MINUTES OF THE SENATE COMMITTEE ON HUMAN RESOURCES AND FACILITIES Sixty-eighth Session March 29, 1995 The Senate Committee on Human Resources and Facilities was called to order by Chairman Raymond D. Rawson, at 2:35 p.m., on Wednesday, March 29, 1995, in Room 226 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Raymond D. Rawson, Chairman Senator Sue Lowden, Vice Chairman Senator Maurice Washington Senator Kathy M. Augustine Senator Joseph M. Neal, Jr. Senator Bob Coffin Senator Bernice Mathews STAFF MEMBERS PRESENT: Kerry Carroll Davis, Senior Research Analyst, Legislative Counsel Bureau Linda Chapman, Committee Secretary Mary Gavin, Committee Secretary OTHERS PRESENT: Nancy Saitta, Senior Deputy Attorney General, Office of the Attorney General Eric Cooper, Lobbyist, Nevada Sheriffs and Chiefs Association Kay Bennett, Board of Trustees, Carson-Tahoe Hospital Frank W. Daykin, Attorney at Law Steve Smith, Administrator, Carson-Tahoe Hospital Andrea Engleman, Taxpayer, Lobbyist, Nevada Press Association, Inc. Carlos Brandenburg, Ph.D., Mental Hygiene and Mental Retardation Division Cynthia A. Pyzel, Senior Deputy Attorney General, Department of Human Resources, Office of the Attorney General Chairman Rawson said there are two bill draft requests (BDRs) for committee consideration. BILL DRAFT REQUEST R-1240: Authorizes payment for certain services provided to Medicaid recipient in his home to be made directly to recipient. SENATOR NEAL MOVED FOR COMMITTEE INTRODUCTION OF BILL DRAFT REQUEST (BDR) R-1240. SENATOR MATHEWS SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS COFFIN, WASHINGTON AND LOWDEN WERE ABSENT FOR THE VOTE.) * * * * * BILL DRAFT REQUEST 34-1237: Requires welfare administrator to develop process for presumptive eligibility for pregnant women with Medicaid. SENATOR NEAL MOVED FOR COMMITTEE INTRODUCTION OF BILL DRAFT REQUEST (BDR) 34-1237. SENATOR AUGUSTINE SECONDED THE MOTION. THE MOTION CARRIED. (SENATORS COFFIN, WASHINGTON AND LOWDEN WERE ABSENT FOR THE VOTE.) * * * * * Chairman Rawson opened the hearing on Senate Bill (S.B.) 270. SENATE BILL 270: Revises the provisions governing duties of law enforcement agencies receiving reports of missing children. (BDR 38-636) Nancy Saitta, Senior Deputy Attorney General, Office of the Attorney General, explained she is also the State of Nevada Children's Advocate, a position created by the 1993 Legislature, which allows her to act on behalf of the best interests of the children of the State of Nevada and to act to protect children who are missing or exploited. She said she is also the director of the Nevada Missing Children Clearinghouse. She explained Nevada Revised Statutes (NRS) 432.205 requires law enforcement agencies to transmit reports of missing children to the clearinghouse and asked that NRS 432.200 be conformed to read the same way. She said they propose a change (at line 8, subsection a) from "division" to "clearinghouse." Chairman Rawson asked Ms. Saitta if she was saying: instead of "to the division" it would be "to the clearinghouse." Ms. Saitta replied, "Yes, it is that simple." She explained the clearinghouse is the state entity which the Legislature has mandated as being the agency which will collect data and establish a database to track trends regarding missing and abducted children. She stated, without the information from every corner of the state, they are somewhat limited in their ability to accomplish that. She said, once the clearinghouse receives those statistics and creates the appropriate databases, they will be eligible for federal grants and be able to provide the Legislature information about areas of concern with regard to children in Nevada. Chairman Rawson asked Ms. Saitta where the clearinghouse is located. Ms. Saitta answered it is located within the Office of the Attorney General in Las Vegas. Chairman Rawson asked her if a telephone number is published for the clearinghouse. Ms. Saitta answered in the affirmative. She pointed out part of her job as the advocate and the director is to educate the public, law enforcement agencies, and school districts about the existence of the clearinghouse, and the services it provides. Chairman Rawson asked Ms. Saitta if the division approves of this bill. Ms. Saitta said the division has no objection to the transfer of information. Vice Chairman Lowden asked Ms. Saitta where the "36 hours" came from on line 9, and further asked why not sooner than 36 hours . Ms. Saitta said Vice Chairman Lowden's question could be answered by referring to NRS 432.205 which requires that law enforcement agencies initially transmit to the clearinghouse all information that they have about the missing child. She explained what NRS 432.205 does is "wrap it up." She said it allows the law enforcement agencies 36 hours, within which time they will presumably be conducting an investigation, and if the law enforcement agency has gathered additional information they want to be sure that the additional information is also forwarded to the clearinghouse. Senator Neal asked how this would add to the search for missing children. Ms. Saitta said, in every case where there is a report of a missing child, there are a number of factors at which the clearinghouse and law enforcement agencies look. She said the number one factor is: who is the likely abductor. She commented, in the majority of cases, the abductors are family members. She explained, if the information is provided to the clearinghouse, the clearinghouse can assist law enforcement agencies by doing the mundane part of the investigation. She maintained they flag school and vital statistic records so, that in the event a birth certificate is requested, that information would come directly to the clearinghouse who, in turn, would report that information to the involved law enforcement agencies. Senator Neal asked what connection this bill would have with Title 37. Ms. Saitta stated, in compliance with the National Child Search Assistance Act, the clearinghouse is required to participate in the investigation and collection of data. She said the data collection is the key which enables them to make statistical analyses, determine trends, and ensure that all information relevant to the search for a missing child is contained within one agency. Senator Neal asked Ms. Saitta to whom the information would be available. Ms. Saitta replied it would be available to the involved law enforcement agencies, both state and federal, and a court in the event that the matter is actually taken to court for purposes of ex parte or custody orders. Senator Neal told Ms. Saitta the state of Nevada already has a division, and this bill would change that to a clearinghouse. He asked her if this was just a matter of terminology, or if the division does not work. Ms. Saitta explained the "division," in this statutory section, refers to the Nevada Division of Investigation (NDI). She explained the clearinghouse works very closely with the NDI. She said, unfortunately, NDI has a whole slew of other matters that they deal with; and, while this does not in any way minimize their involvement or their ability to assist the attorney general's office in the search for, or recovery of, a missing child, the clearinghouse will gather the data so that they can assist both the NDI and other law enforcement agencies that may be involved. Senator Neal asked Ms. Saitta if this means that she will need to have additional staff since she is moving from the division and going to the clearinghouse situated within the attorney general's office. Ms. Saitta replied, as much as she would like to have some help within her unit, she believes it would be facilitated within her office. Senator Augustine asked Ms. Saitta if she works with the Missing Child Project. She added she knows that they maintain a database. Ms. Saitta said the clearinghouse would work with them and they could share data to assist one another. Senator Augustine said the Missing Child Project receives data from all over the country, and puts it into a computer system. She mentioned all of the people working on that project are handicapped and said she believes their efforts are underutilized. Ms. Saitta said she would be glad to assist the Missing Child Project in any way, and would be open to any assistance they could offer the attorney general's office. She mentioned that the attorney general's office also interacts on a national level. Eric Cooper, Lobbyist, Nevada Sheriffs and Chiefs Association, stated the law enforcement agencies have no objections to the bill. SENATOR AUGUSTINE MOVED TO DO PASS S.B. 270. SENATOR NEAL SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR COFFIN WAS ABSENT FOR THE VOTE.) * * * * * Chairman Rawson opened the hearing on Senate Bill (S.B.) 293. SENATE BILL 293: Authorizes acquisition by county hospital of facilities outside county. (BDR 40-662) Kay Bennett, Board of Trustees, Carson-Tahoe Hospital, introduced Steve Smith, Administrator, Carson-Tahoe Hospital, and Frank Daykin, Attorney at Law, who she explained assisted the hospital in the drafting of the language of S.B. 293. She read from prepared testimony (Exhibit C) asking for committee support of the bill. Chairman Rawson asked if the language in the amendment proposed by Mr. Daykin was wholly necessary or if just "may" would be adequate. Frank W. Daykin, Attorney at Law, said "may" would be sufficient, but they included "but need not" for emphasis. Senator Neal asked Mr. Daykin if he anticipates this issue going to a vote of the people. He said he asks the question because there are about three methods by which the hospital can utilize taxes. He said S.B. 293, beginning at line 5, says, "if no tax is levied in that county or those counties, at the time of acquiring the building or facility in another county, for the maintenance and operation of the county hospital, the board of hospital trustees may use money in the hospital fund, or in any separate account established by the board, for the acquisition of the additional facility. If a tax is so levied, but the use of the proceeds is restricted to a stated purpose, the board may use money in the hospital fund or any other such account, other than the proceeds of the tax, for the acquisition of the additional facility. If a tax is so levied, and the use of the proceeds is not restricted, the board may use for the acquisition of the separate facility that proportion of the money in the hospital fund and any such account which the revenue from sources other than the tax bears to the total revenue." He explained he is trying to understand what these "Daykin-isms" mean so the committee can understand what it is voting on. Mr. Daykin explained that although this is a project originating in Carson City and pertaining to Douglas County, the bill pertains to the whole state. He remarked there is currently no ad valorem tax levied in Carson City, but stated other counties may wish to take advantage of this legislation in the future. He said, for example, if Elko County was to choose Eureka County for a branch facility, and Elko county had a tax levy for the support of the hospital, this language would prevent any of Elko County's taxes being used to construct or acquire that facility in Eureka County. He said, with regard to operating expenses, if Elko had a levy, those taxes could not go to fund the Eureka operation; it would have to be funded out of its own revenues. Senator Neal asked Mr. Daykin, since Carson City does not have any ad valorem tax, who would be responsible for the hospital fund. He further asked if it would be the county in which the new facility is located, or the county which purchased the new facility. Mr. Daykin said the county hospital fund is checked by the Carson City treasurer, but stated there would have to be an accounting from the new facility. Mr. Daykin said the hospital purchasing the new facility would pay for it entirely out of its own revenues. Mr. Smith stated he thinks Senator Neal's question is: which county will have control over the money that is spent for the facility outside that district. He explained all properties that Carson-Tahoe Hospital (CTH) buys, or leases long term, have to go before the Carson City Supervisors for approval. Senator Neal asked if CTH is considered a regional hospital. Ms. Bennett said, "No." Mr. Daykin stated, "It will be if this bill passes." Senator Neal asked if CTH is the only hospital in this area. Ms. Bennett answered in the affirmative. Vice Chairman Lowden asked Ms. Bennett what is the source of CTH's funds. Ms. Bennett replied, "From the revenues generated within the hospital." She said they are very fortunate to have had excellent chief executive officers, now and in the past. She pointed out there was only a very short time (when the hospital was founded 40 years ago) that the people of the city had to contribute a tax to support the hospital. She stated for the last 20 to 25 years, the hospital has been able to operate its business purely on the revenues generated. She pointed out the hospital does have some bonded indebtedness in terms of general obligation bonds, for which the people of Carson City are the ultimate guarantors. She said they have not in the past, and do not now, see any problem with meeting the debt service on those bonds. Vice Chairman Lowden asked, if CTH has been self supporting except for the bonds, and has been able to meet its payroll and pay its debts, why it does not become a private institution. Ms. Bennett replied, "Carson Tahoe Hospital is a subsidiary of Carson City." She said the community has a great sense of ownership of the hospital, and although that issue has been raised, CTH has been given some very clear indications that the people of the community want CTH to remain a public hospital. She said in order to become a private hospital, the matter would have to go to a vote of the people. Vice Chairman Lowden asked Ms. Bennett if the issue of expansion into Douglas County would go to a vote of the people. Chairman Rawson clarified that it would be decided through the representative form of government; the board of supervisors would have to approve it. Ms. Bennett concurred with Chairman Rawson. She added the expansion could only be financed through revenue bonds; it could not be financed with general obligation bonds. Senator Neal said what they are actually saying is, "If they go and purchase or lease a building in another county, and if that county has a tax base which allows for money to go into the hospital, then that money would be used. If it does not, then the money out of the general fund in Carson City would be used to build and maintain that facility, and they would operate it just like a private operation. They've got all of these other arrangements like taxes and so forth and if they don't have a tax, there are certain other things that would occur." Chairman Rawson stated the important thing is that the Legislature is not opening up a general taxing district through this bill. Vice Chairman Lowden asked Ms. Bennett if there are any tax advantages to a quasi-public entity (such as CTH) opening another facility, as opposed to a private hospital doing the same thing in Douglas County. Chairman Rawson further asked Ms. Bennett if the CTH pays sales tax. Mr. Smith stated CTH pays the same taxes as any other hospital in the state. He clarified that for-profit hospitals pay income tax that CTH is not subject to, but explained that CTH pays property tax, sales tax, and any other applicable taxes that other hospitals do. Vice Chairman Lowden commented she is wondering how CTH will finance the new facility. Mr. Smith asserted, even though CTH is presently a district hospital, it has been operating in Douglas County for 13 years, and is being invited into other counties. He said when CTH goes into other counties to lease property from entities who are for- profit the hospital is subject to real estate and other taxes from which Washoe Medical Center and Saint Mary's Hospital are exempt. He said CTH is thereby being penalized. He stated less than half of the patients at CTH are residents of Carson City. He said if CTH did not draw patients from the surrounding communities, it would have severe problems. He said the dilemma that CTH faces is having other facilities take paying patients and leaving CTH with the people who need care but cannot pay for it. Chairman Rawson asked if CTH is trying to follow their patients, essentially, and bring facilities closer to them so that CTH can maintain them. He also asked if CTH is not trying to "leapfrog" into another hospital's area. Mr. Smith replied, "Exactly." Andrea Engleman, Taxpayer, explained she was speaking as a resident of Carson City who has questions about S.B. 293. She stated Senator Neal zeroed right in on her concerns as a taxpayer and citizen. She maintained that, as a public hospital, the CTH board falls under Nevada's open meeting law. She said CTH has had some problems with adhering to the open meeting law. She stated, at one point last year, one of the members of the board said that there was a shortfall in the hospital and they were going to have to do something with taxes. She maintained Dr. Gray said the hospital needs to be private so it does not have to comply with the open meeting law. She declared there has been a lot of public concern about that. She said her concern is if that if CTH uses the money from the general fund of the hospital to support a hospital in another county, and there is a subsequent shortfall at CTH, how will CTH raise those funds. She asked the committee if the taxpayers of Carson City would be responsible for making up that shortfall. Chairman Rawson told Ms. Engleman the survival of CTH may depend upon being able to capture those patients. Ms. Engleman stated that issue has not been adequately addressed by CTH to the public. Mr. Daykin pointed out on page 2, section 5, at lines 31-35, existing law says that "annually upon the request of the board of hospital trustees, the board of county commissioners may levy a tax for the maintenance and operation of the county public hospital." He explained that is what would normally happen if the hospital ran out of money. He said they have stipulated to the language: "excluding the establishment, maintenance or operation of any facility located outside the county." He said, therefore, any loss (if there were a loss) from the Douglas County operation it could not fall back on the taxpayers of Carson City. He said, likewise, in section 7, there can be "upon the approval of the majority of the voters, an additional ad valorem tax," but stated that, too, is only to cover the cost of "services rendered in the county" (line 32, page 3). He said, what this amounts to, is the board reasonably anticipates that the operation in Douglas County will be self-supporting. He said if it was not, nothing in this bill would prevent Douglas County from coming to the rescue, but Carson City or its taxpayers could not be required to do so. Chairman Rawson asked Mr. Daykin if he has any question about whether or not CTH's board of trustees is under obligation of the open meeting law. Mr. Daykin answered, "No, the board of trustees of the county hospital is subject to the open meeting law." Chairman Rawson asked Mr. Daykin if he and the committee could establish the legislative intent that the committee would expect CTH to work under the open meeting law. Mr. Daykin said it is presently so required by law because the hospital is a public body. He explained the establishment of a facility in Douglas County does not change how the hospital board of trustees would operate. Vice Chairman Lowden asked Mr. Daykin where CTH would expect to acquire financing for the new facility. Mr. Daykin said the new facility can be financed from the current operating revenues of the hospital, or the hospital could issue revenue only bonds (which are not backed by the faith and credit of the county or its taxing power) but only by the revenues of the enterprise. He explained that is one of the reasons they worked closely with bond counsel to make sure there are a few more words in this law. Mr. Smith stated, in addition to revenue bonds, CTH does have private parties who are willing to finance this venture and have CTH enter into a lease-purchase agreement with them based on their past performance. He said CTH does have audited annual statements by a Certified Public Accountant (CPA) firm that is their assurance that the funds are kept separate. Vice Chairman Lowden expressed her delight that CTH is doing so well. She asked Mr. Smith what CTH's revenue is on an annual basis. Mr. Smith stated last year it was about $55 to 58 million. Vice Chairman Lowden asked Mr. Smith what CTH is doing with the money. Mr. Smith replied last year was a very good year, and CTH put $4.5 million on the bottom line. He said 71 percent of patients from Douglas County are admitted to CTH. He explained if CTH loses that patient base, it may have to go to the taxpayers of Carson City for support of the hospital. Senator Washington asked Mr. Smith which counties CTH is looking to for expansion. Mr. Smith said CTH has been in Douglas County for approximately 14 years, and is looking to do something there. He said CTH has been invited into Dayton in Lyon County, and are working with the hospital in Yerington and the Lyon County Commissioners. Senator Neal asked Mr. Smith if he was saying that those counties do not presently have hospital facilities. Mr. Smith replied that Lyon County has a hospital in Yerington, but said they do not serve the Dayton population, since Dayton is closer to Carson City or Reno than Yerington. He said the hospital in Lyon County is working with CTH on a plan to have CTH expand to Dayton. Senator Coffin asked Mr. Smith if CTH is participating with the preferred provider groups, or giving the state per diem contracts. Mr. Smith asked Senator Coffin if he was talking about managed care programs. Senator Coffin answered in the affirmative. Mr. Smith said CTH has just renegotiated the contract for state employees. He stated CTH is the largest supplier of health care for state employees in this area. Senator Coffin asked Mr. Smith, "What about the prisoners?" Mr. Smith replied CTH does provide a lot of health care for prisoners. SENATOR NEAL MOVED TO AMEND AND DO PASS S.B. 293. SENATOR AUGUSTINE SECONDED THE MOTION. THE MOTION CARRIED. (VICE CHAIRMAN LOWDEN ABSTAINED FROM THE VOTE.) * * * * * Chairman Rawson opened the hearing on Senate Bill (S.B.) 283. SENATE BILL 283: Revises provisions governing confidentiality of certain records of commission on mental health and mental retardation. (BDR 39-856) Carlos Brandenburg, Ph.D., Mental Hygiene and Mental Retardation Division, and Cynthia Pyzel, Senior Deputy Attorney General, Department of Human Resources, Office of the Attorney General, read from prepared written testimony (Exhibit D) to express the division of Mental Hygiene and Mental Retardation's and the Governor's Commission on Mental Health and Mental Retardation's support for S.B. 283. Chairman Rawson asked Ms. Pyzel how the state can address the public concern that private or public facilities are jeopardizing the rights of people if the denial of rights record is not open to public scrutiny. Ms. Pyzel said the denial of rights process is sort of a separate mechanism. She said there are other mechanisms which are available to the public; in particular, the office of protection and advocacy, which is empowered to go into public and private facilities in the event that abuse or neglect is suspected. She added the guardians of the clients, and the clients themselves also have a right to counsel. Chairman Rawson stated the committee has had people come before it in the past telling of being restrained and held in a facility against their will, with no public scrutiny. He said that is a concern of the committee. He asked Ms. Pyzel if she believes there is adequate protection for those clients. Ms. Pyzel said she believes there is. She said she believes the Legislature addressed that concern in the last session with the substantial revisions it made to the admissions process and requirements for notification of patients on admission (whether voluntary or involuntary) that they have the right to certain processes in order to have themselves discharged. She explained that the client's rights are spelled out for them upon admission and if they feel that their rights are being abridged they are given the number to call... Chairman Rawson interjected, "They are given the right to counsel." Ms. Pyzel replied, "Absolutely, and that is part of the notice. They are given notice of the legal aid societies and the county bar association." Chairman Rawson asked Ms. Pyzel if the clients are allowed to make a phone call. Ms. Pyzel stated, "Yes, that is a part of the client's rights. They are allowed phone calls, they are allowed to send and receive mail, receive visitors, [and] wear their own clothes." She said, periodically, some of those rights are necessarily abridged for therapeutic reasons. She stated that is the reason for the commission oversight: to make sure that those rights are not being abridged improperly. She said if a client is admitted to a facility and is having severe mental health problems which are aggravated by visiting family members, the physician may deny visitation, but the denial must be time-based, have a clinical reason for it, and must be subject to review. She said the commission then reviews the records to insure that certain types of denials are not problematic at certain facilities. Senator Coffin stated the last sentence of the bill has a very broad application regarding exemption from the open meeting law. He asked how Ms. Pyzel proposes to have the commission separate the issues which do and do not fall under the open meeting law. He further asked Ms. Pyzel what the public safeguard would be to insure the commission does not violate the open meeting law. Ms. Pyzel said a portion of that safeguard is that members from the attorney general's office sit in on the commission meetings, as advisors, primarily on open meeting law issues. She said they advise the commission when it is appropriate to go into executive session and when it is not. She maintained the attorney general's staff members take their duties and responsibilities very seriously, and have advised the commission to go back into public session when it becomes clear to them that the topic at hand is not properly the province of an executive session. She added that the bill draft request was written slightly different and the present language was generated by the Legislative Counsel Bureau. She said they would be happy to work with the committee to make sure that the committee's concerns are addressed. Senator Coffin stated the rights of the patients are very important. He asked Ms. Pyzel how a family member would know that a right had been denied. Ms. Pyzel stated (citing her previous example) if a husband is denied the right to visit his wife because it causes her to be extremely anxious or agitated, he would be told, "I'm sorry, sir, you cannot visit under doctor's orders." That would be his initial notice. Senator Coffin said it sounds to him like the husband would not have access to his wife's records. Ms. Pyzel concurred, saying he would not have access to her records because client clinical records are confidential according to NRS 433A.360. Senator Coffin asked for confirmation that the spouse has no access to his wife's medical records. Ms. Pyzel reiterated that the client's chart is confidential. She explained that the client can allow the spouse access to those records if she so desires; the patient's attorney can allow the spouse access to those records. Dr. Brandenburg said, more importantly, the patient would know because, upon admission to any facility, the client is given a list of those rights enumerated in NRS 433. He insisted if those rights are abridged by a staff member the client himself would know. Senator Coffin stated the client does not always have an informed consent. Dr. Brandenburg said he understands that, and explained that is why the staff members take it upon themselves to report those denials. He said the commission feels they can better deal with the review of the denial of rights in executive session. He stated the commissions were handling the denial of rights issues in executive sessions until they were advised that they may be violating the open meeting law. He explained when the commission deals with the issues of restraint, seclusion or forced medication, it might be brought up in such a way that it could be inflammatory not only to the client, but also to the staff, boards and facilities. Ms. Pyzel said the confidentiality of client's clinical records is clearly spelled out in the law, but the denial of rights form is separate and not part of the client's chart, per se. She said the denial of rights is required to be reported to the commission, but the law governing the denial of rights from is not presently clear. She stated that is what they are seeking to clarify for the purposes of oversight review. She contends it should be given the same confidentiality as all client's records. Senator Coffin asked Ms. Pyzel if the commission is accustomed to having its meetings taped. Ms. Pyzel answered in the affirmative. She stated the meetings are public and the minutes are published. She added members of advocacy groups and members of family groups that are not affiliated with advocacy groups attend. Senator Neal asked Ms. Pyzel how many commissioners they have. Ms. Pyzel answered, "Seven." Senator Neal asserted Ms. Pyzel was speaking to the present state of the law. He asked Ms. Pyzel, if the committee should pass this bill, would many of the things that are presently considered by the commission, not be considered by them in the future; for instance, would reports regarding the denial of rights be considered as confidential. Ms. Pyzel explained the law presently requires the commission to perform certain functions and it also allows them to perform others, all with the belief that mental health and mental retardation services will be better provided to the clients. Senator Neal asked Ms. Pyzel if any reports, as the law now exists, are considered to be reports that address the denial of rights of clients; and, if so, are they confidential. Ms. Pyzel said they are treated as confidential, but legally... Senator Neal interrupted, again asking if they are considered confidential in terms of statutes. Ms. Pyzel stated it is not clear. Senator Neal asked Ms. Pyzel, "What do you mean, it is not clear?" Ms. Pyzel explained the lack of clarity is the reason they are trying to get this bill passed; so the law will require that they be confidential. She said there is an argument that, because the denial of rights form is not part of the client's chart, it should be considered public. She reiterated if this bill passes, it will be clearly spelled out. Senator Neal asked Ms. Pyzel about the language presently in NRS 433.534.1 which states, "Any denial of those rights in any facility must be entered in the client's record." He further asked Ms. Pyzel if that record is confidential. Ms. Pyzel reiterated the client's record is confidential, and said any report of denial of rights entered into the client's record would be confidential, but explained the law also requires that the denial of rights form go to the commission. She stressed that is the issue that concerns them. Senator Neal said, "So, when it goes to the commission, you are saying that that record is exposed at that particular point." Ms. Pyzel replied, "Yes, we are concerned that it would be." Senator Neal asked what it is about the client's rights denial that they would like to keep confidential. Ms. Pyzel responded, "The whole circumstance of it." She said the commission's job is to provide oversight in the facilities to ensure that procedures are not abusive. Senator Neal asked Ms. Pyzel why that information would need to be confidential. Ms. Pyzel replied, "Because people are not going to report it unless you provide for that confidentiality. We operate in a society which is litigation terrified and they do not like the idea of reporting anything that could be construed to be bad." She said the denials of rights are treatment issues more than anything else. Senator Neal asked Ms. Pyzel if she was saying that the problem is that the staff who work with clients are not reporting the denials of rights because their reports are not confidential. Dr. Brandenburg stated, if the situation occurs at an in-patient unit, it is a confidential part of medical records. He explained the commissioners are the overseers who review that, but asserted once the report goes to the commissioners it is open to public scrutiny. Senator Neal asked Dr. Brandenburg if it was confidential for him to be in a [mental health institution.] Dr. Brandenburg answered, "Yes, sir. If you were at Lake's Crossing [Center for the Mentally Disordered Offender] and your wife called me and asked me if Senator Neal was at Lake's Crossing, I could not tell her. That is confidential." Senator Neal said, "So, to get at any mistreatment, then, in that situation, you like for the reports to be confidential?" Dr. Brandenburg stated the commissioners feel that they can provide a better oversight by reviewing the denials in executive session. He explained, if they examine the reports of denial of rights in a public setting, they might not be quite as willing to criticize or make recommendations regarding treatment methods which may subsequently be exaggerated or misinterpreted. Senator Neal asked Dr. Brandenburg if that had ever happened. Ms. Pyzel responded by saying, after it was made clear in the last legislative session, that private facilities were included in this denial of rights' review process, the attorney general's office has had some concerns. She said she and Commissioner Kathy Apple met with the private psychiatric facilities (because they were the ones most greatly affected) to explain how the process is handled in the public hospitals. She said they explained what the commission can do for them and their clients. She said they explained the forms, which provide for routing, begin with the line staff involved who describes the incident, the client's psychiatric or mental retardation problem, and the specific behavior of the client relating to the denial of rights. Senator Neal asked how this would expose any collusive violation of patients' rights. Ms. Pyzel replied the reports are submitted by the facilities to the division which logs and tracks them to ensure that they are properly circulated to the commissioners and returned for shredding when they are done with them. She said the logging process allows them to track the incidence of certain types of rights' denials by certain facilities. She said that is something the commissioners pick up on quite readily. Senator Neal asked Ms. Pyzel if that is done periodically. Ms. Pyzel answered in the affirmative. Senator Coffin stated he thinks he could be comfortable supporting this bill if he could be assured that they could build a "firewall" between the normal activities of the commission and this particular narrow activity. He pointed out the commission is a political body, appointed by the Governor, gets involved in legislation, and does not involve employee bargaining, but said there are still items of controversy. Dr. Brandenburg said they are specifically asking for the commission to look at the denials of rights issues; the organizational, structural, and legislative issues are all looked at during public hearings. Chairman Rawson stated he has a concern about the patient who may be dangerous, may have purchased a firearm, and may be planning an attack or a retribution. He asked Dr. Brandenburg if the language in this bill provides the means for medical facilities to inform the crime information center about this type of patient. He asked Dr. Brandenburg, if this bill does not make that provision, if he would have any objections to the committee writing that in as an exception. Ms. Pyzel replied by saying that Nevada does not currently have a Tarasoff law, per se, but the division follows Tarasoff, the duty to warn known victims, if they can ascertain their identity. She said the attorney general's office does that as a matter of common law. She said they also have a division policy that, upon admission, clients are checked for firearms. Chairman Rawson stated his concern is that, although the Legislature has tried to limit the purchase of firearms by people who have drug problems, or mental instability problems, if an acute paranoid schizophrenic who has purchased a weapon, or has access to a weapon when he is released from a facility, may intend to carry out a vendetta and should not be properly licensed to possess a firearm. He said he would like to have that information made available to the crime information center. Ms. Pyzel stated that has been a federal law for quite awhile. She explained when a person is involuntarily, civilly committed, there is a record of the fact that a petition has been brought, and the action of commitment. She said that criterion now exists in the law. Chairman Rawson stated, in a specific case with those circumstances, he called the highway patrol to find out why there was not a report of a person who bought a semi-automatic assault rifle, and he was told they do not have access to that information because it is confidential. He stated there is a breakdown somewhere in this process. Dr. Brandenburg stated he has had an experience (in a case that he and Chairman Rawson have been working on) where a man, who has quite an extensive history of mental illness as well as a substance abuse problem, has been threatening to do his mother bodily harm. He insisted the mother and the family are extremely afraid that he is going to kill her. Dr. Brandenburg said the man has been involuntarily committed to the institute, but unless he verbalizes those threats to her at the institute, there is no way that they can inform her that he is being released unless the client gives them permission to do so. Chairman Rawson remarked there is a public purpose for not allowing him access to firearms. Ms. Pyzel explained the court records in an involuntary civil committment procedure (which is the procedure by which people are held against their will) are public records to which the court has access. Chairman Rawson stated that is what will eventually be reported, but said the first time the client admitted himself; he recognized he was dangerous to other people; he was not involuntarily committed. Ms. Pyzel said that is the problem area that the attorney general's office is addressing here. Chairman Rawson said those client records are held confidential. He stated it is those records which he would like to make available to the highway patrol so that when a clerk who sells firearms calls to see if there have been any arrest warrants issued, or if any problems exist in selling him a firearm, there will be notification not to sell that person a firearm. Dr. Brandenburg said the opposite is also true, because doctors complain that they do not have access to law enforcement information. He said he has seen cases where a person is admitted to the Nevada Mental Health Institute or Southern Nevada Adult Inpatient Unit where that person has been acting out with a weapon or charged with carrying a weapon; and, because the institute is considered a civil body and not a law enforcement agency, the law enforcement agency does not have the ability to deal with that information. He said a public institution is very often "flying blind," not knowing that this person is dangerous because law enforcement cannot share that information with the public institutions. Chairman Rawson stated the Legislature needs to correct that situation. He asked Dr. Brandenburg if he has any objection to having this bill amended to deal with that issue. Dr. Brandenburg said he would prefer it be dealt with it in a separate bill. Chairman Rawson asked Dr. Brandenburg if he would support the other bill. Ms. Pyzel remarked she thinks it would raise everybody's level of comfort when dealing with a very problematic issue. Senator Augustine said she believes the issue is even more encompassing than what Chairman Rawson expressed, because she believes there was a precedent setting case where a man was released from a mental health care facility (who had purchased a knife while on work release), his estranged wife was not notified, and he murdered her in front of the children. She said at some point they did try to notify her, but, obviously she did not get the message. She said it seems to her like the law must be broader. Chairman Rawson said he thinks an argument can be made that everyone's firearms do not have to be taken away if there is a conscientious effort to notify those people who are known to be in danger. He said that argument falls apart if there is no mechanism to see that dangerous people are denied access to guns. Ms. Pyzel said she thinks Dr. Brandenburg's suggestion that this issue be addressed in a separate bill is a very good one because she would hate to see this bill get bogged down in a firearms issue. Andrea Engleman, Lobbyist, Nevada Press Association, Inc., said she does not necessarily oppose this bill, but feels it is symptomatic of what has been going on over that last 10 years in Nevada government. She said the government is starting to regulate private sector entities, and as they start collecting information from the private sector, the private sector becomes worried about who is going to see the information and, all of a sudden, there is a need to start closing down that which is ordinarily public information. She expressed her opposition to the language in the last three lines on page 2, which would give a blanket exemption from the open meeting law in any meeting in which the commission decides to discuss a report that is declared confidential pursuant to this bill. She said they could craft a very narrow exemption in the open meeting law that is similar to the exemption for personnel sessions to allow the commission to deal with denial of rights in a closed meeting, but require them to tape that part of the meeting to maintain checks and balances. She said the commission should be required to give notice on the agenda that they are going to have a closed meeting. She mentioned the Legislature has had a problem with confidential records in the past, where certain records have been made so confidential that the Legislature has had difficulty in obtaining them. She asked the committee to consider that when making their decision concerning confidentiality of records. Senator Augustine asked Ms. Engleman what she thinks about Chairman Rawson's suggestion to draft another bill to deal with the exchange of information rather than bogging down this bill. Ms. Engleman said, although it is not her area of expertise, she thinks the bill will have to be amended anyway, as far as the openness provisions are concerned. She stated if it has to have one amendment, she cannot see why a second amendment would take any longer. Chairman Rawson closed the hearing on S.B. 283, and opened the work session. SENATE BILL 88: Requires school districts to establish programs providing bilingual education. (BDR 34-735) Chairman Rawson stated there is a proposed amendment (Exhibit E) to S.B. 88. He explained the committee may want to reconsider this bill to make it permissive rather than mandatory. He said there has been some discussion of replacing "shall" with "may." Senator Augustine said she had a discussion with Carolyn Edwards, Lobbyist, Clark County School District, who requested this bill draft, and expressed that the Clark County School District wants this bill to be permissive, not mandatory, and does not object to the amendment. She said a mandate would require about a $2 million fiscal note which has not been considered. Senator Neal asked Carolyn Edwards what the present state of the law is relative to bilingual education. Kerry Carroll Davis, Senior Research Analyst, Legislative Counsel Bureau, said as far as she knows, this bill is one of the first places where this issue is addressed. Senator Neal asked Ms. Davis if there is not anything in the statutes. Ms. Davis answered she will have to check, but stated part of the reason for bringing the bill forward is to establish or clarify this in law. Senator Neal said he knows Nevada has bilingual education programs in the public schools. He said he is wondering what the purpose of this particular bill is. Chairman Rawson said this bill would create a program equivalent to special education where those students would have to go through all 7 years.... Senator Augustine interrupted, saying that is the reason for her initial disagreement with the bill. She said bilingual education is regulated by the federal government; that is why the state of Nevada has provided it. She said this bill would have more stringent requirements than the federal law by mandating that every school district provide a bilingual program. She surmised not every district in Nevada has a need for a bilingual education program. Chairman Rawson said he was contacted by bilingual teachers who indicated that if S.B. 88 passes with the current language they would be required to maintain an English as a second language (ESL) program as long as they have any students who speak a different language, whether or not they possess skills in English. He said the teachers feel it is advantageous to move those students into English classes as soon as they can function there, rather than to continue as... Senator Neal interrupted by asking if the suggestion is being made to eliminate "shall" from this bill. He asked if this is connected in any way with a group we call English First? Chairman Rawson said he thinks English First would probably oppose the whole thing. Senator Augustine said they can't actually oppose the whole thing because it is a federal law. She said this bill goes beyond what the federal law mandates. Chairman Rawson said the school districts have approached committee members to say that the passage of S.B. 88 will present a problem for them. He further stated if the committee decides to pass the bill "as is" they will have to refer it to the Senate Committee on Finance. Senator Coffin asked Chairman Rawson if he notified Michael de la Torre, Education Consultant, State Department of Education, because he is familiar with the federal law. Chairman Rawson said the State Department of Education wants it mandated in every school district, but stated it is not a requirement. Senator Coffin stated it is not just the larger counties that need it, but said he thinks 25 percent of Lyon County students require bilingual education, but does not think it is necessary for the Legislature to mandate it if (what he heard in one meeting is correct) they just want to have a uniform statewide definition of what this child is. SENATOR AUGUSTINE MOVED TO AMEND S.B. 88 TO SAY 'MAY' INSTEAD OF 'SHALL' ON LINE 3 AS AN ADDITIONAL AMENDMENT TO AMENDMENT NO. 164. VICE CHAIRMAN LOWDEN SECONDED THE MOTION. Senator Neal asked if this means that the school districts can adopt these programs at their discretion. Chairman Rawson answered in the affirmative. Senator Augustine reiterated the districts will still have to comply with federal law, but this legislation is not mandating that every school within the state have it. Chairman Rawson said this bill will have the major effect of calling English as a second language by another name which is English limited learners, or something like that. Senator Coffin stated the committee would not want to weaken the current state law. Chairman Rawson said it is his understanding that it would not weaken the existing law. Senator Coffin asked Chairman Rawson if he would verify that, when he goes through the bill drafting process. Chairman Rawson consented. THE MOTION CARRIED UNANIMOUSLY. * * * * * ASSEMBLY BILL 14: Revises provisions governing financial administration of Comstock historic district. (BDR 33-878) Chairman Rawson stated Assembly Bill (A.B.) 14 was passed out of the Assembly without amendment. He said he wanted to give the committee a chance to see it. He explained that Senator O'Connell pointed out what the Legislature is creating is a separate bank account for the division of historic preservation. He said this amendment (Exhibit F) would allow that account to be within the state treasurer's office. He explained the money would still be under the control of the historic preservation division and allow them all the benefits of it, but probably provide a better return and more interest than setting up a separate bank account. SENATOR NEAL MOVED TO RE-CONSIDER A.B. 14 AND ADD AMENDMENT NO. 165. SENATOR AUGUSTINE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Chairman Rawson adjourned the meeting at 4:10 p.m. RESPECTFULLY SUBMITTED: Linda Chapman, Committee Secretary APPROVED BY: Senator Raymond D. Rawson, Chairman DATE: Senate Committee on Human Resources and Facilities March 29, 1995 Page