MINUTES OF THE SENATE COMMITTEE ON COMMERCE AND LABOR Sixty-eighth Session April 5, 1995 The Senate Committee on Commerce and Labor was called to order by Chairman Randolph J. Townsend, at 8:30 a.m., on Wednesday, April 5, 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. STAFF MEMBERS PRESENT: Scott Young, Senior Research Analyst Vance Hughey, Senior Research Analyst Molly Dondero, Committee Secretary OTHERS PRESENT: Lawrence P. Matheis, Lobbyist, Nevada State Medical Association Michael D. Hillerby, Lobbyist, Nevada State Board of Pharmacy Harvey Whittemore, Lobbyist, Board of Medical Examiners Dr. Mitchell Keamy, Past President, Nevada Society of Anesthesiologists Stephanie Tyler, Lobbyist, Nevada Nurses Association Lucille Lusk, Lobbyist, Nevada Concerned Citizens Nancyanne Leeder, Attorney, Nevada Attorney for Injured Workers Brian Stockton, Associate General Counsel, State Industrial Insurance System Leonard Ormsby, General Counsel, State Industrial Insurance System Richard J. Peters, President, Advanstaff, Inc. Senator Kathy M. Augustine spoke on behalf of Senate Bill (S.B.) 298 and read Exhibit C. SENATE BILL 298: Prohibits disciplinary action against physician or osteopathic physician for prescribing or administering certain controlled substances for treatment of intractable pain. Lawrence P. Matheis, Lobbyist, Nevada State Medical Association, spoke on behalf of S.B. 298. He explained there have been many advances in pain control. He commented that physicians are being encouraged to use the new drugs for pain management, but the law does not protect the physicians against punitive action for prescribing those drugs. He stated if abuse by the physician occurs, there is still the licensing review board which may take action against a physician. Senator O'Connell asked if other laws, such as this one, have been enacted in other parts of the country. Mr. Matheis stated he is aware of discussions throughout the country, but is not aware of action taken at this time. Senator Augustine commented there is a law in California just like the bill being proposed here. She stated it was put into statute in July, 1994. She commented many patients from Las Vegas, now go to California for treatment because of this law. She stated the Board of Medical Examiners is in favor of this bill. Senator O'Connell expressed her concern that not enough states have enacted the legislation to produce a "track record" to know how often the law has been needed, or what the law's long-term effect will be on the medical profession. Senator Augustine replied the bill does not alleviate the charges against a doctor who does something wrong, but it does allow a physician to prescribe without the fear of prosecution. Senator O'Connell asked if malpractice insurance is impacted in any way. Senator Augustine commented it is not. Senator Neal commented the bill will remove the prohibition against a doctor administering a controlled substance to cure pain. He asked why the prohibition was ever placed into the law. Mr. Matheis stated there is no prohibition in the law. He stated the bill says, "that prescribing these controlled substances for intractable pain is not cause in and of itself for an action." Senator Neal asked why there needs to be a statute. He commented it should be an action by the board to which Mr. Matheis replied: The intent is to make it clear that physicians are not being discouraged from using the appropriate amounts of the new prescription drugs that are available for dealing with intractable pain. Senator Neal asked if a doctor is protected from condemnation if he should over-prescribe a controlled substance causing addiction for the patient. Mr. Matheis explained that a violation of using drugs improperly is still a violation. Senator Neal asked if the bill pending in the Senate Committee on Human Resources is in contradiction of this bill. Mr. Matheis indicated it is not. Senator Augustine commented she has contacted the Nevada State Board of Pharmacy and they are in favor of this bill. Senator Neal asked Michael D. Hillerby, Lobbyist, Nevada State Board of Pharmacy, if this bill contradicts the bill currently in the Senate Committee on Human Resources. Mr. Hillerby replied people who are improperly prescribing drugs will still be dealt with according to the situation. This bill will not stop the tracking of controlled substance prescriptions. Senator Neal commented there are no controls in the bill placed against a doctor prescribing drugs, other than the controls by the doctor himself. He pointed out without control, misuse can happen. Mr. Hillerby stated there are two steps to the process of drug prescription. The physician prescribes a drug for a patient. The pharmacy tracks the prescription through their computer system to determine if it is prescribed appropriately. Senator Neal disagreed with the term "appropriate." Senator Augustine pointed out that doctors may prescribe any drug under current law. The law asks that they not be disciplined "solely" for prescribing drugs to a patient. Mr. Matheis stated tracking inappropriate prescribing of drugs is different from the request in this bill. He stressed the need for larger dosage of pain-killing drugs for terminally ill people. Mr. Hillerby reaffirmed the bill will not conflict with the bill in the Senate Committee on Human Resources. Senator Regan asked if the physician is already protected under Nevada Revised Statutes (NRS) 630.3066. Harvey Whittemore, Lobbyist, Board of Medical Examiners, commented the State Board of Medical Examiners wishes to make clear that this bill refers only to allopathic physicians and not homeopathic. He stated this bill brings clarity into an area where there has been no clarity in the past. He stated: ...making it very clear, that you cannot be brought forward solely for the reason of prescribing the listed items. The reason why it is appropriate to do so, today, is because there is a fear that in not having this protection, the state Board of Medical Examiners could bring you forward, and that is certainly not the board's desire or intent. All that we are doing, as we do in many cases with respect to legislation is to try to clarify the conduct which is prohibited and encourage the conduct which we think is appropriate policy. In this case, you are simply saying that you would not be disciplined solely for prescribing these drugs if in fact you abused that privilege and you did not follow rules and regulations of the board and the law, you would be subject to disciplinary action. Senator Neal asked why Nevada needs the statute. Mr. Whittemore explained the statute was developed in 1977 due to the Gerovital and laetrile issue. Senator Neal asked what is in NRS 453.146. Mr. Whittemore read the statute. He explained the pharmacy board handles the scheduling of the drugs and the state Board of Medical Examiners regulates the conduct of physicians. Senator Neal expressed his concern that once this bill is in statute that it will permit "legalized drug dealing by doctors." Mr. Whittemore disagreed. He commented: The state Board of Medical Examiners believes there are sufficient controls over the existing conduct of physicians that they can control the conduct of those physicians and the methods by which they deliver these products to their patients. Senator Neal commented "only the poor get their drugs off the street corners. The rich get it from their doctors." Mr. Matheis stated there have been many changes in medications available for the terminally ill. He stated if the pain is controlled, the quality of life is improved for the patient. Mr. Whittemore suggested a change of language in the bill. He said line 10, in front of "prescribed", insert, "appropriately and lawfully..." It solves the problem by specifying the terms under which a medication may be prescribed. He stressed it is important to be certain that the physician prescribing the drug is working within their proper field. Senator O'Connell stressed her concern for people who abuse drugs through prescription because the drugs have been prescribed by physicians for too long a time, thus addicting them to the drugs. She stressed the bill shifts the burden of proof. She expressed her concern for a person who is addicted to drugs and wants to sue the doctor who continuously prescribed them. Mr. Whitemore explained the bill has nothing to do with that type of legal action. The bill only deals with disciplinary action. Senator Townsend asked why the bill is needed. Dr. Mitchell Keamy, Past-President, Nevada Society of Anesthesiologists, discussed the bill. He explained the difficulties in treating the terminally ill by making them comfortable. Development of stronger drugs has allowed doctors to expand the range of tolerance to medications. He explained that people develop a tolerance to drugs which requires a physician to increase the dosages needed to give them relief. He illustrated that many patients wish to die at home, then these drugs must be administered under home-care conditions where they may not be as carefully monitored as they are in a hospice. Senator Townsend explained that the wording in the bill allows the burden of proof to shift from the physician to the Board of Medical Examiners who must administer the law. Dr. Keamy explained the bill allows a margin of safety for the physician. He said it is difficult for a doctor to prescribe the level of dosage needed by some patients, because there is no protection for the physician under the law for prescribing the drugs. He explained the end result of not giving the doctors the protection asked for in the bill, is that people will suffer needlessly when they might have received higher dosages of medication to relieve their suffering. He expressed the concerns of the physicians for their need for protection. Senator Neal asked what it is that doctors fear. Dr. Keamy explained when a patient needs the high dosages of pain medication, they are often close to becoming overmedicated. There is often a fine line between a dose that is a lethal dose and one that will offer comfort. Senator Neal asked why the Legislature should protect the doctor in that situation. Dr. Keamy responded it is the tendency for physicians to error to the conservative decision. He pointed out that, "errors of omission are tolerated better than errors of commission." He said a doctor is safer to undertreat a patient than to overtreat. He stated the bill will remove the stigma of narcotic use in the alleviation of pain. He said people should not have to suffer with pain in their dying days. He stated the bill sends a positive message of hope and caring. Senator Neal asked if doctors share ideas with each other for treatment of patients. Dr. Keamy stated a doctor who is uncertain of a treatment will consult with other doctors to obtain another opinion. He explained the difficulty of treating a patient in a home environment where there are not other doctors with whom to discuss a case. He stressed there is no organized group to turn to for consultation. If there is a difference of opinion on treatment, it always is discussed after the fact by others. Mr. Matheis stated management of chronic pain is becoming discussed more frequently. Currently, there is more information about it available to doctors, than there was in the past. He stated: The reason for addressing this statutorily, is that the situation has changed. This is an evolving area of knowledge. In order to be able to make certain that the growing consensus about using appropriate amounts of pain medicine, especially when dealing with the terminally ill, is why I believe oncologists and physiotrists [sic] asked for the bill so that they could send a clear signal, the board, in effect, is sending a clear signal, that that, alone, is not going to be cause for action. [That] providing the proper amount of pain medication for someone who is terminally ill, is not in and of itself going to [cause] an action by the board on the license. That is the intent here. Senator O'Connell commented the testimony is relating to those people who are terminally ill. She emphasized the bill does not state this. She asked if the intent of the bill is, "that it be used in a hospice situation, or the language before us." Senator Augustine commented she was not requested to introduce the bill by the physicians. She stated she has talked to some oncologists regarding this bill since the bill draft was requested. She stated she has had constituents who have told her of the pain they have suffered from major accidents. These people have not been able to receive medication in Nevada to alleviate their pain, because the doctors are afraid to prescribe the large dosages needed. They have to travel to California to receive their medication. Senator Townsend pointed out the language in the bill allows every licensee to be protected. He asked how does the committee address the needs expressed in the hearing. Senator Augustine stated physicians are not being allowed or are not openly prescribing medication for intractable pain because of fear of repercussions by the Board of Medical Examiners or others. Senator Townsend commented that a doctor may go to the Board of Medical Examiners now and say,"What is the problem we are going to have if we lawfully and appropriately prescribe additional pain drugs? That is the question here." He stressed there is a legitimate concern, but the bill does not address that. He commented, "We are changing the burden of proof, shifting what the Board of Examiners does, and you are opening to the world...I am a little uncomfortable with that." He stressed there needs to be a better line of communication. He asked if this is a medical malpractice issue, then the committee needs to be informed. Mr. Matheis stated this is not a medical malpractice issue. He stressed the bill does not change the burden on the board. He stated the board is in favor of the bill. He stated: We think that it addresses an issue that is of significant importance in the practice of medicine right now. It is a changing field. The knowledge about the ability to prescribe in sufficient amounts, drugs to deal with intractable pain, particularly in cases of the terminally ill ... is such that physicians would like the assurance that if they do that ... that in and of itself will not be cause of a license action. Senator Townsend asked if any other diseases or problems are named in the statute. He cautioned against naming a specific ailment in the statute. The Board of Medical Examiners is in place to deal with specific issues relating to ailments. Mr. Matheis said the bill does not name a specific ailment. Senator Lowden expressed her concern that Nevadans must travel to California to receive medication for their pain. She stated she feels it is a disgrace. She related her own experience with her mother's need for help during her own illness. Senator Townsend said he feels the Board of Medical Examiners should be able to say, "if someone lawfully and appropriately prescribes whatever amount, that is what you do. You are the professional." Mr. Matheis stated the board speaks in two ways, "through the statute that guides it, and through the regulations it adopts, as well through the specific cases that they deal with. In effect, this does become the board speaking." Senator Augustine clarified the board is in favor of the bill because it will allow them to place the language in their board regulations. Stephanie Tyler, Lobbyist, Nevada Nurses Association, presented Exhibit D for information and discussed the bill. She stated the nurses want her to express there is a problem which the bill addresses. She commented the bill, however, needs clarification. She emphasized society pressures doctors to under prescribe for their patients in Nevada. She stated the nurses do see a reluctance from doctors to prescribe medication for pain. Senator Augustine asked if the inclusion of the words "appropriate and lawful" will appease the concerns of the committee. Lucille Lusk, Lobbyist, Nevada Concerned Citizens, expressed her support of the bill. She stated, "The bill represents an appropriate boundary of public policy to assure that comfort care will not result in a court judgement that an individual has crossed the line." She stated she feels this is a malpractice issue. Senator Neal requested a list of all drugs included on schedule 2, 3, and 4. He insisted that all drugs, not just controlled drugs, be included in his list. Senator Townsend closed the hearing on S.B. 298 and opened the hearing on workmens' compensation changes. Senator Townsend discussed the case of Mr. John W. Taylor. He referred to Mr. Turner's [Taylor's] difficulty with the State Industrial Insurance System (SIIS). Mr. Taylor had submitted testimony during previous hearings explaining how SIIS wanted him to return $60,000 for a previous payment of only $5,500 for the loss of an eye. Nancyanne Leeder, Attorney, Nevada Attorney for Injured Workers, presented Exhibit E. She explained the word "claims" should be inserted at the end of the sentence in section (4) of page 2 of the exhibit. Brian Stockton, Associate General Counsel, State Industrial Insurance System (SIIS), explained Exhibit E. He said he is happy with the language presented and thinks it will prevent occurrence of problems such as those experienced by Mr. Taylor. Exhibit F was handed out for information. Mr. Leeder stated there are three claims of a similar nature, including Mr. Taylor's, being handled by her office at this time. SENATOR O'CONNELL MOVED TO INCLUDE THE LANGUAGE IN EXHIBIT E, PAGE 2, IN THE BILL. SENATOR SHAFFER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ****** Leonard Ormsby, General Counsel, State Industrial Insurance System (SIIS), presented Exhibit G. Mr. Ormsby requested the language "whichever is greater" which appears in section (3), the last line, be deleted from Exhibit G. Senator Townsend stressed it is the goal of the committee that any employee in Nevada must be covered by an employer, whoever the employer is. Senator O'Connell requested the record reflect, "It is not only the employee, but the classification the employee belongs in." Mr. Ormsby stressed SIIS is trying to solve the problem of the employee who is working in a job different from their classification risk. Senator Townsend stressed if an employer misclassifies an employee, every other employer in the state picks up the difference and then there is less money to take care of the legitimately injured person. Richard J. Peters, President, Advanstaff, Inc., expressed his support of the language in Exhibit G. He stated every employee, who is in an employee leasing arrangement, should be covered by SIIS. Senator Regan pointed out a case where a contractor is unable to make a competitive bid, because his competitors all lease their employees and they are classified as clerical personnel. He stressed his concern that employees are classified correctly according to their real occupation. Mr. Ormsby stated the language in Exhibit G will close that loophole. Senator Regan emphasized, "We have a very long corporate memory, and if some of us do not come back after elections, there are people here who, if [things] are not right, will get them. Do you understand the legislative intent of what we are trying to do." Mr. Ormsby responded he understood. Mr. Peters stated his company requires an audit with SIIS of each new company they take on. They require that audit within the first year, and once a year thereafter. He said they verify that each employee is classified correctly. SENATOR O'CONNELL MOVED TO INCLUDE EXHIBIT G IN THE BILL. SENATOR REGAN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator Townsend closed the hearing at 10:00 a.m. RESPECTFULLY SUBMITTED: Molly Dondero, Committee Secretary APPROVED BY: Senator Randolph J. Townsend, Chairman DATE: Senate Committee on Commerce and Labor April 5, 1995 Page