SB 65-LIABILITY CONSULTING HEALTH CARE PROVIDER  3:09:40 PM CO-CHAIR SNYDER announced that the first order of business would be CS FOR SENATE BILL NO. 65(JUD), "An Act relating to immunity for consulting physicians, podiatrists, osteopaths, advanced practice registered nurses, physician assistants, chiropractors, dentists, optometrists, and pharmacists." 3:10:34 PM REPRESENTATIVE SPOHNHOLZ moved to adopt Amendment 1 to CSSB 65(JUD), labeled 32-LS0002\G.1, Fisher, 4/30/21, which read: Page 1, line 3: Delete "and pharmacists" Insert "pharmacists, physical therapists, and  occupational therapists" Page 3, line 3: Delete "or" Following "AS 08.80": Insert ", or a physical therapist or occupational therapist licensed under AS 08.84" REPRESENTATIVE PRAX objected. REPRESENTATIVE SPOHNHOLZ explained that to be consistent in who is included and who is excluded, Amendment 1 would add physical therapists and occupational therapists to the list of providers covered in the bill, which includes chiropractors, dentists, optometrists, and pharmacists. 3:11:25 PM SENATOR JESSE KIEHL, Alaska State Legislature, as prime sponsor of SB 65, offered his appreciation for the conversations that he and Representative Spohnholz have had about Amendment 1. He maintained that [CSSB 65(JUD)], as offered to the committee, is consistent in that all the included medical professions/disciplines have certain similarities in their scope of practice, although they cover a broad range of health care providers. The health care providers on the list have the power of diagnosis, as well as their treatment powers within their specific area of training and expertise. While physical therapists and occupational therapists are extremely valuable health care providers, with a civil liability bill it is important to consider the relative risk when the legislature is going to grant total immunity in civil law. For the other providers on the list, the scopes of practice involve much higher relative risks of physical harm within their scope of practice. SENATOR KIEHL continued his response. He flagged the potential for a difference in the scope of practice between the treating provider and the professional who is consulted. He pointed out that the treating provider has a more limited scope of practice and the medical provider who is consulted has a much more extensive scope of practice and training. Under the bill the treating provider retains full liability, so it is important for this bill to make sure that the treating provider has the scope of practice and scope of training to fully evaluate the advice he or she is given in that unpaid consult. He said he appreciates the intention of the amendment's sponsor, but that he is more comfortable with the bill as presented. 3:13:57 PM REPRESENTATIVE KURKA asked whether he is correct understanding that Senator Kiehl's concern is if a physical or occupational therapist gets medical advice from a doctor and then works off that advice to treat a patient, the doctor should be held liable because the license of a physical or occupational therapist is not on the same playing field as a doctor. SENATOR KIEHL replied that the bill does not create a duty of care for consultations outside the grant of civil immunity here, but specifically to the grant of civil immunity, that difference described by Representative Kurka is a concern. 3:15:05 PM REPRESENTATIVE SPOHNHOLZ, in relation to the sponsor's statement about diagnosis and treatment, pointed out that in Alaska a physical therapist and an occupational therapist do not need a referral from another provider. For example, a person having trouble with his or her shoulder can choose to see a physical therapist without a doctor's prescription. Therefore, she maintained, physical therapists and occupational therapists are equivalent. They have their own board, she continued, and given the comparative other professions included in the bill, all of which have very different scopes of practices, it seems there is a lot of parody here. CO-CHAIR SNYDER commented that the committee is talking about adding physical therapists and occupational therapists to the group of individuals that could be called and are protected, as opposed to the provider doing the calling. She said she therefore questions why adding them wouldn't be wanted. SENATOR KIEHL answered that Amendment 1 runs both directions because it defines a health care provider for purposes both of making the phone call and receiving the call, not that it would have to be by phone. CO-CHAIR SNYDER asked whether it is correct that the liability protection is to the one receiving the call. SENATOR KIEHL [nodded in the affirmative]. 3:17:01 PM REPRESENTATIVE MCCARTY asked whether he is correct that the bill sponsor is saying that the group included in SB 65 is at greater risk in court-type situations than, say, a mental health provider, or physical therapist, or occupational therapist. SENATOR KIEHL confirmed that Representative McCarty's statement is correct. 3:18:24 PM REPRESENTATIVE PRAX, to provide context, asked how often a physical therapist or an occupational therapist would call a specialist as compared to a general practitioner for example who would call specialists more often. REPRESENTATIVE SPOHNHOLZ replied that that is possibly true, but she is unaware of evidence to show that it is true or not true. She said calls could be going either way with how the bill is currently crafted. With the way the bill is drafted, and the way Amendment 1 is considered, she added, a physical therapist or occupational therapist could call a general practitioner or orthopod for consultation. Since Alaska has direct entry to physical therapy and occupational therapy it makes sense to include physical therapists and occupational therapists to ensure that that two-way communication is happening effectively. 3:21:04 PM REPRESENTATIVE MCCARTY expressed his understanding that the concern is that an orthopod could call a physical therapist and then the physical therapist would be the consulting person, and SB 65 is to protect the consulting individual. REPRESENTATIVE SPOHNHOLZ responded that, given the way the bill is drafted, it could go either way. CO-CHAIR SNYDER pointed out that the liability protection is for the person being called. REPRESENTATIVE MCCARTY said that is his understanding as well. So, he continued, that gets into the question of how frequently physical or occupational therapists are consulted, and whether that puts them in greater civil liability type things that exist in the industry of health care. He stated that what he is hearing from the bill sponsor is that this category of people is at a higher risk than others. CO-CHAIR SNYDER replied that that is what is being assumed. 3:22:41 PM REPRESENTATIVE SPOHNHOLZ asked the bill sponsor whether the aforementioned is the case. Given the bill is drafted to include chiropractors, she stated, the assumption is that they are at higher risk of potential liability for consulting than a physical therapist, osteopath, or physician's assistant, yet she is unsure whether evidence of that has been seen. SENATOR KIEHL answered that chiropractors were added in the [Senate Health and Social Services Standing Committee], and one of the meaningful distinctions among those professions is diagnostic power. He said it is good law that in Alaska someone can go directly to see a physical therapist or occupational therapist, and because their scope of practice does not extend to diagnosis, their exposure when looking at statute is limited; whereas the other medical professions included in the bill do have the power of diagnosis in their statutes. Almost all have the power of prescription, and to a greater or lesser extent optometrists can prescribe a limited quantity of opioids; the exception there would be the pharmacists themselves. The scope of practice of pharmacists is quite limited. The number of topics on which a pharmacist might provide a consultation to one of the other providers on the list is limited to pharmacology, so there aren't broader concerns about their ability to, for example, evaluate advice they are given or to be asked advice on a topic. He expressed his hope that this covers Representative Spohnholz' thoughts about the consistency of the list. 3:25:23 PM REPRESENTATIVE PRAX maintained his objection. He offered his appreciation for what Representative Spohnholz is saying to try to make this applicable equally from the point of the law. But, he continued, what is being done on the other side is to give a privilege to certain groups. He said he is hesitant to make that broader at this time but might reconsider at another time. REPRESENTATIVE KURKA stated he is split both ways on who should receive the liability protection under certain circumstances, but he also sees that physicians should take responsibility for their advice in other situations. He can see situations where individuals are consulted in their respective professions, whether or not they are physical therapists, and maybe the liability protection for their profession versus the situation where they are getting advice from a different licensure, and there is the possibility that these are separate things. 3:28:18 PM CO-CHAIR ZULKOSKY offered her appreciation for the explanation of looking at the provider types included in the bill and what aligning all of them means with respect to the power of diagnosis and the level of risk that is associated among them in terms of prescribing power or rendering diagnoses. Physical therapists and occupational therapists may not necessarily have the power of diagnosis, and they also do not have the level of risk in terms of the treatment that they provide. While there is parody in the type of treatment that might be provided, a physical therapist, for example, is not doing high manipulation like a chiropractor would be doing. She asked how there is not parody if there is a lower level of risk that might be experienced in consulting a physical therapist or occupational therapist or vice versa. SENATOR KIEHL responded that the relative level of risk gets to the need to grant statutory immunity. Where that level of risk is lower, he said, the need to grant a total immunity from suit is also significantly lower. Excluding someone from this list of total immunity from lawsuit doesn't create some duty of care where it didn't exist before, it isn't exposing them to brand new lawsuits that others are being exempted from. That comparative risk of harm is a significant factor in looking at who needs to be covered under the bill. 3:31:49 PM REPRESENTATIVE SPOHNHOLZ suggested that SB 65 tries to create comfort on the part of a consulting provider to provide candid, effective consultation to another provider, a positive intent of this bill that she supports. This is an issue of parody, she opined, because physical therapists diagnose and do spinal manipulation just as chiropractors do. Physical therapists have a very broad range of practice and given the expanding scope of their practice over time and that they do provide consultation, it's an issue of parody if chiropractors are going to be included. Physical therapists do many of the same things plus other invasive procedures that they didn't do 50 years ago but are doing now. There are specialties in physical therapy just like there are specialties in nursing, physician assistants, or medical doctors. This is a matter of parody, and if they are not going to be included then perhaps chiropractors, dentists, and optometrists should be taken out. But, if all of those are going to be included, then not including physical therapists and occupational therapists would be an oversight. 3:34:14 PM A roll call vote was taken. Representatives Kurka, Spohnholz, McCarty, Prax, Zulkosky, and Snyder voted in favor of Amendment 1. Therefore, Amendment 1 was adopted by a vote of 6-0. REPRESENTATIVE MCCARTY commented that this is a marvelous bill that frees up the ability for professionals to consult with one another to improve health care professions without the threat of lawsuits. REPRESENTATIVE PRAX thanked the bill sponsor for agreeing to personally call one of his constituents who had questions about the bill. 3:36:07 PM CO-CHAIR ZULKOSKY moved to report CSSB 65(JUD), as amended, out of committee with individual recommendations and the accompanying [zero] fiscal note. REPRESENTATIVE KURKA stated that he is not going to oppose the bill at this time and probably will support it on the floor as written, but he is concerned about adding a lot of new language in statute. The sponsor has been clear that the intent is not to create a duty of care that wasn't there already, but he questions why a new list is being created that is not somewhere else. He is concerned about the unintended implications of creating this immunity, but the intent of the bill is important. There being no objection, HCS CSSB 65(HSS) was reported out of the House Health and Social Services Standing Committee.