Wednesday, February 28, 2007

11:00 a.m. or upon adjournment

Senate Chamber






Pursuant to a notice posted in accordance with Senate Rule 11.18, a public hearing of the Senate Committee on Nominations was held on Wednesday, February 28, 2007, in the Senate Chamber at Austin, Texas.







Senator Mike Jackson

Senator Kevin Eltife

Senator Glenn Hegar

Senator Jane Nelson

Senator Robert Nichols

Senator Eliot Shapleigh

Senator Kirk Watson






The chair called the meeting to order at 1:11 p.m.  There being a quorum present, the following business was transacted: 


Senator Shapleigh moved adoption of the minutes from the previous hearing held on February 21, 2007; without objection, it was so ordered. 


Chairman Jackson announced that 39 nominees would be on the agenda for the meeting and that 4 nominees would be appearing in front of the committee.


The chair recognized Senator Estes to introduce Norman Darwin, appointee as the Injured Employee Public Counsel.


The chair recognized Darwin to make opening comments.  Darwin thanked Perry for his reappointment and said that the Counsel has accomplished a lot over the past year.  Chairman Jackson asked that Darwin briefly explain what he does as the Injured Employee Public Counsel.  Darwin said that the Counsel was created by HB 7 and he explained the ways in which the Counsel provides assistance to injured workers.


The chair recognized Senator Watson for a comment.  Senator Watson told the members of Darwin's commitment, skill level and dedication in his position. 


Senator Eltife moved that the nomination of Norman Darwin be confirmed by the committee.  At 1:19 p.m., by a vote of 7 ayes and 0 nays, the committee voted to recommend Norman Darwin to the full Senate for confirmation.


Chairman Jackson called Ira Craig Hester, appointee to the Employees Retirement System of Texas, to the table.  The chair recognized Senator Watson to introduce Hester to the committee.  Chairman Jackson recognized Hester for opening comments.  Hester briefly explained the role and mission of the Employees Retirement System.


Chairman Jackson asked Hester how much money is in the fund.  Hester replied that 23.7 billion is in the fund.  Jackson asked Hester if he thinks that the fund is being invested in the correct way.  Hester explained the current investment method and the allocation of the money in that fund.  He continued with an explanation of future plans for allocation.


Chairman Jackson recognized Senator Shapleigh to discuss the pension fund.  Hester explained that the pension fund is in the top 1/3rd of funds in the country.  Senator Shapleigh asked Hester what he predicts for the fund.  Hester replied that the fund will decline slightly over the next few years.  He is hopeful, however, that they have seen the worst of this and that they can move forward to more historic returns. 


Chairman Jackson recognized Senator Hegar.  Senator Hegar said that he appreciates Hester's work and that many people will be counting on the fund.


Senator Eltife moved that the nomination of Ira Craig Hester be confirmed by the committee.  At 1:30 p.m., by a vote of 7 ayes and 0 nays, the committee voted to recommend Ira Craig Hester to the full Senate for confirmation.


The chair called Albert Betts, appointee as the Commissioner of Workers' Compensation, to the table.  Chairman Jackson recognized Betts to introduce himself and make opening comments.  Betts briefly explained his background and experience, along with the reform that is occurring with regard to workers' compensation.


Chairman Jackson said that in his district many insurance companies will approve individuals for surgery, but will not pay.  Jackson asked for Betts' thoughts on the matter.  Betts explained that a new system is being enacted to better deal with those types of complaints. 


Chairman Jackson recognized Senator Shapleigh to inquire about the cost of workers' compensation in Texas compared to other states.  Betts explained that costs have gone down fairly significantly in recent years.  Senator Shapleigh asked to see those numbers.  Shapleigh asked about the assimilation of FTEs.  Betts said that the assimilation and merger has gone fairly well.


Senator Nelson moved that the nomination of Albert Betts be confirmed by the committee.  At 1:40 p.m., by a vote of 7 ayes and 0 nays, the committee voted to recommend Albert Betts to the full Senate for confirmation.


Chairman Jackson recognized Senator Watson to introduce Albert Hawkins, appointee as the Executive Commissioner of the Health and Human Services Commission.  Chairman Jackson recognized Hawkins for opening comments.  Hawkins briefly detailed the recent accomplishments of the commission, specifically the reorganization and consolidation of agencies. 


Chairman Jackson recognized Senator Eltife to discuss Governor Perry's executive order regarding the HPV vaccine.  In response to Senator Eltife's questions, Hawkins explained the rules process and told the committee that the process has not yet started.  Hawkins explained that the total cost of the executive order will be 90 million dollars.  He said that the 90 million dollars is in his budget.  Senator Eltife and Hawkins discussed statutes and whether or not the executive order creates a statute. 


Senator Eltife repeatedly asked Hawkins if he believes that Texas is in a state of emergency because of HPV and cervical cancer.  Hawkins was unable to give a direct answer to the question.  Eltife said that as Commissioner of Health, Hawkins should be able to tell the committee whether or not HPV is an emergency.  Eltife said that he will not be able to vote for Hawkins' confirmation if he cannot say whether or not the HPV vaccine is an emergency.  Hawkins said that the rules- making process would be a key factor in determining whether the HPV vaccine is an emergency.


Senator Eltife yielded to Senator Jackson.  Senator Jackson asked Hawkins about the rules- making process and when it would begin as a result of the executive order.  Hawkins explained the rules-making process and said that the formal process has not yet begun.  Hawkins said that the commission would wait until the end of the legislative session.  The vaccine would be ready at the beginning of the school year in 2008.  In response to questions from Jackson, Hawkins said that he did not know whether or not anything would be done in 2007.


Senator Eltife continued to question Hawkins on whether or not the HPV vaccine mandate is an emergency.  Hawkins replied that he could not answer that question until he had seen sound facts through the rules-making process.  Eltife said that he will have trouble supporting Hawkins' confirmation if he cannot answer the question.


Chairman Jackson recognized Senator Nelson.  Senator Nelson and Hawkins discussed the top medical emergencies and health issues in Texas today.  Hawkins said that cervical cancer would be in the top ten of those issues.  Nelson and Hawkins discussed the statutory authority that is given to the Commissioner of Health.  Hawkins said that the agency has been given statutory authority to make changes through the rules-making process.  Hawkins said that he cannot predict the outcome of the rules-making process.


Senator Nelson questioned Hawkins about HB 2475.  The bill required that the commission develop a strategic plan relating to cervical cancer.  Senator Nelson expressed her distress that the legislature did not receive the plan on time.  Hawkins said that he had not been well- informed about the plan and its recommendations specifically regarding the HPV vaccine.  Nelson explained that the recommendations from this plan did not include a mandate for an HPV vaccine.  Nelson continued to express her concern that legislators do not have a copy of that report in their hands.


Senator Jackson recognized Senator Hegar.  Senator Hegar thanked the commissioner for the job that he has done.  Senator Hegar and Hawkins discussed the constitutionality of the executive order.  Senator Hegar expressed his concern that the commission drafted the executive order, but did not make that information public.  Senator Hegar asked if anyone from the commission has researched the clinical trials or warning labels of the vaccine.  Hawkins responded that there has been a preliminary review on some level, but that it has not been in-depth.  Senator Hegar asked if the commission would have mandated the vaccine without the executive order.  Hawkins said that the commission had planned no action until the executive order was announced.  Senator Hegar expressed his assumption that the mandate is not an emergency if the commission is going to wait a long period of time to enact the vaccine.


Senator Hegar asked about the rules-making process and communicable diseases.  Hawkins said that HPV is not a true communicable disease, but instead a sexually transmitted disease.  Senator Hegar asked Hawkins about the vaccine warning label and its risks for pregnant women.  Hegar asked if the severity of the risk should be expressed in greater magnitude than simply on the vaccine warning label.  Hawkins responded that some other type of outreach or education could be used to reinforce this risk to pregnant women. 


Senator Hegar and Hawkins discussed teen pregnancy.  Senator Hegar read statistics on the number of teen pregnancies in Texas each year.  Senator Hegar asked if girls should be given a pregnancy tests along with the HPV vaccine.  Hawkins said that health professionals and members of the public could reach a conclusion together on the issue.


Senator Hegar expressed his concern that people will believe that the vaccine is a cure for cancer.  Hawkins agreed that physicians should inform their patients that the vaccine is not a cure for cancer.  Senator Hegar does not want people to have that false hope. 


Senator Hegar asked for Hawkins' thoughts on requiring young boys to also have the vaccine.  Hawkins replied that use of the vaccine for boys would be appropriate to consider with FDA approval.


Hawkins said that it was not his intent to frustrate the committee.  He explained again that he cannot predict the outcome of a careful and deliberate rules-making process.


Chairman Jackson recognized Senator Nichols.  Senator Nichols asked that a copy of the report be delivered to each legislator's office.  Senator Nichols yielded to Senator Nelson.  Senator Nelson explained that she had just been given a copy of the report from the Health and Human Services Commission.  She said that she did not understand why they had not been given the report in December when it was due.


Senator Nichols asked Hawkins several questions about the bird flu and its severity.  Hawkins explained that there are national provisions for an emergency of that nature.  Hawkins explained what would happen if the bird flu became an emergency. 


Chairman Jackson recognized Senator Shapleigh for questioning.  Senator Shapleigh began by acknowledging Hawkins' accomplishments and public service.  Senator Shapleigh asked if Hawkins would advise his daughter to take the HPV vaccine.  Hawkins said that he would need to know more about the vaccine.


Senator Shapleigh discussed the LAR process with Hawkins.  Shapleigh asked if the 90 million dollars to be spent on the vaccine was among the priorities during the LAR process.  Hawkins said that it was not.  Shapleigh and Hawkins discussed the constitutional authority given to the Governor with regards to an emergency.


Senator Shapleigh questioned Hawkins about insurance and HB 2292.  Hawkins explained the changes that were made as a result of the bill.  Senator Shapleigh summarized the "guts" of the bill and the creation of 4 call centers to eliminate human contact and achieve savings.  Senator Shapleigh read concerns from a letter that he had written to Hawkins after the bill was passed.  Senator Shapleigh and Hawkins discussed Greg Phillips and his priorities as deputy commissioner of the Health and Human Services Commission.  In response to a question from Shapleigh, Hawkins said that neither Greg Philips nor anyone in his family received anything of value with connection to the maximus contract as a result of HB 2292.


Senator Shapleigh read through the headlines of several newspaper articles relating to CHIP.  Hawkins said that the program continues to be a struggle for him each day.  Senator Shapleigh distributed this session's LAR.  Senator Shapleigh and Hawkins discussed the amounts on the document, specifically the money for call center intake operations.  Senator Shapleigh asked Hawkins why he did not let anyone know, during the process of HB 2292, that call centers would not work.  Hawkins replied that at that time, he felt that administratively the changes could have worked.  Hawkins explained that a pilot was used first as a trial run for the call centers.  Senator Shapleigh said that his constituents have extreme frustrations with the CHIP program.


Before Hawkins became Commissioner, Senator Shapleigh said that he received a county by county report on uninsured rates in Texas.  Senator Shapleigh asked Hawkins why he is no longer able to see that report.  Hawkins replied that the uninsured reports had no reliability or credibility.  Senator Shapleigh read from the uninsured report that he received from the Comptroller's office.  He accused Hawkins of withholding the report because of the rising uninsured rates in Texas.  Hawkins assured the Senator that this was not the reason that he withheld the report.


Senator Shapleigh asked that Hawkins tell the committee members the amount of money the commission may need before the appropriations process begins.


Senator Shapleigh and Hawkins discussed the Alberto N case.  Shapleigh and Hawkins discussed other active Medicaid lawsuits that are pending.  Senator Shapleigh said that the Health and Human Services Commission is the functional comparison to FEMA.  He believes that the commission is not meeting the needs of the state.


Senator Shapleigh asked Hawkins if he fears that he will lose his job if he asks for the adequate amount of money that he needs from the legislature.  Shapleigh asked Hawkins what amount of money he needs to make program changes to CHIP and Medicaid.  For CHIP, Hawkins needs 83 million dollars.  For Medicaid, the commission needs 284 million.


Chairman Jackson recognized Senator Nelson to discuss the TEARS issue.  Hawkins addressed the TEARS issue, access concerns, and the changes that are being made.  Senator Nelson suggested to Hawkins that he needs to decide if his boss is the Legislature or the Governor.


Senator Hegar listed experts and professionals that believe the Gardasil vaccine should not be mandated, but optional.  Hawkins replied that the commission will thoroughly evaluate and assess that information during the rules-making process. 


Chairman Jackson recognized Robert Kenney to testify against the confirmation of Albert Hawkins.


Chairman Jackson read the witness affirmation card of Rick Levy.  Levy did not testify, but supported the confirmation of Norman Darwin.


Chairman Jackson announced that the confirmation of Albert Hawkins will be left pending.  Without objection, it was so ordered.


Senator Hegar moved that the committee vote on the non-appearing nominees to the following entities: Crime Stoppers Advisory Council, District Attorney of the 29th Judicial District, Palo Pinto County, Finance Commission of Texas, Governing Board of the Texas School for the Blind and Visually Impaired, Growth Fund Board of Texas, Texas State Library and Archives Commission, Texas Mutual Insurance Company Board of Directors, North Texas Tollway Authority Board of Directors, Texas Board of Orthotics and Prosthetics, Texas State Board of Pharmacy, State Bar of Texas, and Texas Council on Purchasing from People with Disabilities.  At 3:30 p.m., by a vote of 6 ayes, 0 nays, and 1 absent, the nominees were sent to the full Senate for confirmation.



There being no further business, at 3:31 p.m. Senator Jackson moved that the Committee stand recessed subject to the call of the chair.  Without objection, it was so ordered. 







Senator Mike Jackson, Chair




Katherine Chapman, Clerk