HB 149-DRIVER'S LICENSING; MEDICAL CONDITIONS  8:49:40 AM CHAIR LYNN announced that the last order of business was HOUSE BILL NO. 149, "An Act relating to drivers' licenses and to immunity for persons who report persons who have a medical or other condition that may impair the ability to operate a motor vehicle." 8:49:56 AM REPRESENTATIVE ANNA FAIRCLOUGH, Alaska State Legislature, presented HB 149 as sponsor. She related that a couple years ago there was a vehicle collision, which left a boy named Connor in a coma for almost a month. She said this happened along a well-traveled corridor in Anchorage. She said she later learned that the boy was permanently injured, and that he is a friend of her son. Representative Fairclough said the boy's sister came to her and asked what could be done to make the roads safer for everyone. She told the committee of her connection with the family and said this is a personal issue. She said she considered naming the bill, "Conner's Law," but was told some people may not want to bring the legislation forward with a name on it. 8:54:06 AM REPRESENTATIVE FAIRCLOUGH said she looked into current testing practices of the Division of Motor Vehicles (DMV) and was told by the director of the division that doctors will not report patients who should not be driving, because they can get sued. The proposed legislation would require a person applying for a driver's license to disclose if he/she has a condition that would impair his/her ability to drive. It could be a temporary condition, such as a person with seizures who needs to be seizure-free for six months before driving. One goal of the bill would be to have the DMV issue restricted driver's licenses to those people with impairments. The proposed legislation would provide immunity to physicians and other persons who, in good faith, report licensees diagnosed with a condition that may impair his/her ability to drive, and it would provide confidentiality for reporting and is "exempt from disclosure." Furthermore, physicians or persons who make a good faith report would not be liable for civil damages. The bill would not require reporting [by the physicians] but it would be in the best interest of public safety if they do report. REPRESENTATIVE FAIRCLOUGH said the two main issues that need consideration by the committee are whether physicians should be allowed immunity and whether people need to be responsible to their fellow drivers by disclosing any impairment that would restrict their ability to drive. She spoke about the difficulty of family members in working to have another family member's driver's license taken away and the advantage of having a physician determine if the family has a valid concern or not. She said the proposed legislation would include an appeals process. 8:58:33 AM CHAIR LYNN ventured that the proposed legislation is an extension of the already existing requirement of those who need glasses to wear glasses while driving as a condition of their being issued a driver's license. 8:58:50 AM REPRESENTATIVE PETERSEN observed that under HB 149, [Section 1, subsection (b)], the physician "may report". He asked for confirmation that the physician would have the option to disclose. REPRESENTATIVE FAIRCLOUGH confirmed that is correct. She added that the physician would only be held accountable if he/she recklessly fails to make a disclosure. In response to a follow- up question, she said she contacted three medical groups in Alaska and has done outreach. She said there were concerns related to the Health Insurance Portability and Accountability Act (HIPAA) and whether doctors would be protected. She stated, "I believe I've accurately reflected any comments that we've received." 9:00:52 AM REPRESENTATIVE SEATON asked if physicians were specifically asked about the possibility of a Class A misdemeanor. REPRESENTATIVE FAIRCLOUGH answered that the physicians were given the bill, and she offered her understanding that there were no formal comments received from anyone. 9:02:52 AM WHITNEY BREWSTER, Director, Division of Motor Vehicles (DMV), Department of Administration, in response to Representative Seaton, said the division is receiving an increasing number of requests from the public and law enforcement to reexamine a licensed driver. She said unfortunately the division receives few such requests from medical professionals, even though they are often the first to know if there is a condition that would potentially make someone an unsafe driver. She said the division has heard that physicians are reluctant to issue such requests, because "there is no statute affording them immunity from civil or criminal action." MS. BREWSTER said the division needs to know the following: if an individual has a condition that is uncontrollable, either through medication, therapy, surgery, or use of a particular driver device or technique; if the individual's condition is controllable, but he/she is refusing to follow the care [instructions] issued by the health care professionals; and if the extent of the impairment is unknown but potentially significant. She clarified that the division does not want to know everyone's condition, just the ones that have an uncontrollable condition or a controllable condition that is not being controlled. MS. BREWSTER relayed that if the DMV receives notice from the medical community that a driver is not fit, it would cancel the individual's driver's license. That individual could contest that decision. She said the DMV mainly receives notices from law enforcement that the individual may be unfit to drive. In those cases, the DMV sends the individual notice that he/she must come in to the DMV for examination. The individual must come in within 30 days of that notification. If the individual does not comply, then the DMV would send a second notice that [that individual's license] will be cancelled within 15 days and that he/she has the option to request an administrative hearing to contest that decision. 9:06:10 AM MS. BREWSTER said the number of cancellations done by the division per year, averaged over the last six years, is 211. She said the trend is going down, although there are a number of individuals are aging and/or medicated and should not be on the road. She said the division hopes that HB 149 will make the medical community feel more comfortable reporting, since currently only 10 percent of the recommendations received by the division are from the medical community. She pointed out that the notices from law enforcement are most likely to occur after an accident has occurred, and the division would like to prevent those accidents. 9:07:37 AM MS. BREWSTER, in response to the chair, ventured that a patient would not hesitate seeing his/her doctor for fear of finding out he/she has a driving impairment, but she suggested that that question might better be directed to those in the medical community. 9:08:32 AM REPRESENTATIVE FAIRCLOUGH said she thinks that is a valid question, but thinks that people will go to the doctor when in need. She talked about the dangers of putting a motor vehicle in the hands of someone who is in danger of becoming unconscious. She said the bill would create a mechanism for doctors to give important information to the DMV. 9:10:56 AM REPRESENTATIVE SEATON said he supports the concept of the bill, but is looking for unintended consequences. He asked if the division has the same capabilities to respond to a report from a member of the public as it does to report from law enforcement. 9:11:53 AM MS. BREWSTER confirmed that the DMV has the ability to take a report from the public. In that situation, she said, the DMV would let the customer know that he/she has been requested to come in for reexamination within the next 30 days. She reiterated the information regarding appeals. In response to the chair, she said the DMV does not take anonymous reporting; however, further research is done when reporting is received from the public than when it is received from law enforcement. Furthermore, during an administrative hearing, the person accused has the ability to cross examine the accuser. 9:15:52 AM MS. BREWSTER, in response to questions from Representative Seaton, said when the DMV revokes a person's driver's license, the division asks that person to surrender the license; however, it is possible that a person could claim the license was lost and use it only for identification purposes, for example to board an airplane, although the DMV discourages people from doing that. 9:20:04 AM REPRESENTATIVE FAIRCLOUGH asked Ms. Brewster to confirm whether the division would be able to issue state identification to all those whose driver's licenses are revoked. MS. BREWSTER answered yes, but explained that under statute, the cost to each person would be $15 for a state ID. She said statute would have to be changed in order to allow the DMV to waive that fee. She noted that individuals 60 years of age and over are eligible to receive a state ID card at no charge. 9:22:42 AM REPRESENTATIVE GRUENBERG, regarding the medical community, said he sees in Title VIII at least 20 occupations that could come into play under HB 149, including pharmacists, physical therapists, and nurses. He recommended that the bill sponsor look at Title VIII. He suggested there may be issues regarding licensing and ethics. He said another issue is related to the language in Section 1, subsection (d), on page 2, lines 10-11, which read: (d) Reports received under this section are confidential and exempt from disclosure under AS 40.25. REPRESENTATIVE GRUENBERG said this only covers the reports, which could be construed by a court of law to mean that only the report itself is confidential, not the information therein; therefore, the person who made the report could be subpoenaed. Further, there may be question as to whether the testimony is admissible in court, even if the report is not. He mentioned evidentiary privilege. Representative Gruenberg expressed concern about making doctors and other [medical] professional subject to going to jail. He said a Class A Misdemeanor could mean up to year in prison for a doctor. He said he realizes that there is a standard of recklessness involved, but said this issue could cause concern and opposition. He remarked that most doctors run their own business and may have information as to what would be imputable. 9:26:57 AM The committee took an at-ease from 9:27 a.m. to 9:29 a.m. 9:29:20 AM ERLING JOHANSEN, Assistant Attorney General, Labor & State Affairs Section, Civil Division (Anchorage), Department of Law, regarding Representative Gruenberg's comment on Title VIII, cited language on page 1, lines 6-7, which read as follows: (c) A licensee making a good faith report to the Department of Administration under AS 28.15.156 is not subject to discipline under this chapter for that report. MR. JOHANSEN said the concept is there, but he does not know if it is as broad as the number of professions Representative Gruenberg referenced. REPRESENTATIVE GRUENBERG, in response to a question from the sponsor, said the definition of "physicians" does not [cover numerous occupations]; it is specifically defined in AS 08.64. REPRESENTATIVE FAIRCLOUGH clarified that the intent of this legislation is to have "a high bar" - to name physicians as the ones who decide whether or not a person could become unconscious while driving a vehicle. CHAIR LYNN asked, "... If a physician determined a person might become unconscious because of their condition, and they don't report to DMV, ... do they have any liability?" REPRESENTATIVE FAIRCLOUGH answered, "No, the physician may [emphasis on 'may'] report." 9:32:33 AM REPRESENTATIVE GRUENBERG offered his understanding that the immunity seems to cover a person who reports; it does not say whether he/she may be liable for the failure to report. He said someone who has an epileptic seizure or has an attack related to hypoglycemia may cause an accident. Furthermore, a person who has to wear corrective lenses because he/she is legally blind could cause just as great an accident if he/she does not wear the lenses. He recommended that the sponsor consider hypothetical situations "where other people would similarly come into vital information in the (indisc. - coughing) of their profession." He said the issue is to get reporting. He offered an example where someone with a reportable condition has just moved to Alaska and has not yet seen a physician, but has been to a pharmacist. He opined that as first committee of referral, the committee members should be aware of ramifications. 9:35:36 AM REPRESENTATIVE P. WILSON said she thinks the bill is good and needed, but needs further consideration. She related a personal story of her mother with glaucoma getting into an accident, and said she thinks her mother's eye doctor should have been required to report her to the DMV. Representative P. Wilson pointed out that she always drove when she visited her mother; therefore, she was unaware of how bad her mother's condition had become. 9:38:52 AM REPRESENTATIVE KELLER thanked the sponsor for bringing the bill forward; however, he said the proposed legislation reminds him of 1984, by George Orwell. He mentioned HIPAA, said his concern is regarding patient/doctor privilege, and related that he wants to hear from the medical community. He said unless the DMV is given the discretion in each case to make decisions that are between the doctor and the patient, he finds the idea of reexaminations conducted by the DMV problematic. 9:40:37 AM REPRESENTATIVE FAIRCLOUGH relayed that the American Medical Association (AMA) is moving in this direction as it reviews its ethics rules. She indicated that because there are people of all ages that put others in jeopardy while driving, it is necessary to have a medical professional involved. In response to Representative Keller, she said there are large volumes of books containing specific diagnoses that could be put into statute, but she does not believe that those diagnoses belong in statute. She acknowledged that it is difficult to talk about taking away anyone's ability to drive, and she said she understands that this bill could significantly alter people's lives. She said there needs to be a mechanism in place to protect the public. REPRESENTATIVE KELLER said he can see the problem, but questions whether encouraging physician reporting is the best way to address it. He opined that there are many other options, and the best option may involve legislation. He said there is a penalty for driving recklessly. He reiterated his concern about the patient/doctor privilege and making the DMV the entity to make the final determination. 9:45:55 AM REPRESENTATIVE GRUENBERG said it seems that the responsibility should lie with the driver. REPRESENTATIVE FAIRCLOUGH responded that that specification has been made on page 1, [lines 11-14, which read as follows]: (a) A person licensed or applying for a license under this chapter shall disclose if the person has been diagnosed as having a disorder characterized by lapses of consciousness or any other condition that may impair a person's ability to operate a motor vehicle. REPRESENTATIVE GRUENBERG said he thinks that is a good idea, but said he does not want to criminalize the whole state; therefore, he recommended public outreach and education. He questioned whether someone who drives with a condition, "without this appropriate safeguard," would be violating the law. REPRESENTATIVE P. WILSON indicated that creating law to address this issue needs to be done with great care. She noted that Pennsylvania and Oregon have laws in place related to disclosures to the DMV. 9:48:57 AM CHAIR LYNN told the bill sponsor that he would try to hear HB 149 again at the beginning of next session in January, 2012. [HB 149 was held over.]