SENATE STATE AFFAIRS COMMITTEE April 7, 1998 3:40 p.m. MEMBERS PRESENT Senator Lyda Green, Chairman Senator Jerry Ward, Vice-Chairman Senator Jerry Mackie Senator Mike Miller Senator Jim Duncan MEMBERS ABSENT All members present COMMITTEE CALENDAR SENATE BILL NO. 348 "An Act relating to rights of conscience protection for persons who directly or indirectly provide or perform health care services." - HEARD AND HELD CS FOR HOUSE BILL NO. 449(STA) "An Act relating to certain individual retirement accounts; and providing for an effective date." - MOVED CSHB 449(STA) OUT OF COMMITTEE SENATE BILL NO. 287 "An Act relating to parole consideration." - HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SB 348 - No previous action to record. HB 449 - No previous action to record. SB 287 - No previous action to record. WITNESS REGISTER Dr. Peter Nakamura, Director Division of Public Health Department of Health & Social Services P.O. Box 110610 Juneau, AK 99811-0610 POSITION STATEMENT: Has concerns with CSSB 348(STA) Ms. Kristen Bomengen, Assistant Attorney General Human Services Section Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Outlined problems with CSSB 348(STA) Ms. Janet Oats, Director of Marketing & Government Relations Providence Health System P.O. Box 196604 Anchorage, AK 99519 POSITION STATEMENT: Testified in support of CSSB 348(STA) Dr. Gerald Phillips P.O. Box 839 Palmer, AK 99645 POSITION STATEMENT: Supports CSSB 348(STA) Dr. William Resinger P.O. Box 3350 Palmer, AK 99645 POSITION STATEMENT: Testified in support of CSSB 348(STA) Cliff Orme P.O. Box 3588 Palmer, AK 99645 POSITION STATEMENT: Testified in support of CSSB 348(STA) Ms. Diana Buffington 317 Maple St. Kodiak, AK 99615 POSITION STATEMENT: Supports CSSB 348(STA) Joseph Balash, Staff to Representative Gene Therriault State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Offered information on CSHB 449(STA) Ms. Annette Kreitzer, Staff to Senator Loren Leman State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented overview on SB 287 Michael Stark, Assistant Attorney General Legal Services Section, Criminal Division Department of Law P.O.,. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: SB 287 not needed ACTION NARRATIVE TAPE 98-16, SIDE A Number 001 CHAIRMAN GREEN called the Senate State Affairs Committee to order at 3:40 p.m. and noted all members were in attendance. SB 348 - RIGHTS OF CONSCIENCE PROTECTION CHAIRMAN GREEN introduced SB 348, sponsored by the State Affairs Committee, as the first order of business. She requested that Senator Ward make a brief presentation on the legislation. SENATOR WARD explained SB 348 will put into written form exactly what most people think is already their right under the Constitution. There are certain procedures throughout time that people of authority have pressured health care providers to participate in regardless of what their conscience may say. He said society should not be imposing rules and laws on people against what their true beliefs are, and SB 348 will put into effect the rights of conscience protection that these people thought they had all along. SENATOR MILLER directed attention to a proposed committee substitute. SENATOR WARD moved the adoption of CSSB 348(STA), version "B," and hearing no objection, CHAIRMAN GREEN stated it was adopted as a working document. Number 070 SENATOR DUNCAN asked if there is a constitutional amendment that goes along with the legislation. SENATOR MILLER responded that he introduced SJR 35, which is in Senate Finance, and it would essentially overturn the Valley Hospital decision, however, he wasn't sure if the two pieces of legislation would move through the process together. He also pointed out that there is a difference in the bill and the resolution. The bill deals more with the individual and the constitutional amendment deals more with the institutions. Number 106 DR. PETER NAKAMURA, Director, Division of Public Health, Department of Health and Social Services, stated that he had not yet seen the committee substitute. He spoke to the benefits of a program that mandates immunizations for entry into school. However, he said there are physicians who don't believe in immunizations, and the fact that the people who don't have the resources to gain these services are the ones who are hurt. Every time another barrier to access to a positive health service is put in place, it is the poor who suffer the consequences. Dr. Nakamura said in terms of the bill, as he reads it, as a public health professional and as a physician, he would strongly object to another barrier to access to any service that is critical to the poor who would have no other alternatives. Number 180 SENATOR MILLER reminded Dr. Nakamura that the bill addresses abortions, not other public health services. DR. NAKAMURA said if the bill specifically refers to abortions, and if the facility is built with federal dollars or if federal dollars are paying for the maintenance of that facility, it seems that the broad range of services should be available. If an individual, by conscience, feels they don't want to participate, then the facility should provide some options to make sure that those services would still be available. He added that if the facility were built with private funds, then he could see where they would have that right. SENATOR MILLER asked Dr. Nakamura, as a hypothetical case, what happens if a young lady in a remote village wants an abortion, but there is only one doctor in town and he does not believe in performing abortions and she cannot afford access to another doctor. DR. NAKAMURA responded that if state or federal funds are supporting that individual's practice, he would have strong objection to that. He also clarified that he would not expect an individual if he felt strongly against an abortion to perform it, but he would expect that individual to make the information available to assist the person seeking the abortion. DR. NAKAMURA said SB 348 eliminates access to abortions in the state of Alaska which then goes back to those of us who can afford to go out and access these services elsewhere, but there are those poor who might have an equally valid reason for wanting that service but will not have access to it any more. SENATOR MILLER commented that he thinks the testimony shows reason why this bill is needed if the state is willing to enforce their moral convictions upon an individual who may have a different moral conviction. Number 250 KRISTEN BOMENGEN, Assistant Attorney General, Human Services Section, Department of Law, said that although she was not able to do an in-depth analysis of the committee substitute, she thinks it is an excellent substitute for the original bill, which has a great many references to broad moral convictions that would have caused no end of problems to health facilities in their hiring practices and in the delivery of services. However, there still are some legal problems that remain with the committee substitute. Ms. Bomengen referenced AS 14.17.040 which addresses the conscience of an institution. She said because the health care institution definition includes public institutions, this statute would pretend to grant a public facility a right that actually violates the constitutional protections that are articulated in the Valley Hospital case. That case very specifically said that a statute is not adequate to overrule a constitutionally protected right. Number 280 SENATOR MACKIE asked if the constitutional amendment is needed. SENATOR MILLER clarified that the constitutional amendment relates to the institutions whereas SB 348 relates to institutional rights, and it is his opinion that the constitutional amendment would need to pass in order for this legislation to be valid. Number 295 MS. BOMENGEN related that there is a federal requirement that all institutions that receive Medicaid or Medicare funds have to have a policy that informs admitted patients of their right to advance directives and that particular institution's policy regarding advance directives. Consequently, an institution may not wish to adopt a policy that will allow them to carry out an advance directive, but nonetheless, they are required by federal law to inform the person of their rights and not portray a partial picture to any patient that is being admitted. If there were some objection lodged by a board to even discussing this matter, which might be construed to be intended to end the life of a patient and that board were to assert that as their policy, then the state certification board would have to decertify the institution for Medicaid or Medicare payments. She said this statute still provides a protection that says that a state agency cannot discriminate against an institution that would choose to do so, so it presents a real conflict for the agency that she believes could actually endanger the entire Medicaid funding for the state. The state is required to be able to assure in the state Medicaid plan that this advance directive information is provided to all patients when they are admitted. Number 321 SENATOR MACKIE asked Ms. Bomengen if she could explain what the advance directive information means and whether or not that actually applies to an abortion or the ending of a life. MS. BOMENGEN responded that she was speaking to living wills, do not resuscitate orders, organ donations, etc., that go to the kind of advance directives that an individual can choose to make. She also clarified that Medicaid does not require that institutions perform a service, but it requires that they provide greatly detailed information to individuals who are admitted to their facilities. She suggested that, at the minimum, some sort of definition of the terminology in the bill would be necessary to administer this. CHAIRMAN GREEN directed attention to the "posted notice" language on page 3, line 24, but MS. BOMENGEN advised that the language is not adequate to meet the terms of the Medicaid and Medicare federal guidelines. Number 365 SENATOR MACKIE asked Ms. Bomengen if it was her opinion that this legislation does allow institutions to not provide the information. MS. BOMENGEN answered that she believes it could be interpreted to be applied that way. SENATOR MACKIE said he thinks that is an important point that needs to be clarified so as not to jeopardize Medicaid funding. SENATOR WARD asked if Ms. Bomengen was saying that the posted notice with all of the facts on it is not giving them notice. MS. BOMENGEN reiterated that it does not meet the terms of the Medicaid requirements to provide written information to each individual concerning their rights, and she would stand on her interpretation that this really requires more than posting a sign in a corner or even in front of the admission desk that someone may or may not see regarding the hospital's policy on advance directives. Number 410 CHAIRMAN GREEN asked if the point was that the person must be told that they can have a living will and that there are advance directive possibilities out there, and is that also followed by the fact that the institution has to provide that service. MS. BOMENGEN replied that the institution would not have to implement a living will, however, one cannot discriminate against an individual in the provision of other care based on their election to have a living will. Number 428 SENATOR MILLER questioned if two facilities are providing the necessary information, but a third facility elects not to for whatever reason, would that mean that all three facilities would lose the federal funding. MS. BOMENGEN responded that on its face it would not necessarily mean that all the hospitals would lose funding; however, there is provision in this law that poses a problem for the state agency in its representations in the Medicaid state plan to the Federal Health Care Financing Agency. The state has to assure the federal agency that it is complying with each of its requirements, and if one hospital was not meeting these terms, the state would be deemed to be out of compliance with the state's Medicaid plan. Number 452 SENATOR MILLER asked Ms. Bomengen if it would help to delete the words "counsel and advise" wherever they appear in the bill. MS. BOMENGEN answered that it may be one of the ways, or a definition may be one of the ways, some specific items in the exceptions list may be one of the ways, but she hasn't looked to see whether this would adequately do it. Number 465 SENATOR MACKIE asked Ms. Bomengen if she is willing to provide the committee with an opinion or a recommendation as to what it would take to assure that Medicaid funding would not be lost. MS. BOMENGEN replied that the three options she outlined are there to be done, but she doesn't know which one may be the best. SENATOR MACKIE asked how it works if a hospital like Providence Hospital does not wish to perform abortions, for obvious reasons, but a doctor determines in the course of treatment to a woman that an abortion may be one option that may be necessary to protect the life of that woman. He questioned if this legislation gives them an avenue to not suggest that is one of the options that they would need to pursue. He thinks those kinds of issues need to be really well thought out, not just whether or not some Medicaid funding is going to be lost. SENATOR MILLER said the first part of the bill addresses the individual doctor that does not want to perform the service, but in Senator Mackie's hypothetical case, it sounds like a doctor that is willing to provide that information. He said his concern is mandating that an institution or an individual provide a service that violates religious or moral convictions. He added that, in his opinion, as a result of the Valley Hospital case, there are going to be a number of cases filed, and the next one that is going to be filed is against Providence Hospital. Number 515 SENATOR MACKIE commented he has a certain appreciation for what he thinks is the intent of the legislation, but he would have a problem with not providing pertinent medical information to a patient or pertinent information whether it is the living will aspect or abortion services. SENATOR MILLER agreed that as long as it is well balanced on both sides of the issue, letting the person make the choice. Number 522 MS. BOMENGEN said she wasn't certain that it is appropriate to interpret current law to say that individuals are forced into performing abortions under AS 18.16.010, because there is still part of that statute that says that a person may not be required to perform an abortion, which has not be challenged at this point and still stands as good law. Also, with regard to end of life issues, the statutes which address those concerns do allow a health care provider to not pull the plug or to not pull out the tube. So far as individuals are concerned, it his her interpretation of the law that they are protected. However, she cautioned that when writing this kind of legislation, care has to taken as to what people can end up evoking as their reason for not informing people of the full array of health care solutions that may be legitimately available to them. Ms. Bomengen also said there is a legal question as to how the Valley Hospital case would apply to Providence Hospital, and it not yet clear just how the three-pronged test developed in the Valley decision applies. Number 577 CHAIRMAN GREEN questioned if a private hospital can prohibit abortions in their facilities, as well as the number of private hospitals in the state. MS. BOMENGEN acknowledged that private hospitals can prohibit abortions, but she didn't know the number of private hospitals in the state. TAPE 98-16, SIDE B Number 584 JANET OATES, Director of Marketing and Government Relations for Providence Health System in Alaska, expressed support for CSSB 348(STA) because accompanied by Senator Miller's proposed constitutional amendment it would resolve the issue raised by the Valley Hospital Supreme Court ruling. Providence Health System sees this as an issue of choice; the ability or the right for Providence or other hospitals to choose not to do abortions or other procedures in their facilities that don't conform to their religious and ethical values. Ms. Oates said the attorneys that represent Providence Health System feel that the Supreme Court decision identified a need for a conscience clause or something similar to that in the Alaska Constitution. Without such language, the court found that the state law, which currently allows hospitals freedom of choice, is unconstitutional as applied to quasi-public hospitals; however, the definition given a quasi-public hospital is so broad that it could apply to every single hospital in the state of Alaska. In response to Senator Mackie's earlier inquiry about what happens at Providence Hospital when the life of a mother is at risk, Ms. Oates said that's the time when their ethics committee is called in and those very tough decisions are made when a therapeutic abortion is necessary. She also noted that advance directives are very helpful for their ethicists and their clergy as they are dealing with families at the end of a life. Number 525 SENATOR DUNCAN asked Ms. Oates what she meant by "other procedures" at the beginning of her testimony. MS. OATES responded that the language applied more to some of the earlier variations of the constitutional amendment she had testified on, and she corrected her statement to say "the right to choose not to do abortions or end the life of an individual." She also clarified to Senator Duncan that it is her interpretation that this applies to elective abortions only. Number 491 DR. GERALD PHILLIPS, testifying from the Mat-So LIO in support of CSSB 348(STA), said he is a radiologist, specifically, and he does diagnostic imaging. One of the services provided is ultrasound, which is very good for evaluation of fetal development. Both the radiologist and the ultrasound technician is involved in the performance and the interpretation of the ultrasound exam, and at times they become involved with pre-abortion evaluations where they are asked for the size and dates in those planning an abortion. He said you can feel and often know at times that the information being given by dating the fetus by the ultrasound below a certain age is like signing its death warrant. Specifically, below a certain age the fetus is smaller and is therefore easier to abort and is less traumatic to the mother. He said in these situations, the radiologist and the technician feel like accomplices. Dr. Phillips related another situation which he said occurs infrequently, but is more grave. On three occasions, he and one of his technicians have been called in to do ultrasounds on patients who were pregnant and were bleeding. However, unknown to them was that the ladies in question were bleeding because they were part way through abortions and they didn't have all the pieces accounted for. He said his technician and himself felt taken in and outright lied to, and it is a haunting feeling to be part of something that results in the elimination of life. Dr. Phillips said because of these situations, he, the hospital and his community have lost at least two excellent ultrasound technicians. Number 452 DR. WILLIAM RESINGER, testifying from the Mat-Su LIO, said he is radiologist at Valley Hospital, and when he graduated from medical school in 1969 he took the Hippocratic Oath. He pointed out that the Hippocratic Oath very specifically forbids euthanasia and abortion. It is a 2,400-year-old tradition, and it has nothing to do with state money or federal money or anything else except a tradition in medicine to do the highest and best for their patients. He said it is not the only reason that he does not support abortion, but it is a strong one. Dr. Resinger said it has been said that you cannot legislate morality, but he believes you cannot legislate without morality, and just because something is legal does not necessarily mean it is moral. He believes that there are laws of God that are higher than laws of men. He said this issue comes to some very basic values, that a physician has a right to have conscience, follow moral values and abide by his Hippocratic Oath. Dr. Resinger voiced his support for CSSB 348(STA) and the constitutional amendment. Number 426 CLIFF ORME, the Administrator of Valley Hospital testifying from the Mat-Su LIO, said he concurred with the testimony given by Ms. Oates, Dr. Phillips and Dr. Resinger. He said they are hopeful that this legislation will offer more choice to the providers who choose not to be a part of controversial procedures. Mr. Orme said there has been discussion on the impact of either the constitutional amendment or this bill being to eliminate the service being provided in Alaska and discriminating against the poor, in particular, who cannot afford to leave the state to receive the procedure. However, he pointed out that the hospital is not the only place to receive an abortion. Most abortions are performed during the first trimester, out of the hospital setting, so to say that an abortion would not be available should something like this bill pass would be incorrect. Number 402 DIANA BUFFINGTON, the Republican District Chairman in Kodiak, testifying from Kodiak in support of CSSB 348(STA), spoke to a recent stay at Providence Hospital in Anchorage. When she was admitted to the hospital she was asked if she had a living will in place, and she has no doubt that her beliefs and her moral convictions of not being kept on life support would be honored by her hospital. She does not believe that the legislation has anything to do with a living will or with therapeutic abortion. The legislation is to prevent doctors or hospitals or clinics who do not agree with the abortion issue, who do not agree with the euthanasia issue, that they would have the right to not counsel or advise or recommend those procedures simply because it is an effective way to end a pregnancy or to end a life. She does not believe that doctors should be kept from performing procedures they feel are safe and necessary to the commitment of life, and neither should an institution be forced to counsel and advise when it violates the moral or religious convictions of its board of directors, administrators, or shareholders. Number 353 There being no further testimony on CSSB 348(STA), CHAIRMAN GREEN stated the legislation would be held in committee until the following week for further review and possible changes. Number 348 CSHB 449(STA) - ROSH IRA EXEMPTION CHAIRMAN GREEN brought CSHB 449(STA) before the committee as the next order of business. JOE BALASH, staff to Representative Gene Therriault who is prime sponsor of HB 449, read the following sponsor statement into the record: "Under the Alaska Exemptions Act, retirement plans are protected from creditor claims. However, it does so by listing each type of retirement plan by reference to the Internal Revenue Code section governing that plan. HB 449 will expand the list to include the newly created Roth IRA. "The 1997 Taxpayer Relief Act passed by Congress created the Roth IRA account under Internal Revenue Code section 408A. Contributions and earnings from traditional IRAs can be rolled over into a new Roth IRA. However, when the rollover is done, the taxes must be paid on the capital gains realized. To soften this - potential tax bite, Congress has allowed all of the taxable income stemming from rollovers done in 1998 to be spread over a four year period. "This is a great opportunity to convert all future IRA account earnings into tax-free income and spread the current tax bite over four years. However, those Alaskans who take advantage of this are removing their assets from the list of those protected under state law. "This option is available only during 1998. Beginning in 1999, distributions from regular IRA accounts that are rolled into Roth IRAs will be fully taxed in the year of the rollover. In order for Alaskans to maintain their protection while taking advantage of this opportunity, legislation must be passed this session." Number 320 There being no questions or further testimony on HB 449, CHAIRMAN GREEN asked for the pleasure of the committee. SENATOR MACKIE moved CSHB 449(STA) and the accompanying zero fiscal note be passed out of committee with individual recommendations. Hearing no objection, it was so ordered. SB 287 - WAIVER OF PAROLE CONSIDERATION CHAIRMAN GREEN brought SB 287 before the committee as the final order of business. Number 314 ANNETTE KREITZER, staff to Senator Loren Leman who is the prime sponsor of SB 287, read the following sponsor statement into the record: "In 1994, the Legislature passed, and the voters approved a constitutional amendment that strengthened the rights of victims of crime. Among the rights enumerated is the right of a victim to be present at parole hearings. "Senate Bill 287 addresses the emotional trauma for victims when an inmate, eligible for parole, waives that parole hearing and essentially ends up on an automatic schedule of reappearances before the Parole Board. "This situation is not a common one, but it is still traumatic for the victim of the victim's family to gird themselves up for a planned parole hearing and to have that hearing canceled within 24 hours at the direction of the inmate, only then to be rescheduled and canceled every 30 days. "This bill puts the inmate on a schedule set by the Board, while meeting the ex post facto requirements of Alaska's Constitution in Article I, Sections 1 and 7 and the U.S. Constitution in Article I, Section 15. "The bill is supported by Victims for Justice." Ms. Kreitzer said the sponsor acknowledges, along with representatives from the Parole Board, that this is not a common situation, but the bill tightens a loophole and puts the inmate on the schedule of the Parole Board. If an inmate waives their right to a hearing, it puts the inmate on a six-month schedule to come back before the board. Ms. Kreitzer directed attention to a proposed committee substitute, which was drafted after discussions with the Parole Board. Number 284 SENATOR MACKIE moved the adoption of CSSB 287(STA) as a working document. Hearing no objection, the motion carried. MS. KREITZER explained that in subsection (d) on page 1, the committee substitute seeks to make plain that rather than before the issuance of the board's decision, it is actually talking about the hearing. This subsection would apply to a hearing on a prisoner's application for discretionary parole. Also, a sentence was added on line 14 providing that if a prisoner who has applied for a discretionary parole fails to appear for a scheduled hearing when requested to appear, the board shall consider the prisoner's application as being withdrawn under this subsection. That was contained in the regulation that is being annulled in Section 2. She added that nothing in the legislation prohibits the department from coming back in the future and writing a new regulation that's clearer. Number 251 SENATOR MACKIE questioned the need for the bill if the problem is with a Department of Corrections' regulation. MS. KREITZER responded that it is a small problem and it's not something the department may want to take up in regulation. SENATOR MACKIE said he has a problem with trying to legislate regulations. Number 190 MICHAEL STARK, Assistant Attorney General, Department of Law, who serves as counsel to the Department of Corrections and to the Parole Board, said both the Department of Correction and the Parole Board are sensitive to the needs of victims and try to accommodate those whenever possible; however, they do not believe that SB 287 is necessary, that it addresses a problem that doesn't exist. He said the incident that occurred, which was the catalyst for this bill, was one individual who had applied for parole and shortly before the scheduled hearing withdrew his application because he wanted to get an independent psychiatric examination, hoping that such an examination would improve his chances for parole. So the individual had a legitimate basis for asking the Board to postpone his hearing. The scheduled hearing was canceled, the victim was notified, and the victim was unhappy about that incident. Mr. Stark said the legislation will not fix the problem it is attempting to fix. What it will do is make that prisoner ineligible to apply for parole for another six-month period. However, when the prisoner applies again and if something comes up and the prisoner decides to withdraw his application again at the last minute, the victim will have to be notified again at the last minute. Number 150 CHAIRMAN GREEN asked how soon, under current regulation, a hearing can be rescheduled if a prisoner cancels a scheduled hearing. MR. STARK replied that the Parole Board meets quarterly on discretionary parole applications, and the regulations require that a prisoner submit an application at least seven weeks before the next scheduled hearing in order to be considered. He added that he does not believe the Board, without statutory authority, can say that a person won't be heard for six more months. He thinks under existing statute they probably have a right to be considered if they meet the requirement in submitting their application at least seven weeks in advance. He reiterated that this type of incident has not been a problem. Number 125 SENATOR WARD said this bill is reacting to a victim, and he asked Mr. Stark what harm he sees with the legislation. MR. STARK responded that he doesn't see any egregious harm with the adoption of the bill. SENATOR WARD said if there is no harm to it, and if it makes the victims more comfortable to know that there is a procedure in place, would that be in the Parole Board's opinion a good policy, or do they not consider the victim into the scenario. MR. STARK answered that the Board is very concerned about victims and any inconvenience that might be imposed on them, but they don't believe this bill addresses that. If the prisoner resubmits his application in six more months, the very same thing could occur. Number 070 SENATOR DUNCAN moved that CSSB 287(STA) be passed out of committee. CHAIRMAN GREEN objected and stated that the committee needs to take more testimony on the bill before moving it out. A roll call vote was taken with the following result: Senator Duncan voted "Yea" and Senators Ward, Mackie and Green voted "Nay." CHAIRMAN GREEN stated the motion failed. Number 025 There being no further business to come before the committee, the meeting adjourned at 5:15 p.m.