HOUSE FINANCE COMMITTEE APRIL 28, 1998 8:25 A.M. TAPE HFC 98 - 129, Side 1 TAPE HFC 98 - 129, Side 2 TAPE HFC 98 - 130, Side 1 TAPE HFC 98 - 130, Side 2 TAPE HFC 98 - 131, Side 1 CALL TO ORDER Co-Chair Gene Therriault called the House Finance Committee meeting to order at 8:25 a.m. PRESENT Co-Chair Therriault Representative Kohring Representative Davies Representative Martin Representative Davis Representative Moses Representative Foster Representative Mulder Representative Grussendorf Representative Kelly Co-Chair Hanley was absent from the meeting. ALSO PRESENT Representative Mark Hodgins; Senator Mike Miller; Sandy Perry-Provost, Special Assistant, Department of Public Safety; Pete Nakamura, Director, Division of Public Health, Department of Health and Social Services; Amy Skilbred, Juneau; Lisa Blacker, Juneau Coalition for Pro-Choice, Juneau; Caren Robinson, Alaska Women's Lobby, Juneau; Janet Oates, Providence Hospital, Anchorage; Laraine Derr, Alaska State Hospital and Nursing Home Association, Juneau; Kirsten Bomengen, Assistant Attorney General, Department of Law; Beth Kerttula, Juneau. The following testified via the teleconference network: Sue Mason, Attorney Representing Hospitals, Anchorage; Cathy Girard, Anchorage; Steve Williams, Attorney for the Plaintiffs, Anchorage; Robin Smith, League of Women Voters, Anchorage; Pauline Utter, Anchorage; Beth Carlson, Eagle River; Richard Kenmitz, Unitarian University, Fairbanks; James White, Battalion Chief, Anchorage Fire Department, Anchorage; Craig Goodrich, Director, Fire Prevention, Department of Public Safety; Michael McGowan, President Alaska Fire Chiefs, Anchorage; John Shover, Chief, Steese Volunteer Fire Department Fairbanks; John Williams, Former Mayor, City of Kenai; Len Malmquist, Fire Chief, Central Emergency Service, Kenai; Jason Elson, Fire Chief, City of Kenai; Dave Burnnet, Kenai; Kevin Koechlin, Director, Public Safety, Mat-Su Borough; David Tyler, Alaska Fire Chief Association; Dave Baumgartner, North Slope Borough Fire Department, Barrow; Cliff Orme, Executive Director, Valley Hospital Association, Mat-Su. SUMMARY HB 473 "An Act relating to training and certification of fire fighters, fire instructors, and certain emergency responders; and providing for an effective date." CSHB 473 (FIN) was REPORTED out of Committee with "no recommendation" and with a fiscal impact note for the Department of Public Safety. SJR 35 Proposing an amendment to the Constitution of the State of Alaska relating to participation in an abortion. SJR 35 was HELD in Committee for further consideration. SENATE JOINT RESOLUTION NO. 35 Proposing an amendment to the Constitution of the State of Alaska relating to participation in an abortion. SUE MASON, ATTORNEY REPRESENTING HOSPITALS, ANCHORAGE explained that she filed a brief on behalf of the Alaska State Hospital and Nursing Home Association to support the position of Valley Hospital. She expressed concern for the legal rights of hospital clients, which are both religious and nonreligious hospitals. She maintained that under the Valley Hospital case every hospital in Alaska would be considered a quasi-public hospital regardless of whether or not the hospital is a religious facility or owned by a private organization. She expressed concern that the Court does not recognize exceptions for religious hospitals. She read from the Valley Hospital decision regarding monopoly privileges. The Court concluded that monopoly privileges cannot be used by the Valley Hospital Association to limit access to lawful medical procedures for moral or religious reasons. She noted that the Court concluded that the right to abortion is a fundamental right under the Alaska Constitution. The Court noted that since the right is fundamental it cannot be interfered with unless the interference is justified by a compelling state interest. A footnote indicates that religious views can never be found to be a compelling state interest. The Court states in its footnote: "Nothing said in this opinion should be taken to suggest that a quasi-public hospital could have a policy based on the religious tenets of its sponsors which could be a compelling state interest." She stressed that the Courts decisions raises serious concerns on the part of religious hospitals. She maintained that the constitutional amendment was necessary to extend protections to religious organizations and others that object to abortion on ethical or moral grounds, to clarify the law, and to grant a right of choice to those opposed to abortion. She maintained that the legislation would restore the law to the status quo established in 1970 with the Conscience Clause. CATHY GIRARD, ANCHORAGE spoke against SJR 35. She maintained that women should not be limited by the moral values of others. STEVE WILLIAMS, ATTORNEY FOR THE PLAINTIFFS, ANCHORAGE stressed that the question is whether those with views against abortion can be allowed to impose their views on women. He maintained that the Valley Hospital ruling protects individual conscience in respect to abortion. No one would be required to participate in an abortion. Individual rights of conscience would be respected. All that is required of those at the hospital is to respect each woman's constitutional right to make her own decision. He asserted that the ruling would not require Providence Hospital to participate in abortions. Mr. Williams suggested that the legislation should be narrowed to apply to hospitals owned by religious organizations that have a religious belief that opposes abortion. He expressed concern that the legislation would turn assembly and hospital board elections into political debates concerning abortion. He maintained that the legislation would require Alaskan women to go out of the State to obtain legal medical care. ROBIN SMITH, LEAGUE OF WOMEN VOTERS, ANCHORAGE spoke in opposition of the legislation. She stressed that the Alaska Constitution is considered a model constitution. She maintained that the legislation would effectively eliminate second trimester abortions in Alaska. She emphasized that rape victims may have trouble coming forth in the first trimester of a pregnancy. She maintained that the legislation would prevent women from obtaining needed medical care. She questioned if women should be forced to bear children with major birth defects. She estimated that the legislation would result in litigation. PAULINE UTTER, ANCHORAGE spoke in opposition to the legislation. She related a telephone conversation with a woman who was pregnant with a fetus that had no limbs or stomach lining. The woman did not have any money and already had three children. She also received a phone call for assistance from a woman that had three children and stated that she could not afford another child. She emphasized that it is a legal medical procedure. BETH CARLSON, EAGLE RIVER spoke in opposition of SJR 35. She maintained that the legislation is an inappropriate response to a Court case. She maintained that the Court decision does not require that an individual opposed to abortion participate in an abortion. The Court ruled that a publicly funded hospital cannot as a policy matter, restrict acceptable and appropriate medical care. No hospitals would be required to hire additional staff. She emphasized that the decision is the right of the parents. RICHARD KENMITZ, UNITARIAN UNIVERSITY, FAIRBANKS spoke in opposition to SJR 35. He noted that the Unitarian General Assembly believes that abortion is a private and religious choice. The Unitarian General Assembly supports the right to abortion and birth control. He emphasized that the debate on abortion should not be held in hospital boardrooms. Representative Grussendorf observed that a person cannot be forced to participate in an abortion. Representative Grussendorf questioned if the Court indicated that a hospital board could hire based on an individual's willingness to perform an abortion. Mr. Williams stated that the issue was not raised in the case. He observed that it would discriminatory to hire based on an individual's stance on abortion. SJR 35 was HELD in Committee for further consideration. HOUSE BILL NO. 473 "An Act relating to training and certification of fire fighters, fire instructors, and certain emergency responders; and providing for an effective date." REPRESENTATIVE MARC HODGINS, SPONSOR spoke in support of the legislation. He noted that the legislation creates the Alaska Fire Standards Council in the Department of Public Safety. It provides for the selection of officers, meeting schedules, compensation and expenses of the Council and provides that the Council adopt minimum standards for employment and curriculum requirements for fire fighters and fire instructors and their certification. The Council would establish and maintain fire fighter and fire instructor- training programs. He emphasized that certification is optional. The legislation would set goals for fire service areas and fire fighting personnel. The legislation would take affect in the year 2000. The legislation was introduced at the request of the Fire Chiefs Association. He noted that the legislation is tailored after the Police Standard Councils. Representative Grussendorf observed that the Fire Fighter's Association has concerns regarding the legislation. He questioned the impact on volunteer fire fighters. Representative Hodgins stressed that concerns by volunteer fire fighters were addressed in CSHB 473 (JUD). He reiterated that certification would be optional. JAMES WHITE, BATALION CHIEF, ANCHORAGE FIRE DEPARTMENT, ANCHORAGE noted that he is in charge of fire training. He spoke in support of the legislation. He emphasized that the legislation would provide consistent training standards for volunteer and nonvolunteer departments. CRAIG GOODRICH, DIRECTOR, FIRE PREVENTION, DEPARTMENT OF PUBLIC SAFETY spoke in support of the legislation. He expressed concern with the fiscal impact to the Department, but noted that the Department is working with the sponsor to transfer the general fund obligation to designated program receipts. Co-Chair Therriault stated that the program would not fit under the definition of statutory designated program receipt. MICHEAL MCGOWAN, PRESIDENT ALASKA FIRE CHIEFS, ANCHORAGE spoke in support of the legislation. He pointed out that the state of Alaska has a daily fire loss of $85 thousand dollars and a fire fatality about every other week. He emphasized that the legislation would help reduce this record. The legislation would establish a Council that would adopt standards. National standards exist. Local departments need to be in compliance with state and federal Occupational Safety and Health Administration (OSHA) laws. He observed that the Department of Public Safety is concerned that the legislation would put a burden on their general fund dollars. He stressed that the Fire Chiefs Association is not advocating that troopers be reduced to fund the Council. He pointed out that the state of Alaska collects $3 million dollars a year in fire insurance premium packages. Fire prevention and training is funded at approximately $1.8 million dollars. He acknowledged that there is opposition among volunteer fire fighters, but maintained that it is a vocal minority. He stated that the President and the Second Vice President of the Fire Fighters Association have indicated that they support the legislation. Co-Chair Therriault asked if there were discussions regarding a private association to oversee the training. He asked if the Council has to be in state law. He observed that there are differences between the Police Standards Council and the proposed Council. Mr. McGowan stated that there is a national organization that oversees fire-training standards. He pointed out that approximately 225 rural fire departments in Alaska would not be able to meet some of the standards that the National Fire Protection Association would adopt. Representative Grussendorf reiterated that there are concerns by other volunteer departments. He noted that Anchorage and Fairbanks are the only communities where all fire fighters are paid. (Tape Change, HFC 98 - 129, Side 2) Co-Chair Therriault noted that the majority of fire fighters outside of Fairbanks are volunteers. Mr. McGowan stated that he was not aware of any opposition to the current version from volunteer departments near Fairbanks. JOHN SHOVER, CHIEF, STEESE VOLUNTEER FIRE DEPARTMENT FAIRBANKS spoke in support of HB 473. He stated that state standards are long overdue. He stressed that unified standards would met the needs of small rural and large urban fire departments. Training would provide the flexibility for fire fighters to move from one department to another. In response to a question by Co-Chair Therriault, Mr. Shover explained that new persons are provided with Fire Fighting I training. Further advance training is subsequently offered. He stressed that OSHA standards must be met. Representative Davies questioned the difference between standards that would be proposed through the legislation and current standards. Mr. Shover noted that not all departments could certify to the Fire Fighter I and II level. Rural fire departments are not in a position to meet Fire Fighter I and II standards. New standards would accommodate rural departments. JOHN WILLIAMS, FORMER MAYOR, CITY OF KENAI spoke in support of HB 473. He referred to page 3, line 15 and 27. He stressed that these sections alleviate concerns that training would be mandatory. Representative Grussendorf expressed concern that small fire departments would have to travel for training. Mayor Williams observed that the city of Kenai obtained federal, state and private funds for a fire training academy. He noted that scholarships would be available. Educational materials can be sent to rural areas electronically. By the year 2000, every village in the state of Alaska should be able to receive information electronically. LEN MALMQUIST, FIRE CHIEF, CENTRAL EMERGENCY SERVICE, KENAI spoke in support of HB 473. He maintained that the new standards would help volunteer departments to comply with OSHA and national standards. He maintained that the legislation would save lives and reduce property loss. Liability would be reduced. Co-Chair Therriault observed that many departments would not meet national standards. He asked if the legislation would require that all departments be brought up to national standards. Mr. Malmquist emphasized that lacking a state standard that the court would use national standards. He stressed that state standards can take into account Alaskan needs. Co-Chair Therriault referred to page 2, lines 20 - 22. He observed that Council meetings could be held telephonically. JASON ELSON, FIRE CHIEF, CITY OF KENAI spoke in support of the legislation. He observed that Alaska is a large state with different conditions. He observed that fire fighters are one of the last professional entities not required, through certification, to comply with standards. Hairdressers must comply with standards. DAVE BURNNET, KENAI spoke in support of the legislation. He observed that he represents the fire fighters training academy that is being built in Kenai. He maintained that training for fire fighters was better in 1971 then it is today, in Alaska. He stressed that the Council would provide organization. Representative Grussendorf expressed concern that the Fire Fighter's Association has not voiced support for the legislation. Co-Chair Therriault referred to page 2, lines 6 - 8. Representative Hodgins noted that the language was added in the House Judiciary Committee. This provision would provide that two representatives of fire fighters, including at least one fire fighter administrative officer from the Alaska State Fire Fighters Association be included on the Council. KEVIN KOECHLIN, DIRECTOR, PUBLIC SAFETY, MAT-SU BOROUGH spoke in support of the legislation, but noted concerns with the cost of implementation. He observed that recent changes in emergency medical service (EMS) regulations resulted in a 50 percent rise in the cost of EMS classes. No additional money was provided for the additional cost. He stated that once standards are adopted, whether or not they are voluntary, that courts will go to the state adopted standard. Those that do not comply with state standards would have the burden of proving their standard. He emphasized the need to utilize the tax on fire insurance to improve the delivery of fire fighting training in the state of Alaska. DAVID TYLER, FIRE ASSISTANT CHIEF, HOMER VOLUNTEER FIRE DEPARTMENT, ALASKA FIRE CHIEF ASSOCIATION spoke in support of the legislation. He referred to page 2, lines 29 - 31, "establishing minimum training and performance standards for certification of fire services personnel that are consistent with the standards of the National Fire Protection Association or other applicable standards." He emphasized that the purpose of this language is to allow rural departments to be flexible. He observed that it does not make sense to train fire fighters for tall multi-floor buildings if there are no tall multi-floor buildings in the vicinity. He maintained that insurance ratings would not be adversely affected. The intent is to get the Council in place. Standards would not be put in place immediately. He stressed that the President of the Fire Fighter's Association testified in favor of the legislation in the House Judiciary Committee. Representative Davies noted concerns that optional requirements for certification would become de facto requirements. Mr. Tyler stressed that federal requirements exist. Federal standards are not being met. He envisioned the Council as the compliance arm of OSHA. The Council would help departments meet national standards. DAVE BAUMGARTNER, NORTH SLOPE BOROUGH FIRE DEPARTMENT, BARROW spoke in support of the legislation, but expressed concern with the lack of volunteer representation on the Council. He stressed that fire departments vary greatly in their ability to implement standards. He suggested that a significant number of the Council's members should be volunteers or from volunteer fire departments. He also suggested that the State Fire Marshal replace the commissioner of the Department of Public Safety as a member of the Council. Most municipal fire departments are not under police departments. He recounted bitter experiences with the EMS regulations that were passed in recent years. He suggested that 3 or 4 members be volunteers or representatives of volunteer fire departments. Representative Foster noted that all of his 30 villages have volunteer fire departments. He observed that many of his villages lack the means to penetrate ice in order to obtain water for fire fighting. Mayor Willams expressed support of the addition of two volunteer fire fighters on the Council. He suggested that two of the at-large members could be replaced with volunteers. Mr. Malmquist clarified that the Council would develop training packages that would be delivered to local communities for training in the community. There persons would not have to be sent to the academy. Co-Chair Therriault pointed out that the fiscal note is self-funding. No general fund monies would be used. (Tape Change, HFC 98 - 130, Side 1) Members were provided with Amendments 1 - 5 (copies on file). Representative Hodgins spoke in support of Amendments 1, 3, 4 and 5. He expressed concern with Amendment 2. Amendment 2 would replace the commissioner of the Department of Public Safety with the state fire marshal. He stressed that as long as the Council is in the Department of Public Safety and there is a possibility of funding from the department that the commissioner should be on the Council. Representative Davies and Co-Chair Therriault stated that they would offer additional amendments when the Committee reconvened. Representative Davies expressed support for two of the public members to be volunteer fire fighters; one from a small community and one from a large community. Co- Chair Therriault stated that he would suggest the addition of language encouraging the Council to meet telephonically to reduce costs. RECESSED/RECONVENED The House Finance Committee recessed at 10:00 a.m. and reconvened at 2:05 p.m. The Committee continued work on HB 473. Representative Grussendorf MOVED to ADOPT Amendment 1 for HB 473. Amendment 1 would amend section 1 on page 2, line 3 and page 2, lines 6 - 9: (1) two [four] chief administrative officers or fire chiefs of local government; (3) four [two] representatives of fire fighters, including at least one fire fighter administrative officer from the Alaska State Fire Fighters Association; a person appointed under this paragraph may not, while serving on the council, be a fire chief; and There being NO OBJECTION, it was so ordered. Representative Grussendorf MOVED to ADOPT Amendment 2 (copy on file). Amendment 2 would replace "commissioner of public safety" with "state fire marshal." He spoke in support of the amendment. He emphasized that all the fire departments are registered with the fire marshal's office. He emphasized that the state fire marshal understands fire fighting programs and training. Representative Hodgins spoke against the amendment. He observed that the commissioner of the Department of Public Safety could appoint the state fire marshal as his designee. He reiterated that possible funding would come through the Department of Public Safety. Representative Martin spoke in support of the amendment. He noted that the state fire marshal has more to do with the handling of emergency services. A roll call vote was taken on the motion. IN FAVOR: Martin, Moses, Davies, Grussendorf, Foster OPPOSED: Kohring, Kelly, and Therriault Co-Chair Hanley and Representative Mulder were absent from the vote. The MOTION PASSED (5-3). Representative Grussendorf MOVED to ADOPT Amendment 3 (copy on file). The amendment would provide that only one person could be appointed from a department that consists entirely of paid employees. Representative Hodgins noted that the amendment would only apply to Kenai and Fairbanks. There being NO OBJECTION, it was so ordered. Amendment 4 was WITHDRAWN. Representative Grussendorf MOVED to ADOPT Amendment 5 (copy on file). Amendment 5 would delete on page 3, lines 20 - 25: "investigate when there is reason to believe that a person or fire services training program that is certified or claiming to be certified under this section does not meet the minimum training or performance standards adopted by the council; in connection with an investigation under this paragraph, the council may subpoena persons, books, records, or documents related to the investigation and require answers in writing under oath to questions asked by the council or the administrator." Representative Grussendorf noted that fire chiefs feel that this is their purview. Representative Hodgins stated that if there is a need for investigation powers that the statutes could be amended at a later date. Co-Chair Therriault anticipated that additional statutory authority would be needed in the future. Representative Grussendorf pointed out that the amendment would alleviate concerns by volunteer organizations. There being NO OBJECTION, Amendment 5 was adopted. Representative Davies amended Amendment 6 to amend: Page 2, line 3: (1) three [FOUR] representatives of fire fighters; Page 2, following line 5, insert and renumber sections accordingly: (3) the commissioner of the Department of Public Safety or his designee; (4) two volunteer fire fighters, one from a community with a population of 2,500 or less and one from a community which a population greater than 2,500; Page 2, line 10 is amended to read as follows: (6) [(4)] two [FOUR] members of the public at large with at least one [TWO] member from a community [COMMUNITY] with a population of 2,500 or less. Representative Davies explained that the amendment would result in one additional volunteer then had been previously adopted through amendments. In addition, the commissioner of the Department of Public Safety would be added. The state fire marshal was previously added by Amendment 2. Representative Davies spoke in support of having both the commissioner of Department of Public Safety and the state fire marshal on the Council. Co-Chair Therriault questioned if it is necessary to have both the commissioners of the Department of Public Safety and the state fire marshal on the Council. Representative Davies MOVED to divide the question between subsection (3) and subsection (4). There being NO OBJECTION, it was so ordered. Representative Davies MOVED to ADOPT Amendment 6A: Page 2, line 3: (1) three [FOUR] representatives of fire fighters; Page 2, following line 5, insert and renumber sections accordingly: (3) the commissioner of the Department of Public Safety or his designee; A roll call vote was taken on the motion. IN FAVOR: Moses, Davies, Grussendorf OPPOSED: Martin, Mulder, Davis, Foster, Kelly, Kohring, Therriault Co-Chair Hanley was absent from the vote. The MOTION FAILED (3-7). Representative Davies MOVED to ADOPT Amendment 6B: (4) two volunteer fire fighters, one from a community with a population of 2,500 or less and one from a community which a population greater than 2,500; (6) [(4)] two [FOUR] members of the public at large with at least one [TWO] member from a community [COMMUNITY] with a population of 2,500 or less. There being NO OBJECTION, it was so ordered. Co-Chair Therriault MOVED to ADOPT Amendment 7. The amendment would add, "the Council is encouraged to meet electronically." He explained that the amendment would allow the use of whatever electronic media is available. There being NO OBJECTION, it was so ordered. Co-Chair Therriault observed that the fiscal note needs to be amended to reflect that the program does not meet the definition of statutory designated program receipts. In response to a question by Representative Martin, Co-Chair Therriault explained that the commission is able to charge a fee for certification. Representative Hodgins stressed that the intent is that there will be no fiscal impact until the year 2001. Representative Martin expressed concern that the Council would interfere with operations of the training program in Anchorage. Representative Hodgins assured him that training would always be needed. Representative Davis added that there would be an additional cost for training at any facility due to the cost of certification. He spoke in support of the statutory designated program receipt fund source. He observed that the definition of statutory designated program receipt is narrow and expressed a desire to see it expanded. He pointed out that the Department of Public Safety's budget would be impacted by the legislation. Co-Chair Therriault summarized that the problem is that the program does not fit under the current definition. Co-Chair Therriault MOVED to ADOPT a House Finance Committee fiscal noted with a fund source change to general fund program receipts. There being NO OBJECTION, it was so ordered. Representative Mulder MOVED to report CSHB 473 (FIN) out of Committee with the accompanying fiscal note. Representative Davies questioned if the effective date should be changed. Representative Hodgins stated that the delayed effective date was included to allow time to consider standards and notify departments. Co-Chair Therriault observed that moving the effective date up a year would change the fiscal note. He pointed out that the program was not budgeted. SANDY PERRY-PROVOST, SPECIAL ASSISTANT, DEPARTMENT OF PUBLIC SAFETY stated that the fiscal note would be zero in the years 1999 and 2000. She observed that an earlier effective date would require funding for the year 2000. Further discussion occurred regarding the effective date. Representative Davies stressed that the majority of fire fighters are not aware of the legislation. He spoke in support of delayed implementation of the standards. He suggested a staggered effective date. Co-Chair Therriault pointed out that there is no mechanism to pay for the Council at an earlier date. Representative Hodgins stated that the intent is that the Council be set up by statute so that they can begin working for the best solution. Representative Mulder reiterated the motion to report CSHB 473 (FIN) out of Committee with the accompanying fiscal note. There being NO OBJECTION, it was so ordered. CSHB 473 (FIN) was REPORTED out of Committee with "no recommendation" and with a House Finance Committee for the Department of Public Safety. SENATE JOINT RESOLUTION NO. 35 Proposing an amendment to the Constitution of the State of Alaska relating to participation in an abortion. SENATOR MIKE MILLER, SPONSOR spoke in support of SJR 35. He reviewed AS 18.16.010(b): "Nothing in this section requires a hospital or person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section." He noted that this statute was the "law of the land" for 27 years. He maintained that the Alaska Supreme Court's Valley Hospital Association decision essentially struck down that law. He noted that the Court used a three-prong test in determining that Valley Hospital is a quasi-public institution. All hospitals with over $1 million dollars in expenditures must have a certificate of need. Secondly, a hospital would be a quasi- public institution if public funds or lands were used in its construction. All hospitals in Alaska utilized some public funding. The third test was that 25 percent of their funding had to come from public dollars, Medicaid or Medicare. All hospitals in Alaska meet the three requirements and are therefore quasi-public institutions. A quasi-public institution can only limit elective abortions for a compelling state interest. He observed that the Court stated in its footnote that a religious affiliation is not a compelling state interest. He emphasized that the legislation would return the status quo. He maintained that the debate on abortion has occurred in hospital boardrooms for the past 27 years. He observed that 97 percent of abortions are performed in clinics. He noted that all Alaskan hospitals offer abortions to save the life of the mother and all but Providence Hospital offer abortions in the case of rape and incest. Representative Davies disagreed that the legislation would only apply to elective abortions. Senator Miller acknowledged that the constitutional amendment would not distinguish between elective and other abortions. He emphasized that the amendment does not prevent abortions. (Tape Change, HFC 98 - 130, Side 2) Senator Miller argued that the amendment would not change current medical practices regarding abortions for the welfare of the mother. Representative Davies questioned why a facility that receives public funds should be allowed to refuse a legal medical practice. Senator Miller stressed that all Alaskan hospitals would be quasi-public institutions. He countered that the Congress of the United States prohibits the use of public funds for abortions. Representative Martin expressed support for the legislation. Representative Davies maintained that the purpose of the Court's footnote is to clarify that public institutions cannot use a religious rationale for choosing to offer one procedure or another. CLIFF ORME, EXECUTIVE DIRECTOR, VALLEY HOSPITAL ASSOCITATION, MAT-SU testified in support of the legislation. He maintained that the Association's Board is representative of the community's composition and belief. PETE NAKAMURA, DIRECTOR, DIVISION OF PUBLIC HEALTH, DEPARTMENT OF HEALTH AND SOCIAL SERVICES testified in opposition to SJR 35. He noted that most discussions concerning abortion have been based on individual or religious convictions. Most discussions have not centered on the public health impact of proposed actions. He observed that few abortions are performed in hospitals. First trimester abortions performed in hospitals generally occur to protect the health of the mother. There are few second trimester abortions in Alaska. He observed that second trimester abortions generally occur due to significant genetic abnormalities. He was unaware of any third trimester abortions. He noted that the outcome of SJR 35 could be that these abortions are not done in the state of Alaska. He emphasized that many women do not have the means to leave the state to obtain an abortion. Those that are less able would be hurt the most. Access to abortion services of all types could be significantly affected. He noted that there could be one managed care organization in the state of Alaska. He expressed concern that abortions could be eliminated by the policy of a managed care provider. Representative Davies questioned if the legislation differs between elective and non-elective abortions. Mr. Nakamura acknowledged that the lack of a definition could lead to problems. Theoretically, an individual could be denied necessary medical care under the definition. AMY SKILBRED, JUNEAU spoke in opposition to SJR 35. She asserted that a constitutional amendment is not needed. Under the Court's decision no one who opposes abortions is forced to participate in an abortion. No hospital is forced to hire additional staff or medical personnel to provide abortions. No public hospital can enforce a policy of prohibiting legal abortions if there are doctors, staff or medical personnel willing to perform them. She emphasized that the Constitution should not be amended without a compelling state interest. She asserted that the proposed amendment is a matter of conscience, belief and religion. She stressed that it is not a matter of public policy, medical expertise, safety, economic policy or public welfare. She stressed that the focus should be on preventing unwanted pregnancies. LISA BLACKER, JUNEAU COALITION FOR PRO-CHOICE, JUNEAU spoke in opposition to SJR 35. She observed that a woman's right to make reproductive choices is protected under the Alaska Constitution. A hospital board, charged with overseeing the financial health of the hospital cannot restrict a woman's constitutional right for reasons that have nothing to do with medical practices. She maintained that a quasi-public hospital belongs to the whole community. She agreed that individual hospital staff should not be made to participate in abortion procedures against their will. She asserted that the sponsors of SJR 35 are attempting to get around a Supreme Court decision that they do not like. She emphasized that the Alaskan Constitution was carefully crafted to protect the rights and freedoms of all Alaskans. CAREN ROBINSON, ALASKA WOMEN'S LOBBY, JUNEAU spoke in opposition to SJR 35. She stressed that medical decisions between a woman and her physician are sacred and should not be subject to a veto by the physician's employer. She emphasized that hospital board appointments are already difficult without bringing in the issue of abortion. JANET OATES, DIRECTOR, GOVERNEMNT RELATIONS, PROVIDENCE HOSPITAL, ANCHORAGE spoke in support of SJR 35. She maintained that the legislation provides the right to choose not to do elective abortions in their facility. She observed that the legislation places the language and the intent of the 1970 abortion statute into the Constitution. She observed that the hospital is a quasi-public facility. She expressed concern with the Court's footnote indicating that religious tenets may not be accepted as a compelling reason for choosing not to perform abortions. She maintained that the legislation would not change the status quo. Hospitals would be allowed not to do abortions due to religious beliefs or reasons of conscience. Women would be allowed to receive elective abortions in clinics. Medically necessary and emergency abortions would continue when a woman's life is at risk. Representative Grussendorf noted that no hospital personnel would be forced to participate in an abortion. He questioned if personnel could be sanctioned for performing an abortion. Ms. Oates explained that, if personnel felt that an abortion was necessary, the Ethics Committee, which is on 24-hour call, would provide advise. Representative Grussendorf questioned what would happen if an employee performed an abortion prior to action by the Ethics Committee. Ms. Oates stated that there would be a problem. She did not know of anyone who had been terminated for performing an abortion. In response to a question by Representative Davis, Ms. Oates clarified that supporters of the amendment are talking about elective abortions. In response to a question by Representative Davies, Ms. Oates noted that Providence Hospital does perform abortions in life threatening situations. She stated that she would not object to clarifying that the legislation pertains to elective abortions. Representative Grussendorf questioned if the Ethics Committee would refer a patient who wished to obtain an abortion to another physician or facility. Ms. Oates noted that there are a number of health care services that are not available in the state of Alaska. She clarified that the Ethics Committee would also be concerned with the viability of the fetus. Representative Davies questioned if a receptionist could refuse to check in a person that is obtaining a therapeutic abortion. Ms. Oates interpreted "accommodating" to include direct and indirect personnel. Representative Davies questioned if the bookkeeper could refuse to participate. Ms. Oates thought that it would stretch to include the bookkeeper under indirect personnel, but acknowledged that it was possible. LARAINE DERR, ALASKA STATE HOSPITAL AND NURSING HOME ASSOCIATION, JUNEAU spoke in support of SJR 35. The Board voted to support the amendment by a majority of the members. She stated that the Board primarily discussed direct involvement of personnel. She did not recall discussion regarding public versus private facilities. She observed that all hospitals in the State are public with the exception of Providence Hospital. She noted that the Association favors limitations to abortion. (Tape Change, HFC 98 -131, Side 1) Representative Davies observed that the Fairbanks Memorial Hospital's Executive Committee unanimously opposes the legislation. He emphasized that there is a lack of unanimity on the issue. Ms. Oates noted that the vote to support the legislation was not close. KIRSTEN BOMENGEN, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LAW discussed legal issues relating to the legislation. She observed that the legislation could eliminate the possibility for women to have safe abortions in the state of Alaska. She noted that it would be difficult to narrow the constitutional language without the addition of limiting language. She stressed that it would not be possible to add an outright ban on abortions in the Constitution. She stressed that if the amendment results in a virtual ban on abortions in portions of the State, it could be found to violate the right to privacy, because of its application and effect. Under the Planned Parenthood versus Casey decision, a substantial obstacle cannot be placed in the way of a woman who seeks abortion. She noted that her comments refer only to public facilities. There is no principle in law that would require a private facility to offer abortion services. The Emergency Medical Treatment and Labor Act requires that when an individual seeks treatment in an emergency room a hospital must provide appropriate medical screening and stabilize the patient. A patient cannot be transferred until their medical condition is stabilized. There are civil penalties for physicians and hospitals that fail to meet emergency requirements. She observed that the amendment could cause a dilemma with the need for emergency care. She pointed out that a liability could occur in hospitals if staff walks off the job or a patient is turned away. She expressed concern with the use of "accommodation". She noted that the amendment includes indirect medical care. She referred to testimony by Ms. Mason and questioned if the intent of the legislation is to allow a religious facility to limit access to procedures for moral or religious reasons. She emphasized that such intent would run afoul of constitutional clauses. She stated that government entities are not allowed to premise their delivery of services on religious reasons. She asserted that the amendment would thrust hospital boards into the arena of deciding by a simple majority whether individuals will be able to receive lawful medical services and allow decisions to be made for non-medical reasons. She observed that proponents have claimed that the amendment would restore the status quo established by the 1970 statute. She pointed out that the 1970 statute predated Roe vs. Wade, which was established in 1973 and elaborated on in 1992. A 1978 Attorney General's opinion established that the law could apply to public institutions. Facilities were advised not to rely on the statute to refuse to perform abortions. She maintained that the amendment would create an elevated constitutional right as opposed to the statutory right. She stressed that the amendment could be improved by removing the reference to public facility and accommodation, and by adding language to allow a response to an emergency to be based on medical premises. She noted that the question is how far the legislation will reach. She questioned if someone admitting a patient would sufficiently involved to be "making that kind of decision." She observed that there would be legal arguments regarding the interpretation of accommodation. She clarified that the legislation would fall beneath federally guaranteed constitutional rights. Representative Grussendorf observed that the hospital board would make the choice. Ms. Bomengen agreed that the decisions would be made on a non-medical basis. Representative Kelly pointed out that the Undue Burden test applies if there is not a specific right to privacy. Ms. Bomengen noted that there is recognition of a privacy right. The federal test is applied under the Planned Parenthood versus Casey test. The state of Alaska has an exclusive privacy clause in its constitution. In response to a question by Representative Martin, Ms. Bomengen reiterated that there was an attorney general's opinion in the early 1970's that stated that the 1970 statute could not be constitutional as applied to public institutions. Public institutions did not "push" on the statute and were therefore not challenged. She stated that the fact that the statute has been on the books has been misleading. There has never been an opinion as applied to individuals. The Valley Hospital decision stated that it did not in anyway mean that individuals would be forced to participate in abortion procedures. Representative Martin noted that the key word is "directly". Ms. Bomengen stressed that there are enough issues that are subject to interpretation to anticipate that there would be legal challenges. Representative Grussendorf questioned what would happen if a person was in an emergency situation due to a botched abortion attempt. Mr. Bomengen stated that there could be some confusion, but that the federal law clearly requires that a patient be stabilized. If a person is in labor the hospital must care for both the mother and child. Any discussion of transfer must make sure that any emergency situation has been resolved. She stressed that the response of a facility under the amendment would be uncertain without additional clarifying language. Representative Grussendorf observed that federal funds would be jeopardized if a person were not cared for in an emergency situation. Representative Kelly expressed his desire to clarify that the legislation addresses "elective" abortion. Representative Davies questioned if clarifying language would reduce litigation. Ms. Bomengen noted that further language clarifying that the amendment does not apply to the broad spectrum of medically indicated abortions would reduce litigation. BETH KERTTULA, JUNEAU spoke in opposition to SJR 35. She stated that it is hard to understand why a publicly funded institution would not be required to meet constitutional requirements, especially when no individual would be required to perform abortions. She maintained that the amendment is broad. She noted that it covers private and public facilities. She supported additional language to limit the legislation to elective abortions. She stressed that the legislation would require women to talk about painful situations, such as rape. She requested that the issue not be "driven down to local boards." SJR 35 was HELD in Committee for further consideration. ADJOURNMENT The meeting adjourned at 4:10 p.m. House Finance Committee 19 4/28/98