Legislature(1997 - 1998)
04/06/1998 09:05 AM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE April 6, 1998 9:05 a.m. MEMBERS PRESENT Senator Gary Wilken, Chairman Senator Loren Leman, Vice-Chairman Senator Lyda Green Senator Johnny Ellis MEMBERS ABSENT Senator Jerry Ward COMMITTEE CALENDAR SENATE BILL NO. 237 "An Act extending the termination date of the Council on Domestic Violence and Sexual Assault." PASSED CSSB 387(HES) OUT OF COMMITTEE SENATE BILL NO. 318 "An Act relating to marriage; and amending Rules 54 and 56, Alaska Rules of Civil Procedure." PASSED CSSB 318(HES) OUT OF COMMITTEE HOUSE BILL NO. 387 "An Act relating to dentists." PASSED HB 387 OUT OF COMMITTEE SENATE BILL NO. 253 "An Act relating to medical assistance for certain disabled persons; relating to personal care services for recipients of medical assistance; and providing for an effective date." SCHEDULED BUT NOT HEARD PREVIOUS SENATE COMMITTEE ACTION SB 237 - See HESS minutes dated 3/4/98 and 4/3/98. SB 318 - No previous Senate committee action. HB 387 - No previous Senate committee action. WITNESS REGISTER Anne Carpeneti Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Explained the provisions of SCSSB 237(HES). Mike Pauley Staff to Senator Leman Alaska State Capitol Juneau, Alaska 99801-11182 POSITION STATEMENT: Explained provisions of SB 318. Al Zangri, Chief Vital Statistics Division of Public Health Department of Health and Social Services P.O. Box 110675 Juneau, Alaska 99811-0675 POSITION STATEMENT: Available to answer questions. Joe Balash Staff to Representative Therriault Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Explained the provisions of HB 387. ACTION NARRATIVE TAPE 98-31, SIDE A Number 001 CHAIRMAN WILKEN called the Senate Health, Education and Social Services (HESS) Committee to order at 9:05 a.m. Present were Senators Leman, Green, Ellis, and Chairman Wilken. Chairman Wilken announced SB 253 would be heard before the committee on Wednesday, April 15, and that CSSB 237 would be the first order of business before the committee. SB 237 - COUNCIL DOMESTIC VIOLENCE & SEXUAL ASSAULT Anne Carpeneti, Assistant Attorney General, Department of Law, explained that Section 7 of CSSB 237 was changed to read "acts of domestic violence" rather than "crimes of domestic violence," in relation to using such evidence in a domestic violence prosecution. She pointed out that the change brings into the evidence rules the practice most judges use today. When a judge is considering entry of evidence of a prior bad act, the party attempting to introduce the evidence raises the issue before the judge, outside of the presence of the jury. The judge listens to arguments in favor of, and in opposition to, the admission of evidence by the prosecution and the defense. The judge then considers whether the evidence is relevant, reliable, and whether other evidence rules apply such as whether the evidence was based on hearsay. If the judge decides the evidence has passed that test, the judge then applies Evidence Rule 403, which requires that the prejudicial effect of the evidence not outweigh its probative value. Once the judge has made his/her determination, the evidence is or is not admitted and heard by the jury, depending on the judge's decision. SENATOR GREEN asked if, in legal terms, crimes involving domestic violence and acts of domestic violence differ. MS. CARPENETI replied that in terms of this particular rule, there should be no difference. Crimes involving domestic violence are defined, in Title 18 of Alaska statutes, as certain crimes against certain people. The court would interpret acts of domestic violence by the same definition as it would interpret crimes involving domestic violence. The problem with using the word "crime" is that at least one judge is interpreting that to mean a conviction rather than an act. The committee took a brief at-ease. SENATOR LEMAN moved CSSB 237 from committee with individual recommendations. SENATOR ELLIS objected and asked if the provision to extend the life of CDVSA is still in the bill. SENATOR GREEN replied that provision is on page 3, line 10. Number 113 SENATOR ELLIS asked if the other language in the bill was requested by Senator Leman. SENATOR LEMAN explained parts of SB 316 were rolled into this bill at his and Senator Parnell's request. SENATOR ELLIS asked whether the committee had received any testimony from the domestic violence treatment community about the bill. CHAIRMAN WILKEN replied Ms. Andreen testified in support of the legislation on the previous Friday. SENATOR ELLIS asked if the committee substitute had been adopted. CHAIRMAN WILKEN stated it had. SENATOR ELLIS removed his objection to move CSSB 237 from committee, therefore the motion carried. SB 318 - CHARTER MARRIAGES SENATOR LEMAN, sponsor of SB 318, described the bill as follows. SB 318 is an effort to enhance the basic structure of the family and marriage. Over the years, changes in law have lead Alaska to join other states in the phenomenon known as "no fault divorce," the result being an ever increasing divorce rate. Alaska ranks 37th among all states. Recently, the Louisiana Legislature passed a "covenant marriage law." SB 318 is tailored after that law, but uses the term "charter marriages" instead. SB 318 will allow people the option of entering into another kind of marriage relationship when they seek a marriage license. A current marriage license is for a testament marriage. The charter marriage would raise the testament marriage standard by requiring three things: it requires counseling prior to marriage; it requires counseling prior to dissolution of the marriage; and it eliminates some of the current reasons for divorce, such as incompatibility of temperament. SB 318 lists allowable reasons to dissolve a marriage, such as adultery or commission of a felony. SB 318 will provoke good dialogue between individuals seeking to marry. Entering into a charter marriage will be a voluntary act. Senator Leman noted the proposed committee substitute incorporates changes made to the House version as it is his intent to keep SB 318 as similar to that version as possible. Number 212 SENATOR LEMAN moved the adoption of CSSB 318(HES), version E, as the working document of the committee. SENATOR ELLIS objected for the purpose of an explanation. MIKE PAULEY, staff to Senator Leman, explained the changes made in the committee substitute. First, on page 2, lines 1-14, subsection (b) was removed. That subsection provided that a couple who was issued their marriage licenses under current Alaska statute, could upgrade their testament marriage to a charter marriage. This subsection was removed because an official from the Bureau of Vital Statistics cautioned it would raise equal protection concerns since the Bureau would be unable to similarly change the terms of a marriage contract issued in another state. Second, on page 2, line 28, the words "governed by the laws of this State" were inserted after the words "charter marriage" to clarify that SB 318 only applies to marriages within the State of Alaska. Third, on page 3, line 11, licensed clinical social workers were added to the list of individuals who are permitted to provide pre-marital counseling. That addition was requested by the Alaska Chapter of the National Association of Social Workers. CHAIRMAN WILKEN asked Mr. Pauley to clarify which version he was referring to. MR. PAULEY explained the page and line numbers he was referring to correspond to work draft A, the original draft. MR. PAULEY stated the final change in the committee substitute is on page 4, line 24. Four additional reasons for grounds for divorce allowed under a charter marriage contract were added to the list. The additions were requested by the Alaska Womens' Political Caucus because of concerns for victims of domestic violence. Number 260 SENATOR ELLIS noted page 4 contains references to "habitual gross drunkenness contracted since marriage and continuing for one year before the commencement of the action," and "an addiction of either party, subsequent to the marriage." He asked for clarification of the difference between habitual gross drunkenness and alcoholism, and whether the one year waiting period would have to be observed if the behavior was concealed by the spouse prior to the marriage. MR. PAULEY replied he did not know if habitual gross drunkenness and alcoholism are considered to be the same in clinical terms. He also stated he did not know whether habitual gross drunkenness is defined in statute. He pointed out that Section 6 is from existing law (AS 25.24.050) which contains the list of existing grounds for divorce. SENATOR LEMAN said he interpreted the bill to mean that the behavior began after the marriage, and that the behavior would have to continue for one year before the spouse could begin the divorce action. SENATOR ELLIS asked if the bill incorporates any of those behaviors into the standards entering into, or breaking off, a charter marriage. SENATOR LEMAN stated they are not listed. SENATOR ELLIS asked if the bill specifies the amount of counseling time that should occur prior to marriage and divorce. MR. PAULEY stated the legislation simply requires, on page 3, line 4, that the counselor attest in writing to the fact that the parties were counseled as to the nature, purposes, and responsibilities of marriage. It does not specify any minimum time periods; that is left to the discretion of the counselor. SENATOR ELLIS referred to line 7, page 4, and asked how proof is to be obtained. MR. PAULEY replied the proof would be different for each of the criteria listed, and it would largely be left to the discretion of the judge. Number 340 SENATOR ELLIS asked Mr. Pauley if he agreed with the fiscal note. MR. PAULEY answered the fiscal note reported a cost of $13,300 for the initial year and a recurring annual cost of $5,000. He thought those estimates were reasonable to cover the paperwork that will need to be completed. SENATOR GREEN questioned the language on page 4, lines 6 and 7, that reads, "... the status as to the support and maintenance of the mentally ill person is not altered in any way by the granting of the divorce;". MR. PAULEY explained that provision is in existing statute, but he was unable to recount the legislative history of that provision. SENATOR ELLIS commented Alaska's existing marriage statutes need review. CHAIRMAN WILKEN asked if the list on page 7 applies to current divorces or whether this section is a whole new body of law. MR. PAULEY answered Sec. 25.24.270, separation from bed and board, is a whole new section. Number 371 SENATOR ELLIS asked if that is a term of art for the separation of two people who have been married. MR. PAULEY said that is correct. SENATOR GREEN noted on page 4, line 15, and on page 7, line 15, the provision applies to a child who lives in the home. She asked whether abuse of other children is covered elsewhere. MR. PAULEY stated page 4, line 21, of the committee substitute, provides that a divorce may be obtained if the spouse is convicted of a felony under AS 11.41 and that statute applies to crimes of murder, rape and sexual abuse. SENATOR ELLIS asked if the Alaska Womens' Political Caucus requested that physical abuse alone be added to the list of legitimate reasons for obtaining a divorce, or whether they requested other forms of abuse to be included. MR. PAULEY replied, to the best of his knowledge, the changes reflect all of the requests made by the Alaska Womens' Political Caucus to Representative Pete Kelly. SENATOR ELLIS asked Mr. Pauley to verify that information for him. He then asked Mr. Pauley to explain Sec. 25.24.275, pertaining to the effect of decree, and in particular whether spouses cannot have any form of association with one another after a specific date, under subsection (2). SENATOR LEMAN clarified that provision does not fall under the dissolution of a charter marriage; if falls under separation from bed and board, which is a step in a separation. Under the charter marriage law, a couple will have to be separated for one year, or 18 months if there are children, before the marriage can be dissolved. Number 415 SENATOR ELLIS asked if, during the one year waiting period, the spouses cannot have anything to do with each other. MR. PAULEY said he did not think that was the case because it would conflict with number 3 on page 8, which refers to the separation remaining in effect until either reconciliation or divorce. Reconciliation would be difficult if the couple could not see each other. MR. PAULEY thought number 2 is an attempt to define a situation in which the couple is no longer living in the same house and sharing in the responsibilities of daily life. SENATOR ELLIS cautioned that that provision could easily be misinterpreted. He asked if conjugal cohabitation means living in the same household as married people. MR. PAULEY said that was correct. SENATOR ELLIS asked if the couple could meet and date. MR. PAULEY said that was his understanding. SENATOR ELLIS removed his objection to adopt CSSB 318(HES), therefore CHAIRMAN WILKEN announced the motion carried. Number 434 MR. AL ZANGRI, Chief of the Bureau of Vital Statistics, stated the committee substitute no longer contains the provision that the Bureau found problematic. The committee substitute also removes the need for the $5,000 recurring cost contained in the fiscal note. He offered to answer any questions. SENATOR ELLIS asked Mr. Zangri what the Bureau's original concern was with SB 318. MR. ZANGRI replied the Bureau of Vital Statistics does not believe it can impact or change the terms and conditions of a marriage contracted in another state without violating equal protection rights. Changing marriage contracts from other states will put the Bureau in opposition to the Interstate Exchange Agreement which will cut the Bureau off from all other states exchanging certificates with Alaska. That is what happened in the State of Louisiana as a result of its covenant marriage legislation. SENATOR ELLIS asked if existing Alaska marriages could be upgraded to this higher standard of cohesion. SENATOR LEMAN replied that was his original intent, but that provision was removed because of the problem Mr. Zangri referred to. SENATOR LEMAN moved CSSB 318(HES) out of committee with individual recommendations. There being no objection, CHAIRMAN WILKEN announced CSSB 318(HES), version E, moves to the Senate Judiciary Committee. HB 387 - DENTISTS ABILITY TO DO CPR JOE BALASH, staff to Representative Therriault, gave the following explanation of HB 387. This measure is intended to give the Board of Dental Examiners the ability to enter into a formal and binding memorandum of agreement (MOA) with applicants or licensees who are unable to perform cardiopulmonary resuscitation (CPR). Currently the board enters into MOAs when it determines that an applicant or licensee is physically unable to perform CPR, however during a legislative audit conducted last year, it was discovered that the board possesses no statutory authority to enter into such agreements. HB 387 will provide that authority to the Board of Dental Examiners while preserving the intent and spirit of the statute to protect patients of dentistry. SENATOR ELLIS asked why Representative Therriault could not attend the meeting. MR. BALASH informed committee members Representative Therriault was attending a leadership meeting. Number 488 SENATOR LEMAN noted the title of the bill is incredibly broad. He remarked the bill seems reasonable to him since the dentist will be required to have another person in the room who is capable of performing CPR. SENATOR GREEN asked if, in Alaska, a dentist is required to have an assistant. MR. BALASH said he did not think so. SENATOR GREEN questioned how HB 387 will impact dentists who travel to rural communities for one day at a time to perform dental services. She questioned whether this bill will prevent dentists who cannot perform CPR from travelling to rural communities. Number 507 MR. BALASH answered the person who is able to perform CPR does not have to be a dental assistant; the bill does not restrict who can perform CPR in place of the dentist. He pointed out a VPSO could assist the dentist who travels to rural communities. SENATOR GREEN questioned the board's current ability to enter into MOAs. CHAIRMAN WILKEN replied the Board of Dentistry is currently doing so without statutory authority. MR. BALASH stated this issue came to Representative Therriault's attention because the Board of Dentistry entered into an MOA with a Fairbanks dentist who was unable to perform CPR because of knee problems. A legislative audit performed last year revealed the fact that the board did not possess the authority to enter into such MOAs. An informal opinion was rendered by the Attorney General's Office which stated that the Americans with Disabilities Act probably superseded Alaska law on that issue and would allow such arrangements, but Representative Therriault decided to sponsor this legislation to clarify the matter and prevent any legal conflicts. Number 541 SENATOR ELLIS questioned whether statutory authority is necessary to decrease the liability of the board. MR. BALASH said the issue of liability has not been questioned. This problem arose when the Division of Occupational Licensing learned from the audit that the Fairbanks dentist's license could not be renewed because of the board's inability to enter into an MOA. SENATOR ELLIS asked what the requirements are of the person able to perform CPR in place of the dentist. MR. BALASH replied that person is required to take a course and obtain a CPR card. SENATOR ELLIS asked if the person can be of any age to qualify for a CPR card. MR. BALASH said that is correct. Number 561 SENATOR LEMAN said he interprets this bill to apply to anyone under the jurisdiction of the board, which may include dental hygienists. He stated if that is the case, the title may need to be broadened to include those people, and the waiver should be extended to apply to dental hygienists. MR. BALASH said the bill does apply to dental hygienists. He stated the Department of Law was aware of the letter written by the Division of Occupational Licensing. He noted a title change may be necessary for the purpose of clarification. SENATOR LEMAN asked if the intent of the bill is that this will apply to anyone who is licensed by the board. MR. BALASH said that was correct. SENATOR LEMAN did not think a title change was critical since this is a House bill in the Senate. He assumed a two-thirds vote could be garnered if the title was challenged. SENATOR LEMAN moved HB 387 from committee. There being no objection, CHAIRMAN WILKEN announced HB 387 was moved to its next committee of referral, the Senate Labor and Commerce Committee. CHAIRMAN WILKEN announced a committee substitute for SB 203 would be available the following day, and that it was his intent to pass that measure out of the committee on Wednesday, April 8. He adjourned the meeting at 9:50 a.m.