MINUTES OF THE
SENATE Committee on Commerce and Labor
Seventy-second Session
April 11, 2003
The Senate Committee on Commerce and Labor was called to order by Chairman Randolph J. Townsend, at 7:08 a.m., on Friday, April 11, 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 Alice Costandina (Dina) Titus, Clark County Senatorial District No. 7
Senator Sandra J. Tiffany, Clark County Senatorial District No. 5
STAFF MEMBERS PRESENT:
Scott Young, Committee Policy Analyst
Courtney Wise, Committee Policy Analyst
Kevin Powers, Committee Counsel
Johanna Downey, Committee Secretary
Laura Adler, Committee Secretary
OTHERS PRESENT:
Debra Scott, R.N., M.S., A.P.N., Executive Director, Administration, Nursing Practice, Compliance, State Board of Nursing
Fred L. Hillerby, Lobbyist, Nevada State Board of Nursing
Keith L. Lee, Lobbyist, State Board of Medical Examiners
John A. Hunt, Counsel, Board of Dental Examiners of Nevada
Cheryl A. Hug-English, M.D., President, Board of Medical Examiners
Tom R. Skancke, Lobbyist, Nevada Chiropractors Association
Timothy Hay, Chief Deputy Attorney General, Bureau of Consumer Protection, Office of the Attorney General
Marybel Batjer, Chief of Staff, Office of the Governor
Ande Engleman
Scott M. Cragie, Lobbyist, Nevada State Medical Association
James L. Wadhams, Lobbyist, Nevada Mutual Insurance Company, and Nevada Hospital Association
F. Fuller Royal, M.D., H.M.D., Secretary-Treasurer, Board of Homeopathic Medical Examiners
David A. Edwards, M.D., H.M.D., Board of Homeopathic Medical Examiners
Lynn Fulstone, Lobbyist, Physicians Insurance Company of Wisconsin
John R. McGlamery, Deputy Attorney General, Bureau of Consumer Protection, Office of the Attorney General
Margaret A. McMillan, Lobbyist, Sprint Nevada
Chairman Townsend:
We will open the hearing on Senate Bill (S.B.) 364.
SENATE BILL 364: Makes various changes to provisions relating to investigations and proceedings for disciplinary action by regulatory bodies which regulate certain professions, occupations and businesses. (BDR 54‑707)
This is a complimentary bill of Senator O’Connell and Senator Carlton to make the various State boards’ authority more consistent with each other, to provide better regulation of licensures within their scopes of practice, and to fulfill the various State boards’ responsibility to the public first, and to the licensee second.
The Senate Commerce and Labor Committee has a 20-year history of being open to the public. Previously, boards believed they were there to protect the interest of the licensee and should reprimand them in private. Senate Bill 364, S.B. 250, and S.B 310, are the bills dealing with that issue and to put the public first.
SENATE BILL 250: Revises various provisions relating to regulated businesses and professions. (BDR 57-835)
SENATE BILL 310: Makes various changes relating to certain occupational boards and commissions. (BDR 54-223)
Debra Scott, R.N., M.S., A.P.N., Executive Director, Administration, Nursing Practice, Compliance State Board of Nursing:
We concur with everything in the bill except for the alternative program for chemically dependent nurses. I have provided information (Exhibit C) on the program. The program is based on the nurse reporting their chemical dependency and the problems involved with that chemical dependency regarding their practice. The bill would make this program public, and would discourage many nurses from coming forward for monitoring.
Fred L. Hillerby, Lobbyist, Nevada State Board of Nursing:
Section 5, page 2 addresses how the self-reporting program must go public. The nurse who enters this program is self-reporting. The bill would have a serious chilling effect on a nurse to come forward with the problem. More nurses can be treated and returned to practicing nursing if the self-reporting does not become public.
Chairman Townsend:
Are you saying that section 5, subsection 1, would make the issue of substance abuse public, and that would hurt the program?
Mr. Hillerby:
The way to remedy the situation is to add, “except as provided for in Nevada Revised Statutes (NRS) 632.307,” which is that program.
Chairman Townsend:
I want the committee’s input on this because I am very harsh on the issue of substance abuse and keeping it private. If someone decides to create their own problem that might sacrifice their livelihood, that is a choice they make. I know it is not the feeling of most of the world. The goal is to protect the public, not an individual’s livelihood. Mr. Hillerby, your point is a good one and well taken, and needs consideration.
Keith L. Lee, Lobbyist, State Board of Medical Examiners:
We have the same type of diversionary program we believe has been successful in getting physicians into treatment prior to any difficulties arising. We have the same concern for the privacy issue and self-reporting. Other than that issue, we support the bill and the amendments.
Chairman Townsend:
Do any of the boards take action when a person applies for a license, is found to have a background of substance abuse, and is subject to revocation of a license?
Ms. Scott:
The applicant is asked if they are in recovery or are using chemicals in a way that would impact their practice. We do a full assessment of whether or not their use would impact their practice based on our expertise. The decision about licensure would be made based on the evaluation.
Mr. Lee:
One application question for licensure asks if the person has ever abused any chemical substance including alcohol, and had in any way limited their ability to practice medicine with reasonable skill and safety. The diversion program is widely accepted and well known among physicians in Nevada.
Chairman Townsend:
The reason I ask the question is if any pilot is found to be inebriated before flying a commercial plane, the pilot is immediately terminated. The action is guidance regarding inappropriate behavior. I am not telling people what to do in their own lives, but not when practicing on the public under a license.
Senator Hardy:
I appreciate asking the question on the application for licensure, but I think it is a terrible question. I have never met an alcoholic or drug addict who thinks use impairs their ability. A common situation is questioning a drunk’s ability to drive, who insists they are all right to drive. I think that question is wide open and needs to be tightened.
Mr. Lee:
I understand. I previously served on the disciplinary and admissions committees for the State bar association and a similar question was asked. A surprising number of people answered the question in the positive and this leads to further inquiry. Obviously, a false answer would most likely result in denial of a license.
Mr. Hillerby:
There are 5000 licensed nurses in Nevada. Without the privacy of the self‑reporting program, a nurse with a substance abuse problem would not be caught until they hurt a patient.
Chairman Townsend:
That begs the question of what the board is doing to keep an eye out for those with a substance abuse problem.
Mr. Hillerby:
Hospitals are required to report a nurse with a substance abuse problem. But with 5000 nurses spread out around the State, it is a difficult situation to monitor.
Ms. Scott:
Mr. Hillerby, a correction. We have 25,000 licensees. We ask the questions and fingerprint every licensee. We do find out about driving under the influence and charges related to drugs, and the board acts on those charges.
Senator Hardy:
Nursing can be a stressful profession and many lead to problems not there initially. I tend to support the voluntary program, but I would like more tightening of the language.
Mr. Lee:
The effectiveness of the nurses and physicians’ programs is due primarily to peer pressure, and others who see a problem and report it. The Board of Medical Examiners would begin a diversionary process to get that physician into treatment and out of practice without supervision. We have the person sign a contract stating if they do not turn around, then their license is forfeited. It is strictly enforced.
John A. Hunt, Counsel, Board of Dental Examiners of Nevada (BDE):
This bill is good. I agree it should be a public record. I also agree that if someone is impaired and becomes a threat to their patients and to the community, it should be part of the public record. This is the way it is handled by the Board of Dental Examiners of Nevada. If the person is in an impaired program, the board’s policy is not about who is in the program, unless someone crosses the line. The people in charge of the program would prepare an affidavit stating that person poses an immediate threat to themselves and their patients. The board intervenes immediately, and that information becomes public record.
Section 25 allows people to bring complaints to the board with immunity. The immunity gives people the ability to voice concerns that may be irrelevant and frivolous. The existing statute says that until the investigation is completed, the information remains confidential or the board takes no action. Regarding section 25, I would like a clear understanding that if any board finds the complaint that is not meritorious, those documents should not be released to the public. Everyone should have a reasonable expectation of privacy whether a licensee or a citizen. Immediately after filing a complaint, medical records are attached. There needs to be certain safeguards to guarantee a patient’s private medical records do not become public. Another consideration is to make any correspondence between the boards and counsel exempt as privileged communication.
Chairman Townsend:
Since the attorney general is the legal representative of a board, does that mean the attorney-client privilege correspondence comes under another body of law?
Mr. Hunt:
It is presumed. But in order to protect the boards so they can function, it should be clarified in the bill. In my opinion, the way attorneys would read this language is the floodgates are opened. I think the intent is if the board has taken action, then the complaint and the transcript should be public record. I believe the intent of section 25 is not until the investigation is completed and the board takes action. To make it clear, I suggest adding another section to say, “if upon the board taking action.”
Chairman Townsend:
When the BME notices a hearing for disciplinary action, is it done in the licensee’s name? How would someone know by looking at the agenda that the hearing is for a particular licensee?
Mr. Hunt:
It is so stated on the agenda for that date that the board will consider the findings and recommendations of the disciplinary action against that doctor.
Cheryl Hug-English, M.D., President, Board of Medical Examiners:
When we’re having a public meeting and there is an adjudication of a physician that’s going to occur on a complaint, that’s part of the agenda. It goes on the agenda as such. Obviously, until the board makes the determination it would not be public until that decision is made. But it’s noticed in the agenda that that physician is coming before the board for adjudication. The adjudication is public. When the board is making a decision that is done in closed session. But when the vote is taken, it’s public. Once that adjudication is made on that physician, that information would then be sent publicly in our newsletter as far as the sanction.
Chairman Townsend:
Let me understand. Once the debate is concluded and the information goes to the board, does it go for a private decision? If the board turns it down, the only thing the public would know is if the determination is to discipline?
Mr. Hunt:
Anyone appearing before the board is put on the agenda as to the disciplinary action to be considered, and that becomes a public record. If the board finds the person is not guilty of the charges, the underlying documents are sealed in the original complaint.
Chairman Townsend:
Do either of the boards have a process that says the staff comes forth with a recommendation to discipline or dismiss?
Mr. Hunt:
Most boards have different statutory schemes. Some boards hear all the cases. Some boards such as the dental statute in NRS 631 are allowed to assign the disciplinary screening officer, who cannot take action unilaterally. The disciplinary screening officer makes a stipulation with the licensee that it is a public record, or sets it for an informal hearing. The findings and recommendations are submitted to the board for approval or non-approval. If the licensee does not consent to the findings and recommendations, the matter is set for a full board hearing. At every step the licensee is identified to the public.
Senator Carlton:
I appreciate the way the Board of Dental Examiners of Nevada handles complaints. As a shop steward I have represented employees under certain circumstances where the same incident has occurred to several people. But one employee is treated differently from the others. One way to resolve these disciplines is by unilaterally looking at all of them. I am concerned that if I were a dentist and being investigated, and knew that 2 years ago another dentist had been investigated for the same thing, I would want to know why each was disciplined differently.
Mr. Hunt:
This is why the dental board’s actions are a public record. Therefore, if a licensee feels the stipulations or findings presented give that licensee a harsher penalty, they can review the record and question the discipline. I would advise the committee from an administrative, case-law perspective because of the administrative dynamics and constant change, what one board does versus what another board does has legal standing which holds no precedent. That person could appeal to the district court which might take those differences into consideration in determining whether the board or any board acted arbitrarily and capriciously in order to overrule the discipline.
Chairman Townsend:
I believe you assign a board member to oversee an investigation, but then do not rule on the findings? Do the remaining board members rule on the findings?
Dr. Hug-English:
We have a committee of three members of the board who serve on the investigative committee. The investigators rotate out every year, so it’s not always the same board members. The investigative committee is charged with investigating any complaint that comes before the board, no matter how frivolous. It goes to that committee and is thoroughly reviewed by that committee. If it’s felt by that committee that it needs to go to peer review, it is peer reviewed. Then, that committee makes a determination as to whether a complaint should be filed. If it’s determined by the investigative committee that a complaint should be filed on that physician, it then comes to the full board. At that point, either a settlement is made with our board attorney and the physician’s attorney, or it goes to a full hearing. That physician is then adjudicated before the entire board. At that time a decision is made on sanctioning or disciplining. That would be all public record. Whether or not that physician comes before the board on a complaint, if a decision is made that there is no sanction, then that is public. If it’s a decision that the doctor loses his license, or is suspended, or there are any restrictions placed, all of that would be public. But the initial step is taken with the investigative committee, and then the complaint comes forward to the board from there. The investigative committee that initially starts that process then does not vote on the adjudication.
Senator Shaffer:
Mr. Hillerby, why does the board need a private attorney when the attorney general’s office provides an attorney to represent the people?
Mr. Hillerby:
A lot has to do with the volume of disciplinary actions and the expertise of the attorney. Mr. Hunt of the Board of Dental Examiners of Nevada has been doing this for 10 years. Our deputy attorney general said he is glad Mr. Hunt is there to do that work because he does not have the time or the expertise. Additionally, the deputy attorneys general rotate through and do not have the consistency of the board counsel. We do use both counsels.
Senator Shaffer:
But you look at them as flunkies. They are not good enough to represent the people.
Mr. Hillerby:
I do not look at them as flunkies at all.
Senator Shaffer:
It is hard for me to understand, which is why I ask the question.
Senator O'Connell:
My question regards the doctor who had many complaints against him and is no longer a resident of this State. Were all of those actions public? I believe he had 21 actions against him which were brought before the board. Could you share with us information on that?
Dr. Hug-English:
I believe the physician referred to is Dr. D’Ambrosia. There were not 21 cases, but there were a number of cases brought before the board. The timeline is there were no cases brought before the board until late in the process. Many of those cases occurred during that same 2-year biennial period, during which he had renewed his license and then had multiple malpractice cases that were not reported in a timely manner to the board. By the time the board was able to take action, there were many cases. Those incidences did not come to the board’s attention in as timely a manner as we would have hoped. I think the steps taken in the special session now makes it much more where we have a little more teeth in it, if you will, to get reporting from both physicians who are required to report any malpractice claim against them before there is action taken in the courts. We’re also getting it from the courts. Sometimes there was quite a delay in the process. We are hoping, and from what we have seen since October, that’s the case that we are getting far more reports in a more timely manner.
Mr. Lee:
Dr. D’Ambrosia notified the Board of Medical Examiners in January 2001 he was leaving the State and moving to California. He allowed his license to lapse by not renewing it. As of July 1, 2001, he no longer had a license to practice medicine in Nevada. I believe the first alleged act of malpractice committed by Dr. D’Ambrosia was in 1995, when there were no reporting requirements. The only way we found out about the medical malpractice actions was through a report to us from the medical-legal screening panel. The first act of malpractice occurred in late 1994 or early 1995. It did not work its way through the medical screening panel and get to us until 1998. The case was one the medical-legal screening panel was unable to decide under their criteria when malpractice had occurred.
As I understand it, there were six cases brought to the board through the medical-legal screening panel that were before the October 1997 cases. Prior to October 1997, in order to commence a disciplinary proceeding against a physician, there had to be a finding of multiple acts of malpractice. We received seven cases from the medical-legal screening panel prior to the time Dr. D’Ambrosia notified us of a change of address from Nevada to California in January 2001. Of those seven cases the legal screening panel was unable to decide malpractice in four cases, but found malpractice in three of the cases. The three were sent for peer review. The peer review came back with a finding of no malpractice in one case, and a finding of probable malpractice in the other two cases.
In late 2000, a decision was made by that board to wait since we had heard there were more complaints coming. This was after the change in the law, so the board could file on single acts of malpractice. The decision was made to wait. A few months after the decision to wait, Dr. D’Ambrosia left the State. Ultimately the board filed a ten-count complaint against the doctor in February 2002, after a full investigation and peer review. Now we had ten counts of probable disciplinary action based upon malpractice. Six weeks later the doctor tendered his license under investigation. As I reported before, that is a reportable act to the National Practitioner Data Bank, which now reports on all states.
Senator O'Connell:
Is the process now that the doctor is responsible to report it to the board any time a case is filed?
Mr. Lee:
Correct. Under A.B. 1 of the 18th Special Session, adopted in special session, the doctor is required to report. The difficulty in tracking is the courts in both Washoe and Clark Counties where most of these cases are filed, do not track by type of action. There is a general civil cover sheet, but that is not very helpful. Beginning October 1, 2002, we accessed the Clark County Clerk’s Website, and literally went through every case filed since October 1. Whenever a person’s name appeared that we identified as a physician or medical doctor, we wrote down the case number. Because the computer system does not allow access of the files, an investigator was sent to the court. We found around 350 cases filed from October 1, 2002 to March 25, 2003, with a physician’s name. We randomly selected 20 cases for review of the complaints. Of those files selected six were not related to medical malpractice or negligence. What I am illustrating is it is not an easy process to determine if a doctor has complied or failed to comply with the law. We are now working with the clerks of Washoe and Clark Counties to simplify the method, but it will not be easy.
Mr. Hillerby:
I receive copies of the agendas for the Board of Medical Examiners and the State Board of Nursing. These public notices list the names of all the people subject to disciplinary hearings.
Tom R. Skancke, Lobbyist, Nevada Chiropractors Association (NCA):
The NCA board has submitted some housekeeping amendments (Exhibit D) for their sections of the bill. Section 33 of S.B. 364, redefines “unprofessional conduct” under NRS 634.018, and removes the words, “obtaining a fee on.” Removes the provision implying direct mailing of information documents to the public. Responding to an inquiry is not direct mail.
Define solicitation as attempting to acquire new patients from police, hospital, or other third party. Right now a chiropractor cannot respond if they are in a public facility and are asked to participate. That is not a solicitation.
Under NRS 634.090 we would like to add, “or any governmental accrediting agency.” Currently, we comply with the Council on Chiropractic Education. I understand there is litigation currently with the organization, and should that organization cease to exist, the NCA would like to be able to accept another accrediting agency. I believe that has been done with some of the other State boards.
On page 3 of the amendments (Exhibit D) under NRS 634.130, the NCA would like to delete the language dealing with the age exemption of licensees who have reached the age of 70.
Senator Carlton:
The point is that no matter how long someone has been practicing, should they keep getting continuing education?
Mr. Skancke:
That is correct.
Senator Carlton:
Chairman Townsend. At the beginning of the amendments when it goes from definition of unprofessional conduct to the next definition, is that a change in standard?
Mr. Skancke:
I do not believe that is a change in standard.
Chairman Townsend:
I think Senator Carlton’s question is a good one regarding the prohibiting of direct mail, information, or documents to former or current patients.
Senator Carlton:
Unprofessional conduct defined is at the top of the page (Exhibit D) under NRS 634.018. Another definition becomes a paragraph, and then there is a third definition.
Kevin Powers, Committee Counsel:
Senator Carlton, looking at the actual statute, what they have done is taken particular subsections out of this statute, and only showing certain parts of the statute. That is why the amendment is confusing. They are making changes to a particular subsection without showing the entire section.
Chairman Townsend:
We will close the hearing on S.B. 364 and open the hearing on S.B. 421.
SENATE BILL 421: Makes various changes relating to utility service and powers and duties of Consumer’s Advocate of Bureau of Consumer Protection in Office of Attorney General. (BDR 58-442)
Timothy Hay, Chief Deputy Attorney General, Bureau of Consumer Protection, Office of the Attorney General:
Initially, we are recommending the first 19 sections of the bill be deleted by amendment so that the substantive discussion would involve section 20 through section 34. There was a discussion last session about the ability of large customers to leave the regulated utilities as their primary providers of electric resources. We felt then and feel now there should be an option for municipalities to aggregate electrical loads on behalf of their citizens.
Sections 20 through 34 enable cities, counties, and other municipal entities to do that, so the smaller customers who are unable to partake of the provisions that allow 1 megawatt or larger commercial or industrial customers to shop for reasonably priced electricity, can engage in an opt-in aggregation program, so those citizens who benefit would have an equal opportunity and an equitable chance for aggregation of residential and small commercial loads to partake of the ability to provide or procure electricity from alternate providers.
There is a small clean-up to conform a sunset telecommunications statute, which is section 31. Sections 20 through 30 are the aggregation provisions we believe are in the public interest.
Chairman Townsend:
With regard to the repealer section on telecommunications, is that section 31 where is says, “the consumer advocate?”
Mr. Hay:
Yes. In 1997 there was a provision that a telecommunications database be compiled. That process has come to its useful end. The conforming language is to make the statute comprehensible once the expiration of the compilation of the database has sunset on June 30, 2003.
Chairman Townsend:
We will close the hearing on S.B. 421, and open the hearing on S.B. 310.
SENATE BILL 310: Makes various changes relating to certain occupational boards and commissions. (BDR 54-223)
Senator Carlton:
In the workbook (Exhibit E. Original is on file in the Research Library.) there are the amendments discussed in previous hearings on the bill. Under section 5, the State Board of Osteopathic Medicine would add another public member to the board. In treating them equally as done with the Board of Medical Examiners, one of those public members would become the safety-net provider. There is also an amendment proposed by Senator Townsend that is a clean up. It hits the same places I would go, but it does not have what I call the safety-net provider section, with which I have been working to educate and make people comfortable.
Mr. Powers:
“Just to clarify. This amendment would be in addition to the other provisions of your bill. This would not be a substitution of the entire bill. It would just be an addition to the bill.”
Senator Carlton:
It says on line 1(Exhibit E), “Amend the bill as a whole by adding new sections designated section 0.1 through section 0.6, following the enacting clause, to read as follows.” I read it to amend the bill as a whole.
Mr. Powers:
“But, it does not say to delete the existing sections.”
Senator Carlton:
So, this would be in addition?
Mr. Powers:
Correct. What it is is taking Mr. Hillerby’s proposed amendment (Exhibit E) from yesterday, and working it in with Senator Townsend’s request dealing with disclosure of personal, financial, and business interests when you appear before the regulatory body. But this would be in addition to every other provision of your bill.
Senator Carlton:
Then I think this is wonderful. I think it is very friendly, and I thank the Chairman for doing this.
Senator O'Connell:
Senator Carlton, has anyone mentioned that since all of these board bills have come up, the Governor’s office decided training of board members was needed? The Governor’s office has set up a program when they ask people to serve on the boards, they will be provided direction and training for the responsibilities of the board?
Senator Carlton:
No one has mentioned it. That is one reason why I asked for this bill. I put that in there because I realized when we ask people to serve, there is little guidance. It occurred to me that since the staff of the attorney general’s office do the legal representation for a lot of these boards, they would be the ones to walk these people through the legal ramifications of serving on boards. No, the Governor’s office has not contacted me concerning S.B. 310.
Senator O'Connell:
We might want to make sure the Governor’s office is aware of the language. I think it should be addressed to make sure there is coordination between the language in the bill regarding training and their program.
Marybel Batjer, Chief of Staff, Office of the Governor:
From the Governor’s direction, training already has been initiated for all members of our advisory boards and commissions; fully understanding that people volunteer for these tasks. Oftentimes they do not understand the Nevada Revised Statutes (NRS) for which they have volunteered to either regulate, or oversee, or act in an oversight manner with a board. With the assistance of the attorney general’s office, we have initiated training sessions for the current members. I think your conversation with Mr. Hillerby is correct. We are going to continue to train all appointed board members, both volunteer and full-time. We are fully supportive in ensuring our members are trained to the law and the regulatory environment they are asked to oversee and initiate.
Senator Carlton:
It appears the Governor’s office and I are taking the same path. Ms. Batjer, can you say if the Governor would prefer the training be in the bill or not in the bill?
Ms. Batjer:
It sounds like it would be fine. However, I have not read the language, but I will take a few minutes to read it.
Senator Carlton:
Since we are doing basically the same thing, would you be putting into statute what you are doing in practice now?
Ms. Batjer:
Since we are doing it in practice, perhaps it is not necessary in statute, but since we are in tandem on the philosophy and idea, I do not see any harm in that.
Chairman Townsend:
While we are waiting for Ms. Batjer to review the language, we will look at other bills. It is the intention to combine S.B. 250, S.B. 364, and S.B. 389 to create one bill depending on the committee’s desire. You were provided a vast amount of work for the proposed components in combining these bills.
SENATE BILL 389: Makes various changes regarding certain physicians and other regulated professions. (BDR 54-709)
Senator Carlton:
Earlier Ms. Engleman had indicated she wanted to say something about S.B. 310. Would this be a good time?
Chairman Townsend:
Yes, now would be just fine.
Ande Engleman:
I am testifying for myself. At one time I was the executive director of the Nevada Press Association. About the same time Senator Townsend became chairman of the Senate Commerce and Labor Committee. This is when we started working our way through the board bills. At the time most of the boards either were or wanted to be exempted from Nevada’s open meeting law. My legislative chairman was former Governor Mike O’Callaghan. In 1987, a resolution was passed to wipe out all the boards that regulated through executive order. It was Governor O’Callaghan’s opinion those boards did not serve the public, which was the main purpose of their existence, but in fact were impeding competition and protecting their own. He felt if those boards could not serve the public, there was no purpose in having the boards. Senator Townsend and I spent a long time plugging the holes in the disciplinary hearings. Every time we thought we had opened hearings to the public to be warned about a doctor, they would find a way to work around it through wordsmithing. I think this final bill really does plug that loophole. To Senator Carlton, your bill is excellent in that you have the intent in the bill that the purpose of these boards is to help and serve the public. Otherwise, why have them?
Chairman Townsend:
As you know Senator O'Connell and Senator Shaffer started with us in 1985. They are more than familiar with these issues. Thank you for bringing that to our attention. A history lesson is more than appropriate on this subject.
Ms. Batjer:
I have read section 69, subsection 8 of S.B. 310, and that looks fine to me. I am sure the Governor will be fine with it also. We are in agreement with you.
SENATOR CARLTON MOVED TO AMEND AND DO PASS S.B. 310.
SENATOR O’CONNELL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR SHAFFER WAS ABSENT FOR THE VOTE.)
*****
Chairman Townsend:
We will now go to S.B. 389.
Senator O'Connell:
Next to the last item on page 2 of the outline (Exhibit E) reads, “Clarify that in section 13 the term exceptional circumstances includes without limitation a shortage of physicians in a specialty area.” In section 13, the language is permissive. The language in Mr. Cragie’s amendment is specific. I bring these differences to the attention of the committee.
Chairman Townsend:
What would you prefer? I put the term “exceptional circumstances to include without limitation a shortage of physicians in a specialty area” for two reasons. First, the board should be sensitive to these geographical incongruities. There needs to be a special focus on those things to protect the public interest. I am particularly moved by the small amount of obstetricians and gynecologists in southern Nevada. I do not know that it is necessary. I offered it because I know you represent that area and are sensitive to the needs. It came from the vast amount of testimony in that area.
Senator O'Connell:
Part of the concern and reason for S.B. 389 is there seemed to be a disconnect between the thinking of the board and the circumstances surrounding the people they were regulating. I think the committee should be aware this is a policy decision of whether or not there should be more of a connection and involvement on the board level when problems are identified. Those of us who live in southern Nevada feel it is a crisis. Whether the board has any potential of giving a hand or helping in trying to become involved with that level of activity, whether or not there is any nexus, they are just there to regulate.
In talking with Mr. Lee about the situation, and about what could be done, I am going to make an assumption that what he shared with me was the feeling of the board when he told me he did not think that was part of their jurisdiction nor should they be involved. The language in the bill does involve them with that situation. I want to be sure it is clear in the minds of the committee so there is no misunderstanding. This makes it a nexus.
Mr. Lee:
The Board of Medical Examiners and the discharge of their statutory responsibility to assure competent, licensed physicians to practice in this State for the health and welfare of its citizens are part of the Executive Branch. The board’s duty is in following the statute and in implementing the policy you make particularly with reference to licensing standards, licensing physicians, and disciplining physicians. I believe the board does have a role in advising you and expressing our thoughts on those two matters, particularly as they would relate to your formulating public policy.
We deal with licensure and disciplinary issues on a daily basis. It is our belief at the board that Nevada exists as the strictest licensing standard state in the union. We think that is good public policy. Recognizing what Senator O'Connell said with respect to appealing or being sensitive to certain needs, we can only do that within the statutory and regulatory scheme. The regulations we talked about previously, and particularly the five regulations pertaining to licensing, were adopted pursuant to NRS 233B after a public hearing. This was done with full input from physicians and others. Those five licensing regulations are not unique to Nevada; about 25 other states have the same or similar licensing regulations. The board is charged with applying those uniformly and fairly, and we try to do that as best we can.
I might suggest with respect to section 13, there are some pitfalls of which I would like to make the committee aware. The section that allows upon a two‑thirds vote of the Board of Medical Examiners to waive any or all of the licensing requirements set forth in statute. We think the biggest problem is whenever you invest a licensing board with discretion, you are investing them with discretion to waive one or more of the licensing standards. When an applicant requests a waiver, and the board refuses to grant that waiver, we just bought a lawsuit. That person is going to file a lawsuit for failing to exercise discretion in that person’s favor.
Another concern we have is with this kind of language, it is going to be a dumping ground of applicants who do not otherwise meet the standard. I have confidence the board would not do that. They are not going to take me as a proposed applicant who never graduated from medical school, and say I can practice medicine. That is never going to happen. This would increase the burden of staff and the board when dealing with these licensing standards.
Let me suggest perhaps a better place to visit that is in statute and regulations already in place that allows a county commission, if there is an underserved geographical area, to partition the board for certain waivers. Maybe that is a better place to put this issue so if the county commission or some other public agency determines there is a shortage in a particular specialty area; that is a better way to deal with it. Our concern at the board is when you grant the ability to exercise discretion across the board in a licensing situation you have bought yourself a lawsuit.
Senator O'Connell:
I propose to the committee the amendment offered by Mr. Cragie would be better than the language in section 13; it is more specific. For the committee’s information, the amendment is at the bottom of the page (Exhibit E) beginning with, “add a second new section to S.B. 389.
Chairman Townsend:
Mr. Lee, your point is well taken from a process point of view. But I want to emphasize there is an area we have not addressed that I know the board supports and the public supports. It would be the waiver by two-thirds. We are not talking about lowering any standards. I think that was the purpose. Maybe the language is not the most eloquent because we did not give the appropriate direction. In dealing with something such as this, we are not talking about the scope of practice in meeting the standards to provide service in that area being lowered at all. We are not saying you get to pick and choose. The purpose was to say if you meet that professional standard, there are certain administrative things that should not hang you up, and you have to reapply and go through all the bureaucracy. It is frustrating some people, including the public, because we are short on specialists. That was the goal.
If your board follows the law exactly, and they do not see it as we do, which is the discretion in the areas that are administrative as opposed to competency level, I think that is what we were trying to determine.
If someone took a test in August, and not in July, but they passed it, is that rule arbitrary? We are trying to give the board some flexibility to accept the testing. They are either competent to practice or they are not. This is not about lowering the standard; it is about meeting a shortage because this is a problem for the public.
Mr. Lee:
We have had this discussion many times, and in principle I would agree. Perhaps I would get there from the standpoint of a lawyer who practices in the area of medicine and understands the pitfall of too much discretion in a licensing board versus how a degree of flexibility is given to a licensing board to still apply what we think are important restrictive standards making Nevada one of the more difficult and stringent states in which to be licensed. We think that pays off at the other end, while at the same time dealing with issues that are prominent.
Clearly, what Senator O'Connell is talking about is better placed, better limits our discretion, and makes us more immune from litigation than if we do it in another fashion. Again, we have excellent licensing standards in this State, and excellent disciplinary proceedings. If as a matter of public policy, you believe they ought to be changed, we will implement that change.
Scott M. Cragie, Lobbyist, Nevada State Medical Association:
The principle we are dealing with is the situation of Major Keith Brill, M.D., who testified at the April 2, 2003, Senate Commerce and Labor Committee hearing. He would not get a license because he took the test at the wrong time. Without this centering on a specific case, our concern is what the Chairman articulated. We have no disagreement with high standards, but if the high standards are protocols that do not apply to candidates to become physicians in the State of Nevada that are available to us. We are looking for the board to show some flexibility as they become aware of these situations.
We recommended this amendment because it took care of Dr. Brill. It was something that could be done. I have had this discussion with the administration and Mr. Lee. It would be better if we could leave it to the board to amend their regulations to eliminate artificial impediments where they exist. I do not know if something has been done with the regulation blocking those people who take the test in their first year of residency rather than in the second year. As a chairman of a regulatory board for many years, we constantly redirected the regulations to ensure they were practical.
Dr. Hug-English:
As a representative of the board at our next meetings of May 31 and June 1, I intend to direct the executive director to look at those regulations perceived as difficult to revise or adjust. I would like to clarify what happened to Dr. Brill at the board level. He did speak to a licensing specialist who did say it was in the regulation that he was supposed to take the test after 12 months. However, he was directed to the executive director, Larry D. Lesley, J.D., who told Dr. Brill it could be worked out. All Dr. Brill would have to do is submit his application, and as of today, we still do not have Dr. Brill’s application. Without the application, we cannot take action. To clarify, the situation had already been dealt with by the board before it was brought up in this committee. Based on the information we do have and there are no other unforeseen circumstances in his application when received, Dr. Brill would be licensed.
Mr. Cragie:
I think the offer made by the chairwoman and the offer made earlier by the executive director are both in good faith. Dr. Brill is caught up in a controversy larger than he can gauge. He has been called and offered the opportunity to provide an application. Now Dr. Brill is concerned he would provide an application at a time when it is not legal, and he is trying to deal with that. He wants to stay in Nevada and be licensed to practice in Nevada.
Chairman Townsend:
What difference does it make that Dr. Brill is practicing medicine at Nellis Air Force Base, but he cannot practice across the street off the base because he took the test at the wrong time?
Dr. Hug-English:
I am here to publicly say if Dr. Brill submits his application as told by our executive director, and there are no other unforeseen problems with his application other than identified with his testing issue, he will be granted a license. Dr. Brill would not have to wait until the next board meeting. He can submit his application right now and would not have to come before the board.
Chairman Townsend:
I misunderstood, and thought he had to wait until the board met. Can you assure me Dr. Brill will get his application submitted right away?
Mr. Cragie:
I will talk to him today to get it in expeditiously.
Mr. Lee:
At the next board meeting Dr. Hug-English will insist on workshops in Las Vegas and Reno to discuss various issues of the licensing regulations, at which time all affected individuals, in particular physicians, can appear for comment. Although these regulations are in 25 other states, we think we need to revisit them to see where changes need to be made in order to provide flexibility and avoid a Dr. Brill situation.
Senator O'Connell:
Because the makeup of boards does change over time, and because of the history of this board, I would be more comfortable putting this in statute.
James L. Wadhams, Lobbyist, Nevada Mutual Insurance Company, and Nevada Hospital Association:
There is a part of this bill I think is a critical component to what was just discussed that has to do with the subsidy fund.
Chairman Townsend:
When we get to that part of the bill, you are welcome to come forward and talk about it.
Senator O'Connell:
I think the amendment will take care of the problem. While we are talking about regulations, I would like to have Dr. Edwards and Dr. Royal come forward to talk about regulations.
F. Fuller Royal, M.D., H.M.D., Secretary-Treasurer, Board of Homeopathic Medical Examiners:
David A. Edwards, M.D., H.M.D., Board of Homeopathic Medical Examiners, and myself are the only dually licensed physicians on the Board of Homeopathic Medical Examiners. We have reviewed S.B. 389, and think it is a good bill. We would like to suggest amendments we believe would put an end to this turf war that has been going on since 1983 with the Board of Medical Examiners. We would like to put an end to that if possible.
This bill primarily addresses a health crisis in Nevada. It deals primarily with the allopathic and osteopathic boards, and the problems needing resolution since they are the larger providers of health care in Nevada.
On the Website for the BME, they have listed themselves nine times as the allopathic board. I think that term needs to be inserted into statute to clearly define them.
As to the amendments, on page 6, section 14, lines 42 and 43 of S.B. 389, the language, “¼ is about to violate any provision of this chapter” is vague. We think “or is about to violate any provision,” is dangerous and should be removed. I do not know what that means, how it would be interpreted, or how you would find out something like that.
Page 7, section 15, line 15, we like to see an amendment to also amend NRS 630.255, subsection 2, paragraphs (b) and (e), to read, “allopathic or homeopathic medicine.” We would also like that done in NRS 630.257.
I will give a little history for the reason for the request. In 1985 the Board of Medical Examiners was having difficulty getting S.B. No. 64 of the 63rd Session through the Legislature because of a lot of features that gave them powers we felt were overbearing to those practicing homeopathic medicine. Subsequently, I met with Dr. Richard Baker and Dr. Robert Clift who were on the BME at that time to go through that bill. The reason for inserting, “or homeopathic,” was to make certain that should there be a peer review or examination of a dually licensed physician, that person would be examined according to those complimentary therapies and not be examined on the basis of pure allopathy.
In 1993, under Dr. Tom Scully that was removed by A.B. No. 746 of the 67th Session, and I have reviewed that bill. The homeopathic board nor any of the dually licensed physicians or any physicians I know about, were made aware of any intent to remove that particular wording from statute. We would like to have that wording reinserted to provide some protection for the doctors who have dual licenses under NRS 630 and NRS 630A.
On page 9, section 18, line 18, we would like to add “allopathic” before “medicine.” Again, just visit the BME’s Website to recognize they are truly an allopathic board. They obviously understand the definition of allopathic medicine as it is in Dorland’s Medical Dictionary.
On page 10, section 21, subsection 1, line 4, replace “six” with “four,” and modify to read, “four members of the Board must be persons who are licensed to practice allopathic medicine and two medical doctors that are also licensed and actively practicing under NRS 630A.” If those types of physicians were put on the board, I believe we can resolve the problems that have existed over the past 20 years with the allopathic board. We suggest the makeup of the board to include dually licensed physicians.
Chairman Townsend:
Why only two medical doctors?
Dr. Royal:
It could be one. There are approximately 40 dually licensed physicians in the State primarily practicing homeopathic medicine. There has been a 25 percent increase biannually raising the interest in this area of applicants.
Senator O'Connell:
Would you tell us about the present regulation being proposed by the board?
Dr. Royal:
The board has proposed a temporary regulation which has been mentioned. There will be workshops in Nevada on April 29 and 30, with the board enacting or voting on it on May 30, 2003. Those proposed regulations are going to cause a lot of physicians who do not fit underneath the first two or three paragraphs a lot of problems. Many of them will probably leave Nevada if they are forced to take an examination at the end of the workshops. Basically, what that regulation now proposes is that before the year 2005, physicians must either be active as a board-certified physician under an allopathic board, which is recognized by the allopathic medical board, or they have privileges at two hospitals where they are actively practicing. If they do not fit under those categories, then they can sit before a group of their peers who will be allopathic doctors. None of them are mentioned as being alternative complimentary or homeopathic in that regulation. If the doctors do not want to do that, then they have to take the “specs” or “flex” examination, which is a national examination administered by the Federation of State Licensing Boards, and this board is close in many of the things they do and in the regulations they put forth.
Chairman Townsend:
What is the public purpose of this regulation? Are there problems somewhere that this regulation is being directed towards?
Dr. Hug-English:
On the issue of continued physician competency, we have been criticized for not being tough enough on doctors, and criticized that our standards are too strict and too tough. It is a fine line to walk. One thing we have heard from this body as well as others, is that when you get a license in this State, there is no mechanism to ensure continued competency of that physician. This board is the first board in the nation to tackle this issue; it’s a difficult one. We have put forward a draft of recommendations, for hearings and input from physicians to look at this issue, and we welcome input. It is a difficult task to do. The tools to do it are tough.
There are a limited number of ways to look at how to ensure continued competency. One of the ways put forward by this draft is, if they are board certified by a specialty board that would be enough. If they continue to recertify, that would be evidence of continued competency. If they’re not board certified, but they’re practicing and they have admitting privileges at an accredited hospital, then that would suffice for competency. If they’re not practicing in a hospital, and they’re not board certified, and they’re actively practicing in the community, then that’s where this flex examination comes into play. That’s the only other test we have at this current time, although the federation is looking at some modular types of test that would be more specific to practice situations.
Those were ideas put forward by a committee of the board that has been looking at this issue for over 2 years. Right now we’re getting input from physicians on this proposal. I sent a letter to every licensed physician in the State to let them know we were doing this, and holding workshops on this issue because we want their feedback. Whether or not a vote is taken to pass this proposal at our next meeting is not clear. It would depend a lot on what happens at the upcoming hearings to be held in Las Vegas and Reno.
Senator Neal:
My daughter is in her third year of residency specializing in family practice. She has been out of medical school a couple of years, and she had to go back for a 1-week course to update in her chosen area. What I hear you saying is if a doctor is specializing in an area of medicine, he or she must take a test. What about the regular courses offered to keep them updated in their practice?
Dr. Hug-English:
Family is one of the first specialties to require recertification every 7 years. Your daughter, by her specialty, would have to recertify in her specialty. That’s all we are asking. Anyone that has a specialty in family practice, surgery, internal medicine, and they recertify in that specialty, would be covered by this. In addition to that for licensing renewal requirements, we already require 40 units of continuing medical education every biennium.
Senator O'Connell:
As I hear it, I think the concern is the board of allopathic medicine does not have jurisdiction over the board of homeopathic medicine. Since that reference was taken out of the language in 1993, I think there has been an ongoing fight over whether or not you should be in charge of homeopathic doctors who are dually licensed. As Dr. Royal has just testified there are some 40 doctors who do not practice in that field any longer. We need clarification that you do not have jurisdiction over that practice.
Mr. Lee:
The BME does not have jurisdiction over a physician who is licensed under any other chapter 630A or 631 of NRS. However, if they are licensed under NRS 630, we do have jurisdiction. That is a choice they made to be licensed under NRS 630. What the doctor is suggesting is that somehow because they hold dual licensure, they should not have to answer to the Board of Medical Examiners and our licensing and disciplinary standards, which sets them as a class apart that says they can hold themselves out as a medical doctor as defined by chapter 630 of NRS, but we do not have to play by any of your rules. That does not make sense to me.
Dr. Royal:
That is absolutely untrue. Those of us who practice homeopathy do certain procedures which are allopathic in nature, such as suturing minor lacerations in the office, and occasionally writing a prescription for an allopathic medication, so that is not true. However, I had the opportunity to be grandfathered in under the family practice board many years ago when they began that board, and I chose not to do so. I choose to this day not to be board certified because I do not want a wall put around me. I want to be able to see and treat people holistically. I do not want to be limited as to what I can and cannot do in regard to my practice. In essence what the allopathic board is going to become is a board of board specialists, which is not holistic, not complimentary, not alternative, and certainly not homeopathic.
By the way Dr. Hug‑English said privileged at a hospital, it is two hospitals. We need to make that clear that a doctor needs to be on the staff of two hospitals. I do not have a problem being evaluated by my peers as long as I know they are peers. The regulation does not approach that issue with regard to those of us who prefer, as generalists, not a board-specialized anything, to be able to use whatever methods we wish in terms of those types of therapies.
I have a suggestion that if we want to go around this, and obviously the Board of Medical Examiners are not pleased with this amendment, then I suggest this committee seriously considers amending NRS 630A to grant full-prescription rights and full-office procedure practices. In doing so most of us will certainly pull away and allow them to be the board of board specialists. Without that we run continually into this problem of a lack of understanding, a lack of cooperation, and a lack of coordination.
In 1987, Louie Test was secretary-treasurer of our board. I met with the Board of Medical Examiners on the grounds that we would try to bring these boards together. That was repudiated. Dr. Ted Jacobs who was the chairman of the board at that time, did not want anything to do with it, so it did not happen. In 1997, Dr. Rex Baggett who was the president or chairman of the board, sent a letter to all the dually licensed physicians saying we do not care which board you are licensed with, we do not care if you are licensed under NRS 630A, we are going to discipline you for any problems that relate to homeopathic medicine. There was a real attempt in 1997 to actually be over our board. There was an opinion rendered by the attorney general’s office saying they could do that. Then there was a counter opinion from the Legislative Counsel Bureau that prevented it from happening, saying it was never intended for one board to overrule another board. The history is long and somewhat complex, but we believe with these added amendments we can correct this, and resolve some of the difficulties that go on and on between the dually licensed physicians and the allopathic doctors.
Chairman Townsend:
No one has dealt with your issue more than Senator O'Connell and myself, and more supportive, but I am not sure this is the place to do this. I do not know where you were when we first heard this bill, but not all the committee members are up to speed on these issues. Things are being opened we are not dealing with here. Dr. Edwards and I appeared before the Board of Medical Examiners trying to get them to understand the issues you just articulated. You are opening up a whole separate section than what are the goals of these three bills, and that is the problem. All of these things are frustrating. I do not know how the committee feels as to whether or not they want to open up this whole thing.
David Edwards, M.D., H.M.D., Board of Homeopathic Medical Examiners:
The only issue I would point out to the committee in deference to Mr. Lee’s comments is being dual licensed. I understand when I practice homeopathy, I am prohibited from practicing allopathic medicine; it is in the statute. I tend to limit myself to homeopathic medicine even though I am a board-certified internist. The problem I have with that is if in my office, as a matter of public safety, I am administering intravenous therapy, and the patient should happen to undergo a cardiac arrest does that mean I cannot do cardiopulmonary resuscitation (CPR)? This is the bind I am in. Since I am prohibited from doing what allopathic medicine says is homeopathy, what should I do? Thank God it has not happened to me, but it may someday, so in deference to Mr. Lee, I have retained my NRS 630 license. I have no objection to being peer reviewed and therein lies the problem. I see it as a public safety issue.
Dr. Hug-English:
I have to respond to the CPR comment. Anyone can do CPR. Anyone here could do CPR; that’s not prohibited by anything in our statutes. If the physicians want to incorporate allopathic medicine into their practice, then I would offer to this committee that they need to be licensed by this board as well. If they are practicing homeopathy, they are under the homeopathic board as well. If the Board of Medical Examiners licenses them, then they’re practicing allopathic medicine and need to meet the requirements of this board as well.
Chairman Townsend:
What is the necessity of this? One of two things is occurring. Either the current continuing medical education (CME) is the appropriate place to keep people up to speed, therefore, you do not need this regulation, or these things are not working and you do need this regulation.
Dr. Hug-English:
Are you referring to the competency regulation? Let me be clear that this is not a regulation. This is something we are looking at as a board. It’s something that has been brought to the board as an issue that people are concerned about. That’s how are we going to ensure continued competency.
Chairman Townsend:
I thought that was the purpose of continuing medical education.
Dr. Hug-English:
“That’s certainly one way it is used. Whether or not that’s adequate is the question.”
Chairman Townsend:
You are the one that sets the medical education, so cannot you make it adequate? I know of one course that is inadequate, and I know you do not want me to bring that up here.
Dr. Hug-English:
“The board isn’t the one to set the criteria for CMEs. That’s done by a variety of agencies as long as they meet certain criteria and are approved.”
Chairman Townsend:
You can establish what you want out of that?
Dr. Hug-English:
“That’s correct.”
Senator O'Connell:
As mentioned, over our long tenure this has been brought before us time and time again because there seems to be some debate over who is in charge of whom. When I was notified of the regulation, it seemed to me this was another attempt to do away with this particular alternative medicine discipline, which was a grave concern. I thought we could put this issue to bed once and for all. But it does not seem to ever go to sleep as many times as we have tried. It is very aggravating. People ought to have the ability to choose whom they want to visit. I do not think there has ever been a complaint against Dr. Royal. I do not know Dr. Edwards as well or his record, but I would venture to say probably the same thing. I thought since this is raising its head again that it is another opportunity to try dealing with the board to make the record clear regarding legislative intent. I would leave it to the committee.
Dr. Hug-English:
I need to say I’m proud and honored to serve on the Board of Medical Examiners as appointed by Governor Guinn. I am also proud of the other members serving on the board with me. I acknowledge their dedication, commitment, and integrity shown through this process. I want the committee to understand this is a difficult process. A lot of criticism has been raised that we are not tough enough; we don’t do enough. On the other hand, we’re criticized that our standards are too tough, inflexible, and too difficult. It is a fine line to walk.
I want the committee to know this board is recognized nationally as one of the leader boards across the country. The federation came to our last meeting to recognize and commend us for our standards, and for the procedures this board undertakes, as a model for other boards. We’ve tackled difficult issues, set policies on telemedicine, and set guidelines for chronic pain management and control. We’ve established the toughest licensing standards in the nation. In addition, we have begun to tackle the difficult issue of physician competency. I think this board needs to be commended for addressing the issue.
In looking at this legislation as drafted, it would severely limit the ability of the board to take action against physicians. One of the things discussed is establishing a higher evidentiary standard in taking sanctions against a physician. This bill would make it difficult, and I can tell you that every revocation would be legally challenged based on that standard. If we are not able to take action against a physician unless they have multiple counts of malpractice, that would make it difficult to take action in a timely manner.
Dr. Hug-English:
I think Mr. Lee will be addressing the money issue. Frankly, it would make it difficult to continue operations if that money is taken away from us. I need to comment about the unique role our own legal counsel serves for this particular board. I know it has been discussed about having the attorney general’s office take care of that. A position on this board is like a full-time job, a daily job. Not only does the attorney have to get ready for prosecutions and hearings, but also run an investigative team. In light of the changes that have occurred in the special session, we now have to send the attorney and his investigative staff to the district courts to look at every case to see if, indeed, they are malpractice. This is incredibly time consuming, and if sent to the attorney general’s office, I do not know if they’d be able to keep up the workload unless they appointed someone full-time.
You are the body that sets policy, and the board institutes those policies. We think we’ve got good policies in place, and this legislation would dramatically change the way this board functions, and severely limit our ability to take action. I would ask that you not take away the tools to run effectively.
I heard concerns about the perceived lack of accessibility to the board. Again, on our next agenda, I will instruct the executive director to place the issue of how to teleconference our meetings. The amendment also includes the Internet, adding more of a constriction. I would ask the committee to consider whether teleconferencing would be adequate. We could do that in places that would make it fairly easy to access. The Internet would make it a little more difficult, but we could certainly look at it. Increasing the number of meetings we would hold in Las Vegas is doable. The only time we have not had a meeting in Las Vegas was the year of September 11, (2001), because of the travel restrictions hindering getting all the needed documents to the meeting.
We can also look at opening a second office in Las Vegas. We did have an office in Las Vegas, but it was closed within the first year I was on the board because it was underutilized and costing money. But maybe it is time to again look into having an office in Las Vegas. Our Website is a work in progress. We are working on improvements, and to make it more user friendly. We can hold hearings on some of these regulations that have been brought up, and certainly will.
Mr. Lee:
I would like to enter into the record the BME’s position regarding S.B. 389 (Exhibit F), including comments with respect to our legal counsel.
I have an additional comment with respect to the provision that the executive director ought to serve no more than 8 years. In the work documents (Exhibit E) it appears it has been changed to, “serve at the pleasure of the Governor.” That is fine, so long as the board still has the ability to fire that person, or is it now solely in the Governor’s office? The board has the opportunity to observe that person on a daily basis and would be in a better position to make a determination, and should be allowed to retain that option.
Action taken in December 2002 reduced the relicensure fees. We have already received 1500 renewals and more continue to come in. This action has substantially reduced our revenues over the biennium.
Chairman Townsend:
Why did you take that action?
Mr. Lee:
We have a reserve, but not so large as to be reduced by $2 million to $2.5 million. Our outside auditors have said it is prudent to have a reserve, which we have been building since 1995. You have a letter (Exhibit G) from John A. Solari, CPA, that speaks to the issue of a reserve and not letting it go below $1 million. It is the board’s belief that every doctor in the State should benefit from the fact that the board has built through prudent financial management a reserve. Additionally, $120,000 to $130,000 annually comes from respiratory therapists and physician assistants, both of whom we supervise. So, you would also be taking funds from these people to create the subsidy.
I passed out the audited financial statements for June 30, 2001 and 2002 (Exhibit H). By law this report has already been submitted to the Legislative Counsel Bureau. I have also asked to be made part of the record the profit and loss budget versus actual for July 2002 through June 2003 (Exhibit I). We will not know what our actual budget will be until the session is over. You will see where I have handwritten, based on current reserves of $3.35 million, less anticipated budgets for expenses, that the 2005 biennium would end with $786,509.40 in the reserve fund. This is less than Mr. Solari recommended in his letter (Exhibit G). We do not think this is good public policy to take money belonging to all the physicians and allocating it to a select few. Also, we would not have the money if we were to implement additional requirements likely to be imposed after the session.
Senator Neal:
Returning to the board attorney subject, as I understand, the bill proposes that person become a representative of the attorney general’s office?
Mr. Lee:
That is my understanding.
Senator Neal:
Regarding the cases the board and its attorney are involved in, are there lawsuits against the State?
Mr. Lee:
Generally no.
Senator Neal:
Why would you then need a public attorney?
Mr. Lee:
I am not suggesting we do. We have been sued. One of the reasons we have a reserve is there is a case in the United States Court of Appeals for the Ninth Circuit that has been ongoing for a number of years for which board members are personally liable. The reference to a prosecutor is for prosecuting disciplinary actions.
Senator Neal:
This is board action between malpractice of some type that occurred on the part of a physician in which the board is attempting to make some type of correction. As a result the board may be sued or countersued. What I hear you saying in the proposal is that you need the involvement of the attorney general in that case. If it were not a suit against the State, then why would you need a public attorney to handle it? This is just a comment.
Senator Shaffer:
A follow-up to Senator Neal. I have a problem with the fact that we provide through the attorney general’s office counsel to represent the people that have filed complaints against the physician. The board is there as an arbitrator before the legal process to decide which side they are going to be on. Are they going to be representing the public, the person that files the complaint against the physician or against the board? Who takes the lead? Does the State take the lead? I know it cost upwards of $125,000 a year to have your own attorney at times, and more depending on the magnitude of the case. It looks to me like there is a conflict between legal counsels. That is what I cannot get straight.
Mr. Lee:
In fact, a deputy attorney general does serve as counsel to the board during board meetings. That person’s primary responsibility is to advise on issues regarding the open meeting law. We pay the deputy attorney general from our fund to their fund at the rate of $79 an hour for that person’s attendance at our meetings. Outside of that the attorney general does not provide any legal counsel.
Senator Shaffer, to specifically answer your question. During a disciplinary proceeding where a formal complaint is filed the board counsel prosecutes that complaint. The position of the doctor is to defend against that complaint. Six members of the board sit as judge and jury to hear the evidence from both sides and cross-examine. Based on the evidence they make a decision of whether or not there had been a violation of the Medical Practices Act. If the board finds a violation, they determine what penalties ought to be imposed. To the extent the six members of the board, who represent the public as judge and jury, are discharging their responsibility to ensure there are competent physicians practicing in this State.
Senator O'Connell:
Right now it says your current revenue is at $3.3 million?
Mr. Lee:
That is current reserve.
Senator O'Connell:
You are going through a billing cycle and have about 4500 doctors. Are you billing them at $400 each?
Mr. Lee:
Approximately that number.
Senator O'Connell:
The board took off $200 this time to give the doctors a rebate. Is that correct?
Mr. Lee:
That is correct.
Senator O'Connell:
Your certified public accountant (CPA) wrote a letter (Exhibit G) saying the board should have at least $1 million in reserve?
Mr. Lee:
That is correct.
Senator O'Connell:
How much is your operating budget?
Mr. Lee:
We anticipate ending June 30, 2003, with operating expenses of approximately $2 million.
Senator O'Connell:
Is that an unusually high amount for a board?
Mr. Lee:
I do not know. I know in reviewing the audited statements (Exhibit I) we gave you, there appears to be anywhere from a 25 percent to 30 percent increase in the budget year over year. Part of that are investigators. We are in the process of hiring the additional investigators to keep up with the mandate of A.B. No. 1 of the 18th Special Session.
Senator O'Connell:
It appears you spend over $200,000 on advertising. Is it annually or biannually?
Mr. Lee:
I believe that is an expenditure over the past 5 years. We think it has not only been a good service to the public, but it has been received well. Our budget anticipates doubling that expenditure to get the word out to the public.
Senator O'Connell:
I have a concern. Is it $5000 a month spent on whomever does the advertising? Are not these all public service announcements?
Dr. Hug-English:
“We have to pay for that. It’s about $50,000 each time we commit for a 6‑month period. The ads are expensive to run, but we believe they’re worthwhile, and we have received confirmation from public feedback.”
Senator O'Connell:
I am amazed. It seems to me if they are public service announcements, I am not sure why you are paying for them. I do not watch a lot of television, but if you have been running announcements since 1997, I have never seen any of them. What are the directions of the ads?
Dr. Hug-English:
“These are radio and television advertisements.”
Senator O'Connell:
Has anyone seen these ads and what are they about?
Senator Carlton:
If I remember correctly, they say if you want to know more about your doctor to can contact the board.
Dr. Hug-English:
The TV ad features a physician seeing a patient, and they’re having a dialogue where the patient asks the physician where he went to medical school and what are his qualifications. They banter back and forth, and the physician finally tells the patient there’s a place where you can get all the information by calling your Board of Medical Examiners, and provides a phone number. The radio ad is similar.
Senator O'Connell:
My concern is about keeping our doctors here is more important than that ad. As one person on this committee, I am very concerned about our situation in southern Nevada. I cannot express in words how concerned I am, looking at the fact that we are desperately in need of helping doctors because they simply cannot afford to practice in this State. I think that is unforgivable on the part of the State, and we do not seem to be willing in any way, shape, or form to step out and help this situation. I do not know how anyone else feels about it, but I think it is a deplorable situation. I think the regulating board with such a large reserve, which I hope is a temporary thing, ought to be willing to step up to say we want to keep our doctors because without them there is no need for the board. Not only is that my personal opinion, but it is also the opinion of groups of doctors who have contacted me and written to the Legislature.
Mr. Lee:
I understand your concerns, and I do not disagree with the crisis we have and the one that is looming with respect to losing our physicians. I do not think under present statutory requirements that the board can do something you are suggesting to be done.
Senator O'Connell:
I wish the board had come forward with this.
Mr. Lee:
I understand. You and I have had discussions on this, and I think we can agree to disagree.
Senator Hardy:
I too have concerns with the way the subsidy fund is set up. I think Senator O'Connell’s concerns outweigh my concern with compelling you to do it. I also wish the board would have come forward voluntarily, but it does not outweigh my concern for what is happening in the medical industry.
Chairman Townsend:
I asked the majority leader and the speaker to exempt one of these bills for the purpose of allowing discussion on all three bills to move forward, and not have to make decisions that have not been thoroughly debated. We will soon know if the request is to be honored.
Senator Neal:
Have you ever been to a sporting event where someone hollers, “Is there a doctor in the house?” That person in need does not care whether the doctor is homeopathic, allopathic, or whatever; they just want to be treated.
Chairman Townsend:
Now we will move on to S.B. 122.
SENATE BILL 122: Makes various changes regarding malpractice insurance and actions. (BDR 57-265)
There are two amendments in the workbook (Exhibit E). One from Lynn Fulstone, Lobbyist, Physicians Insurance Company of Wisconsin. The other from Mr. Byrd as chairman of the Medical Liability Association of Nevada. There is a separate sheet (Exhibit J) with Senator Titus’ responses to the amendments.
Senator Alice Costandina (Dina) Titus, Clark County Senatorial District No. 7:
I worked with Ms. Fulstone on the amendments. We have agreement on most of them, but we have no agreement on a couple of them.
Chairman Townsend:
It would be easier to go to the disagreements. Section 4 has a few word changes.
Lynn Fulstone, Lobbyist, Physicians Insurance Company of Wisconsin (PIC Wisconsin):
We are in agreement with the word changes.
Chairman Townsend:
Let us go to section 12.
Senator Titus:
Section 12 is the sunshine provision. This provision would not allow for secret settlements, and I have always supported sunshine provisions.
Chairman Townsend:
I reviewed that section again. We heard testimony that a lot of states do this. Is the problem in the language, the concept, or both?
Ms. Fulstone:
The problem is about policy that could discourage settlements. Perhaps there is a way of addressing Senator Titus’ concerns in terms of collecting data, including the facts of the settlement and putting out that sort of information to address the concerns, rather than chilling the policy on encouraging settlement.
Senator Carlton:
I am a little confused because all morning we talked about information being important to the public. This seems to hit at that point and the fact that two parties came together in agreement, and settled, yet are gagged; it befuddles me. Since both parties have agreed, why should not the public know what was the agreement? The discussion was about getting information out there.
Ms. Fulstone:
I appreciate what was said. I do not know if PIC Wisconsin feels strongly about this, and certainly would defer to the committee and everyone. I think it could chill settlements. Some people may prefer to proceed to litigation and then maybe disclose the terms of the settlement. It may be not what everyone wants, or maybe there is a compromise. I am not sure, and would defer to the committee and Senator Titus.
Senator Hardy:
We are talking about the terms of the agreement being disclosed, not any of the deliberations, just the terms of the final agreement?
Senator Titus:
That is the way I understand it.
Senator Hardy:
There are a lot of reasons why people settle. Unfortunately, there is an assumption of guilt when you settle, and that is not the case. I am sympathetic to Ms. Fulstone’s concern, but if it is simply the terms of the agreement or the final outcome, I think that resolves a lot of my concern.
Chairman Townsend:
Once that is signed, does it bar any future claims against that individual? Does it stop everything once there is a settlement, whether it is in public or not?
Senator Titus:
I believe that would be part of the terms of the agreement.
Ms. Fulstone:
Typically, that would be part of the settlement.
Chairman Townsend:
These are sophisticated areas we do not deal in, so we ask rudimentary questions. In the bill where it says, “the terms of the agreement,” would not be work documents, negotiations, or communications between parties. It would be a piece of paper summarizing the agreement, but not about how they reached it.
Senator Titus:
I do not think so. I think just the terms of the agreement as to the final settlement. Anytime there is a settlement it does not mean there is guilt.
Ms. Fulstone:
Perhaps some clarification under section 12. Currently it says the agreement must not provide that any of the terms of the agreement are confidential. Normally that would embody every single word in the agreement. If you are concerned about the parties or the final dollar amount, I do not know if that would be a possibility of amending that to provide for exactly what you are concerned about, but that may be helpful.
Chairman Townsend:
I think the intent is if the terms of the agreement are that you would no longer practice that specialty, we are not going to ask for expenses or anything. Those would be the terms. It is not about how you got to those resolutions. Is that it?
Senator Titus:
Exactly.
Chairman Townsend:
You are saying the language would give you concern that it would get to these other documents, unless we tighten that language. Is that right?
Ms. Fulstone:
Yes.
Chairman Townsend:
I agree we need to know the facts in board actions and we should be consistent. Senator, regarding section 14, you are asking to eliminate paragraph (b), lines 3 to 7 through “the defendant?”
Senator Titus:
That was the section calling for the appointment of an independent counsel. I think that would be too hard for the court to do, we do not want to put that burden on a judge. I still want to keep subsection 1, which is if an insurance company wants to go forward when a doctor wants to settle. You separate their interests because they are no longer the same, and allow the doctor to get an independent counsel that is paid for by the insurance company.
Chairman Townsend:
Ms. Fulstone, putting the paying aside, let me see if I understand the mechanics. The doctor wants to take the offer on the table, and the company says no. If the doctor then goes to an independent counsel, setting who pays aside, now what happens? Can the doctor sue you for bad faith, or for an action of not honoring the contract they entered into?
Ms. Fulstone:
Normally, the first thing done, even without independent counsel, is the doctor’s attorney would advise their client to send a letter to the insurance company setting them up for a bad-faith action. The letter would set up the situation for the doctor to proceed to sue the insurance company for bad faith later on. That should occur with the doctor’s existing defense counsel on the malpractice action.
Senator Titus:
This is in line with the provision that imposes a penalty. One way or another it is still the basic principle with two ways of getting at it.
Chairman Townsend:
I did not get a chance to read the bill. Was that provision included in S.B. 97?
SENATE BILL 97: Makes various changes relating to certain actions against providers of health care. (BDR 1-248)
Senator Titus:
Yes, it was.
Chairman Townsend:
I am having a rough time. I happen to agree with you. I am not sure this is the answer. This committee debated the issue many times about the doctor wanting to take the offer and the company saying no. So, each time they go through the negotiating process there is a larger award and actuarial implications. I cannot imagine a practitioner having that over their heads if they decide to settle.
Ms. Fulstone:
I would like to say on behalf of PIC Wisconsin, this is one of their biggest concerns in all of the bills right now. Typically, 80 percent of all cases PIC Wisconsin handles are finalized without making any payment at all, which means there are 80 percent too many cases brought against physicians. Of the remaining 20 percent, most are settled for less than the policy limits. In fact, PIC Wisconsin has never been sued for bad faith. We are concerned these types of provisions could encourage settlement at policy limits when the doctor is not negligent, and when the value of the case is much less than the policy limits. This would encourage plaintiff’s attorneys to ask for the $1 million regardless of the merits of the case. That could have an improper effect on premiums, or discourage a vigorous marketplace for medical malpractice insurance.
Chairman Townsend:
Senator, are you all right with section 15 regarding funding for additional staff to come from revenues of the Board of Medical Examiners?
Senator Titus:
This is more of a reporting provision, which I think helps us get more information and prevent problems like we have seen in the past. I have one slight disagreement in section 1 of the bill. I think there should be restrictions on who can intervene. You do not want to turn this into a circus, but anyone who meets the requirements of sending in the prehearing statement describing the relationship should be allowed to participate. It is alright if you want to put a time limit, but I am not sure 15 minutes is enough to make a full case.
Chairman Townsend:
We have been reluctant to do that at the Public Utilities Commission of Nevada level, but with Mr. Hay’s participation because he is charged with representing individuals, we have let consumers speak at consumer hearings. That is different in that there is an advocate. It may sound funny, but we are trying to do everything we can to be as consistent as possible. Your point is well taken in reconsidering allowing only 15 minutes to make a case. They should also meet all the filing standards so everyone plays by the same rules, and still has the opportunity to participate.
Senator Titus:
I do not believe there will be frivolous testimony from someone who would take the time to fill out all this information in advance. Someone who is serious would do this.
Senator Hardy:
I would like to go back to section 14 because it is a threshold issue for me. All things being equal, I think the benefit penalty is a good idea. Unfortunately, all things are not equal. This is not a market insurance companies are beating down the door to get into. For purposes of time, just a yes or no answer will do. Do you believe there is some language that you would be comfortable with that would get us to this type of benefit penalty, or is it a concept that is a deal-killer for you?
Ms. Fulstone:
I think the concept is difficult for my client.
Chairman Townsend:
Both the independent counsel and the benefit penalty?
Ms. Fulstone:
Yes, sir.
Chairman Townsend:
You know the committee processed S.B. 97 with the benefit penalty in it?
Ms. Fulstone:
Yes, sir.
Chairman Townsend:
We had taken it out because they were processing it, so there was no need to be redundant.
Ms. Fulstone:
In yesterday’s committee meeting, there was a legal opinion from LCB about the interpretation of A.B. No. 1 of the 18th Special Session with these amendments, reaffirming there are actually two pacts, a second on the policy limits, which may help this bad-faith problem. If a physician has insurance, he could not be liable for more than the policy limits.
Senator Titus:
I agree. It was read and repeated in the hearing that there are those solid caps. It would make me feel better if that section comes out. I think there are still good things in the other sections of the bill that I would ask this committee to consider going forward with the bill.
Senator Hardy:
As I understand we are taking out the language on requiring the insurer and coverage.
Senator Titus:
All those stay in based on this sheet (Exhibit J). The definitions have been made more consistent with industry language.
Chairman Townsend:
The only disagreement was the one Senator Titus brought up, which was section 12 dealing with the independent counsel. Everything else seemed to be worked out, including getting a more flexible time limit as long as the traditional standards are met for filing for purposes of intervention.
Senator Titus:
There was the secrecy that started as a disagreement, but we have moved closer together on that issue.
Chairman Townsend:
We just need language to make sure it is the terms of the agreement and not every piece of paper someone touched. Regarding inclusion of the independent counsel, you are still concerned and want it in, but not as concerned based on the policy limit issue?
Senator Titus:
That is exactly right, although my choice is to have it in the bill.
SENATOR CARLTON MOVED TO AMEND AND DO PASS S.B. 122.
Senator Carlton:
That would be with the proposed amendments in the workbook (Exhibit E) in conjunction with the sheet presented by Senator Titus, with the elimination of section 14. That would not be in the motion.
Senator Titus:
What is not on the sheet is what we just mentioned. Again, I go back to section 12 and cleaning up that language.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator Hardy:
Chairman Townsend. I would like to reserve the right to change my vote on the Senate Floor after I have a chance to look over everything.
Chairman Townsend:
We will now go to S.B. 371.
SENATE BILL 371: Creates Constructional Defect Commission and revises various provisions governing actions resulting from constructional defects. (BDR 54-251)
Senator Schneider:
This is not a right-to-repair bill; it is a requirement-to-repair bill. This is unlike medical malpractice where a patient cannot be made whole, but on construction defects you can be made 100 percent whole. There is no argument about it; it is black and white. After 6 years of debate, I have brought this bill forward proposing the commission be funded through the recovery fund. It can be left up to this committee or the commission board to increase fees the contractors pay to the recovery fund for any additional expenses. Currently, there is $3,068,760 in the recovery fund. I have spoken with many subcontractors who are all willing to pay more money on their licensing to cover a commission. We did have an executive agency fiscal note from the board. In my opinion it is in drastic error. They said the commission would handle 225 new class-action suits per year.
I talked with Charles Harvey, case management coordinator for district court in Las Vegas, who said since 1996 there have only been 220 cases (Exhibit K). So, it was a little disingenuous to say we would have 225 new cases a year, and I suggest we throw the fiscal note away.
I have a seven-member commission because they would be breaking into two subcommittees to handle the existing 220 cases that are stacked up in court right now. We have specifically laid out how a home owner or a homeowners association would come to the commission; the builder has every opportunity to repair. It is very simple. It is laid out where registered return receipt letters would be mailed. All homeowner associations have attorneys and professional managers who can easily bring the cases to the commission. I talked with one homeowners association attorney who has done construction-defect cases, and he is in favor of the bill and likes the way it works. It works similar to gaming control where there is an authority that can give a quick decision.
I would remove any reference to Realtors, appraisers, and inspectors from section 30, pages 14 and 15.
Chairman Townsend:
Would your motion need to be amend and do pass, removing that section providing the board with an opportunity to raise funds to replenish the recovery fund, and use the recovery fund for purposes of establishing the commission?
Senator Schneider:
Yes, that would do it.
SENATOR SCHNEIDER MOVED TO AMEND AND DO PASS S.B. 371.
Mr. Powers:
“For the record, the sections you are referring to are 27 to 34. They are all connected with specific education requirements.”
SENATOR NEAL SECONDED THE MOTION.
Senator Carlton:
Do we know how much more the contractors would be contributing?
Senator Schneider:
We do not know exactly. This is why it was left open for the board to set the amount.
Senator Carlton:
As a consumer, would I recognize I have a problem in my home that is under the dollar amount originally discussed with the recovery fund? Would I now be forced to go to the commission to access that money to fix my home? Are we adding another step?
Senator Schneider:
No.
Senator Carlton:
As a consumer I can go directly to the fund. I do not have to go to the commission?
Senator Schneider:
That is correct. However, the commission would probably process it faster.
Senator Carlton:
What is the timeline? How long just for the recovery fund?
Senator Schneider:
They have tried to speed it up. The recovery fund is used mostly for pools because that is where most of the people have had problems. This recovery fund is usually a 90-day turnaround through the commission, but I am not sure about the fund in general.
Chairman Townsend:
Did not we set the fund up for those people where the builder went bankrupt, and have a half-built pool or spa that needs completion?
Senator Carlton:
I may not be remembering correctly, but I thought if I had a problem in my home other than a pool, I could still access that fund.
Senator Schneider:
Correct. That is when your builder is out of business, broke, and there is no insurance.
Senator Carlton:
If I have a problem with my home and the builder is still in existence, and I cannot go to the recovery fund, would I have to through the commission?
Senator Schneider:
If the builder is still in existence, then you would go through the commission. You would not have to go to court like you would now.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator Carlton:
I would like to reserve my right to change my vote on the Senate Floor if there are unanswered questions.
Mr. Powers:
Mr. Chairman, for the record so the Real Estate Commission doesn’t respond. It’s sections 22 to 34 that involve the education requirements. But I understood the motion to remove the education requirements with regard to real estate licenses.
Senator Schneider:
On S.B. 292, could we move that bill to the other committee for an interim study?
SENATE BILL 292: Revises circumstances under which Nevada Attorney for Injured Workers is required to represent injured. (BDR 53-784)
Chairman Townsend:
Let us go to S.B. 292.
Senator Schneider:
Yesterday, we discussed moving this bill to the Senate Committee on Legislative Affairs and Operations per request for an interim study. Don Jayne said his clients would be in favor of that if it addressed a workers’ compensation study. He said they would support paying for it out of assessments to all workers’ compensation insurers, which is administered by the Division of Industrial Relations (DIR). I would like to amend this bill to a study on workers’ compensation issues. I believe Mr. Young prepared language to use to amend and re-refer to the Senate Committee on Legislative Affairs and Operations.
Mr. Young:
That is in the workbook (Exhibit E). It is general language I think captured the essence of the discussion about what type study and the scope of it.
Vice Chairman Hardy:
Do we need to speak to the funding Senator Schneider just raised?
Senator Schneider:
I will take that to the Senate legislative affairs committee.
Senator Carlton:
Will they be the ones describing the parameters we discussed?
SENATOR SCHNEIDER MOVED TO AMEND DO PASS AND RE-REFER TO SENATE COMMITTEE ON LEGISLATIVE AFFAIRS AND OPERATIONS S.B. 292.
SENATOR HARDY SECONDED THE MOTION.
Senator Carlton:
Would the discussion under workers’ compensation include heart and lung?
Senator Schneider:
The main discussion will be on how to get the people through the process faster and easier.
Senator Carlton:
it is more procedural?
Chairman Townsend:
Yes, as opposed to the actual benefits. It is more of a process. If it comes up during debate we need to visit benefit issues, that would be for the next session or the next interim session.
Senator Carlton:
Thank you. I wanted to get that clarified for the benefit of the listeners.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Townsend:
Committee. We have failed in our efforts to get a waiver. I would like to at least move one of these bills out of here. Perhaps next week we can have an additional floor member to include some of these. The options are S.B. 250, S.B. 289, and S.B. 364. It would be my intention to give the committee individually and collectively the opportunity once we get one to the floor to bring floor amendments that would include the other two bills. I would like them to have that opportunity as I would also.
SENATOR O’CONNELL MOVED TO DO PASS S.B. 250.
SENATOR HARDY SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Townsend:
We will go to Senator Carlton on S.B. 338, the bill to license and regulate message therapists.
SENATE BILL 338: Provides for licensing and regulation of massage therapists. (BDR 54-1104)
Senator Carlton:
When the bill was previously presented there were numerous amendments. We had a subcommittee of one, so I take total responsibility for this bill. It was one of the hardest subcommittees of which I have ever been a member. I believed going in that we could address all the major issues, and come out with a regulatory scheme that would be uniform across the State. However, having worked with numerous boards over the years, I do not believe this industry is ready to take that step. There were a lot of technical questions, and information to be relayed to them. In the respect that there are regulatory schemes at the local levels close to the people who are being regulated, I do not think this is a good time to take the step toward a State board. I believe this industry needs to come together and work with each other a little more throughout the State before they are prepared for that. The thing that concerned me is these are the people who most likely would be asked to sit on the board. They truly had no idea what would be involved in the actual establishment of a board and the rules and regulations.
The main issue worked through to a consensus agreement was temporary licensure. We are not going to a temporary license, but we solved the problem of people getting a license in a timely manner so they can work. The issue was a timeline issue of applying for the work card after they had completed the course and taken the test.
I have an amendment containing a section addressing the concern of obtaining a work card. It would allow the student with a referral from the school to present the referral to the local jurisdiction that does the work card required by the investigation process, and to do that before completing the course. This expedites having the work card available upon completion of the course and receipt of the certificate. I have discussed this with Clark County representatives and the Las Vegas Metropolitan Police Department (Metro) in expediting the process. They responded it was reasonable and doable, and if it helps the people get to work quicker, they are more than willing to cooperate to address the problem in the past of getting work cards.
Senator Sandra J. Tiffany, Clark County Senatorial District No. 5:
As a result of the subcommittee we came up with five pages of amendments (Exhibit L. Original is on file in the Research Library.) that we worked through with the two boards in Reno, the Physical Therapists Association, and a couple of independent massage therapists. I talked with county manager Thom Reilley in Clark County, and he is in complete agreement with my amendments. I talked with Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department, regarding the provisional license and came up with a different approach from the subcommittee chairwoman’s. The problem with going to Lt. Olsen and saying we need to process these work cards a little earlier is you only have 1 county out of 17. I said we have 17 counties we have to deal with, and to get a letter from Metro saying all 17 counties will waive the provision to get the work-card process started while the applicant is still in school finishing their 500 hours while the background check is being done. In the amendment on a provisional license, we gave the board the opportunity to have the application for a provisional license. Under the provisional license, the massage therapists have to sign an affidavit saying they have not been found guilty of any crime related to what is in the statutes such as prostitution, sexual behavior, aggressive criminal behavior, and others in the bill. By signing the affidavit, if it is found false, they can be prosecuted by the attorney general who sits on the board. This way the massage therapists can get their 500 hours, take the national test, and also not be found guilty of any crime.
I told Lt. Olsen we have until June 2, 2003, for him to say all 17 counties sheriff departments have universally agreed to allow the massage therapists about to graduate to grant them the go-ahead to apply for the work card while they were still in school. We believe this is the best way for the massage therapists to get a work card upon graduation and start working.
Senator Carlton:
Would provisional license essentially be the temporary licensure issue we had discussed before? Would it still be allowing people to work before their work cards come back?
Senator Tiffany:
To me provisional and temporary are interchangeable.
Senator Carlton:
I am concerned about the licensure issue.
Senator Tiffany:
It is temporary and would be 90 days. The message therapists would still have to have the 500 hours. They would still have to have taken or applied for the national board test, and sign the statement that they are not guilty of a crime.
Senator Carlton:
I need to relay to the committee the true trouble caused by this particular provision. The uncomfortable level of this issue was unbelievable in subcommittee. We thought we had thoroughly addressed it so there would not be any temporary and/or provisional licensure with this provision. I would let the committee know that was one of the most difficult issues. We thought we had consensus on this particular provision. The reason it was discussed with Lt. Olsen is because it seemed to be a problem only in Clark County. It did not appear to be a large problem anywhere else. I thought with Clark County having the greater number of massage therapists we could gain the cooperation of other municipalities. The difference is in northern Nevada where there is a multi‑jurisdictional recognition of the different boards who watch this. I did not see it as big an issue as it was in southern Nevada.
Senator Tiffany:
This is a Statewide license in 17 counties, and a universal application. If we want to say Clark County is the only one that can answer all of the 17 county needs about issuing work cards, that is why it was decided to make it universal. If Clark County would change their regulations within Metro, we would be pleased. But in case they do not, then at least we have this statement to cover the other counties.
Senator Carlton:
Mr. Chairman, my recommendation stands.
Senator O'Connell:
I know how long Senator Tiffany has been working on this, so I feel comfortable with the amendment she is offering. I do not mean this disrespectful of the work Senator Carlton did, but I feel comfortable with the discussions Senator Tiffany and I have had on this, and would include her amendment.
SENATOR O’CONNELL MOVED TO AMEND AND DO PASS AS AMENDED S.B. 338.
SENATOR HARDY SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS CARLTON AND SCHNEIDER VOTED NO.)
*****
Chairman Townsend:
Moving on to S.B. 399. I looked at the statute and I am clueless. I read NRS 598.0915 with a long list of items. Is the list being amended, or is something being added?
SENATE BILL 399: Revises provisions governing trade practices and resident agents. (BDR 52-429)
John R. McGlamery, Deputy Attorney General, Bureau of Consumer Protection, Office of the Attorney General:
We took the word “goods” out of section 2. The resident agents group recommended we cease and desist. There was a way of getting a notice to the resident agents when we believed something was going on. They did not have to go through a full-blown, deceptive trade prosecution in those cases. A definition was added for non-face-to-face transactions so the intent of the bill is clear.
Chairman Townsend:
With all due respect, it says recommended amendments to S.B. 399 from consensus group (Exhibit M). Then it says add section to NRS 598. It is a huge section and I do not know where it goes.
Mr. McGlamery:
It is the two sections in the beginning regarding cease and desist and the definition for goods and services.
Chairman Townsend:
You are not touching any of the NRS?
Mr. McGlamery:
In the first sections, no. We are recommending these changes be added to the original bill.
Chairman Townsend:
I thought the way the original bill was drafted was a little broad. Now you are adding more things or are you narrowing?
Mr. McGlamery:
We are actually narrowing it down. The definitions of goods, services, and face‑to-face better define the intent of the bill. I took to heart the suggestions made by the committee because they did not change the intent. We took the information from NRS 598.0971 to get a cease and desist. This is the language that gives the same powers to the commissioner of consumer affairs. When the attorney general’s consumer’s advocate office brings an action, the consumer’s advocate can do a cease and desist as well.
Chairman Townsend:
Are you here to say that if we amend the section of the Department of Business and Industry that takes the Consumer Affairs Division and moves it over to Bureau of Consumer Protection, we are handled?
Mr. McGlamery:
No, we are not. It is a completely different thing.
Chairman Townsend:
Well, you should be here asking for it. I have been a proponent of that for 10 years and I cannot get anyone to listen.
Mr. McGlamery:
To be honest, we need consumer affairs as a separate non-attorney general entity.
Chairman Townsend:
When you take 6000 phone calls a year and we cannot get anything done for them, and your agency is starving, this is where you do not debate me. Which of these documents does what with regard to the bill?
Mr. McGlamery:
The separate page (Exhibit M) explains what we are doing, and the bolded pages (Exhibit N) are what is being added to the bill. Also the recommendation was made that the cease and desist powers be added to some of the powers of the consumer advocate’s office to allow us the same ability to run administrative actions which are far cheaper to both the businesses and consumers involved, rather than only having the district court as our sole remedy.
Chairman Townsend:
Are there any Assembly bills from chapter 52 of NRS?
Timothy Hay, Chief Deputy Attorney General, Bureau of Consumer Protection, Office of the Attorney General:
I am not aware of any. There may be one out there, but I am not sure it has been introduced.
Chairman Townsend:
What is the fiscal note on this?
Mr. Powers:
“The fiscal notes are there because of violations of the Deceptive Trade Practice Act or criminal violations.”
Mr. McGlamery:
This does not change any of the criminal provisions at all.
Chairman Townsend:
Did Sprint’s issue of units versus minutes get resolved?
Margaret A. McMillan, Lobbyist, Sprint Nevada:
Yes. The amendment proposed for section 12 is to our satisfaction.
Mr. McGlamery:
For the record, I want to thank the people who came to us with recommendations. Those changes have not watered down the bill, and brought clarification so there would not be unintended consequences.
Chairman Townsend:
I just identified one bill in our possession that passed the Assembly that is Title 52 of NRS. Since I wrote most of this statute, I am very uncomfortable to rush it. I am more than willing to take up this bill when we hear the Assembly bill.
Mr. Young:
The bill is A.B. 232. On March 19, 2003, it was referred to the Senate Committee on Commerce and Labor.
ASSEMBLY BILL 232 (1st Reprint): Makes various changes relating to telecommunications. (BDR 52-1073)
Mr. Skancke:
We support the amendments brought forward by the consumer advocate’s office. I would encourage the committee to process A.B. 232.
Chairman Townsend:
Thank you committee, we are adjourned at 10:50 a.m.
Laura Adler,
Committee Secretary
APPROVED BY:
Senator Randolph J. Townsend, Chairman
DATE: