HOUSE BILL NO. 320 An Act relating to certification of search and rescue personnel and organizations; requiring certain search and rescue personnel to be considered state employees for purposes of workers' compensation coverage; and allowing municipalities to elect to provide workers' compensation insurance coverage for search and rescue personnel. MICHAEL PAWLOWSKI, STAFF, CO-CHAIR KEVIN MEYER, addressed the philosophy behind the bill and some of the changes made during the committee process. He stated that the concern had been brought forward by a constituent involved in the Search and Rescue community. He pointed out that Section 3, AS 18.60.125, addresses civil immunity and provides the essence of the bill. Through the workers compensation statute, an employee and employer come to an agreement that in an injury, the workers comp system would be used rather than going to court to deliver benefits to the injured employee. At present time, Search & Rescue volunteers are expressly prohibited from suing the State under existing statute, indicated as civil immunity located in Section 3. There has been a voluntary policy issued through the Division of Risk Management is not consistent; it is a secondary policy. He emphasized that these are a group of volunteers, whom the State relies upon to deliver search & rescue services and assist Alaska State Troopers for statewide outdoor activities. He noted that the sponsor believes that this group of people are basically State employees for the purposes of those missions. Mr. Pawlowski mentioned other groups who receive workers compensation that are also volunteers such as the volunteer fire fighters, volunteer emergency medical attendants and emergency relief workers. They are all considered State employees for the purposes of workers compensation. When considering the volunteer needs, HB 320 was drafted to provide workers with compensation coverage. Mr. Pawlowski acknowledged that there have been few accidents in the history of Search & Rescue in the State. The bill attempts to be proactive, in the past six years, more than 2,300 people have been saved by the efforts of search and rescue volunteers, assisting State Troopers. 2:20:03 PM Mr. Pawlowski highlighted changes made to the bill during the committee process. The requirement for certification and registration was removed and some volunteers did not like that. A fiscal note was included, requiring one statewide full time employee to work with the volunteers in coordinating the effort. Mr. Pawlowski summarized, HB 320 provides coverage to a group of people in the State, who perform an important and valuable service and guarantees they are covered in case of an accident. Certification has been removed and authority for training was added. 2:21:17 PM Representative Gara asked if a person were entitled to workers compensation insurance, would they loose their ability to be able to sue in Court. He understood that if the injured person did not have workers comp insurance, they could sue. He asked if there was 100% certainty that only those that receive State workers comp insurance would not be entitled to sue. Mr. Pawlowski explained that in existing statute; civil immunity already exists. The legislation provides coverage currently unavailable in existing statute. He requested that the Department of Labor and Workforce Development address the issue. Representative Gara requested the classification of those who would not be able to sue in Court. 2:23:08 PM Representative Gara did not want to see a circumstance, where someone doing search and rescue work and not covered by insurance, if they were injured, then not being allowed to sue. Mr. Pawlowski replied that in existing law, it is not an either/or situation. Right now, there is no coverage and there is prohibition from suing so the civil immunity statute would remain in place and they would receive coverage. Representative Gara asked if the bill was passed, would all volunteers doing search and rescue receive either coverage by insurance or the ability to sue. Mr. Pawlowski addressed two areas where a person does not have coverage under the proposed bill: · A person performing a Search & Rescue outside the State Troopers with no authorization for the mission; and/or · When the request is drawn-up by a municipality, as indicated in Section I. He acknowledged there are places where a volunteer would not be covered and did not know how civil immunity would be affected. 2:25:17 PM Representative Gara maintained that if the intent was to protect the search & rescue workers, language could be added to clarify that the State have immunity to the extent that they provide insurance to that person. If the State has not provided insurance to the volunteer, they have no immunity. Mr. Pawlowski referenced that observation to the Division of Risk Management. 2:26:11 PM Co-Chair Meyer hoped the legislature would make the statute consistent with the voluntary Emergency Medical Technician's (EMT) workers compensation coverage. Representative Kelly inquired how many other states offer the coverage. Mr. Pawlowski did not know, but offered to check. In Title 23, there are extensive lists of statewide groups that receive compensation. Some sections of the bill were taken directly from AS 23.32.44, the emergency disaster relief volunteers. 2:27:53 PM CHARLES SPRINGER, (TESTIFIED VIA TELECONFERENCE), ALASKA SEARCH & RESCUE, ANCHORAGE, testified in support of the legislation which will provide basic protection for volunteers who put their health and safety at risk in volunteer efforts for the State. 2:29:26 PM PUBLIC TESTIMONY CLOSED 2:29:36 PM BRAD THOMPSON, DIRECTOR, DIVISION OF RISK MANAGEMENT, DEPARTMENT OF ADMINISTRATION, advised that the Division administers the State of Alaska's self insurance program, which extends to State agencies and employees. HB 320 would create a statutory employee for a search and rescue participant under the direction of the Department of Public Safety. Mr. Thompson pointed out that it would be a new extension of the workers compensation benefit for the member under the direction of that Department. It has been the policy and practice to extend to those participants that volunteer for State service under a similar provision. The volunteer is not eligible to receive the workers compensation benefit but there has been a service agreement which extends to the participant a similar benefit paid only if there is no other source of coverage. In the proposed statute, it would be noted that there is a service agreement that medical costs be paid. The proposed statute makes the State primarily responsible to pay medical indemnity for wage loss based on the average weekly wage. 2:31:24 PM Representative Gara wanted a guarantee that those persons who do search & rescue work are protected in either their ability to go to Court to get the coverage or to get insurance. He asked if there could be any gap, to any person that volunteers for search and rescue efforts. Mr. Thompson reiterated that the bill creates a statutory benefit of workers compensation; the State is self-insured. It would pay the same benefit to those participants that it would to a State employee with the benefit based on an average weekly wage. Existing civil immunity language does address the State & municipality's exposure for liability claims from Search & Rescue missions and extends to those individuals. 2:32:43 PM Representative Gara advised that in the general workmen's comp language, if an individual is not covered, there would be no benefit from immunity; it would be one or the other. He asked if there would be objection from the Administration to guarantee that every person doing search and rescue work, has one or the other option. Mr. Thompson argued that there is no direct action and that the employee has the exclusive remedy listed under the workers compensation law. There is no direct-action legal ability to pursue a civil action against an employer. The present civil immunity statute addresses participants and third parties. The proposed benefit enacts a practice, which provides commitment to pay workers compensation and does not change the existing civil immunity. If the volunteers were under the control of the Department of Public Safety, they would be paid the benefit. The State is self-insured and would make that benefit payment. 2:34:24 PM Representative Gara asked the recourse under the bill, if the State or municipality did not provide insurance for the individual if that person was hurt. Mr. Thompson explained that if the volunteer was acting under the control of State authority, they would be covered; if a municipality offered their own Search & Rescue, not under the direction of the Department of Public Safety, they would have the option to extend similar statutory benefits to those responders. If they choose not to offer it, there could be a situation in which the volunteer would be without compensated benefits. Representative Gara asked if they would be without the right to get a remedy in Court. Mr. Thompson said yes. Representative Gara asked if Mr. Thompson would support language added to address that. Mr. Thompson said he was not sure that tweaking the civil liability statute should be undertaken. 2:36:42 PM Representative Gara inquired how it could be fair for someone risking their life to save another not receive coverage either through insurance or court. Mr. Thompson responded that if working for the State through the Department of Public Safety, the volunteer would not be placed in that dilemma. However, it is the municipality's choice not to extend the statutory benefit. He could not respond for them. Co-Chair Meyer agreed. 2:37:38 PM Mr. Thompson was not aware of other states offering the extension. He explained the difference between what is being offered and what is being proposed and that the State would assume out of pocket payment; otherwise, there would be no covered medical. 2:38:33 PM Representative Kelly inquired if a volunteer was hurt while performing the operations, would the State be paying them for the next two years. Mr. Thompson explained that the benefit would be based on the Alaska average weekly wage, whether prior earnings or not. Vice-Chair Stoltze suggested that HB 320 would increase the number of people with coverage. The bill provides a tangible benefit to volunteers. He spoke in support of the bill as it increases benefit and coverage to more volunteers that help with statewide safety. 2:40:58 PM Representative Thomas provided a hypothetical situation based on personal experience when responding to emergency situations. He wondered if there would be an authorization period required by the bill. Representative Kelly observed that the current situation allows for lawsuits; he wondered how many of the volunteers have sued over the past five years. Mr. Thompson reported that the State has received no such civil action claims. Representative Kelly asked if small claims payments could involve paying wages in the old scenario. Mr. Thompson replied that the State would have paid wage replacement based on the minimum comp rate available at that time. Representative Gara noted frustration with the Department's testimony. He reiterated that the volunteer is not allowed to sue under current law, which is why almost no one has sued. He emphasized his frustration that the Department has not provided "straight answers" to the questions being asked. 2:45:26 PM Mr. Pawlowski addressed concerns voiced by Representative Gara. He commented that Mr. Thompson did explain the municipal exception well. In drafting the bill and working with the communities, the intent was not to create an unfunded mandate where the community would be required to add coverage. Changing the civil liability statute places a municipality at risk for being sued. He recommended hearing testimony from Kevin Smith of the Municipal League regarding the joint insurance arrangement discussing types of liabilities the communities could be at risk for. If the bill passes, concerns voiced by Representative Gara would be mute. Representative Gara understood the intent was to expand coverage to people barred from suing. If the municipalities have concerns, it would not surprise him. He believed that the work of the Division of Risk Management should be to protect the State from liability, not to provide remedies. He wanted the loopholes addressed. Co-Chair Meyer pointed out that the municipalities have the option to either opt in or out. 2:48:16 PM LIEUTENANT RODNEY DIAL, (TESTIFIED VIA TELECONFERENCE), DEPUTY COMMANDER, DIVISION OF ALASKA STATE TROOPERS, DEPARTMENT OF PUBLIC SAFETY, spoke to the fiscal note. He requested one additional full time position to oversee and provide training for the program. Representative Hawker recommended the fiscal note be zeroed out. He acknowledged that the Department of Public Safety is understaffed; however, HB 320 is not the vehicle for solving those problems. Lt. Dial pointed out the bill requires required oversight, training and management for over 1,000 statewide volunteers. Representative Hawker disagreed. Representative Kelly aligned with comments made by Representative Hawker, noting the hidden expenses contained in the note. 2:54:06 PM In response to Representative Kelly, Mr. Pawlowski pointed out the expanded responsibilities of the Commissioner and different from the version submitted by the House Labor and Commerce Committee. Section 1 does not requiring it and the language provides coverage for the authorized training mission. The Department envisions some sort of training coordination within the communities will need to happen. He added, the certification provisions had been removed. Representative Gara agreed that the cost to the State should be less than zero, but acknowledged that there could be unanticipated expenses. Mr. Thompson explained that Risk Management is funded by inter-agency receipts. Cost of risk is based on: · The cost of claims; and · Exposure. The actual costs generated from the claims are collected for a 5-year window and then proportionately shared to each department. The portfolio of risk changes every year. The revision could increase a portion of it. Each year when the Risk Management budget request is prepared, all payments are taken into account. 2:57:49 PM Co-Chair Meyer MOVED to ADOPT Amendment 1. (Copy on File). Vice-Chair Stoltze OBJECTED. Page 3, Line 17, following "wage" would delete "but the gross weekly earnings for calculating compensation may not be less than the minimum wage computed based on 40 hours of work a week". Mr. Pawlowski explained the intent of the Amendment to provide clarification. Vice-Chair Stoltze WITHDREW his OBJECTION. There being NO further OBJECTION, Amendment 1 was adopted. 2:59:13 PM Representative Hawker asked the decision on the Department of Public Safety fiscal note. Co-Chair Meyer recommended cutting it in half. Representative Hawker MOVED to zero out the note. Co-Chair Meyer OBJECTED. Representative Hawker restated the request urging that more in depth discussion occur on the Department of Public Safety operating budget. Co-Chair Meyer suggested consideration of an indeterminate note. Representative Hawker emphasized zeroing out the note, suggesting that the Division of Risk Management may or may not carry a consequence. Co-Chair Meyer WITHDREW his OBJECTION. There being NO further OBJECTION, the fiscal note was zeroed out for the Department of Public Safety and an indeterminate note for Division of Risk Management. 3:02:03 PM Vice-Chair Stoltze MOVED to REPORT CS HB 320 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. Representative Kelly OBJECTED. Representative Kelly indicated his concern about moving away from a volunteer system throughout the State. He restated that it could end up costing a lot more. He emphasized that the current system works well. Representative Kelly WITHDREW his OBJECTION. Representative Gara OBJECTED, but disagreed with comments made by Representative Kelly. He maintained if there was universal health care, the State would not need the bill. Representative Gara WITHDREW his OBJECTION. There being NO further OBJECTION, it was so ordered. CS HB 320 (FIN) was reported out of Committee with a "do pass" recommendation and with zero note #1 by the Department of Administration, indeterminate note #2 by the Department of Administration and a new fiscal note by the House Finance Committee. 3:05:38 PM