SB 348 - RIGHTS OF CONSCIENCE PROTECTION CHAIRMAN TAYLOR announced the next item on the calendar was SB 348, "An Act relating to rights of conscience protection for persons who directly or indirectly provide or perform health care services." He asked Senator Ward to come forward to present SB 348. Number 0343 SENATOR JERRY WARD, Alaska State Legislature, sponsor of SB 348, directed the committee's attention to the proposed committee substitute, Version H, Cook, dated 4/28/98. SENATOR MILLER made a motion to adopt proposed committee substitute, Version H, Cook, dated 4/28/98. There being no objection, that version was before the committee. CHAIRMAN TAYLOR asked Senator Ward to explain the difference between the versions. SENATOR WARD responded the proposed committee substitute "further clarifies the rights of citizens not to have to do anything that would be against their conscience." He said when Roe v. Wade was enacted in 1970 giving women the right to have an abortion in the state of Alaska, a clause was inserted that no individual would be forced to perform these procedures. However, the "privacy law" introduced by Senator Terry Miller in 1972, has been interpreted by some misguided appointed people who believe that right no longer exists. He reiterated that it clearly was never the intent of the legislature or the citizens of the state of Alaska to cause an individual to perform an act that is against their conscience - their moral conscience, not their religious conscience. He noted there was a proposed amendment for consideration by the committee. CHAIRMAN TAYLOR verified the difference between the original version and the proposed committee substitute is the insertion of the word "elective". Number 0363 SENATOR MILLER pointed out this legislation actually tracks Senate Joint Resolution 35, which is currently in the House Rules Committee. He noted an amendment had been made the prior evening in the House Finance Committee which basically inserted the word "elective". Essentially, this legislation helps define "elective" abortion. He further stated if SJR 35 passes, goes before the voters and becomes part of the constitution, there needs to be an enabling statute that defines terms such as "elective." CHAIRMAN TAYLOR inquired about the proposed amendment. SENATOR WARD said the amendment would delete "a reported act of forcible rape" and insert "an act of sexual assault that has been reported to a peace officer" on page 5, line 15. Number 0380 SENATOR MILLER made a motion to adopt Amendment 1. There being no objection, Amendment 1 was adopted. SENATOR ELLIS asked if that means with nonelective abortions, a person's right to conscience will be over-ridden for performance of that procedure in medical facilities? In other words, the House is proposing a distinction in this resolution between elective and nonelective abortions. SENATOR WARD explained that currently every hospital in the state performs abortions when the life of the mother is in jeopardy and every hospital, except Providence Hospital, performs abortions for rape and incest. This bill clarifies that a hospital not wishing to perform elective abortions is not required to perform elective abortions, which has been the law for the part 27 years. It is his belief that even if "elective abortions" was not added into the constitutional amendment, every hospital would continue their current practice; however, he wants to make sure that every hospital provides the current practice of abortions for life of mother, rape and incest. SENATOR ELLIS inquired if nonelective abortions are performed at Providence Hospital. SENATOR WARD said that was correct, when the life of the mother is in jeopardy and every other hospital for rape and incest, also. SENATOR ELLIS asked Senator Ward to address the issue of immunity from liability on page 2, line 17. SENATOR WARD said it states that "an individual is not civilly, criminally, or administratively liable to a person for refusing ...." Number 0425 SENATOR ELLIS said his intent is to bring this up so the committee could give serious consideration to the ramifications of granting immunity. CHAIRMAN TAYLOR agreed it is an important issue and said he is somewhat surprised at some of the issues the committee has granted immunity for recently. This bill seems to fit with the pattern. He stated this legislation certainly provides for an elective process and not to provide for an immunity would not leave the process elective. He added, "If you could elect to refuse -- you can't have that election without some level of coercion if in fact there's a litigation that may be pending or threatened should you fail to participate, so I don't think you could have a piece of legislation like this without some sort of immunity for the decision that is made." RENEE HOWELL, Legislative Administrative Assistant to Senator Lydia Green, Alaska State Legislature, stated the legislation does grant immunity, but it is subject to the provisions of the Emergency Medical Treatment and Active Labor Act (EMTALA). For example, if a person has been admitted to a hospital and a hospital has a policy against the process, the hospital is then required to transfer the person to another hospital. Similarly, if a patient is under the care of a particular physician at the hospital and that physician decides not to do an elective abortion, that physician is required to find another physician. SENATOR ELLIS asked if the hospital refusing to perform the service is financially obligated to transport the patient to another hospital? MS. HOWELL responded only if the patient has been admitted to the hospital for another reason. SENATOR ELLIS said the federal government has laws relating to "anti-dumping" whereby doctors, hospitals and various health facilities are not able to refuse service to people. He inquired if any of the rights being granted in this legislation are in opposition to the federal "anti-dumping" law. MS. HOWELL said this legislation has been carefully drafted to include all the EMTALA regulations. She directed the committee's attention to the section "Federal requirements not affected" on page 4 which specifically lists those related to EMTALA as well as the Medicare and Medicaid requirements. Those requirements are that a patient is to be given advance directive information, living will information and other information up front when being admitted to the hospital. The hospital is not required to participate, but the patient must be given all the information up front. SENATOR ELLIS reiterated that nothing in SB 348 is intended to violate federal law. MS. HOWELL confirmed that. CHAIRMAN TAYLOR thanked Ms. Howell for her comments and requested Dr. Nakamura to come before the committee at this time. PETER NAKAMURA, MD, MPH, Director, Division of Public Health, Department of Health and Social Services, said his testimony on these issues is based on the medical and health impacts of some of the proposed actions. Because facilities are very much a part of this legislation, he had looked into the reason for abortions being done in a hospital. Very often second trimester abortions are performed for a genetic reason and while it may not be a life- threatening issue, but it is a significant issue to the patient. He said those types of issues don't seem to be addressed in SB 348. DR. NAKAMURA further stated he had a problem with some of the wording in this legislation; specifically as it relates to health services. He referred to the language on page 5, line 8, "if done with the intent to deliver the unborn child prematurely to preserve the health of both the pregnant woman and the woman's child." He said there are times when perhaps the child or the mother might be involved, but not both. Dr. Nakamura next directed the committee's attention to the language on line 6, "if done with the intent to save the life of a pregnant woman whose life is endangered by a physical disorder, illness or injury when no other medical procedure would save the life of the mother." He pointed out there are not only physical disorders, but mental disorders which significantly pose a threat to the life of the mother, but those issues would not be covered. With respect to the language "no other medical procedure would save the life of the woman", he said very often there are medical procedures available which are not familiar to all physicians. Number 0515 DR. NAKAMURA said another issue relates to the health care institution which he had commented on when testifying on SJR 35 which was proposed because of a requirement that a public hospital, a hospital that is built with public funds or a hospital supported by public funds must make a service available. He said in this case, it would exclude again all health care institutions. Inasmuch as that is a legal issue, he deferred that issue to the representative from the Department of Law. DR. NAKAMURA expressed concern with the definition provided of "health care institution" in which "entity" includes a hospital, clinic, physician's office, medical school, nursing school, other health care training institution, insurance organization, or financing organization. He said this could potentially eliminate access to abortions totally in the state. As he mentioned when he testified in SJR 35, as health care systems are changing and managed care organizations are assuming the responsibility of health care, there is a potential that not only all hospitals, but other health facilities such as clinics, physician's offices, or other institutions would come under the umbrella of one health care organization. He said he does have great respect for many of the sectarian hospitals, especially Providence Hospital, but if all these institutions happen to come under the purview of one health delivery system and held accountable to their policies, it's very likely that access to abortion services will no longer be available in this state. The individuals harmed would be those who are the most vulnerable and those are individuals who cannot afford to find an option. DR. NAKAMURA referred to line 24 which states, "'service' includes testing, diagnosis, prognosis, research, counseling, therapy, treatment, family planning, referral, prescription, medication, surgery, ...." and said often a testing process is necessary before the type of service is determined. It may be a chemical test, a blood test or an x-ray test. A diagnosis has to take place - prognosis has to be determined before the type of service is decided - before it is concluded that an abortion is the required intervention. He expressed concern with the inclusion of all these services. DR. NAKAMURA concluded, "Ultimately, the end result of an unwanted pregnancy is an unwanted birth and unwanted birth results in a lot of the health and social problems we're dealing with, whether they be the issues of child abuse, whether they be the issues of domestic violence, or the issues of children who grow up with an inability to deal with society stresses. So somewhere along the way, I guess from a health professional and someone responsible for public health, my concern is that we're in danger of losing access to these services." SENATOR MILLER commented that Dr. Nakamura had brought up a lot of interesting points. He asked Dr. Nakamura to clarify the concern expressed with the language on page 5, line 8; specifically "if done with the intent to deliver the unborn child prematurely to preserve the health of both the pregnant woman and the woman's child." DR. NAKAMURA responded that the health of the child may be in danger, but perhaps not the mother or visa versa. The mother may have a condition, such as a bleeding disorder, and her life may be significantly threatened, but the child could very well survive. So by requiring both the pregnant mother and the child to be affected before interceding with a procedure, could put one or the other at risk. SENATOR MILLER reminded Dr. Nakamura this wasn't new language; it's current law. Number 0571 CHAIRMAN TAYLOR asked Dr. Nakamura how he would characterize the medical obligation or medical ethic differentiating between prenatal care and abortion; in other words, could he explain how he equated abortion as medical care. DR. NAKAMURA replied as an individual in public health, he views health care and the outcomes of health care as a significant issue separate from medical care. For example, the adverse outcomes of an abused child or mother is public health. It may not be medical care, but it's definitely public health. CHAIRMAN TAYLOR thanked Dr. Nakamura for his comments and asked Kristen Bomengen to present her testimony at this time. KRISTEN BOMENGEN, Assistant Attorney General, Human Services Section, Department of Law, stated she hadn't had sufficient time to review the draft being discussed by the committee, but TAPE 98-44, SIDE B Number 0001 MS. BOMENGEN continued she would direct her comments as much as possible to the current draft. She said basically, this bill does still pose many legal problems and may present some legal challenges, only some of which would have to be defended by the state in due course; many would fall upon private or other facilities and individuals to pursue legal remedies under these provisions. She said that "health care institution" is defined to include a public institution. As most everyone is aware, the current state of the law is articulated in Valley Hospital which specifically stated that a statutory right for an institution to refuse to participate in an abortion can't outweigh the constitutional right to choose whether to bear a child. There is no change in that status, so this would be unconstitutional in that regard. She further stated public entities are not allowed, under constitutional principles, to limit access to their services based on religious criteria in such a way as to frustrate the exercise of a constitutionally-protected right. MS. BOMENGEN said the liability provisions that appear both in the individual rights and in the institutional rights of conscience appear to provide a certain liability, but are misleading as worded. She had discussed some of the problems that arise with other federal laws at a previous hearing, and it doesn't appear the revisions in the current draft sufficiently address those problems. The wording implies the liability exists to a greater extent than actually exists. She said Sec. 18.17.030(b) states that a person is not liable if they properly object to being required to perform a service; 18.17.040(b) states the institution is shielded from liability for the injuries that may occur because of the policies; and 18.17.060 provides remedies for those who are injured by a violation of the act - which means if required to perform that service or discriminated against in employment perhaps by being asked to - but provides no remedy for individuals injured by the operation of the act if they fall into injury because of refusal to provide health care. She added the federal law provides for civil fines that can be imposed on physicians and on facilities, and tort claims can be made against facilities under the Emergency Medical Treatment Act. She recommended the language in SB 348 be cross- referenced with the federal statutes. CHAIRMAN TAYLOR interjected the state has no authority to immunize from the remedies provided for in federal law. MS. BOMENGEN pointed out the federal Medicare law in the Emergency Medical Treatment Act intends to pre-empt the state law to some extent. SENATOR MILLER expressed amazement that no other Administration had found a problem with a law that's been in effect for the past several years. He agreed that under the decision of the Alaska Supreme Court, this particular statute probably would be found unconstitutional, which is the reason for its conjunction with SJR 35. He asked if Ms. Bomengen agreed that if SJR 35 went on the ballot and was passed, this would be constitutional? MS. BOMENGEN replied she wasn't certain of the answer, but understands that it is intended to be, as indicated by testimony presented. For clarification, she pointed out that problems with that law had been identified 20 years ago when the Attorney General issued an opinion which stated that a law exempting public institutions probably would not withstand a constitutional challenge and public institutions were advised not to rely upon that law in determining what services to offer. SENATOR MILLER commented the broadness of the Supreme Court decision picks up every facility in the state, public or not. He asked if Ms. Bomengen had any comments on at what point does one person's constitutional right supersede another person's? MS. BOMENGEN responded she believes there are mechanisms for balancing religious interests or morally asserted objections. The statute as it current stands, still allows individuals to make objections and there is nothing about the Valley Hospital case or any other case that would lead anyone to believe that that would be overturned. There would be a far more detailed constitutional discussion about how religious objections and moral objections are analyzed. That option is still available; however, to assert religious objections to carrying out a practice as it relates to the area of public institutions and public facilities is somewhat tricky. The Pioneers' Homes run by the state are public institutions and with this legislation directly affecting end-of- life care, it would be improper for the state to adopt a policy that might object to complying with some end-of-life directives. Number 0502 CHAIRMAN TAYLOR asked Ms. Bomengen to point out the provisions in the bill that provide for end-of-life care. MS. BOMENGEN replied the two areas of procedures that are of concern are those that are intended to end the life of an individual or that involve an elective abortion. At a previous hearing, she had raised the issue of federal requirements regarding dvanced directives imposed on all Medicare certified facilities and Medicaid participating facilities relating to living wills, among other things, at the time of admission. She noted that Sec. 18.17.070 would address that issue, but as mentioned previously, she encouraged this be cross-referenced more so the obligations are very clear. CHAIRMAN TAYLOR inquired if that wasn't already covered by existing law. MS. BOMENGEN said one change was reflected in Sec. 18.17.050 which is the requirement that a patient be transferred; however, she was of the opinion there were other places where the entire chapter should be referenced so the layperson would know there is an applicable federal law to help in decision making as well as potential liabilities. Number 0465 MS. BOMENGEN reiterated the state will be confronting this with respect to the Pioneers' Homes. In addition, because this prohibits discrimination in employment, there are employer/employee issues that need to be addressed. She noted there is some language that provides exceptions when a specific type of care is being provided, but she questioned the adequacy of the language. The exception to the prohibition against employment discrimination is in terms that aren't the usual legal terms applied to religious objections or disability related discrimination cases. She suggested the language should be changed. Also, the issue of employment also creates problems in relation to the current parameters in interviewing new employees. Generally, it would not be a practice to inquire into religious beliefs and moral objections, but when a health care facility provides specific services, such as a Pioneer Home, it might be necessary to incorporate that into the interview process which could become tricky. CHAIRMAN TAYLOR illustrated the following scenario for clarification as it relates to end of life procedures or directives under a living will: A resident at one of the state's Pioneer Homes fills out an advance directive instructing that at a certain point the application of various extraordinary techniques is no longer desired; i.e., no life support systems, and personnel at the Pioneers' Home could refuse to abide by the request and insist on the life support systems. MS. BOMENGEN said she was fairly certain there was state law that protects against that, but there could be circumstances in which an employee of the Pioneers' Home would not be willing to participate in that part of the process. Current state law allows individuals to exempt themselves from complying with the terms of a living will; it requires them instead to assure that appropriate transfer of the patient can be achieved either to another facility or to another physician. She stated it would create, at least in the employer/employee arena, the circumstance in which individuals would be invoking their wish to not participate in that step. She believed the state would not issue a policy at a public facility against compliance, but rather ensure there were enough employees on staff willing to comply with the terms. CHAIRMAN TAYLOR said he was concerned that another individual might need to be present to ensure the terms of his living will are enforced at the facility to which the ambulance has taken him. Information he received at a medical association dinner last year indicated that 95 percent of individuals with living wills have those living wills disregarded by the medical facility they are at and spend the last 14 days of their life at a special care center to the tune of $10,000 - $20,000 per day. He said if in fact 95 percent of the living wills are being disregarded, he will not do anything to further enhance that. He further stated Ms. Bomengen's comments indicate that through the passage of this legislation, some additional transfer facility will need to be available to carry out the wishes of individuals with living wills. MS. BOMENGEN replied that it could be an outcome of this legislation; it depends on what principles are invoked by individuals based on their moral or religious objections when it reaches the point of "pulling the plug." She couldn't say with certainty that this legislation has been drafted to allow employers to address adequate staffing to meet the care decisions. SENATOR MILLER shared Chairman Taylor's frustration in terms of living wills not being carried out; however, under this legislation, if an individual having a religious or moral conviction isn't required to carry out or participate in that function, a transfer has to take place or the institution has to find someone who will carry it out. He expressed concern about violating a person's true moral or religious conviction. MS. BOMENGEN agreed that living wills are not always carried out in the desired manner. As this legislation applies to individuals, it does address some of the concerns expressed; however, as it applies to entire facilities, it could certainly create some urgent and inconvenient situations. She further stated, as the legislation is currently written imposing certain obligations on facilities as employers, it may impose a problem in securing adequate staff and it needs to be more clearly articulated to ensure protections for employers who have to assure adequate staff. MS. BOMENGEN further stated there are a couple of other legal problems. She referred to page 2, line 7, and said the inclusion of "pay for" is an anomaly and can be subject to abuse and misuse. She asked the committee to give some serious consideration to the inclusion of this language. If the purpose is to address things like requiring people to deliver services they object to, she advised the phrase "pay for" really creates a collections problem for the facilities apart from the other intent. CHAIRMAN TAYLOR asked, "If the collection issue would be that if a procedure was carried out that violated their moral concerns, they would not have to pay for that procedure or the cost of it being provided? Is that what the 'pay for' is referring to?" MS. BOMENGEN said it's used in the original policy and in the civil rights of conscience that any individual may refuse to pay for the performance of a health care service if it includes a procedure that violates the person's moral or religious conviction; e.g., pain relief medication in end-of-life care. She said she wasn't exactly certain, but the appearance of the words "pay for" are very different and don't appear to be consistent with the provisions of those services listed. SENATOR MILLER cited a hypothetical situation in which a wife decides to get an abortion against the wishes and conviction of her catholic husband, but if financial responsibility is shared by husband and wife, he is required to pay. MS. BOMENGEN pointed out that those moral convictions can arise out of nowhere when a bill is received, so there's a potential for abuse. However, it may be worked out between husband and wife. SENATOR ELLIS asked if SJR 35 addresses the end-of-life, living will issue? SENATOR MILLER replied that it did not. SENATOR ELLIS reflected the statute change being discussed seemed premature until voters are able to vote on SJR 35. If the voters approve SJR 35 and it were to become part of the constitution, this legislation would go beyond that of the constitutional amendment. SENATOR MILLER pointed out there is a living will statute in existence. SENATOR ELLIS observed that part of the right of conscience relating to performance of abortions would be elevated to a constitutional protection; the portion about the end-of-life and living will issues are two matters of conscience to some people that are on different levels. SENATOR MILLER said that asking a person to participate in an end- of-life decision or moral convictions are some of the deepest held convictions that a person has and sometimes the state or society in trying to protect the constitutional rights of one group of people trod over the constitutional rights of another group. Number 0233 SENATOR ELLIS commented that he doesn't look forward to the day when a Pioneers' Home resident with advanced directives or a very specific living will has to be transferred someplace else where their living will can be administered in the way in which it was intended. He commented the constitutional amendment introduced by Senator Miller doesn't address that issue while this legislation does, which is a concern. SENATOR MILLER said he understands the concerns expressed by Senator Ellis. He stated part of it is the screening of hiring process; however, what about the doctor who because of religious beliefs cannot participate. SENATOR ELLIS observed that was interesting and asked if it would be appropriate for the state of Alaska to screen potential employees of a Pioneers' Home based on their religious conviction? CHAIRMAN TAYLOR thanked Ms. Bomengen for her comments and asked Janet Oates to come forward to present her remarks. Number 0200 JANET OATES, Director, Marketing and Government Relations, Providence Health Systems, testified that Providence had supported this legislation because it seemed to provide the "how to" of the constitutional amendments and as Senator Miller pointed out, there may be some remnants left over from one of the other versions of the conscience amendments. She said Ms. Bomengen had pointed out some of the issues regarding the definition of a public facility and the reasons for the concern even at Providence, because under the definitions presented in the Valley Hospital ruling, Providence fits all the definitions. Providence receives public funds under Medicare and Medicaid, falls under the certificate of need, has been granted certificates of need by the state, and the land on which the Alaska Medical Center is built was originally provided by the federal government. MS. OATES referred to the liability question and said some of issues raised by Chairman Taylor are dealt with on page 2; specifically, the institution must notify people of their position and post it publicly; an employee must notify the employer when they feel their conscience will be violated in providing a service. MS. OATES referred to Dr. Nakamura's comments regarding genetic issues in which the situations may not be a life-threatening emergency and said there are some services that are not provided in any hospitals in Alaska, but Providence does provide the service is when the life of the mother is at risk. Those occasions have been so rare that it hasn't been an issue with their employees. She referenced the previous comments on "botched" abortions and said if the fetus is still viable, then the Emergency Medical Treatment and Active Labor Act would go into effect; the patient would be stabilized and then sent to a facility where that service is provided. She pointed out that she didn't know where that service is provided in the state; no Native Indian Health Service hospital or any of the Indian Health Service funded Native health corporations provide this service. In fact, by law they're mandated not to. If the fetus is not viable, she would say it is the life of the mother at risk and the service would be performed. Number 0128 MS. OATES said many of the end-of-life issues deal with the issue of intent. She read from the ethical directives of the Catholic Church: "There are two extremes. On the one hand, an insistence on useless or burdensome technology even when a patient may legitimately wish to forego it and on the other hand, the withdrawal of technology with the intention of causing death." She said for the Providence Health System, it's the word "intent" that's particularly troublesome. There may be a situation when withdrawing from life support is not intended to be death, but rather comfort for the individual. MS. OATES concluded that she does support this legislation as a work in progress. CHAIRMAN TAYLOR asked if there was anyone else wishing to testify on SB 348. SENATOR ELLIS noted a misspelled word on the amendment, which could be corrected by the staff and considered a technical amendment. SENATOR MILLER made a motion to move CSSB 348(JUD) as amended out of the Senate Judiciary Committee with individual recommendations. SENATOR ELLIS objected. CHAIRMAN TAYLOR asked for a roll call vote. Senators Parnell, Pearce, Miller and Taylor voted in favor of moving the bill. Senator Ellis voted against it. Therefore, SB 348 moved from the Senate Judiciary Committee by a vote of 4-1.