this committee has had several
discussions with regard to the political correctness of certain
terminology, specifically that of "chairman." She asked how this
is handled in the statutes.
MS. FINLEY said that in new bills she tries to make sure that the
language used is "chair" because that seems to be the common
[terminology] and most people can distinguish between the furniture
and the person. She a noted that "chairperson" is an alternative.
She recalled that in 1982 the legislature passed a law instructing
[the legislature] to avoid personal pronouns, which she took to
mean to avoid "chairman." In other words, [the intent] was to use
sex neutral language to the extent possible. However, there are
plenty of references to "chairman" left over in old law from the
1960s. She said, "I have thought about it. I have in my suspense
file 'a go through and do a revisor's bill that changes them all,'
but there are people, I think, in this legislature who would not
like that." She commented that she would be willing to introduce
such legislation, but she did not feel the need to "pick fights"
over that.
Number 1819
REPRESENTATIVE GREEN moved to report HB 435 out of committee with
individual recommendations.
CHAIRMAN KOTT interjected that the aforementioned correction would
be recognized as a technical amendment, labeled Amendment 1.
Chairman Kott asked if there were any objections [to reporting HB
435 as amended out of committee]. There being no objection, it was
so ordered and CSHB 435(JUD) was reported from the House Judiciary
Standing Committee.
HB 372 - COMMUNITY BASED SENTENCING
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 372, "An Act relating to criminal sentencing and
restitution." He noted that there was a new proposed committee
substitute (CS), Version D.
Number 1910
REPRESENTATIVE GREEN made a motion to adopt the proposed CS for HB
372, version 1-LS142\D, Luckhaupt, 3/8/00, as the working document
before the committee. There being no objection, it was so ordered
and Version D was before the committee.
PETER TORKELSON, Staff to Representative Dyson, Alaska State
Legislature, explained that Version D attempts to address several
concerns raised when the bill was previously before this committee.
One concern surrounds whether the bill may create a situation in
which a victim goes into negotiation with an offender when the
situation isn't conducive to a real negotiation. Version D
addresses this in two ways. First, on page 1, line 6, the language
"with the consent of the victim" was inserted to make it clear that
the victim must consent to the process from the beginning. Second,
on page 1, lines 10-12, a new sentence was inserted that reads as
follows: "Before accepting a negotiated agreement, the court shall
determine that the victim has not been unduly influenced or
intimidated in reaching the agreement." Although experience in
other states has shown that courts are very sensitive to this, Mr.
Torkelson said, it was felt that it would be best to be clear.
MR. TORKELSON noted that there was also concern that this bill
might circumvent the presumptive sentencing guidelines that are
specified. To his understanding, presumptive sentencing applies to
unclassified felonies, class A felonies and second-time [class] B
or C felonies. He specified that by saying that no violations of
AS 11.41 would be considered for this, the intent is that no
person-to-person violent crime is ever to be considered.
Therefore, it eliminates most of the presumptive sentencing
[issues]. Regarding concerns that this bill would undo the "Chaney
doctrine," he directed the committee to the language on page 1,
lines 8-9, which read, "if that sentence otherwise complies with
this chapter". He said that sentence should cover some of those
concerns because this is a simple, optional addition that the court
may consider in the appropriate circumstance.
MR. TORKELSON informed the committee that since this bill was last
heard, the Chief Justice had referred, in his State of the
Judiciary [address], to restorative justice and a program that is
currently happening, at the impetus of the court system, in what is
called "circle" sentencing. The Chief Justice had mentioned
Magistrate Jackson (ph), who has utilized "circle" sentencing in
approximately 20 cases and has seen some benefits to that program.
Mr. Torkelson stressed that this is happening now. The sponsor
feels that this is an important enough issue that the legislature
should make a statement endorsing an effort in this direction, he
said, in order to determine whether it is worth pursuing.
Number 2141
REPRESENTATIVE GREEN asked whether this [legislation] is viewed -
by the sponsor or any of the attorneys to which he has spoken - as
compromising any types of alternative sentencing or victims'
rights.
MR. TORKELSON answered that restorative justice is sort of a
culmination of a number of movements in the criminal justice system
for some time; victims' rights is an issue that the legislature had
dealt with not many years ago. This legislation is actually the
next step, in a sense, in victims' rights in that it allows the
victim, in the right situation and if everyone consents, to sit
down with the offender. Experience in other states has shown that
following these experiences, offenders often are less likely to
reoffend and victims feel that they can start down a path towards
a normal life again. Mr. Torkelson said to the sponsor's belief,
part of the state's role is to "service" the victim as well as the
offender. He referred to Representative Green's question and said
no, this is actually the next step and an ultimate form of
recognition of the rights and the voice of the victim.
Number 2341
REPRESENTATIVE KERTTULA asked whether [Mr. Torkelson and the
sponsor] had thought of using this model for just misdemeanors or
alcohol-related crimes to begin with. Most of her own concerns
relate to using it in the "felony setting," she noted, and she is
glad to see assaults no longer included because there is an
inequitable situation there that is hard to sort through.
Suggesting that Anne Carpeneti could comment, she conveyed her
understanding that presumptive sentencing isn't just for assaults
but goes across a panoply of burglaries, breaking and entering, and
theft. She acknowledged that people who have had something stolen
from them may feel just as violated. She noted that the magistrate
discussed by the Chief Justice had done this mostly for
misdemeanors and alcohol-related crimes.
MR. TORKELSON responded:
We've had considerable discussion with the Department of
Law and amongst ourselves about this. We are aware that
the Department of Law still objects to the bill primarily
for that reason, the felony issue. ... There are a number
of felonies that could potentially fall under this that
are non-person-to-person type of crimes, property crimes,
that would [be classified] as a felony; ... if you steal
more than $500, that's a felony.
And in our discussions, the sponsor just isn't really
willing to give that up, in the sense that we've cut out
the person-to-person crimes, and if you write a bad check
for $505 with intent to defraud, then this should maybe
still ... apply to you. Again, we are, to some degree,
relying on the court's discretion. If it's a
particularly egregious crime, if it's a multiple
offender, we certainly don't expect a judge to invoke
this type of process where we all sit down and talk about
it. ... We're really relying on the judge ... in these
types of cases.
The sponsor isn't really willing to back down on that for
a couple specific reasons: one, other states have had
some success with these property-type-crime felonies -
there's not really a hard-and-fast line between the
people ... that this will work for and not, just based on
that $500 mark - and also because we have been made aware
that it is happening now; even though it wasn't
specifically stated by ... the Chief Justice, there are
some what we call less egregious felonies that, for
instance, the youth court may deal with. And we don't
want to make a bill that says, ... specifically, from the
policy making body, "You should not be doing that,"
because they're taking it very slow and very easy, and
they're taking just a few of these mild felonies into
account now, and we really don't want to say that they
shouldn't, because the sponsor believes that if the court
feels it's appropriate, then they should think about
this. So, ... we understand that the department will
still oppose it for that reason. And that's where we
part ways, I guess.
Number 2341
REPRESENTATIVE KERTTULA asked, "Have you thought about
nonpresumptive felonies, first time, and limiting it to that? Have
you had that discussion."
MR. TORKELSON said that was actually an idea put forth informally
and discussed. "My boss indicated that he liked it the way it [the
bill] was," he added.
Number 2360
REPRESENTATIVE GREEN said he hadn't seen what AS 11.41 says, but
Mr. Torkelson had indicated that it is being put in to avoid the
problem with presumptive sentencing.
MR. TORKELSON clarified:
We're avoiding most of the things. When you think of
presumptive sentencing, some ... ax murderer goes out and
kills somebody, we want that guy to serve 20 years. [AS]
11.41 is person-to-person crime. And so, that's most of
the things you think about when you think of, ... "Get
this guy." That's covered in [AS] 11.41. There are some
other crimes that would be felonies, ... a second-time
property crime, that would fall under presumptive
sentencing. But, again, the bill says "if the sentence
otherwise complies with this chapter." So we shouldn't
be undoing that.
Number 2392
REPRESENTATIVE KERTTULA asked whether her recollection is accurate
that the sponsor's intent was not to include domestic violence
cases. She emphasized that cases other than those in AS 11.41
might involve domestic violence, including trespassing cases, which
many times are classic domestic violence cases in disguise. She
asked whether Mr. Torkelson believes that the sponsor would be
amenable to some language like "an offense other than a violation
of 11.41 or where domestic violence is alleged."
MR. TORKELSON answered:
We did talk some about that. We looked at some different
language, and we started getting pretty verbose in trying
to define ... what types of things could and couldn't.
Certainly, if there's any assault involved, we would be
out of that because that's 11.41. The sponsor felt like,
again, we are relying so much on the courts to determine,
for instance, in a family case, the very child custody
and things, that we really have to rely on them to
implement this, and we have to rely on them to realize
when a victim -- first of all, the victim would have to
consent.
Number 2445
REPRESENTATIVE KERTTULA pointed out the need for a little more
protection there for that particular crime, in terms of just
recognizing that often domestic violence isn't charged as an
assault. "I've seen some pretty scary cases that were charged as
trespass," she explained, "and that's the problem. You've got all
the facts there, but the victim may not even be willing to come
forward. ... And then the victim sometimes will consent because of
fear, as well." She suggested perhaps asking Ms. Carpeneti from
the Department of Law or Ms. Hugonin to speak to that briefly
regarding some kind of language that could be added.
MR. TORKELSON replied:
I would just, for the sponsor's sake, point [out] that we
have the two clauses in there we believe would address
that. One is the consent of the victim, which -- we
don't know whether someone would be - it's impossible to
see that - if they would be ... somehow consent when they
didn't really want to consent. And then, also, a
specific finding that the court would determine that the
victim has not been unduly influenced or [intimidated].
So ... we've tried to draw some safeguards on that.
TAPE 00-39, SIDE B
Number 0010
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage,
noting that he had testified in favor of the bill previously.
Although he hadn't seen the latest version, as described by Mr.
Torkelson it makes sense to him to have the language "with the
consent of the victim" on line 6, he said. Furthermore, although
he believes that the courts are "pretty clued in" to any undue
influence, if the committee feels that [language to protect against
that] should be included, the agency doesn't have any problem with
that.
MR. McCUNE restated earlier comments that there have been good
experiences with restorative justice in the juvenile justice
system, even for offenses such as burglaries where young people
have gone into a home and stolen coins, for example, although maybe
not for the most serious of burglaries. He said those things can
be adjusted for a first-time offender, if the case is screened
properly through a victim-offender mediation process, which he
indicated is done by a nonprofit organization and approved by the
juvenile intake authorities. He expressed hope that this can
translate into adult court, at least to some extent. He concluded,
"I think the court has a lot of discretion in that they may do it
or may not. But ... these restorative justice processes have been
tried ... in this state and other states, as well, and they've
produced some really good results."
Number 0099
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and
Sexual Assault, came forward to testify. She informed members that
her organization hadn't had an opportunity to speak with the
sponsor about the bill. However, they would have concerns with
only limiting the exclusion to AS 11.41; instead, they encourage
the committee to consider adding crimes involving domestic violence
as defined in AS 18.66.990.
MS. HUGONIN explained that there is a list of domestic violence
crimes in the statutes that are outside of AS 11.41; that list
includes burglary, criminal trespass, arson, criminal mischief,
terroristic threatening, violating a domestic violence protective
order or harassment. There are several scenarios in which it is
dangerous to put victims in a situation of having to consent to do
something in the courts. Often it is in a victim's best interest
to take seriously the threat that a perpetrator poses and to try to
mitigate that potential in any way possible. "Usually, that means
giving up a lot of their rights or access to the court," Ms.
Hugonin said.
MS. HUGONIN told members that the legislature has recognized this
difficulty, and the domestic violence Act of 1996 included very
tight parameters around mediation. She expressed hope that the
legislature would treat this current issue with the same
seriousness. If there is a protective order is in place, she
noted, mediation is not allowed to take place; it is only allowed
in limited circumstances after a judge has explained to the victim
that the victim doesn't have to agree to the mediation. Ms.
Hugonin restated her request that the committee consider adding [to
the exclusions] crimes involving domestic violence as defined in AS
18.66.990, which would include all the domestic violence crimes.
REPRESENTATIVE KERTTULA thanked Ms. Hugonin for providing the cite.
Number 0208
CHAIRMAN KOTT also thanked Ms. Hugonin and called an at-ease at
2:10 p.m. He called the meeting back to order at 2:17 p.m.
CHAIRMAN KOTT announced that during the intermission there had been
discussion about adding language on line 6 after "AS 11.41" that
would say "or involves domestic violence as defined in [AS]
18.66.990."
REPRESENTATIVE KERTTULA asked whether the word "crimes" was
included.
MS. HUGONIN proposed that it say "a crime involving domestic
violence as defined in [AS] 18.66.990."
REPRESENTATIVE GREEN concurred.
CHAIRMAN KOTT restated the proposed amendment: "[AS] 11.41 or a
crime involving domestic violence as defined in [AS] 18.66.990."
He informed listeners that in addition, on lines 11 and 12, the
amendment would strike the words "unduly influenced or" and insert
the phrase "or coerced" after "intimidated". Therefore, it would
read: "has not been intimidated or coerced in reaching the
agreement." He asked whether there was any objection to that as an
amendment. There being no objection, Chairman Kott announced that
the foregoing was [adopted as] Amendment 1.
CHAIRMAN KOTT asked whether anyone else wanted to testify on the
bill. He closed testimony and asked the wishes of the committee.
Number 0287
REPRESENTATIVE GREEN made a motion to move CSHB 372 [Version D], as
amended, from committee with individual recommendations and the
attached indeterminate fiscal note.
CHAIRMAN KOTT added that the bill has the support of the Public
Defender Agency, which is unusual. He asked whether there was any
objection. There being no objection, CSHB 372(JUD) was moved from
the House Judiciary Standing Committee.
HB 325 - MEDICAL ASSISTANCE:LIENS & CLAIMS
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 325, "An Act relating to priorities, claims, and
liens for payment for certain medical services provided to medical
assistance recipients; and providing for an effective date."
[Before the committee was CSHB 325(HES).]
Number 0350
JON SHERWOOD, Division of Medical Assistance, Department of Health
& Social Services (DHSS), explained that HB 325 seeks to make two
improvements to the medical assistance statutes. The first
improvement deals with third-party recoveries. Someone who applies
for medical assistance assigns his or her right to recovery against
the medical expenses for which the state pays. The department is
looking for some improvements in the statutes governing that area.
Those provisions will be addressed in more detail by Lisa Kirsch,
Department of Law, and Leonard Anderson, DHSS.
MR. SHERWOOD informed the committee that the other change is with
regard to the statute for timely filing of provider claims. Under
current statutes, when services are provided to people on Medicaid
or the Chronic and Acute Medical Assistance Program, the provider
has six months to file a claim if there is no other insurance to
bill first, or 12 months if there is other insurance to bill first.
This legislation makes two changes to that provision: making the
time frame a year for all claims, which really brings it into the
industry practice; and eliminating the restriction on rewarding
more than 50 percent of the allowable charges when the department's
commissioner finds that the provider has a good cause for failing
to meet the timely filing deadline, which is an equity issue. Mr.
Sherwood offered to answer questions about timely filing but
deferred questions regarding third-party recovery to Mr. Anderson.
He mentioned that there is an amendment that department is
requesting, which Mr. Anderson would address.
REPRESENTATIVE GREEN referred to page 3 and noted that he is not
very familiar with "subrogation." He posed a situation in which
the recipient is awarded 80 percent and there is a subrogation, and
the department reclaims 100 percent. He asked, then, if the other
20 percent would be returned to the recipient or would be retained
by the state.
MR. SHERWOOD deferred to Mr. Anderson.
Number 0484
LISA KIRSCH, Assistant Attorney General, Human Services Section,
Civil Division (Juneau), Department of Law, addressed the second
part of HB 325, which she noted that she has split into two parts.
The first part deals with strengthening existing rights to recover
Medicaid payments from a third party that would be liable for that
Medicaid recipient's cost. She identified a typical example of
such a party as a driver who injures a Medicaid recipient and thus
Medicaid pays the medical bills and then the Medicaid recipient
brings a lawsuit against that other driver for liability for that
accident; it would be a tort claim. She reviewed other typical
examples, then said HB 325 would strengthen the existing
subrogation right. Simply put, subrogation means that the state
has the right to stand in the shoes of the recipient.
MS. KIRSCH stated, "So, whatever the recipient would be able to
recover for their medical expenses that the state would be able to
step into that position by virtue of the fact that the state has
paid their medical expenses." In order to strengthen that
subrogation right, HB 325 would make it express in statute that the
state's has a lien rather than a simple subrogation right. She
said Mr. Anderson can specify why this is a problem for him. She
further noted that the Department of Law does not enforce these
third[-party] claims contracted out by the Division of Medical
Assistance, which is a requirement of the Medicaid Act.
MS. KIRSCH turned attention to the second area that strengthens the
existing subrogation rights, which is the allowance of the state to
initiate a claim. In a case where a recipient fails to go after
the third party, [the bill] would allow the state to come in and
initiate a plan. Ms. Kirsch addressed the second part of the
subrogation portion of HB 325, which she felt to be very important.
She commented that there have been stories in which there has been
an unfair result. The bill includes a provision that would allow
the state to waive this claim of subrogation against a third party
if it would cause an undue hardship on the Medicaid recipient.
MS. KIRSCH told members that another provision would require the
state to reduce its claim by the amount of money prorated to the
state's share that the recipient has spent on attorney's fees.
Therefore, the recipient would not being paying out of pocket in
order to recover money for the state. That provision is already in
existing statute but has not worked well; Mr. Anderson could
explain why. From [the Department of Law's] perspective, this is
not a substantive change because the attempt is to clarify the
existing use of the civil rules, Rule 79 for costs and Rule 82 for
fees. There has been some difficulty in making that work, and thus
Section 7 of HB 325 attempts to clarify the intent of the
legislature. Ms. Kirsch offered to answer any questions specific
to the bill but deferred other questions to Mr. Anderson.
Number 0707
REPRESENTATIVE MURKOWSKI related her understanding that HB 325
would create a lien for assistance payments because there is only
a subrogation right now.
MS. KIRSCH agreed.
REPRESENTATIVE MURKOWSKI asked who is being displaced now that the
priority status is being given.
MS. KIRSCH explained that currently subrogation claims, at least in
some case law, are considered an equitable right. Therefore, if
the recipient does not receive full recovery, the department has a
negotiating starting point of zero. She said, "If they're not made
whole equitable subrogation rights, it is argued by the opposition
... that we have no right of recovery." The statutes of other
states where Medicaid programs have had better luck recovering
funds include a lien right. In such a case, the negotiation would
begin with the amount of money that Medicaid had spent, reduced by
costs and fees that the recipient had to spend to recover the
Medicaid portion. Then negotiations could begin. At that point,
it could be modified by things such as the undue hardship clause or
other issues within the case.
REPRESENTATIVE MURKOWSKI commented, then, that "we're" getting in
line in front of hospitals, nurses or physicians. She asked, "This
would give us a slight bump up over other claims to those monies;
is that correct?"
MS. KIRSCH answered that in general that would be correct.
However, with regard to physicians and hospitals, she was not sure
that this change would make much difference. She explained that
hospitals and physicians have a statutory lien right and thus "we"
had to place ourselves somewhere in terms of our statutory lien
right. She pointed out that the hospital or physician who treated
this Medicaid patient would receive payment. She commented that
she was not sure how it would really happen, and she was not sure
it would really make a difference in terms of a Medicaid provider.
Ms. Kirsch said, "In terms of where this money would be coming
from, the only difference would be you wouldn't have a Medicaid
recipient able to hold on to as much of the money that came to them
by virtue of a reimbursement of their medical bills." Again, she
deferred to Mr. Anderson for more specifics.
Number 0900
REPRESENTATIVE MURKOWSKI indicated she reads the recording statutes
to mean that if [the Department of Law] perfects its lien as does
a hospital, nurse or physician under the statutes, "you" would have
a priority over them.
MS. KIRSCH agreed that would be true if a hospital or physician had
a reason to have a lien. However, she could only think of one
context in which it would come up in one of these Medicaid cases.
Such a case would be when an individual is Medicaid-eligible for a
short time but also had a time when he/she was not Medicaid-
eligible, and thus there were physicians that treated this
individual when he/she was not Medicaid-eligible. However, if the
person had been Medicaid-eligible the entire time, the physicians
and the hospitals would not need to have a lien because "we" would
have paid our Medicaid providers. Perhaps Mr. Anderson would know
of other circumstances, Ms. Kirsch said. The only reason that
statutory change was made was because a lien right was being
created and had to be placed somewhere.
REPRESENTATIVE KERTTULA asked what happens to the individual. She
added, "The lien can come against what that person's recovered ...
but it would have to wait to be paid until the person had fully
covered."
MS. KIRSCH deferred to Mr. Anderson.
Number 1023
LEONARD ANDERSON, Division of Medical Assistance, Department of
Health & Social Services, testified via teleconference from
Anchorage. He explained that in a typical recovery case,
information is gathered from a Medicaid recipient or through other
sources. That information would let the division know whether or
not a responsible and reliable third party is present, which is
sometimes accomplished through contacts with the Medicaid
recipient. He noted that sometimes a responsible third party is
not found until the state's contractor receives a call during the
middle of a settlement conference between a plaintiff's counsel and
an opposing counsel with a judge. In some cases, [a third party]
is found after the fact, after a settlement has occurred. At that
point, some recipients or their attorneys will call the contractor
and inquire as to what it would take to eliminate the subrogation
lien or the Medicaid payments that were made on behalf of the
client. Sometimes [a third party] is not found at all.
MR. ANDERSON explained that part of the problem the state
contractor has is the negotiation of the amount that the state
should recover out of the Medicaid funds that have been for a
recipient. One of the biggest problems is that the plaintiff's
attorneys have argued with the state contractor that under the
current statute, the subrogation is [not] equitable and the state
should not receive any money [until] the plaintiff is made whole.
He pointed out that the plaintiff's attorney will call the state
contractor and request print outs of all the charges for which the
state has paid for the medical assistance. Those charges are used
in order to boost or substantiate a claim that is being settled.
Mr. Anderson commented that the lack of strength of the current
statute leaves some question.
Number 1314
MR. ANDERSON mentioned that the proposed amendment would insert "or
the recipient's attorney" on page 3, line 4, following "recipient
of medical assistance". Currently, when a recipient signs up for
Medicaid, the 1050 application is filed; that application says the
applicant will cooperate and notify the state of any claim or case
that he/she brings, and the applicant will include any amount of
Medicaid paid in a case that he/she would bring against a
potentially liable third party. Furthermore, there is a
notification requirement if there is any recovery made. In
practice, however, it seems that some of the Medicaid recipients
are ignoring that and thus not informing the state that a recovery
has been made. Mr. Anderson commented that this [proposed] change
would place some burden on the attorney to talk to his/her client
and place this on the checklist.
MR. ANDERSON turned to the problem under the current law with
regard to subrogation claims. [The current law] is forcing the
state to estimate what the damages are in a case. As mentioned by
Ms. Kirsch, the current statute forces the state to negotiate from
a zero (indisc.) recovery to whatever the state can get the other
side to agree to without going to court. He indicated his clients
have informed him that for the small cases Medicaid recovery is
fairly good. However, the larger cases rarely result in the state
receiving one-third of what the state has expended. He said that
when the state has to estimate what the damages are in a case, this
places the state at a severe disadvantage in bargaining. The new
statute eliminates the "made whole" argument and provides the state
a right to recover, which seems fair.
MR. ANDERSON continued. The Medicaid recipient uses all the
medical information he/she receives from the state to get his/her
recovery or to substantiate his/her recovery. As it currently
stands with the negotiation process, the Medicaid recipients are
receiving some sort of windfall on medical expenses paid. He
reiterated that the new statute will provide stronger notice
requirements and hopefully, inclusion in the law will provide more
weight and the recipient and the attorney will have to address it.
Mr. Anderson said that he believes the new bill will also foster
communication between the state and the recipients and the Medicaid
counsel. Furthermore, this would eliminate the state's second-
guessing of the value of a recipient's tort case and would allow
the state to negotiate down from the amount that it had paid. He
also mentioned the undue hardship provisions. Hopefully, this will
result in a fair and equitable recovery to the state for funds that
are recovered for medical assistance paid by the state.
Number 1713
REPRESENTATIVE GREEN asked if the aforementioned amendment would
invoke a legal obligation to the attorney for the recipient or if
the opportunity to point to each other still remains. What will
the amendment provide that tightens this up?
MR. ANDERSON answered that he believes the amendment will give the
attorney a legal obligation to notify the state. The amendment
will require the attorney to ask the client whether Medicaid
benefits were expended on his/her behalf. He emphasized that some
of the attorneys he has spoken with claim that they do not even
have to ask that because there is no lien. The amendment places a
burden upon the attorney to notify the department of a claim. Mr.
Anderson specified that he would prefer a [requirement of]
notification before a disbursement of a settlement fund. If the
attorney is required to ask his/her client about a Medicaid payment
and then provide notice to the state before disbursement of the
settlement fund, it provides the state with the opportunity to
discuss its claim and resolve it.
REPRESENTATIVE GREEN asked if "or" would still provide the attorney
with some ability to say that he/she did not know. However, he
understood Mr. Anderson to say that this would require that the
attorney ask certain questions of the client.
MR. ANDERSON said that he believes it would require that attorney
to place this on the checklist.
REPRESENTATIVE KERTTULA referred to Section 9. She asked if the
recipient will be made whole before the department starts to take
money.
MR. ANDERSON clarified that the legal issue of whether a recipient
is made whole is whether the plaintiff or Medicaid recipient fully
compensated for all of his/her injuries, economic and noneconomic.
He pointed out that tort cases include noneconomic damages such as
pain, suffering and emotional distress; however, there is
considerable dispute as to what may be suffered there. With regard
to making [a plaintiff] whole on those issues before the state
recovers, Mr. Anderson said that the amendment may not do that.
With regard to making whole for what was paid for medical expenses,
that will depend upon each individual case. The statute will allow
the state to come in and discuss the issues. The issue of a
legitimate hardship is addressed on page 3, Section 8.
REPRESENTATIVE KERTTULA commented that the it does more than that.
She understood that the bill could place [the department] in a spot
where it could recover. She asked if it is based on the medical
expenses alone, without looking at the overall case. She specified
that she is interested in "where we wind up in terms of the
recipient versus the department after this."
MR. ANDERSON said that he believes the state is recovering funds
received in a settlement by Medicaid recipients. Although the
right for the state to step in [for the Medicaid recipient] is
currently present, many attorneys argue otherwise. The amendment,
by using the lien language, would specify that this right exists.
Mr. Anderson said that he hopes it would preclude a Medicaid
patient from double recovery on medical payments because he
believes that the state is entitled to recover any medical payments
that a Medicaid recipient recovers in a settlement. This is what
the subrogation statute is about. Furthermore, this is required by
the federal government. Again, the problem is that the current
statute is somewhat weak in that area.
Number 2215
REPRESENTATIVE KERTTULA expressed her preference to have the
recipient "come back to the place where he/she started." She did
not want to see a "wholesale jumping of those rights by the state,"
she added, noting that the language seems to be a dramatic change.
MR. ANDERSON stated that currently the recipient is coming out
ahead on medical reimbursement, and the state is coming out behind.
REPRESENTATIVE KERTTULA acknowledged that if recipients are double-
recovering and receiving more than they are entitled to, that
problem needs to be resolved. However, what if the recipient is
not coming out ahead? For instance, what would happen under the
new statute if the recipient recovered up to 80 percent of what
he/she had spent.
MR. ANDERSON answered that he believes that would go to the
hardship waiver portion of HB 325.
REPRESENTATIVE KERTTULA commented that [the new statute] would
place the department in line ahead; the department would have the
ability to utilize the waiver. That is troublesome.
MR. ANDERSON interpreted Representative Kerttula's question to be
how that can be avoided. He stated that the intent of the bill is
not to have that happen. The intent of the bill is to give the
state the ability to recover amounts that the Medicaid recipient
recovers for Medicaid assistance. The intent is not to recover
amounts that the Medicaid recipient had recovered for something
else. However, most of the plaintiffs' attorneys utilize the
client data report, which lists all Medicaid amounts expended for
a recipient. The attorney uses that information in the case in
order to get as much ... [Due to tape change, the testimony was
interrupted midspeech.]
TAPE 00-40, SIDE A
MR. ANDERSON said that due to the current statute, the state is
getting reimbursed amounts that have been collected, and therefore
the Medicaid recipient is getting a double recovery.
REPRESENTATIVE MURKOWSKI referred to the portion of the bill that
changes the timely filing of the claim from six months to twelve
months. She asked if this extension could possibly cause providers
to slow down.
Number 0130
MR. SHERWOOD stated that the extension of the timely filing
deadline is a separate issue. In general, it is in the providers'
best interests to file their claims quickly because they have
already provided a service for which they are out their expenses.
He pointed out that delays can be caused when clients provide
insufficient information about their Medicaid eligibility for the
provider to submit an accurate claim. He acknowledged that often
there is a good reason for that insufficient information. Another
situation that can cause a delay is a change in billing personnel
or accounting software. Mr. Sherwood commented that, in his
experience, such things would all be resolved well before arriving
at the settlement points in most cases.
REPRESENTATIVE MURKOWSKI said she understood, then, that in
addition to the six months' extension, a person would not be
limited to the 50 percent reimbursement if he/she had a good reason
for failure to timely file a claim.
MR. SHERWOOD agreed. In further response to Representative
Murkowski, he agreed that it is correct that most states have a
lien statute, and it seems to be a common way of doing business.
Number 0369
REPRESENTATIVE KERTTULA asked: If [the department] has filed a
lien and the parties know about it, wouldn't that result in raising
the recovery?
MR. ANDERSON replied yes, potentially. He identified part of the
problem as being that settlements are being negotiated without any
knowledge of the state. Therefore, by there being a lien that is
recorded and sent to an attorney, there is a notice provision and
he believes the attorneys will seek to recover a higher amount.
REPRESENTATIVE GREEN asked if Representative Kerttula meant there
would be a higher cost due to the attorney's fees and court costs.
He pointed out that page 4, line 3, says, "The lien is the amount
of the medical assistance paid ...."
Number 0520
REPRESENTATIVE KERTTULA pointed out that they wouldn't necessarily
know what the amounts were, which is the problem. She explained
that sometimes the plaintiff's attorneys will come and request
lists of services, but the department has no way to know what is
actually being claimed or [recovered]. Therefore, the
[department's] desire is to submit a lien for their costs which
will force the plaintiff's attorney to return and specify the costs
and the ways in which his/her client has been hurt. Thus the
[department] would recover what the plaintiff is out as well as
what the state is out. She asked if that is correct.
CHAIRMAN KOTT asked whether there were additional questions or
persons who wished to testify. There being none, the public
testimony was closed.
Number 0665
REPRESENTATIVE CROFT made a motion that the committee adopt
Amendment 1:
Page 3, line 4:
Following "recipient of medical assistance"
Insert "or the recipient's attorney"
There being no objection, Amendment 1 was adopted.
Number 0699
REPRESENTATIVE CROFT made a motion to move HB 325 [CSHB 325(HES)],
as amended, out of committee with individual recommendations and
the accompanying fiscal note. There being no objection, it was so
ordered and CSHB 325(JUD) was moved from the House Judiciary
Standing Committee.
The committee took an at-ease from 3:09 p.m. to 3:12 p.m.
HJR 53 - CONST AM: WILD FOOD RESOURCES
CHAIRMAN KOTT announced that the final order of business before the
committee would be HOUSE JOINT RESOLUTION NO. 53, Proposing
amendments to the Constitution of the State of Alaska relating to
a preference for taking wildlife for human consumption. He noted
that there was a new proposed CS, Version K [1-LS1337\K, Utermohle,
3/27/00], that would address all of Representative Croft's prior
concerns.
Number 0840
EDDIE GRASSER, Staff to Representative Masek, Alaska Staff
Legislature, testified on behalf of the sponsor of HJR 53. He
noted that after the last hearing, a CS that addresses some of the
committee's concerns was drafted. He informed the committee that
the new CS, Version K, deletes the word "enhanced" from Section 1.
Therefore, the language in Section 1 of the bill and Section 4 of
the constitution is the original language of the constitution. He
specified, "So, the only change is in Section 2 on lines 11 through
13, where on line 13 we added 'except as provided by the
legislature.'" That language clarifies that areas such as the
McNeil River Sanctuary, set aside by the legislature or by law
would be maintained.
MR. GRASSER noted his past experience sitting on the Board of Game
and indicated the language "solely to provide for nonconsumptive
use" allows for many other things besides legislatively-designated
areas that are to be closed. He pointed out that while he sat on
the board, the board closed several areas to hunting in what is
called a controlled use area. All of those closures were made for
hunting purposes, not for nonconsumptive reasons. He believes that
most of the controlled use areas that have been set aside in the
last 10 years are similar in effect, because these areas have
mainly been set aside in order to deal with conflicts between
hunters.
MR. GRASSER said this language would still allow the board to do
that, if there is a public safety reason, a conservation reason or
a scientific research reason, or if there is a reason to restrict
access or uses by different groups of hunters. Under this
language, the legislature would have the authority to continue to
close areas as they see fit. He pointed out that in Title 16, the
Board of Game cannot create refuges, sanctuaries or critical
habitat areas. The Board of Game can suggest the creation of such
areas, but the legislature is the body that must act on them. Mr.
Grasser informed the committee that this language is "pretty much"
the same as that passed by the people of Alabama in 1996 and was
included in their constitution.
REPRESENTATIVE CROFT recalled that Mr. Grasser had said this is a
preference among beneficial uses authorized by Section 4 [of the
Constitution of the State of Alaska], which he believes to be
correct. Therefore, he understood that [the legislature] currently
has the constitutional authority to make a preference between
consumptive and nonconsumptive uses in statute.
MR. GRASSER replied, "That is correct."
Number 1004
REPRESENTATIVE CROFT surmised, then, that [the legislature] could
currently write in statute, "... consistent with the sustained
yield principle, the harvest of fish and wildlife may not be
diminished solely to provide for nonconsumptive use of fish or
wildlife." There would not be anything unconstitutional about that
because it is a distinction of uses.
MR. GRASSER again agreed, but pointed out that if it is in statute,
then it can be changed by a future legislature.
REPRESENTATIVE CROFT commented, "But here, a future legislature can
change the constitutional provision." The language "except as
provided" allows the legislature the ability to exempt various
things and cases, he added.
MR. GRASSER answered, "That is correct. The legislature could,
with ... ample public pressure, continue to close areas to hunting
for purposes other than conservation, public safety, et cetera."
However, he believes that would be more difficult for the
legislature to do that versus achieving that by the initiative
process or by other processes. Mr. Grasser specified that the
intent is to establish some protection for a legitimate use of
wildlife that has been eroded for the last 30 years. He said, "All
of the diminishing uses of our natural wildlife resources or fish
have all come at the expense of hunters and trappers; they've
continually lost ground." He echoed earlier comments that this
historical trend indicates that those uses will continue to come
under attack and probably continue to be stopped in favor of
another use.
Number 1124
DICK BISHOP, Vice President, Alaska Outdoor Council (AOC), informed
the committee that AOC strongly supports the work draft, Version K.
This amendment clarifies the original intent of Section 4 of the
Constitution of the State of Alaska. Mr. Bishop said that in the
view of AOC, the key in fortifying the language of the constitution
is the sustained yield principle. The sustained yield principle,
however it is defined, refers to the consumptive use of resources
by people. Mr. Bishop commented that some years ago Gordon
Harrison (ph) had explained the sustained yield principle very
simply in his book titled "Alaska's Constitution - A Citizen's
Guide," which he quoted as follows:
The principle of sustained yield management is a basic
tenet of conservation. It is a simple yet fundamental
idea that the annual harvest of a biological resource
should not exceed the annual regeneration of that
resource. Maximum sustained yield is the largest harvest
that can be maintained year after year.
MR. BISHOP pointed out that the constitution and the minutes of the
constitutional convention emphasize sustained yield management of
replenishable natural resources for beneficial uses. He reiterated
that "harvest by people" is central to the sustained yield
principle as pointed out by Mr. Harrison (ph). However, that
central point has been obscured in the course of discussion and the
emphasis of other uses and other preferences for uses of wildlife.
This has happened as people have become less associated with direct
dependence and direct relationships with fish and wildlife as well
as traditional Alaskan lifestyles. Mr. Bishop said, "We think
it's really important ... to the continuation of traditional
Alaskan lifestyles that our connections to the lands and waters
through the harvest and use of fish and wildlife be recognized."
Version K reinforces the relationship of consumptive use to
sustained yield while allowing the legislature to retain its
ability to exercise policy-making authority to set other goals for
management and use.
Number 1338
REPRESENTATIVE JAMES turned attention to the management for
sustained yield, which she believes is more than two "pieces." She
identified the allowance for consumptive use of fish and game as
"very much according to Alaska's history." However, maintaining a
sustained yield basis means that habitat must also be maintained.
When habitat is maintained in this state, there is also a land
control use, which she noted that she supported. She stated, "As
long as we're continuing to maintain a population that can be
harvested for consumptive use, we also ... continue in the effort
to maintain sufficient and valuable habitat."
REPRESENTATIVE JAMES continued. With regard to those who want to
let nature go, those same people want to maintain the habitat, she
said, adding, "It seems to me like there is a better opportunity,
as long as you maintain the ability for those folks who want
consumptive uses to do it. You have a protectionist group out
there that's going to maintain the health and status of the habitat
because you can't have one without the other." This is an
important issue that needs to be addressed. She suggested looking
at the long-term goal of what is best for Alaska.
Number 1451
REPRESENTATIVE GREEN made a motion that the committee adopt the
proposed CS, Version K [1-LS1337\K, Utermohle, 3/27/00] as a work
draft. There being no objection, it was so ordered.
REPRESENTATIVE CROFT explained his objections to the bill. He
noted his appreciation of the sponsors' meeting a lot of the
concerns. He said, however, "I think what I learned from this is
when you meet those concerns, as they did, you don't have anything
left." Currently, subsection (a) gives the legislature the power
to make preferences among beneficial uses. He noted, "There's no
question that a consumptive use and a nonconsumptive use are
different beneficial uses. We have this power now." Therefore, he
objected to including surplus language in the constitution.
REPRESENTATIVE CROFT suggested, "If what we want to do is establish
this with just exceptions from McNeil and wherever, let's just put
that in statute. I don't think ... consumptive [use] should always
trump nonconsumptive [use]." He identified himself as a primarily
consumptive user, then said although he knows many other hunters
who are primarily consumptive users, he also knows that people in
his district have legitimate nonconsumptive uses that they enjoy.
"We ought to be able to accommodate both and not say one always
wins and one always loses," he emphasized. He said the main part
of the new CS doesn't do anything but put in the constitution an
authority "we already had and are reluctant to exercise," and he
doesn't want to clutter up the constitution.
CHAIRMAN KOTT called an at-ease, which lasted from 3:27 p.m. to
3:32 p.m. He then announced that the committee would recess to the
call of the chair.
CHAIRMAN KOTT reconvened the meeting at 5:27 p.m. and continued the
hearing on HJR 53. [Present were Representatives Kott, Green,
Rokeberg and James.]
Number 1624
REPRESENTATIVE JAMES made a motion to move CSHJR 53 [Version K] out
of committee with individual recommendations and the accompanying
fiscal note. There being no objection, it was so ordered and CSHJR
53(JUD) was moved from the House Judiciary Standing Committee.
ADJOURNMENT
Number 1639
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:27 p.m.
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