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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hendricks-Pearce v. State, Dept. of Corrections (4/25/2014) sp-6899

Hendricks-Pearce v. State, Dept. of Corrections (4/25/2014) sp-6899

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                    

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



ANITA HENDRICKS-PEARCE, as                            )  

Personal Representative of the                        )  

Estate of DEWELL W. PEARCE,                           )  

                                                      )        Supreme Court No. S-14820  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-08-09147 CI  

         v.                                           )  

                                                      )        O P I N I O N  

STATE OF ALASKA,                                      )  

DEPARTMENT OF CORRECTIONS, )                                  No. 6899 - April 25, 2014  

                                                      )
  

                           Appellee.                  )
  

                                                      )
  



                  Appeal from the Superior Court of the State of Alaska, Third
  

                                                              

                  Judicial District, Anchorage, Eric A. Aarseth, Judge.
  



                  Appearances:  Ted Stepovich, Law Office of Ted Stepovich,
  

                                                                            

                  Anchorage, for  Appellant.  Dale W. House, Senior Assistant
  

                                                                              

                  Attorney  General,  Anchorage,  and  Michael  C.  Geraghty,
  

                  Attorney General, Juneau, for Appellee.
  



                  Before:  Fabe, Chief Justice, Winfree, Maassen, and Bolger,
  

                  Justices. [Stowers, Justice, not participating] 
 



                  BOLGER,  Justice.
  

                  FABE, Chief Justice, with whom MAASSEN, Justice, joins, dissenting.
  



I.       INTRODUCTION  



                  A prisoner recovered a medical malpractice judgment against the State of  

                                                              



Alaska Department of Corrections.  But when DOC paid the judgment, it deducted the  

                                                                                                    


----------------------- Page 2-----------------------

expenses it had incurred for unrelated medical care provided to the prisoner by outside  

                                                                             



providers.  DOC then brought an action seeking a declaratory judgment that DOC had  

                                                                         



the statutory right to reimbursement from the prisoner for medical expenses incurred on  

                                                                                 



his behalf.  In this appeal, the prisoner's estate argues that only prisoners with access to  

                                                                                                                    



the specified funding sources listed in the statute are liable for the cost of outside medical  



care.  But we conclude that the statute entitles DOC to reimbursement from a prisoner  



                     

regardless of whether the medical care is provided inside the prison or made available  



                                             

through an outside provider.  We also conclude that the common fund doctrine does not  



require  DOC  to  share  the  cost  of  the  prisoner's  attorney's  fees  for  the  medical  



malpractice action.  



II.       FACTS AND PROCEEDINGS  



          A.        Legal Framework  



                                                                                                   

                    The State has a statutory and constitutional obligation to provide necessary  



                                                                                                1  

                                                                                                     Although  the  State  

medical  care  to  all  prisoners  regardless  of  their  ability  to  pay. 



provides medical care through DOC employees and contractors (in-house medical care),  

                                              

some medical conditions require treatment by outside providers (outside medical care).2  

                                                                     



Alaska Statute 33.30.028 sets out the prisoner's  responsibility for medical expenses  

                                                                           

incurred during incarceration.3  DOC has also adopted a regulation, 22 AAC 05.121, that  

                                                             



          1         AS 33.30.011(4)(A); State, Dep't of Corr. v. Hendricks-Pearce, 254 P.3d  



1088, 1089 (Alaska 2011) (citing AS 33.30.011(4)(A); Abraham v. State , 585 P.2d 526,  

                               

531 (Alaska 1978); Rust v. State , 582 P.2d 134, 143 (Alaska 1978)).  



          2         Hendricks-Pearce , 254 P.3d at 1089-90 (citing 22 Alaska Administrative  

                                                                   

Code (AAC) 05.121(b) (2004)).  



          3         AS 33.30.028 provides, in relevant part:  



                              (a) Notwithstanding any other provision of law, the  

                                                                                             

                                                                                                            (continued...)  



                                                              -2-                                                        6899
  


----------------------- Page 3-----------------------

                                                                                     

outlines the prisoner's responsibility for payment for these services, with particular focus  



on the co-payment system.  



                                                                                 

          B.	       Prior Litigation And First Appeal  



                                                                                      

                    Most of the underlying facts of this case have already been reviewed by this  



                                                                                             4  

                                                                                                             

court in State, Department of Corrections v. Hendricks-Pearce .                                 Dewell Pearce was a  



          3	        (...continued)  



                    liability for payment of the costs of medical . . . care provided  

                                                                        

                    or made available to a prisoner committed to the custody of  

                   the  commissioner  is,  subject  to  (b)  of  this  section,  the  

                                                                       

                   responsibility of the prisoner and the  



                             (1) prisoner's insurer if the prisoner is insured . . . ;  



                             (2) Department of Health and Social Services if the  

                   prisoner is eligible for assistance . . . ;  



                             (3) United States Department of Veterans Affairs if the  

                   prisoner is eligible for veterans' [medical] benefits . . . ;  



                             (4)  United  States  Public  Health  Service,  the  Indian  

                   Health  Service,  or  any  affiliated  group  or  agency  if  the  

                   prisoner is [eligible]; and  



                             (5) parent or guardian of the prisoner if the prisoner is  

                                                                                     

                   under the age of 18.  



                             (b) The commissioner shall require prisoners who are  

                                                                                   

                   without resources under (a) of this section to pay the costs of  

                                                                       

                   medical . . . care provided to them by the department. At a  

                                              

                   minimum, the prisoner shall be required to pay a portion of  

                                                               

                   the costs based upon the prisoner's ability to pay.  



          4         254 P.3d 1088.  



                                                             -3-	                                                       6899
  


----------------------- Page 4-----------------------

                                        5  

prisoner from 1994 to 2008.   During his incarceration the State provided Pearce medical  

                                        6 the State paid $147,494.94 to outside medical providers.  

care for several conditions;                                    



While in custody, Pearce sued the State for medical malpractice and was awarded a  



                                                                       7  

$369,277.88 judgment against the State in 2008.   The State paid part of the judgment  



in May 2008, but withheld $140,847 as reimbursement for medical expenses that were  



                                                                                    8  

                                                                                       In July 2008 the State filed  

unrelated to the injuries giving rise to the malpractice suit.                                            



an action for declaratory relief regarding its right to reimbursement.  



                                                                                  

                   The parties disputed whether the State was entitled to reimbursement from  

           9  Because Pearce had been released before the State filed its declaratory judgment  

Pearce.                                                                                         



action, the parties disagreed on whether AS 33.30.028 applied to former prisoners after  



                                       10  

their release from custody.                The superior court determined that AS 33.30.028 did not  

                                     11   It therefore dismissed the State's suit and ordered the State  

                                                                                                                  

apply to former prisoners.  



to pay Pearce $140,847 (the amount the State had withheld from the original medical  



malpractice judgment) plus interest.  



          5        Id.   at   1090.      "Dewell   Pearce   died   in   November   2009   and   Anita  



Hendricks-Pearce, his estate's personal representative, was substituted in his place."  Id.  

                                                           

at 1090 n.3.  For ease of reference we use "Pearce" throughout this opinion to refer to  

both the prisoner and his estate.  



          6        Id.  



          7        Id.  



          8        Id.  



          9        Id.  



          10       Id.  



          11       Id. at 1091.  



                                                             -4-                                                      6899
  


----------------------- Page 5-----------------------

                                                                                                   12  

                   On appeal, this court reversed the superior court's ruling.    We stated that  

"[t]he primary goal of AS 33.30.028   is reducing medical costs"13 and observed that  



"preventing the State from collecting from prisoners to the fullest extent possible would  

                   

contravene the statute's cost-saving purpose."14  We therefore held that for the purposes  



                                                                                          15  

of AS 33.30.028 the term "prisoner" includes former prisoners.                                



                   This court remanded two separate issues - then not yet ruled upon - to  

                                                                                         



the superior court: (1) whether AS 33.30.028 entitles the State to reimbursement for the  

                                             



cost of outside medical care from a prisoner without the funding sources identified in  

                                                                 

AS 33.30.028(a);16 and (2) whether the State's recovery, if allowed, was subject to a  



claim for attorney's fees and costs under the common fund doctrine.17  



          C.       Remand And Subsequent Appeal  



                   1.       The parties' arguments  



                   On remand, both parties moved for summary judgment.  Each offered a  



distinctly different interpretation of AS 33.30.028.  Pearce argued that the statute allows  

                                                                                   



reimbursement for the cost of outside medical care only from the specified funding  



sources identified in subsection .028(a).  Pearce's reading of the statute rested on two  



distinctions: the first distinction related to the type of medical care at issue (whether it  

                                                                                                           



          12       Id. at 1093.  



          13       Id. at 1092.  



          14       Id. at 1093.  



          15       Id.  



          16       Id. at 1093-95.  



          17       Id. at 1095 n.25.  



                                                           -5-                                                     6899
  


----------------------- Page 6-----------------------

was in-house or outside), and the second distinction compared prisoners with access to  



the specified funding sources listed in subsection .028(a) to those without.  



                                

                    Pearce argued that the statute distinguishes between  two types of medical  



care - care "provided" by DOC (in-house medical care) and care "made available" by  



DOC (outside medical care) - and that under subsection .028(b), prisoners who lacked  



                                              

the .028(a)-specified funding sources are required to pay only for care "provided to them  



                                                                                        

by the department."  Pearce therefore concluded that only prisoners with access to those  



specified  funding  sources  were  liable  for  the  cost  of  outside  medical  care  "made  



                                                                

available" to them. Pearce contended that his reading of the statute was supported by the  



DOC regulation concerning prisoner co-payments.  Pearce also argued that his attorney's  



                                                                                                

fees should be deductible from any recovery made by the State under the common fund  



doctrine.  



                                     

                    The  State  argued  that  liability  for  the  cost  of  outside  medical  care  is  



                          

imposed  on  all  prisoners  under  AS  33.30.028,  regardless  of  access  to  the  .028(a)- 



                                                                            

specified funding sources, and that the legislative history does not support a distinction  



               

between  medical  care  "provided"  and  care  "made  available."    It  contended  that  the  



statute itself made no distinction between in-house and outside medical care and that the  



                                                              

regulation cited by Pearce was irrelevant to the statutory interpretation question because  



                                                                                                     18  

                                                                                                         Finally, the State  

that regulation concerned co-payments rather than reimbursement. 



                                                                                

argued that any recovery it made was not subject to a pro rata reduction for attorney's  



fees.  



          18  

                                                                                                     

                    See 22 AAC 05.121(b) (providing that prisoners are financially liable for  

a co-payment for in-house medical care).  



                                                               -6-                                                             6899  


----------------------- Page 7-----------------------

                    2.       The superior court's analysis  



                    The superior court ruled in favor of DOC on both issues.  It determined that  



                                                                               

AS 33.30.028 entitled DOC to reimbursement for the costs of outside medical care from  



prisoners like Pearce who lacked the specified funding sources identified in  



subsection .028(a).  It determined that subsection .028(a) identified two categories of  



                                                                                      

medical care - that "provided" and that "made available" to the prisoner.  But the court  



                                                   

concluded that subsection .028(a) assigned financial liability for both categories of care  



                                                                     

to the prisoner.  The court determined that the distinction between care "provided" and  



                                                                              

care "made available" is relevant only in subsection .028(b), which requires some level  



of  payment  for  care  only  when  the  care  is  "provided    to  [the  prisoner]  by  the  

department."19  



                    Turning  to  the  legislative  history  of  the  statute,  the  court  found  that  



subsection .028(b) was intended to deter prisoners' frivolous use of medical care, rather  

                  



than to limit a prisoner's liability under subsection .028(a).  The court also found that the  



                                                                         

legislative record reflected the legislature's intent to grant the State the ability to recover  



                                           

the full cost of medical care "if at some point in the present or future the prisoner had  



sufficient funds."  



                    The  superior  court  also  ruled  that  the  common  fund  doctrine  was  not  



                                                                                              

applicable  because  Pearce  and  his  attorney  did  not  confer  a  benefit  upon  the  State  



through the medical malpractice lawsuit.  It therefore concluded that DOC's recovery  



                                                                                                       

was not subject to a pro rata reduction for attorney's fees and awarded judgment against  



          19        AS 33.30.028(b).  



                                                             -7-                                                           6899  


----------------------- Page 8-----------------------

                                                                                                          20 

                                                                                                               

Pearce's estate in the amount of $149,730.95, including attorney's fees.                                      Pearce appeals  



both rulings.  



III.	     STANDARD OF REVIEW  



                    This case primarily involves a matter of statutory interpretation.  Statutory  

interpretation  is  a  question  of  law  to  which  we  apply  our  independent  judgment.21  



However,"an agency's interpretation of a law within its area of jurisdiction can help  



                                                                      

resolve       lingering        ambiguity,         particularly         when       the    agency's         interpretation         is  



                       22  

                                                                

longstanding."               Whether  the  common  fund  doctrine  applies  to  this  case  is  also  a  



                                                                       23  

question of law that we review independently.                               



IV.	      DISCUSSION  



                                                         

          A.	       A Prisoner Is Liable For The Costs Of Medical Care Provided Or  

                    Made Available.  



                                               

                    As noted above, under AS 33.30.028(a) "the liability for payment of the  



                                        

costs of medical . . . care provided or made available  to a prisoner . . . is, subject to (b)  



                                                                                                   

of this section, the responsibility of the prisoner . . . ." (Emphasis added.)  The following  



                                                                                                     

subsection, AS 33.30.028(b), states that "[t]he commissioner shall require prisoners who  



          20        The superior court's order awards DOC a principal amount of $137,010.35       



plus  $12,720.60  in  attorney's  fees  for  a  total  of  $149,730.95.     The  record  does  not  

indicate how the superior court arrived at the figure of                             $137,010.35; the State claimed  

to have spent $147,494.94 on outside medical care for Pearce and withheld $140,847.00       

from the final judgment award in the 2008 medical malpractice case.                                       Neither party has  

appealed the amount of the award.  



          21        Native Vill. of Tununak v. State, Dep't of Health & Soc. Servs ., 303 P.3d  



431, 440 (Alaska 2013).  



          22        Bartley v. State, Dep't of Admin., Teacher's Ret. Bd. , 110 P.3d 1254, 1261  



(Alaska 2005) (citing  Union Oil Co. v. State, Dep't of Revenue, 560 P.2d 21, 23, 25  

(Alaska 1977)).  



          23        See Edwards v. Alaska Pulp Corp., 920 P.2d 751, 756 (Alaska 1996).  



                                                                -8-	                                                        6899
  


----------------------- Page 9-----------------------

                                                    

are without resources under (a) . . . to pay the costs of medical . . . care provided to them  



                                                                           

by the department.  At a minimum, the prisoner shall be required to pay a portion of the  



costs based upon the prisoner's ability to pay."  



                                     

                     When we interpret this statutory language we begin with the plain meaning  



                                 24  

of  the  statutory  text.              The  legislative   history   of   a  statute  can  sometimes  suggest  a  



different meaning, but "the plainer the language of the statute, the more convincing   



                                                             25  

contrary  legislative  history  must  be."                         "Even  if  legislative  history  is  'somewhat  



                                                                                                                26  

contrary' to the plain meaning of a statute, plain meaning still controls."                                          



                     Pearce argues that under subsection (a), in-house services are "provided"  

                                                             



to a prisoner and outside medical services are "made available" to a prisoner.  Pearce  



argues that subsection (b) means that a prisoner who has no insurance or other special  



                           

resources under (a) is only required to pay a co-pay for in-house services and is not  



                                                                                    

required to pay anything for outside medical services.  In response, the State argues that  



                                                                                                

all medical services are both "provided" and "made available" to a prisoner who receives  



medical care.  The superior court concluded that this distinction makes no difference in  



this case because subsection (a) makes a prisoner liable for the costs of all medical care.  



                     We conclude that the superior court's interpretation of this statute is most  



                                                            

consistent with its plain meaning. The language of subsection (a) makes a prisoner liable  



                                                                                                                              

for all medical care regardless of whether it is "provided" or "made available" to the  



                                                                                                        

prisoner.    Subsection  (b)  requires  minimum  payment  terms:  the  commissioner,  at  a  



                                                                  

minimum, must require prisoners without adequate resources to make a co-payment for  



          24         Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).  



          25         Id. (internal quotation marks omitted).  



          26         Estate of Kim ex rel. Alexander v. Coxe , 295 P.3d 380, 387 (Alaska 2013)   



(citing Oels v. Anchorage Police Dep't Emps. Ass'n, 279 P.3d 589, 597 (Alaska 2012)).  



                                                                 -9-                                                          6899
  


----------------------- Page 10-----------------------

                                              

services "provided" to them.  But this subsection does not set a maximum payment for  



                                                                                                             

services  "provided,"  nor  does  it  set  any  limitations  on  liability  for  services  "made  



available" to the prisoner.  



                     The dissent argues that our reading of the statute renders superfluous the  



statutory clause making subsection (a) "subject to" subsection (b).  However, under our  



                        

interpretation, subsection (a) reflects a reasonable presumption that there will be dual  



                                                                

liability  for  the  prisoner  and  the  listed  collateral  payers,  which  is  made  subject  to  



subsection (b):  if there are no collateral payers, and the prisoner is otherwise unable to  



                  

pay in full, the commissioner must collect at least a minimum payment from the prisoner  



                                                                        

for all in-house services.  Even if our reading of the statute did render the "subject to"  



clause redundant, such an interpretation is closer to the text than the substantial negative  



                                        

implication proposed by the dissenting opinion:  namely, that the legislature's silence  



                 

regarding  the  situation  in  which  a  prisoner  has  no  collateral  resources  warrants  the  



                                                              

addition to subsection (b) of a provision relieving the prisoner of all responsibility to pay  



                                                                                               

for outside services even if the prisoner has adequate personal resources to pay for those  



services.  



                                                                             

                     In the same vein, the dissent argues that our reading of the statute renders  



                                                                                                              

the  list  of  collateral  payers  in  subsection  (a)  redundant  because  if  the  prisoner  is  



responsible  for  all  of  his  medical  costs,  then  listing  potential  collateral  sources  for  



                                       

payment is unnecessary.  However, the enumeration of possible collateral sources serves  



                                      

at least three purposes:  (1) it gives notice to potential collateral payers that they may be  



                                                                                

liable for medical costs if they are associated with a prisoner as described in the statute;  



                                                                                              

(2) it provides prisoners with guidance about their payment and coverage options; and  



(3) it provides the DOC with a list of alternative payers to collect from.  These are  



reasonable purposes that give meaning to this statutory language.  



                                                               -10-                                                          6899
  


----------------------- Page 11-----------------------

                                                                                                      

                    To  satisfy  the  requirements  of  AS  33.30.028(b),  DOC  adopted  the  



regulation found at 22 AAC 05.121.  Subsection (b)(1) of this regulation requires a  



prisoner to make a co-payment for medical services provided to the prisoner by the  



                                                  

department through department employees or contractors.  Subsection (b)(2) requires a  



prisoner to arrange to obtain payment or coverage from one or more of the responsible  



parties  set  out  in  AS  33.30.028(a)  for  services  not  provided  through  department  



employees or contractors.  



                                                                                        

                    This portion of the regulation supports the distinction between in-house  



                     

services and outside services that Pearce relies on.  But the regulation does not conflict  



                                        

with  our  reading  of  the  statute.    Subsection  (b)  of  the  statute  mandates  that  the  



commissioner charge prisoners at least a minimal amount for in-house services rendered.  



                                                                                                             

The regulation implements that command and properly goes no further. Like the statute,  



the  regulation  says  nothing  of  divesting  the  prisoner  lacking  collateral  resources  of  



                                                                                                                         

liability for outside services if the prisoner has adequate personal resources to pay for  



                      27  

those services.            Indeed, the regulation makes no provision at all for the situation in  



                                                                              

which a prisoner without collateral resources has received outside services, which is  



appropriate in light of the statute's silence on the issue.  



                                                           

                    One could argue that our reading of dual liability would render portions of  



                                                                                        

the regulation incomplete or redundant.  For example, 22 AAC 05.121(e) states that "a  



                                                                                

prisoner may be charged for the full costs of health care services [provided by outside  



                                                                          

providers], resulting from a self-inflicted injury, or an injury to the prisoner or to another  



              

prisoner resulting from an assault or other violation of facility rules or state law . . . ."  



          27        In  contrast,  the  regulation  does  state  a  different  situation  in  which  the  



                                                                                                                      

department will not pursue payment: where certain inspections, examinations, or testing  

                                                                                                           

are required by other state regulations or are necessary to protect the health of others.  

See 22 AAC 05.121(c).  



                                                              -11-                                                             6899  


----------------------- Page 12-----------------------

                                                                                                               

This subsection seems unnecessary if AS 33.30.028(a) makes the prisoner liable for all  



                                                                                            

medical care.  But we read this subsection as a clarification that the department may  



collect  full  payment  from  a  prisoner  who  inflicts  an  injury  without  regard  to  the  



minimum  co-payment  that  would  otherwise  apply.    Interpreted  in  this  fashion,  the  



regulation does not conflict with the our reading of AS 33.30.028(a).  



                                                                                             

                    The superior court's interpretation of this statute is also consistent with its  



                                                                         

legislative history.  We have already recognized that the primary purpose of this statute  



is to reduce medical costs:  



                                                   

                    The primary goal of AS 33.30.028 is reducing medical costs:  

                    the   legislation   that   led   to   the   reimbursement   statute's  

                    enactment was directed at controlling the costs incurred in  

                                                         

                    correctional institutions, and the sponsor statement indicated  

                    the proposed measures would reduce some of the costs of  

                    inmate health care and allow [the State] to focus its limited  

                    budget on its true mission.  Although the legislative history  

                    does  not  explicitly  address  extending  liability  to  former  

                                                                                              

                    prisoners, preventing the State from collecting from prisoners  

                    to the fullest extent possible would contravene the statute's  

                    cost-saving purpose and is not justified by another interest  

                                                                                                         [28] 

                                                                               

                    evident from the face of the statute or its legislative history.  



In this case, the superior court's decision to include a prisoner's personal wealth among  



those resources subject to reimbursement is consistent with the statute's primary purpose  



of reducing the DOC's medical costs.  



                                                          

                    Moreover, the legislative record reflects an intent to take advantage of any  



                                                                                          

financial resources to which a prisoner might have access. In a hearing before the House  



                                                                                               

Finance Committee, a member of Representative Mulder's staff noted that "there will be  



                                                                                                        

individuals . . . that will have other coverage or resources" and that "[t]he legislation  



          28  

                                                                   

                    Hendricks-Pearce , 254 P.3d at 1092-93 (internal citations and quotations  

omitted).  



                                                             -12-                                                           6899  


----------------------- Page 13-----------------------

allows  the  Department  to  become  a  secondary  payer  to  the  primary  health  care  



                29  

                                                                                                          

provider."           The staffer also stated that "the intent is to allow the Department to take  



                                                                                                

advantage of other coverage that is available or to access the resources of someone that  



                                         30  

                                              These statements suggest that the committee intended that     

is independently wealthy."  



a prisoner's personal wealth be included within the coverage of this statute.  



                     The dissent argues that, rather than cost-saving generally, the legislature  



                                                                       

had a more specific purpose in mind when it drafted the statute:  "to deter frivolous  



prisoner medical complaints and the overuse of medical services."  And the dissent  



                                                                                                

argues that this more specific goal, while perfectly consistent with an overarching desire  



                                                                        

to cut costs, "outweighed any subsidiary goal of recovering costs."  Although we do not  



                                                 

agree with that view, even if it is taken as true, our reading of the statute is better suited  



to achieving this deterrence.   



                                                                         

                     Under our reading of this statute, a prisoner will be liable for  medical costs,  



                                                                                                               

those rendered both in-house and outside the prison, whether or not he has collateral  



                   

resources. This rule will certainly deter prisoners from overuse of medical services more  



                                                                                                          

than a rule relieving a prisoner of all responsibility.   If Pearce's interpretation were  



                                                                 

adopted, there would be nothing to deter a prisoner from seeking outside care other than  



the requirement that he first obtain a referral from an in-house provider.  But, whether  



or not prior approval is required, a prisoner's liability for the cost of outside treatment  



                                                                               

will also act as a reasonable deterrent.  This is the same reasonable deterrent that affects  



           29        Minutes, House Finance Comm. Hearing on H.B. 219, 19th Leg. 1st Sess.                                  



(Apr.  20,  1995)  (testimony  of   Dennis  DeWitt,  Legislative  Assistant  to  Rep.  Eldon  

Mulder) (emphasis added).  



          30  

                                                                                       

                     Minutes, House Finance Comm. Hearing on H.B. 219, 19th Leg. 1st Sess.  

(Apr.  20,  1995)  (testimony  of  Dennis  DeWitt,  Legislative  Assistant  to  Rep.  Eldon  

Mulder) (emphasis added).  



                                                                 -13-                                                           6899
  


----------------------- Page 14-----------------------

patients outside a prison; any patient may reasonably choose to decline unnecessary  



                                                                                            

medical services, especially if he has no collateral resources. If this statute was intended  



to deter unnecessary treatment by holding prisoners financially responsible for their  



                               

treatment decisions, such deterrence will be mitigated if wealthy prisoners are relieved  



of their medical expenses.  



                                                                                          

                    Thus, there is no reason why wealthy prisoners should be exempted from  



                                                                                                             

liability in a bill designed either to deter over-use of medical services or to reduce costs.  



        

The dissenting opinion suggests that one possible motivation for such an exemption  



                                                                

could be to reduce poverty and recidivism.  But there is no indication that the legislature  



                                                                                         

believed that making prisoners responsible for their own bills would promote recidivism.  



                                                                                                           

From the legislative history we have reviewed, it seems more likely that the legislature  



                        

concluded that controlling these medical costs will allow DOC "to focus its limited  



                                           31  

budget  on  its  true  mission,"               that  is,  to  maintain  correctional  facilities,  to  provide  



                                                                                                      

necessary treatment, and to establish programs that are calculated to protect the public  

and promote rehabilitation.32  



                    Medical services in this country are extremely expensive for all patients,  



                                                      33  

both inside and outside prison walls.                     Making law-abiding Alaskans responsible for  



their  own  health  care  decisions  and  excusing  prisoners  from  such  liability  could  be  



          31       Hendricks-Pearce , 254 P.3d at 1092-93.  



          32       See AS 33.30.011.  



          33       See,  e.g.,  Dan  Mangan,  Medical  Bills  Are  the   Biggest  Cause  of  US  



B a n kr u ptcy ,         CNBC           H ealth        Care         (Jun e       25 ,      20 13 ,       2:29        PM ),  

http://www.cnbc.com/id/100840148 ; Jason Kane, Report: 1 in 3 Americans Burdened  

 With  Medical  Bills,  The  Rundown,  PBS  NewsHour  (March  8,  2010,  10:16  AM),  

http://www.pbs.org/newshour/rundown/2012/03/report-a-third-of-americans-burdene  

d-with-medical-bills.html.  



                                                            -14-                                                       6899
  


----------------------- Page 15-----------------------

considered deeply unfair.  Indeed, if the cost of paying for a prisoner's health care is  

                                                                                                                     



absorbed by DOC, then the public will bear that cost in taxes or foregone opportunities.  

                                                          



                   In summary, the legislative history is consistent with a natural reading of  

                                                                                           



AS 33.30.028(a), requiring a prisoner to be liable for the cost of all medical services  

                                                                                                      



provided  or  made  available  to  the  prisoner.    The  implementing  regulation  is  not  



                                                      

inconsistent with this interpretation.  The superior court properly concluded that Pearce  



                                                                                                            

was liable for payment of the cost of outside medical care made available to him during  



his incarceration.  



          B.	       The   Common   Fund   Doctrine   Does   Not   Apply   To   The   State's  

                   Reimbursement Claim .  



                   Pearce also argues that the superior court should have deducted a pro rata  



                                                                            

share of the attorney's fees he incurred pursuing the medical malpractice judgment from  



                                                                                                           

the funds the State retained to pay for his medical care.  The common fund doctrine  



provides  that  a  litigant  or  "lawyer  who  recovers  a  common  fund  for  the  benefit  of  



                                                                                                                   

persons other than himself or his client is entitled to a reasonable attorney's fee from the  



fund as a whole.  The doctrine is implicated any time one litigant's success releases  



                                                                                                   34  

well-defined benefits for a limited and identifiable group of others."                                 



                    The common fund doctrine has been applied to subrogation and class action  



cases where the plaintiff's attorneys obtained a specific recovery for the benefit of other  



           35  

parties.       For example, when an employee recovers on a personal injury or wrongful  



death claim against a third party, a pro rata share of the employee's attorney's fees and  

                                                                             



          34       Alaska Native Tribal Health Consortium v. Settlement Funds Held For E.R. ,  



84 P.3d 418, 433-34 (Alaska 2004) (internal quotations and citations omitted).  



          35       Edwards v. Alaska Pulp Corp ., 920 P.2d 751, 756 (Alaska 1996) (applying  



common fund analysis to class action case); Cooper v. Argonaut Ins. Cos., 556 P.2d 525,  

527 (Alaska 1976) (applying doctrine to workers' compensation reimbursement statute).  

                                           



                                                            -15-	                                                      6899
  


----------------------- Page 16-----------------------

                                                                                                                 36  

                                                                               

 costs is deducted from the workers' compensation lien for the same injury.                                          Likewise,  



 when  a  hospital  accrues  a  medical  lien  for  care  provided  to  an  injured  patient,  the  



                                                                                                                

 patient's attorney fees must be deducted before the lien is paid from a settlement for  



                       37  

 those injuries.            



                    But the common fund doctrine should not be extended to general obligations  



                    

that existed before the plaintiff's injury - obligations that were not dependent on the  



                                                                                    

creation of a settlement fund.  In Alaska Native Tribal Health Consortium v. Settlement  



Funds ,  this  Court  cited  with  approval  the  New  Mexico  Supreme  Court's  decision  



                                                                    

distinguishing indirect beneficiaries, such as utility creditors and mortgage holders, from  



                                                                               38 

                                                                                   Other jurisdictions have declined  

the hospital that directly benefits from a hospital lien. 



                    

to apply the common fund doctrine to general creditors of a plaintiff simply because the  



                                                             39  

plaintiff's recovery creates a new asset.                        In these cases, the plaintiff is not acting on  



                                                                                                         

behalf of its creditors in pursuing its claim.  The creditors' claims are independent of the  



                                                                                                

plaintiff's claim; the debts to the creditors exist regardless of the outcome of the litigation.  



                                        

                    In this case, the medical expenses Pearce incurred in prison were unrelated  



                                                                                  

to the injuries he sustained from medical malpractice. The State became Pearce's creditor  



for his unrelated medical expenses, but the State had no special lien on his malpractice  



           36         Cooper, 556 P.2d at 525-28.  



           37        Alaska Native Tribal Health Consortium , 84 P.3d at 433-34.   



           38        Id. at 435 (citing Martinez v. St. Joseph Healthcare Sys. , 871 P.2d 1363                       



  (N.M. 1994)).   



           39        In re Key West Rest. & Lounge, Inc ., 54 B.R. 978, 985 (Bankr. N.D. Ill.  



  1985); Watkins v. GMAC Fin. Servs., 785 N.E. 2d 40, 45 (Ill. App. Ct. 2003); TM Ryan  

                              

  Co. v. 5350 S. Shore, LLC, 836 N.E.2d 803, 811 (Ill. App. Ct. 2005); Hilton Oil Transp.  

 v. Oil Transp. Co., S.A., 659 So.2d 1141, 1154, n.7 (Fla. Dist. Ct. App. 1995); Villanueva  

                                                                              

 v. Wolff, 419 A.2d 1141, 1147 (N.J. Super. Ct. App. Div. 1980); Leischner v. Alldridge ,  

                                                

 790 P.2d 1234, 1237 (Wash. 1990) (en banc).  



                                                               -16-                                                         6899
  


----------------------- Page 17-----------------------

                                                                                                          

recovery.  Pearce's attorneys did not create any special fund that benefitted the State, so  



the common fund doctrine does not apply to this recovery.  



V.       CONCLUSION  



                                                                              

                  We conclude that AS 33.30.028(a) allows the DOC to seek reimbursement  



                                                           

for the costs of outside medical care, and that the common fund doctrine does not apply  



to this case.  We therefore AFFIRM the superior court's judgment.  



                                                          -17-                                                    6899
  


----------------------- Page 18-----------------------

FABE, Chief Justice, with whom MAASSEN, Justice, joins, dissenting.  



                   In my view, the court's interpretation of AS 33.30.028 is incorrect, and  



traditional methods of statutory construction - looking to the statute's text, legislative  



history and purpose, longstanding interpretations of administrative regulations, and policy  



considerations - all require the opposite interpretation.  I would hold that AS 33.30.028  



does  not  render  a  prisoner  lacking  collateral  resources  enumerated  in  subsection  (a)  



                                                                                                  

personally  liable  for  the  costs  of  medical  care  obtained  from  outside  providers.  

Accordingly, I respectfully dissent and do not join the plurality opinion.1  



                   Alaska Statute 33.30.028 is divided into two subsections.  Subsection (a)  



                                                                                   

states that medical care "provided or made available to a prisoner" is "the responsibility  



of the prisoner and the [five enumerated third-party collateral sources, such as insurers  



and government welfare agencies]."  Subsection (a)'s assignment of liability is made  



"subject to (b) of this section."  Subsection (b) directs the Department of Corrections  



(DOC) to "require prisoners who are without resources under (a) of this section" to pay  



                                                                                                                 

for medical care "provided to them by the department" and also goes on to specify a  



                                                                                         2  

                                                                                                                

minimum  payment "based  on  the prisoner's ability  to  pay."                               This appeal raises  the  



           1        Because the court is evenly divided on the issue in this case, the plurality's  



 opinion  has  the  effect  of  affirming  the  superior  court's  ruling  but  will  have  no  

 precedential value.  See Alaska R. App. P. 106(a) ("In an appeal to the supreme court,  

 any issue or point on appeal on which the justices are equally divided is affirmed in that  

                                               

 appeal,  but  the  issue  or  point  decided  by  an  equally  divided  court  shall  not  have  

                                                                                               

 precedential effect."); Barnica v. Kenai Peninsula Borough Sch. Dist. , 46 P.3d 974, 982  

                                                                                       

 n.1 (Alaska 2002) (Bryner, J., dissenting).  



           2        AS 33.30.028 reads, in relevant part:  



                    (a)       .  .  .  [T]he  liability  for  payment  of  the  costs  of  

                                                                                           

                    medical . . . care provided or made available to a prisoner . . .  

                    is,  subject  to  (b)  of  this  section,  the  responsibility  of  the  

                                                                                                          (continued...)  



                                                            -18-                                                      6899
  


----------------------- Page 19-----------------------

                                                   

question of whether a prisoner who has received  medical care outside of the DOC system  



but  does  not  have  access  to  one  of  the  enumerated  collateral  sources  listed  in  



subsection (a) is rendered personally liable for the cost of the outside medical services  



under AS 33.30.028.  



                   In my view, the best reading of this statute is that subsection (a) creates  



                                                                                                           

personal liability for all types of health care - both that provided in-house by DOC staff  



and  contractors  and  that  made  available  by  outside  medical  providers  -  when  the  



                                                                                        

prisoner has a collateral source enumerated in subsection (a).  But when a prisoner has no  



                                                                           

such collateral source, then subsections (a) and (b), read in conjunction, create personal  



liability on the part of the prisoner only for health care provided in-house by DOC but not  



for care rendered by outside health care professionals.   



          2        (...continued)  



                    prisoner and the  



                              (1)      prisoner's insurer if the prisoner is insured . . . ;  

                                                                          



                              (2)      Department of Health and Social Services if the  

                                                                                                       

                    prisoner is eligible for assistance . . . ;  



                              (3)      United States Department of Veterans Affairs if  

                    the prisoner is eligible for veterans' benefits . . . ;  



                              (4)      United States Public Health Service, the Indian  

                    Health  Service,  or  any  affiliated  group  or  agency  if  the  

                    prisoner  is  a  Native  American  and  is  entitled  to  medical  

                                                                           

                    care . . . ;  



                              (5)      parent or guardian of the prisoner if the prisoner  

                    is under the age of 18.  



                    (b)       The [DOC] commissioner shall require prisoners who  

                    are without resources under (a) of this section to pay the costs  

                                                                                      

                    of medical . . . care provided to them by the department.  At  

                                                                               

                    a minimum, the prisoner shall be required to pay a portion of  

                    the costs based upon the prisoner's ability to pay.  



                                                            -19-                                                      6899
  


----------------------- Page 20-----------------------

                    The court today takes a different view.  It interprets this statute's "plain" and  



                                                                                                            

"natural meaning" as making the prisoner personally liable for all types of medical care,  



both  in-house  and  outside  -  full  stop  -  and  creating  third-party  liability  for  those  



                                                                           

sources enumerated in subsection (a).  The court interprets subsection (b) as having no  



effect whatsoever on subsection (a)'s assignment of liability, concluding instead that  



                                         

subsection (b) is merely a directive to DOC to charge a minimum payment to prisoners  



                                                                                                                           3 

                                                                                                                              The  

without resources enumerated in subsection (a) for care provided in-house by DOC. 



                                                                                  4                                               5 

                      

court reasons that (1) the statutory language "plain[ly]"  compels this "natural reading," 



(2) this interpretation is consistent with the statute's "primary purpose . . . to reduce  



                      6 

                                    

medical costs"  and the statute's legislative history indicating "an intent to take advantage  

of  any  financial  resources  to  which  a  prisoner  might  have  access,"7  and  (3)  DOC's  



                                                                                                                        8 

                                                                                                                           In my  

regulations implementing this statute are not inconsistent with this interpretation. 



                                                                                                                

view, the court has essentially redrafted the statute, disregarding its plain text, relevant  



                                                                                                                     

legislative history, and a contrary interpretation by DOC.   In doing so, the court has  



                                                                                                                  

enacted  a  new  policy  that  will  harm  the  State's  fiscal  and  public  safety  interests  in  



                                       

supporting the successful reentry of prisoners into the community upon their release from  



incarceration.  



           3         Op. at 9-10.
  



           4         Id. at 9.
  



           5
        Id. at 15.  



           6         Id. at 12.  



           7         Id.  



           8         Id. at 11-12.  



                                                               -20-                                                         6899
  


----------------------- Page 21-----------------------

                                                                                                     

                     The court's interpretation is foreclosed by the text of the statute.  Subsection  



       

(a) specifically conditions its assignment of liability on subsection (b):  "[T]he liability  



                                                                                                   

for payment of the costs of medical . . . care provided or made available to a prisoner . . .  



                                                                                                                  

is, subject to (b) of this section , the responsibility of the prisoner and the [enumerated  



                                      9                                                10                                                   

collateral sources] . . . ."   The definition of "subject to"                              and the legislature's deliberate  

choice to include it in this statute11 show that subsection (a)'s assignment of liability must  



                                     

                                                                                                     

be read in conjunction with, and is limited by, subsection (b).   If the court were correct,  



                                                    

and subsection (a) established a flat assignment of personal liability while subsection (b)  



                                                                                                                                  

merely established an unrelated directive for DOC to charge mandatory minimum fees in  



                                      

certain cases regarding in-house care, then the subject-to clause would serve no purpose,  



                                                                                                                   

and its deletion would not alter the meaning of the statute at all.   But "[w]e must . . .  



                                                                                                      

presume 'that the legislature intended every word, sentence, or provision of a statute to  



                                                                                                                                         12  

                                                                             

have some purpose, force, and effect, and that no words or provisions are superfluous.' " 



            9          AS 33.30.028(a) (emphasis added).  



            10         See BLACK 'S LAW DICTIONARY 1425 (6th ed. 1990) (defining "subject to"  



 as "[l]iable, subordinate, subservient, inferior, obedient to; governed or affected by;  

 provided          that;     provided;         answerable           for");      WEBSTER 'S            NEW        INTERNATIONAL  

 DICTIONARY  2509 (2d ed. 1959) ("Being under the contingency of; dependent upon or                                             

 exposed to (some contingent action); - with to." (emphasis in original)).  



            11         The  legislature  routinely  makes  one  provision  in  a  statute  "subject  to"  

                                                                                                                        

 another, limiting a party's liability resulting from the first provision by referencing a  

                                                                                                 

  second provision in such a way as to subtract liability from the first provision.  See, e.g.,  

                                                                                               

 ch.  70,    14,  SLA  1995  (amending  the  then-current  version  of  AS  33.30.071(a)  to  

                                                                                         

 declare that "the [State's] responsibility for providing necessary medical services for  

                                                                                          

 prisoners remains with the commissioner of corrections . . . subject to the responsibility  

 for payment under AS 33.30.028").  



            12  

                                                                  

                      Kodiak Island Borough v. Exxon Corp. , 991 P.2d 757, 761 (Alaska 1999)  

  (quoting Rydwell v. Anchorage Sch. Dist. , 864 P.2d 526, 530-31 (Alaska 1993)).  



                                                                  -21-                                                             6899
  


----------------------- Page 22-----------------------

The court today "step[s] over the line of interpretation and engag[es] in legislation"                                        13 by  



reading out subsection (a)'s subject-to clause from the statute.   



                                                                                          

                    I  would  avoid  such  judicial  redrafting  of  a  legislative  enactment  by  



                                                                                                          

interpreting the statute as written:  Subsection (b)'s requirement that DOC recoup some  



                                                                                              

of the costs for in-house care "provided" by DOC for those prisoners without sources  



enumerated   in   subsection   (a)   must   limit,   by   means   of   the   subject-to   clause,  



                                                                                                     

subsection (a)'s assignment of liability.  The only interpretation that preserves all the  



words  of  the  statute  would  draw  on  the  distinction  between  subsection  (b)'s  use  of  



                                                                                                

"provided" and  subsection  (a)'s use of both  "provided" and  "made available."    This  



distinction, in conjunction with the subject-to clause, would lead to the conclusion that  



subsection (a) makes a prisoner personally liable for medical costs provided in-house and  



                                                                                                                    

for medical costs made available outside of DOC where the prisoner has a collateral  



source enumerated in subsection (a), but that subsection (a) does not make a prisoner  



                                                    

personally liable for medical care rendered by outside healthcare professionals where the  



                                                        

prisoner lacks an enumerated source from subsection (a).  This interpretation respects the  



                                                                                                                     

legislature's  drafting  choices,  requires  no  additions  to  the  statute,  and  makes  no  



subtractions  from  the  statute.    Unfortunately,  the  same  cannot  be  said  of  the  court's  



interpretation.  



                                                                                                

                    The court responds to my argument by asserting that the subject-to clause  



                                                           

is not superfluous because subsection (b) directs DOC to collect payment from prisoners  



                                      14  

                                                                 

under certain conditions.                 This assertion simply ignores the meaning of "subject to" in  



the statutory phrase "subject to (b) of this section."  The court would read this text, which  



            13        Gottschalk   v.   State,   575   P.2d   289,                   296      (Alaska       1978)       (quoting  



  Commonwealth v. Armao, 286 A.2d 626, 632 (Pa. 1972)).  



            14        Op. at 9-10.  



                                                               -22-                                                              6899  


----------------------- Page 23-----------------------

plainly limits subsection (a)'s assignment of liability   by   demanding that it be read in  



conjunction with a limitation in subsection (b), as merely indicating to the reader:  "And     



subsection (b) also exists, although it has no effect here."                                      The court then claims that   



"[e]ven if our reading of the statute did render the 'subject to' clause redundant," that  

                                                                                          15  But my interpretation calls for  

redundancy "is closer to the text" than my interpretation. 



no addition to, subtraction from, or alteration of the text of the statute.  All it requires is  

                                                                                                                    



acknowledging the meaning of "subject to," reading the two clauses in conjunction, and  

                                                                         



respecting the means employed by the legislature when it chose the text of AS 33.30.028.  

                                   

My interpretation does not create a "substantial negative implication";16 rather, it follows  

                                                          



the explicit statutory directive to read subsection (a) in conjunction with, and as limited  

                                                                                



by, subsection (b).  



                      The  court's  interpretation  of  AS  33.30.028  creates  another  surplusage  



problem.  Subsection (a) enumerates five collateral sources that are "responsib[le]" for  



the in-house and outside medical care costs of prisoners.  If the court were correct that  

                                                               



subsection  (a)  gives  the  prisoner  responsibility  for  all  costs  incurred  for  all  types  of  



                       

medical care, then enumeration of specific collateral sources would be redundant.  Even  



                                                                                              

without enumeration, DOC could still invoice those who are already derivatively liable  



for the prisoner's health care, such as the prisoner's insurer or a public agency providing  



                                                                                   

benefits to the prisoner.  The only possible purpose for enumeration of collateral sources  



in  (a)  that  would  not  render  the  enumeration  mere  surplusage  would  be  to  limit,  in  



            15         Id. at 10.  



            16         Id.  



                                                                   -23-                                                                  6899  


----------------------- Page 24-----------------------

conjunction  with  subsection  (b)  and  the  subject-to  clause  of  subsection  (a),  prisoner  

liability for certain types of care where the prisoner lacks an enumerated source.17  



                   The  court  responds  by  hypothesizing  three  purposes  for  enumerating  



                                              

collateral sources.  But none of the court's reasons seem plausible.  The court asserts that  



                                                                                                                      18 

                                                                                                                         but  

enumerating sources in subsection (a) "gives notice to potential collateral payers," 



                                                                                                 

it could hardly be news to an insurer that it is liable for medical costs covered by its  



                                    19  

                                                                                                             

contract with the insured.             It could hardly be news to a government agency that it would  

                                                                                               20  And it could hardly  

provide benefits for people who meet the qualifications for benefits. 



be news to parents and guardians that they may be liable for the medical care of their  



                       21  

minor  children.             The  court  also  asserts  that  enumeration  "provides  prisoners  with  



           17       Enumeration of sources in subsection (a) does not, on its own,                          create third- 



 party  liability  on  the  part  of  anyone.    In  order  to  have  the  third-party  deemed  

 "responsib[le]" by AS 33.30.028(a), the prisoner must already be eligible for benefits  

 from a public agency or have an insurance plan that covers such costs.  Indeed, the state  

                                                                      

 legislature simply would not have the power to make a federal agency like the United  

 States Department of Veterans Affairs "responsib[le]" for a prisoner's medical costs  

 unless federal law already provided for such responsibility.  Accordingly, the court may  

                             

 not  rely  on  the  creation  of  third-party  liability  as  a  non-surplusage  purpose  for  the  

 enumeration in subsection (a).  



           18       Op. at 10.  



           19       See  AS  33.30.028(a)(1)  (making  certain  types  of  medical  care  the  



 "responsibility" of the "prisoner's insurer if the prisoner is insured").  



           20       See  AS  33.30.028(a)(2)-(4)  (making  certain  types  of  medical  care  the  



                                                                                   

 "responsibility" of the Department of Health and Social Services and the United States  

                                                                                                            

 Department of Veterans Affairs, "if the prisoner is eligible," and the United States Public  

 Health Service or the Indian Health Service, "if the prisoner is a Native American and  

 is entitled to medical care from those agencies or groups").  



           21       See  AS  33.30.028(a)(5)  (making  certain  types  of  medical  care  the  



                                                                                                          (continued...)  



                                                            -24-                                                      6899
  


----------------------- Page 25-----------------------

guidance about their payment and coverage options,"22 but the Alaska Statutes provide  



                                                                      

rules of law and are generally not thought of as means for providing non-binding financial  



                                                                                                                             

advice to prisoners. And the court asserts that enumeration "provides the DOC with a list  

                                                       23 but DOC could collect from anyone already liable  

                                                           

of alternative payers to collect from," 



for a prisoner's health care even without enumeration.  Under the court's theory, the  

                                                    



statute's legal effect would thus not be altered one iota by omitting enumeration, and the  

                                                                                   



court  does  not  resolve  this  surplusage  problem.    Moreover,  there  is  no  indication  



                   

whatsoever in the legislative history that the legislature had any such non-legal reasons  



for enumerating collateral sources.  



                                                                                           

                    In sum, the court's opinion effectively deletes statutory text by omitting it  



                                                                                                       

from its main conclusion that subsection (a) assigns personal liability for all medical costs  



                                                                                                        

to the prisoner.  The court's conclusion ignores the subject-to clause from the statute as  



well as the enumeration of collateral sources.  Only by eliminating critical language in the  



                                                           

statutory provision can the court read it to create the unconditional assignment of personal  



liability for all medical care that the court finds in AS 33.30.028 today.  



                                       

                    The court's interpretation is also contradicted by the statute's purpose.  It is  



                       

clear from the legislative history of AS 33.30.028 that the legislature intended for this  



statute  to  deter  frivolous  prisoner  medical  complaints  and  the  overuse  of  medical  



             24  

services.        It is also clear that this deterrence rationale outweighed any subsidiary goal  



          21        (...continued)
  



 "responsibility" of the "parent or guardian of the prisoner if the prisoner is under the age
  

 of 18").  



           22        Op. at 10.  



           23        Id .  



           24        Staffer Dennis DeWitt testified to  the House Finance Committee that the  



                                                                                                               (continued...)  



                                                               -25-                                                         6899
  


----------------------- Page 26-----------------------

                              25  

                                                                         

of recovering costs.              (Indeed, almost all of the cost-savings discussion in the legislative  



history revolved around an entirely different  statute that was part of the same bill and  



                                                                                    

would make certain terminally ill prisoners eligible for special medical parole in order to  



remove from the public the burden of paying for their health care costs.)  



                                                                                          

                    That the statute's primary purpose is to deter overuse of medical resources  



                                                                                                                 

supports the plain-text interpretation that subsection (a) assigns personal liability to the  



                                                     

prisoner for all in-house care, but assigns personal liability only for outside care where  



          24        (...continued)  



 statute is "designed to act as a deterrent to frivolous complaints."  Similarly, DeWitt told  

                                                                                                    

 the Senate Judiciary Committee that the statute "allows the Department of Corrections  

 to establish a billing mechanism for medical services within prisons to help control  

                                                                         

 medical  services,  similar  to  a  deductible  in  a  traditional  health  insurance  policy."  

               

 Assistant Attorney General Michael Stark informed the House Finance Committee that  

 "the legislation will deter frivolous medical complaints" and that the harm the legislation  

                                                                    

 was designed to prevent stemmed from the fact that "institutionalized populations often  

                                                                          

 include individuals that manifest medical complaints in which there is no basis in fact."  

                                                                                                             

 Representative Eldon Mulder told the House committee that "[t]he whole thing is to  

                                     

 make certain there is a need for a doctor so they know it costs to see a doctor."  Minutes,  

                                             

 H. Judiciary Comm. Hearing on H.B. 219, 19th Leg., 1st Sess. (Mar. 24, 1995).  



           25         DeWitt testified to the House committee that "the co-payments would be  



                           

 small"  because  the  statute  "is  an  attempt  to  allow  the  Department  to  get  control  on  

                                      

 utilization  as  opposed  to  securing  revenue."    Representative  Mulder  stated  to  the  

                                                           

 committee that "[t]his is one of those areas where they are trying to do a little bit of cost  

 prevention" (emphasis added) while DOC Special Assistant Jerry Shriner "stressed that  

 collection  would  be  difficult  and  the  cost  of  collecting  could  exceed  the  amount  

                                                                                            

 collected."  Representative Con Bunde "stated he wouldn't look at it to really recapture  

                                         

 much money, and the net result might be by the time the paperwork is done, there is no  

 money  return."    Representative  Bunde  went  on  to  state  that  "that's  simply  a  token  

                                                                                             

 payment  so  that  they're  reminded  of  their  cooperation  in  their  rehabilitation  or  

 whatever. . . . [I]t's not going to make any money necessarily for the Department of  

                                                                                                         

 Corrections. . . . I just want to make sure that we understand we're not making a fiscal  

                                          

 impact while we do this."  When the bill was passed out of committee, it received  "zero  

 fiscal notes" indicating that it was not expected to impact the budget.  Id.  



                                                               -26-                                                          6899
  


----------------------- Page 27-----------------------

                                                                                                       

a prisoner has a collateral source enumerated in (a).  Prisoners are free to seek in-house  



medical services on their own volition, thus making copayment through personal liability  



a useful deterrent to frivolous medical complaints.  But personal liability for a copayment  



                                       

for treatment by outside staff would not serve the goal of deterring frivolous overuse of  



                                                                                                           

medical services because prisoners receive outside medical treatment only upon referral  



                                        26  

                                                                               

from in-house prison staff.                Simply put, with DOC medical staff standing as gatekeepers,  



                                                    

there is no frivolous overuse of outside medical resources that would be deterred by  



                                                   27  

                                                                                                    

personal liability for copayments.                    Thus, the statute's purpose is furthered by the text the  



                                                                                                                       

legislature used to enact it; the court's interpretation of that text today does not further the  



legislature's goal.  



            26        DOC's  brief  states  that  the  rationale  "to  provide  .  .  .  a  disincentive  to  



 making frivolous requests for care . . . does not apply to care received from outside  

                                                                

 providers because outside specialist referrals are made only at the direction of the DOC  

                                                                                              

 medical staff."  See also DOC Policy & Procedure 807.02 IV.D.4 ("The Department may  

                                                                                         

 use consultants and specialists as needed to provide health care services to prisoners as  

 outpatients or through hospitalization.  The health care practitioner, in coordination with  

                                     

 the Superintendent, shall initiate referrals for special services and routine consultations  

                                                                                                 

 services.  The Medical Director must approve all non-emergency referrals.").  



            27        The  court  asserts,  without  any  explanation,  that  the  requirement  that  



                                                                                               

 prisoners obtain DOC approval before seeking or obtaining outside care will not deter  

                                   

 frivolous overuse of outside medical care; it then concludes that the goal of deterring  

 frivolous overuse of outside medical care will instead be served by assigning personal  

                                                            

 liability for such care when prisoners lack enumerated collateral sources.  Op. at 13-14.  

                                                                                                               

 But it is unclear how medically necessary outside care, pre-approved by DOC, could  

                                                        

 ever  be  frivolous.    The  behavior  that  the  court  claims  must  be  deterred  is  simply  

 nonexistent, by definition.  The court's claim that its "reading of the statute is better  

 suited to achieving . . . deterrence" of frivolous overuse of outside medical care, is thus  

                                                                                                                     

 utterly unsupported.  Id. at 13.  



                                                                -27-                                                          6899
  


----------------------- Page 28-----------------------

                    Despite this clear legislative history, the court concludes that "the primary          

                                                                          28   The court reaches this conclusion by  

purpose of this statute is to reduce medical costs."                                          



quoting dicta from one of our prior cases interpreting AS 33.30.028 in which we held that  

                                        

                                                                                                       29   In that case, we  

the statute applied to former prisoners as well as current prisoners.  

                                                                                                                        



stated: "Although the legislative history does not explicitly address extending liability to  

                                                                                                      



former prisoners, preventing the State from collecting from prisoners to the fullest extent  

                                                                                                         



                                                                                               30  

possible would contravene the statute's cost-saving purpose."                                      Citing only this very  



general statement of legislative intent from a case addressing a distinct issue, today's  



court  concludes  that  including  a  "prisoner's  personal  wealth  among  those  resources  



subject to reimbursement is consistent with the statute's primary purpose of reducing the  

DOC's medical costs."31  



                    The court is incorrect in its conclusion that the primary purpose of the statute  

                                                                                         



is to reduce DOC's medical costs through cost recovery.  The court mistakenly relies on  

                                                                                              



dicta regarding legislative intent in our prior decision interpreting AS 33.30.028.  In that  

                                                  



case, we addressed an issue for which there was no need to go beyond a conclusion that  

                                                                                               



the purpose of the statute, stated at the highest level of generality, was cost savings.  But  

                                                                       



reducing frivolous use of DOC medical services is a measure that saves costs.  We had  



no reason to detail these more specific cost-saving goals, such as deterring over-use of in- 

                                                                                                 



house  medical  services,  because  examining  legislative  purpose  at  a  high  level  of  



                                                                                                           

generality sufficed to answer the question presented.  Accordingly, we did not purport to  



           28        Id. at 12.  



           29        State, Dep't of Corr. v. Hendricks-Pearce, 254 P.3d 1088, 1092-93 (Alaska  



 2011).  



           30        Id. at 1093.  



           31         Op. at 12.  



                                                               -28-                                                             6899  


----------------------- Page 29-----------------------

give the final word on the purpose of AS 33.30.028.  By contrast, this case raises the  



question of the more specific purpose of the statute; one proffered purpose - raising  



                  

revenue - favors one interpretation while another proffered purpose - deterrence of  



frivolous use of medical services - favors a different interpretation.  As discussed above,  



the  legislative  history  clearly  indicates  that  deterrence  of  frivolous  overuse  was  the  



primary purpose of AS 33.30.028.  



                   The  court  today  deletes  from  the  statute  the  subject-to  clause  and  the  



                                                                                   

enumeration of collateral sources in subsection (a), and then reaches its conclusion by  



relying on an abstract statement of legislative purpose unsupported by the legislative  



history or the legislative text.  Properly used, legislative intent can clarify statutory text,  



but the intent must be discerned carefully and should never supplant the plain meaning  



of unambiguous text.  



                                                                                   

                   The court relies on a single statement in the legislative history to support its  



                                             

conclusion that the legislature intended for AS 33.30.028(a) to establish personal liability  



                                                                                   

for outside medical care.  Its reliance is misplaced.  The court quotes a staffer testifying  



in the House Finance Committee that the legislation was intended to reach "individuals  



                   

. . . that will have other coverage or resources," including "the resources of someone that  

                                      32  The court concludes from these pieces of evidence that "the  

is independently wealthy."                                               



committee intended that a prisoner's personal wealth be included within the coverage of  

                                                                                                               



                   33  

this statute."         The legislative history certainly does suggest that the legislature sought  

       



to make prisoners personally liable for at least some expenses.  For that matter, so does  

                                                                                              



the legislative text of subsection (a).  Thus, appeals to legislative history on this point are  



                                                                              

unnecessary.  But this general statement of intent is simply irrelevant in this case.  My  



           32       Id. at 12-13 (emphasis and omission from opinion).  



           33       Id. at 13.  



                                                             -29-                                                          6899  


----------------------- Page 30-----------------------

interpretation of AS 33.30.028 would assign personal liability for at least some medical                                           



costs. The more specific question before the court today is whether AS 33.30.028 assigns                  



personal liability in only those cases where a prisoner received in-house care and where   



the  prisoner  received  outside  care  and  also   has  enumerated  collateral  resources,  or  



whether  the  statute  also  assigns  personal  liability  in  those  cases  where  the  prisoner  



received outside care and lacks enumerated collateral resources.  In the end, the court  



points to absolutely no support for its reconstruction of the abstract purpose animating  



this statute, nor does it respond to or refute the voluminous contrary legislative history.  



                        The  court's  interpretation  is  also  inconsistent  with  the  longstanding  



                                                                                

interpretation of the statute by DOC's own regulations.  In 22 Alaska Administrative  



Code  (AAC)  05.121,  DOC  implemented  the  authority  granted  by  the  legislature  in  



                                    

AS 33.30.028.  The regulations specify in subsection (b)(1) that "a prisoner is financially  



responsible for a co-payment for health care services provided to the prisoner by the  



                                                                                                                                           34  

department              through          department              employees             or      designated            contractors"                while  



subsection (b)(2) specifies that "a prisoner shall arrange for the department to obtain  



                                                                                                

payment   or   coverage   from   one   or   more   of   the   responsible   parties   set   out   in  



                                                                                                                           

AS  33.30.028(a),  if  the  prisoner  receives  health  care  services  not  provided  through  



                                                                                         35  

department employees or designated contractors."                                               



                        These regulations interpret AS 33.30.028 in accord with my interpretation  



                                                                                                                                          

of the statute and contrary to the court's conclusion today.  Subsection (b)(1) makes the  



prisoner   personally   "financially   responsible"   for   costs   incurred   in-house,   while  



subsection (b)(2) conspicuously omits any declaration of personal financial responsibility  



                                                    

for outside medical care and instead directs the prisoner to "arrange for . . . payment . . .  



             34          22 AAC 05.121(b)(1).  



             35          22 AAC 05.121(b)(2).  



                                                                          -30-                                                                         6899  


----------------------- Page 31-----------------------

from one or more of the responsible parties set out in AS 33.30.028(a)."  The most natural  



                                                                              

reading of this language is that the prisoner is not personally financially responsible for  



                                                                                                         

outside medical care when he lacks enumerated collateral sources.  The court concludes  

that "the regulation does not conflict with [its] reading of the statute,"36 which assumes  



                                                                                      

that a prisoner is ultimately liable for the entire cost of all medical services received by  



                                                

the  prisoner.      But  the  court  never  addresses  the  conspicuous  lack  of  assignment  of  



personal financial responsibility in subsection (b)(2) of the regulation or the indirect  



                                                                

phrasing of "arrange for."  If the fact that a prisoner is potentially a "responsible party set  



                                                                                                                       

out in AS 33.30.028" made the prisoner personally responsible for payment for outside  



                                                                             

care even without collateral sources, it would be an odd turn of phrase indeed to assign  



                                                                                                                  

personal liability to a prisoner by directing the prisoner to "arrange for . . . payment" from  



himself, particularly when DOC in the immediately prior subsection of the regulation has  



already demonstrated that it knows how to assign personal liability directly.  



                                                                                                                 

                     In  my  view,  the  language  and  legislative  history  of  AS  33.30.028  are  



                                                                                                                           

sufficiently clear that I would hold for Hendricks-Pearce on their strength alone. But even  



                                                                

if the statute's meaning were ambiguous in this case, DOC's longstanding interpretation  



            36        Op. at 11.  



                                                                -31-                                                               6899  


----------------------- Page 32-----------------------

                                                                                            37  

of AS 33.30.028 should resolve any lingering ambiguity.                                         (That DOC has adopted a  

contrary interpretation of the statute during this litigation is of no moment.38)  



                                                                                                                     

                     The court dismisses the import of DOC's interpretation by invoking two  



                                                                           

mutually contradictory reasons. First, the court indicates that the "plain" text and "natural  



reading"suffice to reach its preferred interpretation, implying that there is no lingering  



                                                                                                 

ambiguity in the statutory text for the regulations to resolve.  As I discuss above, the best  



                                            

reading of the statute's text and purpose clearly favors my interpretation, but, at the very  



                                                                                           

least, the statute is ambiguous, and the court must address DOC's contrary interpretation.  



                                                                                                                         

Second, without acknowledging the contradiction with the first reason, the court states  



                                                                                            

that the statute is "silen[t]" on the assignment of personal liability for the cost of outside  

medical care where a prisoner lacks enumerated collateral resources.39 The court then  



concludes that DOC's interpretation of the statute "properly goes no further" than the  



                                                                                            

statute and "says nothing of divesting the prisoner lacking collateral resources of liability  



            37        See  Marathon Oil Co. v. State, Dep't of Natural Res.                             , 254 P.3d 1078, 1082   



 (Alaska  2011)  (defining  the  "reasonable  basis  standard  .  .  .  under  which  we  give  

 deference  to  the  agency's  interpretation  so  long  as  it  is  reasonable,  when  the  

 interpretation at issue implicates agency expertise or the determination of fundamental  

                                                                                  

 policies within the scope  of  the agency's statutory functions");  State, Alaska Bd. of  

                                                 

 Fisheries v. Grunert , 139 P.3d 1226, 1232 (Alaska 2006) (stating that "we consider  

 whether the regulation is reasonable and not arbitrary.  Where highly specialized agency  

                                                                        

 expertise is involved, we will not substitute our own judgment for the board's.  Our role  

                                          

 is to ensure only that the agency has taken a hard look at the salient problems.").   



                      How and when to bill prisoners for  medical expenses in order to deter  

                                                                            

 frivolous overuse of medical services is clearly a question subject to DOC's agency  

 expertise as established in its regulations.  



            38  

                                                                                                                       

                      See  Bowen  v.  Georgetown  Univ.  Hosp. ,  488  U.S.  204,  213  (1988)  

                                                                                                          

 ("Deference to what appears to be nothing more than an agency's convenient litigating  

 position would be entirely inappropriate.").  



            39        Op. at 11.  



                                                                  -32-                                                            6899
  


----------------------- Page 33-----------------------

                               40  

                                                            

for outside services."             Not only is this argument as to statutory silence contradicted by  



the court's own argument about the plain meaning of the statutory text, it also contradicts  



itself: why would an interpretive regulation have to divest a prisoner of liability that is  



never assigned by the statute?  



                    Finally, the court's interpretation of the statute creates a damaging policy  



                              

that will undermine the State's fiscal and public safety interest in reducing recidivism and  



supporting prisoners' successful reentry into the community after release.  When deciding  



questions of law, such as interpreting the meaning of a statute, we have repeatedly stated  



                                                                          

that "[o]ur duty is to adopt the rule of law that is most persuasive in light of precedent,  



                               41  

                                                  

reason,  and  policy."               I  would  interpret  AS  33.30.028  based  on  text,  purpose,  and  



                                                                                                              

administrative interpretation so that the statute enacts a reasonable policy:  Prisoners will  



be deterred from frivolous over-consumption of medical services - both in-house and  



rendered outside the DOC system - while DOC will be able to recover costs when a  



prisoner has access to an enumerated source of coverage or benefits.   



                    As  the  court  interprets  AS  33.30.028  today,  the  statute  would  inflict  



                                                                   

significant harms to the State's interests and to the individual liberty of former prisoners  



who have completed their sentences.  When a prisoner receives substantial medical care  



that   is   uncompensated   by   collateral   sources,   DOC   will   be   in   the   position   of  



                        

superintending the person's ability to save any money at all, starting while the person is  



                                                                                                                    

in prison and extending indefinitely after release.  If a former prisoner is lucky enough to  



                                                                                        

reintegrate successfully and obtain a modicum of savings to secure a stable life, DOC will  



be able to seek reimbursement under AS 33.30.028 years after release.  In effect, DOC  



           40        Id.  



           41        Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979); see, e.g., Heller v.  

                                                                               

 State, Dep't of Revenue, 314 P.3d 69, 72-73 (Alaska 2013).  



                                                              -33-                                                           6899  


----------------------- Page 34-----------------------

will have the power to prevent any former prisoner who received unreimbursed care from  



                                                                                                                            

achieving more than a subsistence existence until the unreimbursed cost of care is paid  



back.  The logic of this claimed power would also seem to permit the State to withhold  



virtually  any  form  of  government  assistance,  including  Permanent  Fund  Dividend  



payments, government salary disbursements, unemployment benefits, payments provided  



                                                                                                            

under contract, and welfare payments.  It would also seem to permit the State to seek  



                                   

repayment by forcing former prisoners to liquidate their meager assets or borrow against  



future earnings from licenses or other non-tangible assets or unrealized gains.   



                                                                                         

                    I  would  conclude  that  the  statute's  text,  purpose,  and  administrative  



                       

interpretation foreclose this result.  The statutory text and legislative history make clear  



                                                     

that  the  legislators  thought  they  were  passing  a  bill  with  only  minimal  charges  for  



prisoners that would have the deterrent effect of a copayment for a subset of medical  

services.42  



                    The court's policy choice will harm the State's interests in reducing ex- 



offender recidivism, protecting public safety, and safeguarding the public fisc.  Personal  

                                                 



financial resources are a crucial determinant of successful prison reentry and recidivism  

                                                                                                                

prevention.43  Reducing recidivism protects public safety by preventing future crime, and  



           42         The legislative history is discussed more fully above.                           See  supra notes 24- 



 25.    But  the  legislators'  view  that  this  bill  would  have  only  a  limited   reach  bears  

 reiterating here.  The bill's sponsor, Representative Mulder, described the statute to the   

 House Finance Committee as "adding a small cha[r]ge to inmates for medical care, as a       

 way for Corrections to let inmates know that there is a cost for prescription drugs and  

 medical relief."  Assistant Attorney General Stark "emphasized that the provision is not  

 intended as part of the punishment imposed on an inmate" but rather "that the legislation  

                                                                                               

 will deter frivolous medical complaints."  Minutes, H. Judiciary Comm. Hearing on  

                  

 H.B. 219, 19th Leg., 1st Sess. (Mar. 24, 1995).  



           43         See  generally  ALASKA    PRISONER    REENTRY   TASK  FORCE,    FIVE-YEAR  



                                                                                                                 (continued...)  



                                                               -34-                                                          6899
  


----------------------- Page 35-----------------------

it also reduces State spending on investigation, prosecution, defense, and punishment  



                                                                                       44  

                                                                                              It  was  thus  reasonable  for  the  

 stemming  from  the  commission  of  future  crimes. 



legislature to adopt statutory text with the effect of limiting personal liability for outside   



healthcare expenditures.                   The court's reconstruction of AS 33.30.028 institutes a new                                   



policy, one that harms these important State goals.  



                                                                                   

                       For these reasons, I would hold that AS 33.30.028 does not impose personal  



                                                                                                                             

liability on prisoners for the cost of health care rendered by professionals outside of the  



                                                                                              

DOC system where the person lacks a collateral source enumerated in AS 33.30.028(a).  



                                                                                                                                   

I would reverse the superior court and remand. I therefore respectfully dissent and do not  



join the plurality opinion.  



            43         (...continued)  



  PRISONER           REENTRY            STRATEGIC            PLAN ,       2011-2016,   at   26   (2011),   available   at  

  http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reent  

  ry%20Plan.pdf (identifying "[l]ow levels of . . . vocational and financial achievement"  

                                                                         

  as "criminogenic needs" leading to recidivism and reincarceration); id. at 65 ("[O]ne of  

  the greatest contributing factors to recidivism was indigence . . . .").  



                        The State understands the importance of successful prisoner reentry and the  

  crucial role of personal income in reentry policy.  Accordingly, DOC encourages all  

                                            

  persons leaving prison to create "reentry plans" that include steps for earning income and  

                 

  accumulating  personal  savings.    ALASKA   DEPARTMENT  OF  CORRECTIONS,   REENTRY  

  MANUAL 24-25, 32-33 (2012),  available at  http://www.correct.state.ak.us/TskForce/  

  documents/Re%20Entry%20All%20edited%20pg%2040.pdf.  



             44         See generally A 

                                                                

                                                   LASKA STRATEGIC PLAN , supra note 43, at 4-5, 21-22.  



                                                                      -35-                                                                     6899  

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