ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 3, 2006
1:12 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative John Coghill
COMMITTEE CALENDAR
CONFIRMATION HEARING(S)
Commission on Judicial Conduct
James J. Fayette - Anchorage
- CONFIRMATION(S) ADVANCED
Violent Crimes Compensation Board
Regina C. Chennault, M.D. - Soldotna
- CONFIRMATION(S) ADVANCED
HOUSE BILL NO. 318
"An Act limiting the exercise of eminent domain."
- MOVED CSHB 318(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 150
"An Act requiring licensure of occupations relating to
radiologic technology, radiation therapy, and nuclear medicine
technology; and providing for an effective date."
- MOVED CSHB 150(JUD) OUT OF COMMITTEE
SENATE BILL NO. 132(efd fld)
"An Act relating to complaints filed with, investigations,
hearings, and orders of, and the interest rate on awards of the
State Commission for Human Rights; and making conforming
amendments."
- SCHEDULED BUT NOT HEARD
SENATE BILL NO. 172
"An Act relating to the presentation of initiatives and
referenda on the ballot."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 353
"An Act relating to sentences for sexual offenses."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 318
SHORT TITLE: LIMITATION ON EMINENT DOMAIN
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE, HOLM, HAWKER
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
01/11/06 (H) JUD AT 1:00 PM CAPITOL 120
01/11/06 (H) Heard & Held
01/11/06 (H) MINUTE(JUD)
01/25/06 (H) JUD AT 1:00 PM CAPITOL 120
01/25/06 (H) Heard & Held
01/25/06 (H) MINUTE(JUD)
02/01/06 (H) JUD AT 1:00 PM CAPITOL 120
02/01/06 (H) -- Meeting Canceled --
02/03/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 150
SHORT TITLE: LICENSING RADIOLOGIC TECHNICIANS
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
02/14/05 (H) READ THE FIRST TIME - REFERRALS
02/14/05 (H) L&C, JUD, FIN
02/23/05 (H) L&C AT 3:15 PM CAPITOL 17
02/23/05 (H) Scheduled But Not Heard
03/02/05 (H) L&C AT 3:15 PM CAPITOL 17
03/02/05 (H) Heard & Held
03/02/05 (H) MINUTE(L&C)
03/18/05 (H) L&C AT 3:15 PM CAPITOL 17
03/18/05 (H) Moved CSHB 150(L&C) Out of Committee
03/18/05 (H) MINUTE(L&C)
03/22/05 (H) L&C RPT CS(L&C) 2DP 1NR 2AM
03/22/05 (H) DP: LYNN, ANDERSON;
03/22/05 (H) NR: CRAWFORD;
03/22/05 (H) AM: ROKEBERG, KOTT
03/30/05 (H) JUD AT 1:00 PM CAPITOL 120
03/30/05 (H) Heard & Held
03/30/05 (H) MINUTE(JUD)
04/06/05 (H) JUD AT 1:00 PM CAPITOL 120
04/06/05 (H) <Bill Hearing Postponed>
04/11/05 (H) JUD AT 1:00 PM CAPITOL 120
04/11/05 (H) Heard & Held
04/11/05 (H) MINUTE(JUD)
01/27/06 (H) JUD AT 1:00 PM CAPITOL 120
01/27/06 (H) Scheduled But Not Heard
02/01/06 (H) JUD AT 1:00 PM CAPITOL 120
02/01/06 (H) -- Meeting Canceled --
02/03/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JAMES J. FAYETTE, Appointee
to the Commission on Judicial Conduct (CJC)
Anchorage, Alaska
POSITION STATEMENT: Testified as appointee to the Commission on
Judicial Conduct (CJC).
REGINA C. CHENNAULT, M.D., Appointee
to the Violent Crimes Compensation Board (VCCB)
Soldotna, Alaska
POSITION STATEMENT: Testified as appointee to the Violent
Crimes Compensation Board (VCCB).
CRAIG JOHNSON, Staff
to Representative Lesil McGuire
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of proposed amendments to
Version L of HB 318, responded to questions on behalf of
Representative McGuire, one of the bill's prime sponsors.
PETER PUTZIER, Senior Assistant Attorney General
Transportation Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of proposed
Amendments 1a-1e to Version L of HB 318.
KEVIN C. RITCHIE, Executive Director
Alaska Municipal League (AML)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
proposed Amendment 4 to Version L of HB 318, and responded to
questions.
LUKE HOPKINS, Member
Assembly
Fairbanks North Star Borough (FNSB)
Fairbanks, Alaska
POSITION STATEMENT: Provided comments during discussion of
proposed Amendment 4 to Version L of HB 318.
RANDY FRANK, Member
Assembly
Fairbanks North Star Borough (FNSB)
Fairbanks, Alaska
POSITION STATEMENT: Provided comments during discussion of
proposed Amendment 4 to Version L of HB 318.
ED EARNHART
Anchorage, Alaska
POSITION STATEMENT: Testified in support of proposed
Amendment 4 to Version L of HB 318.
JEAN WOODS
Palmer, Alaska
POSITION STATEMENT: Provided comments during discussion of
proposed Amendment 4 to Version L of HB 318, and said she
supports the bill.
NOEL WOODS
Palmer, Alaska
POSITION STATEMENT: Spoke in opposition to proposed Amendment 4
to Version L of HB 318.
LISA VON BARGEN, Director
Community and Economic Development Department
City of Valdez
Valdez, Alaska
POSITION STATEMENT: Provided comments during discussion of
proposed Amendment 4 to Version L of HB 318.
HEATH HILYARD, Staff
to Representative Tom Anderson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of the sponsor, Representative
Anderson, presented the proposed CS for HB 150, Version R, and
responded to questions.
DONNA J. RUFSHOLM, R.T., Chair
Licensure Committee
Alaska Society of Radiologic Technologists (AKSRT)
Homer, Alaska
POSITION STATEMENT: During discussion of HB 150, responded to
questions and provided comments.
ED HALL, P.A., Legislative Liaison
Alaska Academy of Physician Assistants (AKAPA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 150.
CHRIS DEVLIN, Executive Director
Eastern Aleutian Tribes, Inc.
Sand Point, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 150.
CLYDE E. PEARCE, Radiologic Health Specialist II
Radiologic Health
Laboratories
Division of Public Health
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 150, provided
comments and responded to questions.
BARBARA HUFF TUCKNESS, Director
Governmental And Legislative Affairs
Teamsters Local 959
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 150.
DONNA M. ELLIOT
Alaska Native Tribal Health Consortium (ANTHC)
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to HB 150.
DON SMITH, P.A., President
Alaska Academy of Physician Assistants (AKAPA)
(No address provided)
POSITION STATEMENT: During discussion of HB 150, provided
comments, suggested a change, and responded to a question.
MARK RESTAD, P.A., Clinical Administrator
Ninilchik Community Clinic
Homer, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 150.
MARILYN KASMAR, Executive Director
Alaska Primary Care Association, Inc. (APCA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 150.
KEN G. TRUITT, General Counsel
Southeast Alaska Regional Health Consortium (SEARHC)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 150.
MICHAEL FORD
Alaska Native Health Board (ANHB)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 150.
RICHARD MANDSAGER, M.D., Director
Central Office
Division of Public Health
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 150.
LINDA FINK, Vice President
Alaska State Hospital and Nursing Home Association (ASHNHA)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 150.
LAURIE HERMAN, Regional Director
Government Affairs
Providence Health System-Alaska;
Member
Legislative Committee
Alaska State Hospital and Nursing Home Association (ASHNHA)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 150 on behalf of
both Providence Health System-Alaska and the ASHNHA.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:12:45 PM. Representatives
McGuire, Wilson, Anderson, Kott, Gruenberg, and Gara were
present at the call to order. Representative Coghill was
excused.
^CONFIRMATION(S)
^Commission on Judicial Conduct
1:13:35 PM
CHAIR McGUIRE announced that the committee would first consider
the appointment of James J. Fayette to the Commission on
Judicial Conduct (CJC).
1:13:51 PM
JAMES J. FAYETTE, Appointee to the Commission on Judicial
Conduct (CJC), in response to the question of why he wished to
serve on the CJC, relayed that he is a lawyer supervising the
Special Prosecutions Unit in the Department of Law (DOL), and
that he has been interested in serving on the CJC for a number
of years because it provides important oversight of complaints
against the state's court judges. After briefly describing the
differences between the CJC and the Alaska Judicial Council
(AJC), he noted that the complaints the CJC handles range from
the mundane to the very serious, adding that he considers
himself to be something of a representative of the criminal bar,
and has been involved with prosecutions involving sensitive
matters. Given that criminal attorneys are not permitted to
serve on the AJC, it falls to the CJC to give the criminal bar a
voice in matters involving judicial governance. Furthermore,
unlike civil attorneys, criminal attorneys - whether they be
prosecutors or public defenders - are in court every day and so
it will be more rapidly apparent to them when a judge has a
conduct, demeanor, or delay problem.
MR. FAYETTE briefly described his current duties with the DOL
and some of the cases he has been involved in, adding that
sorting through complaints for merit is something he currently
does every day. He offered his belief that he will bring a
statewide perspective to the CJC, and will be able to keep in
mind the complexity of the job that judges are called upon to
perform and the ethics standards they are required to follow.
1:19:52 PM
MR. FAYETTE, in response to a question, said he was and is
active in the [Alaska State Prosecutors' Association (APSA)],
which had circulated a candidate questionnaire in the 2002
election.
REPRESENTATIVE GARA offered his recollection that the tenor of
that questionnaire advocated for more legislative or voter
involvement in the choosing of judges.
MR. FAYETTE said he wouldn't agree with that summation because
he doesn't recall that that questionnaire addressed the issue of
the judicial appointment process, though he, himself, does have
an opinion on that matter. He characterized the current process
of screening and appointing judges as being a good one, one that
serves the state well, though in his opinion it could be a bit
more public; for example, currently the AJC's interview with an
applicant is private unless the applicant requests that it be
made public, whereas he thinks that the AJC's interview ought to
be public unless the applicant requests that it be kept private.
REPRESENTATIVE GARA sought assurance from Mr. Fayette that he
could put any animus he may have about a judge to the side and
review claims against that judge solely on whether the conduct
rules have been violated.
MR. FAYETTE gave Representative Gara his assurance that he could
do so, and pledged to go where the facts of a case and the law
lead him.
1:24:21 PM
MR. FAYETTE, in response to comments and questions, relayed that
the complaints handled by the CJC are confidential until a
probable cause finding is arrived at; at that point the
complaint goes through a formal disciplinary process, and the
CJC makes formal recommendations regarding censure, suspension,
retirement, or discipline to the [Alaska] Supreme Court, which
has the authority to take adverse action against a judge based
on those recommendations. He explained that the CJC's formal
advisory opinions are posted on the CJC's web site and
publicized "amongst the bar"; these advisory opinions are
couched in anonymous terms that simply state what a judge may
not do or what a judge should do. Once a case goes through a
formal public hearing and is reported to the [Alaska] Supreme
Court, it, as a reported case, becomes public.
MR. FAYETTE said he credits the fact that this has only happened
a handful times to the high caliber of lawyer that serve as
state court judges, and relayed that one could look in the
Pacific Reporter to find the reported cases where the Alaska
Supreme Court has either agreed or disagreed with the CJC's
recommendations. In response to comments, he noted that the CJC
has a very experienced executive director who has made it her
practice to informally orient newly appointed judges and provide
informal ethics opinions to judges asking simple, routine,
conduct- and appearance-type questions. In response to a
question, he said that he has served on the CJC since August
2005; that he has been through two quarterly meetings; and that
his term, pending legislative confirmation, will run through
3/1/09.
REPRESENTATIVE GRUENBERG asked Mr. Fayette whether he thinks the
CJC is adequately funded at present.
MR. FAYETTE said he thinks the answer to that question is yes,
given that the CJC is modestly staffed, but suggested that the
CJC's executive director could better respond to that question.
1:30:59 PM
REPRESENTATIVE GRUENBERG, remarking on the six opinions that Mr.
Fayette has written, asked Mr. Fayette whether he has any
experience with judges as a civil attorney.
MR. FAYETTE said he has limited civil [case] experience, gave a
brief description of the civil cases he's been involved with,
and indicated that he preferred working in the criminal law
context because it involves more "jury work." He noted that in
addition to the aforementioned six reported cases that he
provided opinions on, he has also written an [Alaska] Supreme
Court brief for a medical malpractice case, but it has not yet
been published because a decision on that case has not yet been
issued. He mentioned that he's also [written] about a dozen
unpublished opinions that are not listed on his resume.
REPRESENTATIVE GRUENBERG expressed his belief that Mr. Fayette
is very qualified [to serve on the CJC].
REPRESENTATIVE KOTT, reminding members that signing the reports
regarding appointments to boards and commissions in no way
reflects individual members' approval or disapproval of the
appointees, and that the nominations are merely forwarded to the
full legislature for confirmation or rejection, made a motion to
advance from committee the nomination of James J. Fayette to the
Commission on Judicial Conduct (CJC). There being no objection,
the confirmation was advanced from the House Judiciary Standing
Committee.
^Violent Crimes Compensation Board
1:35:48 PM
CHAIR McGUIRE announced that the committee would next consider
the appointment of Regina C. Chennault, M.D., to the Violent
Crimes Compensation Board (VCCB).
REGINA C. CHENNAULT, M.D., Appointee to the Violent Crimes
Compensation Board (VCCB), in response to the question of why
she wished to serve on the VCCB, relayed that she is a trauma
surgeon in Soldotna and so cares for a lot of victims of violent
crime when they are transferred to the hospital in which she
works, and therefore she wants to be more involved in the
community and provide more assistance at the state level [to
victims of violent crime].
CHAIR McGUIRE said the committee applauds Dr. Chennault's
willingness to offer her perspective on the VCCB.
REPRESENTATIVE GARA said he appreciates Dr. Chennault's
willingness to serve, and asked that she [take to the VCCB his
desire that the VCCB] keep in mind that insurance companies
sometimes drag out resolutions for victims of DUI crimes.
DR. CHENNAULT said she is aware of that fact and will keep it in
mind.
1:39:00 PM
REPRESENTATIVE KOTT, reminding members that signing the reports
regarding appointments to boards and commissions in no way
reflects individual members' approval or disapproval of the
appointees, and that the nominations are merely forwarded to the
full legislature for confirmation or rejection, made a motion to
advance from committee the nomination of Regina C. Chennault,
M.D., to the Violent Crimes Compensation Board. There being no
objection, the confirmation was advanced from the House
Judiciary Standing Committee.
HB 318 - LIMITATION ON EMINENT DOMAIN
1:39:46 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 318, "An Act limiting the exercise of eminent
domain." [Before the committee was the proposed committee
substitute (CS) for HB 318, Version 24-LS1083\L, Bullock,
1/24/06, which was adopted as a work draft on 1/25/06.]
CHAIR McGUIRE, speaking as one of the bill's prime sponsors,
relayed that staff was available to assist with explanations
regarding the proposed amendments to [Version L].
CRAIG JOHNSON, Staff to Representative Lesil McGuire, Alaska
State Legislature, one of the prime sponsors of HB 318, on
behalf of Representative McGuire, indicated that a
representative from the Department of Law was also available to
assist with explanations of proposed amendments.
CHAIR McGUIRE referred to Amendment 1, which read [original
punctuation provided]:
Page 2, line 8:
Delete "(1)"
Page 2, line 10:
Delete ";"
Insert "."
Page 2, lines 11 - 12:
Delete all material.
Page 3, line 24:
Delete "or entity"
Page 4, lines 11 - 14:
Delete all material and insert:
"(7) the legislature has approved by law
the transfer of private property."
Page 5, lines 8 - 9:
Delete all material.
Page 5, line 10:
Delete "(6)"
Insert "(5)"
Page 5, line 19, following "(i)":
Insert "a highway, or"
Page 6, line 2:
Delete "the purpose for"
REPRESENTATIVE GRUENBERG suggested that Amendment 1 be divided
to facilitate explanation and discussion; he began dividing
Amendment 1.
PETER PUTZIER, Senior Assistant Attorney General, Transportation
Section, Civil Division (Juneau), Department of Law (DOL), began
assisting with the explanation of the division of Amendment 1.
The committee took an at-ease from 1:45 p.m. to 1:46 p.m.
1:46:32 PM
REPRESENTATIVE GRUENBERG relayed that the portion of Amendment 1
altering page 2, lines 8, 10, and 11-12, and page 5, lines 8-9,
of Version L would be referred to as Amendment 1a; the portion
of Amendment 1 altering page 3, line 24, of Version L would be
referred to as Amendment 1b; the portion of Amendment 1 altering
page 4, lines 11-14, of Version L would be referred to as
Amendment 1c; the portion of Amendment 1 altering page 5, lines
10 and 19, of Version L would be referred to as Amendment 1d;
and the portion of Amendment 1 altering page 6, line 2, of
Version L would be referred to as Amendment 1e.
MR. PUTZIER, remarking that most of the changes proposed via
Amendment 1 are technical changes, explained that Amendment 1a
deletes the definition of "public use" from the legislative
intent section and [Section 3, subsection (f)]; he offered his
understanding that this same definition is already contained [in
existing statute]. He explained that Amendment 1b deletes the
phrase "or entity" because AS 01.10.060 already defines
"person". Amendment 1c provides that transfers of property from
one private person to another private person are not allowed
unless the legislature has approved, by law, transfers of such
property - this is essentially a legislative authorization
clause. Amendment 1d clarifies that highways are not
recreational facilities or projects regardless of whether they
have a scenic component. Amendment 1e corrects clerical error.
1:50:52 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendments 1a-1e
[en bloc]. There being no objection, Amendments 1a-1e were
adopted [en bloc].
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 2, which read [original punctuation provided]:
Page 4, line 19 after "individual landowner's personal
residence"
Insert:
"however, the power of eminent domain may be
exercised for trails used for foot or wheeled travel
if the land is necessary to make construction or
expansion of the trail economically feasible, and no
reasonable alternative exists that allows for a trail
of similar public benefit; or where necessary for
access to an area for hunting purposes; or where
necessary for access to or along segments of a
waterway or lake used for fishing, boating or other
recreational uses."
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA explained that Conceptual Amendment 2
pertains to whether eminent domain may be used to obtain
recreational lands. Under Conceptual Amendment 2, eminent
domain may be used only when it is necessary to acquire lands
for a recreational trail that is wanted by a community, and to
acquire lands to allow access to fishing streams, hunting areas,
and similar recreational lands. He said he is worried that as
time goes on there will be less and less access to fishing
streams and hunting areas, and so he doesn't want to preclude
the state from ever using eminent domain to provide public
access [to those areas]. He noted that the state currently has
the power to use eminent domain [for these purposes] but it is
rarely used, and that he's not heard of any instances in which
it has been abused. Under Conceptual Amendment 2, the state
will have to show that there is no reasonable alternative to
taking a particular piece of private property.
1:54:39 PM
REPRESENTATIVE WILSON noted that the definition of the phrase,
"only when necessary", could be different for different people.
She asked Representative Gara what he means when using the
phrase, "access to".
REPRESENTATIVE GARA noted that current law regarding eminent
domain sometimes uses the term "necessary", and surmised that
determining whether taking a particular piece of property via
eminent domain is "necessary" will be determined on a case-by-
case basis. Conceptual Amendment 2, he offered, is saying that
if it is really necessary to use eminent domain to gain access
to an area, then [the state] will retain that option. Phrases
such as, "where necessary" are meant to be limiting language and
are used under current law; for example, such language has been
used in the past to preclude the state from just taking land
when doing so is not necessary. With regard to securing public
access to fishing streams, he acknowledged that that is
different than securing public access to hunting areas, because
it involves the taking of specific land; for securing public
access to hunting areas and for creating hiking trails, he
suggested that Conceptual Amendment 2 is saying that the state
shouldn't even think about using eminent domain unless there are
no other reasonable options.
CHAIR McGUIRE said she would be maintaining her objection to
Conceptual Amendment 2. She noted that the Alaska Department of
Fish & Game (ADF&G) is in the process of working on an amendment
to deal with the issue of using eminent domain to obtain public
access to fishing streams in those very narrow circumstances
where no other access is available. On the issue of Conceptual
Amendment 2 as whole, she characterized it as a public policy
issue, and said her perspective is that in a state wherein there
is so little private property, the alternatives of using state
land, federal land, and municipal land ought to be sufficient
for Alaskans to enjoy their recreational activities.
CHAIR McGUIRE opined that eminent domain should only be used in
true cases of legitimate emergency - not for economic
development and not for recreational purposes. She stated that
she would continue to support recreational trails and the use of
public funds and public lands for them. She noted that the bill
proposes to preclude the taking of a person's private residence
but no such exemption is proposed for private cabins or other
private recreational property. She added that she is not
willing to make an exception for the latter types of property.
CHAIR McGUIRE remarked that she is troubled a bit by the wording
in Conceptual Amendment 2 that says land may be acquired via
eminent domain in order to "make construction or expansion of
the trail economically feasible". For example, there may be
another alternative for a trail on public land, but if that
alternative is costly to pursue, then Conceptual Amendment 2
might be used to take a person's residence [or the land within
1,000 linear feet of that residence]. A homeowner who is facing
having his/her land seized by eminent domain could question
whether his/her particular land is really necessary for a
particular trail or whether the state simply views his/her land
as easier and less costly to acquire than going through the
process of proving that building a trail through a wildlife
refuge, for example, is acceptable.
CHAIR McGUIRE opined that the language in Conceptual Amendment 2
moves away from her goal in offering HB 318, that being to say
that private property and the place where one has a residence
ought to be protected at the highest level. The law shouldn't
provide for the transfer of private property for recreational
use simply because doing so is more economically feasible than
having to go through an exhaustive environmental impact study,
for example.
2:01:42 PM
CHAIR McGUIRE said she can see the benefits of things like the
coastal trail up in her district, but it brings up a good
example of a situation in which people have built their homes on
land that others would like to use for a trail even though there
are alternatives; the question then becomes how does one
approach the issue of balancing a community's need for
recreation and an individual's desire to keep his/her private
residence. She opined that the bill currently strikes a healthy
balance on that issue. Even though there are those who don't
want to see the prohibition against eminent domain limited to
private residences, she remarked, she is not willing to expand
it. She said she would be disappointed if [Conceptual Amendment
2] passes because it goes to the heart of the bill's intention.
REPRESENTATIVE GRUENBERG suggested replacing the words,
"economically feasible", with the word, "possible", and removing
the words, "or expansion".
REPRESENTATIVE GARA said that in using the words, "economically
feasible", he'd meant to even further limit the government's
ability to take someone's private residence, and that in using
the words, "or expansion" he'd meant to say that eminent domain
could be used to expand a recreational trail.
REPRESENTATIVE GRUENBERG suggested at least removing the word,
"economic".
REPRESENTATIVE GARA said "Sure."
CHAIR McGUIRE said she doesn't necessarily know what is meant by
the phrase, "no reasonable alternative", particularly when
viewed in light of wildlife refuges and all the things that must
be done in order to demonstrate that acquiring such land is
appropriate.
REPRESENTATIVE GRUENBERG suggested that alternative language
could be arrived at.
CHAIR McGUIRE said that if Conceptual Amendment 2 does not pass,
she is willing to address this issue further as the bill moves
through the process. She asked members to keep in mind that
there is so much public land in Alaska that a community ought to
be able to easily acquire the land it needs for recreational
purposes without resorting to using eminent domain to take an
individual's private land. She indicated that at this point she
is not comfortable with merely amending Conceptual Amendment 2
in an attempt to address her concern.
2:08:21 PM
REPRESENTATIVE GARA made a motion to amend Conceptual Amendment
2 by replacing, "economically feasible" with, "possible". There
being no objection, the amendment to Conceptual Amendment 2 was
adopted.
REPRESENTATIVE WILSON opined that taking someone's home simply
for recreational purposes would be the wrong thing to do,
particularly when people can simply drive a little distance [and
make use of public lands].
REPRESENTATIVE ANDERSON concurred with the remarks made by Chair
McGuire and Representative Wilson. He characterized Conceptual
Amendment 2, as amended, as too broad.
REPRESENTATIVE GARA remarked that although there is a lot of
public land in Alaska, most of it is not accessible and most
people will never see it. And so the problem that he is trying
to address is that in the future the amount of accessible public
land will diminish. He offered examples of land that in the
future will not be accessible and will therefore be lost to the
public for the purpose of recreational fishing.
REPRESENTATIVE GARA offered his belief that Conceptual Amendment
2, as amended, addresses the issue of acquiring land for
recreational fishing and hunting purposes; the state has this
authority currently and it is almost never used, but he doesn't
want to give away this tool. He remarked that many fishing
streams in the Lower 48 have been lost to the public because
steps weren't taken to ensure public access to them. He
suggested that had legislation like HB 318 been adopted 30 years
ago, the aforementioned coastal trail could not exist because
the threat of eminent domain could not have been used to
convince some people to sell their property for fair market
value.
2:14:53 PM
CHAIR McGUIRE suggested that if there is a fear that land
currently held by a Native corporation, for example, will
someday be turned into a housing development and that that might
in turn preclude the public from having access to fishing
streams, then the solution is to start planning and looking at
the needs of particular communities [at the local level] now.
She said she is amenable to an amendment that will address the
issue of gaining public access to fishing streams, and indicated
that she is more swayed by the argument that the state has an
obligation to maintain control over its natural resources than
by the argument that the public has the right to recreation or
economic development; as long as the focus of such an amendment
remains narrow and only applies in instances where there is
literally no other way to access the state's resources - even if
for hunting, fishing, and hiking purposes - she would support
it.
REPRESENTATIVE GRUENBERG noted that in large part he represents
a "poor part of town," and opined that those Alaskans have as
much right under the Alaska State Constitution to access things
like the coastal trial; it is essential that people have access
to things that maintain their quality of life, and that people
accommodate each other in a reasonable manner, notwithstanding
the rights of landowners to their land. As the country becomes
more civilized, there is a duty to try to work together. He
said he supports private property, but he also supports the
right of people to live their lives and have an opportunity to
enjoy something like the coastal trail.
CHAIR McGUIRE remarked that [the issues raised by this bill] cut
to the core of philosophies.
2:21:29 PM
A roll call vote was taken. Representatives Gruenberg and Gara
voted in favor of Conceptual Amendment 2, as amended.
Representatives McGuire, Wilson, Anderson, and Kott voted
against it. Therefore, Conceptual Amendment 2, as amended,
failed by a vote of 2-4.
2:21:56 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 3, which, with handwritten corrections, read [original
punctuation provided]:
Page 4, line 19 after "individual landowner's personal
residence"
Insert:
"however, the power of eminent domain may be
exercised for trails used for foot or wheeled travel
where necessary for access to an area for hunting
purposes; or where necessary for access to or along
segments of a waterway or lake used for fishing,
boating or other recreational uses."
CHAIR McGUIRE objected for the purpose of discussion. She said
that although she doesn't object to the fundamental goal behind
Conceptual Amendment 3, her concern is that it has not yet been
thoroughly vetted.
REPRESENTATIVE GARA explained that Conceptual Amendment 3 would
keep the power of eminent domain for gaining access to hunting
and fishing areas, and acknowledged that the next committee of
referral might entertain changes to this proposed language. He
noted that merely having access to a fishing stream is not good
enough - one must also have the right to walk along the fishing
stream.
CHAIR McGUIRE said she would maintain her objection but would
commit to working with Representative Gara on the issue of
having access to fishing streams. She noted that Conceptual
Amendment 3 also contains the language, "or other recreational
uses", and said this language is a little broader than what
she'd be willing to support.
REPRESENTATIVE GARA remarked, "Typo."
CHAIR McGUIRE said she would work to try to craft an
alternative.
REPRESENTATIVE GARA made a motion to amend Conceptual
Amendment 3 such that the last line ends with, "fishing or
boating." and no longer includes the words, "or other
recreational uses". He opined that they should retain the right
to acquire land for the purpose public access to fishing streams
and boating and hunting areas. [No objection was stated and
Conceptual Amendment 3 was treated as amended.]
2:26:11 PM
A roll call vote was taken. Representatives Gruenberg and Gara
voted in favor of Conceptual Amendment 3, as amended.
Representatives McGuire, Wilson, Anderson, and Kott voted
against it. Therefore, Conceptual Amendment 3, as amended,
failed by a vote of 2-4.
2:26:55 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 4,
labeled 24-LS1083\L.5, Bullock, 2/1/06, which read:
Page 6, lines 7 - 15:
Delete all material.
Renumber the following bill sections accordingly.
Page 6, lines 17 - 21:
Delete all material and insert:
"(c) A borough or a home rule or first class
city may exercise the power of eminent domain to
acquire property owned by a private person for the
purpose of transferring title to the property to
another private person for economic development
purposes or to acquire a landowner's primary personal
residence for the purpose of developing a recreational
facility or project if the municipality
(1) has not delegated the power of eminent
domain;
(2) provides for the taking by ordinance;
(3) makes every good faith effort to
involve each potentially affected landowner in the
planning of the project for which the exercise of the
power is being considered, including providing written
notice by mail to each landowner at the address of
record at least 14 days before a planning meeting or
public hearing;
(4) appraises the property the municipality
seeks to acquire before beginning negotiations to
purchase the property, permits the owner of the
property to be present during the appraisal, and makes
every reasonable effort to negotiate the purchase of
the property through open negotiations with the owner
of the property; and
(5) offers the property owner the
opportunity to testify at a public hearing before the
assembly or council that is considering the enactment
of an ordinance to acquire the property through the
exercise of the power of eminent domain."
Page 6, line 24, following "AS 09.55.240":
Insert ";
(3) "personal residence" has the meaning
given in AS 09.55.240;
(4) "recreational facility or project" has
the meaning given in AS 09.55.240"
2:27:54 PM
KEVIN C. RITCHIE, Executive Director, Alaska Municipal League
(AML), explained that the sole purpose of Amendment 4 is to
preserve existing local control, and offered his understanding
that Article X of the Alaska State Constitution, in using the
term "maximum local self-government", is providing a
constitutional mandate allowing citizens and communities to make
their own choices as much as possible. The will and ability of
communities to responsibly deal with eminent domain have already
been proven; a number of communities have already had extensive
discussions on the issue of eminent domain and have passed local
laws similar to what is being proposed [via HB 318]. "Allowing
communities the ability to make choices that impact their own
citizens is an important constitutional principle," he opined.
MR. RITCHIE posited that in addition to allowing communities to
continue to make their own laws regarding eminent domain,
Amendment 4 sets out reasonable sideboards to ensure that
citizens and property owners are always heard. Therefore, he
ventured, members could vote in favor of Amendment 4 without
impacting their feelings about eminent domain. He offered his
understanding that [Amendment 1c offers the state] a way of
dealing with unforeseen situations, and that Amendment 4 would
provide a similar mechanism for local communities. He concluded
by saying that the AML supports [the committee's] efforts to
deal with "this issue" on behalf of state government and its
agencies, and asks [the committee] to continue to give
communities - which have elected bodies accountable to the
public - the ability to deal with local eminent domain issues
within their jurisdictions.
2:31:34 PM
LUKE HOPKINS, Member, Assembly, Fairbanks North Star Borough
(FNSB), with regard to Amendment 4, asked that the committee
consider allowing local governments the ability to make the
decisions locally regarding eminent domain. He noted that
Anchorage recently amended its ordinance on limiting the use of
eminent domain, and that the FNSB passed an ordinance limiting
the taking of one's property for private economic development.
He asked the committee to consider amending HB 318 to ensure
that local municipalities have the ability to act on the issue
of eminent domain on a case-by-case basis.
2:33:44 PM
RANDY FRANK, Member, Assembly, Fairbanks North Star Borough
(FNSB), relayed that he, too, is concerned about local control,
adding, "I think that the elected bodies in each municipality or
city should have the right to be involved in this process and
not be hamstrung by a state law, which would supersede [local
law]. Although eminent domain is necessary, it can and has been
used to the detriment of landowners, he remarked, and offered
examples of the latter. He surmised that both the recent U.S.
Supreme Court case, Kelo v. City of New London, and the
extension of the aforementioned coastal trail in Anchorage have
engendered in the public a lot of distrust of the process of
using eminent domain to seize land. Local control is a most
important issue, and it is easy for the term, "for the good of
the public" to be abused; there are always alternatives [to
seizing private property], he opined, and they should be
explored.
2:36:03 PM
ED EARNHART said he would be testifying in support of
[Amendment 4]. Local governments have already been acting on
their own in the direction of what HB 318 proposes to restrict,
but they also need the latitude in the future to handle issues
regarding quality of life as suggested by Representative
Gruenberg, Mr. Earnhart remarked, and relayed that he'd
initially been opposed to HB 318, but has since changed his mind
after becoming more aware of some of the issues involved. He
indicated that it is easy to find examples of abuses of eminent
domain, but in taking care of the needs of a community as a
whole there is no guarantee that individuals won't get hurt in
the process. He offered his hope that [Amendment 4] will be
adopted and that [the committee] will more fully consider the
issues involved; it is much easier to access a local government
with regard to the issue of eminent domain. He concluded by
making brief comments regarding the Kelo decision.
CHAIR McGUIRE acknowledged Mr. Earnhart's points.
2:41:23 PM
JEAN WOODS relayed that she and many of her friends are opposed
to the concept of taking away private property for the purpose
of economic development, adding, though, that she agrees with
Representative Gara on the issue of access for fishing, boating,
and hunting. She went on to say:
I cannot see a local municipality exercising the right
of eminent domain for economic development unless its
for the stated reasons that are covered by federal and
state law, and for those of you that are not aware of
it, the House of Representatives [in Congress] voted
378 to 38 opposing the Supreme Court ruling [in Kelo],
and they're talking about withholding funding to
states that go along with ... [it]. Thank you for the
opportunity to testify.
REPRESENTATIVE GARA offered his belief that all the members
present agree with Ms. Woods's point regarding taking land from
private individuals for economic development purposes.
CHAIR McGUIRE opined that Amendment 4 essentially guts HB 318
because it would allow local municipalities to ignore the
proposed state law.
MS. WOODS said she completely supports the bill.
REPRESENTATIVE ANDERSON agreed with Chair McGuire regarding the
effect of Amendment 4 on HB 318. He indicated that he's
received correspondence from the president of the Russian Jack
Community Counsel in opposition to Amendment 4.
2:45:38 PM
NOEL WOODS thanked the sponsor for the bill as currently written
and said he opposes Amendment 4 and is incensed by the concept
of taking private residences; if the committee is going to
consider allowing such, there should be a substantial penalty
added to any approved price for the property involved.
2:46:43 PM
LISA VON BARGEN, Director, Community and Economic Development
Department, City of Valdez, relayed that the City of Valdez has
no formal opinion regarding HB 318, but urged the committee to
consider providing control at the local level, adding her belief
that there is no better way of knowing whether the right
decision is being made about eminent domain than to have to face
a group of one's peers that one sees every day while going about
one's daily business.
2:47:43 PM
REPRESENTATIVE WILSON asked Mr. Ritchie whether anything in
HB 318 would require municipalities to change their current
ordinances.
MR. RITCHIE said that as currently written, HB 318 would
override current local ordinances, though he noted it is similar
to the current Anchorage ordinance.
REPRESENTATIVE WILSON asked whether HB 318 would preclude a
local government from utilizing its ordinances regarding eminent
domain, and whether local ordinances are different than what is
currently provided for in the bill.
MR. RITCHIE said he doesn't have copies of all the local
ordinances regarding eminent domain but would get them for the
committee, and reiterated that HB 318 would supersede existing
local ordinances.
REPRESENTATIVE WILSON relayed that she would not want anybody
taking her home away from her for any reason.
REPRESENTATIVE GARA asked whether there is an alternative
version of Amendment 4 that would still protect a local
government's control over the issue of eminent domain; perhaps
something specifically addressing a local government's ability
to acquire land for recreational purposes.
REPRESENTATIVE GRUENBERG said no, though he would be willing to
entertain an amendment to Amendment 4 to that effect as it may
currently be too broad. His intention, he relayed, was to
simply say that a municipality as set forth in Amendment 4 could
do the same thing that the legislature could now do as a result
of the adoption of Amendment 1c, and he did not mean to broaden
the power of local governments.
2:52:52 PM
REPRESENTATIVE GRUENBERG made a motion to conceptually amend
Amendment 4, to delete from Amendment 4's proposed
subsection (c) the words, "for economic development purposes or
to acquire a landowner's primary personal residence for the
purpose of developing a recreational facility or project"; and
inserting, "for the purposes and as set out in the remainder of
this act"; and allow the drafter to "make this absolutely
congruent."
REPRESENTATIVE GARA suggested instead that they simply change
page 4, line 15, [of Version L] to say in part, "The power of
eminent domain may not be exercised by the state for the purpose
...". He indicated that he would be amenable to language that
gives local governments control over the issue of recreational
access.
REPRESENTATIVE GRUENBERG instead suggested altering Amendment 4
by deleting the text, inserting language from Amendment 1c, and
altering that language so that it says in part, "the legislature
or a municipality within its jurisdiction ...".
REPRESENTATIVE GRUENBERG, in response to a comment, withdrew
Amendment 4.
REPRESENTATIVE GRUENBERG then made a motion to adopt Conceptual
Amendment 5, which would amend Amendment 1c by adding "or a
municipality within its jurisdiction and as permitted by law"
after the phrase, "the legislature". He clarified that with the
adoption of Conceptual Amendment 5, which is altering Amendment
1c, [proposed subsection (d)(7) on page 4 of Version L] would
then read, "(7) the legislature or a municipality within its
jurisdiction and as permitted by law has approved by the law the
transfer of private property." He then added, "It would have to
be by law or ... municipal ordinance."
REPRESENTATIVE WILSON sought clarification.
REPRESENTATIVE GRUENBERG offered his belief that if Conceptual
Amendment 5 is adopted, municipalities will have the same
authority as is being granted to the legislature.
CHAIR McGUIRE concurred, and characterized Conceptual
Amendment 5 as gutting the bill and as being more dangerous than
Amendment 4 because if the votes are there at a local level, a
local government can simply ignore state law. In response to
comments, she pointed out that the adoption of [Amendment 1c]
grants to the legislature the authority to [approve the transfer
of private property between private entities for economic
development purposes].
REPRESENTATIVE GRUENBERG concurred, and said he is now troubled
by Conceptual Amendment 5.
CHAIR McGUIRE suggested to members that they allow this issue to
be addressed in the next committee of referral.
REPRESENTATIVE GRUENBERG withdrew Conceptual Amendment 5.
3:04:16 PM
CHAIR McGUIRE made a motion to adopt Amendment 6, which read
[original punctuation provided]:
Page 3, line 19:
At the end of (7) Insert: ,fiber optic lines;
REPRESENTATIVE GARA objected for the purpose of discussion. He
asked whether "cable" would be included.
REPRESENTATIVE KOTT offered his belief that fiber optic [lines]
would be construed as cable [lines].
MR. JOHNSON offered his understanding that most cable in the
future will be fiber optic.
CHAIR McGUIRE asked whether the language ought to be changed to
say, "cable lines".
MR. JOHNSON remarked that not all fiber optic lines are cable
lines and so a reference to both would be needed.
REPRESENTATIVE GARA noted that Amendment 6 proposes to change
existing statutory language and so he assumes that cable is
covered somewhere, though he is not sure where.
CHAIR McGUIRE suggested adopting Amendment 6 as is, and then she
would research whether cable is already covered and whether
"telegraph lines" should still be included in statute.
REPRESENTATIVE GARA suggested that perhaps the language should
be changed to say, "fiber optic and other communications lines".
MR. JOHNSON offered his understanding that "that" would be
covered as a "utility".
REPRESENTATIVE ANDERSON concurred.
REPRESENTATIVE GARA said he doesn't know that cable is a
utility.
CHAIR McGUIRE asked whether there were any objections to
Amendment 6. There being none, Amendment 6 was adopted. In
response to a question, she confirmed that [if necessary] the
remainder of bill would be renumbered accordingly.
3:08:06 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 7,
which, with a handwritten insertion of text, read [original
punctuation provided, though with a change in formatting]:
Page 4, line 18:
Delete 1000 linear feet and insert:
250 linear feet
CHAIR McGUIRE asked whether there were any objections to
Amendment 7. There being none, Amendment 7 was adopted.
REPRESENTATIVE GARA made a motion to adopt Amendment 8, to
insert after the word, "exercised" on page 4, line 15, the
words, "by the state".
REPRESENTATIVE WILSON sought clarification.
REPRESENTATIVE GARA opined that adoption of Amendment 8 would
provide local governments with the authority to use eminent
domain in order to gain recreational access for the public.
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE GARA offered his understanding that local
governments would be in favor of such a change. In response to
comments, he clarified that Amendment 8 would provide a
municipality with the authority to gain recreational access for
a trail that is owned by the municipality.
REPRESENTATIVE ANDERSON asked whether Amendment 8 would apply in
situations similar to the one involving the aforementioned
coastal trail.
REPRESENTATIVE GARA indicated it would.
3:11:39 PM
A roll call vote was taken. Representatives Gruenberg and Gara
voted in favor of Amendment 8. Representatives McGuire, Wilson,
Anderson, and Kott voted against it. Therefore, Amendment 8
failed by a vote of 2-4.
3:12:26 PM
REPRESENTATIVE ANDERSON moved to report the proposed CS for HB
318, Version 24-LS1083\L, Bullock, 1/24/06, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 318(JUD) was
reported from the House Judiciary Standing Committee.
HB 150 - LICENSING RADIOLOGIC TECHNICIANS
3:13:16 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 150, "An Act requiring licensure of
occupations relating to radiologic technology, radiation
therapy, and nuclear medicine technology; and providing for an
effective date." [Before the committee was the proposed
committee substitute (CS) for HB 150, Version 24-LS0470\S,
Mischel, 4/11/05, which had been adopted as the work draft on
4/11/05.]
HEATH HILYARD, Staff to Representative Tom Anderson, Alaska
State Legislature, sponsor, relayed on behalf of Representative
Anderson that committee packets contain a new proposed committee
substitute (CS) for HB 150, Version 24-LS0470\R, Mischel,
1/12/06.
REPRESENTATIVE ANDERSON, speaking as the sponsor, moved to adopt
the proposed CS for HB 150, Version 24-LS0470\R, Mischel,
1/12/06, as the work draft. There being no objection, Version R
was before the committee.
MR. HILYARD remarked on some of the language in Section 2 of
Version R that is identical to language in Section 2 of
Version S: proposed AS 08.89.100(b)(1)-(4); and proposed
AS 08.89.150(a)(3), which he suggested may allow those in rural
areas to substitute sufficient experience for an approved
program when seeking to be licensed as a limited radiologic
imager - all persons seeking such licensure will still have to
pass an examination as set forth in the bill.
REPRESENTATIVE ANDERSON concurred.
3:19:05 PM
REPRESENTATIVE WILSON opined that some of the older x-ray
machines in rural areas are not going to be familiar to those
currently taking classes in this field; conversely, those who
know how to use such machines competently might not be able to
pass the proposed exam.
MR. HILYARD surmised that such older technology would require an
even higher level of proficiency. He suggested that others
could better address Representative Wilson's concerns.
3:21:06 PM
CHAIR McGUIRE noted that the reason the bill was given a
referral to the House Judiciary Standing Committee was because
it includes prohibition, penalty, and disciplinary provisions,
which start on page 7, line 28. She asked the committee to
focus on the issues of whether the penalties, both criminal and
civil, are appropriate, and whether violations warrant a jury
trial. She suggested that those who have been giving radiologic
exams without any formal education in this field will not like
the idea of having to go to school, take an exam, and get
licensed.
MR. HILYARD, in response to a question, said that the
presumption is that those being exempted from the licensing
requirements - those listed in proposed AS 08.89.100(b) -
already have a minimum level of training in medicine and human
physiology and anatomy, and so even though that training may not
specifically pertain to radiologic issues, it was felt that that
training is sufficient to mitigate concerns [regarding the risk
of subjecting someone to] radiation overexposure.
[Chair McGuire turned the gavel over to Representative
Anderson.]
REPRESENTATIVE GARA expressed dissatisfaction with that
reasoning.
REPRESENTATIVE ANDERSON, referring to the students being
exempted via proposed AS 08.89.100(b)(4), posited that an
[instructor or] physician will be monitoring their work in the
schools listed; a student shouldn't have to first be licensed in
order to learn how to operate the equipment that the license
pertains to.
REPRESENTATIVE GARA opined that at least a competency test ought
to be required.
MR. HILYARD noted that the list of those being exempted has not
been changed in Version R, and reiterated his argument that
those being exempted will be assumed to have a minimum level of
training in medicine and human physiology and anatomy.
3:31:20 PM
DONNA J. RUFSHOLM, R.T., Chair, Licensure Committee, Alaska
Society of Radiologic Technologists (AKSRT), confirmed that
those students being exempted via proposed AS 08.89.100(b)(4)
would be working under the direct supervision of a licensed
practitioner or a licensed radiologic technologist and would not
be working independently while going through the training
process. As long as a person is enrolled in a program, she
relayed, the AKSRT doesn't feel that limited scope licensure
would be necessary at the time the person is attending the
program, though it certainly would be necessary once he/she has
finished the program if he/she is not specifically exempted from
licensure via other provisions in the bill.
[Representative Anderson returned the gavel to Chair McGuire.]
REPRESENTATIVE GARA opined that dental assistants and students
should not be exempted from licensure unless the radiologic
exams they are conducting are occurring under the direct
supervision of [a licensed radiologic technologist].
MS. RUFSHOLM said she didn't have a problem with adding language
to that effect.
REPRESENTATIVE WILSON indicated that it is disconcerting to see
that licensed practitioners are being exempted since they often
don't always have any knowledge of radiologic equipment, and to
see that students under the supervision of such licensed
practitioner would be exempt.
CHAIR McGUIRE suggested that to require a physician to be
licensed in every little "subset" of medicine would be too
cumbersome.
MR. HILYARD in response to a question, pointed out that
currently there is no standard of competency, for anyone, with
regard to conducting radiologic exams.
REPRESENTATIVE ANDERSON noted that receiving either too much
radiation or too little radiation poses a danger to the public,
recounted several of the other groups of people who are required
by the state to be licensed in their field of practice, and
opined that the state should move ahead with some sort of
licensure requirements for performing radiologic exams
regardless of the [continuing] reluctance of certain groups to
comply with the proposed standards.
3:39:37 PM
ED HALL, P.A., Legislative Liaison, Alaska Academy of Physician
Assistants (AKAPA), characterized the bill as confusing, and
remarked that in general, physician assistants do not agree that
basic radiology has presented a problem because no one has
presented any such data. The AKAPA can't support HB 150 because
it is being presented that providers in clinics are shooting x-
rays without any training; however, the AKAPA has questioned its
members and found that every clinic it has discussed this bill
with has some form of training program in place. He suggested
that those who perform computed tomography (CT) imaging,
magnetic resonance imaging (MRI), and other more invasive
radiography procedures ought to receive formalized training and
be subject to licensure, but the bill should be changed such
that those who "shoot x-rays" needn't receive training beyond
what they are receiving on the job and needn't be subject to
licensure - such requirements could prove onerous particularly
for those practicing in rural areas of the state.
CHAIR McGUIRE said her concern revolves around the fact that
currently, anyone can operate x-ray machines without any
training, regulation, or licensure even though overexposure to
radiation can have severe consequences.
MR. HALL noted that most physician assistant (PA) programs train
PAs how to read x-rays but not how to operate x-ray equipment.
He concluded by saying that the AKAPA is happy that PAs are
exempt from the licensure requirements of HB 150, but there is
the perception that the bill could be improved.
3:44:50 PM
CHRIS DEVLIN, Executive Director, Eastern Aleutian Tribes, Inc.,
relayed that his organization has nine clinics, four of which
have x-ray [equipment], out in the Aleutian Islands, and that
most x-rays are being performed by people who would be exempt
under the bill. He said the penalties proposed by HB 150 seem a
little steep and he is not in favor of the bill moving forward
as currently written. He asked whether, if the bill passes,
there would be additional penalties such as not qualifying for
"federal tort coverage." He relayed that his organization does
eventually send it employees out for training and meanwhile
people are shown at the work site how to operate the equipment,
and so he not sure that there is a great need for this
[legislation]. He opined that although the bill has been
improved, it will have a negative impact on rural clinics, which
will be faced with the question of whether to provide x-ray
service at all.
3:47:39 PM
CLYDE E. PEARCE, Radiologic Health Specialist II, Radiologic
Health, Laboratories, Division of Public Health, Department of
Health and Social Services (DHSS), relayed that he conducts
inspections of radiology equipment for the state. During his
inspections, he said he has observed many instances of
alarmingly high exposure to radiation, one in which the person
was trained by someone with absolutely no background in
radiology and told the person to do exactly the opposite of what
was correct. He relayed that the DHSS favors protecting the
public from exposure to excessive radiation, and offered his
belief that training is important and that it is also important
for that training to be conducted by those who know what they
are doing. In conclusion, he characterized the penalties
proposed by the bill as appropriate.
MR. PEARCE, in response to a question, explained that the DHSS
registers radiologic equipment and he then inspects that
equipment. He noted that some facilities in Alaska operate
under the purview of the federal government and so the radiology
equipment at those facilities is inspected by a federal
inspector, though he also conducts federal inspections of
certain equipment through a program administered by the DHSS.
REPRESENTATIVE ANDERSON surmised, then, that currently no one
monitors the operation of radiology equipment.
MR. PEARCE concurred.
REPRESENTATIVE ANDERSON asked how many states currently license
radiologic technicians.
MR. PEARCE said 39 according to his understanding. In response
to another question, he acknowledged that such licensure appears
to be the trend.
REPRESENTATIVE GARA indicated that he is no longer concerned
that the training requirements of the bill are too onerous, but
said he is not thrilled with a complete exemption for certain
groups of people.
MR. PEARCE, on that first point, acknowledged that there are a
number of online sources for training and thus people will be
able to obtain the required training without having to leave the
community.
3:53:20 PM
BARBARA HUFF TUCKNESS, Director, Governmental and Legislative
Affairs, Teamsters Local 959, relayed that her organization
supports the original version of HB 150, and that her
organization is fortunate to represent radiologists in hospital
facilities who are already under collective bargaining
agreements to be certified. She said her organization supports
certification, and noted that nurses' aides are required to be
certified as nurses' aides in both urban and rural settings; in
other words, there is no exemption from certification for
nurses' aides in rural settings. Notwithstanding support of the
original bill, her organization is willing to accept the fact
that adoption of the proposed CS will be a step in the right
direction. She concluded by asking that HB 150 be moved from
committee.
3:55:16 PM
CHAIR McGUIRE referred to Amendment 1, which, with handwritten
corrections and some formatting changes, read [original
punctuation provided]:
Insert at p.2 line 21
(d) "under the supervision" and "under the direct
supervision" in this subsection shall include, but not
be limited to, under supervision needed to ensure a
radiological examination is performed safely and
appropriately.
CHAIR McGUIRE [although no formal motion to adopt Amendment 1
had been made] objected for the purpose of discussion.
REPRESENTATIVE GARA, speaking as the author of Amendment 1,
indicated that Amendment 1 would provide some guidelines for
those exempted from the training requirements of the bill.
3:56:51 PM
DONNA M. ELLIOT, Alaska Native Tribal Health Consortium (ANTHC),
said she would be speaking in opposition to HB 150 for reasons
similar to those expressed by Mr. Hall and Mr. Devlin. She said
the ANTHC believes that the bill is poorly written and contains
room for changes so as not to place an unnecessary burden on
existing radiological technicians who are employed throughout
the Alaska tribal health system. It's already a complex and
costly network of delivery of care, and additional criteria for
technicians would require a lot of time and money. The ANTHC
trusts that staff are capable of training and overseeing
necessary training so that imagery services are performed with
competence, and feels that [HB 150] does not fit the scope of
providing care in the rural healthcare model, she concluded.
3:58:09 PM
DON SMITH, P.A., President, Alaska Academy of Physician
Assistants (AKAPA), after relaying that he co-owns two medical
clinics, said that he agrees with Mr. Hall's comments. If the
bill is really intended to address a safety issue, he remarked,
then he is not sure how exempting "licensed practitioner"
furthers that goal. Just because one has advanced training in
the field of medicine doesn't mean that he/she is competent in
the operation of radiologic equipment. He asked that the bill
be changed to separate out "in-office" or "in-clinic" and
especially "rural clinic" x-rays from the requirement of
licensure. "I highly agree that persons taking nuclear medicine
studies, CT scans, high radiation studies ... should be
regulated and licensed, but I do not see the safety issue nor
has anybody offered any safety data that in-office in-clinic x-
rays are a huge harm to the public," he concluded.
CHAIR McGUIRE asked whether Mr. Smith is suggesting that
licensed practitioners, and licensed PAs, should not be exempted
from the bill's licensure requirement.
MR. SMITH said he is simply suggesting that the committee be
careful with the concept of exempting "licensed practitioner"
because such a person may not be competent to take x-rays.
REPRESENTATIVE ANDERSON remarked that PAs were exempted at the
request of the AKAPA.
CHAIR McGUIRE said the committee would consider removing
"licensed practitioner" from the list of those who would be
exempt from the licensure requirements of the bill.
4:00:59 PM
MARK RESTAD, P.A., Clinical Administrator, Ninilchik Community
Clinic, noted that he has practiced in Tok, Healy, Delta
[Junction], Ninilchik, Fairbanks, Kotzebue, and Kenai. He
opined that there should be a distinction between basic
radiography and advanced radiologic studies, mammography, and
advanced nuclear studies. He said that from his perspective, he
is concerned about access to care, unneeded medevacs, not having
access to emergency medevacs for those that really need it,
putting [fishing] crews at risk of needing medevacs for shoulder
dislocations - because such cannot be treated without a basic x-
ray - and an inability to have a person on site when there is a
small staff serving a large geographic region.
MR. RESTAD opined that "a dichotomy of basic radiology studies
needs to be done." He noted that his clinic currently has a
physicist [funded] through the federal system that does look at
exposure rates in the clinic to ensure that they are within a
safe range; the clinic's equipment is registered and the clinic
has used due diligence to ensure the safety of the public. In
conclusion he asked that the proposed fines be reviewed with the
perspective of ensuring access to healthcare services by all
Alaskans.
4:03:13 PM
MARILYN KASMAR, Executive Director, Alaska Primary Care
Association, Inc. (APCA), relayed that the APCA represents 150
community health centers in Alaska and other "safety net
providers," and that health centers are private not-for-profit
clinics that operate on very slim margins, typically, and of
which the great majority are in remote and rural areas of the
state. She said that the APCA appreciates that HB 150 now
contains the alternative of demonstrated experience in lieu of
graduating from a program, and pointed out that there has not
yet been an adverse case or lawsuit attributed to poor
radiography practices in community health centers.
MS. KASMAR said that health centers have always had to answer to
federal program expectations, which helps to ensure that they
consistently practice safe radiography. She said that the APCA
agrees with the comments of Mr. Devlin, Mr. Hall, and Ms. Elliot
with regard to the potential hardship and negative impacts the
bill could cause. She requested that "bullets" 3 and 4 of the
letter provided by the APCA be considered as possible changes to
HB 150:
Extensions to temporary permits be granted to
[community health center] CHC staff when necessary so
that sites will not be forced to transport patients to
larger cities for radiography services; Temporary
permits be granted to CHC staff that do not have two
years of prior experience if the lack of said
temporary permit would translate into CHCs having to
transport patients into larger cities
MS. KASMAR noted that there would be an increased cost to state
Medicaid if people have to be transported out for radiological
services.
4:05:51 PM
MS. RUFSHOLM, adding to her previous testimony, said:
As a radiologic technologist, I know that radiation is
a carcinogen and that the operators of medical x-ray
equipment deliver the largest portion of manmade
radiation to the general public. (Indisc.) the
average patient doesn't know this; they aren't aware
of the facts, and they just have confidence in the
fact that the healthcare worker who's performing the
procedure knows what they're doing. Passage of [HB
150] will establish the standards for individuals
performing x-ray exams, standards that don't exist in
some clinical sites as shown by the examples of misuse
of radiation, documented by the State of Alaska,
[office] of Radiological Health.
There's a copy of this list included in [committee
packets] ...; it's quite an extensive list and it does
show that there are incidents happening in the state,
today, where the operators of x-ray equipment do not
know what they are doing. We can't blame the
operators - they're uneducated - we can't blame them
for the errors that they've made; they've not been
required to get the education that they need to do the
job correctly, nor have they been given the
opportunity.
Opponents of [HB 150] state that it is a financial
burden, [but] $229, the cost for one individual to
take an extensive online limited scope program, is
equal to the reimbursement for one x-ray procedure - a
small amount to pay to [ensure] ... patient safety.
House Bill 150 will not change the way that small
businesses and rural clinics operate. The committee
recognizes the fact that the rural areas of the state
have different needs than the urban areas, and we've
worked with groups around the state to address those
needs. We understand the importance of being able to
provide radiology services for patient care,
especially in the rural areas.
MS. RUFSHOLM continued:
We've made provisions in the bill to ensure that the
individuals who currently perform x-ray procedures at
those sites will (indisc. - coughing) do so, the
clinics will have no interruption in services while
their staff receives training, [and] there'll be no
loss of services in the rural areas or a reduction in
patient access to quality and complete point of care.
Given that requiring operators to be trained and
tested does not increase costs, does not restrict
access (indisc. - coughing), will not increase
salaries, will not force clinics to close, will not
cause staffing shortages, will not create burdensome
financial obligations to facilities, and [that]
training can be completed at a place and time
convenient to the operators, there should be no reason
for any of us not to be the patient advocate and
establish standards ... for persons (indisc. -
coughing) radiology procedures. Thank you for giving
me the opportunity to testify.
4:08:42 PM
REPRESENTATIVE ANDERSON asked what would be required of someone
who has already been operating radiological equipment.
MS. RUFSHOLM said that such a person would have two options. If
he/she has the basic concept of radiology positioning and
radiation, and patient and operator safety, and can pass the
aforementioned proposed exam, then he/she will be able to get a
limited radiological imager license. If he/she is either not
able to pass the exam or doesn't have enough experience, he/she
can enroll in one of the courses available - one through the
University of Alaska Anchorage (UAA) or another online course
that has been identified as being available to anyone at anytime
and that consists of approximately 240 online hours - pass the
exam for that program, get a certificate, and then be eligible
for a limited scope license. She reiterated that the course
programs cost $229.
REPRESENTATIVE WILSON asked what would happen in "hard to serve"
areas when a clinic must fill an open position. She then opined
that the bill will make it harder to fill such positions.
MS. RUFSHOLM noted that most people employed in clinics aren't
just performing x-ray procedures, and so anyone newly hired
would be performing those other tasks and would be expected to
immediately enroll in the required program, get a temporary
permit, and also start performing x-ray procedures; patients in
those areas would not be denied radiology services in any way.
Perhaps that is not the best way to go about it, she
acknowledged, but it is not the intent of the legislation to
impact care in rural areas; there is simply still a need for
education. She suggested that adoption of the standards
proposed in HB 150 will create a new career path for people in
rural areas and is thus providing them with an incentive to stay
in the village.
CHAIR McGUIRE surmised, then, that as long as one is enrolled in
an approved course, then one can begin taking x-rays.
MS. RUFSHOLM concurred with that summation, reiterating that
although that is not the ideal, it will allow those in rural
areas to continue to provide radiologic services; currently
people are performing radiologic procedures without any
education. House Bill 150 will ensure that such people will
have the education needed to perform radiologic procedures while
also protecting both themselves and the patient - radiation
safety for both the patient and the operator is one of the first
components of the aforementioned course.
MS. RUFSHOLM, in response to a question, clarified that before a
person could start performing radiologic procedures, he/she
would have to have temporary license which in turn requires
proof that he/she is enrolled in a program and begun it - that
temporary license would then be good for a year.
4:15:45 PM
KEN G. TRUITT, General Counsel, Southeast Alaska Regional Health
Consortium (SEARHC), said he's came to offer testimony in
opposition to the "existing" version of HB 150, and relayed that
SEARHC appreciates the recognition of work experience towards
meeting the qualification requirements. He went on to say:
We share the concerns that this is really going to
reduce access to care. And so if ... patient ...
health and safety [is what's] ... driving this, this
bill ... - in the adopted version that you had before
the work draft - would reduce access to care and would
reduce patient safety instead, and so we agree with
the other rural providers that testified on that. ...
In a previous life I would have been one of the
assistant attorney generals advising the medical board
... [and] the division that would be implementing this
law.
In general, there was a passing reference earlier in
the hearing to, "There's always going to be opposition
to this," and I think that it's hard ... for folks
that are opposing [the bill] ... when that's made
light of, because you've got two very strong competing
interests, here, whenever you talk about regulating a
profession - specifically, the constitutional right to
liberty. You're impacting somebody's liberty by doing
this; you're taking a profession that before this has
not had regulation or state oversight ..., and you're
taking that liberty away. That's juxtaposed against
the reserved power for the states, under police power,
to watch out and safeguard the public health. So
those are [two very] strong competing interests, and
it is difficult to hear ... the opposing interests
made light of. ...
Professor Freidman (ph), in his seminal work on the
history of American law, ... when he chronicles the
history of the regulation of professions, he
characterizes it, and its whole treatment of it, [as]
a holdover from the guild era, from the guild age,
where the primary responsibility of the guilds was to
protect the economic interests of those members of the
profession, and those members of the profession have a
very vested interest in reducing the number of people
in their profession, to keep their services in demand
and the prices for those services high. And what we
have here on the legislative record is that this bill
has been drafted by the members of this profession
that want to be regulated. ...
Again, it's hard to hear that made light of, the
opposition to that, when it looks like this is the
"guild" trying to "circle the wagons," reduce the
number of providers that are competent and licensed to
perform this service, thereby driving up the costs of
those services and reducing the access to those
services. And that is our fear, in general, with
this, ... [though] we appreciate the work draft - we
think that goes a long way towards helping those of us
who are going to be subject to it find alternative
ways to meet those regulations - and we look forward
to continuing to work on that.
4:19:32 PM
CHAIR McGUIRE said her motivation is public safety, and she
views the issue as being one of public health rather than
economics [for industry members]. She said she is satisfied
that the sponsor has worked to a reasonable point to reduce the
barriers to obtaining training and licensure. She indicated
that it is not her intent to raise healthcare costs.
MR. TRUITT, on the issue of "licensed practitioners", said that
perhaps [someone from the Department of Law] should speak to
that issue, particularly with regard to the definition of the
practice of medicine as that term applies to portions of the
bill. "By removing 'licensed practitioner' from this bill you
might have to ... then say that this particular activity is
exempted from the definition of the practice of medicine not
regulated by the medical board," he added. He said that the
SEARHC would support keeping "licensed practitioner" in, but
then the committee must face the conundrum that some doctors may
not even know how to turn on the radiologic equipment in their
office.
REPRESENTATIVE GARA said he wants to ensure that the proposed
standards are achievable and that rural and small clinics are
able to provide needed services on the budgets they have.
REPRESENTATIVE GRUENBERG asked Representative Wilson whether
nurses are trained to use radiologic equipment.
[Representative Wilson shook her head.]
REPRESENTATIVE GRUENBERG remarked, "So it's assumed that you'll
have somebody else do them?"
REPRESENTATIVE WILSON replied, "Or else that if you go to work
in a clinic ..., there's someone there that will train you and
show you what to do ...."
CHAIR McGUIRE remarked, "Boy, that's scary."
MR. TRUITT offered to continue working [with the sponsor] on the
issue of experience requirements.
4:25:18 PM
MICHAEL FORD, Alaska Native Health Board (ANHB), relayed
information about the ANHB, and noted that he has seen a lot of
bills similar to HB 150. He relayed that the ANHB is very
committed to providing the best and safest medical assistance
possible, but does have serious concerns with a bill like HB 150
in terms of cost, particularly in rural areas. He offered his
opinion that the fact that the costs and benefits of regulating
this industry are hard to identify is one of the primary reasons
for this legislation not having become law for the last 10
years. He added that he appreciates the sponsor's work and
would be willing to assist him in coming up with language that
would alleviate the ANHB's concerns.
MR. FORD then referred to the penalty provisions of HB 150 and
noted that it will be a class A misdemeanor for unlicensed
practice, whereas it will be a class B misdemeanor for
fraudulent practice. He suggested that one who uses fraud to
obtain a license should receive a harsher penalty than one who
simply practices without a license. He then characterized the
exemption provisions of HB 150 as critical, adding, "You have,
in a sense, excluded certain areas of practice." For example,
under Version R, dentists won't have to change their current
practice; a prior version required dentists to be in the same
room with the person performing the x-ray procedure. He said he
doesn't necessarily know why performing x-ray procedures under
the supervision of a licensed practitioner should be exempted,
particularly given that it does not necessarily follow that
licensed practitioners have experience in the operation of
radiological equipment.
MR. FORD said he would like to put together a work group that
would formulate language addressing everyone's concerns.
REPRESENTATIVE ANDERSON noted that the bill still has other
committee referrals.
4:31:27 PM
RICHARD MANDSAGER, M.D., Director, Central Office, Division of
Public Health, Department of Health and Social Services (DHSS),
commented that access and safety are both important issues and
therefore a balance between the two must be found, and that he
is encouraged by Version R. He noted that at one of his jobs,
all of the doctors got on-the-spot training in how to use
radiological equipment, and he thinks that they all probably
performed x-rays safely, but what was safe 25 years ago may no
longer be considered safe, particularly considering the
cumulative effects of radiation exposure.
DR. MANDSAGER, in response to comments, noted that dental x-rays
expose a person to only a fraction of the radiation that other
types of x-ray procedures expose a person to, and that those who
perform CT scans, for example, receive a lot of training. The
argument, he surmised, is all about how much training is
necessary for what type of radiologic procedures. "I think the
safety argument is still really important, and as we get online
training and so on available to improve the safety but maintain
access, we can strike a balance point that will be good for the
state," he remarked.
CHAIR McGUIRE asked Dr. Mandsager whether the Division of Public
Health could play an instrumental role with regard to outreach
and assembling online courses.
DR. MANDSAGER indicated that that issue is one that ought to be
considered by the division, and noted that with regard to
licensure of radiological technicians, the state is on a
journey. He concluded by remarking that the penalties in the
bill seem fairly high.
LINDA FINK, Vice President, Alaska State Hospital and Nursing
Home Association (ASHNHA), stated simply that the ASHNHA
supports HB 150.
4:36:43 PM
LAURIE HERMAN, Regional Director, Government Affairs, Providence
Health System-Alaska; Member, Legislative Committee, Alaska
State Hospital and Nursing Home Association (ASHNHA), stated
that both Providence Health System-Alaska and ASHNHA continues
to support HB 150.
MS. HERMAN, in response to a question, said she doesn't know
whether licensed nurse practitioners receive training in
performing radiological procedures as a matter of course.
REPRESENTATIVE GARA said he is concerned that the bill would
exempt certain people, such as licensed practitioners, even when
they don't have sufficient training.
REPRESENTATIVE ANDERSON noted that the definition of "licensed
practitioner" can be found on page 10, lines 26-19; HB 150 is
proposing to exempt licensed practitioners from the training and
licensing requirements contained therein.
4:40:43 PM
REPRESENTATIVE WILSON cautioned against requiring licensed
practitioners to have training in performing radiological
procedures because it could negatively impact access to care.
REPRESENTATIVE GRUENBERG, referring to a letter from
B.J. Anderson, Radiology Manager, Anchorage Neighborhood Health
Center (ANHC), he read:
Dear House Judiciary Committee, I am writing in regard
to HB 150, which relates to the licensing of
radiologic technicians in the state of Alaska. This
bill continues to be flawed in that it does not allow
organizations to begin training radiologic technicians
on the job at the time of hire. This flexibility is
absolutely necessary for: one, Alaska health centers
who cross-train personnel for several job tasks; and,
two, Alaska health centers that have to draw personnel
from their communities because there is a lack of
certified personnel available or willing to live in
rural Alaska.
I would propose that the limited temporary permit be
written to include on-the-job training that can begin
immediately upon hire with the stipulation that the
person must be enrolled in an approved radiologic
training program as soon as possible. The temporary
[permit] ... could be written to give organizations up
to six months ... - or whatever the committee deems
reasonable - ... to enroll employees in an approved
program.
... It is imperative that the bill allow the
flexibility, and recognize the value and
reasonableness, of on-the-job training. ...
4:44:08 PM
REPRESENTATIVE GRUENBERG asked Ms. Rufsholm whether she would be
amenable to a conceptual amendment that would allow the
department to issue a nonrenewable temporary permit, valid for
up to 90 days for an employee of a nonprofit neighborhood health
center, to an applicant who pays a fee determined by the
department if the applicant enrolls in an approved training
program as a radiological technician within that period of time
and is training on the job under a person licensed or permitted
under [proposed] AS 08.89.110(a)(a).
MS. RUFSHOLM pointed out that the language on page 5 [lines 18-
24] of Version R already provides for such a limited permit
though it would be valid for up to one year rather than just 90
days as Representative Gruenberg is proposing; furthermore, a
person can enroll immediately into the aforementioned online
course and begin that course without going through any waiting
period. She relayed that Mr. Pearce knows of an instance in
which a person was given 64 times the amount of radiation needed
because the person doing the procedure had been trained
incorrectly on the job; not all on-the-job training is the same,
and this example illustrates a real need for standardized
training. It will not be a burden to enroll in a training
program and at least start it before doing any radiologic
procedures, she opined; furthermore, not all facilities have
registered technologists that could supervise a trainee as would
be required under Representative Gruenberg's suggested change,
and although she knows that the standards set by the ANHC for
performing radiologic procedures are very high, those standards
are not being followed statewide.
REPRESENTATIVE ANDERSON relayed that he has already discussed
this issue with the executive director of the ANHC, and offered
to discuss it further.
REPRESENTATIVE WILSON said she doesn't know why they would not
want Representative Gruenberg's suggested change to also apply
to for-profit clinics.
4:49:50 PM
REPRESENTATIVE GRUENBERG indicated a willingness to work with
the sponsor on the issues raised.
REPRESENTATIVE GARA withdrew Amendment 1 [text provided
previously].
REPRESENTATIVE GARA made a motion to adopt Amendment 2, which,
with handwritten corrections, read [original punctuation
provided]:
Insert at p.2 line 21
"(d) In this subsection "under the supervision"
and "under the direct supervision" in this subsection
shall include, but not be limited to, under
supervision needed to ensure an exam or test under
this section is performed safely and appropriately.
(e) a licensed practitioner shall be allowed to
perform an exam or test under this section if
otherwise performed in compliance with law, and if the
practitioner has obtained education or training to
ensure the exam or test is performed safely &
appropriately."
REPRESENTATIVE GARA explained that Amendment 2 would insert new
subsections (d) and (e) into proposed AS 08.89.100, and would
say that if one is exempted from any of the bill's training or
testing requirements, then one must either be trained to or have
the knowledge to, or be supervised by someone specifically
trained to or have the knowledge to, ensure that the procedure
is performed safely and appropriately.
4:51:24 PM
REPRESENTATIVE ANDERSON indicated that he has no objections to
Amendment 2.
REPRESENTATIVE WILSON objected, and expressed concern that
Amendment 2 will negatively impact rural areas, adding that
she's not heard from anyone that there is a problem. She opined
that those who are currently performing radiological procedures
in rural areas have received sufficient on-the-job training and
don't need certification or licensure.
CHAIR McGUIRE offered her understanding that Amendment 2 will
make allowances for just that sort of on-the-job training. "The
concern is that if you just simply say ..., 'Well you're a
licensed practitioner, therefore you can perform it', we're
really kind of going against the grain of the bill, which is to
say, 'We want you to have some training ... in this area'," she
added. Under [Amendment 2], she posited, the folks that
Representative Wilson is referring to would qualify.
REPRESENTATIVE ANDERSON reiterated his support of Amendment 2,
but expressed discomfort with the concept of allowing someone
who had a little bit of training 25 years ago to qualify for
performing or supervising the performance of radiological exams.
REPRESENTATIVE WILSON reiterated that she is concerned about
rural areas.
CHAIR McGUIRE noted that times are changing and people have to
realize that radiation is a carcinogenic. Those that are
performing radiologic exams currently and those who have
obtained some kind of training will be allowed to continue, but
those that aren't currently performing such exams or haven't
received some form of training will have to fulfill the
educational requirements of the bill. She acknowledged that
perhaps some clinics operating in rural areas will come to the
state and ask for the money to cover the costs of that training.
Radiation is serious stuff, she remarked, and suggested that the
reason Representative Wilson hasn't seen any evidence of harm is
that the effects of over-radiation cannot often be seen
immediately.
REPRESENTATIVE WILSON said she doesn't know what the long-term
ramifications of Amendment 2 will be, again expressed concern
that access to care in rural areas will decrease, and suggested
that simple x-rays are not harmful.
CHAIR McGUIRE noted that the proposed temporary licenses last
one year, and so a future legislature could address any issues
that arise as a result of the proposed educational and licensure
requirements.
4:58:31 PM
REPRESENTATIVE ANDERSON called the question.
CHAIR McGUIRE instead offered members another opportunity to
speak.
REPRESENTATIVE GARA noted that Amendment 2 pertains to the
exemption provisions of the bill, and suggested that without it,
licensed practitioners will be allowed to perform radiologic
procedures even if they don't know how to do them safely.
REPRESENTATIVE WILSON argued that this will result in a cost to
rural clinics.
REPRESENTATIVE GARA countered that under Amendment 2, only those
licensed practitioners that have had no training whatsoever will
be precluded from performing radiologic exams.
REPRESENTATIVE WILSON opined that licensed practitioners have
never had any such training; furthermore, they don't perform
radiologic exams.
REPRESENTATIVE GARA pointed out, then, that Amendment 2 won't
change current practice and therefore it won't result in
increased costs; Amendment 2 only applies to those that are
performing radiologic exams.
REPRESENTATIVE KOTT noted that dental assistants are not
included in the definition of "licensed practitioner".
MR. HILYARD pointed out, though, that via language on page 2,
lines 6-7, of Version R, dental assistants under the supervision
of licensed practitioners are being exempted from the licensure
provisions of the bill.
5:01:53 PM
REPRESENTATIVE GRUENBERG pondered whether language could be
added to the bill that would provide for educational grants.
REPRESENTATIVE ANDERSON agreed to consider the addition of such
language as the bill continues through the process.
MR. HILYARD pointed out that [proposed AS 08.89.100] has a
delayed effective date of two years. On the issue of whether
radiological procedures have been demonstrated to be harmful, he
relayed that members' packets include an article from the
University of California, Berkeley, that says a noted expert on
the health effects of radiation has concluded that a large
proportion of deaths today from cancer and heart disease are due
in part to past exposure to medical radiation. The expert was
quoted in that article as saying in part: "There is the
assumption that, at these doses, radiation doesn't make a
significant contribution ... but x-rays are very potent
mutagens, even at low doses. It's a disaster that people still
believe the 'safe dose myth,' that low doses are harmless."
CHAIR McGUIRE noted that the standards for what amount of
radiation exposure is safe for pregnant women has changed over
the years.
MR. HILYARD concurred.
5:04:21 PM
A roll call vote was taken. Representatives McGuire Anderson,
Gruenberg, and Gara voted in favor of Amendment 2.
Representatives Wilson and Kott voted against it. Therefore,
Amendment 2 was adopted by a vote of 4-2.
REPRESENTATIVE WILSON made a motion to adopt Conceptual
Amendment 3, which read:
Pg 2
after line 19 insert
(5) from a hard to serve areas [sic]
REPRESENTATIVE WILSON explained that Conceptual Amendment 3 will
address her concern regarding access to care by exempting people
in hard to serve areas from the licensure requirements of the
bill.
5:05:49 PM
REPRESENTATIVE GRUENBERG expressed favor towards such an
exemption, but pointed out that the term, "hard to serve area"
would have to be carefully defined because, as is, such a
provision would be impossible to enforce. He suggested that
Representative Wilson and the sponsor work together on this
issue.
REPRESENTATIVE ANDERSON objected to Amendment 3, said it would
gut the bill, and concurred that "hard to server area" would
have to be defined. He agreed to discuss the issue further as
the bill continues through the process.
REPRESENTATIVE WILSON offered her understanding that the
Department of Labor & Workforce Development (DLWD) knows what a
"hard to serve area" is.
REPRESENTATIVE KOTT indicated agreement with Representative
Anderson, and opined that defining the term, "hard to serve
area" will be cumbersome and difficult. He said it would be
helpful to see documentation from the DLWD referencing what
constitutes a hard to serve area.
REPRESENTATIVE GRUENBERG suggested crafting a letter of intent
stating that the committee wants this issue addressed at some
point.
REPRESENTATIVE ANDERSON said he would prefer to simply make a
commitment to research this issue further before the bill is
heard in its next committee of referral.
REPRESENTATIVE GRUENBERG said he would be satisfied with such a
commitment by the sponsor.
CHAIR McGUIRE noted that Representative Gara has suggested that
institution of a "staggered" effective date for a definable hard
to serve area might be a way of addressing this issue.
REPRESENTATIVE WILSON withdrew Amendment 3.
REPRESENTATIVE KOTT suggested the committee consider Mr. Ford's
point regarding misdemeanors, and opined that the proposed
penalties should be similar in nature.
5:10:06 PM
CHAIR McGUIRE asked Representative Kott to describe how he
wished to change the bill to that effect.
REPRESENTATIVE GRUENBERG suggested allowing the sponsor to
research this issue further as the bill continues through the
process.
MR. HILYARD, in response to a question, said he didn't know why
the proposed penalties are not consistent with each other.
MS. RUFSHOLM offered her understanding that the drafter chose
the language pertaining to penalties, and said her organization
is amenable to changing that language.
REPRESENTATIVE GRUENBERG noted that under Version R, violation
of proposed AS 08.89.100 will be a class A misdemeanor.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 4, to
change "class B misdemeanor" to "class A misdemeanor" on page 8,
line 12.
REPRESENTATIVE WILSON said she would rather have any violation
be a class B misdemeanor.
REPRESENTATIVE GRUENBERG asked Mr. Ford whether the crimes of
"unauthorized practice" are class A misdemeanors or class B
misdemeanors.
MR. FORD said he did not know.
REPRESENTATIVE GARA noted that fraud is usually a felony, and
said he would be comfortable allowing the sponsor to work on
this issue before the bill is heard on the House floor.
CHAIR McGUIRE noted that sometimes if something is a "lesser
included" crime, it will result in a lower penalty, and so
perhaps that was the intent behind having different penalties
for different behaviors. She said she would not want to undo
the balance that the current statutes regarding penalties
provide. She, too, expressed satisfaction with allowing the
sponsor to research this issue further as the bill continues
through the process.
REPRESENTATIVE ANDERSON said he would work with members and
other interested parties regarding the concerns raised, though
he cautioned that he may not be able to alleviate the concern
regarding the "rural dynamic."
5:15:34 PM
REPRESENTATIVE GRUENBERG moved to report the proposed CS for HB
150, Version 24-LS0470\R, Mischel, 1/12/06, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 150(JUD) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
5:15:57 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:15 p.m.