MINUTES OF THE
SENATE Committee on Commerce and Labor
Seventy-second Session
April 7, 2003
The Senate Committee on Commerce and Labor was called to order by Chairman Randolph J. Townsend, at 7:00 a.m., on Monday, April 7, 2003, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4412, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Randolph J. Townsend, Chairman
Senator Warren B. Hardy II, Vice Chairman
Senator Ann O'Connell
Senator Raymond C. Shaffer
Senator Joseph Neal
Senator Michael Schneider
Senator Maggie Carlton
GUEST LEGISLATORS PRESENT:
Senator Sandra J. Tiffany, Clark County Senatorial District No. 5
Senator Alice Costandina (Dina) Titus, Clark County Senatorial District No. 7
STAFF MEMBERS PRESENT:
Kevin Powers, Committee Counsel
Scott Young, Committee Policy Analyst
Courtney Wise, Committee Policy Analyst
Johanna Downey, Committee Secretary
OTHERS PRESENT:
Berkley T. Martin, Director, Nevada School of Massage Therapy
Deborah Lee Turner, Government Affairs Representative, Nevada School of Massage Therapy
Patricia A. Patton, Licensed Massage Therapist, Reno Massage Board
Dan Musgrove, Lobbyist, Clark County
Pat Coward, Lobbyist, Nevada Association of Realtors/Reno
Cassandra G. Jones, Personal Secretary to Senator Tiffany
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police, and Nevada Sheriff’s and Chief’s Association/South
Margaret G. Flint, Lobbyist, Nevada Brothel Owners Association
Mary Soscia, Licensed Massage Therapist
Amber Minola, Licensed Massage Therapist
John C. Tresise, Massage Practitioner
Robert A. Ostrovsky, Lobbyist, Employers Insurance Company of Nevada
Ann W. Nelson, Executive Vice President, Employers Insurance Company of Nevada
Barbara J. Gruenewald, Lobbyist, Nevada Trial Lawyers Association
Danny L. Thompson, Lobbyist, Nevada American Federation of Labor-Congress of Industrial Organizations
Paul H. Aakervik, Lobbyist, Public Agency Compensation Trust
George Campbell, Deputy Attorney General, Office of the Attorney General
Robert Sack, Division Director, Washoe County District Health Department
Birgit K. Baker, Administrator, Employment Security Division, Department of Employment, Training and Rehabilitation
Tom Wood, Lobbyist, Pharmaceutical Research and Manufacturers of America
Chairman Townsend:
I will open the hearing on Senate Bill (S.B.) 338.
SENATE BILL 338: Provides for licensing and regulation of massage therapists. (BDR 54-1104)
Senator Sandra J. Tiffany, Clark County Senatorial District No. 5:
I am here regarding the massage therapy bill. I got involved with this bill when Deborah Lee Turner, Government Affairs Representative, Nevada School of Massage Therapy, asked if I would introduce a bill to create a state licensing board for massage therapists. I know it had been presented in the past. We were able to come to a consensus on many amendments, including Clark County, physical therapists, and a few individual massage therapists. Therefore, the bill before you is not the bill we would really like to have you review. There are multiple amendments to S.B. 338, and copies of the proposed amendments are included in my handouts for review (Exhibit C. Original is on file in the Research Library.). A lot of effort has gone into this. I took the budget over to the Fiscal Division and asked them to rework it (Exhibit D). We also had fiscal look at multiple boards to see what the traditional fees and types of fees would be.
Berkley T. Martin, Director, Nevada School of Massage Therapy:
I am a retired chiropractor as well as campus director of the Nevada School of Massage Therapy in Las Vegas. I have been asked to give a short rundown on S.B. 338, which provides for the licensing and regulation of massage therapists (Exhibit E). I would like to give a short review of the proposed amended legislation and then present an estimated budget. Massage therapy is the most rapidly growing health care profession in the United States. There are approximately 2000 massage therapists in the state of Nevada, with at least nine city and county governments regulating the education and licensure standards of these therapists. With such diverse and numerous standards in place, it is difficult for a patron or client to know the training or education level of a therapist, or whether he or she has had any training at all. An independently licensed therapist in Clark County must hold as many as five different licenses to practice in more than one location in the county. Obviously, there is a real need for statewide licensure.
Senate Bill 338 will create a board to regulate the practice of massage therapy on a statewide basis to help end the confusion for consumers and therapists, alike, by setting one standard for both the level of education and for licensure. This board would have the authority to review and evaluate the applicants seeking licensure to practice massage therapy. This would fall into three categories: new licensees, current licensees, and out-of-state therapists seeking licensure within Nevada. The board would be responsible for determining the qualifications of these potential licensees based on requirements for education and practice proposed within this legislation.
Under S.B. 338, new licensees would be required to have successfully completed 500 hours of instruction in an approved program of massage therapy. They must pass a written examination administered by a national testing agency, the National Certification Board for Therapeutic Massage and Bodywork. Legislative language was initially omitted when this bill was introduced concerning current licensees. This involved grandfathering in licensed therapists currently working in various municipalities and counties. This language has been corrected by a technical amendment reviewed by Senator Tiffany. Senate Bill 338 would grandfather in those therapists from other states who have been practicing for at least 5 consecutive years, and who meet the same educational and examination requirements new licensees must meet. The board will also have the authority to set fees for all licensure categories.
Nevada Revised Statutes (NRS) contain specific language regarding responsibilities for moral conduct of massage therapists. Several Nevada municipalities, as well as county governments, have codes that revoke the license of a massage therapist for felony convictions as well as sexual offenses. These standards will continue to be upheld by inclusion of similar language in S.B. 338. The board will have the responsibility to initiate disciplinary actions under the following circumstances: When a licensee violates licensure standards, if a licensee provides false or misleading information, or if a licensee is convicted of a felony, a sexual offense, or a crime relating to a controlled substance. I have submitted written testimony for a proposed budget (Exhibit D). I will now read from prepared testimony regarding proposed amendments to S.B. 338 (Exhibit F).
Senator O’Connell:
In your application for license, under section 25, on page 3 of your “List of Proposed Amendments to S.B. 338” (Exhibit F), are the headings mixed up? Should it be “Not Less Than $42.00” and “Not More Than $126.00”?
Mr. Martin:
Yes, it appears they have been transposed. Thank you for pointing that out. I will continue to read from the prepared amendments (Exhibit F), section 7.
Senator Carlton:
What type of dollars are we talking about? Earlier you said nine different cities and counties already regulate this. You are trying to regulate this on a statewide level so it is equal for everyone, and then we have this business license. I have looked at your budget and the analysis on the dollars you have for licensure. I would like to know if you have an idea of how much it would cost yearly to do business in this state when all the fees, including the business license, are added together.
Mr. Martin:
We do not know, for example, what Clark County would charge for a business license. I am sure it would be in line with other professions, such as chiropractic.
Senator Carlton:
Are they not charging for a business license now?
Deborah Lee Turner, Government Affairs Representative, Nevada School of Massage Therapy:
Clark County does charge.
Senator Carlton:
Clark County is charging?
Mr. Martin:
Yes, but the business license fee is separate from licensure fees.
Senator Carlton:
I understand, and what I am trying to get at is I see one set of numbers before me. I am just curious what the business license fee is so I can get an idea of what the impact would be.
Ms. Turner:
This board would not have responsibility for business fees, so that question is difficult to answer. What we can tell you is right now therapists, for example, in southern Nevada could pay anywhere from $300 to $500, or more, if they are going to be licensed in different municipalities in Clark County that license therapists. That is inclusive of a business license and their professional license.
Chairman Townsend:
If you are licensed to practice chiropractic in this state, and you are inside the city of Las Vegas, do you have a city license, a business license, and a Clark County business license?
Mr. Martin:
No, chiropractic is regulated by the state, so you would have a state license to practice chiropractic. Then you would have a business license.
Chairman Townsend:
Are they overlapping? Putting aside the professional practice, that is not what we are worried about. We are now talking about the business license. If you practice inside the city of Las Vegas and you get a city of Las Vegas business license, do you have to get one for the county also, or does that only occur if you are in the unincorporated areas of Clark County?
Mr. Martin:
No. For chiropractic you would have to have a Clark County business license, and if you are in the city of Las Vegas, you would need a city of Las Vegas business license.
Chairman Townsend:
Yes, but since the jurisdictions overlap, what I am asking is do they get to you twice?
Mr. Martin:
Yes.
Patricia A. Patton, Licensed Massage Therapist, Reno Massage Board:
In Reno a business license is $69. If you are doing out-call, and you want to go into Sparks, it is another business license, and Washoe County is a third. A state business license would be a fourth.
Chairman Townsend:
If you are inside the city of Reno, and you have a city of Reno business license, do you also have to buy a Washoe County business license?
Ms. Patton:
No, only if you are going outside the city of Reno.
Senator Carlton:
I just want to clarify that I understand there are regulatory boards out there in each of these entities that regulate this profession now. This newly established board will supercede those other boards and they will go away, and you will have one state board to handle this.
Mr. Martin:
That is correct.
Senator Carlton:
How do the independent regulatory boards in the municipalities feel about this piece of legislation?
Mr. Martin:
As far as Clark County is concerned, especially, they have had quite a bit of input, but they are supportive.
Senator Carlton:
Is the county the board, or is there an independent board?
Mr. Martin:
No, there is not an independent board. It is regulated under the municipal scheme.
Chairman Townsend:
In the city of Reno, apparently, there is a licensed massage therapist board, is that correct?
Ms. Patton:
Yes, there is. We support state licensure. We do have problems with S.B. 338. We did not hear anything about this until last Friday, so we have not had a lot of time to examine it.
Dan Musgrove, Lobbyist, Clark County:
Depending where you want to locate your massage therapy business, if it is unincorporated Clark County, then you would have a Clark County business license. If you were within the jurisdiction of the city of Las Vegas, you would go only to the city of Las Vegas.
Senator O’Connell:
Would you not also have to have one in Henderson or in North Las Vegas?
Mr. Musgrove:
It would depend upon where your business is actually located. If you have multiple locations, you would need a license for each jurisdiction.
Senator O’Connell:
Plus you would need one for the county.
Mr. Musgrove:
No. If you are within the jurisdiction of a city, then you would not need a county business license, because we only enforce those areas that are unincorporated Clark County. Each of the jurisdictions has control over its own jurisdiction.
Senator Hardy:
What if you are traveling into the county jurisdiction, for example, as a traveling therapist?
Mr. Musgrove:
That is what I am saying. If you are going to practice your skill in unincorporated Clark County, then you need a Clark County business license.
Mr. Martin:
I will continue to read from the prepared amendments (Exhibit F), section 10.
Chairman Townsend:
Can we go back to section 10 of your proposed bill (Exhibit C)? Starting in section 1, it says that the provisions of this chapter do not apply to: (a), (b), then you have (c), (d), then you have (e), and I am confused. At the end of paragraph (e) there is a bracket, which traditionally takes something out. Is it a typographical error? The provisions of this chapter are not going to apply to a person who performs an activity in a licensed brothel?
Mr. Martin:
Yes, it is an error. The chapter does not apply to brothel workers.
Chairman Townsend:
What was section 9 and is now section 11, subsection 3, says, “… a person recommended to him by any person or …” and the rest is lined out. Is this another typographical error? Should there be a period after person?
Ms. Turner:
Yes, it should be “person.”
Mr. Martin:
In section 14, add “… that the Board sees fit …” to give the board the flexibility to impose or not impose continuing education requirements upon licensees, if it chooses.
Senator Carlton:
If we are putting a line in for continuing education with fees, does that not need to come back to us before they would do something like that? Is it not typical with something like this that we would have a built-in component for continuing education?
Courtney Wise, Committee Policy Analyst:
Generally they are built into the actual statute.
Chairman Townsend:
Most of the boards have caps set on fees, and the board sets the fee, just like they do in chiropractic. If there is suddenly a rash of lawsuits, for example, and they need to build up a larger fund, we give you flexibility inside that cap, but we do not let you pick something and then set a fee for it. There is always a cap in a category for every board structure we have.
Senator O’Connell:
You will find that on page 3 of the List of Proposed Amendments (Exhibit F). The headings have been transposed, but other than that there is the fee structure.
Senator Carlton:
There is no fee structure for continuing education.
Chairman Townsend:
There needs to be another line.
Ms. Turner:
The board would not be responsible for conducting the continuing education, and therefore, they would not need to require a fee for it. That would be done by outside entities. All they are requiring is that you have continuing education.
Ms. Wise:
I believe the issue is not that you will be charging people for continuing education. A lot of times boards have a fee for approval of continuing education programs, and by that, it is meant you would review the curriculum for continuing education and, generally, the boards might charge a fee of the group offering continuing education to Nevada massage therapists. So you would be charging them a fee to approve that curriculum. I believe what Senator Carlton was saying was you would have oversight of the curriculum for continuing education, generally, that is noted by the fee.
Chairman Townsend:
Mr. Coward is here representing the Realtors, and they have a substantial amount of the areas we are covering. Is it not true the licensing entity for real estate has to approve any continuing education?
Pat Coward, Lobbyist, Nevada Association of Realtors/Reno:
That is true.
Chairman Townsend:
That is the point we are trying to make. Licensing boards always review continuing education because it is usually provided by outside vendors.
Ms. Turner:
We will work with Ms. Wise to make sure that language is correct.
Mr. Martin:
Moving to section 15, add, “… after July 1, 2004 …” to clarify that board members will not receive per diem or travel expenses until the second year of the board’s operations. We are doing this in an attempt to keep the costs down for the first year.
Chairman Townsend:
I am not sure you can do that, but we will check into it. Once we authorize you, we may have to do that. Mr. Powers, would you find out for us if we can legally not pay the board until the second year?
Kevin Powers, Committee Counsel:
It is permissible. In the bill, as currently drafted, the provision they want to amend is already in the bill. It is in section 42 of the original bill. All we are doing in section 4 is until July 1, 2004, we are prohibiting them from receiving their per diem and travel expenses. We are still paying them a salary. They just are not receiving compensation for the per diem travel.
Chairman Townsend:
Will you be able to get volunteers to serve on the board if they are not getting paid to travel?
Senator Tiffany:
I serve on a lot of boards where I do not get paid. What we thought we would do is eliminate per diem pay for the board members for the first year, because we would like to pay them the second year and forward. Staff members would be paid from the beginning. There will be an executive director and a secretary.
Chairman Townsend:
Mr. Martin, when you refer to the “List of Proposed Amendments,” are they to your new, amended version of S.B. 338?
Mr. Martin:
Yes.
Cassandra G. Jones, Personal Secretary to Senator Tiffany:
The references on the list of proposed amendments are to the original bill.
Mr. Martin:
In section 18, delete “… who is not licensed pursuant to this chapter to practice massage therapy.” Removing this provision ensures other professionals and semi-professionals who are licensed by another board are not subject to discipline by the massage therapy board for the use of massage during the professional’s normal occupation under subsection 2. For example, a physical therapist, using massage techniques to restore mobility to a patient, could not be disciplined by the board of massage therapy for the unlicensed practice of massage therapy. That would hold true for a chiropractor massaging an area as well.
Continuing with section 18, add a new subsection 3 making it a misdemeanor for a person who is not licensed pursuant to this chapter to practice massage therapy. Combined with the changes to subsection 1, this provision allows the attorney general to prosecute the unlicensed practice of massage by someone with no license, a suspended license, or a revoked license, for a misdemeanor.
I will continue to read from the prepared amendment (Exhibit F), section 19.
Senator Carlton:
Mr. Olsen, could you tell me how much it costs to run a background check, including a National Crime Information Center (NCIC) check?
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police, and Nevada Sheriff’s and Chief’s Association/South:
It depends on how extensive a background check one wants, but currently the average rate is $75 and we are going in the hole. Also, the repository is moving to raise their fees $6 per check, which was put on hold. They actually already did on January 1. Law enforcement had a problem with that, so they have decided to hold off for a while. At this point the cost is upward of $81, and most agencies are not even breaking even at that cost. That includes the NCIC check, which, if I remember correctly, includes a $40 fee to the Federal Bureau of Investigation (FBI).
Mr. Martin:
I will continue to read from the prepared amendment (Exhibit F), section 19.
Senator Carlton:
Is the cost of testing built into the application for the licensure?
Mr. Martin:
An independent organization does the testing. Candidates for that test apply to and pay the fee directly to that organization.
Senator Carlton:
I understand the credentialing and proficiency tests. I am speaking about the tests issued on the Nevada state law that most boards give. There is a cost to doing that test to your board because you would need one or two board members there to proctor the test. Is that fee included in the application for licensure?
Ms. Turner:
Yes, we will have to put that back in the bill in the section about the fees.
Mr. Martin:
I will continue to read from the prepared amendment (Exhibit F), sections 20 and 21.
Senator Carlton:
When I have had to get a sheriff’s card or a work card for work, I was able to have my picture taken and fingerprints processed one day and go to work the next day. Why is there a time delay for your profession?
Mr. Martin:
No licenses are issued for massage therapists until the background investigation is completed. This can take 2 or 3 months. There is no temporary licensure in Clark County.
Senator Carlton:
Are we treating different professionals differently?
Mr. Martin:
Yes.
Mr. Olsen:
This is because some professions, such as massage therapy, require a background check from the FBI. Since the tragedy of September 11, 2001, the FBI has been backlogged. They currently take at least 30 to 90 days to process background checks.
Ms. Patton:
In Reno, it typically takes 90 days. This is shorter than it was. We allow applicants to take the test while waiting for their permanent work card. We require massage therapists from other states to have practiced for 5 years before they are licensed in Nevada, yet students directly out of massage therapy school in Nevada are permitted to work while waiting for their licensure. I see an inequity.
Chairman Townsend:
We will come back to that.
Mr. Martin:
Therein lies the problem for graduates of schools of massage therapy in Las Vegas. The City of Las Vegas allows massage therapists to practice once they have passed the national certification test, and they can practice for 90 days once they have applied to take the national certification test. However, Clark County does not issue temporary licenses. This puts a burden on students. It takes a month to get nationally certified and 4 to 6 months after that to get a work card. State licensure would alleviate this.
Senator O'Connell:
Why does Clark County not recognize the national certification if the city does?
Mr. Musgrove:
The City of Las Vegas has chosen not to issue temporary licenses.
Senator O'Connell:
Is this a blanket policy that applies to all professions?
Mr. Musgrove:
I do not have that information. I will find out.
Chairman Townsend:
I can understand not issuing licenses to those who have applied to take the test. If they have taken and passed the test, why would Clark County be different from Las Vegas?
Mr. Olsen:
The Las Vegas Metropolitan Police Department has concerns about temporary work cards because the massage therapy industry has had problems with prostitution. Massage therapists work hard at keeping their industry clean. Unfortunately, some who receive temporary work cards engage in prostitution. It has become a problem with the temporary work cards.
Mr. Musgrove:
Clark County licenses the person who owns the business. Those who work in the business as massage therapists in a licensed business are only required to get work cards and background checks. The more extensive background check and licensing procedure are required for the person who will own the business.
Senator O’Connell:
So the distinction is between individual contractors and business owners?
Mr. Musgrove:
Maybe it is more employee versus owner. I am not sure whether Mr. Martin is going to work for an existing licensed business or trying to do it on his own in the hotels.
Chairman Townsend:
Mr. Martin, you might want to consider having no temporary licenses for the first 1 or 2 years. This would allow the board to find its footing and get established without being inundated by requests for temporary licenses.
Mr. Martin:
I will continue to read from the prepared amendment (Exhibit F), section 23.
Kevin Powers, Committee Counsel:
I would ask that before the work session they reconsider placing this elsewhere in the bill. This section of the bill deals with reinstatement of a license after the agency has received an order of suspension for failure to pay child support. It is a different procedure, and it is required by federal law, U.S. Code chapter 42, section 666. If you want to deal with the reinstatement of a license for other reasons, you need to either create a new section or deal with it in another place in the bill.
Mr. Martin:
I will continue to read from the prepared amendment (Exhibit F), section 24.
Chairman Townsend:
Before we grandfather anyone, it is important that the local jurisdictions are satisfied with what they have done to maintain the quality and integrity of this profession. The bottom line is the public welfare.
Mr. Martin:
I will continue to read from the prepared amendment (Exhibit F), sections 25, 26, and 27.
Senator O’Connell:
You might want to consider including a provision for an inactive license, which allows a person to go on inactive status but retain their license for a period.
Mr. Martin:
We do not currently have such a provision. I will continue to read from the prepared amendment (Exhibit F), sections 27 and 28.
Ms. Turner:
The wording of section 28, subsection 4, paragraph (c), is inaccurate. The intent was to require a written request and consent for breast massage. This is required for patients who have had a mastectomy or other similar types of massage.
Mr. Martin:
I will continue to read from the prepared amendment (Exhibit F), sections 28, 29, and 33. That completes the amendments.
Margaret G. Flint, Lobbyist, Nevada Brothel Owners Association:
We support this bill with the exemptions for legal brothel workers. I have a short statement from my father (Exhibit G). I have not seen the amended copy of the bill, and his testimony refers to section 8 rather than section 10.
Ms. Patton:
Am I correct in thinking you have removed the practical examination from this bill?
Mr. Martin:
To my knowledge, there is no practical examination for licensure in the bill.
Ms. Patton:
Is there a provision to grandfather people who are not nationally certified?
Ms. Turner:
Those who are grandfathered do not have to take those exams. If their license expires, they must start the process from the beginning.
Chairman Townsend:
Do you require the national certification for those seeking licensure in Reno?
Ms. Turner:
No. We waive our written test if the applicant has taken the national test.
Mary Soscia, Licensed Massage Therapist:
In section 9, subsection 2, paragraph (b) of the original bill, I would like to recommend that massage therapy school instructors be ineligible to sit on the licensing board. It would be a conflict of interest for them to critique and certify their own students. I am also concerned about the statement in section 13, subsection 1, that the board can release information. It does not say what type of information is released or to whom.
Chairman Townsend:
All boards are required to provide certain information to the public on request. This information can include disciplinary actions, sanctions, and/or letters of reprimand against a specific licensee.
Ms. Soscia:
Section 15 mentions that the board may employ a secretary and others. Who is to pay for this? Would those employed people from the board be considered state employees?
Chairman Townsend:
The employees would be paid from the licensing fees. Those employees would be considered state employees.
Ms. Soscia:
If a massage therapist advertises special techniques, is there a provision requiring them to be trained or certified in those techniques? This might be covered by regulations from the board.
Ms. Turner:
Specific techniques have not been defined in this bill. We chose to use a broad definition of specialty techniques in this bill. If the board chose to define those specific techniques, it could do so in regulation. Of the 33 states that license massage therapists, approximately half have those specific techniques in regulation.
Senator Hardy:
Could we add something to section 7 that would alleviate your concern in a general way?
Ms. Soscia:
I would like to see a requirement that licensed massage therapists must be specifically trained in the specialty services they provide.
Chairman Townsend:
Your point is extremely well taken. We need something in the language of this bill to give the board authority to oversee this and discipline infractions. This is too complex to put in statute and should be dealt with in regulation.
Ms. Patton:
Many states have regulations covering advertising for massage therapists. If you look at the yellow pages in the phone book, currently it is very difficult to tell an ad for a massage therapist from an ad for one of Ms. Flint’s people. Regulations on advertising could cover this by requiring a massage therapist to have continuing education units for any field for which they advertise services. Also, there is no language in this bill about sanitation and hygiene. This is clearly spelled out in Reno local laws.
Amber Minola, Licensed Massage Therapist:
I have not seen the amendments. I will read from a prepared statement (Exhibit H).
Ms. Turner:
The bill is being amended to include that information. The application fee is $42, and the new license fee is $52.
Ms. Minola:
I would like to mention that the national certification exam fee is $225.
Chairman Townsend:
What does it cost for a massage therapist to renew his or her license in Reno every year?
Ms. Turner:
The fee is $33.
Chairman Townsend:
Are background checks done every time a license is renewed in Reno?
Ms. Turner:
If a therapist has a license, the background check will be waived and the person will be grandfathered. If the person loses the license and needs to be reinstated, a background check will be done.
Ms. Minola:
I also have a question about timing. Under national certification one has to be a graduate to apply for a license. My concern is this delays students from procuring a job because they have to first get their certification. Currently, a person can practice so many hours and start the process. In northern Nevada, we do not have a problem with that.
Ms. Turner:
The bill is written so a person can get a temporary license after 500 hours of training. This is all you need to take the certification exam.
John C. Tresise, Massage Practitioner:
I have submitted a copy of my written testimony for the committee (Exhibit I). I have been asked by Ann Chellman, Legislative Services Coordinator for the Associated Bodywork and Massage Professionals National Organization, to submit her statement into the record (Exhibit J). This organization does not support S.B. 338. She expresses concern that requiring licensees to maintain certification with a private organization violates Nevada’s right-to-work statutes.
Chairman Townsend:
The board will ultimately take that place, I believe. Your comments are pertinent and important. Your participation in this process will be valuable.
Mr. Olsen:
I have further information about the cost of background checks. The State charges $21, the FBI charges $24, and the police department charges $35, for a total of $80. State law sets the limit at $75. Currently, local entities are taking the loss. The state repository wants to raise their fee by $6, and the FBI intends to raise their fee by as much as $20.
Chairman Townsend:
Are you asking for an amendment to raise the state’s limit from $75?
Mr. Olsen:
I think this will be addressed by the Nevada Gaming Commission in another bill.
Chairman Townsend:
I will close the hearing on S.B. 338 and open the work session on S.B. 320.
SENATE BILL 320: Makes various changes to provisions governing industrial insurance. (BDR 53-600)
Chairman Townsend:
The work session document includes a mock-up of the revised bill (Exhibit K. Original is on file in the Research Library.). This revision removes sections 1 through 7 and makes other changes.
Robert A. Ostrovsky, Lobbyist, Employers Insurance Company of Nevada:
Questions had been raised by the Nevada Trial Lawyers Association at our last hearing regarding the appeal process in sections 5 and 6 of the revised bill.
Ann W. Nelson, Executive Vice President, Employers Insurance Company of Nevada:
I have an amendment (Exhibit L). It refers to section 11, but in the mock-up this is now section 5. The original language required a request for hearing to be dismissed. The amendment changes the wording to say a request for hearing must not be granted. This gives the hearing officers and the Department of Administration the ability to communicate with the injured worker and ask for additional information. In addition, section 5, subsection 2, paragraph (c), now reads, “If applicable, a copy of the letter of determination … .“ This allows an injured worker to request a hearing in cases where the grievance is that the insurer has not issued a letter of determination.
Barbara J. Gruenewald, Lobbyist, Nevada Trial Lawyers Association:
We are opposed to this amendment. I have several concerns. First, I have submitted a copy of the regulation Nevada Administrative Code (NAC) 616C.274 (Exhibit M). This regulation is presently enforced and already covers the issue of getting the correct information to request a hearing. Section 2 reads, “… An insurer or third party administrator for an insurer shall provide the following information on each form used to request a hearing.” This is the same information Employers Insurance Company of Nevada (EICON) is trying to pass in the statute. When a determination has been made, the insurer encloses an appeals form with the determination. According to existing law, the information EICON is requesting is supposed to be listed on that appeals form. When the claimant fills out the form and sends it in to appeal, the information is already there for the insurer and the hearings officer. What used to happen was that EICON included the date of the determination letter on the appeals form. This meant even if the claimant did not include the determination letter, the EICON representative could still look it up. Eighty percent of the appeals that come to the hearings office have this form. It is not necessary to have this amendment to NRS 616C.315.
Ms. Nelson:
The insurance company provides a copy of an appeals form with every determination letter. However, the injured worker does not always use those appeals forms, or they use old forms with incorrect determination letters or dates on them. Also, if an injured worker loses his appeals form, the appeals office has blank forms for them to use. Appeals forms are not filled out correctly in all cases. Three of our appeals officers are currently sending out orders to injured workers saying, “Your hearing will not be held unless and until you provide this information. If you do not provide it within 10 days, your hearing will be dismissed.”
Ms. Gruenewald:
Second, the amendment proposed by EICON does not cover appeals when the insurance company fails to make a decision. A “failure to respond” letter is sent by the claimant or his attorney to the insurer saying, “Demand is hereby made upon you to make this decision.” If the insurer does not respond, we can then appeal. This is not covered by this amendment, which merely addresses the letter of determination.
Third, we request the wording be changed to read, “… a request for hearing shall be granted to determine the issues or to determine this information.” The claimant may not know what information he or she needs to present. The hearings officer could explain that information to the claimant at the hearing. If the claimant just gets something in the mail telling them they cannot go forward with their hearing, they may not know what to do.
Mr. Ostrovsky:
We believe we have addressed the issue by adding the phrase “if applicable,” as previously noted. Holding a hearing to determine what the hearing is about creates backlog and adds to the already overburdened litigation process. We think this amendment will make the process easier for the claimant. The appeals division is not following its own guidelines and regulations.
Ms. Gruenewald:
The regulation is being followed 80 percent of the time. I fail to see how this change is necessary. If you accept this amendment, I ask you to delete sections 5 and 6 of the amendment.
Senator Neal:
What if we put the regulation into statute?
Ms. Gruenewald:
That would solve that problem, yes. However, the amendment is in conflict with the regulation. The regulation says the insurer shall provide the information, and the amendment says the claimant must do it or be denied a hearing.
Danny L. Thompson, Lobbyist, Nevada American Federation of Labor-Congress of Industrial Organizations:
I concur with Ms. Gruenewald. I would like to go on record in opposition to section 3 of this amendment. This would change the standard by which an injured worker’s claim is accepted or denied. This standard is unfair to workers with injuries caused by years of strain. The amendment raises the standard to an unfair degree.
Paul H. Aakervik, Lobbyist, Public Agency Compensation Trust:
I do not oppose the bill or the amendment. The bill changes from the 4th edition of the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment to the 5th edition. The changes from one edition to the next are significant. When we changed from the 2nd edition to the 4th edition, the rating physicians who use these guides required 5 days of training to fully understand the changes. Of the cases we did the first year after the change, 25 percent were inaccurate, and 70 percent of those errors were in favor of the employer. The 5th edition is twice the size of the 4th edition, and the 6th edition is in progress. If we are going to change the edition we use, we need to do so very carefully and recognize the problems it will create for injured workers.
Senator Neal:
What would happen if we stayed with the 4th edition?
Mr. Aakervik:
I am not recommending that, nor do I oppose the 5th edition. I do recommend that you find out when the 6th edition is coming out and consider waiting for that, so as to minimize the disruption in our process.
Mr. Ostrovsky:
Changing from the 4th edition to the 5th edition increases benefits to injured workers. Eventually the AMA will withdraw their support of the older edition and force the world to go to the later edition. This is a constantly evolving process. Each is an attempt by the medical community to improve the process. We think this is the right way to go, even though it represents an increase in cost. We included the effective date of January 1, 2004, to include time for training in the new edition. When the 6th edition comes out, we will look at it, then we will come back to the Legislature to start the process again.
Chairman Townsend:
Mr. Thompson, have you addressed this issue?
Mr. Thompson:
No, I did not. The guides offer the latest technology in health care. When we changed from the 2nd edition to the 4th edition, the earlier edition was no longer being published.
SENATOR NEAL MOVED TO REJECT THE AMENDMENT TO S.B. 320.
THE MOTION FAILED FOR LACK OF A SECOND.
*****
SENATOR SCHNEIDER MOVED TO ACCEPT BOTH AMENDMENTS OFFERED BY MR. OSTROVSKY AND AMEND AND DO PASS S.B. 320.
SENATOR HARDY SECONDED THE MOTION.
THE MOTION PASSED. (SENATORS NEAL AND CARLTON VOTED NO.)
*****
Chairman Townsend:
I will close the hearing on S.B. 320 and open the hearing on S.B. 323.
SENATE BILL 323: Revises provisions governing funeral directors, embalmers and operators of cemeteries and crematories. (BDR 54-306)
Chairman Townsend:
There is an amendment to this bill in your work book (Exhibit K) which establishes caps on the fees the board can charge.
SENATOR O’CONNELL MOVED TO AMEND AND DO PASS S.B. 323.
SENATOR HARDY SECONDED THE MOTION.
Senator Shaffer:
“I just want to declare that my wife chairs the state funeral board.”
Senator Carlton:
On the second page of the proposed amendment, the second paragraph says:
… The board’s position is that a self-supporting board necessarily has implied authority to impose the very fees that will directly contribute, by cost recovery, to make the board self-supporting and to do so with an equitable fee schedule that places the cost fairly on those who cause the cost. But rather than debate the issue with the LCB [Legislative Counsel Bureau], in the BDR [Bill Draft Request] the board sought authority broad enough to overcome all of LCB’s objections to the board’s fee regulations, hence the broad language in section 13.
I have concerns about the “implied authority” part of this statement. Is there someone from the board here who can put on the record exactly what they were trying to do?
George Campbell, Deputy Attorney General, Office of the Attorney General:
The concept of “implied authority” is found within the case law and covers inconsequential things such as small fees for duplicates and application forms. It is not a very well-defined concept, and this amendment defines it.
THE MOTION PASSED. (SENATORS NEAL AND CARLTON VOTED NO.)
*****
Chairman Townsend:
I will close the work session on S.B. 323 and open the work session on S.B. 372.
SENATE BILL 372: Revises provisions relating to cosmetology. (BDR 54-886)
Senator Hardy:
“I need to disclose that my wife is a licensed cosmetologist.”
Senator Schneider:
The friendly amendment in the workbook (Exhibit K) is acceptable. I have a question regarding the scope of practice of the health care. Line 15 of the amendment says, “The provider of health care shall not use the leased space to provide such health care at the same time a cosmetologist uses that space to engage in the practice of cosmetology.” I want to be sure the phrase “at the same time” means they cannot use the space together, and that it does not mean one can use it in the morning and the other in the afternoon.
Mr. Powers:
I believe the language on its face conveys that intent. The language that is shown on the colored amendment page is the language that is currently on the bill. Senator Schneider just wanted it clear that the language is currently in the bill conveys that intent.
Ms. Wise:
I need clarification. Section 2 of the proposed amendment seems to address licenses issued to operate a cosmetological establishment. Is the intent of this amendment to include licenses issued to individuals as well?
Chairman Townsend:
Section 2 is a reference to the establishment as opposed to the person.
Mr. Powers:
I discussed this with Lieutenant Olsen and he informed me that the intent of the amendment is that any type of license or certificate issued pursuant to the chapter where cosmetologists are regulated should not have this information on it because the individual licensees, those who actually do the work in the establishment, have to display their license, as well as the establishment owner.
Senator Schneider:
We took out the provision with the county health departments inspecting the establishments. We decided to leave that with the cosmetology board.
Robert Sack, Division Director, Washoe County District Health Department:
I have no issues with that.
SENATOR O’CONNELL MOVED TO AMEND AND DO PASS S.B. 372.
SENATOR SCHNEIDER SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
*****
I will close the work session on S.B. 372 and open the work session on S.B. 422.
SENATE BILL 422: Revises certain provisions relating to operation of service stations by refiners. (BDR 52-1071)
SENATOR HARDY MOVED TO DO PASS S.B. 422.
SENATOR O’CONNELL SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
*****
Chairman Townsend:
I will close the work session on S.B. 422 and open the work session on S.B. 423.
SENATE BILL 423: Makes various changes relating to unemployment compensation benefits. (BDR 53-476)
Birgit K. Baker, Administrator, Employment Security Division, Department of Employment, Training and Rehabilitation:
The bill is correct as presented. This bill addresses the electronic methods of claim filing, provides employer notification, enhances our ability to collect fraudulent benefit overpayments, extends the period from 3 years to 5 years as recommended in the legislative audit of 2001, and expands the utilization of our career enhancement program, which is a program that offers training opportunities currently for unemployed workers. The bill expands that to incumbent workers to allow employers to upgrade the skills of their existing workforce.
Senator Neal:
Did you say the bill allows for the collection of fraudulent benefits and overpayments?
Ms. Baker:
There are two kinds of overpayments. The first kind of overpayment results from the due process that is afforded claimants or from an honest difference of opinion between the employer and the claimant. The second kind of overpayment is a fraudulent one where a claimant has misrepresented the facts. This bill will give us the opportunity to pursue all overpayments for up to 5 years, but our intent is to only aggressively pursue the fraudulent overpayments.
Senator Neal:
Why do you need 5 years when the person has gone through due process and it was the agency that made the overpayment? I can understand it in the case of fraud.
Ms. Baker:
The 5-year time frame was recommended by a legislative auditor. Under current law, if the overpayment is not paid at the end of 3 years, we have to write it off. This allows us to continue to collect for 5 years. We only aggressively pursue fraudulent overpayments. We do not plan to use the 5-year overpayment collection process for overpayments that are not the fault of the claimant.
SENATOR NEAL MOVED TO DO PASS S.B. 423.
SENATOR CARLTON SECONDED THE MOTION.
THE MOTION PASSED. (SENATOR SCHNEIDER WAS ABSENT FOR THE VOTE.)
*****
Chairman Townsend:
I will close the work session on S.B. 423 and open the work session on S.B. 387.
SENATE BILL 387: Revises provisions relating to drugs and prescriptions. (BDR 54-656)
Senator Alice Costandina (Dina) Titus, Clark County Senatorial District No. 7:
Senate Bill 387 is the generic drug bill. The first three sections have to do with the sale of generic drugs, and the last section deals with requirements for pharmaceutical companies to report to the State Board of Pharmacy any gifts and perquisites they give to physicians. The four proposed amendments are included in your work session document (Exhibit K). I accept the amendments from Mary Lau, Lobbyist, regarding electronic transmission of prescriptions, and from John Sande III, Lobbyist, regarding Internet pharmacies. There is also an amendment from Lynn Fulstone, Lobbyist. I have submitted an amendment for section 4 regarding reporting requirements for pharmaceutical companies.
Senator Hardy:
What is done on this at the federal level? How can we help Nevada residents access that information?
Senator Titus:
Laws have been passed at the federal level to make this sort of thing illegal, but currently no reporting is done. A number of states have put reporting requirements in place for this reason.
Tom Wood, Lobbyist, Pharmaceutical Research and Manufacturers of America:
We are neutral on the first three sections of the bill. Senator Titus’s proposed amendment to section 4 is duplicative. I assume the concern is that physicians are prescribing medications for reasons other than science, to further the marketing practices of the pharmaceutical industry.
Senator Hardy:
How is the amendment duplicative?
Mr. Wood:
We feel you are asking the State Board of Pharmacy to do something that it does not need to do. The federal statute covering this is the Federal Health Care Program Anti-Kickback Statute, 42 U.S.C. sections 1320a-7b (Exhibit N). We are also covered by the U.S. Food and Drug Administration in terms of how drugs are marketed and come to market. Draft compliance guidelines from the Office of the Inspector General are currently being finalized (Exhibit O. Original is on file in the Research Library.). I would be happy to share my company’s internal guidelines with you privately, but they are not for the public record. These guidelines are voluntary, but we are now being told we will be prosecuted if we do not follow them. I have an alternate amendment of section 4 (Exhibit P).
Senator Hardy:
So what do the federal guidelines say about a pharmaceutical company taking a doctor out to play golf, for example?
Mr. Wood:
The guidelines say if you use that gift to influence the doctor’s prescribing choices, you can be prosecuted under the Anti-Kickback Statute for the gift.
Senator Titus:
The federal statute makes the gift illegal, but there is nothing in there requiring the gift to be reported. If pharmaceutical companies are not doing anything illegal, this bill will not be burdensome to them.
Senator Hardy:
Are you saying the amendment is not necessary because pharmaceutical companies are unlikely to report illegal acts?
Mr. Wood:
What we are asking is for the committee to consider using the State Board of Pharmacy to aid in the ability to report improprieties to the federal level, where the penalties are much more severe than in this bill.
Senator Titus:
You might consider putting this on the Web sites of the State Board of Pharmacy and the Board of Medical Examiners.
Mr. Wood:
I agree.
Senator Hardy:
Mr. Powers, is it advisable to reference a Web site in the law?
Mr. Powers:
We certainly can require by statute the [State] Board of Pharmacy and the State Board of Medical Examiners to put certain information on their Web site. We don’t necessarily have to specify the exact telephone number. We can direct them to put the appropriate telephone number down there. If the telephone number changes, they can change that telephone number accordingly without a change in the statute.
SENATOR HARDY MOVED TO AMEND AND DO PASS S.B. 387 WITH AMENDMENTS OFFERED BY MS. FULSTONE, MS. LAU, MR. SANDE, AND MR. WOOD.
SENATOR O’CONNELL SECONDED THE MOTION.
Senator Hardy:
This motion is made with the understanding that we will have to revisit this to make sure the federal statute is sufficient to take care of the concerns we have.
Chairman Townsend:
I have no problem with requiring gifts to be reported. Everyone should know why their doctor recommends a specific drug.
Senator Titus:
Legislators have to disclose gifts over $200; I do not see how this is more onerous on pharmacy companies. My amendment removes drug samples from the list of reportable gifts, and that accounts for most of the gifts pharmacy companies give to physicians.
Senator Hardy:
I have confidence the industry can police this internally and follow the federal guidelines. Our role is to trust but verify.
Senator Carlton:
If the industry is to police itself, my concern is how do consumers access the information they need? Mr. Wood has said he has information he will share with us privately but not publicly, and that makes me uneasy. The public does not understand how the industry is policing itself.
Mr. Wood:
I agree. I would like to share the guidelines publicly, but my company’s legal department says we cannot disclose our internal guidelines to other companies.
THE MOTION CARRIED. (SENATOR NEAL WAS ABSENT FOR THE VOTE.)
*****
Chairman Townsend:
There being no further matters, I adjourn this meeting at 10:14 a.m.
RESPECTFULLY SUBMITTED:
Lynn Hendricks,
Committee Secretary
APPROVED BY:
Senator Randolph J. Townsend, Chairman
DATE: