HOUSE BILL NO. 76 "An Act extending the January 15, 2021, governor's declaration of a public health disaster emergency in response to the novel coronavirus disease (COVID-19) pandemic; providing for a financing plan; making temporary changes to state law in response to the COVID-19 outbreak in the following areas: occupational and professional licensing, practice, and billing; telehealth; fingerprinting requirements for health care providers; charitable gaming and online ticket sales; access to federal stabilization funds; wills; unfair or deceptive trade practices; and meetings of shareholders; and providing for an effective date." 2:35:59 PM Co-Chair Merrick indicated the committee would be taking up amendments for HB 76. There were 7 amendments that had been submitted. She reviewed a list of people available online. Representative Josephson MOVED to ADOPT Amendment 1 (copy on file): Page 1, line 2, following "pandemic;": Insert "approving and ratifying declarations of a public health disaster emergency;" Page 3, line 21, following "EMERGENCY;": Insert "APPROVAL, RATIFICATION, AND" Page 3, line 22, following "EMERGENCY.": Insert a new subsection to read: "(a) The declarations of a public health disaster emergency issued by the governor on November 15, 2020, December 15, 2020, and January 15, 2021, are approved and ratified." Reletter the following subsections accordingly. Page 3, line 28: Delete "(a)" Insert "(b)" Page 4, line 5: Delete "(b)" Insert "(c)" Page 11, line 7: Delete "If this Act takes effect after February 14, 2021" Insert "(a) Except as provided in (b) of this section" Page 11, following line 8: Insert a new subsection to read: "(b) Section 2(a) of this Act is retroactive to November 15, 2020." Representative Carpenter OBJECTED for discussion. Representative Josephson reviewed the amendment. He hoped that the amendment would be agreeable to every branch of government. It did what had been done in the prior year in March. The legislature had been sued because there was a belief that the revised program legislative (RPL) process had not been followed properly. As a result, the legislature essentially blessed the governor's first batch of RPLs. His amendment was analogous. According to the legislature's counsel, the governor's extension of the emergency declaration after November 15th was not within his power. The amendment acknowledged that the legislature had the power by ratifying the governor's extension. He thought the governor would like the amendment. Representative Carpenter thought the legislature failed to act in the past, and it should be a part of the past. He did not believe the amendment was necessary. Representative Edgmon spoke in strong support of the amendment. He thought it was apparent in the prior November, December, and January before the convening of the legislature, that there were impediments associated with bringing the legislature together to declare a disaster declaration required by law. The governor decided to make the declaration under the circumstances. He thought the governor had made the right decision because of the restrictions resulting from Covid. He gave additional reasons behind not being able to come together as a legislature prior to the beginning of session. He agreed with the maker of the amendment that it also provided cover for the governor if there was any kind of litigation surrounding the issue in the future. Representative Rasmussen asked Mr. Dunmire to speak to what the amendment would do to the legislature's ability to bring forth a lawsuit and whether it protected the governor from a lawsuit. 2:41:43 PM ANDREW DUNMMIRE, ATTORNEY, LEGISLATIVE LEGAL SERVICES (via teleconference), was not prepared to discuss the issue. He could look into it and get back to the committee. Representative Rasmussen asked Mr. Dunmmire to speak to the function of the amendment. Mr. Dunmire responded that the amendment would put the legislature's stamp of approval on the three disaster declarations that the governor made in November [2020], December [2020], and January [2021] during the interim period when the legislature was not in session. The law, as it was currently written, allowed the governor to declare a disaster. However, it was up to the legislature to extend it. In the current situation the governor made 30-day extensions in the interim when the legislature was not in session. Representative Rasmussen asked if the amendment was effective regardless of language about an emergency declaration in any amended version of the bill. In other words, if the legislature took the language out that was currently calling a situation an emergency declaration, would the amendment accomplish the same thing. Mr. Dummier responded that it would accomplish the same thing because it would ratify the disaster declarations made in the past and not anything that was currently taking place. Representative Wool commented that the past was relevant. He thought the amendment provided good cover. Representative LeBon thought an affirmative vote on the amendment would be recognition that the legislature had not completely ceded its authority on the action by the governor. It would also allow the whole body to consider the question once it reached the house floor as to whether the retroactive authority was appropriate. 2:45:00 PM Co-Chair Foster remarked he was hearing the upside to the amendment and would be supporting it. Representative Carpenter had a previous conversation with Megan Wallace about the bill. He was concerned with the retroactive nature of the amendment and the bill. There was a Supreme Court case law that supported the use of retroactivity in bills. There was also some exceptions and constraints that accompanied retroactivity. The retroactive application of the extension, as long as it did not impact substantive rights, was likely okay. However, if it impacted substantive rights, the legislature might be in legal jeopardy. He had discussed the issue with Ms. Wallace and would be happy to share the legal opinion with the committee. He thought the legislature might be opening itself up to some scrutiny. Representative Rasmussen agreed with Representative Carpenter's hesitation about lines 4-6 on page 2 of the amendment. She wanted to offer a friendly amendment and asked if the maker was willing to remove the section keeping everything prior to it. In other words, her conceptual amendment to the amendment would delete lines 4-6 on page 2. Representative Josephson was not willing to remove the section. 2:47:40 PM AT EASE 2:48:06 PM RECONVENED Co-Chair Merrick asked Representative Carpenter if he maintained his objection. Representative Carpenter MAINTAINED the OBJECTION. [A roll call vote was in progress when Representative Johnson expressed confusion about what was being voted on.] 2:49:01 PM AT EASE 2:49:52 PM RECONVENED Representative Josephson restated his motion to move Amendment 1. Representative Carpenter OBJECTED. Representative Josephson offered a brief summary of the amendment. Representative Rasmussen clarified that the amendment retroactively dated the entire bill in front of the committee to November 15, 2020. 2:51:01 PM AT EASE 2:52:48 PM RECONVENED Co-Chair Merrick asked Representative Josephson to clarify. Representative Josephson thought the retroactivity extended to Section 2(a) of the bill. It was designed to merely cover the extensions after the expiration. Co-Chair Merrick asked if Representative Johnson had any questions. Representative Johnson responded in the negative. Representative Carpenter had a legal opinion from Megan Wallace which he would distribute to members. He read a portion of the opinion: "Retroactive application of the disaster extension does not appear to affect any substantive rights and is, therefore, likely to be upheld if challenged." Representative Carpenter thought it sounded like the amendment would support what Representative Josephson was trying to do in his amendment. However, he thought Ms. Wallace's opinion around a substantive right might be inaccurate. There were varied substantive rights of people in Alaska who were unable to travel for certain reasons. Therefore, he thought the legislature was opening itself up to potential litigation by taking retroactive action. Representative Josephson thought Representative Carpenter had stated that the legislature's lead counsel had problems with the substantive application of his amendment. However, Representative Carpenter was currently reading it as if she did not have problems with it. He wanted to clarify whether the legislature's lead counsel had problems with his amendment. Representative Carpenter thought Ms. Wallace opined that there was not a problem. However, her argument as to why did not pass muster. 2:55:21 PM AT EASE 2:59:23 PM RECONVENED Representative Josephson indicated Amendment 1 was before the committee. He had read the legal opinion by the Legislature's lead counsel. She indicated that the amendment was proper, and a court was likely to uphold an extension with a valid retroactive provision. The provision contained in the measure the legislature used to extend the disaster declaration could be done retroactively. It was not what Representative Carpenter stated the first time he spoke on Representative Josephson's amendment. If the chair was inclined to roll the amendment to the bottom, he would not oppose it. Co-Chair Merrick thought Megan Wallace of Legislative Legal Services was online. Co-Chair Merrick rolled Amendment 1 to the bottom of the amendment packet. Representative Josephson MOVED to ADOPT Amendment 2 (copy on file): Page 10, lines 16 - 21: Delete all material. Renumber the following bill sections accordingly. Page 10, line 31: Delete "5 - 12" Insert "5 - 11" Representative Rasmussen OBJECTED for discussion. Representative Josephson reviewed the amendment. He indicated that SB 241, which passed in March 2020 and extended the Covid-19 declaration, had two provisions related to liability in the context of Covid. The provisions were in Section 4 and Section 32. The provision in Section 4 contained standing orders that Dr. Zink or her designee would issue orders on how medical providers would mitigate their activities to protect patients. The current bill did not contain such a provision. Section 32 of SB 241 contained a provision exclusive to personal protective equipment (PPE) and liability around defective PPE. The same section was not contained in the legislation being considered. Instead, there was language, which he thought was problematic, from SB 56 [Legislation introduced in 2021 regarding the extension of the Covid-19 disaster declaration]. He continued that when the House readopted the language in HB 76, it needed to be remedied. He read from a portion of the bill on page 10. He was concerned that the bill extended liability protection to corporations. He was also concerned because the language suggested that if a doctor did anything wrong that did not comply with an order, proclamation, or declaration, they would not be held liable. He was proposing to return to the background liability law, which meant returning to the way liability was handled prior to Covid. He proposed to delete the language in Section 12 of the bill. Representative Rasmussen asked if the amendment had any impact on somebody at the grocery store who unknowingly spread Covid-19. Representative Josephson did not know what the law and liability would be in the context of someone unknowingly spreading Covid. Obtaining proof was the issue and liability would not likely attach. 3:05:26 PM Representative Rasmussen referred to Section 12 of the bill. She asked if civil liability extended to people accountable for unknowingly passing on Covid-19. She wanted to better understand the purpose of the section. MEGAN WALLACE, DIRECTOR, LEGISLATIVE LEGAL SERVICES, ALASKA STATE LEGISLATURE (via teleconference), asked the representative to repeat her question. Representative Rasmussen restated her question. Ms. Wallace replied that the civil liability protection in the bill covered a person for action taken on or after February 14 [2021]and before the effective date of the act that did not comply with an order, proclamation, or declaration adopted by the governor. It meant that any person that acted between February 14, 2021 (when the declaration initially expired) and the effective date of the bill, would not be held liable. Representative Rasmussen asked if the provision would include travelers coming to Alaska without testing. Ms. Wallace responded that testing was a recommendation rather than a mandate and was completely voluntary. She did not want to speculate that definitively a person would not be held liable if they knowingly had Covid and engaged in reckless conduct. 3:09:36 PM Representative Josephson asked, if the legislature were to pass the bill with the language contained in the amendment, whether the declaration would be the legislature's or the governor's since the governor did not unilaterally issue the declaration. Ms. Wallace replied that if the legislature were to act on the bill it would be an extension of the governor's extension. Under Title 26 the disaster act did not specifically provide for a legislative disaster. In her opinion it would be an extension of the governor's disaster declaration. Representative Josephson clarified that the amendment was more generous to parties that might harm other people by spreading Covid-19 during the gap period between February 14, 2021, to the effective date of the act. He mentioned SB 241. Ms. Wallace did not have the language of SB 241 in front of her, however she confirmed that the language was narrower. 3:12:21 PM Representative Wool understood the gap between February 14, 2021, and the effective date of the bill. He asked where the civil liability clause was in the bill. He provided a hypothetical scenario. He wondered if there was any protection for a business. He was concerned with frivolous lawsuits. Ms. Wallace responded that there was no other liability protection currently in the legislation. Absent the clause they were discussing, a claim would have to be adjudicated through the court system based on the current set of rules and expectations of conduct. Any kind of policy decision or desire to extend liability protection would have to be included or made as part of a separate piece of legislation. Representative Wool asked if the amendment language only covered the gap period. Ms. Wallace confirmed the amendment only covered the gap period. Because the bill was retroactive, it made it clear that if someone exercised conduct within the gap period, they would not be held liable for the conduct. 3:16:14 PM Representative Wool commented that there were other amendments the committee would be considering in the meeting. He referenced an amendment that provided immunity from liability. If the amendment were included in the bill and the gap period was removed, there might be increased vulnerability for a business after the bill passed. Ms. Wallace did not understand Representative Wool's question. Representative Wool restated his question and referenced Section 12 of the bill. Ms. Wallace clarified that the intent of section 12 and the liability provision being discussed a person would not be held liable during the gap period at a time that a mandate or order was being issued. She indicated the language clarified that a person would not be liable in the gap period. Representative Wool thanked Ms. Wallace. Representative Carpenter asked, in talking about liability protections, whether she was talking about rights that were considered substantive. Ms. Wallace explained that when talking about liability or liability protection, there could be several liability issues, particularly concerning the uncertainty of people raising claims against other persons or businesses after contracting Covid. She did not think that substantive rights violations were being discussed. They would fall under the category of constitutional issues. Representative Carpenter thought civil liability was being discussed and Ms. Wallace was excluding civil rights. Ms. Wallace clarified that the civil liability language in the bill protected conduct that either complied or did not comply with an order, proclamation, or declaration. A person always maintained the power to raise a constitutional violation and challenge. Someone might assert that liability protected them. She was articulating that the difference between certain kinds of liabilities and those that involved substantive rights were not one and the same. Representative Carpenter argued that a substantive right regarding the Supreme Court's decision would include some sort of constitutional right. Ms. Wallace's recommendation to the committee, through her opinion given to him, specifically stated that retroactive application of the disaster extension did not appear to affect any substantive rights and was, therefore, likely to be upheld [in court]. The committee was discussing things the legislature thought it needed liability from that most definitely could be some substantive rights issues. He commented that there was some circular reasoning taking place that might put the legislature in jeopardy. He felt he had to point out retroactivity as being a cause. 3:22:59 PM Ms. Wallace replied that the civil liability provision in the bill was intended so that if the governor issued a subsequent order or proclamation, it would not be used as a basis for what conduct someone should have undertaken in the gap period. It meant that a person would not be held to the standard of an order that was not in place at the time they acted. Absent the language, someone might argue that they should not have taken an action because it was not permissible under an order not in place. Her comments were focused on the liability language in Section 12. Her opinion was that retroactivity and substantive rights were separate issues. Representative LeBon asked how gross negligence played into civil liability in the current discussion. If someone made a good faith effort to follow best practices but ended up acting with gross negligence, he wondered if there would be civil liability for the person. He suspected the answer was no. He asked if he was accurate. Ms. Wallace replied that the language in section 12 was currently drafted broad enough that it did not distinguish between negative and grossly negative conduct. Representative LeBon thought that if a person was intentionally misbehaving there would still be a potential for wrong doing even if the committee passed the amendment. Representative Josephson thought Representative Carpenter was referring Section 12 which he thought related more to tort. He provided a hypothetical scenario and asked if it fit the meaning of Section 12. Ms. Wallace responded in the negative. Representative Rasmussen MAINTAINED her OBJECTTION. A roll call vote was taken on the motion. IN FAVOR: Edgmon, Josephson, Ortiz, Foster OPPOSED: Johnson, LeBon, Rasmussen, Thompson, Wool, Carpenter, Merrick The MOTION to ADOPT Amendment 2 FAILED (4/7). 3:28:39 PM AT EASE 3:29:13 PM RECONVENED Co-Chair Merrick indicated the meeting would be recessed until Friday, March 19, 2021, following the University of Alaska finance subcommittee meeting scheduled to begin at 1:30 p.m. HB 76 was HEARD and HELD in committee for further consideration. ^RECESSED TO THE CALL OF THE CHAIR 3:29:30 PM [Note: meeting was recessed until the following afternoon where the bill hearing continued. See separate minutes dated 3/19/21 for detail.]