MINUTES OF THE ASSEMBLY COMMITTEE ON HEALTH AND HUMAN SERVICES Sixty-eighth Session May 17, 1995 The Committee on Health and Human Services was called to order at 1:15 p.m., on Wednesday, May 17, 1995, Chairman Vivian Freeman presiding in Room 330 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mrs. Vivian L. Freeman, Chairman Mrs. Jan Monaghan, Chairman Mrs. Jan Evans, Vice Chairman Dr. William Z. (Bill) Harrington, Vice Chairman Mrs. Deanna Braunlin Ms. Barbara E. Buckley Mr. David Goldwater Mr. Dennis Nolan Ms. Dianne Steel Ms. Patricia A. Tripple COMMITTEE MEMBERS EXCUSED: Mr. Wendell Williams STAFF MEMBERS PRESENT: H. Pepper Sturm, Chief Principal Research Analyst OTHERS PRESENT: Donald Kwalick, M.D., State Health Officer Kathleen Shane, Washoe County Social Services Pat Simonsen, Bureau Chief, Child Care Licensing Marsha Berkbigler, Nevada State Medical Association Chairman Freeman explained the Committee would hear only one bill today because at 2:00 p.m. an informational presentation to the Senate Human Resources Committee and this Committee would be held in Room 119. Assemblyman Dennis Nolan had prepared a talk about the Ebola virus and the state education department was to discuss teen suicide in Nevada. Mrs. Freeman reminded Committee members this was the final week to make bill draft requests. A Committee introduction was requested by Mrs. Freeman for BDR R-2065 which expresses support for Nevada's Comprehensive School Health Program. The BDR had been requested by the State Board of Education. ASSEMBLYWOMAN JAN MONAGHAN MOVED FOR COMMITTEE INTRODUCTION OF BDR R-2065. ASSEMBLYWOMAN PATRICIA TRIPPLE SECONDED THE MOTION. THE MOTION CARRIED. ********* ASSEMBLY BILL 491 - Provides for imposition of additional administrative sanctions against child care facility for certain violations and expands restriction upon smoking of tobacco in child care facility. Mrs. Freeman explained A.B. 491 was a bill she introduced because she has long believed smoking in any form should not be allowed anywhere around children. Dr. Donald Kwalick, State Health Officer, expressed support for A.B. 491 if certain amendments, which he proceeded to enumerate, (Exhibit C,) were added. Pat Simonsen, Bureau Chief for Child Care Licensing, stated her division was in total concurrence with the language proposed by Dr. Kwalick in terms of the amendments. She felt in order to be able to monitor child care facilities there should be a designated area for smoking after hours rather than no area at all. Mrs. Freeman inquired if Ms. Simonsen's division regulated child care facilities all over the state. Ms. Simonsen replied the division regulates the rural counties, the unincorporated areas in Clark County such as Mesquite, Henderson and North Las Vegas, as well as state facilities in Washoe County. Assemblyman Goldwater, referring to section 3 on page 2 of A.B. 491 which mentioned adopting regulations and their effective date, asked how long it might take to implement the proposed regulations. Ms. Simonsen explained that section pertains to the board for child care and the regulations would be pertaining to the sanctions. The division must follow the Administrative Code, she continued, so there would normally be two hearings, one in the northern part of the state and one in southern Nevada. She added the process, including public hearings and drafting of language for proposed regulations, would probably take six to eight months, so the effective date could not be changed to July 1, 1995. Mr. Goldwater requested they adhere to that time schedule and not allow the process to drag out over years. Ms. Simonsen replied when there is a legislative change they do. Assemblywoman Evans asked if the Committee needed to change the language in A.B. 491. She noted the act becomes effective July 1 but it would be another six to nine months for the board to do its work and actually get the regulations up and ready. She added even though the act is effective, it would not have an effect until after the regulations are completed. Ms. Simonsen agreed passage of the bill would give her division the authority to be able to draft regulations through the board. Assemblyman Nolan, mentioning the designated smoking area, inquired whether the intention had been for an inside or outside area, or if it had not mattered. Ms. Simonsen replied ventilation had been the concern, so designated smoking areas could be inside as long as there was a ventilation system such as a window in the care center. Mr. Nolan explained recent indoor air quality standards promulgated by the Occupational Health and Safety Administration (OSHA), have recommended outdoor smoking because tobacco and smoke are not usually filtered and end up in residue form building up over years and creating higher levels of formaldehyde and spores within the facility. Ms. Simonsen agreed with Mr. Nolan they would prefer all smoking to be outside, but added it was harder to enforce. Assemblywoman Steel mentioned the fact there is no hearing before people are sanctioned and requested an amendment that would allow a hearing before imposing sanctions on child care facilities. In addition, she expressed concern over lines 36 and 37 on page 3 which removed the number "13 or more children" as the definition of a child care facility. Ms. Steel maintained a very large number of people who are home care providers would fall under this proposed legislation. Ms. Simonsen replied the definition of a child care facility in A.B. 491 was not the definition in statute and the definition in statute was the one they used in the amendment and would include a family day care home. Mrs. Freeman suggested a review of section 2 of the bill. Ms. Simonsen explained that section was the result of a federal audit completed with the Division of Child and Family Services of the Department of Health and Human Services saying there were no sanctions before a license was revoked and a change involving a fine had been requested. Ms. Simonsen added Washoe County had already enacted that kind of system. Assemblywoman Buckley, mentioning the hearing issue brought up by Ms. Steel, inquired if the Administrative Procedure Act (APA) with its hearing provisions would apply to these sections. Ms. Simonsen responded it would depend upon what regulations the board adopted and whether they allowed a preliminary hearing, for example. She added there is already a hearing for revocation or suspension in statute and mentioned her division is subject to the APA. Assemblyman Harrington, referring to the $1,000 per day administrative penalty on lines 11 and 12 of section 2, emphasized that was a "whopping" penalty to be borne by anyone in violation of, to quote lines 3 and 4, "any statute . . . or any regulation of the board". He maintained one would probably find some violation at almost every child care facility and stressed this would give people tremendous power. He emphasized the potential for someone to preferentially target one business or another and that a business could easily be ruined, either preferentially or selectively. Ms. Simonsen responded that was the intent for the board, which includes two providers and a consumer, to develop regulations. The penalty was only intended to be for major violations and the board sets the amount of the penalty which may not exceed $1,000. Dr. Harrington reiterated this section was intended to apply to major violations, not "little nitpicky" things and Ms. Simonsen agreed. Dr. Harrington emphasized intention should be stated in the bill otherwise the potential for mischief was tremendous. Ms. Simonsen noted the bill states "not more than" and not for each violation. Dr. Harrington repeated $1,000 per day was quite expensive. Ms. Simonsen stated it was the same language that came from the health division and had been placed in A.B. 491 on their authority. Mrs. Freeman explained she requested the bill because there are no intermediate sanctions for a child care provider. They could either be slapped on the wrist or closed down and the division needed some kind of vehicle so parents could be assured, when they place a child in a facility, that the child would be well cared for. She added child care facilities must be held accountable and the legislature gives the state division the responsibility of overseeing them. Ms. Steel agreed an intermediate step was needed before a facility's license was removed, however she also felt a hearing should be held even before the intermediate step was taken. She recommended language such as to "impose an administrative penalty of not more than $1,000 per day regardless of the number of violations" because there could be ten violations, which would be $10,000 per day, and one of them might be a really small violation. Ms. Simonsen interjected she anticipated the board would define what regulations would come under the law and would define what would be a major out-of- compliance area. Dr. Harrington emphasized the need for clearly distinguishing what was a major violation requiring a major penalty versus what might be a smaller infraction and possibly including a lesser punishment for those lesser violations. Mrs. Evans commented what the Committee seemed to be struggling with was the distinction between administrative code, in other words regulation, and statute. She added legislators typically put a broad framework in statute and let regulation handle most everything else but the lawmakers do not see that. Mrs. Evans would like a little "feed back" from the division in instructing the Committee in terms of what typical things would wind up in administrative code. She noted there was considerable concern over potential abuse on the part of the Committee and requested assurances those concerns would be addressed. Mrs. Evans explained she did not want to clutter up statute, but added when details are missing, the Committee gets nervous about how things would work out in regulation. Ms. Simonsen agreed the board should address regulations they can deal with such as the preliminary hearing process and who would conduct that hearing so if someone had a major violation, they would be entitled to the preliminary hearing process. She added they would define what was a major violation but reminded the Committee anything not in regulation, such as health or fire codes, would be handled by those agencies. For changes in statute, she noted she had received directives to include certain things but could not guarantee how the board would vote on those directives. Mrs. Freeman pointed out after regulations are written they go to the Legislative Commission Subcommittee on Legislative Intent for review. She mentioned one tool that could be used to clarify legislative intent in a bill was a letter of intent. Mrs. Freeman explained once a bill had passed both houses, the legislative analyst writes a letter of intent so when the bill is implemented it becomes very clear what the legislature was intending to accomplish and she suggested having Pepper Sturm draft such a letter for A.B. 491. Kathleen Shane, Director of Children's Services for Washoe County Social Services, expressed support for A.B. 491. She testified Washoe County had enacted an ordinance allowing them to regulate child care. In addition, she mentioned Washoe County citation powers and sanctions were more restrictive than state regulations. In June of 1993 the county adopted an ordinance that allows social services to issue misdemeanor citations to facilities for noncompliance with the regulations. They do not, she emphasized, issue citations for "no soap in the soap dish". They deal with issues dealing with harm to children. Once a citation is issued, a brief report is written, a recommended bail fee is signed and then it is sent over to justice court. As in any court setting, the person may ask for due process rights for a full hearing from the court. Funds collected from these fines go back to justice court so the agency does not derive any benefits from fining providers and as a result they are very hesitant about issuing citations. Ms. Shane explained their first action involves a memo warning, followed by a written letter of violation, followed by the citation. The agency attempts to give guidelines and assistance in terms of corrective action. However, she noted, when the complaint is serious enough they will go straight to the citation and in one case the agency revoked a license because of the seriousness of the complaint. In addition, having citation powers was very important in terms of ensuring compliance with child care regulations especially in areas dealing with adequate staff-to-child supervision and unlicensed child care. Ms. Shane mentioned their proposed bail amounts, and the things they give citations for (Exhibit D,) had been drafted in 1983 and needed to be updated. Ms. Shane stated they only issue about eight to ten citations per year and she believed the state would probably adopt the same guidelines and types of regulations. She emphasized her agency was not out to make money, but wanted to protect children while they were in child care. Mrs. Freeman asked if Clark County regulated child care facilities the same as Washoe County. Ms. Simonsen explained Clark County does have citation powers which, just as in Washoe, were used very infrequently and only when necessary. Mentioning unlicensed child care, she stated they can issue misdemeanor citations through local authorities. She added A.B. 491 pertains strictly to licensed facilities. Mrs. Freeman asked how frequently citations were issued. Ms. Shane replied they issue for unlicensed child care, which is the most common citation, and do not rely on local law enforcement. If a person was unaware they needed to be licensed, they would only receive a warning. She added they had issued 15 citations in 1994, which were the highest number ever issued. Mrs. Freeman, noting there were some large, for-profit facilities in Las Vegas, inquired whether any problems were connected with those child care providers. Ms. Simonsen stated usually the problems involved ratios, for instance lack of sufficient staff. Sometimes they exceed the number of children and in three instances last year children were left unattended in places such as bowling alleys or swimming pools. Ms. Simonsen remarked most often those out of compliance were child care centers as opposed to family day care providers. Dr. Harrington stated he supported A.B. 491 in principle. However, he would like to make the punishment fit the crime, differentiate between minor and major violations and really apply the heavy punishment to the heavy crime. He also wanted "due process" included in the bill. Ms. Steel asked what enforcement powers were relied upon to give citations to facilities that were not licensed. She added that would probably be within the purview of the district attorney and not of the board because the board would only be able to regulate licensed facilities. She inquired if they were only bluffing or if they had some statute power she was unaware of. Ms. Shane explained the ordinance gives the county authority to say a place needs to be licensed and it had been upheld in justice court. Marsha Berkbigler, representing the Nevada State Medical Association (NSMA), wanted to discuss section 6 of A.B. 491. She emphasized the position of the NSMA is that children should not be exposed to cigarette smoke and NSMA supports the language in the bill as it is currently written because it would bar any cigarette smoking in a child care facility as long as the children were present. She mentioned Dr. Kwalick's amendment would allow designated smoking areas within a child care facility and NSMA wonders how the facility, particularly an older one, would be able to establish with certainty that the air purification is such that no smoke would get into the area with the children. Ms. Berkbigler requested a requirement be made that there be no smoking within a facility where children are being taken care of. Mentioning lines 36 and 37 on page 3 of A.B. 491, Ms. Berkbigler explained the language being removed would allow smoking in a child care facility in a private home when the children were no longer present. She stated the position of NSMA was to allow no smoking in a home that also is a child care facility. Dr. Kwalick agreed with Ms. Berkbigler and explained the reason he offered the amendments to A.B. 491 was because it did allow smoking in the "mom and pop's" when there were no children around. The amendments he proposed, to his way of thinking, tell everyone they should not smoke around children. He added if one is going to smoke around children, the area should be well ventilated so the smoke cannot be smelled. Mrs. Freeman agreed with Dr. Kwalick that there should be no smoking at any child care facility at any time, which was what A.B. 491 intended. Dr. Kwalick said the bill did not accomplish that the way it was originally written. Ms. Berkbigler suggested addressing Dr. Kwalick's concern by simply replacing some designation of what a "child care facility" is and once again exempting the home child care facility if the Committee were so inclined. Mrs. Freeman requested Mr. Sturm define the amendments discussed to this point. Mr. Sturm explained deleting the brackets around (f) on line 1 of page 3 would restore sign posting and also allow child care facilities to designate a room for smoking. He asked if that was what Dr. Kwalick wanted the amendment to do. Dr. Kwalick responded the amendment was aimed toward the "mom and pop" operations. He had recommended the authority to have a designated smoking area in any child care facility should be put back in the law so as to be able to control where smoking occurred. Dr. Kwalick mentioned subsection 7 on page 3, that was deleted in A.B. 491, does control smoking in child care facilities. Assemblyman Goldwater stated he had been raised around environmental tobacco smoke and it would give him great pleasure to support A.B. 491. Mr. Nolan declared he was quite torn on this issue because he believes in personal freedom however when individuals decide to go into the child care business and utilize their home, they must concede to other modifications for child safety within their home and this accomodation would be the same type of adaptation. He mentioned another option to be considered would be allowing the children's parents to sign a waiver acknowledging they were aware smoking was permitted in the house after the children had left. Ms. Steel inquired how many "mom and pops" might be impacted by passage of A.B. 491, however no one answered her question. Mrs. Monaghan stated she had no concerns about penalty amounts and was happy to leave the power of imposition of those up to the counties, noting the counties did not seem to be overly aggressive. She inquired about simply removing line 5 on page 3 which allowed designated smoking rooms. Ms. Berkbigler agreed that would be wonderful, however she stated there might be a problem with people who were not involved in child care facilities because that language also includes everyone listed under NRS 202.2491. Mrs. Freeman asked if there was enough support from the Committee to enable her to work with Mr. Sturm on amendments that smoking not be allowed in child care facilities. Mrs. Monaghan verbally responded in the affirmative while the remainder of the Committee members nodded agreement. Mrs. Freeman, referring to the question of sanctions and a legislative letter of intent, inquired what the Committee should do to satisfy itself regarding the regulations. She indicated she was satisfied the board of child care would behave in a responsible manner and added the Committee had legislative oversight. However, she noted Assemblymen Harrington, Buckley and Steel had expressed concern with due process and asked the Committee for suggestions. Ms. Steel requested something in the statute that says that after a hearing, sanctions would be implemented. She wanted a notice and a hearing because a letter of intent could be sent to the child care boards but if it goes to court, the letter of intent would not help the other party. Ms. Steel emphasized they need something in statute to help them out and she would like to add language like "after a notice and hearing these sanctions may be applied". Ms. Buckley suggested Mr. Sturm check to see whether child care facilities are subject to the Administrative Procedures Act (APA) and if they are, reference those hearing procedures. If they are not subject, she would like to incorporate a proper amendment with regard to hearings. If the child care facilities are subject to the APA she agreed a letter of intent would be called for indicating the more serious penalties had been envisioned for the more serious offenses in which harm resulted. Mr. Goldwater requested the letter of intent include a date for expeditious drafting of the regulations. Mrs. Freeman stated she would work on the amendments and would bring them back to the Committee for a vote. She thanked those in attendance today and invited everyone to continue on to Room 119 and the informational presentations. With no further business, the meeting was adjourned at 2:05 p.m. RESPECTFULLY SUBMITTED: Terry Horgan, Committee Secretary APPROVED BY: Assemblywoman Vivian L. Freeman, Chairman Assemblywoman Jan Monaghan, Chairman Assembly Committee on Health and Human Services May 17, 1995 Page