MINUTES OF THE SENATE COMMITTEE ON COMMERCE AND LABOR Sixty-eighth Session April 13, 1995 The Senate Committee on Commerce and Labor was called to order by Chairman Randolph J. Townsend, at 8:00 a.m., on Thursday, April 13, 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 Bill R. O'Donnell, Clark County Senatorial District No. 5 STAFF MEMBERS PRESENT: Scott Young, Senior Research Analyst Molly Dondero, Committee Secretary OTHERS PRESENT: Stephanie Tyler, Lobbyist, Nevada State Board of Dental Examiners Susan Jancar, D.D.S., President, Nevada State Board of Dental Examiners Gwen Mrnak, R.D.H., President, Nevada Dental Hygienists Association Michael D. Hillerby, Lobbyist, Nevada Dental Hygienists Association Joyce Herceg, Legislative Council Chair, Nevada Dental Hygienists Association Jim Wadhams, Lobbyist, Nevada Dental Association Thomas R. Sheets, Assistant General Counsel, Southwest Gas Corporation John F. Mendoza, Chairman, Public Service Commission of Nevada Paula Berkley, Lobbyist, Nevada State Board of Chiropractic Examiners Bill Bailey, D.C., Secretary, Nevada State Board of Chiropractic Examiners Ronda Moore, Deputy Attorney General, Nevada State Board of Chiropractic Examiners Dale A. R. Erquiaga, Chief Deputy Secretary of State William Zideck, Executive Director, Nevada State Board of Accountancy Margi Grein, Director of Finance, Nevada State Contractors Board John Sapp, Nevada State Contractors Board Robert Barengo, Lobbyist, Collateral Loan Association Brian Herr, Lobbyist, Nevada Bell Scott Craigie, Lobbyist, Sprint/Central Telephone-Nevada Christopher Logan, Nevada Society of Respiratory Care Stephanie Tyler, Lobbyist, Nevada State Board of Dental Examiners, introduced Susan Jancar, D.D.S., President, Nevada State Board of Dental Examiners, who discussed Senate Bill (S.B.) 69. SENATE BILL 69: Makes various changes to provisions governing licensing and regulation of dentists and dental hygienists. Dr. Jancar spoke on behalf of Senate Bill (S.B.) 69. She pointed out line 12 as an important aspect of the bill. She explained the change of wording on line 23 of page 1 and on line 1 of page 2. She clarified line 17 of page 3. She explained other states require the score of 75. Senator Augustine questioned why the exam scores should be lowered. Dr. Jancar explained, a few years ago, the passing score was raised to 80. She stated it was decided it is fair to keep the score the same as it is in all other states, and also, the National Board Exam has been changed, making it more difficult than before. Gwen Mrnack, R.D.H., President, Nevada Dental Hygienists Association, expressed the association's support of S.B. 69. Senator Townsend closed the hearing on S.B. 69 and opened the hearing on Assembly Bill (A.B.) 261. ASSEMBLY BILL 261: Revises provisions relating to performance of certain tasks by dental hygienists. Michael D. Hillerby, Lobbyist, Nevada Dental Hygienists Association, presented Exhibit C and spoke in favor in the bill. Ms. Mrnak presented Exhibit D, her written testimony in favor of A.B. 261. Joyce Herceg, Legislative Council Chair, Nevada Dental Hygienists Association, presented her testimony (Exhibit E). Senator Lowden asked if Exhibit D limited the intent of the bill which is to offer services outside the office. Ms. Herceg stated Exhibit D refers only to using nitrous oxide or local anesthesia. Senator Augustine suggested adding the word "emergency" before "equipment" in the amendment (Exhibit D). Senator Neal asked what training is required to allow a hygienist to administer local anesthesia and nitrous oxide. Ms. Herceg replied they take courses in it to obtain their degree. She explained they are currently allowed to administer anesthesia and nitrous oxide according to statute with supervision of a dentist. Senator Neal asked why the new language is in the bill on line 19. Ms. Herceg explained the language allows them to go to a health care facility and clean teeth without a dentist being with them. Senator Neal expressed his concern that the hygienists will be allowed to administer anesthesia and nitrous oxide without the dentist being in attendance. Mr. Hillerby explained since 1982 dental hygienists have been able to obtain an additional certification to administer local anesthesia and nitrous oxide in a dentist's office. He explained the Nevada State Board of Dental Examiners is in favor of the bill. He explained the intent of the bill is: ...to allow a dentist to authorize these so that a dentist, while not being present, would have to specifically authorize those services. The board would have to look at each specific situation that was going to be authorized to be certain that it happened in a health care facility where adequate emergency personnel, equipment, and supplies were available to respond in case there was an emergency. Since 1982 there has never been an adverse incident in the state of Nevada involving dental hygienists administering local anesthesia. Senator Neal objected to page 2, lines 24-28. Mr. Hillerby pointed out the patient's dentist must authorize all work performed by the dental hygienist. He emphasized the dental hygienist may not open up their own business and work independently of a dentist. Senator Neal continued to disagree with lines 24-28. Mr. Hillerby stated that page 1, lines 16-18 addresses Senator Neal's concerns. Mr. Hillerby explained: It is our intent to lobby the board when the regulations are passed, and we believe that the board will pass regulations which are very clear. If that is not spelled out in the bill clearly, it is certainly not our intent to do that...It is the authorization of the dentist that is important, and that is spelled out on page 1 under the general definition of dental hygiene. They cannot perform those services unless it is authorized by a dentist whose patient those services are being performed upon. Senator Augustine stated the amendment (Exhibit C) proposed by Mr. Hillerby defines the regulation. Senator Neal read the act listed on the bill. He commented the act states the bill allows a dental hygienist to perform tasks without the supervision of a dentist. Mr. Hillerby stated: That is the intent of the bill. The operative words are in subsection 3 on page 1, that those services have to be authorized by a dentist who has seen that patient. Senator Neal asked that the wording be placed into subsection 4 of page 2 of the bill. Mr. Hillerby agreed. Senator Townsend expressed his concern of the deletion in line 3. He asked if this is the next step toward requesting independent practices for hygienists. Mr. Hillerby stated it is not the intent of the bill to allow that. He stated the board regulations will make it very clear that there is not independent practice authorized. He explained subsection 3 is in the bill to deal with charity situations. He stated: Our intentions are with the bill to provide an opportunity for gratuitous, infrequent services to be provided by dental hygienists on people who are not necessarily patients of dentists. They could not employ themselves... Senator Townsend cautioned the bill does not say this. He stated line 20 on page 1 gives "a great deal of discretion to the board to draft a regulation which will encompass all these things you can and cannot do." Senator O'Connell asked about liability. Ms. Herceg stated the liability is with the dentist or whomever gives the hygienist the authority to perform the services. Senator O'Connell commented Nevada has the number one program in the nation for dental hygienists. Senator Augustine said section 2, page 2 allows the board to authorize services. Mr. Hillerby stated the board can authorize under specific instances, and the services still must be authorized by the dentist who treats that patient. Ms. Herceg stated that in a health care facility, the services must be authorized by a dentist. Dr. Jancar clarified that hygienists are very qualified personnel. She commented they have extensive training. She explained what the bill asks is to allow the hygienist to work under the authorization of a dentist. Senator Neal asked if the hygienist will share in the malpractice insurance. Dr. Jancar stated the dentist is completely liable for all work. Dr. Jancar clarified the bill does not allow dentists to authorize hygienists to work with nitrous oxide or local anesthesia in an unsupervised situation. She stated that is not the intent of the bill. She stressed there is supposed to be someone present who can attend to any type of medical emergency. She stated in some instances, the patient may not have a dentist of record. She clarified the board then can authorize treatment. She stated it is the board's liability. Dr. Jancar emphasised the acceptance of that liability is all right with the board. Senator Lowden expressed her support of the bill. She stated if the board is willing to accept the responsibility, and the proponents of the amendment agree, then she has no disagreement with the bill. Ms. Tyler commented the board will look at each case individually. She stated the board has reviewed the bill carefully and accepts the responsibility. Senator Neal continued with his disagreement with the bill. He declared the state will be liable if anything goes wrong during a teeth cleaning. Dr. Jancar stated the hygienists are, now, working in nursing homes and with the indigent. She pointed out the bill does not change what they do. She stated the board authorizes the treatment now. She stated they are not allowed to give nitrous oxide or do local anesthesia. She said the bill only changes: ...under specific situations we might allow them also to give nitrous oxide or local anesthesia and the reason for that is that some of these patients are older and they have a very low tolerance of pain. The only way that the hygienist can do a thorough job is by getting them numb. It is not needed very often. It is just there in case of a specific case that needs to be done. But at the same time we wanted to make sure that all the emergency situations were taken care of as far as medical personnel being there who are qualified to handle an emergency situation. Jim Wadhams, Lobbyist, Nevada Dental Association, spoke in favor of working on the amendment. Senator Townsend closed the hearing on S.B. 261. A vote was taken on S.B. 69. SENATOR O'CONNELL MOVED TO DO PASS S.B. 69. SENATOR LOWDEN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** A brief hearing was held on S.B. 343. Thomas R. Sheets, Assistant General Counsel, Southwest Gas Corporation, discussed the bill. It was decided there was more need for discussion on this bill by the Public Service Commission of Nevada (PSC). SENATE BILL 343: Revises provisions governing examination of employment records and personnel files of employees of public utilities, motor carriers or brokers. No further discussion was held on S.B. 343. A report was given by John F. Mendoza, Chairman, Public Service Commission of Nevada. He stated the Governor has recommended the commission continue to operate with five commissioners. He stated due to the open meeting law, it is very difficult to operate with only three commissioners because if two members are in conversation, they are in violation of the law. Senator Townsend commented that on April 25 and 26, there will be discussions held on "retail wheeling." Senator Townsend opened the hearing on S.B. 344. SENATE BILL 344: Revises provisions relating to licensing of chiropractors and chiropractors' assistants. Paula Berkley, Lobbyist, Nevada State Board of Chiropractic Examiners, introduced the bill. Bill Bailey, D.C., Secretary, Nevada State Board of Chiropractic Examiners, discussed the changes addressed in the bill. (Exhibit F) Senator Lowden asked how they decided on 5 years as a requirement for residence reporting. Mr. Bailey commented the information comes from bill drafting. Senator Lowden pointed out that knowing someone for 3 years is not a very long period of time. Mr. Bailey explained the requests for change were to make the paperwork a little easier to fill out. Senator Lowden commented she did not feel the requirements were strong enough. Senator Augustine asked why the language is needed on lines 19- 21 of page 1. Ronda Moore, Deputy Attorney General, Nevada State Board of Chiropractic Examiners, explained it is illegal to restrict a license only to citizens. She commented some of the licensing regulations are unconstitutional and have not been enforced. Mr. Bailey stated the bill addresses country of origin. The applicant must have graduated from a nationally approved chiropractic college. He explained those colleges are only within the United States. Senator Regan commented line 22 and 23 voids the state residency requirement. He stated citizenship is irrelevant to licensing for any of the boards. Senator Townsend pointed out the need to keep all the boards consistent. He emphasized he does not want to place anything into the regulations of any board which is not in the regulations of any other board. Senator Neal asked if there is a problem with renewals. Mr. Bailey stated there are no problems with renewals. He indicated there is a substantial fine for late renewal. Senator Townsend indicated there will be a vote on the bill when the question of the background checks and residency requirements are clarified. He closed the hearing on S.B. 344. Exhibit G was presented by Dale A. R. Erquiaga, Chief Deputy Secretary of State, who spoke on Assembly Bill (A.B.) 191. ASSEMBLY BILL 191: Makes various changes to provisions governing protection of trade-marks, trade names and service marks. Senator Townsend asked what the procedure is, if a situation arises where the statute is in the way of a general interest issue. He asked if they try to accommodate the person or do they try to change the law. Mr. Erquiaga stated they try to accommodate the customer. He explained the state has some antiquated laws and an antiquated computer system. Senator Regan asked what is the lifetime of a trademark. Mr. Erquiaga stated it is 5 years. Senator Regan asked if there is a problem with people trying to register a trademark based on anticipation of the market. Mr. Erquiaga stated a person can continue the trademark by renewal to protect it. He said if the trademark registration is allowed to lapse, someone else may pick up the trademark. SENATOR NEAL MOVED TO DO PASS ASSEMBLY BILL 191. SENATOR LOWDEN SECONDED THE MOTION. THE MOTION PASSED UNANIMOUSLY. ***** Senator Bill R. O'Donnell, Clark County Senatorial District No. 5, spoke on behalf of S.B. 353. SENATE BILL 353: Authorizes injunctive relief against certain advertising. Senator O'Donnell explained the bill will keep businesses which are unlicensed and unregulated from advertising in the yellow pages. He explained the bill is broader than just the yellow pages. If a person has a licensed company and files a complaint against an unlicensed company with their board, the board can ask for an injunction to disconnect that telephone number from that business. He commented if they get a license then they can have their telephone number back. He stated the telephone company will not be required to police the businesses. That is the job of the boards. Senator Lowden asked since a person can obtain a court order now, why does the state need the law. Senator O'Donnell explained that, currently, the person needs to prove damages to obtain the injunction. Senator O'Connell asked for an explanation of page 2, line 5. Senator O'Donnell stated a letter would be sent. Senator Regan asked what action should the public utilities take. Senator O'Donnell stated utilities should not act as a policeman. The court order would ask the public utility to turn off the telephone. Senator Neal asked if a person has a sign or places an ad saying a person is a contractor, which that person is not, the number is not the advertisement, the ad is the advertisement. He commented a person could put an address in the ad. Senator O'Donnell stated the bill does not have anything to do with the address listed. He commented that since the ad is in a telephone book, one might assume the person is going to place a telephone call to the person listed in the ad, and not drive to the location in the ad. He stressed the restriction of the telephone number is a tool to make it harder for a client to contact a person who is not licensed. William Zideck, Executive Director, Nevada State Board of Accountancy, expressed the board's support of the bill. He read Nevada Revised Statutes (NRS) 628.570. He requested the language in lines 10-13 of page 1, of the bill to change the word "shall" to "may" allowing the regulation to be permissive rather than mandatory. Senator Townsend reminded him that the language is current law. Mr. Zideck recommended an amendment. He asked for there to be a provision for funding of attorney fees and reimbursement of costs to the board. He explained a mandatory requirement will be expensive for the board to fund. Senator O'Connell asked if the board had discussed their concerns with Senator O'Donnell. Mr. Zideck explained a letter had been sent the day before. Senator Neal asked if Mr. Zideck has had any problems in this area. Mr. Zideck explained the accountants have had difficulties with unlicensed people passing themselves off as accountants. Senator Neal asked how the utilities play a part in the problem. Mr. Zideck explained if a person wants an ad to be stopped because an unlicensed person is advertising as an accountant, the utility company can only stop the ad if the court so orders. Senator Townsend stated: That shifting the burden to someone else to do that [go after the unlicensed person] ...perhaps [in] an effective way, belies the responsibility that we have placed in you, as a board. So perhaps the debate should be, what authority do we give boards to go after unlicensed people and how much more of a hammer do we provide you, than to bring a third party into this...and I think Senator Neal's logical step of going to the address would lead one to the following issue;...on the side of a pickup truck is a contractor's telephone number. You go to court, get an order to have his phone disconnected, if she [the customer] gets that court order...can we take that court order to the next step. Can she, now, present that court order at all the local gas stations so that when that person drives through, they can refuse service... that is carrying this to its logical conclusion. Do you burden a third party for your problem, and the public's problem is a legitimate public policy question. If you do not have the tools to go after those unlicensed people, then we need to have that serious debate. This committee has been the strongest [against] unlicensed people in the state. Do you not feel it is a board responsibility [to end] unlicensed activity as opposed to shifting the burden to a third party. Mr. Zideck stated they looked at the bill as controlling directory advertising. He stated they cannot interest district attorneys in prosecuting misdemeanor cases. He stated they have interest in changing the charge of advertising a service without a license to a gross misdemeanor charge. He explained he has no tool with which to stop a person who is unlicensed other than stopping that person from advertising. Senator Townsend asked if companies supplying cellular service are a public utility. He explained most people do business with cellular telephones and if the cellular companies are not included as public utilities, the regulation will not stop use of a telephone for business purposes. He commented there is a cost to disconnecting a telephone number. He asked who will pay that cost. Mr. Zideck commented the Nevada State Board of Accountancy pays $1680 per year for a 2"X 1 1/2" ad in the yellow pages which says, "Notice to the Public...all persons advertising in this directory may or may not be licensed by your [Nevada] State Board of Accountancy and it is required that they be so licensed. If in doubt please contact your [Nevada] State Board of Accountancy." Margi Grein, Director of Finance, Nevada State Contractors Board, spoke in favor of the bill. She indicated the board does not expect any public utility to act as a policing agent for the board. She stated it is unlawful to advertise without a license. She emphasized the bill will give the board a stronger enforcement tool. John Sapp, Nevada State Contractors Board, stated most complaints come to their office as a result of advertising. He stated the public assumes the person is licensed if that person advertises. He pointed out that even though they investigate someone, prosecute them, they find the ads still run in the telephone directories. Ms. Grein commented changing "shall" to "may" will be beneficial because mandatory action is not necessary in every situation. Robert Barengo, Lobbyist, Collateral Loan Association, spoke in favor of the bill. He shared his experiences with the pawn shop owners and the directory owners in Las Vegas. He stated there is difficulty with the directory owners understanding the problems faced by the licensed pawn shop owners. Senator Neal asked if an ad which is published is evidence of illegal advertising or is it the source of illegal advertising. Mr. Barengo stated he believes it is evidence of illegal advertising. He stated either a person has a license or they do not have a license. Brian Herr, Lobbyist, Nevada Bell, stated they would follow the dictates of the committee, but commented the bill, as currently written, puts Nevada Bell in the position of complying with a court order. He said they will do that, but it is his concern that the wording on line 20 of page 1 and on line 3 of page 2 differs. He commented the local telephone company is not the only source of service. Scott Craigie, Lobbyist, Sprint/Central Telephone-Nevada, expressed cooperation if the bill becomes a law. He commented he wished to stay neutral as to the issue as to whether the bill is the best way to accomplish the goal of removing unlicensed people from the marketplace. He commented the bill will not be effective if it is limited to just the public utilities. Senator Townsend commented a sales representative could ask for proof of license when they write a contract for an ad. He explained the issue is complex and needs to be explored. He stated people should be aware of those persons with whom they are doing business. Senator Regan commented legislation is needed to control the unlicensed selling of merchandise on street corners. Senator Townsend expressed his outrage that people invest in their businesses only to have someone on a street corner sell the same merchandise without any commitment to the customer, any license or any investment. Senator Augustine stated all parties are in agreement with the amendments to Senate Bill 72. SENATE BILL 72: Requires regulation of practitioners of respiratory care by board of medical examiners. Christopher Logan, Nevada Society of Respiratory Care, stated his support of the amendments. SENATOR AUGUSTINE MOVED TO AMEND AND DO PASS S.B. 72. SENATOR LOWDEN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** There being no further business the hearing was adjourned at 10:55 a.m. RESPECTFULLY SUBMITTED: Molly Dondero, Committee Secretary APPROVED BY: Senator Randolph J. Townsend, Chairman DATE: Senate Committee on Commerce and Labor April 13, 1995 Page