MINUTES OF THE ASSEMBLY COMMITTEE ON HEALTH AND HUMAN SERVICES Sixty-eighth Session May 29, 1995 The Committee on Health and Human Services was called to order at 1:30 p.m., on Monday, May 29, 1995, Chairman Jan Monaghan 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 Ms. Saundra (Sandi) Krenzer Mr. Dennis Nolan Ms. Dianne Steel Ms. Patricia A. Tripple STAFF MEMBERS PRESENT: H. Pepper Sturm, Chief Principal Research Analyst OTHERS PRESENT: Lonna Burress, Nevada State Board of Nursing Carlos Concha, Parole and Probation Ralph Baker, Northern Nevada Council for Independent Living Jim Boscacci, Northern Nevada Council for Independent Living Paul Corbin, Highway Patrol Randall Todd, Health Division Phil Galeoto, Reno Police Department Stephanie Tyler, Nevada Nurses Association Sam McMullen, Nevada State Board of Nursing Donny Loux, Rehabilitation Administrator Paul Gowins ASSEMBLY BILL 605 - Provides that certain persons arrested must be tested for sexually transmitted disease. Carlos Concha, Acting Deputy Chief of Administrative Services for the Division of Parole and Probation, testified in favor of A.B. 605 which had been requested by his division. Mr. Concha explained many times arrests become combative. In a situation that resulted in a transfer of bodily fluid between the arrested person or detained minor and the victim, witness, arresting or investigating peace officer or any person rendering emergency medical care, the division would be able to test the arrested individual or detained minor for HIV (Human Immunodeficiency Virus) or certain other diseases. Peace officers, knowing many offenders are intravenous (IV) drug users, want the ability to take those individuals to the health authorities and test them to ensure the safety of all peace officers and first responders. Assemblywoman Freeman questioned whether there were any cases of sexually transmitted diseases being transmitted to arresting officers. Mr. Concha stated he was not aware of any sexually transmitted diseases being transmitted but there had been cases where peace officers were exposed to hepatitis. Mrs. Freeman inquired whether any cases of hepatitis had been traced back to someone who had been arrested who then spat at or bit the arresting officer. Mr. Concha testified there had been an arrest of an individual in Las Vegas who had hepatitis and as a result five officers were involved. Assemblywoman Buckley asked if Mr. Concha had reviewed a letter sent to her by the Clark County Coalition of HIV/AIDS (Acquired Immune Deficiency Syndrome) Service Providers dated May 24, (Exhibit C.) He stated he had not. Ms. Buckley explained the coalition expressed a number of concerns with A.B. 605 including using a standard of "transfer of bodily fluids" versus an exposure "likely to have allowed transmission". She added the coalition expressed a number of other concerns and she planned to give a copy of the letter to Mr. Concha so he could respond. Assemblyman Nolan also requested a copy of the letter and Ms. Buckley agreed to get copies for the entire Committee. Mr. Nolan mentioned "sexually transmitted diseases" really excluded an entire classification of communicable and contagious diseases such as tuberculosis and hepatitis, which may or may not be sexually transmitted. He suggested adding language to A.B. 605 similar to "exposed to a contagious disease" because officers are exposed to the homeless and drug-using population which have a high incidence of tuberculosis. Mr. Concha agreed to look into that idea. Mr. Nolan also wanted to applaud whoever proposed A.B. 605 because he believes a gap in the law currently exists that puts fire service, ambulance people and law enforcement officers in a dilemma when they become exposed to a person but cannot have that person followed up to establish baseline studies as to whether or not they have a contagious disease. Mr. Concha agreed one of the reasons they requested the bill was for the mental health of their officers. He explained many offenders are active IV users and the possibility always exists that they may be infected. He mentioned the state of California enacted similar legislation and A.B. 605 was patterned after California's bill. Paul Corbin, Chief of the Nevada Highway Patrol, spoke in favor of A.B. 605 but expressed concern about language on page 1, line 18 which states, "The agency that has custody of the arrested person or detained minor shall obtain the specimen and submit it to the health authority for testing". Mr. Corbin inquired who would pay for this. Mr. Nolan stated he believed testing would be done at the county's expense. Mr. Corbin agreed the agency that detains the individual or takes custody pays those expenses and normally that is the county, but he just wanted that point clarified. Assemblywoman Steel commented similar language was in current laws and she assumed whoever was paying for testing now would continue to pay. Ms. Buckley referred to the letter from the HIV/AIDS Coalition which stated local health authorities would pay for testing. The coalition was concerned A.B. 605 was an unfunded mandate that would cause money to be drawn from HIV testing and prevention programs in their locale. Randall Todd, State Epidemiologist and Chief of the Bureau of Disease Control and Intervention, read his testimony in support of A.B. 605 from a prepared statement, (Exhibit D,) which included some proposed amendments. Mrs. Monaghan inquired if Mr. Todd had his proposed amendments written out and if he would be available for a subcommittee meeting. Mr. Todd replied he had given a copy to the Committee secretary and would be available for a subcommittee meeting. Mr. Nolan inquired whether the language Mr. Todd proposed also covered airborne droplet infections. Mr. Todd indicated that was why he used the more generic phrase "communicable disease". Assemblywoman Krenzer asked whether a medical evaluation follow-up procedure was included in the proposed amendments. Mr. Todd replied a medical evaluation follow-up was currently required under OSHA (Occupational Safety and Health Administration) regulations if an exposed individual is an employee. Ms. Krenzer wondered if follow-up procedure should be stated in the bill because there might be a case in which the exposed person was not an employee. Mr. Todd agreed there would be nothing wrong with adding language that would require a medical evaluation following any type of exposure. Phil Galeoto, a Reno Police Department detective, expressed his support for A.B. 605. He believed the legislation to be extremely necessary particularly as related to municipal policing in Reno and Las Vegas. He noted law enforcement officers who work in the immediate downtown area have a tendency to deal with a certain group of individuals day in and day out. These individuals, he explained, usually wind up scuffling or fighting with the police and as a result, policemen are being injured on a regular basis. Mr. Galeoto testified in Las Vegas a policeman is injured daily while in Reno probably every second or third day an officer receives at least a minor injury. In addition, Mr. Galeoto noted there is a particular sense of urgency on the part of Highway Patrol and local law enforcement officers because when a person is taken into initial custody there is no guarantee they will remain under arrest. As a result, there may be no way to locate and test individuals in a lot of minor cases. Mrs. Freeman asked if Mr. Galeoto was satisfied with the amendments suggested earlier. Mr. Galeoto replied he is not satisfied. The language "investigate the likelihood of" by definition indicates that will not happen immediately which is what law enforcement personnel need. Mr. Galeoto emphasized he believed A.B. 605, as written, does allow that discretion on the part of the police. He emphasized this legislation has been needed for the last several years and added it is a topic of daily discussion among law enforcement personnel. Mrs. Monaghan announced her intention to place A.B. 605 in a subcommittee composed of Assemblymen Harrington, Evans, Nolan and Buckley and closed the hearing. ASSEMBLY BILL 645 - Authorizes unlicensed personal assistant to perform certain services for person with disability under certain circumstances. Mrs. Monaghan mentioned A.B. 645 originated from an interim legislative committee on health care and that she had provided copies of that committee's report on the subject, (Exhibit E.) Kerry Carroll Davis, Legislative Counsel Bureau staff researcher, explained she cannot testify in either support or opposition to A.B. 645 but can provide a brief summary and background information. She indicated A.B. 645 permits an unlicensed personal assistant to perform medical, nursing or home health services for a person with a disability who does not reside in a medical facility. Before such an arrangement can take place, a provider of health care must authorize the specific services a personal assistant can perform and under the various conditions in which they can be performed. The bill also exempts health care providers from civil liability as a result of the actions of the personal assistant. Sam McMullen, representing the Nevada State Board of Nursing, explained a number of people had participated in the bill drafting process over the course of several months. Their goal had been to put language on paper that would resolve issues raised last summer in the interim health care committee. A.B. 645 would allow a person with a physical disability, in conjunction with the assistance of a personal assistant, to do those things a health care provider would normally delegate to a person without a physical disability. The tasks are simple, he added, and do not pose a substantial risk to the person with the disability. Donny Loux, from the Rehabilitation Division of the Office of Community Based Services, testified A.B. 645 would allow persons with disabilities to manage, direct and control their own care. She distributed a report on providing personal assistance services for persons with disabilities to the Committee members, (Exhibit F.) Ralph Baker, representing the Northern Nevada Council for Independent Living, presented testimony supporting A.B. 645, (Exhibit G.) He also distributed a handout indicating the relative difference in cost between home-based care and institutional care, (Exhibit H.) Mrs. Monaghan commended the entire group for working together for the benefit of the disabled population. Mrs. Freeman agreed completely with Mrs. Monaghan's praise for the participants who helped draft A.B. 645. She then inquired whether passage of A.B. 645 would really make a big difference in terms of the types of services available to the disabled community. She also wondered if there were people interested in performing the tasks of a personal assistant. Mr. Baker testified it would make a very important difference because a lot of the tasks were being performed anyway by friends and family members and passage of A.B. 645 would legitimize many of the situations currently in existence. Ms. Loux noted language originally agreed upon with the nursing board would have added the words "physical or functional" in front of "disability" on line 5, page 1 of the bill. Mrs. Monaghan inquired whether the nursing board also agreed with the addition of language on line 5. Lonna Burress, Executive Director of the Board of Nursing, replied they agreed to adding the word "physical". In response to Mrs. Freeman's question regarding possible impact of the bill, she stated A.B. 645 would make a difference. She mentioned nurses are the largest group of health care professionals and emphasized passage of the bill would be a major change for nursing. It would allow for things that should happen but, as with all major changes, would require some accommodation and assimilation. Mr. Nolan inquired whether people with severe neurological injuries who were being cared for at home by family members would be covered by A.B. 645. Ms. Burress testified family members or friends providing those kinds of services were already exempted in the Nurse Practice Act. Mrs. Evans, noting the interim committee had only provided a broad outline of what it was trying to achieve, congratulated those who had participated in the crafting of A.B. 645. As a practical matter, she requested someone "walk the Committee through" the steps to obtain a personal care assistant. Ms. Loux stated the things currently being done for a disabled person by a family member would continue to occur in much the same way. The person with a disability, depending upon his level of preference, would choose the assistant himself or through an agency. The person, rather than having all tasks supervised by a nurse or done by different levels of nursing, could devise a plan of care, discuss that with his physician and the care giver, and the physician would signify approval. The care giver/assistant would also receive instructions on how to go about accomplishing those tasks the disabled person is unable to do for himself. Ms. Loux added when her agency is providing the services, A.B. 645 would allow the nurse, occupational therapist or other health care provider to step out of the picture, once the qualifications of the assistant and plan of care had been approved. In a situation where the person's physical condition alters, the personal assistant and the consumer would go back to the health care provider to establish what, if any, changes or modifications needed in the plan of care. Ms. Burress agreed the boundary lines concerning what tasks must be performed by a licensed or certified professional had been re-drawn. A.B. 645 would empower the consumer to have control over their body at their level of help. Because of the structure of the laws, Ms. Burress stated the traditional nursing role at times had gotten in the way of a smooth transition between physician and consumer and the implementation of care. Mrs. Evans inquired how one would locate a personal care assistant and who would pay for one. Ms. Loux explained there are three personal assistant programs in Nevada operated by the Welfare Division, the Division of Aging and her division and each program uses a different means of recruitment. In her program, the person is allowed to recruit their own personal assistant if they wish, or the agency will recruit a person for them and do the background checks and screening. If the agency is recruiting, screening and training the personal assistant, they would be considered the employer. Assemblywoman Krenzer inquired about availability of personal assistants and the funds to hire them. Ms. Loux explained availability is a major problem because personal assistants receive very low pay and until just recently received no benefits or health insurance. She also indicated funding is always a problem and as a result the waiting list currently has about 60 people on it. Ms. Burress noted with passage of A.B. 645, home health agencies would be able to add another level of service because previously there had been concern over whether a care giver might be breaking the law. Mr. McMullen stated, for the record, that "someone who is a provider of health care, say an occupational therapist, can't of course delegate beyond their scope of practice and I think that is one thing people here need to understand when they pass this bill. They can only really delegate to the extent you have the license and the rules to delegate." Speaking about the liability issue, Mr. McMullen explained the group crafting A.B. 645 attempted to equilibrate the level of liability an individual would have under this law with that which currently exists for a governmental agency. He noted there is a good faith immunity if one is a governmental agency trying to do the right thing. People are not entitled to an error-free decision but they are entitled to one that is made in good faith so consequently there is, under Nevada's system, a qualified immunity. When a governmental agency is a supporting intermediary, there is already this type of protection from liability with the added feature that to the extent the governmental agency is involved there is a $50,000 sovereign immunity cap. Ms. Loux mentioned her services are currently run through non-profit agencies within the community so it is their potential liability as a vicarious employer which was what Mr. McMullen was speaking of. Mrs. Freeman related a hypothetical situation in which she, as a consumer with a physical disability, has an attendant to whom she is paying $6.00 per hour. She wondered what kind of financial support she could rely on from the state and federal governments to help her pay for her assistant. Ms. Loux explained it would depend upon her eligibility for service, for instance the aging program requires she be 60 years old and eligible. For the rehabilitation division's program, anyone is eligible who does not meet the criteria of the other available programs. Ms. Loux elaborated on her program, indicating it used a sliding fee scale, so depending upon one's level of income, they would assist on a co-pay basis. Mrs. Freeman inquired whether it was anticipated Medicaid funding to the state would be reduced as a result of passage of A.B. 645. Ms. Loux agreed and explained other states that had passed this kind of legislation, which did away with the need for licensed nurses and on-going nursing supervision, received reduced federal benefits to provide personal assistance services. Mrs. Freeman asked whether the change in terminology on line 5, page 1, and the language regarding liability, were critical to the bill. Ms. Loux replied the consumer community had indicated if there was no time to add those amendments this session it could be done during the next session. Mr. McMullen requested the word "physical" be added on line 5 of page 1 in front of the word "disability". He stated it should be a very quick change and not hold the bill up, but felt it was an appropriate amendment. Ms. Krenzer inquired about inclusion of people who have mental disabilities. Ms. Burress explained a key concern of the nurses had been making certain the consumer who was directing the care was cognitively capable of making those decisions. When speaking of cognitive impairment, Ms. Burress mentioned it became very difficult to sort out and the nurses believe if a person cannot direct care for themselves, it is too risky. Ms. Krenzer asked what the process might be for someone with cognitive, mental or emotional disabilities. Ms. Loux explained the process would remain as it currently is. Mr. McMullen directed attention to lines 8 through 10 on page 1 of the bill which stated someone without a physical disability would be able to do the same tasks. He reiterated physical disability is the limiting circumstance and he could not envision how to handle the whole range of mental disabilities. Ms. Krenzer stated, for the record, she would "probably oppose this were it not such a good compromise in this bill, so she would not belabor it, but I think we are on real shaky ground as far as discrimination against those with mental, emotional or even head injuries. I think it is just shaky ground we're on but I won't pursue it because I think this is better than nothing." Ms. Loux mentioned studies were going on at the World Institute on this issue but had not been finalized. Ms. Steel agreed with Ms. Krenzer and stated if a personal assistant is supposed to "help someone put on a shirt", what is the difference helping someone who has a physical disability as opposed to helping someone with a mental disability who needs the same personal type of assistance. Mr. Nolan commented there are systems in place that currently provide a level of assistance to anyone with such a mental disability that they require physical assistance or assistance from another. As a result, he did not see this issue as a problem or conflict. Stephanie Tyler, representing the Nevada Nurses Association, testified the nurses association recognized the very delicate balance and hard work done on behalf of A.B. 645. She particularly applauded the "shall not" section on page 2, line 14 which she believed to be a good way to define what should and should not be included. Ms. Tyler also mentioned the nurses association was still concerned regarding the broad nature of A.B. 645, (Exhibit I.) She was in concurrence with the proposed amendments and believed the one adding "physical" to line 5 would be very important to the nurses assocation because they feel these may be very separate issues. Someone with a mental disability, in contrast to one with a physical disability, might be precluded from making all of their own decisions. Considering the broad nature of A.B. 645 she believed, just for now, only people with physical disabilities should be included. Ms. Tyler mentioned the nurses association is concerned that "provider of health care" as referenced on line 3 is talking about health care providers who are providing direction to the personal assistants within the scope of their practice. She added page 2, lines 30 through 32 list exactly which health care providers may authorize a person to act as personal assistant and include occupational therapists (OT's), for instance. Ms. Tyler agreed occupational therapists are very helpful in many settings, however the Nevada Nurses Assocation is concerned because as A.B. 645 currently reads, one could have an OT altering or giving directions with regard to catheters and things such as that. As a result, she would like to see a simple amendment adding in "physical disabilities". Mrs. Monaghan inquired if Ms. Tyler thought this might be defined under the various health care providers' statutes and their definition and scope of practice. Ms. Tyler agreed it is tied back to scope of practice, but because of the broad nature of the language it would make the association she represents more comfortable. Regarding the liability issue, Ms. Tyler indicated she was glad to see the Nevada Trial Lawyers Association had been consulted on the language and she figured if it was "good enough for them, it is good enough for us". Paul Gowins, a long-time user of personal care services and a participant in the development of A.B. 645, testified he had not wanted to exclude the mentally disabled from receiving the same services he receives. However, the compromise between the nursing board and the consumers dictated the legislation now under discussion. He added "putting on a shirt" is not the problem; the problem is nursing-type practices. Passage of A.B. 645, Mr. Gowins testified, would lay a pathway into the future. Home health care is becoming more and more prominent in the system of delivery of health care and he believes it will save money. Jim Boscacci with the Northern Nevada Center for Independent Living, reiterated his support for A.B. 645 and pointed out part of rehabilitation is learning how to direct one's own personal care. He noted the whole idea behind independent living is having a personal assistant be a disabled person's arms and legs which makes that person really independent once in his wheelchair. Mrs. Monaghan reiterated her thanks to everyone who had participated in the drafting of A.B. 645. She emphasized what an extremely difficult issue it had been and for all sides to come together and arrive at a workable solution had been quite a feat. Mrs. Freeman stated she would work with all parties concerned on the amendments. Mrs. Monaghan indicated all parties involved wanted to simply add the word "physical" to line 5 on page 1. ASSEMBLYWOMAN VIVIAN FREEMAN MOVED TO AMEND AND DO PASS A.B. 645. ASSEMBLYWOMAN DIANE STEEL SECONDED THE MOTION. THE MOTION CARRIED. Mrs. Freeman agreed to take the measure to the Assembly floor. There being no further business, the meeting was adjourned at 3:10 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 29, 1995 Page