MINUTES OF THE meeting

of the

ASSEMBLY Committee on Commerce and Labor

 

Seventy-Second Session

May 16, 2003

 

 

The Committee on Commerce and Laborwas called to order at 1:46 p.m., on Friday, May 16, 2003.  Chairman David Goldwater presided in Room 4100 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

Note:  These minutes are compiled in the modified verbatim style.  Bracketed material indicates language used to clarify and further describe testimony.  Actions of the Committee are presented in the traditional legislative style.

 

COMMITTEE MEMBERS PRESENT:

 

Mr. David Goldwater, Chairman

Ms. Barbara Buckley, Vice Chairman

Mr. Morse Arberry Jr.

Mr. Bob Beers

Mr. David Brown

Mrs. Dawn Gibbons

Ms. Chris Giunchigliani

Mr. Josh Griffin

Mr. Lynn Hettrick

Mr. Ron Knecht

Ms. Sheila Leslie

Mr. David Parks

Mr. Richard Perkins

 

COMMITTEE MEMBERS ABSENT:

 

Mr. John Oceguera (excused)

 

GUEST LEGISLATORS PRESENT:

 

None

 

STAFF MEMBERS PRESENT:

 

Vance Hughey, Committee Policy Analyst

Diane Thornton, Senior Research Analyst

Wil Keane, Committee Counsel

Patricia Blackburn, Committee Secretary

 

OTHERS PRESENT:

 

Mary Walker, Legislative Advocate, Carson City, Douglas County, and Lyon County

Don Soderberg, Chairman, Nevada Public Utilities Commission

Debra Jacobson, Director/Government and State Regulatory Affairs, Southwest Gas Co.

Robert Ostrovsky, Legislative Advocate, Employers Insurance Company of Nevada (EICON) and Nevada Resort Association

Raymond Badger, Legislative Advocate, Nevada Trial Lawyers Association

John Wiles, Legal Counsel, Division of Industrial Relations

Jack Jeffrey, Legislative Advocate, Southern Nevada Builders & Construction Trades Council

Danny Thompson, Executive Secretary/Treasurer, AFL-CIO of Nevada

Fred Hillerby, Legislative Advocate, Nevada Pharmacy Board

Frederick R. Olmstead, Deputy Attorney General, State of Nevada

Renny Ashleman, Legislative Advocate, State Public Works Board

Steve Holloway, Legislative Advocate, Associated General Contractors

Jeanette Belz, Legislative Advocate, Associated General Contractors

 

Chairman Goldwater:

We will bring the Committee on Commerce and Labor to order.  It is 1:46 p.m.  For the record, all members are present, except for Mr. Oceguera who is excused.  He is attending his law school graduation today, and we are all very proud of him.  Thank you to Vance Hughey, Diane Thornton and Wil Keane for putting together a work session document that is at least a quarter-inch thick (Exhibit C).  It is an excellent document; their hard work should be applauded by everyone [applause]. 

 

We will open the hearing of S.B. 422.

 

Senate Bill 422:  Revises certain provisions relating to operation of service stations by refiners. (BDR 52-1071)

 

 

Diane Thornton, Senior Research Analyst:

S.B. 422 eliminates obsolete language and also allows a refiner to operate a service station acquired from a retailer or a contract dealer.  There is no opposition to this bill and no amendments have been proposed.

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 422.

 

ASSEMBLYMAN HETTRICK SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht, Mr. Oceguera, and Mrs. Gibbons were absent for the vote.)

 

Chairman Goldwater:

We will identify that bill as a potential consent calendar item.  For the benefit of the members of the Committee, we will identify bills that can go on the consent calendar.  This will expedite the Floor session by placing those bills on the consent calendar, in order to take one vote rather than several.  We will take a motion, at the end, whether or not we will do the consent calendar.  [The hearing was closed on S.B. 422.]  We will open the hearing on S.B. 7

 

Senate Bill 7 (1st Reprint):  Repeals various obsolete provisions relating to telegraphs. (BDR 58-587)

 

Diane Thornton:

S.B. 7 repeals various obsolete provisions in NRS [Nevada Revised Statutes] regarding telegraphs.  Again, no one testified in opposition to the bill and no amendments have been proposed.

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 7.

 

ASSEMBLYWOMAN GIUNCHIGLIANI SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will identify S.B. 7 as a potential consent calendar item.  We will close the hearing on S.B. 7.  We will open the hearing on S.B. 8

 

Senate Bill 8 (1st Reprint):  Increases penalty for certain punishable conduct by employer leading to death of employee. (BDR 53-298)

 

Diane Thornton:

S.B. 8 resulted from a recommendation made by the Legislative Commission Subcommittee on Industrial Explosions.  The bill increases the penalty for certain punishable conduct by an employer that leads to the death of an employee.  The fine for the first offense is increased from $20,000 to $50,000 and the fine for a subsequent offense is increased from $40,000 to $100,000.  These penalties were last increased in 1989.  Staff did not receive any proposed amendments to the bill and no one testified in opposition. 

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 8.

 

ASSEMBLYWOMAN GIUNCHIGLIANI SECONDED THE MOTION.

 

Assemblyman Brown:

I think it was in Judiciary, we worked on the fine bill and one of our primary concerns was that prior to monies going to payment of a fine, we would try to compensate victims first.  Can we do that [with this bill]?  I want to make sure that the people who are injured get something before the state does. 

 

Chairman Goldwater:

I would direct that to Wil.  Correct me if I am wrong, but I think this is covered by industrial insurance.  This is not an item that would be subject to any sort of punitive damages or indemnification outside of that insurance.

 

Assemblyman Brown:

Understood.  Thank you.

 

Chairman Goldwater:

Am I right about that, Wil?

 

Wil Keane, Committee Counsel:

Yes. 

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

This item is a potential consent calendar item.  I will close the hearing on S.B. 8.  I will open the hearing on S.B. 10.

 

Senate Bill 10:  Prohibits certain regulation of use of telephonic device by person who is operating motor vehicle. (BDR 58-57)

 

Diane Thornton:

S.B. 10 prevents a local government from regulating the use of a telephone by a person who is operating a motor vehicle.  No one testified in opposition to this bill and no amendments have been proposed.  However, Assemblywoman Giunchigliani expressed some reservations during the hearing concerning pre‑empting regulation by local government. 

 

ASSEMBLYMAN HETTRICK MOVED TO DO PASS S.B. 10.

 

SPEAKER PERKINS SECONDED THE MOTION.

 

THE MOTION CARRIED WITH ASSEMBLYMAN ARBERRY VOTING NO.  CHAIRMAN GOLDWATER ABSTAINED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.).

 

Chairman Goldwater:

We will close the hearing on S.B. 10.  We will open the hearing on S.B. 19.

 

Senate Bill 19 (1st Reprint):  Makes various changes relating to advertising and awarding contracts for certain smaller public works projects and requires Department of Transportation to follow contracting procedures used by other state agencies. (BDR 28-409)

 

Vance Hughey, Committee Policy Analyst:

S.B. 19 was introduced on behalf of the Legislative Commission Subcommittee to Study Competition Between Local Governments and Private Enterprise.  Mary Walker and Ted Olivas both testified that this bill is intended to expedite the process by which the state or local governments solicit bids and award contracts for public works projects valued between $25,000 and $100,000.  Ruedy Edgington testified on behalf of the Nevada Department of Transportation and he submitted a letter from Jeffrey Fontaine, the Deputy Director of NDOT that is included in your work session document (Exhibit C) as tab A.  In his letter, Mr. Fontaine asserts that S.B. 19 would put Nevada in conflict with federal law and would disqualify Nevada from participating in federal aid highway projects.  He also states in the letter that the Department believes that the provisions of the bill that transfer responsibility for bidding and awarding highway construction projects to the State Public Works Board would cause delays and other problems.  Finally, he believes the provisions in the bill that require a written attestation before undertaking certain small projects would hamper the ability of the Department to provide timely repairs for highways.  For these reasons, he proposed that S.B. 19 be amended to remove NDOT from the provisions of the bill.  My understanding is that Mary Walker had indicated that she did not object to NDOT's proposed amendments and there were no other amendments proposed. 

 

Assemblywoman Giunchigliani:

Does this have any impact on prevailing wage at all?  Would it let them out of having to pay it?

 

Chairman Goldwater:

Ms. Walker, can we get you down here, since you are here?

 

Mary Walker, Legislative Advocate, Carson City, Douglas County, and Lyon County:

This does not have anything to do with prevailing wage. 

 

Chairman Goldwater:

Mary, everything that Vance said is true?

 

Mary Walker:

That is correct.  He did a very good job. 

 

ASSEMBLYWOMAN GIUNCHIGLIANI MADE A MOTION TO AMEND AND DO PASS S.B. 19.

 

ASSEMBLYMAN HETTRICK SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 19.  We will open the hearing on S.B. 66.

 

Senate Bill 66 (1st Reprint):  Requires supplier of cigarettes to reimburse retail cigarette dealer for consumer price discount or consumer promotion provided to consumer within 90 days after retail cigarette dealer provides discount or promotion to consumer. (BDR 52-186)

 

Vance Hughey:

S.B. 66 requires that suppliers of cigarettes promptly reimburse retail cigarette dealers for certain promotions provided to consumers.  Two amendments have been proposed.  The first amendment was proposed by Barton Freedman representing Brown & Williamson Tobacco Corporation.  He proposed amending the bill to restore certain provisions that were deleted from the bill by the Senate.  These provisions place certain restrictions on contracts between a supplier and a retail cigarette dealer.  His proposed amendment is included under tab B of your work session document (Exhibit C). 

 

The second amendment was proposed by Michael Alonso, representing Lorillard Tobacco Company.  He proposed that Section 1 of the bill be amended to make payment for a promotion contingent upon the retail cigarette dealer being in compliance with the terms of the promotion contract.  His proposed amendment is under tab C of your work session document (Exhibit C).

 

Chairman Goldwater:

Okay.  We recently heard this bill.  What are the thoughts of the Committee? 

 

Assemblyman Griffin:

I think there were some compelling thoughts that were made.  In my own opinion, it is not the role of our Legislature to get involved in some of these contracts and I am concerned with the amendment of the bill, in general. 

 

ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS S.B. 66.

 

ASSEMBLYMAN PERKINS SECONDED THE MOTION.

 

THE MOTION CARRIED WITH ASSEMBLYMEN BEERS, BROWN AND GRIFFIN, AND ASSEMBLYWOMAN LESLIE VOTING NO.  .  (Mr. Knecht and Mr. Oceguera were absent for the vote.) 

 

Chairman Goldwater:

We will close the hearing on S.B. 66.  We will open the hearing on S.B. 83.

 

Senate Bill 83:  Expands circumstances under which registered nurses are authorized to dispense dangerous drugs. (BDR 40-533)

 

Vance Hughey:

S.B. 83 was brought forth on behalf of the Mental Health and Developmental Services Division of the Department of Human Resources.  According to testimony provided by Dr. David Rosen, this bill extends psychiatric medication dispensing authority to registered nurses working in the Division's rural clinics.  There are 16 such clinics, many in isolated areas that serve approximately 1,200 clients with severe mental health problems.  Physicians must still prescribe the medication.  The measure addresses dispensing situations in which the nurse provides the medication to the client and reviews patient instructions for administering the drug.  The bill establishes in law, the authority to establish a procedure to replace a temporary protocol instituted through the Health Division to allow such dispensing by nurses as agents of the Health Division.  No one testified in opposition to this bill and no amendments have been proposed. 

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 83.

 

ASSEMBLYMAN BROWN SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will identify this bill as a potential consent calendar item.  We will close the hearing on S.B. 83.  We will open the hearing on S.B. 102.

 

Senate Bill 102 (1st Reprint):  Revises provisions relating to the Public Utilities Commission of Nevada. (BDR 58-968)

 

Diane Thornton:

S.B. 102 requires that the Public Utilities Commission have at least two Commissioners who are able to act before it can enter a final order.  The bill authorizes acting commissioners to exercise powers only in the proceedings for which they were appointed.  In addition, the bill repeals the increase in the number of commissioners to five.  Two amendments to S.B. 102 were proposed (Exhibit C).  Chairman Goldwater proposed adding a provision that would allow the Legislative Commission to confirm the gubernatorial appointees to the PUCN.  According to the National Regulatory Research Institute, in most states the Public Utilities Commissioners are appointed by the governor and confirmed by the Senate. 

 

Don Soderberg, Chairman of the PUCN, suggested the following amendment.  The proposed amendment would insert a new section into S.B. 102 to read as follows:  "Unless the Governor appoints a person to serve as an acting commissioner pursuant to section 1 of this act, the manager of the Policy Analysis Division of the Commission shall serve as the acting commissioner to act on the matter." 

 

Chairman Goldwater:

I like both of the amendments.  Clearly, I think the Commissioner identified a difficult time with the dockets.  Commissioner, can you come up?  I think we can work in a way that gives us some sort of "advice and consent" or check on the executive branch in these instances.  Additionally, I think the amendment that you suggested allowing the manager of Policy Analysis to serve as an acting commissioner would go a long way in expediting your workload.  Is there anything else you would like to say?

 

Don Soderberg, Chairman, Nevada Public Utilities Commission:

The amendment that we brought forward, we think, makes the current provisions of the bill a little easier.  The provisions that you have suggested I have not had an opportunity to discuss with the Governor. 

 

Chairman Goldwater:

I also don't think we need the extra commissioners. 

 

Assemblywoman Giunchigliani:

If they would stay just PUC I would agree with you.  However, if we decide sometime this session to consolidate [with another agency], then they would need the additional commissioner.  I do notice that this is an exempt bill, so we can take that other matter up as we look at the budget part of it. 

 

Chairman Goldwater:

I don't understand.

 

Assemblywoman Giunchigliani:

I would agree with the policy if we just leave PUC as it is, but if we choose this session to consolidate PUC with TSA (Transportation Services Authority) or something along those lines, then they would need the additional commissioners.  Because this is an exempt bill, I think we can take up that policy matter after we deal with this in this Committee. 

 

Chairman Goldwater:

It is not a waiver on this bill, it is an exempt bill, and so unless it is in one of the money committees, it won't be exempt.  There is definitely a fiscal impact, the budget is contingent on passage of this bill, or certain portions of it are.  What is the desire of the Committee?

 

ASSEMBLYMAN PARKS MOVED TO AMEND AND DO PASS AND RE-REFER TO WAYS AND MEANS S.B. 102.

 

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION. 

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 102.  We will open the hearing on S.B. 125.

 

Senate Bill 125 (1st Reprint):  Makes various changes relating to utilities and providers of new electric resources. (BDR 58-488)

 

Diane Thornton:

S.B. 125 was requested on behalf of the PUC.  The bill allows a natural gas utility that purchases natural gas for resale to use deferred accounting methods.  In addition, the bill provides that once a customer has exited the system to purchase services from a provider, the customer does not have to repeat the approval process with the Commission.  The bill also authorizes the Commission to waive the 180-day waiting period.  No one testified in opposition to this bill and no amendments have been proposed.

 

Assemblywoman Buckley:

I had received a question from somebody about Section 2, the bottom of page 2, with regard to the deferred accounting for the gas.  The concern was something like the deferred accounting creates a single-issue rate case, where the utility gets to recover a single component even if the utility is over-recovering.  I contacted Timothy Hay [Chief Deputy Attorney General, Bureau of Consumer Protection] and asked if that was a legitimate issue that was raised, and he said it was.  I spoke with the utility, and their view was a little different.  I am a little uncomfortable with it and, just because of shortness of time, I had suggested we get everybody together and get that question answered, but I wasn't able to do that.  Has the Commissioner any comment on that? 

 

The rest of the bill I support, and I might support this if I had more information.  The section reads, in most rate cases, since the last time rates were set, some costs have increased, some have decreased, some costs may have disappeared, appeared for the first time, they may balance out, or they might lead to an aggregately different result, it creates a single issue case, where the utility gets to recover a single component, even if the other costs have gone down, the utility is wildly over-recovering.  The problem is that when the PUC is asked to permit deferred accounting they will have no way of knowing how the picture will look a few years down the road.  That made me uncomfortable, but I have not been able to talk and research this.  Maybe somebody on this Committee could answer that, or maybe I'll just vote yes and withhold my Floor vote, because I don't want to stop the bill. 

 

Chairman Goldwater:

Ms. Jacobson, can you address this issue?

Debra Jacobson, Director, Government and State Regulatory Affairs, Southwest Gas Corporation:

Yes, I can.  We have spoken with Ms. Buckley and I think I have spoken with almost everyone else.  We actually did speak with Mr. Hay.  The deferred accounting, as proposed, just gives the Commission enabling authority to be able to approve a tariff program that a natural gas utility would file during a rate case.  So it would be done during a general rate case.  It just defers everything to do with whatever program the company might propose.  How it is collected, how it is reviewed, how it is audited, et cetera, would be laid out at that time.  There is no way to over earn on deferred accounting because it is looked at and reviewed.  Expenses are ongoing; they are more appropriate to be done over time versus at one time during the test year.  With a normal rate case, you have expenses and they take those expenses and they build your rates on that.  This would be for a program where it is going to be ongoing, so expenses, revenues, costs, would be coming and going in and out of the account, and it is really more appropriate and fair to everyone to do it under deferred accounting. 

 

Don Soderberg:

When we saw this amendment, we viewed this as essentially enabling language, which would allow the Commission the flexibility to approach the issue of our gas utilities in a more modified fashion.  We don't know what that would be, it just allows us to hear the evidence and hear a proposal and, if the company were going to propose a specific plan, then they would have to come and support it and those who felt they couldn't support the plan would have that opportunity too.  [As for] the specifics that were given by someone to Majority Leader Buckley, I don't know how you could get that specific off this language.  This would be the very first step into analyzing what should be done.  It doesn't dictate what should be done.  I couldn't respond to those concerns at this point, I might not be able to respond to those concerns for another year and a half to two years.

 

Assemblywoman Buckley:

So, if you do allow this, first you are going to set up your own hearings and rules and opportunities for input on the whole thing, and then later that would be applied in a specific rate case.  Is that right?

 

Don Soderberg:

Yes, that is correct.

 

Assemblywoman Buckley:

Okay.  Since there will be hearings and an opportunity for people to comment at that time, that makes me feel a little better.  Thank you for that clarification. 

 

Chairman Goldwater:

What is the will of the Committee?

 

ASSEMBLYWOMAN LESLIE MOVED TO DO PASS S.B. 125.

 

ASSEMBLYMAN BROWN SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 125.  We will open the hearing on S.B. 168.

 

Senate Bill 168 (1st Reprint):  Revises provisions governing industrial insurance. (BDR 53-466)

 

Diane Thornton:

S.B. 168 was brought forth by the Division of Industrial Relations (DIR).  According to John Wiles, Legal Counsel for DIR, the purpose of the bill is to correct certain regulatory deficiencies.  The bill defines medical facility, clarifies confidential provisions of the Industrial Insurance Act, and allows that a treating physician or chiropractor delegate the duty of filing a claim.  Mr. Wiles proposed an amendment to S.B. 168 on page 6, line 30, to change the words "District Court" to "a court of competent jurisdiction."  In addition, there is an inconsistency that must be reconciled between S.B. 168 and A.B. 168, which passed out of the Senate Commerce and Labor Committee this morning (Exhibit C).  Because there is the press of time for the work session document, the Legal Division has suggested resolving the conflict by eliminating Section 9 of S.B. 168.  I believe Mr. Keane can explain the conflict in the bills, if necessary. 

 

Wil Keane:

I was informed by Kevin Powers, the Committee Counsel to Senate Commerce and Labor this morning, that, given the amendments Senate Commerce and Labor made to A.B. 168, the only provision that now is in section 9 of S.B. 168 provides for appeals to go to an appeals officer rather than back to the administrator.  That is taken care of now in A.B. 168 so, if we dropped section 9 from S.B. 168, that would resolve the conflict.  I don't want to speak on behalf of DIR, but my understanding is that was their only concern in section 9.

 

Chairman Goldwater:

Mr. Badger, Mr. Ostrovsky, can you both come forward to the witness table.  Can we have you review your compromise?

 

Bob Ostrovsky, Legislative Advocate, EICON (Employers Insurance Company of Nevada) and Nevada Resort Association:

The parties involved in the processing of A.B. 168, Ms. Giunchigliani's bill regarding worker's compensation, met.  Those parties included Nevada Trial Lawyers Association, the Self Insured Employers Association, and myself representing EICON and the Nevada Resort Association.  At the time, the Department of Industrial Relations participated in some of those discussions.  There are proposed amendments to S.B. 319 and S.B. 320 as well as amendments to S.B. 168.  Those amendments were all agreed upon by the parties and were processed this morning.  In that process, the Department of Industrial Relations pointed out that when we made changes to the benefit penalty section of the law, reducing the response time from 120 days to 90 days, it affected the other dates which lead up to the 90 days.  Some are 30 and 60 days.  They asked that it be consistent in the way those benefit penalties are processed in that shorter time frame.  S.B. 168 then was inconsistent with the revised section of A.B. 168 and Mr. Wiles can give you more details on that.  That is the reason for the proposed amendment in S.B. 168. 

 

Raymond Badger, Legislative Advocate, Nevada Trial Lawyers Association:

That would be my word, verbatim. 

 

John Wiles, Legal Counsel, Department of Industrial Relations:

I think Mr. Keane and the people with Legislative Counsel Bureau have come up with the appropriate solution to strike that section in S.B. 168.  That resolves any conflict. 

 

Chairman Goldwater:

What are the thoughts [of the Committee]?

 

ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS S.B. 168.

 

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 168.  We will open the hearing on S.B. 193.

Senate Bill 193 (1st Reprint):  Revises provisions regarding coverage of industrial insurance for certain employees. (BDR 53-782)

 

Diane Thornton:

S.B. 193 provides that a member of the Nevada Legislature is covered by industrial insurance while acting in the course and scope of employment.  In addition, the bill also extends worker’s compensation coverage to employees of the school district under certain circumstances.  There were no amendments proposed. 

 

Assemblywoman Buckley:

I am really uncomfortable with changing the worker’s compensation coverage for legislators.  Everyone is very concerned about the state of affairs in Nevada and whether we might be going to four-day school weeks.  There is a lot of concern in the community and I think it is the wrong time to change our own benefits.  The teacher portion of this bill that was suggested I think makes sense.  Teachers are asked all the time to cover the prom, cover the gate club, you name it.  They do a lot of extras and that is part of their job, and I think we should protect our teachers.  I thought about Senator Schneider's comments and what he found out about us not being covered if we are on the Floor the last two months.  It was persuasive, but not enough in this time of uncertainty.  That is my position.

 

Assemblywoman Giunchigliani:

I believe this bill just makes it clear that legislators are covered, they don't have to apply for it.  Correct?

 

Chairman Goldwater:

Explain that again?

 

Assemblywoman Giunchigliani:

I think if you were injured, it is your choice to turn in a claim or not.  This doesn't mandate that you have to put in a claim. 

 

Wil Keane:

The new language doesn't mandate that a claim be filed.

 

Assemblywoman Giunchigliani:

So, then it is optional to the legislator.  I do think that at least while you are here, on-site, you should make it clear that you are covered. 

Chairman Goldwater:

I think what the Majority Leader is speaking to is that if you are not covered by the industrial insurance, you do have tort as a remedy, even as limited as it may be.  I have always thought of industrial insurance being less about the medical coverage and more about the compensation.  Our compensation is nothing anyway, so it really doesn't matter for legislators.  But I think the larger issue in this is whether you are covered under the course and scope of your employment.  That is not a question so much for legislators as it is for everyone who works and who happens to get hurt on the job.  If you have seen some of the denials in the hearings and appeals department, you would find out that people are amazingly denied because of some ambiguity of their status, of whether or not they were working, whether or not they [signed] out, whether or not they were driving to work, or whatever.  There are so many permutations of confusion that lead to the denial of the claim.  In my opinion, there is no reason we need to make it absolutely crystal clear for legislators and still leave ambiguity for the rest of the working public. 

 

Assemblywoman Giunchigliani:

That is why I did ask the Senator to include the language about the school district, because I didn't realize we [teachers] weren't covered until that hearing that day.  Then, I got a call from a teacher who actually had gone to do a basketball game at the request of the school, on campus with the kids, and broke her leg and was not compensated.  I do appreciate him putting that language in this legislation because most of us were unaware we were not covered. 

 

Assemblyman Hettrick:

I guess I feel some obligation, as the Minority Leader, to defend the Senate bill.  I believe it passed virtually unanimously from the Senate, and I understand that we can't talk about the vote.  The point I would make in addition to that, however, is that there is a provision in this bill that we have an assumed wage – that is not the right terminology, but that is the idea – and that you would get disability benefits.  Secondly, if you take into account the fact that we are not paid, it would seem to me that when you are doing traveling, or attending meetings or anything else, you ought to at least be covered by that kind of coverage.  It seems fair to me.  I actually think this is reasonable, but I think a lot of the benefits should be increased for legislators, and I'll get all the mail again from all the people that hated me for saying it the first time.  I believe that if we want good people to serve here, they need to be compensated fairly and it wouldn't apply to us anyway, unless we stood for re-election.  I think it is appropriate. 

Assemblyman Beers:

I am wondering if, on page 1, line 14, that could be interpreted that if I were to have a blister that got infected when I was walking door-to-door during campaign season, if I would be covered.  That may be a little too much protection.  Paragraph 3 of Section 2, I like, I think.  I am not sure I am as comfortable with Section 1. 

 

Assemblywoman Leslie:

I would agree with that.  I missed the hearing because I was in Health and Human Services Committee that day.  Even before line 14 on page 1, was this related to Senator Washington and the [charity] basketball game incident?  If it was, I don't know if that came up in the hearing.  That is where I really have a problem.  If we choose to do something out of the office, for charitable purposes, should we then expect to use worker’s compensation instead of our personal health insurance, if we should get injured?  I don't think I can support anything except Section 2, paragraph 3. 

 

Assemblywoman Giunchigliani:

I think it should be clear that you are covered while you are doing your work here.  I agree with Mr. Beers and Ms. Leslie, but maybe the language on lines 13 and 14 could be tightened up to only apply when "he is performing in his employment as a legislator during legislative session.”  You don't really need A, B, and C on the next section. 

 

Chairman Goldwater:

There is a standard, right now, of how legislators are covered.  Wil, what do you think?  I imagine if you are sitting here – I don’t know if there is any case law – actually voting, or there is some ambiguity as to whether or not it is during a Floor session or during a Committee meeting, or what.  Wil?

 

Wil Keane:

I had discussed this bill with the legislative counsel and my understanding is that, in their experience, there have been two cases where there were legislators who were injured while on the Floor, during a meeting, those cases were paid and were considered to be in the course of their duties as a legislator.  Our office has not said that anything beyond that would be covered.  It is possible that it would be covered, but we don't know what the extent would be.  We know that while you are on the Floor voting, you are covered.  Beyond that, you are probably covered to a degree.  We don't know where the line is.  To a large degree, this bill may be clarifying coverage that already exists; this may be extending it somewhat.  I would say that if you limit it to just your service during session, you are probably limiting the coverage that you have now.  I hope that helps. 

 

Assemblyman Hettrick:

I am sorry to be talking over here.  Ms. Buckley and I are trying to do this at the same time and discuss this.  I look at sub[section] 3 and I read, line 18:  "an event sponsored or organized by a student class, a student group, student organization, educational, recreational, charitable."  If we are going to cover the teachers for it, why can't we cover ourselves?  It should be the same.  It goes on to say, "reasonably related to the employee's job."  That is exactly what it said in the section that applied to the legislators.  It needs to be even.  We should decide either to do it or not do it.

 

Assemblyman Arberry:

I was just sitting here listening to some of the dialog and it appears that we always want to separate ourselves, no matter what it is.  Why do we feel that we can't slip and fall or anything?  It seems we always want to put ourselves out as being immune to everything.  Maybe we need to think about it.  Things can happen.

 

Assemblyman Beers:

I'd like to backtrack a little from my previous statements and swing a little more towards Assemblyman Hettrick's point of view.  We are not like normal people.  Normal people stop working when they stop getting paid.  We spend the second half of the session unpaid and that is a little odd.  I am wondering if the language we are looking for revolves around describing the session and if something happens to us in the session, actively in service to the state, or perhaps including interim meetings.  Perhaps, Mr. Chair, with your permission, if I am a plumber and my plumbing company has a Saturday league softball team, and I play on it and I get hurt, is that an industrial insurance injury? 

 

Chairman Goldwater:

No.  Right, Raymond?

 

Raymond Badger:

Not unless you are paid a wage.

 

Assemblyman Beers:

That is what is different about the second half of our legislative session.  We are not paid a wage, but we continue suiting up. 

 

Chairman Goldwater:

But this isn't really hazardous duty.  Let's be honest.  Mr. Brown?

Assemblyman Brown:

I think it is somewhat noble of the members of this body to preclude themselves from certain benefits, but I think I am persuaded, somewhat, by the fact that we are here taking significant time out of our lives.  While this is not a hazardous job, at least physically, I think there are instances where there are legitimate accidents; for which coverage is not unreasonable.  I think to some members of the body who we know are currently unemployed, it would be unfortunate for some of those persons to be denied some benefit while they are engaged in what is the activity of legislative work.  I don't think I would go beyond the session or the actual legislative work.  I certainly think that a basketball game or something like that is an elective activity and I wouldn't go so far as to include that.  I also agree with Assemblyman Hettrick's point that we do need to have some enticements for this type of work to get people who are going to make great effort and come up here and make the sacrifice.  I would be willing to support it to that extent. 

 

Assemblyman Beers:

It sounds like, if compensation is the defining criteria, then we are covered, clearly, for the first 60 days and for interim meetings.  We might need to do something, specifically, to address those days of the session that we are not paid, as well as address, Mr. Chair, your point that we are not in a high-risk profession, our rate that is paid is adjusted accordingly, I believe.  Guys that haul dynamite cost their employers more for their premium than guys and gals like us who sling bills around. 

 

Assemblywoman Giunchigliani:

In trying to bring some resolution, I would suggest to Amend and Do Pass, and in Section 1, subsection 2, limit it to "if he has sustained, at the time of his injury, while serving during the session or during interim committees, whether or not he was receiving remuneration from the state for those purposes."  That would make it clear.

 

Chairman Goldwater:

Just basically saying you are covered from the day you start serving until sine die?

 

Assemblywoman Giunchigliani:

Correct.  And then during interim meetings, if you are in attendance at interim committee meetings. 

 

Chairman Goldwater:

Do you want to make that as a motion?

 

ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS S.B. 193.

 

Chairman Goldwater:

Wil, do you understand the motion?

 

Wil Keane:

Yes, Mr. Chairman, if I could ask for a bit of clarification.  Would you want me to limit it to those circumstances?  Because, as I said before, we are not sure exactly where the limits are right now, and if I put in hard and fast limits, then we will be limiting it.  Or do you want me to do this in an inclusive way so that it covers this plus whatever it covers now?

 

Assemblywoman Giunchigliani:

Whatever is covered now. 

 

ASSEMBLYMAN HETTRICK SECONDED THE MOTION.

 

Assemblyman Griffin:

I think you may have just answered my question, Wil.  Does that cover anything that could happen during that 120-day period?  Is that what we are going to check?  Including the company picnic, so to speak?

 

Assemblywoman Giunchigliani:

No.  Just while we are here.

 

Assemblyman Griffin:

Or on some official bus trip? 

 

Assemblywoman Giunchigliani:

We could exclude covering events, seminars, etc.  I was trying to get to the simpler part, but it is while you are doing your work for the 120 days that are related directly to your work.  If you go on the agricultural tour and get kicked by a cow that you weren't milking correctly, [that should not be covered].  You could choose to file a claim, you don't have to.  It is still your choice. 

 

Assemblyman Griffin:

If we can very specifically narrow it to that, I would be more comfortable.  Extra-curricular activities should not be covered. 

 

THE MOTION CARRIED WITH ASSEMBLYWOMEN BUCKLEY AND GIBBONS AND ASSEMBLYMAN GOLDWATER VOTING NO.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

We will close the hearing on S.B. 193.  We will open the hearing on S.B. 196.

 

Senate Bill 196:  Enacts Uniform Prudent Investor Act and Uniform Principal and Income Act (1997). (BDR 13-1107)

 

Vance Hughey:

S.B. 196 enacts the Uniform Prudent Investor Act and the Uniform Principal and Income Act.  Frank Daykin presented an amendment on behalf of the Nevada Bankers Association, which is included in your work session document (Exhibit C) under tab E.  The proposed amendment does three things.  First, it adds a new subsection to Section 3 of the bill, which makes the provisions of the bill applicable to every trust or decedent's estate existing on or after October 31, 2003, except as otherwise expressly provided either in the trust, in the decedent's will, or in the bill itself.

 

Second, the amendment adds a new section to clarify that this bill does not create or imply a duty to make an adjustment between principal and income and that a trustee is not liable for considering whether to make an adjustment or for choosing not to make an adjustment.  Along these lines, the amendment also proposes to delete subsection 7 of Section 18, which is on page 7 of the bill, lines 21 and 22. 

 

Finally, the amendment adds a new section to the bill that provides an extensive procedure whereby a trustee who is considering an action can notify various beneficiaries of the proposed action. 

 

Chairman Goldwater:

Discussion of the proposed amendment?  Thoughts from the Committee?

 

ASSEMBLYMAN HETTRICK MOVED TO AMEND AND DO PASS S.B. 196.

 

ASSEMBLYMAN PARKS SECONDED THE MOTION.

 

THE MOTION CARRIED.  CHAIRMAN GOLDWATER ABSTAINED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

I would like to disclose that I am a fiduciary in a number of trusts and therefore I am abstaining. 

 

We will close the hearing on S.B. 196.  We will open the hearing on S.B. 248.

 

Senate Bill 248 (1st Reprint):  Revises provisions relating to alcohol and drug abuse counselors. (BDR 54-327)

 

Vance Hughey:

S.B. 248 makes various changes to provisions relating to alcohol and drug abuse counselors.  During testimony on this bill, Richard Harjo from the Nevada Indian Commission proposed an amendment to Section 4 of the bill that would insert the word "gambling" in front of the word "alcohol" on line 29 of page 4.  However, on Tuesday of this week, I received a request from Mr. Harjo to withdraw his proposed amendment.  As a result, there are no proposed amendments to this bill.  Also, during the hearing on this bill, the question was raised regarding whether any other professional boards are authorized by statute to waive requirements for the renewal of a license.  Committee counsel has determined that seven boards currently are authorized by statute to waive the continuing education portion of their renewal requirements.  If the Chairman would like, I am sure that Mr. Keane would be happy to review with the Committee the results of his research on this matter. 

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 248.

 

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

That is a potential consent calendar item.  We will close the hearing on S.B. 248.  We will open the hearing on S.B. 281.

 

Senate Bill 281:  Revises provisions relating to osteopathic physicians. (BDR 54-985)

 

Vance Hughey:

S.B. 281 was introduced by Senator Shaffer on behalf of the Board of Osteopathic Medicine.  Trey Delap, Deputy Executive Director of the Board, testified that this bill has four primary objectives.  First of all, it provides for a criminal background check on all applicants.  Second, it increases the membership of the board from five members to seven members.  Third, it provides for the sharing of investigative or complaint information with medical boards and law enforcement agencies in other states.  Finally, it corrects a "du jour" exclusion of similarly situated osteopathic physician from rights and responsibilities ascribed to medical doctors in various chapters of Nevada Revised Statutes.  There was no testimony in opposition to this bill and no amendments were proposed.

 

Chairman Goldwater:

Thoughts and feelings? 

 

ASSEMBLYMAN PARKS MOVED TO DO PASS S.B. 281.

 

ASSEMBLYMAN HETTRICK SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 281.  We will open the hearing on S.B. 283.

 

Senate Bill 283:  Revises requirements for issuance of limited license to practice dentistry or dental hygiene. (BDR 54-1095)

 

Vance Hughey:

S.B. 283 revises requirements for the issuance of a limited license to practice dentistry or dental hygiene.  The bill deletes the provision requiring a person applying for a limited license to have a license to practice dentistry or dental hygiene issued pursuant to the laws of another state or the District of Columbia at the time of his application.  The intent of the bill is to allow persons applying to complete dental residency training in Nevada to obtain temporary licenses.  These applicants do not necessarily have licenses from other states prior to applying for residency training.  There was no one present to testify on this measure at our hearing on April 21, 2003 and we have not received any amendments.

 

Chairman Goldwater:

Thoughts from the Committee?

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 283.

 

ASSEMBLYMAN PARKS SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

Chairman Goldwater:

This bill is a potential consent calendar item.  We will close the hearing on S.B. 283.  We will open the hearing on S.B. 319.

 

Senate Bill 319 (2nd Reprint):  Makes various changes to provisions regulating insurance. (BDR 57-599)

 

Diane Thornton:

S.B. 319 requires one of the members of the Board of Directors of the Nevada Life and Health Insurance Guaranty Association and one of the members of the Board of Directors of the Nevada Insurance Guaranty Association to be an officer of a domestic insurer.  The bill authorizes the use of an original signature, faxed signature or electronic signature for certain purposes.  The measure also authorizes the Department of Administration to hold worker’s compensation hearings in Carson City or Las Vegas or [elsewhere] upon agreement of one or more of the parties to pay all additional costs directly related to an alternative location.  There were several meetings held yesterday with various parties.  These people included Ray Badger, Dean Hardy, Jack Kim, Rose McKinney-James, Donald Jayne, Bob Ostrovsky, Ann Nelson, and Danny Thompson.  The following amendments were proposed.  First, delete Section 1 of the second reprint of S.B. 319 and replace it with the original version of Section 2 from the bill.  The language in your work session document (Exhibit C) is the replacement language you see before you. 

 

The second amendment is in Section 8, page 6, line 39, delete "as determined by" and replace with "at the discretion of."  The same change is proposed to Section 9, page 9, line 3. 

 

Chairman Goldwater:

Thank you, Diane, for your direction of this worthy compromise. 

 

Raymond Badger:

I can speak to the second proposed amendment.  We were worried that the original language was unclear if there is a dispute about where a hearing should be held, whether it should be Carson City or Reno, who would resolve that.  We believe that the Hearings Division, if there is a dispute, should be the final arbiter since they are the state-appointed authority.  We believe the term "at the discretion of the Hearings Division" would make it clear that if there is a dispute about where a hearing will be held, they would be the final entity to determine that. 

Bob Ostrovsky:

The amendment to subsection 1 is to go back to the original language.  We are not sure how, exactly, this got changed in the reprint.  The language speaks to the requirement for a countersignature on a policy that is issued to an out-of-state person; that is, someone who comes into Nevada to do business and the policyholder is in Oregon.  We have these situations.  Somehow in the reprint we got language inserted that only applies to people who are not subject to taxation pursuant to this section of the law, which is premium tax.  The two don't seem to make any sense and we have no idea how that language got in there.  The parties all agreed that the language in the original was satisfactory to us as a group.

 

Chairman Goldwater:

So, everyone understands?  Okay.  Thoughts from the Committee on this compromise on S.B. 319?

 

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS S.B. 319.

 

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

 

Assemblywoman Buckley:

I just wanted to confirm what my amendment was in the motion I just made.  It was to include that which is set forth in the work session document, plus an additional amendment of amending A.B. 194, which banned the use of credit reports in setting insurance rates, into this bill.

 

Assemblywoman Leslie:

I just want to state my support for Ms. Buckley's last amendment that she outlined in A.B. 194, which was never heard in the Senate.  Since we had the hearing on that bill I have been receiving about 20 calls a week from people all over the state who want to know the status of the bill.  The latest series of phone calls I received last week were from people who said that now because of the HIPAA regulations that have gone into effect, when they go to get a quote of insurance, the insurance companies make them sign a waiver that says that they can access not only their credit report but their medical reports or they can't even get a quote of insurance.  These people are clearly out of control and I would really like to see A.B. 194 included in this bill.

 

Chairman Goldwater:

Motion to amend A.B. 194 along with the amendments outlined in your work session document has been made by Ms. Buckley, seconded by Ms. Leslie.  Further discussion? 

 

THE MOTION CARRIED WITH ASSEMBLYMEN BEERS, BROWN, GRIFFIN AND HETTRICK VOTING NO.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 319.  We will open the hearing on S.B. 320.

 

Senate Bill 320 (1st Reprint):  Makes various changes to provisions governing industrial insurance. (BDR 53-600)

 

Diane Thornton:

S.B. 320 was also discussed in the meeting yesterday.  The following amendments were agreed to by the various parties (Exhibit C).  First, delete Sections 1 and 2 of the bill.  Second, amend Section 4, line 29 through 38 to read:  "2.  A hearing must not be scheduled until the following information is provided:  (a) the name of:  (1) the claimant; (2) the employer; and (3) the insurer, or third-party administrator; (b) the number of the claim; and (c) if applicable, a copy of the letter of determination being appealed, or if such a copy is unavailable, the date of determination of the issues stated in the determination.

 

The third amendment replaces subsection 2 of Section 5 on page 4, lines 27 through 36 with the amended language previously suggested in the above recommendation. 

 

The fourth amendment, the last amendment, was brought forth by Mr. Ostrovsky representing EICON.  He proposed adding a new section to the bill to establish a system of external review for certain matters relating to worker's compensation.  The amendment requires the Commissioner to establish regulations creating external review organizations.  Mr. Ostrovsky proposed the amendment that you will find under tab F of your work session document (Exhibit C).  However, Mr. Ostrovsky has agreed to the following changes to the exhibit in tab F and these include that both parties must agree to the external review, neither party can be ordered to submit to the external review, the results of the external review are non-binding, and lastly, the insurer must pay for the external review.

 

Bob Ostrovsky:

I participated in these discussions.  In deleting Section 1 regarding the Fifth Edition, the Fifth Edition is now included in A.B. 168.  The language was amended that would require the Fifth Edition to be in place for all evaluations done on October 1, 2003 and after.  It also contains language, which will require, in the future, the Division to adopt within 18 months of publication any new editions that may come forward.  That was amended into A.B. 168 this morning and therefore, the requirements found in Section 1 of this bill are not required. 

 

[Mr. Ostrovsky continued.]  Section 2 of this bill has been withdrawn.  It had to do with the level of evidence required in certain cases. 

 

The next amended sections have to do with the hearings.  We wanted to make it absolutely clear that the hearing would not be dismissed in any manner because of the language.  It wouldn't be scheduled until the information was available.  We didn't want to put any burden that would somehow take a right away from the injured worker.  The parties believe that this language does that.  We have put some additional burden on the Department of Administration to see that they get the information together, but we did not want to burden the injured worker with a chance of losing an appeal over a technicality. 

 

The last item has to do with external review.  We have agreed to try an external review procedure, very similar to the external review procedure found in a bill you have already processed, A.B. 79.  That review would be an available tool that the appeals officer could utilize, if both parties agreed, and if the insurer pays the bill and the appeals officer would not, in any way, be bound by that decision.  It would just be another piece of evidence.  We would like to try it on a few cases and see what kind of response we get, because it is something new and untried.  We are trying to find better ways to resolve disputes. 

 

Chairman Goldwater:

May I say, Bob, I really like that approach.  I think it is a very reasonable way to go about it.  Both parties agree, it is a tool there, an arrow in the quiver, and you had a choice to fight it and kill it, or you had a choice to put it in and let it go, and you said, okay.  You mutually agree on it and we'll give it a try and see how it goes.  I appreciate that.  That is very creative. 

 

Bob Ostrovsky:

We have agreed to absorb all costs so that there is no cost to the injured worker. 

 

Jack Jeffrey, Legislative Advocate, Southern Nevada Building & Construction Trades Council:

I think the Committee already knows this, but, in case it is not well known, I think I need to mention that we met on these three bills, S.B. 319, S.B. 320, and A.B. 168.  A.B. 168 was reported out of the Senate Committee this morning fairly intact.  There were some language changes, but mostly to clarify things.  The compromise that we agreed to, Bob has outlined in these two bills.  I think it is a good package and I think the negotiations were tough, but we came out with a good product.  I think everybody is in support.  I know our side is. 

 

Danny Thompson, Executive Secretary/Treasurer, AFL-CIO of Nevada:

Yes.  I don't think anybody walked away from this negotiation with any more than anyone else.  Certainly, whenever the parties involved who actually do the work that these bills relate to can agree, you are a lot better off, and I think it is a lot easier for all.  A.B. 168 was passed out of Senate Commerce and Labor this morning based on the agreement that was negotiated between the parties.  These other two bills represent the second half of the agreement. 

 

Raymond Badger:

Would you like a very short summary of the changes to the Assembly bill, which was a big genesis of the agreement you are hearing on these two bills?

 

Chairman Goldwater:

No.  Thank you. 

 

Assemblywoman Giunchigliani:

I just wanted to echo the words of the Chairman.  I appreciate everyone working with me originally on A.B. 168.  For the work that you have done here on S.B. 319 and S.B. 320 on behalf of both employers and injured workers, you should all be commended, and I thank you all for working that hard. 

 

Chairman Goldwater:

And we will echo and pass those praises on the staff, Diane Thornton as well, who was instrumental and key and very capable in these negotiations and we are glad this didn't end up being a bad issue.  It ended up being a good issue for everybody and it was because you all worked in good faith.  I can tell you I appreciate that.

 

ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS S.B. 320.

 

ASSEMBLYMAN HETTRICK SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 320.  We will open the hearing on S.B. 323.

Senate Bill 323 (1st Reprint):  Revises provisions governing funeral directors, embalmers and operators of cemeteries and crematories. (BDR 54-306)

 

Diane Thornton:

The first amendment proposed for S.B. 323 by Assemblywoman Buckley was to delete Section 10 of the bill.  Striking this section retains the term limits for the members of the Nevada State Funeral Board.  Secondly, the Committee discussed adding language on page 3, line 43, to read, "The Board shall charge and collect nor more than the following fees."

 

Assemblywoman Buckley:

I had a chance to re-read this bill and think about it some more and upon further thought I think it is probably okay to leave the bill the way it was in the first place.  When you don't have that many qualified people to serve, I think you do a disservice, so I would be willing to move to Do Pass.

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 323.

 

ASSEMBLYMAN HETTRICK SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mrs. Gibbons, Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 323.  We will open the hearing on S.B. 372.

 

Senate Bill 372 (1st Reprint):  Revises provisions relating to cosmetology. (BDR 54-886)

 

Vance Hughey:

S.B. 372 authorizes certain providers of health care to practice in a cosmetological establishment and prohibits the Board of Cosmetology from including certain information on a license or a certificate that is required to be displayed publicly.  Assemblywoman Giunchigliani and Senator Schneider have proposed amendments to this bill as indicated in the mock-up that is included as tab H in your work session document (Exhibit C). 

 

As you can see from the mock-up, the first change adds a provision from A.B. 258 to reduce from three years to one year the practice requirement for a provisional license as an instructor.  The second change adds a provision from A.B. 258 to clarify that a cosmetological operator may lease space to or employ a barber.  The third change adds a provision from A.B. 258 to remove certain restrictions on serving food or beverages in a cosmetological establishment.  The fourth change adds a provision from A.B. 258 to modify the school term and to remove a restriction on the student working more than five days out of every seven.  It also adds a new provision to allow schools to offer courses of study other than those under the jurisdiction of the state Cosmetology Board.  The final change in the mock up merely makes all these new provisions effective on July 1, 2003.  In addition to that, Jonnie West-Rich on behalf of the Board proposed some amendments dealing with qualifications of instructors, and these are indicated behind tab I.

 

[Mr. Hughey continued.]  Finally, I believe Committee Counsel may have some comments regarding a question that was raised earlier today by Assemblywoman Giunchigliani.

 

Assemblywoman Giunchigliani:

In talking with the Chair of Commerce, we felt it would be easier if this was a germane bill.  Rather than taking the time, he asked that I place the cosmetology issue into Senator Schneider's bill.  Senator Schneider worked with me on the amendments.  In addition to that, the Cosmetology Board discovered a correction that they needed and that is the section that deals with their licensing.  So, I included that.  Wil was going to mention that we wanted to make sure that anybody who works within an establishment be controlled by their licensing board.  The attorney for the Cosmetology Board wanted me to make sure that that was included, because she needed that language as well. 

 

ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO AMEND AND DO PASS S.B. 372.

 

Chairman Goldwater:

The motion is to amend with the work session document?  Okay.

 

ASSEMBLYMAN PARKS SECONDED THE MOTION.

 

Chairman Goldwater:

Clarification for Mr. Hughey.

 

Vance Hughey:

I just want to make sure I am clear.  The question that came up earlier this morning is not part of the work session document, so we will need to . . .

 

Assemblywoman Giunchigliani:

The Attorney General's request was that we make it clear, if that is acceptable to the Committee, that professions that choose to work within [the cosmetology establishment] would still be licensed and governed by their own Boards.

 

THE MOTION CARRIED.  (Mrs. Gibbons, Mr. Knecht and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 372.  We will open the hearing on S.B. 423.

 

Senate Bill 423:  Makes various changes relating to unemployment compensation benefits. (BDR 53-476)

 

Vance Hughey:

S.B. 423 was requested on behalf of the Employment Security Division to implement certain recommendations of the Legislative Auditor.  The measure also authorizes the administrator to use funds in the Unemployment Compensation Administration Fund to provide training for both unemployed persons and persons employed in this state.  During the hearing on this bill, Assemblywoman Buckley questioned the changes to the judicial review provisions in Section 3 of the bill.  As a result, Birgit Baker, ESD Administrator, indicated that the change was intended to assist claimants to file an appeal in any county that was convenient to them.  The current wording of the bill might be interpreted in a contrary manner, so Ms. Baker has proposed that the phrase "any district court in the state" on page 3 of the bill, at lines 21 and 22, be replaced with the phrase, "the district court in the county where the employment giving rise to the claim was performed."  There are no other amendments.

 

Chairman Goldwater:

Does this satisfy your concern?

 

Assemblywoman Buckley:

Yes. 

 

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS S.B. 423.

 

ASSEMBLYMAN HETTRICK SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Brown, Mrs. Gibbons, Mr. Knecht and Mr. Oceguera were absent for the vote.)

Chairman Goldwater:

We will close the hearing on S.B. 423.  We will open the hearing on S.B. 425.

 

Senate Bill 425 (2nd Reprint):  Makes various changes relating to pharmacy. (BDR 54-530)

 

Vance Hughey:

S.B. 425 was requested on behalf of the Board of Pharmacy.  Fred Hillerby, representing the Board, and Senator Titus both have proposed that Sections 38 and 39 of this bill be deleted to avoid a conflict with S.B. 387, which is Senator Titus' generic drug bill that was passed out of this Committee last Friday.  Helen Foley, representing the Nevada Pharmaceutical Wholesalers, offered an amendment, and we have included that under tab J of your work session document (Exhibit C).  That proposed amendment would require that a purchasing wholesaler be licensed either by the Board or by regulatory authority in another state. 

 

In addition, she proposed that subsection 4(c) of Section 3.5 on page 3 of the bill be amended to remove the reference to "a corporation whose securities are publicly traded and regulated by the Securities Exchange Act" and to replace that provision with one that would allow intra-company transfers of prescription drugs. 

 

Ms. Foley also proposed that the summary suspension provision in Section 25 of the bill, on page 15, be amended to require clear and convincing evidence of an immediate emergency public health risk before the Board may summarily suspend a license or take disciplinary action related to a license.  The proposed amendment also would change provisions in Section 25 regarding copying of records and removal of records for copying.

 

Chairman Goldwater proposed that Section 3.5 of the bill be amended to provide that a wholesaler located in Nevada may sell a prescription drug to another wholesaler located outside of this state who is not licensed in this state. 

 

Chairman Goldwater:

Clearly, I thought the major issue of the bill was, why are we going to license and register people outside of Nevada?  Mr. Ling told me why he thought that was.  I think we can take care of that with the amendment proposed in 3 and we also have to take care of the conflict with Senator Titus' bill.  Ms. Foley's amendments seem to deal with a lot for a Senate bill.  What are the thoughts of the Committee?

 

Assemblywoman Giunchigliani:

I had concern about a different section, and that was the licensing of the clerks.  Is that this bill?  I think that is over-reaching. 

 

Chairman Goldwater:

I didn't think so, if you are going to have access to drugs.

 

Assemblywoman Giunchigliani:

The pharmacy technicians do, but the clerks and cashiers . . . it just could go on and on.  I think it was overly broad. 

 

Chairman Goldwater:

Mr. McDonald, was it your testimony that you would not license them if they did not have any access to the drugs?  [Mr. McDonald indicated in the affirmative.]

 

Assemblywoman Buckley:

I have some concerns about the bill overall.  I have concerns about the licensing of the cashiers.  On my frequent visits to the pharmacy to pick up many prescriptions for the ailments of my children, the clerk is minimum wage; there is always a pharmacist there.  Find a better way than to be licensed and pay a fee.  I think we should be concerned when you have to be licensed and pay a fee to get a job.  There is some value, you could cause more harm being near drugs.  I had concerns from the testimony.  I didn't understand when Mr. Ling was explaining the fact pattern; it just didn't ring true that you needed this protection.  I wasn't convinced of the need for the bill and maybe if we didn't have so many things on our plate, I could understand it better, but I just didn't get the need in the first place.

 

Assemblyman Griffin:

I agree with much of what Ms. Giunchigliani and Ms. Buckley just said.  I do see the need.  If there is a too loose definition of access, or maybe it goes beyond what I think the intent is, and unless we could really clean that up, I have those concerns as well.  I think if the policy needs are there, this may be way too broad or maybe I just don't understand the definition.  Right now, those are bigger concerns for me.

 

Assemblyman Beers:

What would the impact be if we didn't process this bill?

 

Fred Hillerby, Legislative Advocate, Nevada Pharmacy Board:

Before I go to the total need for the bill, let me add something.  There are a couple of things we would suggest over the concerns of the people who have access to drugs but who are not licensed otherwise.  We would be happy not to charge them a fee.  The concern was being able to identify those people who have been terminated because they were suspected, or caught diverting drugs, so they don't just go to the next drug store to do the same thing.  We would be willing to not even charge a fee for that, if that would ease anybody's concerns. 

 

[Mr. Hillerby continued.]  In respect to the whole bill, and particularly with Section 3.5, I tried to share with you some newspaper articles.  This whole issue around the secondary wholesalers and the counterfeiting of drugs is now receiving national attention.  I think it is important that this Board be given the tools to deal with that so that our citizens are protected.  It is a very serious issue. 

 

Assemblywoman Giunchigliani:

I appreciate that you are willing to go to zero [on the fee], but that is not really my concern.  I don't think you should be charged to get a job, but I think that jurisdiction is with the Labor Commissioner.  Some of this should really be with the Attorney General's office.  You seem to be reaching over state boundaries to license people who don't do business here.  I just don't understand how that is going to happen.  How are you going to license those individuals?

 

Fred Hillerby:

You need to identify them, but we do have opportunities to recognize them because they advertise to hospitals and so on in our state.  Secondly, I think the notion was to place some responsibility on those companies to see if they were licensed here.  That was the whole notion behind Section 3.5.  As we indicated, this was something that we had worked out on the other side, not that it doesn't need to be defended as well, here, but it was a compromise that was reached to try to figure out a way to give this Board some opportunity to try to become involved in preventing the kinds of dangerous acts that are occurring in this whole secondary market.

 

Assemblywoman Giunchigliani:

That I understand, but if you have counterfeit drugs, to me that is an illegal activity and isn't a licensing board's purview.  I am just trying to understand how that works with the licensing board.

 

Fred Hillerby:

Once you get to the counterfeit part, clearly you would need to involve other law enforcement.  It is not only counterfeiting.  Without an accurate audit trail, you might find that these drugs that are sensitive to temperatures, sit in boxcars for days on end without any controls.  It is this great game of selling among each other and they continue to mark those drugs up, who eventually make it back into the marketplace.  Sometimes they get back to the real wholesalers and then are sold again and finally end up on your druggist's shelves with maybe altered expiration dates.  We could remove the license, but then we could turn this over to the appropriate law enforcement. 

 

Assemblyman Beers:

I'm not sure I followed that last round of arguments.  I think you described the scenario where wholesalers sell amongst themselves, continually marking it up, until they finally find some end user somewhere.  If I am a Walgreens retail outlet, I am going to find the least expensive wholesaler, and by definition, circumvent that wholesaler to wholesaler.  It does not make any economic sense to me that it would be activity that would happen. 

 

Fred Hillerby:

But it does happen, Mr. Beers.  There are three major wholesalers in the country.  Sometimes they get back there and then go to Walgreens.  Walgreens never gets an opportunity to find out from some of these people if their costs are better than mine.  They continue to move them around.  A lot of this starts initially when the manufacturer sells to what is called a "closed door pharmacy," who, allegedly, is going to sell those to nursing homes at a huge discount.  Instead of doing that, they sell them at a markup from what they bought them to a secondary wholesaler who then moves them around the country.  That is what is going on.  It is very complicated.  There are efforts going on in Florida to try to resolve this issue.  There was an article about one woman who was injured; those drugs went through one of those wholesalers in Las Vegas. 

 

Chairman Goldwater:

I'll tell you what we will do.  The Chair will accept a motion to Amend and Do Pass, striking the enacting clause of this bill, which will keep it going.  I will direct Fred Hillerby to get involved in negotiations to salvage something that will allay the concerns that you brought out and we will offer that compromise to move forward. 

 

Assemblywoman Giunchigliani:

Section 26, Fred, this is a big leap.  The time and date the patient was physically examined by the person prescribing the controlled substance for the prescription was issued has to now be documented and verified?  And, now we need to define a bona fide relationship as to when a person was physically examined?  Isn't that a little invasive? 

 

Chairman Goldwater:

I guess my point was gathered from the concerned parties.  I'd like to see if we could get something simpler for us to understand, probably not quite as far-reaching as the original bill.  I happen to feel that we need to protect our citizens from this kind of thing and I do think a regulatory body is an important cog in that.  We need to give you the tools, but we don't want to turn you into the Gestapo.

 

Fred Hillerby:

Thank you, Mr. Chairman.  We are willing to work with you.

 

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS S.B. 425 WITH THE AMENDMENT BEING THE DELETION OF THE ENACTING CLAUSE OF THE BILL.

 

ASSEMBLYWOMAN GIUNCHIGLIANI SECONDED THE MOTION.

 

Chairman Goldwater:

When you strike the enacting clause when you pass a bill, it just never gets enacted.  It is a procedural tool.  Perhaps Mr. Speaker can explain it to us. 

 

Speaker Perkins:

It is pretty simple, without an enacting clause, the bill can never be enacted into law, but, in essence what you have done, the Committee has taken action on the bill and moved it out of Committee and satisfied our deadlines.  It could then be amended on the Floor of the Assembly since we have another week to get to the second house passage deadline. 

 

THE MOTION CARRIED.  Assemblywoman Gibbons and Assemblyman Oceguera were absent.

 

Chairman Goldwater:

We will close the hearing on S.B. 425.  We will open the hearing on S.B. 426.

 

Senate Bill 426 (2nd Reprint):  Establishes statewide procedures for approval of applications for construction of facilities for personal wireless communications. (BDR 58-1286)

 

Diane Thornton:

S.B. 426 requires that a land use authority establish procedures and standards for the approval of an application to construct personal wireless service facilities.  The amendments, under tab K in your work session document  (Exhibit C) provides that the wireless facilities must meet requirements of the land use authority and that the land use authority retain the authority to consider applications and to set approval standards. 

 

Chairman Goldwater:

Thoughts from the Committee?

 

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS S.B. 426.

 

ASSEMBLYMAN HETTRICK SECONDED THE MOTION.

 

THE MOTION CARRIED.  CHAIRMAN GOLDWATER ABSTAINED.  (Mrs. Gibbons and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 426.  We will open the hearing on S.B. 427.

 

Senate Bill 427 (1st Reprint):  Makes various changes relating to veterinarians. (BDR 54-472)

 

Vance Hughey:

S.B. 427 was requested on behalf of the Board of Veterinary Medical Examiners.  During the hearing on this bill, Adam Levine, an attorney with the law firm of Daniel Marks, expressed concern regarding several provisions in the bill.  He had some concern with Section 10 that a board member's written report of his findings and recommendations is not considered a public record.  He also indicated that the evidentiary standard in Section 11 should be "clear and convincing" as opposed to "a preponderance of the evidence."  His concerns on the evidentiary standard are delineated under tab L (Exhibit C).  Finally, Mr. Levine objected to the provisions in lines 9 through 12 on page 7 of the bill.  This is a provision that allows testimony by a person who is not an expert witness if proof of an actual injury is an issue.

 

During the hearing representatives of the Board indicated agreement with the recommendation concerning the change to the evidentiary standard.  Included in your work session is a document (Exhibit C), under tab M.  It is a letter from Debbie Machen, Executive Director of the Board, in which she indicated that the Board has a preference for "a preponderance of the evidence," but considers this a public policy issue and would accept either "a preponderance of the evidence" standard or "clear and convincing" standard and she reiterated to me in a telephone conversation the Board's position in opposition to the other proposed amendments by Mr. Levine.

 

I believe Committee Counsel has done some research on some of these issues and may also have some comments, if the Committee desires.

 

Chairman Goldwater:

Mr. Keane?  You did a good bit of research and lots of boards have that ability.

 

Assemblywoman Giunchigliani:

I had some correspondence from the Board.  I guess the suggestion is to go with the "preponderance of evidence."  Is that correct?  I think that is a good place to start – it seems to be more common, as far as a threshold for making a determination.  

 

Vance Hughey:

That would be the Board's preference.

 

ASSEMBLYWOMAN GIUNCHIGLIANI MOVED TO DO PASS S.B. 427.

 

Chairman Goldwater:

So, it is just a Do Pass, none of the Levine amendments? 

 

Frederick R. Olmstead, Deputy Attorney General, Counsel for the Veterinary Board:

That would be correct.  It would be a strict Do Pass, if the "preponderance of the evidence" is the standard sought by the Committee. 

 

Chairman Goldwater:

Have you seen what Mr. Levine has suggested?

 

Frederick Olmstead:

Yes, Mr. Chair.

 

Chairman Goldwater:

And what were your thoughts on his suggestions?

 

Frederick Olmstead:

It is uncomfortable, my speaking without Mr. Levine being here, because I have been in litigation with Mr. Levine for a few years, and I would oppose Mr. Levine's recommendations. 

 

Chairman Goldwater:

Diane, as I recall, you briefed me on this bill saying something about the animals, that you don't need to be an expert to testify and also that animals sometimes heal . . .

Diane Thornton:

Correct.  It was dealing with the fact of laypersons being able to be a witness to the fact of an animal's injuries.  Whereas a doctor may examine an animal a day or two later and perhaps the bruise is gone or the animal is not acting funny anymore, it is the layperson that could actually testify to the fact that the animal was injured.

 

Chairman Goldwater:

And that was what Mr. Levine was suggesting on the last amendment?

 

Diane Thornton:

I believe so.

 

Chairman Goldwater:

I think that is important.  Mr. Beers?

 

Assemblyman Beers:

Our work document seems to indicate that Mr. Levine is suggesting that we not allow laypeople to testify as to the injury, if I am understanding that correctly.

 

Chairman Goldwater:

So it is a Do Pass? 

 

ASSEMBLYMAN PARKS SECONDED THE MOTION.

 

Assemblyman Beers:

So, we are processing this bill allowing a layperson to testify as to the medical condition of the animal?

 

Chairman Goldwater:

That is my understanding.

 

Assemblywoman Giunchigliani:

Yes, that is correct, because, based on what Diane said, it is who saw them first.  Sometimes a pet might not be brought in to a veterinarian's office until a few days later.  They need the opportunity, if someone says you did not treat him because of "X," at least they can call in the person who originally hit them and said, “I brought the animal in and the dog was doing whatever.”  I think that person should be able to at least say, “This is how I witnessed it.” 

 

Chairman Goldwater:

Clarification by Mr. Hughey?

 

Vance Hughey:

When I spoke with Ms. Machen about this provision, she had referenced, on page 7, lines 18 through 20, the thought that this was germane to this discussion, that an actual injury isn't necessarily something physical, a bruise or something like that, that under this definition – abuse or mistreatment – and that might not be witnessed by the doctor or the veterinarian.  I just wanted to point that section out to the Committee.

 

Chairman Goldwater:

Thoughts?  Further discussion?

 

THE MOTION CARRIED.  (Mrs. Gibbons, Mr. Griffin, and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

This bill can be marked for potential consent calendar.  We will close the hearing on S.B. 427.  We will open the hearing on S.B. 428.

 

Senate Bill 428 (1st Reprint):  Makes various changes regarding certain state agencies that regulate real estate practices and professions. (BDR 54‑471)

 

Vance Hughey:

S.B. 428 is the omnibus bill that was requested on behalf of the Real Estate Division.  This bill makes changes to various provisions in NRS that apply to the Real Estate Division, the Commission of Appraisers of Real Estate and the Real Estate Commission.  No one testified in opposition to this bill and there were no amendments proposed.

 

Chairman Goldwater:

Thoughts from the Committee? 

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 428.

 

ASSEMBLYMAN BROWN SECONDED THE MOTION.

 

Assemblyman Parks:

I would like to disclose that I am a real estate licensee, but this bill will not affect me any differently than others.

 

THE MOTION CARRIED.  (Mrs. Gibbons, Mr. Griffin, and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 428 .  We will open the hearing on S.B. 429.

 

Senate Bill 429 (1st Reprint):  Makes various changes relating to community antenna television systems and video programming services. (BDR 58‑1072)

 

Diane Thornton:

According to Russell Rowe, representing CC Communications, and Bob Gastonguay, representing Nevada State Cable Telecommunications Association, S.B. 429 will level the playing field by allowing competition between the county-owned telephone company of CC Communications and the private business of Charter Communication.  There was no opposition to this bill and no amendments.

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 429.

 

ASSEMBLYMAN BEERS SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mrs. Gibbons, Mr. Griffin and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 429.  We will open the hearing on S.B. 437.

 

Senate Bill 437:  Makes various changes relating to contractors and projects involving residential pools and spas. (BDR 52-1288)

 

Vance Hughey:

S.B. 437 relates to residential pool and spa contractors.  Senator Hardy had explained that this bill closes a couple of loopholes created by prior legislation.  First, the bill provides that a pool contractor can own publicly traded stocks and other securities issued by residential pool contracting companies.  Second, the bill prohibits a person from serving as a pool consultant unless that person is properly licensed by the State Contractors Board.  No one testified in opposition to the bill and no amendments have been proposed.

 

Chairman Goldwater:

Thoughts from the Committee?

 

ASSEMBLYWOMAN BUCKLEY MOVED TO DO PASS S.B. 437.

 

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mrs. Gibbons, Mr. Griffin, and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 437.  We will open the hearing on S.B. 445.

 

Senate Bill 445:  Revises provisions governing grants of money from Fund for the Promotion of Tourism by Committee for the Development of Projects Relating to Tourism. (BDR 18-510)

 

Vance Hughey:

S.B. 445 was scheduled for a hearing in this Committee on April 21, 2003, but no one was present to testify on the measure.  The bill eliminates the $200,000 per biennium spending limit on the amount of revenue from taxes on the gross receipts from the rental of transient lodging that may be made available to the Committee for the Development of Projects Relating to Tourism.  The measure also eliminates the requirement that the Interim Finance Committee approve the transfer of money from the Fund for the Promotion of Tourism to the state General Fund.

 

Mr. Chairman, if you would like, I can give a little bit more information on what transpired in the Senate.

 

Chairman Goldwater:

What transpired in the Senate?

 

Vance Hughey:

In the testimony before the Senate Committee on Government Affairs, representatives of the Commission on Tourism referred to this measure as being housekeeping in nature.  They explained that the funding of the Committee for the Development of Projects Relating to Tourism falls under the State Budget Act and is therefore subject to legislative authorization.  Because the funding mechanism for the Committee is subject to the approval of the legislature during each legislative session, they suggested that there is no need for the existing spending limit or the requirement that the Interim Finance Committee approve money transfers.

 

Chairman Goldwater:

Is there anybody here from Tourism? 

 

ASSEMBLYWOMAN BUCKLEY MOVED TO INDEFINITELY POSTPONE S.B. 445.

 

ASSEMBLYWOMAN GIUNCHIGLIANI SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mrs. Gibbons, Mr. Griffin, and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 445.  We will open the hearing on S.B. 332.

 

Senate Bill 332 (2nd Reprint):  Revises qualifications of State Health Officer, clarifies restrictions on use of “M.D.” title and makes various changes relating to licensure of physicians. (BDR 40-1036)

 

Vance Hughey:

S.B. 332 revises qualifications of the State Health Officer and makes various changes relating to licensure of physicians.  Keith Lee, representing the Board of Medical Examiners proposed an amendment which is included as tab G in your work session document (Exhibit C).  The proposal would add provisions to Chapter 630 of NRS to allow the Governor to declare a state of critical medical need for a particular medical specialty in one or more geographical areas of the state.  Such a declaration would allow the Board to waive the education and training requirements of paragraph (d), subsection 2 of NRS 630.160 under certain circumstances. 

 

Chairman Goldwater:

Discussion?  Motion, Ms. Leslie?

 

ASSEMBLYWOMAN LESLIE MOVED TO AMEND AND DO PASS S.B. 332.

 

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mrs. Gibbons and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

We will close the hearing on S.B. 332.  We will open the hearing of S.B. 491.

 

Senate Bill 491 (1st Reprint):  Makes various changes regarding bidding on contracts for public works of this state. (BDR 28-487)

Vance Hughey:

S.B. 491 was introduced at the request of the State Public Works Board and makes various changes regarding bidding on contracts for public works.  During the hearing on this bill there were two major concerns raised.  First, Renny Ashleman, representing the Public Works Board proposed amending subsection 6 of Section 6, on page 6 and paragraph (f) of subsection 2 of Section 7 on page 6 to make it expressly clear that these provisions relating to procedures for awarding contracts to design- build teams do not apply to local governments.  Committee counsel has suggested some wording that could be adopted to accommodate this proposed amendment and that wording is shown on page 9 of your work session document (Exhibit C).  Counsel has indicated that a similar change could be made to Section 7, subsection 2(f), of the bill as well.

 

The second concern was raised by Jeanette Belz, representing the Nevada Chapter of the Associated General Contractors.  She objected to the disqualification process provisions in Section 1 of the bill and, I believe, also in Section 5.  Renny Ashleman, representing the State Public Works Board, and Steve Holloway, representing the Associated General Contractors, submitted a proposed amendment to address the concerns expressed by Ms. Belz.  Their proposed amendment is included in your work session document as well, and that change appears on page 10 of your work session document.  Essentially, that change would rewrite subsection 3 to say "upon receipt of verifiable information of a type described in subsection 2, the State Public Works Board shall determine if the information, if true, would be likely to disqualify the subcontractor.  If so, the subcontractor must complete an application for qualification as promulgated by the Board.  The Board will then determine whether the subcontractor is qualified."  There is some additional language in there that remains unchanged. 

 

A new subsection is added as well that provides that "Any bid submitted with a subcontractor who has qualified at the time the bid was submitted shall stand.  Any bid submitted when the subcontractor was disqualified shall stand if the contractor obtains a substitute contractor at his cost." 

 

Assemblyman Brown:

I made my opinions known regarding some of the prequalifications/ disqualifications statutes that we have.  Some of them are being generated in other bills this session.  This is a good bill, but I don't much care for the disqualification portion.  I think the rest of it is important and needs to proceed.  Some of my concerns go much further than the provisions of this particular bill and I think I voiced that opinion last time.  I know that we have a lengthy list of qualification criteria in A.B. 295, and that goes to local governments.  This has a slightly different list and it would turn it over to "regs" for the Public Works Board for the state.  I think, at some point, we need to look at all those and try to get something unified and consistent.  I am willing to work on that during the interim period.  These people may be able to satisfy this Committee's concerns.

 

Chairman Goldwater:

I tend to agree and I think the people of the state would benefit from your expertise and work on this issue.  This is an area where I think our public works process needs a drastic overhaul by someone who knows what they are doing and has the time to do it, which is probably you, Mr. Brown.

 

Assemblyman Brown:

I am not insinuating that I am at all as qualified as these gentlemen.  I have had a little bit of experience, probably just enough to be dangerous!  But I am happy to listen to their presentation.

 

Chairman Goldwater:

Do you want to talk about your proposed amendments or your attempt to assuage Ms. Belz's concerns?

 

Renny Ashleman, Legislative Advocate, State Public Works Board:

The first set of amendments I don't think have any controversy whatever.  The second attempts to make the process, by which we would go about asking a person who had been pointed out to us as someone who might be susceptible to being disqualified, more clear.  The problem that you have here is that there are so many subcontractors that the process of prequalifying, as we do with the general [contractors], would be extremely burdensome to the Board.  We had one of our deputy general managers spend two months just qualifying general contractors and we still have to qualify about ten generals, on average, per month. 

 

We do not have the ability to do prequalifications of all the subcontractors which, I understand, would satisfy many of the concerns that Ms. Belz had.  I don’t want to speak for her, but that would be one approach.  The process that we use, I think, is one that does give quite a bit of due process to the people.  Now, when we have contractors that apply, there are people that bring to our attention that they think they should not be qualified, and when that happens, we notify them of what we have received in the way of information.  We do not accept excerpts from other boards or other testimony.  We go to the original source and ask for a complete copy of the record.  We ask for anybody that has been accused to comment on it, so that we have somewhere to go with that. 

 

The fact is that there is a need to try to do something to make sure we have quality contracts, and there is a need to go forward in this fashion.  This is probably the best we can do with it in the time we have had.  We are certainly willing to work hard on regulations and to work in the interim to see if we can do more to satisfy everyone's concerns.  For now, this is about as well as we could do and the rest of the bill is important, some part of this process needs to be done and we would like to have you go forward with it.  With that, I will allow the others to make comments or I'll answer any questions, as the Chair would please.

 

Steve Holloway, Legislative Advocate, Associated General Contractor:

We look upon this as an experiment with the state Public Works Board.  The contract with a subcontractor is not between the state Public Works Board and the subcontractor, it is between the general and the subcontractor.  But, the contracting community would like to at least be able to more quickly, ably and fairly disqualify subcontractors who can't do the job.  There are only limited measures in the law now to do that and the general contractor is generally stuck with the bid of the lowest bidding contractor, no matter how good that contractor is on a public works job.  We will certainly work with Mr. Brown during the interim and with the state Public Works Board and come back with whatever refinements are needed in this experiment in the next session.  But, we would like to see it tried and we would like the opportunity to then refine it if necessary.  Thank you.

 

Jeanette Belz, Legislative Advocate, Associated General Contractors, Nevada Chapter:

It is always difficult to sit at the other end of a table from our colleagues from the south and have a slightly different opinion.  But, that having been said, I'd also like to add that we don't have any objections with the remainder portions of the bill, but we still do have objections with the qualification/disqualification process.  We don't think it is quite well enough articulated, and we would be happy to work in the interim on doing that. 

 

Chairman Goldwater:

So, you would like to see the bill passed and continue to work in the interim? 

 

Jeanette Belz:

I'd like to see the bill passed without the provisions regarding the disqualification process.  The rest of the bill we have no objection to.  We would be happy to work in the interim.  We still think that this is rough and still believe that we are trying to apply a qualification process to a disqualification process.  It makes it a little bit cumbersome. 

 

Assemblyman Brown:

Just one question.  I believe there are some regulations presently that the Public Works Board has for that purpose with the general contractors.  Is that correct?  Do you anticipate the same regulations will be in place for the subcontractors? 

 

Renny Ashleman:

We do have such regulations and we do anticipate using the same regulations, generally.  The only difference would be that we talk about financial classifications that would vary with the subcontractors as opposed to the generals and the degree and depth of experience would change because of the nature of the subcontractor, but the approach would be the same.  The other criteria, as to honesty and fairness, and so on, would remain identical. 

 

Assemblyman Brown:

And that's all the weighting factors?

 

Renny Ashleman:

Correct.  It would be a weighting factor to try to take as much arbitrariness out of it as you can, and we intend to work further on that.

 

Assemblywoman Buckley:

At the risk of making no one happy, what if I move to Amend and Do Pass and we would not include the concern of Ms. Belz, but move with the rest of the bill and then it would allow you another week to figure it out and if the Senate doesn't concur, we could put it in the final bill, if you could work on it.  Do you think that would yield anything productive?  Ms. Belz?

 

Jeanette Belz:

It is not that we don't want to work on it, but just let me give you an example of where I think it is still rough.  I am not sure how that is workable in a week's time period.  Presently, a contractor has to fill out an application and the criteria are put through a process whereby they are weighted, and there are very few characteristics on that application that would actually disqualify a contractor, like a bankruptcy or something else.  Applying that theory to this, we talk about in the amendment on page 2, under subsection 3, determining if the information, if true, would likely disqualify the subcontractor.  So, basically, if there is no information, you are presumed qualified, some information comes in, and now the Board is going to have to make a determination whether that information is enough to disqualify you.  Well, if it were the qualification process, there are many items that would not disqualify you, they would just be put into a weighting scheme overall, to determine if you are qualified or not.  We are asking that certain information be submitted that might, somehow, disqualify you based on a determination by the Board.  After that is determined, you would have to fill in the whole form and then you would be determined to be disqualified.  It is turning a qualification process inside out and it is just rough. 

 

Assemblywoman Buckley:

Okay, I withdraw my useless suggestion. 

 

Assemblyman Brown:

I am not sure I read that identically.  I think what it is saying is, if there is cause for concern, we are going to ask you to fill it out.  That, I don't have a problem with.  If we are going to have something, I would prefer the presumption that you are qualified and in an instance where there is some kind of probable cause that arises, then we are going to ask you to go through the process.  That is better than a mandatory screening, up front, of everyone.  That is how I read that. 

 

Assemblywoman Giunchigliani:

In re-reading Section 45, I don't understand.  Remedy or penalty that the Administrator may do, is a fine up to $5,000.  Oh, I turned pages, I apologize.  Never mind.

 

Chairman Goldwater:

I have no idea what to do.

 

Renny Ashleman:

Mr. Chairman, let me point out one other thing.  Currently, we have various kinds of powers to disqualify contractors.  What this really does is codify them and give them a lot more certainty and advance notice of what will and will not disqualify them than otherwise exist.  It is somewhat of a cumbersome mechanism, but that is necessitated by the fact that we simply do not have the manpower, the time, or the ability to qualify everybody.  In our hearings there were a great many people that testified, strongly, that they wanted us to undertake this kind of action.  We had a full set of hearings on these.  We had hearings on these regulations, which Ms. Belz fully participated in and, in fact, made many very useful suggestions.  I have held a number of meetings with Ms. Belz, with Mr. Brown, and with others to try to further refine this and I would simply again ask that you give us the opportunity to try this for awhile and see if it works.  If it doesn't work out, we will be the first ones to be back here to change it. 

 

The Public Works Board is always being asked to make sure that the public works in this state are being conducted better.  We think this is an important tool for trying to save the state money by making sure we get highly qualified contractors.  To allow substandard contractors to be parts of bids is an injustice to those generals that do not want to use those kinds of individuals.  We think this is the best tool for making a level playing field for the quality contractors.  Once again, I would ask you to adopt these amendments and pass the bill and give us an opportunity to try it.  Thank you.

 

Assemblyman Beers:

Mr. Chairman, would you recognize a motion?

 

Chairman Goldwater:

Before I recognize that motion, I'll go to Mr. Brown.  What should we do, Dave?

 

Assemblyman Brown:

Honestly, I think some of my concerns reach deep into some of the statutes.  This process, for me, is not unacceptable.  It is what underlies that.  I am not opposed to this process.  What I would want to work on during the interim is what underlies this.  That might be ambitious, but this [bill] in and of itself is not a bad thing and I don't think it is too vague and ambiguous to apply.  I don't want to hold it up.  I think we can move forward with the bill.  It doesn't have to come out, in my opinion.  Again, my problems lie with other sections of [NRS] 338 and how things work with the Labor Commissioner.  I know we have a north-south division here, I guess it happens.  The provisions are not a problem to me.  I am willing to see the bill go through with amend and do pass.

 

Chairman Goldwater:

What was the motion, Dave? 

 

Assemblyman Brown:

The one and the two. 

 

ASSEMBLYMAN BROWN MOVED TO AMEND AND DO PASS S.B. 491.

 

ASSEMBLYMAN BEERS SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Arberry, Mrs. Gibbons, and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

There has been an e-mail communication that what we did regarding worker's compensation for legislators is existing law.  Mr. Hettrick, please.

Assemblyman Hettrick:

Mr. Fry was in the audience while we were doing this and initially didn't think, given the discussion, that he was going to need to talk to us.  I never saw him indicate that he wished to speak, but he e-mailed me and I will read you what he said:  "There seems there needs to be some clarification before the bill gets to the Floor, let me try to help as your employer under worker's compensation.  Currently, you are covered for your entire term of office, whether you are in session or not.  That is why the law provides for a deemed wage when you are not in paid status.  My interpretation – “which is the one that counts, since he is the head of the department” – is that as long as you are acting in the scope of your office, you are covered.  As far as compensation goes, it is at the deemed wage of $2,000 per month, but if you couldn't do your other job (in other words if you hurt yourself on this job and couldn't do your other job either), it could go as high as the maximum of $42,000 per year for disability purposes.  As far as your scope of employment, I will give you two examples:  If you are speaking at a conference as a legislator, not as a teacher or an investment counselor, you would be covered.  However, if you were debating during the campaign season and were injured, you would not." 

 

Therefore, it looks to me like what we ought to do, and I would suggest with the Chairman's permission, that we go back, reopen S.B. 193, amend out the part about legislators and leave the part about teachers and move on.

 

ASSEMBLYMAN HETTRICK MOVED TO RECONSIDER S.B. 193.

 

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mrs. Gibbons, Ms. Giunchigliani, and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

Okay, the amend and do pass amendment has been made deleting all the provisions regarding legislators and leaving only the part addressing issues for teachers.

 

ASSEMBLYWOMAN BUCKLEY MOVED TO AMEND AND DO PASS S.B. 193.

 

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Arberry, Mrs. Gibbons, Ms. Giunchigliani, and Mr. Oceguera were absent for the vote.)

 

 

Chairman Goldwater:

Is there anybody in the audience who has a bill in our Committee that did not get addressed that I missed?  Is there anybody on the Committee who has identified a bill that they wanted to be processed from this Committee that was not processed? 

 

There are 12 bills we have identified as potential consent calendar bills.  I'll look to the Speaker to see if that is enough bills to make it worthwhile.  I will accept a motion to place those I have identified as consent calendar bills on the consent calendar.

 

ASSEMBLYMAN KNECHT MOVED TO PLACE ON THE CONSENT CALENDAR S.B. 7, S.B. 8, S.B. 83, S.B. 248, S.B. 281, S.B. 283, S.B. 323, S.B. 422, S.B. 427, S.B. 428, S.B. 429, AND S.B. 437.

 

ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mr. Arberry, Mrs. Gibbons, Ms. Giunchigliani, and Mr. Oceguera were absent for the vote.)

 

Chairman Goldwater:

Thank you for your hard work, Committee.  [The meeting was adjourned at 4:02 p.m.]

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Patricia Blackburn

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblyman David Goldwater, Chairman

 

 

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