03/03/2004 08:05 AM Senate JUD
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 3, 2004
8:05 a.m.
TAPE(S) 04-13,14
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 333
"An Act relating to judicial relief before final administrative
decisions of state agencies."
MOVED CSSB 333(JUD) OUT OF COMMITTEE
SENATE BILL NO. 217
"An Act relating to genetic privacy; and amending Rule 82,
Alaska Rules of Civil Procedure, and Rule 508, Alaska Rules of
Appellate Procedure."
MOVED CSSB 217(JUD) OUT OF COMMITTEE WITH LETTER OF INTENT
HOUSE BILL NO. 31
"An Act relating to initiative and referendum petitions; and
providing for an effective date."
MOVED HB 31 OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 5
Proposing an amendment to the Constitution of the State of
Alaska relating to initiative and referendum petitions.
MOVED HJR 5 OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 260(JUD)
"An Act relating to immunity for free health care services
provided by certain health care providers; and providing for an
effective date."
MOVED SCS CSHB 260(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 252(STA)
"An Act relating to the terms and duties of the members of the
State Board of Registration for Architects, Engineers and Land
Surveyors."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 333
SHORT TITLE: IF UNREAS. AGENCY DELAY, COURT DECIDES
SPONSOR(s): SENATOR(s) THERRIAULT
02/16/04 (S) READ THE FIRST TIME - REFERRALS
02/16/04 (S) JUD, FIN
02/25/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/25/04 (S) Heard & Held
02/25/04 (S) MINUTE(JUD)
03/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SB 217
SHORT TITLE: GENETIC PRIVACY
SPONSOR(s): SENATOR(s) OLSON
05/09/03 (S) READ THE FIRST TIME - REFERRALS
05/09/03 (S) HES, JUD
01/28/04 (S) HES AT 1:30 PM BUTROVICH 205
01/28/04 (S) Moved CSSB 217 (HES) Out of Committee
01/28/04 (S) MINUTE(HES)
01/30/04 (S) HES RPT CS 1DP 1NR 2AM NEW TITLE
01/30/04 (S) DP: DYSON; NR: GUESS;
01/30/04 (S) AM: GREEN, WILKEN
02/06/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/06/04 (S) Heard & Held
02/06/04 (S) MINUTE(JUD)
02/18/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/18/04 (S) Scheduled But Not Heard
02/25/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/25/04 (S) Heard & Held
02/25/04 (S) MINUTE(JUD)
03/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 260
SHORT TITLE: IMMUNITY FOR PROVIDING FREE HEALTH CARE
SPONSOR(s): REPRESENTATIVE(s) SEATON
04/11/03 (H) READ THE FIRST TIME - REFERRALS
04/11/03 (H) L&C, JUD
04/28/03 (H) L&C AT 3:15 PM CAPITOL 17
04/28/03 (H) Moved CSHB 260(L&C) Out of Committee
04/28/03 (H) MINUTE(L&C)
04/30/03 (H) L&C RPT CS(L&C) 2NR 5AM
04/30/03 (H) NR: LYNN, ROKEBERG; AM: GATTO,
04/30/03 (H) CRAWFORD, GUTTENBERG, DAHLSTROM,
04/30/03 (H) ANDERSON
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (H) Moved CSHB 260(JUD) Out of Committee
05/09/03 (H) MINUTE(JUD)
05/10/03 (H) JUD RPT CS(JUD) 6DP
05/10/03 (H) DP: HOLM, GARA, OGG, GRUENBERG,
05/10/03 (H) SAMUELS, MCGUIRE
05/19/03 (H) TRANSMITTED TO (S)
05/19/03 (H) VERSION: CSHB 260(JUD)
05/20/03 (S) READ THE FIRST TIME - REFERRALS
05/20/03 (S) HES, JUD
01/28/04 (S) HES AT 1:30 PM BUTROVICH 205
01/28/04 (S) Moved SCS CS HB260 (HES) Out of
Committee
01/28/04 (S) MINUTE(HES)
01/30/04 (S) HES RPT SCS 2DP 2AM SAME TITLE
01/30/04 (S) DP: DYSON, WILKEN; AM: GREEN, GUESS
02/25/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/25/04 (S) Heard & Held
02/25/04 (S) MINUTE(JUD)
03/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 31
SHORT TITLE: INITIATIVE/REFERENDUM PETITIONS
SPONSOR(s): REPRESENTATIVE(s) WILLIAMS
01/21/03 (H) PREFILE RELEASED (1/10/03)
01/21/03 (H) READ THE FIRST TIME - REFERRALS
01/21/03 (H) STA, JUD
03/04/03 (H) STA AT 8:00 AM CAPITOL 102
03/04/03 (H) Heard & Held
03/04/03 (H) MINUTE(STA)
03/25/03 (H) STA AT 8:00 AM CAPITOL 102
03/25/03 (H) Moved Out of Committee
03/25/03 (H) MINUTE(STA)
03/31/03 (H) STA RPT 2DP 4NR
03/31/03 (H) DP: HOLM, WEYHRAUCH; NR: SEATON,
03/31/03 (H) GRUENBERG, LYNN, DAHLSTROM
04/04/03 (H) JUD AT 1:00 PM CAPITOL 120
04/04/03 (H) Heard & Held
04/04/03 (H) MINUTE(JUD)
04/23/03 (H) JUD AT 1:00 PM CAPITOL 120
04/23/03 (H) Moved Out of Committee
04/23/03 (H) MINUTE(JUD)
04/24/03 (H) JUD RPT 4DP 1DNP 1NR
04/24/03 (H) DP: SAMUELS, OGG, ANDERSON, MCGUIRE;
04/24/03 (H) DNP: GARA; NR: HOLM
02/05/04 (H) TRANSMITTED TO (S)
02/05/04 (H) VERSION: HB 31
02/06/04 (S) READ THE FIRST TIME - REFERRALS
02/06/04 (S) JUD, FIN
02/20/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/20/04 (S) Scheduled But Not Heard
02/23/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/23/04 (S) -- Meeting Canceled --
03/01/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/01/04 (S) Heard & Held
03/01/04 (S) MINUTE(JUD)
03/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HJR 5
SHORT TITLE: CONST AM: INITIATIVE/REFERENDUM PETITIONS
SPONSOR(s): REPRESENTATIVE(s) WILLIAMS
01/21/03 (H) PREFILE RELEASED (1/10/03)
01/21/03 (H) READ THE FIRST TIME - REFERRALS
01/21/03 (H) STA, JUD, FIN
03/04/03 (H) STA AT 8:00 AM CAPITOL 102
03/04/03 (H) Heard & Held
03/04/03 (H) MINUTE(STA)
03/25/03 (H) STA AT 8:00 AM CAPITOL 102
03/25/03 (H) Moved Out of Committee
03/25/03 (H) MINUTE(STA)
03/31/03 (H) STA RPT 1DP 5NR
03/31/03 (H) DP: HOLM; NR: SEATON, GRUENBERG, LYNN,
03/31/03 (H) DAHLSTROM, WEYHRAUCH
04/04/03 (H) JUD AT 1:00 PM CAPITOL 120
04/04/03 (H) Heard & Held
04/04/03 (H) MINUTE(JUD)
04/23/03 (H) JUD AT 1:00 PM CAPITOL 120
04/23/03 (H) Moved Out of Committee
04/23/03 (H) MINUTE(JUD)
04/24/03 (H) JUD RPT 4DP 1DNP 1NR
04/24/03 (H) DP: SAMUELS, OGG, ANDERSON, MCGUIRE;
04/24/03 (H) DNP: GARA; NR: HOLM
04/30/03 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/30/03 (H) Moved Out of Committee
04/30/03 (H) MINUTE(FIN)
05/01/03 (H) FIN RPT 4DP 2DNP 1NR 1AM
05/01/03 (H) DP: MEYER, FOSTER, HARRIS, WILLIAMS;
05/01/03 (H) DNP: STOLTZE, CROFT; NR: HAWKER;
05/01/03 (H) AM: CHENAULT
02/05/04 (H) TRANSMITTED TO (S)
02/05/04 (H) VERSION: HJR 5
02/06/04 (S) READ THE FIRST TIME - REFERRALS
02/06/04 (S) JUD, FIN
02/23/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/23/04 (S) -- Meeting Canceled --
03/01/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/01/04 (S) Heard & Held
03/01/04 (S) MINUTE(JUD)
03/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 252
SHORT TITLE: OCC LICENSING: TERMS OF BD & CONT. EDUC
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE
04/08/03 (H) READ THE FIRST TIME - REFERRALS
04/08/03 (H) L&C, STA
05/02/03 (H) L&C AT 3:15 PM CAPITOL 17
05/02/03 (H) Moved CSHB 252(L&C) Out of Committee
05/02/03 (H) MINUTE(L&C)
05/05/03 (H) L&C RPT CS(L&C) NT 4DP
05/05/03 (H) DP: LYNN, DAHLSTROM, ROKEBERG, ANDERSON
05/07/03 (H) STA AT 8:00 AM CAPITOL 102
05/07/03 (H) Moved CSHB 252(STA) Out of Committee
05/07/03 (H) MINUTE(STA)
05/08/03 (H) STA RPT CS(STA) NT 4DP 1NR
05/08/03 (H) DP: DAHLSTROM, LYNN, SEATON, WEYHRAUCH;
05/08/03 (H) NR: BERKOWITZ
05/15/03 (H) TRANSMITTED TO (S)
05/15/03 (H) VERSION: CSHB 252(STA)
05/16/03 (S) READ THE FIRST TIME - REFERRALS
05/16/03 (S) L&C, JUD
05/19/03 (S) L&C RPT 2DP 1NR
05/19/03 (S) DP: SEEKINS, STEVENS G; NR: FRENCH
05/19/03 (S) L&C AT 8:00 AM BELTZ 211
05/19/03 (S) Moved SCS(L&C) Out of Committee
05/19/03 (S) MINUTE(L&C)
02/18/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/18/04 (S) Heard & Held
02/18/04 (S) MINUTE(JUD)
02/25/04 (S) JUD AT 8:00 AM BUTROVICH 205
02/25/04 (S) Scheduled But Not Heard
03/03/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Mr. Dave Stancliff
Staff to Senator Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 333 for the sponsor
Senator Donny Olson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 217
Mr. John George
American Council of Life Insurers
Juneau, AK
POSITION STATEMENT: Opposed SB 217 and proposed an amendment
Mr. Tim Barry
Staff to Representative Williams
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 31 and HJR 5 and answered
questions
Representative Paul Seaton
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about SCS CSHB 260(JUD)
Ms. Joan Fisher, Executive Director
Anchorage Neighborhood Health Center
th
1217 E 10 Ave.
Anchorage, AK
POSITION STATEMENT: Supports SCS CSHB 260(JUD)
Dr. Cathy Schumacher, Chair
Anchorage Access to Healthcare Coalition
No address provided
POSITION STATEMENT: Supports SCS CSHB 260(JUD)
Mr. John Haugen
Alaska Physicians and Surgeons
4325 Laurel St.
Anchorage, AK
POSITION STATEMENT: Supports SCS CSHB 260(JUD)
ACTION NARRATIVE
TAPE 04-13, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:05 a.m. Senators Therriault,
Ogan, French and Chair Seekins were present. Senator Ellis was
excused. The first order of business to come before the
committee was SB 333.
#^SB333
SB 333-IF UNREAS. AGENCY DELAY, COURT DECIDES
SENATOR THERRIAULT moved to adopt the proposed committee
substitute (CS) to SB 333, labeled version H, as the working
document before the committee.
SENATOR OGAN objected for the purpose of an explanation.
MR. DAVE STANCLIFF, staff to the Administrative Regulation
Review Committee (ARRC), told members that at a previous hearing
the committee questioned whether the regulatory clock would
continue to run while the court considers an extrication
process. The committee believed it should, therefore language
was added on page 2, lines 24-25, that indicates that a state
agency should continue a proceeding unless the court enjoins the
proceeding or issues an order. He added that the title was also
changed to address the fact that the administrative procedures
would be changed.
SENATOR OGAN removed his objection; therefore version H was
before the committee.
CHAIR SEEKINS commented, "Mr. Stancliff, one could anticipate,
since we have now told the administration that the clock keeps
ticking, that there will be motions to stop the clock by the
court based on the court's calendar, I would imagine."
MR. STANCLIFF believed that is a fair assumption.
SENATOR FRENCH asked Mr. Stancliff if he was able to find out
the length of the shortest and median administrative proceeding.
MR. STANCLIFF answered that the Legislative Research Agency is
currently compiling the number of cases each agency has handled
each year and the number of those cases that have been open in
excess of one year, which he would distribute to members.
With no further testimony or questions, CHAIR SEEKINS asked the
will of the committee.
SENATOR THERRIAULT moved CSSB 333(JUD), version H, and its
accompanying fiscal notes from committee with individual
recommendations.
SENATOR FRENCH objected.
The motion carried with Senators Therriault, Ogan and Seekins in
favor, and Senator French opposed.
#^SB217#
SB 217-GENETIC PRIVACY
SENATOR DONNY OLSON, sponsor, told members he introduced SB 217
because current law does not adequately protect and define an
individual's right to his or her genetic information. Without
such protection, an individual and his or her blood relatives
could be abused.
CHAIR SEEKINS asked why the legislature should enact a bill that
restricts these activities for private industry but not for
government entities.
SENATOR OLSON said that is a good question, as many people are
apprehensive about the actions of government agencies. He
pointed out that [indisc.] and AS 09.65.070 pertain to
actionable claims against the state, and address everything not
covered in the exemptions in SB 217.
CHAIR SEEKINS expressed concern that the definition of "a
person" in the bill does not include a government agency. He
said he would not want the Department of Health and Social
Services (DHSS) to be able to collect DNA samples without the
same restrictions that will apply to an insurance company.
SENATOR OGAN concurred with Chair Seekins' analysis that "we
shouldn't necessarily trust the government just because we're
the government and we're here to help you." He recalled an
incident several years ago in which confidential criminal
background records of candidates were accessed by a public
employee during an election campaign and said the potential for
misuse is there.
CHAIR SEEKINS referred to paragraph 2, line 11, on page 1, and
noted that language makes a DNA sample and analysis the
exclusive property of a person. He doesn't want anyone to imply
that language applies except in the hands of a government
agency.
SENATOR FRENCH asked that a representative from DHSS explain to
the committee when and why it would use that information.
SENATOR OGAN referred to the private right of action section on
page 2, and suggested getting a legal interpretation of whether
or not a government agency would be included in the definition
of "a person."
SENATOR FRENCH said irrespective of whether an agency is at
fault, a right of action could be taken against an individual
who illegally sold or disclosed confidential information. The
next question would be whether the agency is immune to a lawsuit
if it adopted a policy of dissemination contrary to law.
CHAIR SEEKINS asked whether an employee would be immune from
disseminating information if the agency for which the person
worked is not restricted from disseminating that information.
SENATOR FRENCH said in his opinion, a statute trumps policy but
He suggested that DHSS brief the committee on its policies.
SENATOR OLSON reminded members that the intent of the bill is to
provide some type of protection to an individual regarding his
or her DNA information. He noted that although members' concerns
are valid, DHSS is not exempt from the informed consent
requirement, and the main point of SB 217 is to require informed
consent. He repeated that DHSS must get informed consent but
what happens afterward is not the focus of the bill; that should
be the focus of other legislation.
CHAIR SEEKINS asked if government agencies are not specified in
the bill for some structural reason.
SENATOR OLSON nodded no.
SENATOR THERRIAULT asked if another section of statute governs
the way a government agency would gather and handle that
information. He then expressed concern that the bill uses the
word "person" interchangeably to refer to an individual
collecting a sample and the person from which a sample is taken.
CHAIR SEEKINS commented that he completely agrees with the
concept behind SB 217 but is still concerned about plugging all
leaks to protect the individual's privacy.
SENATOR OLSON said no legislation can plug every leak. Regarding
Senator Therriault's concern, he noted other sections of statute
deal with actionable claims against the state. That arena is
very complex and convoluted. He expressed concern that getting
involved in that area would detract from what he is trying to do
in this bill.
SENATOR THERRIAULT asked if AS 44.41.035 addresses the
collection of a DNA sample to establish paternity by DHSS.
SENATOR OLSON said AS 44.41.035 deals with the law enforcement
exemptions.
SENATOR FRENCH commented that subsection (f) spells out the
restrictions on the people who collect this data and says the
DNA registration system is confidential and can only be used for
the reasons listed. He said the committee heard a fair amount of
testimony on this issue last year when it contemplated expanding
the number of crimes that DNA samples could be collected for.
DPS gave a good presentation at that time about how tightly that
information is tracked.
SENATOR OGAN asked if anyone was available to testify from the
Department of Law (DOL).
CHAIR SEEKINS said no one was present.
SENATOR OGAN noted, for the record, that he has noticed an
absence of anyone from DOL at the committee hearings this
session.
SENATOR FRENCH pointed out that SB 217 was written to hit 90
percent of the target and gives clear direction to the public
and the government about when informed consent is required to
obtain a DNA sample. He argued that he cannot imagine a
situation in which a government official could start selling DNA
samples to insurance companies but, if that did happen, a
lawsuit and employee firing would resolve the problem. He said
he believes this bill is ready to move out of committee.
CHAIR SEEKINS said he is trying to find peace with his concerns
about the bill.
SENATOR THERRIAULT said some of his concerns have been allayed
by the fact that other statutes speak to how a sample can be
collected and used. He asked, in reference to page 1, line 15,
what "other jurisdiction" encompasses and whether it covers a
local government or other state agencies.
SENATOR FRENCH replied:
If I were just speaking off the top of my head, I
would say it...would be a statute specifically dealing
with a DNA identification system and, moreover, it
would be a DNA identification system supervised by the
Department of Public Safety. If it were something more
like paternity or screening newborns or emergency
medical treatment, it would fall under the other
exceptions under subsection (b). So it would be a DNA
identification system and I would say either conducted
by the United States Government for their law
enforcement purposes or by another state.
SENATOR FRENCH thought it unlikely that it would apply to a
local government because no other local jurisdiction has DNA
identification systems for criminal justice purposes.
CHAIR SEEKINS thought "jurisdiction" could apply to a local
police department or a subdivision of state government with a
law enforcement unit.
SENATOR FRENCH disagreed as he thought that reading was too
broad.
CHAIR SEEKINS asked what a comparable provision would be.
SENATOR FRENCH said it must be comparable to AS 44.41.035, which
is about DNA identification for the purpose of public safety.
CHAIR SEEKINS said if the City of Fairbanks could collect a DNA
sample, it would.
SENATOR FRENCH said if it did, the sample would be sent to the
state crime lab for analysis and retention. The crime lab would
then send a report to the City of Fairbanks saying whether the
sample was a match taken at the crime scene.
CHAIR SEEKINS asked why "another jurisdiction" is included in
the bill if it is meaningless.
SENATOR OGAN suggested that it may have been included in case an
Alaskan city gets its own crime lab in the future.
CHAIR SEEKINS said he still feels that government should be
required to hold the information as private as anyone else.
SENATOR OLSON agreed.
CHAIR SEEKINS asked about the letter of intent.
SENATOR THERRIAULT said the sponsor was agreeable to [placing
the legislative findings and purpose section of the original
bill in] a letter of intent. He noted two corrections need to be
made to the letter of intent:
· Replace the word "has" with "have" on the first line
· Add an apostrophe to the end of the word "families" on line
2
SENATOR OLSON said the letter of intent is concise and focuses
on what he wants to do with the bill. He commented that the
field of biotechnology is getting more and more complicated so
it is important to get a handle on it now.
SENATOR OGAN said he supports moving the bill from committee
today.
CHAIR SEEKINS announced that he would take public testimony.
8:43 a.m.
MR. JOHN GEORGE, representing the American Council of Life
Insurers (ACLI), asked to clarify a few points made at the last
meeting regarding how insurance companies share health
information. The Division of Insurance is in the process of
adopting a privacy regulation. That model closely follows the
National Association of Insurance Commissioners' model and the
National Conference of Insurance Legislators' model. Those
bodies and the Division of Insurance recognize very specific
reasons to share health care and genetic information: claims
administration and adjustment, underwriting, guarantee fund
functions, reinsurance, risk and case management, quality
assurance for consumers, actuarial scientific grievance
procedures, internal administration and compliance, policyholder
services, and audits. The ACLI is concerned that if it cannot
share that information, it will be unable to fulfill its legal
obligations to policyholders and regulatory bodies. He said
insurance companies are very protective of health information.
Alaska would be the only state that requires a separate notice,
which would make it more difficult for insurers to do business
in Alaska. This bill would provide that if a person withdrew his
or her authorization, the insurance company would have to remove
it from the individual's file and destroy it. The insurance
company would then be unable to justify its rating
classification.
MR. GEORGE told members the ACLI is concerned about the
definitions of genetic testing and genetic analysis in the bill.
Those definitions are very broad and would include tests the
general public might not consider to be genetic tests but could
fall within the definition. The ACLI would prefer a narrower
definition to exclude specific test results that are collected
now. In addition, if a separate authorization is required, the
ACLI would prefer that it be drafted and approved by the
Division of Insurance rather than DHSS for the sake of
consistency.
SENATOR THERRIAULT asked for an example of a routine test that
would get swept into the definition in the bill.
MR. GEORGE said that Dr. Gleason of Northwest Mutual assured him
that definition would include iron levels in the blood. He added
that any blood test could potentially be a DNA test. He then
referred to a proposed amendment and read:
A genetic test does not mean a routine physical
measurement; a test for drugs, alcohol, cholesterol,
or HIV; a test performed for the purpose of diagnosing
or detecting disease, illness, impairment, or
disorder; or a chemical, blood, or urine analysis or
other test that is widely accepted and in use in
clinical practice.
He noted that Senator Olson might be better able to answer Chair
Seekins' question.
SENATOR THERRIAULT thought that a routine test would not be
considered to be a genetic test under the definition in the
bill.
CHAIR SEEKINS asked what will change if the definition in the
proposed amendment is adopted.
MR. GEORGE said people at the ACLI and medical doctors wrote the
definition from the member companies. He said he does not have
enough medical expertise to answer that question so again
deferred to Senator Olson.
SENATOR OLSON said he discussed with Dr. Gleason, a professional
consultant for the insurance industry, the definition of genetic
testing. He told members:
As you walk down this very complicated issue, you're
going to have people on one side and entities on the
other, whether it's the industry on one side and the
ACLU on the other, it's a very - quite a tightrope to
go ahead and get a handle on and that's the reason
for...[END OF SIDE A].
TAPE 04-13, SIDE B
...before we start getting off into a real complicated
biotechnological problem. Specifically, where I had
difficulty with the amendment related to the genetic
test was that the definition as compared to what's in
the bill starts to have a little bit of broader range
exemptions for the insurance industry than I was
willing to go ahead and take on. For example, as you
go ahead and look at some of the issues here, a test
performed for the purpose of ... where it says 'tests
performed for the purpose of diagnosing and detecting
diseases', and then compare that with the last
sentence...which is 'widely accepted for use in
clinical practice'. All of a sudden the bill has no
teeth in it and because of that, I - rather than go
through this whole exercise, it becomes an exercise in
futility if we don't have any type of solid sentence
structure that we can point to that doesn't allow for
the purposes of diagnosing and detecting diseases.
CHAIR SEEKINS asked Senator Olson if an impairment or disorder
can be genetic.
SENATOR OLSON said either can.
CHAIR SEEKINS asked if a test to diagnose an impairment or
disorder could be a DNA analysis.
SENATOR OLSON said it could.
CHAIR SEEKINS asked, "So, in that case, DNA or RNA...or
chromosome test could be used to detect disorder or impairment
and would escape this loophole - am I correct or am I wrong -
escape the prohibition?"
SENATOR OLSON said [the proposed definition] is too broad in his
estimation.
CHAIR SEEKINS asked if impairment could be a predisposition.
SENATOR OLSON said all mortals have some kind of impairment and
disorder.
CHAIR SEEKINS commented that widens the loophole too much.
SENATOR FRENCH agreed and noted that switching to a genetic test
would mean a basic rewrite of the bill because the bill speaks
throughout about DNA analysis and the current definition is of a
DNA analysis.
CHAIR SEEKINS again said he is concerned about broadening the
definition.
SENATOR OGAN thanked Senator Olson for taking time from his
profession as a medical doctor to serve in the legislature.
CHAIR SEEKINS asked for the will of the committee.
SENATOR FRENCH moved CSSB 217(JUD), version I, and its attached
fiscal note from committee with individual recommendations.
CHAIR SEEKINS announced that without objection, the motion
carried.
SENATOR FRENCH moved the letter of intent from committee with
the noted grammatical corrections.
CHAIR SEEKINS announced that without objection, the motion
carried.
##
CHAIR SEEKINS announced a 5-minute at-ease.
#^HB31
#^HJR5
HB 31-INITIATIVE/REFERENDUM PETITIONS
HJR 5-CONST AM: INITIATIVE/REFERENDUM PETITIONS
9:13 a.m.
MR. TIM BARRY, staff to Representative Williams, sponsor of HB
31 and HJR 5, reminded members that at the last hearing, Senator
Ogan asked about limiting the scope of HJR 5 and HB 31 to
wildlife initiatives. He told members that Representative
Williams has been working on this legislation for six years now,
during which time various suggestions have been made. The
current version has developed statewide support and he is
reluctant to make any changes at this time.
SENATOR FRENCH asked how the two pieces of legislation work
together.
MR. BARRY explained that the Constitution sets out the procedure
to put a question on the ballot. In addition, statutory language
also addresses that process. In order to make this change, both
the Constitution and statute will have to be amended. The
statutory change is contingent upon passage of the
constitutional amendment by the voters.
SENATOR FRENCH said he understands that people from Anchorage
drive the initiative process while rural folks don't get to
participate, with the exception of one voter from a district. He
asked Mr. Barry to elaborate on the sponsor's concerns about
wildlife initiatives.
CHAIR SEEKINS interjected that a good illustration is on the
charts of district participation in initiative petitions, and
the concern is that the primary movers of initiatives that get
on the ballot are from the urban areas; there is very little
inclusion of the rural folks in the initial question. He said he
agrees with the premise that expanding the requirements to a
broader cross section of the community that includes rural folks
is more equitable.
MR. BARRY agreed and said Representative Williams has heard from
many people who are concerned about what could happen, such as
in California where the legislature's hands are tied by the
initiative process. In addition, he has heard many concerns
about out-of-state organizations that create an issue over
wildlife management that is not of concern to many Alaskans.
When these bills were debated on the House floor, rural
legislators discussed the English-only initiative that was on
the ballot a few years ago.
CHAIR SEEKINS announced that with no further participants,
public testimony was closed.
SENATOR THERRIAULT moved HJR 5 from committee with its attached
fiscal notes.
SENATOR OGAN stated that some will claim this legislation is a
legislative power grab in an attempt to end run the will of the
voters. He said he believes this legislation goes a long way to
change the perception of rural Alaskans that the will of the
urban areas is being foisted on them. This will not undo the
will of the voters at all because the voters will cast their
vote on the measures. He said this accurately takes into account
the shift in demographics toward the urban areas and will better
reflect the will of people throughout the state.
CHAIR SEEKINS agreed and said it is an attempt to make the
political process more inclusive. He then announced that with no
objection, HJR 5 moved from committee.
SENATOR THERRIAULT moved HB 31 and its attached fiscal notes
with individual recommendations from committee.
CHAIR SEEKINS announced that without objection, the motion
carried.
#^HB260#
CSHB 260(JUD)-IMMUNITY FOR PROVIDING FREE HEALTH CARE
REPRESENTATIVE PAUL SEATON, sponsor of HB 260, provided the
following answers to four questions asked by members at the last
meeting. The first question was whether a nurse would be immune
from liability if s/he followed the negligent order of a doctor
and whether the hospital or non-profit agency would be liable.
He explained the research shows that a nurse would only be
liable for his or her actions and cannot be held liable for the
negligence of another. However, if a nurse should have known
that a doctor's order was negligent, based on the nurse's
standard of expertise, the nurse would be considered negligent.
Also, the medical facility or agency could be held liable as
well. There is some case history established on that question,
which he provided in a memo to committee members dated February
27.
REPRESENTATIVE SEATON said the second question was whether a
doctor, when volunteering medical services aboard a cruise ship,
would be considered to be receiving compensation. He said
immunity is only provided when the volunteer services are
provided in a medical facility owned or operated by a
governmental agency or a non-profit agency. He said although it
seems unlikely that a medical facility on a cruise ship would be
owned by such an entity, the committee could limit the
legislation to land-based facilities or specifically exclude
cruise ships. He cautioned that a cruise ship could function as
an emergency medical facility at some time.
The third question was whether all Alaska hospitals require
physicians to have medical liability insurance before they are
given hospital privileges and, if so, could the doctor operating
in a hospital take advantage of the immunity provided under this
act. He explained that most hospitals do require physicians to
have medical liability insurance. Alaska Regional Hospital does
not. If a hospital does require insurance, the hospital would
have to have specific provisions in its by-laws to accommodate
the use of the facility. That would not apply to nurses because
most nurses do not carry personal liability insurance and rely
on the facility's protections.
REPRESENTATIVE SEATON said the last question was whether all
non-profits have insurance. He said Alaska does not have a
mandatory insurance law for health care providers, except for
emergency room physicians. Recognizing that a non-profit could
be held liable for employees and volunteers, he surmised that an
agency would want to protect itself from liability with
insurance.
SENATOR OGAN said the committee discussed a scenario where a
physician who is immune from liability gave a direct order to a
paid staff person. He asked whether that staff person is immune
from liability as well. He asked Representative Seaton to
discuss the legal opinion on that question.
REPRESENTATIVE SEATON said the discussion surrounded a nurse who
was carrying out a doctor's orders. The nurse would not assume
liability for a doctor's orders unless the order or procedure
was within the scope of her knowledge, experience and expertise.
CHAIR SEEKINS said if the nurse refused a doctor's order and it
was later shown that she was acting in a precautionary manner
within the scope of her authority but was wrong, she would be
liable.
REPRESENTATIVE SEATON said the legal opinion addresses whether
or not the non-profit organization would be liable and it would
be. He thought there may be some concerns that insurance costs
for non-profits may rise.
REPRESENTATIVE SEATON said he believes that non-profits and
government agencies would want to carry liability insurance for
both paid doctors and volunteer doctors.
CHAIR SEEKINS said a constituent asked him whether a doctor who
performed an abortion in a non-profit clinic would be immune
from liability under this law.
REPRESENTATIVE SEATON replied that this bill only covers illness
or injury so it would not apply in the case of abortion because
pregnancy has never been classified as an illness or injury. He
noted the House Judiciary Committee had an extensive discussion
on that question. He said it is not his intent to cover abortion
procedures under this bill.
CHAIR SEEKINS commented that he likes the intent of HB 260 but
he is not sure of the unintended consequences for all parties.
REPRESENTATIVE SEATON reminded members that this bill requires
written notification to any patient.
CHAIR SEEKINS took public testimony.
MS. JOAN FISHER, Executive Director of the Anchorage
Neighborhood Health Center (ANHC), stated support for HB 260.
The ANHC often has physicians who want to volunteer at the
clinic. The ANHC has Federal Claims Tort Act Coverage but that
insurance does not cover volunteers. She noted that when
physicians and nurses with insurance coverage volunteer at the
clinic, the ANHS checks to see if they have valid licenses and
whether they have had any claims filed against them. This
legislation will help the ANHS to help very low-income patients
with no insurance. She noted that many mid-level practitioners
are willing to see patients on a volunteer basis but are afraid
to because of the liability issue. She said this bill is
necessary in order to set up a volunteer network.
SENATOR OGAN asked Ms. Fisher if the ANHC is concerned about an
increase in insurance rates resulting from this bill.
MS. FISHER said it is not because it has Federal Claims Tort Act
coverage, which is paid for by the federal government. In
addition, the ANHS is careful to credential all volunteers and
provide quality oversight.
DR. CATHY SCHUMACHER, Chair of the Anchorage Access to
Healthcare Coalition, stated support for HB 260 because this
legislation will allow physicians to volunteer their time
without fear of litigation. The Coalition is working with the
ANHS on a volunteer model, based on a model developed in
Asheville, North Carolina. North Carolina has similar
legislation that allows its network to function.
CHAIR SEEKINS asked if doctors generally support being able to
provide volunteer care without having to burden their
malpractice coverage.
MR. JOHN HAUGEN, Alaska Physicians and Surgeons, said he does
not believe that was the intent. This legislation will allow
physicians to volunteer their services in a village. He noted
those physicians would be carrying malpractice insurance anyway.
This issue arose with a group of some of Alaska Physicians and
Surgeons more senior doctors who are close to retiring. Those
physicians are looking for ways to continue to participate in
their profession and give back to their communities. He noted
that although the retired physician component was emphasized, it
is broad enough to encompass other healthcare providers because
of a desire by other constituencies to participate.
CHAIR SEEKINS asked if any healthcare provider, not just a
retired physician, that provides volunteer services to another
person is not liable for civil damages resulting from an act of
omission.
MR. HAUGEN added if a patient signs an informed consent.
REPRESENTATIVE SEATON added that the services must be provided
under the auspices of a non-profit or governmental agency and
only if the physician is operating within the scope of his or
her current license.
MR. HAUGEN clarified that Alaska is a several liability state so
if one envisions a lawsuit as a pie, and the doctor's share is
one-third, the nurse's share is one-third, and the facility's
share is one-third, this bill does not increase the potential
liability for the nurse or the hospital. It removes the doctor's
pro-rata share of a potential judgment but the other two parties
will only be responsible for their one-third shares.
SENATOR OGAN felt HB 260 is a great bill. He said it will go a
long way to help Alaskans who cannot afford healthcare.
CHAIR SEEKINS noted for the record that his wife is a registered
nurse who does a lot of volunteer work. He then announced that
with no further participants, public testimony was closed.
SENATOR OGAN moved SCS CSHB 260(JUD), version V, from committee
with individual recommendations. There being no objection, the
motion carried.
TAPE 04-14, SIDE A
#^HB252
CSHB 252(STA)-OCC LICENSING: TERMS OF BD & CONT. EDUC
Due to time constraints, CHAIR SEEKINS announced that the
committee would schedule HB 252 on its next available calendar.
SENATOR THERRIAULT informed members that he plans to propose an
amendment that addresses the educational requirements. He said
he is not wedded to the language in the amendment and would be
willing to rewrite it with the sponsor.
CHAIR SEEKINS agreed that he also wants to put a ceiling on the
educational requirement as well. He then adjourned the meeting
at 9:50 a.m.
##
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