Legislature(2009 - 2010)HOUSE FINANCE 519

03/23/2010 01:30 PM House FINANCE

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* first hearing in first committee of referral
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Moved CSHB 50(FIN) Out of Committee
Moved CSHB 369(FIN) Out of Committee
HOUSE BILL NO. 50                                                                                                             
     "An Act  relating to limitations on  mandatory overtime                                                                    
     for registered nurses and  licensed practical nurses in                                                                    
     health care facilities; and  providing for an effective                                                                    
2:45:07 PM                                                                                                                    
Vice-Chair   Thomas  MOVED   to  ADOPT   Amendment  1   (26-                                                                    
LS0274\U.1, Wayne, 3/23/10):                                                                                                    
     Page 4, line 23, following "hours":                                                                                        
     (9) a nurse who is covered by a collective bargaining                                                                      
     agreement, so long as the work is subject to that                                                                          
Co-Chair Stoltze OBJECTED.                                                                                                      
Vice-Chair Thomas  explained that  the amendment  related to                                                                    
bargaining units.                                                                                                               
REPRESENTATIVE  PEGGY WILSON,  SPONSOR,  testified that  she                                                                    
did not support the amendment.                                                                                                  
REBECCA  ROONEY, STAFF,  REPRESENTATIVE PEGGY  WILSON, noted                                                                    
that   the  unions   had  testified   in   support  of   the                                                                    
legislation. She  argued that HB  50 was not  about contract                                                                    
negotiations  and collective  bargaining  but about  patient                                                                    
safety. She maintained that the  bill would standardize work                                                                    
and rest  practices across the  state and would  ensure that                                                                    
rested  nurses are  caring for  patients  regardless of  how                                                                    
well a bargaining unit has done.                                                                                                
Vice-Chair Thomas stated that  he had proposed the amendment                                                                    
because he  did not want the  legislature to do the  work of                                                                    
bargaining  units. He  did not  recall legislation  that was                                                                    
involved in  collective bargaining decisions  and questioned                                                                    
the legality of such a move.                                                                                                    
Representative Wilson stated that  the amendment would "gut"                                                                    
the bill. She  argued that the unit could  still bargain any                                                                    
way  it wanted,  but  the legislation  would  provide for  a                                                                    
standard of  care for patients  and would make  a difference                                                                    
for nurses  as well. She  wanted to create a  provision that                                                                    
would allow  nurses to  come forward.  She believed  all the                                                                    
nurses that had  come to her regarding the  issue worked for                                                                    
hospitals with unions.                                                                                                          
Vice-Chair Thomas  did not want collective  bargaining units                                                                    
to have an advantage.                                                                                                           
Vice-Chair Thomas WITHDREW Amendment 1.                                                                                         
2:50:41 PM          AT EASE                                                                                                   
2:54:27 PM          RECONVENED                                                                                                
Vice-Chair Thomas MOVED to ADOPT Conceptual Amendment 2:                                                                        
    Nurses cannot moonlight and have two or more jobs.                                                                          
Co-Chair Stoltze OBJECTED for discussion.                                                                                       
Vice-Chair  Thomas explained  that  nurses  should not  have                                                                    
more  than one  or  two  jobs if  the  issue  is truly  work                                                                    
Representative  Fairclough   spoke  in  opposition   to  the                                                                    
amendment. She  knew nurses with multiple  jobs. She relayed                                                                    
the story  of a single  mother who  was a school  nurse that                                                                    
did not make enough income. The  nurse took on two more jobs                                                                    
and  was  able  to  handle her  responsibilities  well.  She                                                                    
thought the amendment was too broad.                                                                                            
2:58:05 PM                                                                                                                    
Vice-Chair  Thomas  talked   about  residential  psychiatric                                                                    
care. He was concerned about  a nurse having two high-stress                                                                    
jobs with long  hours. He believed the measure  needed to be                                                                    
restricted to protect patients.                                                                                                 
Representative Fairclough  reported that  she had  many good                                                                    
friends who are nurses. She  told the story of another nurse                                                                    
friend with two jobs, one  of which was crisis-oriented. She                                                                    
emphasized  that different  people had  different levels  of                                                                    
stamina  and she  did not  want individuals  who can  handle                                                                    
certain situations limited by the legislation.                                                                                  
Vice-Chair Thomas  relayed a story  about fishing  for three                                                                    
days without  sleep, which he  can no longer do.  The intent                                                                    
of the amendment  was to encourage older people  not to work                                                                    
as hard as younger people can.                                                                                                  
Vice-Chair Thomas WITHDREW Amendment 2.                                                                                         
3:02:41 PM                                                                                                                    
Representative Fairclough  noted that  age is not  the issue                                                                    
with endurance.                                                                                                                 
Vice-Chair Thomas wanted nurses  restricted to an 8-hour day                                                                    
to relieve  stress. He pointed to  similar restrictions done                                                                    
with the mining industry.                                                                                                       
Representative  Kelly stated  concerns  about  the bill.  He                                                                    
referred  to  testimony  from witnesses  implying  that  the                                                                    
unions are  not up  to the job  of regulating  wages, hours,                                                                    
and  conditions,  including   safety  issues.  He  suggested                                                                    
hearing   from  the   Department  of   Labor  and   Workface                                                                    
Development  (DLWD). He  was  concerned  about labor  issues                                                                    
represented  employees   cannot  solve   themselves  without                                                                    
government stepping in.                                                                                                         
3:07:00 PM                                                                                                                    
GREY  MITCHELL, DIRECTOR,  DIVISION OF  LABOR STANDARDS  AND                                                                    
SAFETY,  DEPARTMENT  OF  LABOR  AND  WORKFORCE  DEVELOPMENT,                                                                    
reported that DLWD is neutral  regarding HB 50. He could not                                                                    
explain why the unions are  having a difficult time with the                                                                    
Representative  Kelly   asked  whether   the  area   was  an                                                                    
unpermitted one  to bargain in. Mr.  Mitchell responded that                                                                    
it was not.                                                                                                                     
Representative Doogan  questioned what percentage  of nurses                                                                    
were  unionized. Representative  Wilson  responded about  50                                                                    
Representative  Kelly   asked  whether   anything  prevented                                                                    
unorganized employees from  becoming organized. Mr. Mitchell                                                                    
answered no.                                                                                                                    
Representative Wilson commented that  hospitals say there is                                                                    
not a  problem. She  questioned why they  are afraid  of the                                                                    
3:10:19 PM                                                                                                                    
Mr. Mitchell  addressed the fiscal  note by  the department.                                                                    
He  described  the  difficulty of  ascertaining  the  fiscal                                                                    
impact. The amount in the fiscal  note is based on review of                                                                    
licensed  nurses. The  Department of  Commerce and  Economic                                                                    
Development  monitors  the  licenses  of  registered  nurses                                                                    
(RNs)  and licensed  practical nurses  (LPNs);  as of  March                                                                    
2010, there  are 10,357  RNs and 1,052  LPNs. He  noted that                                                                    
there is a  separate license for temporary  nurses, of which                                                                    
there are 140 RNs and LPNs combined.                                                                                            
Mr.  Mitchell  reported  that the  department  attempted  to                                                                    
account  for what  type of  work  might be  required by  the                                                                    
bill, which requires the department  to take and investigate                                                                    
complaints based on violations  or coercion when an employee                                                                    
was required to  work over their scheduled  nursing shift or                                                                    
to   accept   an   overtime  assignment   when   safety   is                                                                    
compromised, in the nurse's opinion.  He maintained that the                                                                    
language   about  the   issue  of   a  nurse's   opinion  of                                                                    
compromised safety tends to create  a scenario with a lot of                                                                    
potential for complaints.                                                                                                       
Mr.  Mitchell  continued  that the  average  wage  and  hour                                                                    
investigator   handles  a   caseload  of   approximately  50                                                                    
investigations   per  year   on   overtime,  minimum   wage,                                                                    
prevailing  wage  claims, and  so  on.  Therefore, 50  valid                                                                    
claims by nurses  as a result of  potential violations under                                                                    
the  bill would  keep one  investigator busy  full time.  In                                                                    
addition,  different provisions  in  the  bill will  require                                                                    
enforcement by  the department,  including the  10-hour off-                                                                    
duty  provision  after  the  scheduled  shift,  enforcing  a                                                                    
requirement for the employer to  have an anonymous complaint                                                                    
process, a posting requirement of the rules, and so on.                                                                         
Mr. Mitchell  described a typical investigation.  First, the                                                                    
department receives a  complaint. There needs to  be a quick                                                                    
screening  process   to  determine   the  validity   of  the                                                                    
complaint, since the employer is  required by the bill to be                                                                    
notified  within three  working days  of the  complaint. The                                                                    
department  would  then  follow  up with  the  employer  and                                                                    
collect  records of  the  shifts and  the  time worked.  The                                                                    
documents  might have  to  be subpoenaed,  if  they are  not                                                                    
volunteered. Next,  an audit of the  records would determine                                                                    
whether there was a violation.  In some cases, there may not                                                                    
be good records; witnesses would  need to be interviewed and                                                                    
sworn statements taken. The investigator  would then issue a                                                                    
written finding  with a conclusion  based on the  facts. The                                                                    
department would  issue a reprimand  or civil  penalty under                                                                    
the  statute. Although  the bill  does not  mention it,  the                                                                    
department  would have  regulation  authority to  administer                                                                    
the law; DLWD  believes a hearing process  would be required                                                                    
to  allow people  issued  a reprimand  or  civil penalty  to                                                                    
appeal and potentially have rights to a hearing.                                                                                
3:15:04 PM                                                                                                                    
Mr.  Mitchell  added  that  investigations  of  retaliation,                                                                    
termination, threats,  changes in work schedules,  and other                                                                    
things  could also  happen. Complaints  related to  possible                                                                    
retaliation  can be  extremely difficult  and time-consuming                                                                    
to investigate.  He pointed out that  the amendment removing                                                                    
the Department of Law (DOL)  from the procedure would affect                                                                    
the  fiscal note,  as the  fiscal note  included $5,000  for                                                                    
assistance from them.                                                                                                           
Mr.  Mitchell provided  an overview  of the  numbers in  the                                                                    
fiscal note:                                                                                                                    
   · $71,800: Wage and hour investigator                                                                                        
   · $3,000: Travel related to complaints in distant                                                                            
   · $13,800: Contractual costs (reduced by the $5,000 for                                                                      
   · $3,800: Supplies, including computer and office                                                                            
Co-Chair Hawker commended the detail  on the fiscal note. He                                                                    
queried Mr. Mitchell's presumption  that employers would act                                                                    
in  a  manner  that  would  generate  enough  grievances  to                                                                    
require  an investigator.  Mr. Mitchell  responded that  the                                                                    
department  made  its best  guess  based  on the  number  of                                                                    
employees and  number of facilities. He  emphasized that the                                                                    
testimony generated  by the bill  revealed many  nurses that                                                                    
felt coerced.                                                                                                                   
Co-Chair Hawker  wondered whether  employers had  been lying                                                                    
in  the committees.  He  did  not know  who  to believe.  He                                                                    
stated  that he  was  skeptical of  the department's  fiscal                                                                    
note without actual experience.                                                                                                 
3:19:01 PM                                                                                                                    
Representative  Austerman asked  whether hospital  employees                                                                    
could  come  to  the  department   under  current  law.  Mr.                                                                    
Mitchell responded that the  employees could make complaints                                                                    
to the department  in some circumstances, such  as a minimum                                                                    
wage claim or some overtime situations.                                                                                         
Representative Austerman  established that nurses  could not                                                                    
currently  file a  complaint with  DLWD about  being coerced                                                                    
into  working extra  hours. Mr.  Mitchell agreed  that there                                                                    
was no restriction related the  number of hours nurses could                                                                    
be required to work.                                                                                                            
Representative   Austerman   asked   when   the   department                                                                    
anticipated  hiring the  position  described  in the  fiscal                                                                    
note. Mr. Mitchell replied that  the position would be hired                                                                    
as soon  as possible after  the July 1, 2010  effective date                                                                    
in anticipation of complaints coming in.                                                                                        
Representative  Austerman   thought  the  fiscal   note  was                                                                    
inappropriate  at  this  time  and  thought  the  department                                                                    
should come back the next  year with a supplemental request.                                                                    
He referred  to documentation supplied by  nursing homes and                                                                    
hospitals reported zero overtime complaints.                                                                                    
Representative  Doogan  believed  there were  situations  in                                                                    
which  reasonable  people could  disagree  on  the rules  of                                                                    
working. He  described 30 years of  experience with disputes                                                                    
that  were not  indicative  of  a lack  of  maturity but  of                                                                    
understandable disagreement.  He thought the  bill attempted                                                                    
to  create a  better way  of dealing  with disagreement.  He                                                                    
opined that the department could  absorb the costs until the                                                                    
next legislative session and report  back; if the employer's                                                                    
numbers are correct, not much money would be needed.                                                                            
3:23:36 PM                                                                                                                    
Co-Chair   Hawker    directed   the   preparation    of   an                                                                    
indeterminate fiscal note for the bill.                                                                                         
Vice-Chair  Thomas   asked  whether  the  bill   would  give                                                                    
bargaining  units an  advantage. Mr.  Mitchell replied  that                                                                    
the bill does  not appear to give either  union or non-union                                                                    
entities an advantage.                                                                                                          
Vice-Chair Thomas wanted all groups to be treated equally.                                                                      
Representative  Fairclough  questioned   the  Department  of                                                                    
Health  and   Social  Services   fiscal  note   showing  two                                                                    
additional  full-time positions  at  the Alaska  Psychiatric                                                                    
Institute (API) but no dollar amount.                                                                                           
Representative  Wilson  commented  that  the  positions  are                                                                    
currently unfilled.                                                                                                             
RON ADLER,  DIRECTOR/CEO, ALASKA PSYCHIATRIC  INSTITUTE (via                                                                    
teleconference),  replied  that  he  could  not  answer  the                                                                    
question. He noted  that in FY 09, API had  a total of 374.5                                                                    
hours  of  mandatory  overtime.   In  an  effort  to  reduce                                                                    
mandatory overtime, in the first  six months of 2010 API has                                                                    
logged in 106  hours. He did not know who  would be tracking                                                                    
those hours.                                                                                                                    
3:28:27 PM                                                                                                                    
Representative  Fairclough queried  the  two positions  with                                                                    
zero impact.                                                                                                                    
WILDA  LAUGHLIN, LEGISLATIVE  LIAISON, DEPARTMENT  OF HEALTH                                                                    
AND SOCIAL  SERVICES, pointed to  page 2 of the  fiscal note                                                                    
detailing  that  any  additional cost  associated  with  the                                                                    
physicians and  on-call system  will be  offset by  the cost                                                                    
savings from reduced overtime payments.                                                                                         
Representative  Fairclough  spoke in  favor  of  HB 50.  She                                                                    
believed  the costs  were reasonable  because of  the safety                                                                    
issues. She asserted  that the bill would  level the playing                                                                    
field for non-union  and union hospitals and  set a standard                                                                    
of  care that  all  nurses  and all  employers  can be  held                                                                    
accountable  to. She  believed nurses  had brought  an issue                                                                    
forward that the legislature had an obligation to address.                                                                      
3:32:06 PM                                                                                                                    
Co-Chair  Hawker  MOVED  to  report CSHB  50  (FIN)  out  of                                                                    
Committee   with   individual    recommendations   and   the                                                                    
accompanying fiscal  note. There being NO  OBJECTION, it was                                                                    
so ordered.                                                                                                                     
CSHB 50(FIN) was REPORTED out  of Committee with a "do pass"                                                                    
recommendation  and  with  three   new  zero  notes  by  the                                                                    
Department   of  Health   and   Social   Services  and   one                                                                    
indeterminate note by the Department  of Labor and Workforce                                                                    

Document Name Date/Time Subjects
HB 316 Gov.Trasmittal Letter.pdf HFIN 3/23/2010 1:30:00 PM
HB 316
HB 316 Sectional.pdf HFIN 3/23/2010 1:30:00 PM
HB 316
HB 50 Thomas Amendment #1.pdf HFIN 3/23/2010 1:30:00 PM
HB 50