SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE April 22, 1998 9:08 a.m. MEMBERS PRESENT Senator Gary Wilken, Chairman Senator Loren Leman, Vice-Chairman Senator Lyda Green Senator Jerry Ward Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 353(HES) am "An Act relating to adoption by reference in regulations; and providing for an effective date." HEARD AND HELD HOUSE BILL NO. 367 am "An Act relating to part-time public school students; and providing for an effective date." PASSED CSSB 367 OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION HB 353 - No previous Senate action. HB 367- See HESS minutes dated 4/17/98. WITNESS REGISTER John Cyr, President National Education Association of Alaska (NEAA) 114 Second Street Juneau, Alaska 99801 POSITION STATEMENT: Opposed to HB 367 Representative Fred Dyson Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of HB 367 Lisa Torkelson Aide to Representative Dyson Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Answered questions on HB 367 Bruce Campbell Aide to Representative Pete Kelly Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Testified for the sponsor of HB 353 Paul Grossi Division of Workers' Compensation Department of Labor P.O. Box 25512 Juneau, Alaska 99802-5512 POSITION STATEMENT: Supports HB 353 with a technical change John B. Chenoweth Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Answered questions regarding HB 353 ACTION NARRATIVE TAPE 98-37, SIDE A Number 001 CHAIRMAN WILKEN called the Senate Health, Education and Social Services (HESS) Committee to order at 9:08 a.m. Present were Senators Leman, Green and Chairman Wilken. The first order of business before the committee was HB 367. HB 367 - PART-TIME PUBLIC SCHOOL STUDENT ENROLLMENT CHAIRMAN WILKEN announced a committee substitute to HB 367 was prepared. SENATOR LEMAN moved to adopt SCSHB 367(HES), version B, as the working document before the committee. CHAIRMAN WILKEN explained language was added on page 1, line 14, and page 2, lines 1-3, to address the issue of double counting. The new language will prevent a student from being counted as more than one FTE. This change has the approval of DOE and Representative Dyson, the bill sponsor. There being no objection to the adoption of SCSHB 367(HES), CHAIRMAN WILKEN noted the motion carried. Number 046 JOHN CYR, President of the National Education Association - Alaska (NEAA), made the following comments about SCSHB 367(HES). When this issue first surfaced last year, and a similar bill passed the Legislature, NEA took no position on the bill. NEA does not oppose private school students being allowed to attend public schools, as long as the money follows those students. The problem NEA has with this bill is the language on page 9 that states, "... or require that part-time students be enrolled after full-time student enrollment is completed." Mr. Cyr explained he taught advanced placement U.S. history, which was a very competitive class with a waiting list, at Wasilla High School. The class could not accommodate all of the interested full-time students. That same situation is occurring in a number of public high schools in Alaska in honors and advanced placement classes. He thought it is only fair that full-time students get first shot at those classes, however, SCSHB 367(HES) gives a preference to students who attend part-time. If that provision of the bill can be changed, NEA has no problem with the bill. CHAIRMAN WILKEN asked Mr. Cyr if the NEAA position paper he submitted addresses that issue. MR. CYR said the position paper does. REPRESENTATIVE DYSON joined committee members at the table. SENATOR LEMAN referred to page 2 of the NEAA position paper, and specifically to the section which read: "This development causes us a concern over the break in the law on separation of church and state. Article VII, Section 1, of our Constitution provides, 'No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.'" Senator Leman asked Mr. Cyr if he was defining that provision of the Constitution as a law pertaining to the separation of church and state. MR. CYR replied, "I believe when it says, 'No money should be paid from public funds for the direct benefit of any religious or other private educational institution,' that does have to do with the separation of church and state. It seems to me if we provide the kind of benefit that we're talking about, and what it does is it enhances the position of private schools. They don't have to provide those kinds of honors' courses that they would otherwise have to provide for their students. They can be taken in the public school. We see that as a problem." Number 119 SENATOR LEMAN commented he recently watched the finals basketball game in the 3A championship between Eielson and Anchorage Christian School. That game mutually benefitted both public and private school students. He stated that mixture of students occurs in other activities as well and that Alaska is well served when those types of activities occur. MR. CYR stated NEAA is supportive of private schools in that aspect and it believes that parents should have the right to send their child to private school, if they wish to do so. NEAA does not believe it is appropriate for the state to provide benefits for private school students that may supplant students in the public schools. He emphasized if the classroom space was available, no one would oppose this issue but public school students who compete to get into classes might be turned away because a part-time student wants to enroll. SENATOR LEMAN stated the net result in Mr. Cyr's example would be the same, provided the part-time student met the academic rigor. MR. CYR said we do not know that. If the state wants to begin to track and hold private schools responsible for curriculum and grading decisions in the same way that public schools are held responsible, then private schools will no longer be private. Public school administrators do not know what an "A" or a "B" grade means in another school. He added the process to get into some of the upper level honors classes in public schools begins early. SENATOR LEMAN pointed out that there are 94 part-time students in the Anchorage School District out of 48,000, so the bill will apply to a fairly small number of students. He believes we can advance the level of education in Alaska by making language, chemistry, or other classes available. If a student became a chemical engineer and Alaska played a part in making that possible by providing classes to part-time students, that would be consistent with the objectives of providing for an education system in Alaska. MR. CYR commented that this issue is about the problems some parents have had with the Anchorage School District. He cautioned that the approach taken in HB 367 to remedy that problem is similar to using nuclear weapons to drive tacks. Number 219 REPRESENTATIVE DYSON informed committee members a few other Alaska school districts have spotty performance records on accepting all students, but the Anchorage School District makes a policy out of sending part-time students to the back of the line. The Anchorage School District accepts tax money paid by private school students' parents. The argument that the U.S. Constitution is threatened by a nine year old student who attends a public school math class is ludicrous on its face. The U.S. Constitution has survived a few hundred years of very serious challenges. As discussed last week, a school district has every right to apply equally, to part and full-time students, the same prerequisites and preregistration requirements for class enrollment. The Anchorage School District will not even allow students enrolled in the state correspondence course to enroll in classes, under the threat that their entry would threaten constitutional rights. He noted that Mr. Cyr's concern that classes have waiting lists is valid, however that issue is separate. School districts need to use whatever resources and criteria they have available to decide when to add classes. Representative Dyson said he takes extreme exception to the argument that allowing part-time students to take classes in public schools will weaken both systems. Nothing could be more to the contrary; this approach should strengthen both systems. REPRESENTATIVE DYSON noted from testimony on last year's bill, he learned that several public schools were using the part-time status as a way to transition students back into school who had been thrown out for behavioral problems. Those schools found part-time attendance to be a marvelous transition tool. They also found that students from correspondence, home schools, or private schools were, almost without exception, a real asset to the educational experience of students in the public school system, and he hopes it was vice versa. Representative Dyson said NEAA's position is the exact reason why this bill is necessary: the Alaska Constitution prohibits discrimination against any students. To tell one group it cannot participate in public schools seems contrary to the Constitution. Well educated students are a major resource for the future of our state. CHAIRMAN WILKEN welcomed Senators Ellis and Ward. Number 282 SENATOR GREEN noted part of NEAA's position paper does not address the bill. She also stated, regarding the argument that a "B" grade may not be the equivalent in different schools, that same argument could be made among public high schools within the same, or different, districts. She added that even within school districts, it has been suggested that policies differ as to how children are allowed to enroll in courses and to participate. CHAIRMAN WILKEN explained the changes made in the committee substitute to Senators Ellis and Ward. SENATOR GREEN asked if the part-time students were actually being counted as more than one FTE by DOE. CHAIRMAN WILKEN answered he did not think so, but the potential to do so existed. SENATOR GREEN moved to delete lines 11 through 13 on page 1. SENATOR ELLIS objected for the purpose of an explanation. Number 309 SENATOR GREEN stated that the deletion of those lines will actually have no effect because it is already understood that the bill only applies to academic subjects. That language was added by a committee to restate that position. SENATOR ELLIS commented if another committee explicitly added that language in, it must have thought it to be important. REPRESENTATIVE DYSON clarified that the amendment was added on the House floor, by Representative Kubina, to ensure that the bill would remain neutral on extracurricular activities. Number 326 MS. TORKELSON clarified that Representative Kubina asked if a governing body could be considered the Alaska School Activities Association (ASAA). After researching the issue, she found that a governing body, according to statute, can only mean the school board. The ASAA, since 1994 or 1995, has been a separate non- profit entity; it has no relation to DOE anymore. She gave this information to Representative Kubina and to Representative Porter who requested that the language be added for the purpose of clarification. SENATOR ELLIS felt that language is comfort language that could prevent litigation in the future. However, he stated he would not maintain his objection if the committee wants to remove it. CHAIRMAN WILKEN stated he thinks the exclusion of those three lines creates a firestorm in the bill and that he would be voting against the amendment. Number 355 REPRESENTATIVE DYSON agreed with Chairman Wilken that leaving the language in tends to quiet down people who get alarmed about the bill and its inclusion does not change the effect of the bill. The committee took a brief at-ease. The motion to delete lines 11-13 on page 1 carried with Senators Leman, Green, and Ward voting for the motion and Senator Ellis and Chairman Wilken voting against it. SENATOR LEMAN moved to report SCSHB 367(HES) out of committee with individual recommendations and a zero fiscal note. SENATOR ELLIS objected. The motion carried with Senators Green, Ward, Leman and Chairman Wilken voting for the motion, and Senator Ellis voting against it. HB 353-ADOPTION BY REFERENCE IN REGULATIONS BRUCE CAMPBELL, staff to Representative Pete Kelly, sponsor of HB 353, made the following remarks. HB 353 will allow a state agency, when it adopts a regulation that incorporates a document by reference, to incorporate future amended versions of that document with the condition that the document is explicitly authorized by statute. HB 353 provides statutory authorization to incorporate updated versions of any of the items listed on pages 2-3, as long as the appropriate notification requirements are met. Notification requirements include publication in the Administrative Journal, as well as notification of other interested individuals, and the regulations attorney in the Department of Law. HB 353 is a paperwork reduction measure. Currently, state agencies must distribute complete sets of regulations being re-promulgated for the purpose of incorporating an updated document. If HB 353 is enacted, state agencies will be able to notice only the issue being updated. HB 353 contains a specific list of codes which are updated by various agencies each year; most of the items on the list for DHSS are the numeric codes used to identify medical treatments and prescriptions for insurance and billing purposes. CHAIRMAN WILKEN asked Mr. Campbell to comment on the amendments before the committee. MR. CAMPBELL stated Representative Kelly supports the three amendments. CHAIRMAN WILKEN clarified that the amendment labeled Lauterbach A.1 is Amendment #1 by Senator Leman; A.2 is Amendment #2, and the conceptual amendment will be Amendment #3. SENATOR LEMAN moved to adopt Amendment #1. MR. CAMPBELL deferred to a representative from the Department of Labor to comment on Amendment #1. PAUL GROSSI, Director of the Division of Workers' Compensation in the Department of Labor (DOL), made the following comments. The intent of Amendment #1 is to allow the adoption, in regulation, by reference of future editions of documents presently used. Amendment #1 refers to the United States Department of Labor's "Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles," which describes both the physical and mental demands of an occupation so that the Division of Workers' Compensation can determine whether an injured worker is capable of performing those duties. Allowing DOL to use updated editions of that document requires a statutory change. Mr. Grossi cautioned the amendment may need a technical change to ensure that all future references could be adopted because DOL changes the names of the documents it uses. The amendment refers to the United States Department of Labor's "Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles." That is the current publication available, however DOL is not using that edition, it uses the 1981 edition. He suggested using language that refers to future amended versions, editions, revisions, or replacements. DOL is currently looking at using a computerized system called "ONET" in the future. That program will not be a revision of the Revised Dictionary, it will be an electronic replacement. DOL is in support of this legislation but the amendment may need to be revised. Number 461 MR. CAMPBELL noted Jack Chenoweth, the bill drafter, was present. CHAIRMAN WILKEN asked if that technical change could be worked out among the interested parties and brought back to the committee. MR. CAMPBELL noted the bill was provided to the Department of Law which created the draft version from it. The difference in the committee substitute is that the Department of Law suggested that a set of rules be created in the first section of the bill that occur within the Administrative Procedures Act. Amendment #1 provides for the specificity required for that process in the Department of Labor's actual code. CHAIRMAN WILKEN asked what committee the bill is next referred to. SENATOR GREEN replied the Senate State Affairs Committee. CHAIRMAN WILKEN thought this issue might be appropriately addressed by the Senate Judiciary Committee. He asked if Amendment #1 needs to be amended. JACK CHENOWETH, Assistant Attorney General, stated Mr. Grossi's concern is answered on page 2 of the existing bill. Lines 15-21 take into consideration the possibility that a document that is identified with a very specific title may have that title changed. The language on those lines reads: (d) A change in the form, format, or title in a future amended or revised version of a document or material incorporated by reference in a regulation under this section does not affect the validity of the regulation ...." The language goes on to say the regulation attorney shall correct the title in the Alaska Administrative Code under the editorial authority. If the title cited in the language of Amendment #1 should change, and another document that serves the same purpose is substituted, the regulation attorney would simply update that in the regulation so that DOL could continue to make use of the most recent version of the document as the basis of whatever applicability it may have. Number 491 SENATOR GREEN questioned whether that would be true even if the document precedes the revised dictionary of occupation titles. MR. CHENOWETH said it would not. The documents referenced in the bill would act as the baseline reference. MR. CAMPBELL stated the document adopted by DOL regulation is the "Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles." DOL would like to be using the current version which has not been adopted by regulation. MR. GROSSI said that was incorrect. The edition that was adopted by statute is not the revised edition, it is the "Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles." DOL cannot update the version used, by regulation, because it is strictly defined in statute. That is one reason why DOL supports this amendment. CHAIRMAN WILKEN asked Mr. Campbell to work on the necessary revisions and bring the bill back to the committee at a later date. SENATOR LEMAN suggested including language in the bill regarding the notification process that is similar to the standard language used when code upgrades occur. Number 518 SENATOR GREEN commented she has seen a couple of letters in opposition to the bill. She asked Mr. Campbell to address the issues in those letters. MR. CAMPBELL stated he is only aware of one letter of objection that was not sent to the sponsor nor any of the committees in which the bill has been heard. The author of that letter did not address the topic of the bill. The author is concerned about the nature of the computer program used to adopt uniform billing codes. That concern may be valid but nothing in this bill addresses how Claim Check works. MR. CAMPBELL asked Chairman Wilken if he would like a new committee substitute prepared. CHAIRMAN WILKEN said he would. There being no further business to come before the committee, CHAIRMAN WILKEN adjourned the meeting at 10:12 a.m.