MINUTES OF THE ASSEMBLY COMMITTEE ON COMMERCE Sixty-eighth Session May 26, 1995 The Committee on Commerce was called to order at 3:45 p.m., on Friday, May 26, 1995, Chairman Spitler presiding in Room 332 of the Legislative Building, Carson City, Nevada. The meeting was audioconferenced to Las Vegas. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Larry L. Spitler, Chairman Ms. Sandra Tiffany, Chairman Mrs. Maureen E. Brower, Vice Chairman Mr. Dennis L. Allard Mr. Morse Arberry, Jr. Ms. Barbara E. Buckley Mr. Thomas A. Fettic Ms. Chris Giunchigliani Mr. Lynn Hettrick Mr. David E. Humke Mr. Michael A. (Mike) Schneider COMMITTEE MEMBERS EXCUSED: Mr. Richard Perkins, Vice Chairman GUEST LEGISLATORS PRESENT: Senator Kathy Augustine, Clark County, District 7 STAFF MEMBERS PRESENT: Paul Mouritsen, Senior Research Analyst OTHERS PRESENT: Christopher Logan, Nevada Society for Respiratory Care (NSRC) Julia Ehrman, NSRC Denise Haddock, NSRC Peggy Alby, NSRC Allen Rippy, NSRC Betty Earp, NSRC Leigh Parker, NSRC Jay Parma, Nevada State Contractor's Board (NSCB) Margi Grein, NSCB Joyce Herey, Nevada Dental Hygienists Susan Jancar, DDS Karen Cross, MD Steven Scroggin A. Magdaleno C. McLusky, Nevada State Medical Association (NSMA) Marsha Berkbigler, NSMA Debbie Sheltren, State Control Fred Hillerby Mona Joplin, State Board of Architecture Jacob Rosenberg, Bill M. Welch, Nevada Rural Hospitals Michael Jackson, Pulmonary Medicine Association Following roll call, Chairman Spitler indicated the meeting was being audioconferenced to Las Vegas and one other location to hear testimony on S.B. 298. Mr. Brian Davie, from Las Vegas, indicated Ms. Mary Williams and Dr. Mitch Keamy would be testifying. They were also hooked up with Mrs. Grudzien at her home who would be testifying as well. Chairman Spitler opened the hearing on S.B. 298. SENATE BILL 298 - Prohibits disciplinary action against physician or osteopathic physician for prescribing or administering certain controlled substances for treatment of intractable pain. Senator Kathy Augustine, Clark County District 7, gave her testimony and distributed background material (Exhibit C) to the Committee. Ms. Tiffany asked what was the inception of the bill? Did someone ask her to draft it? Did she have a personal experience? Ms. Augustine indicated it was nothing personal. She had constituents, as well as other parties, who had problems with pain -- terminally ill patients, as well as those who were not terminally ill. These people had contacted her. She had taken the bill from a model bill passed in California in July 1994 proposed by Senator Green. The bill had not come from the Medical Association although they were in support of it. Ms. Tiffany queried if there had been lawsuits against physicians, licenses revoked, violations, or any other problems that had spurred the bill? Ms. Augustine indicated Dr. Scully, from the State Board of Medical Examiners (SBME), was addressing those issues. Mr. Allard asked what were the controlled substances listed in Schedules 2, 3, 4 and 5 of the State Board of Pharmacy? Ms. Augustine indicated there was an extensive list which could be obtained from the Research Department. He said he would like a copy of that list. He wondered if disciplinary action included lawsuits. She said it was disciplinary by the Medical Board of Examiners. Ms. Augustine stated Schedule 1's were not included because they were illegal drugs, Schedule 5's were over-the- counter, it only applied to the controlled substances within the other three schedules. Ms. Brower observed there were areas in the bill tied to illnesses and diagnoses of different types. She asked if it was normal procedure to try all other things first before using the drugs in any quantity? Ms. Augustine answered yes. These were people who had been critically injured in major automobile accidents, people who were dying of cancer, people who had been through all the traditional treatments and surgeries, and there was no other way to live without the medication. Ms. Brower clarified and reiterated they had tried everything else before resorting to medication. Ms. Jo Ann Grudzien, audioconferencing from her home in Las Vegas, stated 16 years ago she was in an automobile accident involving 13 other cars and trucks. She was radically injured. Her acetabulum was shattered, her pelvis and neck were broken, and she had major spine damage. The last 16 years she had tried psychiatric help, five years of intensive personal biofeedback training, pain clinics, and acupuncture. For awhile they had given temporary relief. It was her last resort to ask for pain medication. She had four children and did not want them to get the idea that using drugs was in any way right. To go the use of drugs was a radical decision for her. Her sister had said, "Why don't you just commit suicide?" That was not her choice. She did not choose to kill herself, but wanted to live comfortably. She did not go out. She did not drive because she began fainting from the pain. She parked the car in the garage and never drove again for fear she might hurt someone else as badly as she had been hurt. Her husband and family cried when they saw her pain. It happened to a family, not just to one person. Her youngest son was six years old when it happened. Her family came to visit her in the hospital and saw all the tubes and tests. She had six major surgeries and told her physician she would not go through any more. She did not believe in suicide but she also did not believe in going back for surgery-after-surgery when the results were questionable. When she heard about S.B. 298 she was firmly for it. She knew what it was like to live in pain. She knew many other people through group therapy and in pain clinics who were not heard from because they never went anyplace to be heard. They were unable to go anyplace. There was no one to fight for relief for them. It was difficult to fight for oneself when discussing pain and the treatment of it. Her physician was treating her begrudgingly because she was fearful for her license and, frankly, it was Ms. Grudzien's concern as well. Her doctor's life was more valuable than hers because she took care of a lot of people. The endangerment of her doctor's license was also a part of her pain. It was a difficult thing to ask for pain medication knowing that, unless you were going to be dead in six months, they did not want to treat you. She did not have life expectancy of six months or less. She wished she did, it would be easier. She remembered the first doctor she had seen who told her, "Don't say `ow' ever again because from this moment on your life will never be pain-free!" He was right! However, what he did not tell her was not only would the pain never go away, but it would increase in severity. Chairman Spitler expressed appreciation for her sharing, from a personal perspective, the extent of her pain and thanked her very sincerely. Dr. Karen Cross, an internist practicing in Las Vegas and Medical Director of Nathan Adelson Hospice for the past three years, expressed her feeling that the bill would make some physicians more comfortable prescribing adequate amounts of pain medication. Therefore, It would improve patient care. In her role as medical director of hospice she oversaw all the patients. They had an average daily census of approximately 200 patients. They had weekly meetings to discuss the care plans of the patients. The vast majority of them were still followed by their primary care physicians out in the community. She frequently got calls from their assigned home health nurses wanting her to either speak to the physicians or directly provide additional pain medicines for the patients because of the reluctance of community physicians to provide adequate amounts of pain medication to give relief to those patients. She also had patients in her practice, who were not terminally ill, but came to see her while under the care of other physicians. They had been told their doctor could not give them any more pain medicine because of their fear of disciplinary action. She thought it was a common fear in the medical community. She had been to a variety of pharmacy company- sponsored presentations where they discussed drug abusing patients and steps to be taken in the medical office regarding prescription pads. There was much emphasis on drug abusers, which was an important issue, but unfortunately it carried over into legitimate pain patients. Ms. Marsha Berkbigler, representing the Nevada State Medical Association, indicated it was not initially their legislation and they had not brought it to Senator Augustine for introduction. However, when their physicians read the bill they became extremely excited about it. A number of physicians, particularly the oncologists, expressed this was a problem for their patients. They were worried because they did not wish to be put in the position of what could be defined as over- medicating their patients. Yet, many of these patients were in tremendous pain and needed therapy that was perhaps out-of-the- norm. The oncologists came to the State Medical Association en masse and asked them to get behind Senator Augustine in supporting the legislation. Many of the pain management doctors and psychiatrists came forward as well. There were two doctors present to speak on the bill. Dr. Mitch Keamy, in Las Vegas, had testified in the Senate on behalf of the legislation. Dr. Rosenberg, an anesthesiologist, who did pain management wished to speak as well. Ms. Stephanie Tyler, representing the Nevada Nurses Association, indicated nurses, who worked closely with oncologists and other doctors who dealt with patients in terrible situations, shared the frustration and observed it on a side-by-side basis. They clearly felt as though they were between "a rock and a hard place". They had dedication and compassion for their patients, but shared worldly concerns with regard to a litigious environment, as well as everything from medical malpractice to their board. Anything that would assist in taking the pressure off doctors so they could truly do what they knew was best for the patient. The Nevada Nurses Association supported S.B. 298. Ms. Tiffany questioned, who was the compliance auditor? Where did the check begin for addressing physicians and how many prescriptions they may write for a patient? Dr. Cross queried if Ms. Tiffany was asking what "body" governed it? Ms. Tiffany asked how a doctor would "get caught" at writing too many prescriptions? Who would track it? Dr. Cross said it was the Drug Enforcement Agency (DEA). Dr. Jacob Rosenberg, an anesthesiologist interested in pain management, indicated he had been in the state of Nevada for six months, and previously had been at the University of Utah as an Assistant Professor of Pain Management. He said, in general, there was a fear of being identified as someone who over- prescribed narcotics. Patients referred to him with chronic pain problems benefitted from very small doses of narcotics, but physicians were reluctant to give them to chronic patients. There was fear that the DEA would come after them, but also fear the state would come down on them as well. Ms. Tiffany declared her husband was a physician who had been accused of over-prescribing by a federal agent. After some investigation it turned out that the last physician her husband had practiced with had been using his prescription pad. It was Ms. Tiffany's impression it had been a federal agency and there was no state over- sight on it. She wanted to be certain they were addressing the law correctly. If it was the state, and they were addressing it correctly, who determined whether the physician was wrong or not? The federal agent had investigated her husband's story and discovered it was true. However, they certainly would not want a physician persecuted by an agent whose interpretation defined it as abuse. She asked if anyone knew the answer? Dr. Mitch Keamy, audioconferencing from Las Vegas, indicated his impression was that over sight came from a couple of different directions. Typically it was the pharmacist who triggered inquiry based upon his/her perception that narcotics were being over-prescribed. It could go either to the federal agency or a state narcotics over sight. Depending upon their investigation and the physician's subsequent response, they could pull the narcotics tickets if they could establish due process. He was unsure of the extent of due process and did not think it was very much. They were like many regulatory agencies and could sometimes act precipitously. They could also resort to informing the Board of Medical Examiners who could use licensure as a means of control. That was the typical way it would be handled. Ms. Tiffany wondered if legislation would solve the problem. Did it solve the problem at the pharmacy level? Did it solve the problem at the state level? Did it solve it at a licensing level? She felt this should be identified and added to the legislation. Dr. Keamy said it was a societal problem. He was impressed with Ms. Grudzien who had spoken so eloquently of the stigma associated with narcotics use to treat chronic pain. Chronic pain patients were difficult to treat and society as a whole tended to marginalize those people. He thought it would have to be a multifactorial approach as there were state, federal problems and attitude problems. He did not know how to address all those things at once. Legislation was a step forward in assuring that the plight of suffering Nevadans would get attention. The legislature could act as lead player and hopefully get momentum going! Ms. Tiffany asked if the Nevada Revised Statute (NRS) applied to the Board or the state DEA -- was it under the Board's authority whether or not to prosecute? Dr. Tom Scully, Secretary/Treasurer for the State Board of Medical Examiners, indicated it was under NRS 630, which was the medical practice act. It spoke directly to the issue of physicians being disciplined by the State Board of Medical Examiners for inappropriate use of controlled substances. Dr. Keamy was correct. The usual process was a pharmacist became suspicious that a particular patient was getting an inordinate amount of controlled substances. The pharmacy board had a computer tracking system that afforded them a look at a physicians's practice patterns. For example, his/her personal narcotic prescription writing within the neighborhood in which they practiced could be checked with no difficulty. If, in the judgment of the pharmacy board, there was inappropriate prescribing they would bring it to the attention to the SBME. The SBME investigators became involved investigated if there were legitimate reasons. In response to Ms. Tiffany's comments, Dr. Scully indicated he had been on the Board for 16 years. The Board was required to take disciplinary action against any physician for illegitimate use of controlled substances for pain. The licenses had been removed from at least three who had sold prescription drugs, or traded them for narcotics or sex -- obvious illigitimate uses for controlled substances in the practice of medicine. Therefore, the investigators studied the patient's file to ascertain it was documented properly and the controlled substances were given in the usual and customary manner. There were many oncologists who approached the board proactively, informed them the nature of their practice and the patients in their care, and nothing was done about them, nor would there be anything done. The DEA got involved when there was criminal action. Sometimes the DEA would bring that information to the SBME. The DEA became directly involved with the physician if his/her behavior was considered criminal under federal law. They intervened and removed the physician's license. If a physician did use controlled substances inappropriately and not in the usual and customary manner, it did not necessarily mean their license would be removed, but their practice could be restricted so they would not have access to controlled substances. They could lose their pharmacy license. There were multiple ways it came to their attention, including physicians calling and informing them someone had rifled their office and took ten prescription blanks. He felt the concern of physicians regarding the inappropriate use of controlled substances was as much a problem with their background training and education rather than fear of disciplinary/legal action. Most of them did not have good background training and education in pain control. He felt a better job needed to be done in training physicians that when a patient needed medication the answer to the question of "how much" was "enough" to get the patient over their pain. Ms. Tiffany clarified the SBME was the definitive source. Dr. Scully said, yes, it was the ultimate discipline for a physcian. However, in the interim they could lose their pharmacy license independent of the SBME, and also their DEA license which was a federal licensing agency. He indicated he carried three licenses to allow him to practice: his license to practice medicine, his license to prescribe controlled substances under the federal DEA, and his license to to write prescriptions under the State Pharmacy Board. He could lose any or all of them. In general it was a "domino effect" if one of those three agencies took action against a physician. The case was usually so strong that others would follow suit. Often it was "who got there first with the most information" that would intervene. Ms. Tiffany asked if this was the definitive source for the state of Nevada? Dr. Scully asked if the bill stated NRS 630? Ms. Giunchigliani responded, yes. Therefore, Dr. Scully declared, it would be under the jurisdiction of the SBME. Dr. Keamy hoped the tide could be turned to help people in pain to be treated. He felt Dr. Scully had done a good job of laying out the problem. Ms. Mary Williams, audioconferenced from Las Vegas, submitted her testimony (Exhibit D). Chairman Spitler thanked her for her testimony. Dr. Rosenberg stated there were probably very few physicians who got called in for questioning and actually suffered punitive action. A physician was usually all right if he/she documented what was being done and why. He practiced in that manner and had not had any problems. Other physicians did not practice in that manner and were anxious and afraid to prescribe narcotics. The bill was not a cure-all but would set a tone. It would make clear the legislature understood and expected the State Pharmacy Board and the SBME to recognize there were patients who required narcotics. It was not always wrong and/or evil to prescribe them for people in pain. Physicians needed to alleviate suffering and document it was helping their patients. That was the importance of the bill. Chairman Spitler asked if there was any more testimony in support of S.B. 298. There being none, he thanked the testifiers in Las Vegas and the audioconferencing was completed. He invited Senator Augustine to bring forth her amendment to S.B. 298. Senator Augustine indicated the amendment (Exhibit E) did not deal directly with the bill. It added new sections under the practice of medicine. Page 2, the top two lines, after "fiber optics" the sentence ended and "to the person performing those acts" was deleted, as well as the next line "whether or not that person is located in this state or in another state". The amendment was being proposed by the Nevada Medical Association because the bill dealt with the same NRS as in S.B. 298. Chairman Spitler asked what the amendment had to do with S.B. 298? Senator Augustine answered, nothing, but it was within the same chapter of the NRS and there were no other bills dealing with that chapter. Therefore, she had informed the Nevada Medical Association they would be able to put the amendment into S.B. 298. Mr. Spitler said they would be happy to listen to it but, in principal, there was a problem with adding an amendment in the second house. It had not been posted and there may be those who would disagree with it. He suggested Senator Augustine "walk it through" for the Committee. Senator Augustine indicated she had not received the amendment on the "other side". Marcia Berkbigler had approached her and asked if she would be amenable to proposing the amendment. Ms. Augustine had no problem with it although she did not wish to hold up her bill as a result of it. Ms. Marsha Berkbigler, representing the Nevada State Medical Association, said the purpose of the amendment was to expand the definition of the practice of medicine as defined in the NBME's statutes. They defined what the practice of medicine was and they licensed physicians based upon the practice of medicine. It had come to their attention as the practice of medicine and the technology involved had expanded over the years and continued to do so. One type of medication that perhaps was not covered in the definition of the practice of medicine in the NRS was known as "telemedicine". "Telemedicine" was a type of medicine that might be sent over telephone lines. She related a personal experience to explain it. She had been at a medical meeting at Squaw Valley. There was a huge medical screen connected by fiber optics to Washoe Medical Center. They were replacing a heart valve on a 24-year old woman. They stood in the meeting room in Squaw Creek and watched and talked with the surgeon replacing the valve. That type of medicine could be done from Nevada to California or any other state. If it was not included in the definition of medicine, perhaps it should be. They were concerned about the wholesale transportation of medical care patients living in Nevada to physicians in other states who were not licensed and, perhaps, not meeting the same quality as the NBME required of physicians licensed in Nevada. The NBME was one of the best in the nation and they felt the language should be added to the NRS. The issue was being addressed in every state and they were seeking ways to expand their statutes to include the definition of "telemedicine". The NBME had looked it over. Mr. Fred Hillerby was present representing Steinberg Medical Group in Las Vegas who were also interested in it. The only problem the NBME had was responsibility for licensing physicians in other states. They had no authority to go after a physician in another state and license them. That was the reason for removing the last line and one-half. The NBME agreed that "telemedicine" was, in fact, the practice of medicine. Therefore, they worked out the agreement, talked it over, and it culminated in this particular legislation because it addressed NRS Chapter 630. Jan Needham had drafted it and said it was probably at the outer limits. However, it did apply with that statute and could be put into the legislation if all the parties, including the Chairmen of both Committees and the sponsor of the bill, were in agreement. That was why it had been brought forward into the Assembly Committee on Commerce. Mr. Humke, addressing the Chair, wondered how the amendment had become a Committee on Commerce amendment and what session had he missed? Ms. Berkbigler stated it addressed the issue of the NBME and the practice of medicine and that was something that came into the Committee of Commerce. Chairman Spitler assumed someone had gone to Bill Drafting and informed them it had been discussed with either Chairman Tiffany or himself. Mr. Humke stated it was a rule sometimes bent, but it normally meant the Committee had taken a vote to propose the amendment. Chairman Spitler indicated the Committee had not taken a vote and did not ask for the amendment. He asked if there were any other questions on the amendment being proposed by Senator Augustine. Senator Augustine clarified she was not the one requesting the amendment, she was merely giving the NBME permission to approach the Committee with the amendment. Chairman Spitler said Mr. Humke had brought up a very good point and one which he clearly intended to address, although not in this meeting. He felt the whole legislative process had to be open and a second hearing must be posted on the issue to hear opposition or other support. Since Senator Augustine had agreed to it he was willing to let it go on. Therefore, if there were any other questions he would entertain them. Mr. Humke agreed with Chairman Spitler's earlier statement. He thought the most appropriate and legal thing to do would be to re-post the bill, along with the proposed amendment and give it the five-day posting notice. It was owed to the public. Chairman Spitler stated he had so indicated. Mr. Fettic asked if the amendment had to be acted upon? Chairman Spitler answered no. Ms. Tiffany asked Senator Augustine if she would have a problem if the Committee recommended "do pass" without the amendment? Ms. Berkbigler answered there was no problem because they did wish to see S.B. 298 pass. She explained the issue had come forth so late there had not been time to get a piece of legislation drafted. If the issue was not addressed there was no other place in current legislation to address it. In fact, before returning in 1997, it could present a problem for the state of Nevada. It was being addressed in every other state and which why it had been forwarded as an amendment into this piece of legislation. Chairman Spitler asked if there was any more testimony on S.B. 298. There being none, the hearing was closed on S.B. 298. The hearing was opened on S.B. 72. SENATE BILL 72 - Prohibits practice of respiratory care without certification by national organization. Senator Kathy Augustine, Clark County District 7, gave her testimony (Exhibit F). She gave a brief history indicating the bill originally had been requested as a Board bill and, after reorganization in the 1993 legislative session, a new Board was not a good idea. Therefore, instead they had decided to go for certification (Exhibit G). There was a national examination given in San Francisco. There was not one given in the state of Nevada. All parties agreed this was the best way to go. The bill was amended, twice on the Senate side, once on second reading and once when it got to general file. They had failed to include those who delivered oxygen and home medical equipment, therefore, they were added. They also had another amendment (Exhibit H). Ms. Augustine explained the Nurse's Association had informed her they had forgotten to add advanced practitioners of nursing because they were also able to independently prescribe on a respiratory care therapist and cardiopulmonery perfusienist, under the supervision of a surgeon or an anesthesiologist. Ms. Augustine also provided the Committee with an update on state credentialing (Exhibit I) which listed all the states and gave the who, what, where and how much regarding licensure, and a definition on why respiratory care practitioners needed to be licensed. She also stated the Committee would hear from Mr. Bill Welch from the Nevada Rural Hospital Project. Unfortunately Mr. Welch had submitted his amendments to her 20 minutes before the hearing which was why they were not within Exhibit H. She assumed the entire amendment would have to be redrafted in order to include Mr. Welch's concerns. She would allow him to pass out his proposed amendment when he gave his testimony. Chairman Spitler indicated they were not going into depth on how it had been presented on the amendments. It was designed as if it were going to be amended on the Floor, as opposed to Committee. Ms. Augustine said in the Senate, with the way things were escalating, their amendments were proposed right out of Committee. That was the way Jan Needham had drafted it. However, with Mr. Welch's amendment the entire amendment would require redrafting. Ms. Buckley asked how many people were currently practicing in the field without a license and in what setting they were employed? Ms. Augustine responded there were several that had not passed the examination by the National Board. At the present time there was no certification. Mr. Christopher Logan, indicated he was the Manager of the Respiratory Care Department at Northern Nevada Medical Center, on the Board of Directors for the Nevada Society for Respiratory Care, a registered respiratory therapist, a certified pulmonary function technologist by the National Board of Respiratory Care, and had been practicing in the Reno area for over 20 years. There were approximately 450 respiratory practitioners in the state. They had not had a good mechanism for gathering statistics about respiratory care therapists. What they had been able to gather informally was that approximately one- quarter to one-third of the practitioners in the state were unqualified. Ms. Buckley queried what was meant by "unqualified"? What kind of training did they have and how was he able to ascertain they were unqualified? Was it complaints or anecdotal stories? To answer her questions, Mr. Logan presented (Exhibit J). Ms. Tiffany indicated a similar bill had recently been presented to the Committee regarding X-ray technicians. There was a request they all be registered. Many orthhopedic surgeons and/or general practitioners needing test films did not hire certified or registered X-ray technicians because they were operating under the doctor's license. At the present time, under the law, could an individual be a respiratory therapist practitioner under the license of a physician? Mr. Logan said the amended bill stated health care providers, physicians, nurses, or anyone else whose scope of practice included respiratory care were not prevented from doing so. Ms. Tiffany queried if an individual with no type of license, certification or registration could work under the care of a physician for that scope at the present time? Mr. Logan stated most respiratory practitioners throughout the country were required to have medical directorship and to work under specific orders from physicians. However, they were not under direct supervision by those physicians. They had 24-hour coverage at most every acute hospital in the nation. Respiratory driven protocols or clinical pathways guidelines, what physicians referred to as "cook book medicine", was a pathway for patients to be treated and tested because of particular diagnoses. At the present time there were no guidelines as to who could deliver those tests or treatment modalities. Ms. Tiffany expressed concern about nursing homes, home health care, and rural situations that could preclude someone who was registered or certified. She did not think they all needed to be certified or registered, but could operate under the license of a physician. Senator Augustine interjected indicating it was dealt with in the second reprint of the bill under section 7, "This chapter does not apply to", and then listed exemptions. Ms. Tiffany stated she did not see the words "under the license of a physician". She asserted she wanted that included because there were situations where, as Mr. Logan had said, it was "cook book medicine" and a doctor could say "do X" and he/she would be responsible for the outcome. Ms. Augustine indicated Dr. Scully would address that issue because as the bill was originally drafted it was to be under the NMBE. Ms. Tiffany stated she was a registered, certified Nuclear Medical Technician. Registration and certification were different boards, one was local, one was national, and they had different testing requirements. What was the difference in their area between registration and certification? Mr. Logan said they had one testing body called the National Board of Respiratory Care. Every individual who came out of Respiractory Therapy School was required to take the entry level exam, and if passed, they were given the initial Certified Respiratory Therapy Technician (CRTT). The advanced credentials were Registered Respiratory Therapist (RRT) and they were different boards. The registry test included not only written but also clinical simulations. Ms. Tiffany asked if certification required a certified school before they could take the examination and did it require clinical? Mr. Logan said, according to the National Respiratory Care, there were specific guidelines on who could sit and take the exams. The way the bill was written the NBME would have input as to what would constitute an adequate training program. Ms. Tiffany clarified it required a training program prior to sitting before each one of them. Ms. Buckley stated section 9 set forth the qualifications under the act and it said "complete an educational program, pass the exam and then be certified". When was an individual eligible to take the exam? Was it automatic upon graduation? Mr. Logan said currently there was no mandatory requirement other than to sit to take the exam. Once an individual was out of school he/she could wait forever to take the exam if they so desired. He suggested the bill be amended to allow 12 months in which to take and pass the exam. The exams were given quarterly and at least once a year in the Las Vegas area. Mr. Bill Welch, Executive Director of the Nevada Rural Hospital Project, apologized to Senator Augustine and the Committee for presenting the amendments at the last moment. He had been working with representatives of the Respiratory Therapy Association regarding their concerns. They understood and recognized the benefit of the objectives and goals proposed in S.B. 72. They would not oppose the bill if they could have three amendments which they believed would not compromise the integrity or intent of the bill. They understood from their discussions with representatives of the Respiratory Therapy Association there would be a transition period in which they would have opportunity to obtain OJT's currently being used in rural Nevada. The reason for the amendments were the language was restrictive and they would not be able to use OJT's on some of the routine clinical floor areas. However, they agreed with the certification process over all. Mr. Welch explained the three amendments (Exhibit K). Chairman Spitler observed, in looking at more licensure and over sight in those areas, did it mean that class of employee would be required to carry medical liability insurance? Mr. Welch believed currently most respiratory therapists were practicing with private malpractice insurance as did nurses. Chairman Spitler asked if they fell under someone else's policy? Mr. Welch said in a hospital setting they fell under hospital liability insurance. Chairman Spitler asked, what about private practice? Mr. Welch said it was up to the individual but it would be foolish to practice without liability insurance. Dr. Michael Jackson, a practicing pulmonary and critical care physician in northern Nevada, explained he took care of patients with respiratory problems and also critically ill patients on life support in intensive care units. He was chief of a seven man pulmonary group in Reno and Sparks and Medical Director for the Nevada Society for Respiratory Care. He was present to ask the Committee to look favorably on the philosophy of what was going on behind the act. He wished to give background on what was happening in the trenches and what it meant to his patients and himself as a practicing physician. He had been practicing in Reno for 12 years. When he first began, life support machinery looked like something out of the "MASH" serial on television. The dials and buttons looked like the dash board of a 1963 Chevy with a few plastic knobs and dials. Ten years later it looked like the inside of an Apollo moon rocket. They were run by microprocessors, there were dozens of buttons and dials, and they were vastly more complicated, but better! The patients got better care because they could do things they would not have dreamed of six years ago. The machines were maintained by Respiratory Therapists. He wrote orders to establish the "general envelope" for patient care, but they were present to ensure the machine continually ran well. They trouble shot and tore the machinery down when it was not functioning properly. Respiratory therapy at the present time, and under the scope of the bill, would still be a dependent practice. That is to say, respiratory therapists could only practice under the orders of a physician. One of the big parts of Dr. Jackson's practice was doing endoscopy -- looking down inside people's lungs with lighted instruments to "see what was going on down there". It was unpleasant, as one might imagine, so the physician administered controlled substances intravenously to make the patient comfortable. The Respiratory Therapist administered the drugs and was responsible for monitering them. If there were ten cc's in a vial and they used five, that person was responsible for "wasting" the other five and documenting it had not been taken home to "use on the sly". A third area was assessing patients. Hospitals were cutting back on unnecessary services. What they had done was to allow respiratory therapists to observe patients and adjust the medications and doses prescribed by the physician. When one observed all this -- controlled substances, assessing changes, changing medications, tearing down sophisticated machinery -- one would ask, who are these people? It was especially important to him because they worked on his license. If they "screwed up" the malpractice insurance was almost an irrevelant issue because he would get sued. It was his liability because they were practicing under his license. So, who were these people? In the state of Nevada they could be illiterate high school drop-outs with felony records and the physician would never know it. The hospitals had done an excellent job of screening people and had the luxury and budget to be able to hire certified people. However, there was no guarantee it would happen in the future and that was a major concern to Dr. Jackson. Nevada was one of a hand-full of states that did not have any sort of minimum standards for competency among Respiratory Therapists. He had no financial interest in it. Whether people were certified or not would not affect what he was paid -- but it would affect how his patients and the Committee's constituents were cared for. He felt it was a preminimal licensure regulation. They were not talking about establishing a new board and a big bureaucracy. They were just establishing minimum standards for competency in respiratory therapy and attempting to keep track of the participants. He asked for the Committee's support of S.B. 72. Ms. Tiffany stated she did not disagree with Dr. Jackson. She was trying to ensure, in situations not requiring that type of specificity, they would not be precluded. For example, there were nursing homes, home health care and rural situations that would have to be protected. She absolutely agreed with technicians being certified and registered but she reflected upon the example she had used in radiology. If a chest film was being done in an internist's office an individual did not necessarily have to be registered. She asked how could both their concerns be solved? Dr. Jackson indicated, in his office, they did some of the simpler things encompassed by the bill. They delivered medication aerosols to asthmatic patients under his license. His reading, and the attorney's reading, of the proposed bill was if his non-respiratory therapy nursing assistant, who might be a high school graduate, administered the treatment, as long as he was present directly supervising the person, it was under his scope of practice. Regarding registered nurses, for example in the rural environment, one of the things in the scope of practice of registered nurses was administration of a number of the things that Respiratory Therapists were being licensed to perform. It did not take it away -- the registered nurse could still do it. It only said if one held oneself out as a Respiratory Therapist, certain minimum standards had to be met. He did not think it would change his office practice and, hopefully, not change nursing homes and rurals much, particularly under the amendments alluded to by Mr. Welch. Ms. Tiffany stated as long as it was under the licensure of someone whose scope of practice included it. She pointed out nurses and cardiopulmonary technicians and asked Dr. Jackson if he was comfortable that they were outside of the certification or registration of pulmonary technicians, or should they be grandfathered into it without having to be registered or certified? Dr. Jackson understood the bill did not affect the nursing scope of practice and did not address those statutes. That was unchanged and nurses were still allowed to do many of the things under the bill -- administering aerosols in rural hospitals, adjusting ventilators, those types of things were all within the nursing scope of practice. He did not know what the law said about cardiac perfusienists and would have to defer that question to somebody else. Ms. Tiffany did not want to put them under this bill so it looked like they could practice as Respiratory Care Therapists. If it was added as an amendment it should state "as defined by their existing scope of practice". She asked if he was comfortable with that? Dr. Jackson indicated he could not speak for others, he was only there to submit his opinions on the bill. Ms. Tiffany asked if he worked with advanced practice nurses or cardiopulmonary technicians? Dr. Jackson said he typically did not, the perfusien technicians were mostly under the direction of the cardiac surgeons. Senator Augustine stated advanced practitioners of nursing could write orders for respiratory care, therefore, a Respiratory Care Therapist could also be under the order of an advanced practitioner of nursing. The perfusien technicians would be under a surgeon or anesthesiologist. Ms. Tiffany clarified their scope of practice depended upon them being under the license of a physician and they could not do it independently. Ms. Augustine agreed. Ms. Leigh Parker, RRT, a Registered Respiratory Therapist, submitted her testimony (Exhibit L) to the Committee. Ms. Betty Earp submitted her testimony (Exhibit M) to the Committee. Ms. Stephanie Tyler, representing the Nevada Nurses Association, apologized for not having the bill fully amended before it reached that point. They concurred with the amendments and agreed with those who testified that there was a real need for licensure. Chairman Spitler asked if there was any more testimony or questions regarding S.B. 72. There being none the hearing was closed on S.B. 72. The hearing was opened on S.B. 69. SENATE BILL 69 - Makes various changes to provisions governing licensing and regulation of dentists and dental hygienists. Ms. Stephanie Tyler, representing the Nevada State Board of Dental Examiners, introduced Dr. Susan Jancar. They wanted to "walk" the Committee through the bill and explained it was basically a "housekeeping" bill from the Board that addressed several issues, particularly regarding hygiene and major changes made on that Board. She deferred to Dr. Jancar. Susan S. Jancar, DDS, a practicing dentist for 15 years in Winnemucca, Nevada, a hygienist for eight years in California and Reno, Nevada, and on the Board for five years, indicated she would go over the changes line-by-line. Line 12 - Addressed dental hygiene votes. At the present time hygienists could not vote on disciplinary actions of dentists whereas the lay member could. Therefore, they wanted it changed so the hygienist could also vote on the measures. They were just as qualified, if not more so, as the lay person to vote on disciplinary action for dentists. Line 23 - Addressed a difference between the Secretary/Treasurer and the Executive Director. In the past the Secretary/Treasurer was a Board member. They still had a Secretary/Treasurer but had also hired an Executive Director who was a lay person. It was just a terminology change. Page 2 - The same thing again -- Director and Secretary/Treasurer. Line 13 - Terminology. Page 3, Line 6 - Needed other documentation added to the request. Chairman Spitler indicated the bill said, "accompany the application with a recent photograph" and asked why it was required? Dr. Jancar explained when taking the exam a photograph was required to ensure the person taking the exam was, indeed, that person. Chairman Spitler asked if it was kept only for that and then destroyed? Dr. Jancar reported it was kept in the files. Mr. Hettrick indicated his dislike of lines 7 and 8 which said, "and other documentation as the Board may require". He asserted that could be anything! It was too broad and should be cleaned up to be reasonable and appropriate to the examination. Dr. Jancar explained it had been left open because of changes in the Board and the need for information from other Boards. She understood Mr. Hettrick's concern. She added they required fingerprints as well because photographs were not sufficient. Two people could look alike and fill in for one another. Page 3, line 17 - Addressed an issue regarding the National Board. The National Board was a written exam and precluded the clinical exam. In the past they had required a score of 80, and they wished to lower it to 75. The reason was because every other state in the United States required a score of 75 and they felt Nevada should be in line with them. Ms. Brower mentioned she had previously spoken with the Dental Society and they had expressed pride in the fact that Nevada had high standards. She wondered why they now wished to lower the test scores. Dr. Jancar answered they had been getting many comments about the unfairness of the exam. In an attempt to be in line with other states and fair with the individuals who were taking the exam, they felt the standards should not be set higher in so far as the written exam was concerned. Ms. Stephanie Tyler interjected indicating she had gone over the bill closely with the State Medical Society and the State Dental Association and, while it was not a point of contention, there had been a lengthy debate. What the bill said was, rather than lowering the over all standard to 75 percent, it dealt with each part of the examination. Technically it did not make a large difference but brought them in line with the United States, and the state association agreed with the change. Mr. Hettrick asked if there was a reciprocal agreement with other states? Dr. Jancar answered no. Page 3, line 25 - This was a matter of who signed certificates. All of the dentists in the "public member" had been signing the certificates, it was not written properly and had been changed. Line 44 - A matter of clarification. Line 47 - Dealt with the score. Line 5 - Something to do with the Secretary/Treasurer. Ms. Joyce A. Herceg, RDH, representing the Nevada Dental Hygienists Association as Legislative Council Chair, indicated their support of S.B. 69. With no further testimony on S.B. 69, the hearing opened on S.B. 71. SENATE BILL 71 - Revises provision relating to disciplinary actions taken by state contractors' board. Mr. Jay Parmer, representing the Nevada State Contractor's Board, stated the Board had requested introduction of S.B. 71 to increase consumer protection. The proposed legislation granted the Board authority to impose corrective orders as a form of disciplinary action against the licensee in certain situations. The Board was in need of an alternative regulatory tool to expedite the resolution of complaints brought before the Board. Other states had found it to be an appropriate method in many situations. Under existing Nevada law the Board did not have authority to force a contractor to perform work as a disciplinary action or as a resolution to a complaint. He indicated Margi Grein had some additional documentation and could answer specific questions regarding S.B. 71. Ms. Margi Grein, representing the State Contractor's Board, said four Board members had sent letters (Exhibit N) in support of the bill. She offered to answer questions. Mr. Allard had received a letter from a contractor, Ronald J. Bowman (Exhibit O) which stated, "Quite often in a contractual dispute between two parties the only recourse a contractor has is to stop work and seek legal action." Mr. Allard asked if there was anything in the bill preventing a contractor from seeking legal action. Ms. Grein replied there was nothing in the bill preventing that. She indicated she had spoken with Alice Magdaleno, the Office Manager for Bowman Drywall, Inc., about their concerns. Ms. Magdaleno had been confused about the contracting law itself and what action the Board could take and the intent of the bill. She asked the letter become part of the minutes but Ms. Magdaleno did not wish to testify. Mr. Allard felt the intent of the bill was, in a dispute between a customer and a contractor, if it was deemed the contractor had acted improperly, the Board would have the ability to make them fix their work. Ms. Grein indicated that was correct. She explained when Board members were in a hearing and wished to tell a contractor to fix his work, they could not do it. They could impose a fine, suspend or revoke the license, but they could not make the contractor fix or repair. The bill would provide a resolution and disciplinary action which they hoped would protect everyone. It could be a dispute between a general contractor and a sub-contractor, a home-owner and a contractor, a general contractor and a home-owner -- it affected everyone. Mr. Allard disclosed he was a contractor, felt the legislation was needed and supported it. Ms. Deborah Winningham Sheltra, the consumer representative and member of the State Contractor's Board, was present in support of the bill as was the rest of the Board. She had been on the Board for six years and stated the Board had horrendous stories presented to them. During the 1993 legislative session the Board had been given power to fine. They did not have the same matrix as at the present time, but it did not solve the problem for the home-owner. S.B. 71 would give them that tool, not just against the home-ower contractor, but all contractors. There were 43 different classifications of contractors in the Nevada statutes and NRAC's. She offered to answer questions and urged the Committee to pass the bill. Chairman Spitler entertained a motion on S.B. 71. ASSEMBLYMAN ALLARD MADE A MOTION TO DO PASS S.B. 71. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. The hearing was opened on S. B. 125. SENATE BILL 125 - Eliminates prohibition against certain members of state board of architecture from voting or acting on matters relating solely to architects. Ms. Mona Joplin, Secretary/Treasurer and Public Member at the Nevada State Board of Architecture, requested the Committee's support on S.B. 125. The legislation would permit full participation by all members of the Nevada State Board of Architecture. Elimination of the voting restriction on issues relating solely to architects would allow a residential designer and public member to be more effectively involved in public protection. Mr. Jim Wadhams indicated he was present in support of Ms. Joplin. The bill broke down any barriers for voting. Many Boards with mixed membership had not allowed all participants on the Board to vote on all issues. The State Board of Architecture had decided it was time to make that change. Anyone listening to the information should have the ability and right to vote on all matters. The bill gave voting power to all participants on the Board. He mentioned there was another group that had suggested there may be an amendment for the bill, not dealing with the aspect he was addressing, but another area of architecture. Their lobbyist was not present but Mr. Wadhams, asked as a professional courtesy, the Committee take no action until he had an opportunity to visit with him next week. Mr. Spitler indicated page 2, where it stated four members of the Board constituted a quorum. He asked if the number of people on the Board had been changed? Ms. Joplin replied yes, it had been changed to five. Mr. Michael Hillerby, representing the American Institute of Architects, stated they supported the bill. There being no further testimony or questions, the hearing was closed on S.B. 125 and opened on S.B. 131. ASSEMBLY BILL 131 - Authorizes sellers and their agents to collect fees from purchasers who issue checks with insufficient funds. Chairman Spitler recalled when the bill was heard originally Ms. Buckley wished to look at the legal opinion and several people had expressed concern regarding the $35 fine. He asked Ms. Buckley if she had perused the legal opinion. Ms. Buckley indicated Mr. Pat Coward had provided her the information and remarked it was the most "damning" collection case she had ever read in her life. She expressed great enjoyment with it! Chairman Spitler entertained a motion to amend and do pass. The amendment would be to change the $35 in line 3, to $25. ASSEMBLYMAN TIFFANY MADE A MOTION TO AMEND AND DO PASS S.B. 131. ASSEMBLYMAN ALLARD SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. The Chair opened the hearing on A. B. 261. ASSEMBLY BILL 261 - Revises provisions relating to performance of certain tasks by dental hygienists. Chairman Spitler indicated the Senate had submitted an amendment to S.B. 261 (Exhibit P) to the Assembly Committee on Commerce to concur or not concur. Mr. Michael Hillerby, representing the Nevada Dental Hygienist's Association, referred to the first reprint of A.B. 261 which the Commmerce Committee voted out. Page 2, subsection 4, had said a dental hygienist could not perform these services unless, and then it listed two conditions. There was concern in the Senate Committee it was not clear enough and the dental hygienists had to be: (1) certified by the Board to administer local anesthesia or nitrous oxide, and (2) receive authorization from the patient's dentist to do that, and (3) specifically be in a licensed health care facility under NRS 449.800, and (4) had emergency medical equipment and supplies and licensed personnel available at all times. It had been re-worded to make it clearer. Chairman Spitler indicated all those points had been discussed in the Commerce Committee hearing. Mr. Hillerby agreed and felt it made sense but there were some Senate Committee members who wanted it made clearer. The Chair asked if there were any questions. Ms. Buckley indicated all it did was change the word "unless" to "if". Mr. Hillerby said instead of saying "you cannot do this unless", it said "you can do this if". The Chair asked if there was a motion to concur. ASSEMBLYMAN BROWER MADE A MOTION TO CONCUR ON SENATE AMENDMENT 397 TO A.B. 261. SPEAKER HETTRICK SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. There being no further business, the hearing adjourned at 5:45 p.m. RESPECTFULLY SUBMITTED: Barbara Moss, Committee Secretary APPROVED BY: Assemblyman Larry L. Spitler, Chairman Assemblyman Sandra Tiffany, Chairman Assembly Committee on Commerce May 26, 1995 Page