MINUTES OF THE SENATE COMMITTEE ON COMMERCE AND LABOR Sixty-eighth Session February 22, 1995 The Senate Committee on Commerce and Labor was called to order by Chairman Randolph J. Townsend, at 8:00 a.m., on Wednesday, February 22, 1995, in Room 227 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Randolph J. Townsend, Chairman Senator Ann O'Connell, Vice Chairman Senator Sue Lowden Senator Kathy M. Augustine Senator Raymond C. Shaffer Senator John B. (Jack) Regan Senator Joseph M. Neal, Jr. GUEST LEGISLATORS PRESENT: Senator William R. O'Donnell, Clark County, District No. 5 STAFF MEMBERS PRESENT: DeLynn Gillentine, Committee Secretary Scott Young, Senior Research Analyst OTHERS PRESENT: David Peairson, Unemployment Insurance Programs Officer, Department of Employment, Training and Rehabilitation, Employment Security Division Moreen Scully, Board of Marriage & Family Therapist Examiners, Deputy Attorney General Bobbie Gang, Lobbyist, National Association of Social Workers, Nevada Chapter At 8:05 a.m. Chairman Townsend called the meeting to order. The first order of business was testimony for Senate Bill (S.B.) 51. SENATE BILL 51: Revises eligibility requirements for receipt of unemployment compensation. (BDR 53-908) The first person to testify was David Peairson, Unemployment Insurance Programs Officer, Department of Employment, Training and Rehabilitation, Employment Security Division. Mr. Peairson presented Exhibit C and a discussion followed. Senator Townsend asked Mr. Peairson if Public Law 103-152 requires the state to implement this program. Mr. Peairson confirmed the requirement. Senator O'Connell questioned Mr. Peairson concerning how much money the state receives from the program, how long the program has been available and how this program differs from the current jobs program. Senator O'Connell also asked if marrying the current jobs program and the new program is possible. Mr. Peairson responded the Department of Labor will negotiate the contract and pay for the initial implementation of the automated identification system. Funding for the program will cost somewhere between $100,000 and $190,000. Although they have not begun the program yet, it will marry the two programs together. Mr. Peairson added, the program will identify the up- front claimant to facilitate services to those individuals. Senator O'Connell asked whether this is a duplication of efforts. Mr. Peairson responded, "No, it is the identification part of the unemployment claimant that is new here." Senator Regan remarked, "You mentioned the original funding cost is $190,000 approximately. That's start-up. Where do you see the ongoing operation costs coming from? If the [Department of Labor] DOL is just providing the initial start-up costs. Are we looking at another unfunded mandate?" Mr. Peairson responded: Not on that part sir. The [Job Training Partnership Act] JTPA Agencies that are already receiving monies within the state and providing services, would be utilized in addition to the employment services that are already available. So what this does is identify that unemployed individual but . . . it refers that person to those services that are available. The teeth in this law is that once . . . done, it requires those individuals to participate . . . to receive further benefits. Senator Regan asked what would happen to a person if they were referred to services and did not participate. Mr. Peairson replied the division would deny the person their unemployment benefits. Senator Neal inquired, "How would this relate . . . to union jobs. If a person is unemployed and belongs to a union and he is a specialist in his trade . . ." Mr. Peairson stated the union member would not be identified as likely to exhaust his benefits; therefore, he would not be referred to those services. Senator Neal continued, "What is 42 U.S.C.  503?" Mr. Peairson responded, "It is the federal code, that as a result of this Public Law 103-152, requires the states to implement this system." Senator Neal expressed concern over the statement that "a person is eligible to receive benefits in respect to any week only if he participates in those services to assist in his reemployment, unless the administration determines that the unemployed person has completed his participation in those services or there is justifiable cause for a person's failure to participate in those services." Senator Neal asked what constituted a justifiable cause and who would make judgement of justifiable cause. Mr. Peairson replied it would be examined case by case. The person likely to exhaust his benefits would get a referral to the services. Mr. Peairson gave examples of what might be considered justifiable cause and said any judgement call would be made as part of the adjudication process. Senator Neal continued, "Relative to this person's participation, what will this person have to do in terms of finding a job?" Mr. Peairson said, "An individual assessment of that claimant's circumstance and examination of his experience, . . . training . . . education all of those things . . . might be necessary [and] would be examined in order to refer that individual to training that might assist him in reemployment [and] job development . . . " Senator Lowden asked about the language on lines 20 and 21 of S.B. 51. In particular, Senator Lowden questioned Mr. Peairson about the administrator having the power to determine a person's completion of, or failure to participate in the services required. Senator Lowden expressed concern over the freedom the law gives the administrator and the possibility of arbitrary discrimination against the claimant. Mr. Peairson reiterated his comments in regard to the administrator and justifiable cause and added, "The department would outline those circumstances under which an individual could be excused from this under justifiable cause." Senator Lowden inquired regarding how long the state has to comply with Public Law 103-152. Mr. Peairson suggested implementation of the program should be completed by the end of 1995, because a report must be made to congress in 1996 on the effectiveness of the program. Senator Townsend closed the hearing on S.B. 51. Senator Townsend introduced Senator William R. O'Donnell, Clark County, District No. 5. Senator O'Donnell explained that yesterday in the Senate Committee on Transportation, the committee tried to introduce a bill. The committee was told it could not introduce this bill and the committee for commerce and labor should introduce it. He asked for a bill draft request, and discussed and presented Exhibit D. After Senator O'Donnell's presentation, Senator O'Connell asked how people would be notified or warned of the danger present in the toxic material they are handling. Senator O'Donnell responded, "Right now it is against the law to have any open fire . . . without a permit in the Las Vegas area and I am sure in the Washoe County area. The problem is it is not illegal to bring this burnt wire into the peddler so I imagine there would be a sign there saying you cannot bring it." Senator O'Connell asserted, "But that is not included anywhere in the bill that there would be any kind of a sign saying there is a warning that this is a toxic material to the person that is doing the burning." Senator O'Donnell suggested, "As of now, no, but I am sure . . . this committee can deal with those issues once the bill has been drafted." Senator O'Connell expressed concern about a possible health care problem in relation to people unknowingly handling the toxic material and going to the emergency room with problems. Senator O'Connell again suggested there should be a way of notifying the people involved of the possible danger. SENATOR NEAL MOVED FOR COMMITTEE INTRODUCTION OF A BILL DRAFT RELATING TO SCRAP METAL DEALERS AND TOXIC MATERIALS. SENATOR REGAN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Senator Townsend opened the hearing on Senate Bill (S.B.) 70. SENATE BILL 70: Authorizes board of examiners for marriage and family therapists to issue subpenas for the attendance of witnesses and production of books and papers. (BDR 54-837) Moreen Scully, Board of Marriage & Family Therapist Examiners, Deputy Attorney General, testified on S.B. 70. Ms. Scully referred to the bill and stated: What you have in front of you . . . I directly copied this subpoena section from the board of optometry because it seemed to encompass all of the possibilities and be . . . clean. I think there are only two boards, maybe three that don't have subpoena power. Since I represented Marriage & Family Therapy Board, I can tell you it has been quite a hurdle. Often . . . complaining witnesses change their mind because of the unique relationship between a therapist and the complainant. They initially come forth with a complaint and then just get cold feet. That is something that . . . could be prevented if they were under subpoena power. Additionally, there [are] . . . records that are either ill kept . . . or problems with billing and insurance . . . and I think . . . realistically this is something the board should have power to do. Senator Lowden suggested Ms. Scully give an example of how subpoena power would be used and whether the psychologists and psychiatrists already have subpoena powers. Moreen Scully responded: The psychologists and psychiatrists, most of the other health care [boards] do have subpoena power. Even some that you wouldn't suspect would need it. That is to answer your second question. To answer your first question, I can tell you a couple of examples I have come across. One was alleged billing to insurance and billing to the client. If you don't get those papers initially, they can be altered. Another example was a complaint where the parties were billed for a block of time with a young child. . . several of those appointments the parents said, `we never went there.' Those kind of things, I think could easily be cleared up. A third example would be a complaint I had where, marriage family therapists are required to keep very specific notes of their therapy and one of the complaints was that the note taking was incomplete regularly . . . Now that would be easily something that someone could go and fill in, update and make more complete . . .Another time . . . a witness did not want to testify in a sexual abuse allegation, and changed their mind . . . and the relationship between these people, there are no witnesses to this. It's their word against the other word and sometimes I could compel the witness to come and sometimes the paper will help. Senator Lowden questioned whether these are public hearings and Ms. Scully verified that fact. Senator Lowden asked about confidentiality for the client. Ms. Scully stated " . . . the hearing can be totally confidential as far as the complainant is concerned. We have ways of doing that." Senator O'Connell inquired, "On the very back on line 6 and 7 [of S.B. 70]. First of all, what is the penalty for the contempt of the court?" Ms. Scully explained that would be under the court's discretion because a contempt order would come from the district court, not from the board. Senator O'Connell continued, "How do you handle these problems right now?" Ms. Scully answered: Try and be very persuasive, thus far I have had one witness that would not come. I appreciate that and in a sense I do not want to subpoena people that do not want to come, but sometimes when I get several complaints about a certain person it really behooves them and society that they come forward and prevent this from happening any further and this is solely been related to sexual allegations . . . in other circumstances we used section 629 . . . It's not quite the same as a subpoena but we have used that too. Senator O'Connell inquired as to the effectiveness of section 629. Ms. Scully responded she had not received that information. Senator Augustine commented, "I was wondering why we have a whole new chapter dealing with this, when if a lot of the other boards are doing it, wouldn't it be inclusive in the chapter in which your board is authorized?" Ms. Scully replied: All the boards have their own individual subpoena power, . . . it's in different sections of their Nevada Revised Statutes (NRS) and different wording. As I said I picked this [wording] from the optometrists because it seemed to be the most complete and the best wording I could find . . . Senator Neal remarked, " . . . What is it that you would be able to reach by subpoena powers that you are not able to take care of by disciplinary action that you presently have written into statute right now." Ms. Scully maintained: . . . I think that to get a successful disciplinary action and get all the facts that could be available to the prosecution a subpoena is necessary. Additionally, I believe if you have the subpoena power and subpoena these records certain discrepancies can be cleared up earlier as well. There have been several cases where a complainant has come forward and the therapist has voluntarily given me everything and I go, there is no case. Senator Neal asserted they already have the authority to require the production of records and if there was a violation they already have a remedy. The remedy is the disciplinary action. Senator Neal continued, "If you require someone to produce records, are you talking about someone who is not part of your organization of the marriage therapists? [Do] you want judicial authority to go out and subpoena Senator Townsend to come in and testify?" Ms. Scully responded, "If he was a witness. Yes, I have the authority to discipline them for not turning over documents but what if they have been engaging in sexual misconduct with a client and several clients . . . for a period of time." Senator Neal stressed, "And if the client doesn't want to come forward then why would it be a concern of yours?" Ms. Scully explained: If that were the case, if someone were engaging in sexual misconduct with one or several clients and they did not want to come forward, but they had come forward enough to file a complaint, because they have to file a complaint or I have nothing. So if they went that far and it looked pretty bad then I would compel them to come testify. Senator Neal inquired: Let's assume then that you did have someone to come in and file a complaint. Would it not be incumbent upon that particular individual to supply certain evidence as to whether or not they were sexually assaulted? Ms. Scully responded, "We have no authority at this point, no." Senator Neal asked, "If they file a complaint with the board, don't you have an obligation to have a hearing based on that complaint?" Ms. Scully agreed, "Yes, I do but my evidence would be very weak without my complaining witness." Senator Neal suggested, "If the witness doesn't want to complain, . . . it seems to me the ordinary course of things would then to be to drop the complaint." Ms. Scully responded: I appreciate that, but as I said this kind of relationship is unique and people often change their minds and they are intimidated . . . by their therapists. If that were the situation, if they were compelled to come I don't think they would come dragging their feet. I think they would come because they had to. Senator Neal expressed concern of the possibility that a complainant might be intimidated by the subpoena into testifying, when they would rather drop the charges. Ms. Scully reiterated her concern for the complainant who might be intimidated by a "therapist who a person has come into . . . and told the most innermost secrets of their soul to this person . . . and this person holds all of their secrets and violates them in some respect. They become very fearful." Senator Neal stated, "Let's take what you have been asking for, assuming we gave you the powers to subpoena a witness. You subpoena that witness and the witness does not show up, what happens?" Ms. Scully replied: In a practical sense for that particular witness . . . I would not likely go to the district court and punish them further. In part two of your question a while ago, when you were talking about papers and them not turning over documents and that I can discipline them for that. When the underlying offense is a very serious claim or charge and I am going to prosecute them for not turning over documents under 629 I feel that the board is not protecting the public . . . Senator Lowden inquired: . . . Have you followed any of the psychologist or psychiatrist boards to see if they have subpoenaed and the success or the failure of those subpoenas . . . in terms of the subpoenaed person coming forward or not coming forward? Do you have any information on that? Ms. Scully answered: . . . This brings up another aspect of the subpoena because the subpoena would be available not just for the prosecution, but to the defense as well. I represent the nursing board and we routinely issue subpoenas. We have so many hearings on a quarterly basis . . . and we routinely issue them on behalf of the defense as well. . . Additionally, hospitals will not turn over documents without subpoenas . . . Senator Augustine commented, " . . . If you are talking about the nursing board and the optometrists, those are parties who are actually involved medically with patients . . . so I can see their problems may be more complex than just a therapist who is not really administering anything to the patient other than advice." Ms. Scully pointed out that in this kind of setting it is even more important because of the potential secrecy and hidden nature of the offense. Senator Neal discussed language already written into the law in regard to marriage and family therapists and again asked why they require subpoena power. Ms. Scully reiterated her previous comments. Senator Neal and Ms. Scully discussed the board's current power and judiciary powers. Senator Lowden requested the committee obtain a list of boards that do not have subpoena power. Scott Young, Senior Research Analyst responded: Three boards presently do not have subpoena power. One is marriage and family, one is the long-term health care administrators, the rest homes, and the other is social workers. Of the 31 boards and commissions, 28 have the subpoena power already. Senator Lowden questioned why all the boards do not have the same criteria or rules governing them. Senator Townsend explained: We have tried for many sessions . . . to pull out all of the commonality with regard [to the boards] and have one section of the law that simply said all the boards will be made of seven [board members], they will get paid this much, they do this and this is their authority and then each individual board would retain their own statutory authority which defines their scope of practice . . . The flip side of what you are asking for is in looking at this, based on questions Senator Neal has had, why do any of them have subpoena power? So this committee can go . . . the other way and take it away from everybody. Senator Townsend discussed next week's committee schedule. Senator Lowden asked Ms. Scully if there was another bill draft request she was going to testify on relating to this subject. Senator Lowden requested information on any bill Ms. Scully would be testifying for, before the next scheduled discussion on the subject. Ms. Scully responded, essentially the wording was the same and it was for the long-term care administrators. Bobbie Gang, Lobbyist, National Association of Social Workers, Nevada Chapter stated, "Unofficially, it has come to me through my representation that the board of social work will be coming forth with the same type of bill request. But I haven't seen anything on it . . . " Senator Townsend suggested they watch the committee's action on this bill and Ms. Gang concurred. There being no further business, Senator Townsend closed the meeting at 9:10 a.m. RESPECTFULLY SUBMITTED: DeLynn Gillentine, Committee Secretary APPROVED BY: Senator Randolph J. Townsend, Chairman DATE: Senate Committee on Commerce and Labor February 22, 1995 Page