MINUTES OF THE

SENATE Committee on Commerce and Labor

 

Seventy-second Session

May 6, 2003

 

 

The Senate Committee on Commerce and Labor was called to order by Chairman Randolph  J. Townsend, at 7:18 a.m., on Tuesday, May 6, 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 Terry John Care, Clark County Senatorial District No. 7

Senator Mark E. Amodei, Capitol Senatorial District

Assemblywoman Christina R. Giunchigliani, Assembly District No. 9

Assemblyman David E. Goldwater, Assembly District No. 10

Assemblyman John Oceguera, Assembly District No. 16

 

STAFF MEMBERS PRESENT:

 

Scott Young, Committee Policy Analyst

Courtney Wise, Committee Policy Analyst

Kevin Powers, Committee Counsel

Maryann Elorreaga, Committee Secretary

Lynn Hendricks, Committee Secretary

 

OTHERS PRESENT:

 

Walter Bruce Robb, Counsel, State Board of Professional Engineers and Land Surveyors

Berlyn Miller, Lobbyist, A-1 Rubber Stamp and Engraving, Incorporated

Terry McHenry, Lobbyist, Nevada Association of Land Surveyors

Tom R. Skancke, Lobbyist, Nevada Society of Oriental Medicine

Tom Stewart, State Board of Oriental Medicine

Sharon Roth, O.M.D., State Board of Oriental Medicine

Shauna Haipola, O.M.D.

Michael LaBrum, D.C., O.M.D.

Diane Crowne

Fiona Kelley, O.M.D., Vice President, Nevada Oriental Medicine Association

Setsuko Sage, O.M.D.

Stephanie Jordan

Mark Montgomery

Marina Ponton

Vicky Sakach, Vice President, State Barbers’ Health and Sanitation Board

John M. Vergiels, Lobbyist, Nevada State Board of Cosmetology

Mack Smith, Jr., Barber

Antinette Maestas, Nevada State Barbers’ Association

Nathaniel K. LaShore, President, State Barbers’ Health and Sanitation Board

Eloy Maestas, Secretary, State Barbers’ Health and Sanitation Board

Morton D. Fielding, D.P.M.

Cathy Bax, D.P.M., Secretary-Treasurer, State Board of Podiatry

Sean Lehmann, D.P.M., Nevada Podiatric Medicine Association

James Oscarson, State Board of Podiatry

Raymond C. “Rusty” McAllister, Lobbyist, Professional Firefighters of Nevada

Jim Fry, Workers’ Compensation Analyst, Risk Management Division, Department of Administration

William Harnedy

John Ellerton, M.D.

Buffy Gail Martin, Lobbyist, American Cancer Society/Reno

Robert Schreihans, President, Carson City Firefighters

Wayne Carlson, Lobbyist, Public Agency Compensation Trust

Randy Waterman, Risk Manager, City of Sparks

Don Jayne, Lobbyist, Nevada Self Insured Association

 

Chairman Townsend:

We will open the hearing on Assembly Bill (A.B.) 146.

 

ASSEMBLY BILL 146 (1st Reprint): Revises requirements for licensure as professional engineer or land surveyor. (BDR 54-496)

 

Walter Bruce Robb, Counsel, State Board of Professional Engineers and Land Surveyors:

This bill was proposed by the board to require 4 years of active experience to be licensed as either a land surveyor or engineer. The existing statute, chapter 625 of Nevada Revised Statutes (NRS), allows a person to qualify with two degrees and 2 years of experience. The other 49 states require 4 years of experience. We have no objection to the amendment offered by Senator Care, as long as these stamps are ordered through the board (Exhibit C).

 

Senator Terry John Care, Clark County Senatorial District No. 7:

I was approached by a constituent with a problem she was having some months ago. Mollie Miller is the president of A-1 Rubber Stamp and Engraving, Incorporated. I will let her husband Berlyn Miller explain the problem this amendment seeks to correct.

 

Berlyn Miller, Lobbyist, A-1 Rubber Stamp and Engraving, Incorporated:

The amendment allows licensees to obtain the required stamp from any retailer or manufacturer of stamps. Currently the statute requires them to obtain these stamps directly from the board. This has been a problem, since obtaining stamps from the board is time-consuming and expensive, and stamps are often not correct.

 

The requirement that stamps be ordered through the board was instituted recently, but retail manufacturers of stamps were not notified. When we called the board last year to report an engineer requesting an incorrect stamp, they informed us we were not to manufacture these stamps any more. We checked with 25 other states and found that only Nevada requires the stamp be ordered through the board. This information is included in my written testimony (Exhibit D).

Senator Mark E. Amodei, Capitol Senatorial District:

I am opposed to this bill. Last year I was contacted by Jacob Hildebrand, a constituent who submitted an application to the board claiming under NRS 625.183 that his 4-year degree satisfied 2 of the 4 years experience required. I have made a copy of my constituent request file on this matter (Exhibit E. Original is on file in the Research Library). Mr. Hildebrand’s application was denied by Lane Garrison, a board member who said he did not agree with NRS 625.183 that a degree in a field other than engineering is equivalent to 2 years of active experience. Mr. Hildebrand was directed to discuss the matter with the board’s executive director, Noni Johnson. She told him, “The Nevada Revised Statutes are misleading,” and said the provision allowing education to substitute for experience “has been misunderstood.” In fact, the statute is abundantly clear. Subsection 4 of NRS 625.183 states:

 

To determine whether an applicant for licensure as a professional engineer has an adequate record of active experience pursuant to paragraph (a) of subsection 3 … Graduation from a college or university in a field other than engineering is equivalent to 2 years of active experience.

 

Mr. Hildebrand was then told he could appeal the decision at a board meeting, but that there was not time for him to do this in time for the next exam because no board meeting was scheduled. When Mr. Hildebrand’s case did come before the board, they told him that regardless of the statute, they were “the ultimate authority” on his application and voted 6 to 1 to deny the appeal. After I was made aware of the situation, I dealt with Mr. Robb and found his response to be professional and exemplary. In March 2002, I sent Mr. Robb a letter which included a legal opinion from the Legislative Counsel Bureau (LCB) concerning the meaning of the statute (Exhibit F). The LCB staff agreed that the statute clearly says a 4-year degree in a field other than engineering is equivalent to 2 years of active experience.

 

My concern here is with the board’s attitude. Regardless of the plain meaning of the statute, the board saw fit to ignore it. The last time I checked, the people in charge of what the statutes say were the 63 people with election certificates to the Senate or the Assembly. This board entirely ignored the statute and are now asking you to justify their actions after they have already de facto imposed their own interpretation on the law. Especially in a professional licensing context, this deeply disturbs me.

 

This board currently has a great deal of discretion as to who may sit for the exam. The statute requires 4 years of active experience “that is satisfactory to the board” and graduation from an engineering curriculum “that is approved by the board.” In the hearing of this bill in the Assembly Committee on Commerce and Labor, a member of the committee who is an engineer asked which degrees could be used to count toward this. The board could not agree and gave him different answers. What this board needs is more clarity of direction and less discretion. I have heard no testimony stating there are many applicants or listing problems with underqualified engineers.

 

Before you process this bill, I would urge the committee to get some objective evidence on whether the quality of engineers sitting for the exam has decreased because we are accepting the 2-year substitution. Get some evidence of problems occurring because underqualified people were licensed. In cases where someone wants to sit for the exam and the board’s schedule prohibits their case from being reviewed in a timely manner, they should be allowed to take the exam regardless and have the appeal occur afterwards.

 

Senator Carlton:

When I read this bill I thought there was an actual public purpose in raising the standards for engineers and that the profession has evolved. With Senator Amodei’s comments, I need to go back and review this matter.

 

Mr. Robb:

Senator Amodei is correct. The board misapplied the statute in Mr. Hildebrand’s case and denied him a license. I have apologized to Senator Amodei for this. However, the issue before this committee is whether the public is better protected by requiring 4 years of active experience. Every other state says yes. That is your decision, not the board’s.

 

Senator Carlton:

But apparently this board made the decision that they did have the authority to interpret the statute as they pleased. Has there been a problem?

Mr. Robb:

No. This is the only time I have seen this request in my 22 years of serving as counsel to the board. Every other licensee applicant we have had has had 4 years of active experience. There is no list of problems caused by inexperienced engineers because we have not licensed any. I apologize again to Senator Amodei and his constituent for what happened. I assure you the board now understands its position is to enforce the law, not to make it.

 

Senator Neal:

Page 2, line 18, says 2 of the 4 years experience must be under the direct supervision of a licensed engineer unless this requirement is waived by the board. Under what circumstances would you waive this requirement?

 

Mr. Robb:

Sometimes we have applicants who cannot demonstrate that they worked under the direct supervision of the licensed person. In those circumstances, we weigh the person’s experience and may waive the requirement.

 

Senator Neal:

A person with 5 years of accredited schoolwork in engineering could not meet the requirement to test for licensure, correct?

 

Mr. Robb:

Correct.

 

Senator Neal:

Why do you value experience over education?

 

Mr. Robb:

The process is that you learn in school, and then you learn to apply what you have learned in the real world under the guidance of experienced professionals.

 

Senator Neal:

So you are saying you can get into this profession through a hybrid apprenticeship program.

Mr. Robb:

Yes. It is also true in Nevada at the moment that you can be licensed without a degree at all if you have 10 years of active experience. This program is being phased out and will expire in 2010.

 

Senator Carlton:

The second part of the bill deals with land surveyors, and I would like more information on that.

 

Terry W. McHenry, Lobbyist, Nevada Association of Land Surveyors:

We believe very strongly that experience is an absolute necessity in addition to the minimal educational requirements to serve the public as a land surveyor. The experience requirements in this bill are a minimum for land surveyors. I have a degree in land surveying, and when I entered the field as a graduate I discovered very quickly how little I knew about the profession.

 

Senator Amodei:

The issue here is not whether we have qualified engineers in Nevada. If there has only been one person who tried to substitute education for experience, I fail to see the threat for the State. As you look through this bill and the existing statute, you will see that the board is given discretion in many areas. What I have seen in the board’s actions in this instance is not indicative of an entity that needs to be given additional discretion in these matters. If there are any changes in this statute, it should be to give the board less discretion.

 

Chairman Townsend:

We will close the hearing on A.B. 146 and open the hearing on A.B. 21.

ASSEMBLY BILL 21 (1st Reprint):  Makes changes related to practice of Oriental medicine. (BDR 54-226)

 

Assemblywoman Christina R. Giunchigliani, Assembly District No. 9:

This is a cleanup bill regarding the practice of Oriental medicine. It does three things:

 

First, it clarifies that the professionals appointed to the board must have at least 3 years of experience in the field. We have had a situation in which a board member was appointed to the board immediately after being licensed. Most boards require 5 years, but since this is a new board with a small licensee pool we dropped it to 3 years.

 

Second, the other board members are a doctor of medicine (M.D.) licensed by the Board of Medical Examiners, and a member of the public residing in Nevada for at least 1 year.

 

Third, the board requested clarification regarding legislative intent on the content of the State exam.

 

Since the 71st Legislative Session, the board has licensed 12 individuals, 6 of them Asian. None have been denied licensure. A further 8 licenses are pending, and 4 have withdrawn.

 

Tom R. Skancke, Lobbyist, Nevada Society of Oriental Medicine:

We support this bill.

 

Senator Carlton:

Does the board have a lobbyist representative now?

 

Mr. Skancke:

I do not know. I believe there are a few board members here today.

 

Tom Stewart, State Board of Oriental Medicine:

I have written testimony (Exhibit G). I have been the public member of the board for 3 years. I oppose the changes this bill would make to the State exam. The national exam is fair, valid, and reliable. For the board to attempt to develop a similar exam would be costly and redundant.

 

Sharon Roth, O.M.D., State Board of Oriental Medicine:

I am representing only myself. This bill was not brought to the board for endorsement. I am opposed to this bill. It allows the Governor to appoint whomever he chooses to the board. I am the board member who was appointed immediately after being licensed. I was the first person licensed in 5 or 6 years at that time and the first person licensed in Nevada who was trained in the United States. The 3-year rule would restrict board membership to a very small pool of candidates. There are only 30 licensed practitioners in the State at this time and many of them are not eligible for board membership for other reasons.

I am also concerned about section 2, subsection 1, paragraph (b) of the bill, which restricts professional board membership to licensees who are not licensed in Nevada to practice any other healing art. Many people do not come to the practice of Oriental medicine until they have already had a successful career in another healing art. We have applicants who are licensed psychologists or chiropractors. Applicants should not be punished because they have a broader educational background.

 

Chairman Townsend:

The way this is written, if a chiropractor wished to be licensed in Oriental medicine, he would have to surrender his chiropractic license in order to serve on the board. Was that the intent?

 

Ms. Giunchigliani:

No, that was not the intent. We wanted to make sure at least three of the five board members had practiced in the area of Oriental medicine. If it needs to be clarified that they need not surrender any other license they hold, I will agree to that.

 

Shauna Haipola, O.M.D.

I am opposed to this bill. I was scheduled to take the exam in June 2001. It was postponed to November 2001. I passed the exam and my license was approved. I was not notified of this even after contacting them repeatedly. I did not receive my license until I started legal action in November 2002.

 

The board has made a tremendous effort to try to license new people in the State and are doing an admirable job. This bill would hinder this process and cripple the board financially. It is premature to ask this board to make further changes when they have not yet proved they are capable of running the board.

 

Senator Neal:

Boards can serve to keep standards high, but they can also serve to limit the numbers of people coming into the profession. Was that your experience when you applied?

 

Dr. Haipola:

Yes. I had an extremely difficult time even finding the board. Their license requirements are the most restrictive in the country. Adding a State exam of this scope would make it even more restrictive. Our population is not being served with the number of practitioners we currently have.

 

Senator Neal:

How many licensees do we have at the moment?

 

Mr. Stewart:

I believe there are 36 licensees, 6 of whom are out of State. This is the lowest concentration of practitioners of any of the western states, even though Nevada was the first to license acupuncturists in 1973. There have been limitations to the licensing of applicants. The statute has not changed as the profession has changed.

 

Senator Hardy:

I should probably disclose that my father was involved in the development of the board in the 1970s and was the executive director in the late 1990s. He is no longer involved in any way.

 

Senator Carlton:

I would like to inform the board that they have not submitted the required quarterly summary of disciplinary action. This was put into law in the 71st Legislative Session. If you need help completing this requirement, please contact me and I will help. I would also like the board members to be aware of S.B. 310. It has an audit provision put into the bill specifically for your board because I realize the problems you face in getting your audit done. You have a small number of licensees, but you are mandated to be self-sufficient.

 

SENATE BILL 310: Makes various changes relating to certain occupational boards and commissions. (BDR 54-223)

 

Michael LaBrum, D.C., O.M.D.:

I oppose this bill. It took me 4 years to get my license even though I was already a licensed physician in Nevada. I would like to voice my opposition to the reinstatement of the State exam. This is the technique used by the board to limit licensees.

Diane Crowne:

I oppose this bill on general principles. I am a licensed acupuncturist in the state of Washington. I have lived in Nevada for 4 years and was denied a license in this State. Do not give more discretion to a board with a pattern of limiting the number of licensees. This board has a history of nondisclosure. There are no public records of the minutes of their meetings.

 

Fiona Kelley, O.M.D., Vice President, Nevada Oriental Medicine Association:

I oppose this bill. I represent many in the Chinese community who feel this bill does not help the profession. We have the highest standards in the country, but this bill closes the door to too great an extent. There are close to 14,000 acupuncturists in the United States, but only 30 in Nevada. It does not serve the public to raise the standards further. The board does not have the funds to create a new test.

 

Senator Neal:

What is the difference between the national exam and the State exam?

 

Mr. Stewart:

At this point, the State exam is a test simply on State laws. This bill would have the board create an exam on medical skills. These are already covered by the national exam which is already required by the statute.

 

Setsuko Sage, O.M.D.:

I am opposed to this bill based on my experience. It took me almost 3 years to obtain my license in Nevada. This bill will make it harder for future applicants.

 

Stephanie Jordan:

I am opposed to this bill. It appears to be one more barrier to getting qualified acupuncturists in this state. The requirements for board members will result in an extremely narrow focus and narrow thinking at a time when we need to be drawing in more people. I am also concerned about section 2, subsection 2, paragraph (c) of the bill regarding pecuniary interests. A medical doctor (M.D.) with no interest in Oriental medicine would not benefit the board.

 

I am currently licensed in Florida as an acupuncture physician and clinical psychologist. I applied to the board in October 2002 and moved to Las Vegas in December with the expectation of setting up practice. At the board meeting in December, I learned the board had met weeks earlier and passed new regulations that removed me from candidacy and imposed an additional fee of $1000 to take the State exam, if they should decide to accept my application.

 

Chairman Townsend:

This is a violation of the law of detrimental reliance.

 

Dr. Jordan:

I will contact a lawyer. The board also wants me to retake the national exam which I passed 4 years earlier because they set a 2-year window from date of exam to date of application. Until recently they had a requirement of 6 years experience. It is impossible to meet both standards.

 

Mark Montgomery:

I am opposed to this bill. The licensing process in Nevada is deeply flawed and unprofessional. This bill is an attempt to legitimize this flawed process. I am a licensed acupuncturist in Maryland, nationally certified in acupuncture, and a former faculty member at the Traditional Acupuncture Institute in Maryland. I received my license in Maryland 3 weeks after passing the exam. I moved to Las Vegas last year and have now given up my attempts to be licensed here. Maryland and Nevada both began regulating acupuncture in 1973. Since then, Maryland has licensed 1100 applicants, almost 30 times the number licensed in Nevada, in spite of the fact that Maryland’s population is only twice as much. 

 

Marina Ponton:

I am opposed to this bill. I am licensed in the state of Florida and would like to practice in Las Vegas. Because of the time involved in getting licensed in Nevada, I have been forced to take a job in the service industry. This is not my chosen profession, and I am effectively taking a job away from someone else. I have therefore decided to go to another state where it is easier and more cost‑effective to get licensed.

 

Since there are currently no Oriental medicine schools in Nevada, every practitioner must come from somewhere else. This bill does not allow people to move into Nevada, create a practice, and generate dollars.

 

Chairman Townsend:

We will close the hearing on A.B. 21 and open the hearing on A.B. 258.

ASSEMBLY BILL 258 (2nd Reprint): Revises provisions relating to cosmetology. (BDR 54-912)

 

Ms. Giunchigliani:

This bill allows a barber to work in a cosmetology establishment. In addition, it specifies that food or beverages served in such establishments are under the jurisdiction of the health department. This does not include a coffee setup, which is still under the jurisdiction of the board. Further, the bill requires that cosmetology instructors must have 1 year in the profession, rather than 3 years.

 

Senator Carlton:

What is the substance of the repealed sections?

 

Ms. Giunchigliani:

Those sections prohibited persons of another profession from operating in a cosmetology establishment. Currently, the barber’s board has regulations dictating the size of the walls in a barber’s station and other details. These posed a hardship on businesses having to remodel to meet the barber’s board standards. This bill says the barber’s board will still license barbers, but they may choose to work to a cosmetology standard.

 

Senator Neal:

The repealed section seems to be revoking the board’s authority to grant temporary permits for educational demonstrations and exhibitions. Why was this removed? I am concerned that this statement in section 2 will prevent this activity from taking place.

 

Ms. Giunchigliani:

I do not know. It was not my intention to excise that portion of the statute. If we need to clarify that, we will check with legal division.

 

Kevin Powers, Committee Counsel:

I would need to look into this a little more closely. What I believe is happening, though, is if you see in section 3 of the bill, on page 2, it’s amending the qualifications for a provisional license as an instructor, and it takes the term from 3 years down to 1 year. Unless there’s another reason for it, I believe that by reducing the provisional license requirement down to 1 year, it opens up to a greater number of people who can get a provisional license as an instructor. If you have a provisional license as an instructor, you would be able then to engage in the activities that you otherwise would have needed a temporary educational permit for. So by reducing that down to 1 year, most people would probably just be able to obtain the provisional license as an instructor to engage in the activities. And that I would still need to investigate further to see if that was the intent. … There would no longer be a temporary educational permit. In order to engage in the type of demonstrations and exhibitions that the temporary educational permit encompassed, you would need an instructor’s license. You can get a provisional instructor’s license under section 3 and still engage in the type of activity that would be covered by the temporary educational permit.

 

Senator Hardy:

I need to disclose that my wife is a licensed cosmetologist.

 

Chairman Townsend:

Section 1 requires a barber operating in a cosmetology establishment to display his license in plain view at his station. We recently processed Senate Bill (S.B.) 372 which removes the home address from the cosmetology license. Perhaps it would be enough to have it displayed in plain view, then make regulations to say where.

 

SENATE BILL 372: Revises provisions relating to cosmetology. (BDR 54-886)

 

Ms. Giunchigliani:

I have no objection to the change and will reconcile the language with S.B. 372.

 

Vicky Sakach, President, State Barbers’ Health and Sanitation Board:

My main concern is section 4 subsection 2, which allows a cosmetologist to lease space to or employ a barber. This is in direct conflict with existing statutes regarding barbers. According to NRS 643.182, barbers are required to work in a licensed barbershop. The barber board imposes stricter sanitation rules than the cosmetology board. Section 643.1716 of NRS requires barbers to have hot and cold running water at their station to wash their hands between clients.

Chairman Townsend:

Are you saying the statute prohibits anyone but a barber from employing a barber?

 

Ms. Sakach:

A barber must work in a licensed barbershop. There are establishments that are combined beauty shops and barbershops. In those circumstances, we require special areas for barbers with walls and a minimum of clear floor space. The main reason for this is safety issues necessitated by the use of a straight razor. We cannot run the risk of a barber’s elbow being jogged while he is holding a straight razor against a customer’s throat.

 

Senator Neal:

This bill only affects NRS 643.171 through 643.1717. Your point is a good one.

 

Ms. Sakach:

The bill is vaguely worded and could be applied to other situations. It sounds as if they could put a barber in the middle of a beauty shop without having the proper area and the proper equipment they need.

 

Senator Neal:

Your concern is correct. That would be permitted under this proposal.

 

Ms. Sakach:

The barber is essentially being deregulated by putting him in a beauty shop.

 

Chairman Townsend:

As the two professions evolve, we need to review both sets of regulations to make sure the public is protected.

 

John M. Vergiels, Lobbyist, Nevada State Board of Cosmetology:

It is my understanding that the barber’s board would still do the inspections and make sure the barber was properly licensed and his space complied with their regulations. The cosmetology board would not oversee the barber or his space.

 

Chairman Townsend:

Section 1 subsection 2 of the bill says, “The provisions of chapter 643 of NRS, except the provisions relating to the licensing of a barber, do not apply to a cosmetological establishment in which a barber engages in the practice of barbering pursuant to this section.” This may create a conflict.

 

Ms. Giunchigliani:

There needs to be some continuity. Barbering is a specialty field and a wonderful profession. The intent is not to change that. As the economy shifts, it is expensive to set up a barbershop or school. This is an employment matter. Nevada Administrative Code (NAC) 643.250 states:

 

No barbershop may be operated in connection with any business other than a stand for shining shoes or a manicurist’s stand, or both, unless a substantial partition extending 8 feet high or to the ceiling, if the ceiling is lower than 8 feet, separates it from any other residence or business.

 

I understand the safety concerns. However, what they are requiring is more than they require in barbershops. You do not have a partition between stations in barbershops, nor does each station have that much space. There needs to be a balance without taking away anything. We are not trying to have a negative impact on the industry, but times change. Individuals should not be prevented from choosing where to work. If this bill is not acceptable, I will continue to work on it.

 

Senator Neal:

The bill seems to be an attempt to merge barbers into the cosmetology establishment and make them one.

 

Ms. Giunchigliani:

That was not the intent. Barbers are necessary and have a different clientele base from cosmetologists.

 

Mack Smith, Jr., Barber:

I am opposed to this bill. The bill seems to be merging barbers and beauticians. I do not think the modifications required for the barber’s station would be excessive. The barber’s board is one of the best run in the country.

Antinette Maestas, Nevada State Barbers’ Association:

We are opposed to this bill. Beauticians and barbers are two separate entities. I am a licensed barber and a licensed cosmetologist, and I choose to work in a barbershop. Many beauty shops are arranged so the cosmetologists work shoulder to shoulder. I could not safely give a shave with a safety razor in an establishment like that. I use a safety razor daily in a barber shop.

 

Nathaniel K. LaShore, Vice President, State Barbers’ Health and Sanitation Board:

I am opposed to this bill. Space is a very important issue. One barber requires 100 square feet, and two barbers need 160 square feet. We have talked with someone who wants to bring a barber into a beauty establishment and found that person trying to put a barber and a beautician into a space not even large enough for a barber alone. We showed him how to accommodate both with no added expense. He chose to ignore this and has been repeatedly fined by the barber’s board and the cosmetology board.

 

Chairman Townsend:

What is the average cost of a haircut in Las Vegas?

 

Mr. LaShore:

The average cost is about $12.

 

Chairman Townsend:

The rising cost of commercial real estate is a problem and part of the reason for this bill. People are trying to maximize their space, and it is very costly. I admire the fact that you are able to make a living and pay the rent with such low prices. The pure economics of life are coming into play here.

 

Mr. LaShore:

There are many barbers who have brought cosmetologists into their establishments and vice versa. I have done it myself and it was not that expensive. The regulations as they are allow this. We read section 1, subsection 2, as prohibiting the barber’s board from regulating the barber.

 

Regarding the license, in some states people have stolen barber licenses and used them to illegally work as barbers. This is why Nevada barber licenses include photographs of the licensees. The point of having the license in plain view is so inspectors can verify that the person doing the work is the same person who was issued the license.

 

Eloy Maestas, Secretary, State Barbers’ Health and Sanitation Board:

I am opposed to this bill. The barbers’ board has been in Nevada for many years, and the regulations work just fine as they are. As the old saying goes, “If it ain’t broke, don’t fix it.”

 

Chairman Townsend:

Senator Carlton will take up this bill in subcommittee. We will close the hearing on A.B. 258 and open the hearing on A.B. 231.

 

ASSEMBLY BILL 231 (1st Reprint): Requires State Board of Podiatry to issue limited license to practice podiatry under certain circumstances. (BDR 54-997)

 

Assemblyman David E. Goldwater, Assembly District No. 10:

I will let Dr. Fielding explain his situation before I explicate this bill.

 

Morton D. Fielding, D.P.M.:

I graduated from the Long Island College of Podiatry in 1952 and opened a practice in 1955 in Maryland. During my career as a podiatrist and orthopedist, I served as the consulting podiatrist to the White House during the Eisenhower, Kennedy, and Johnson administrations. I was the first consulting podiatrist to the National Institutes of Health in Maryland. I was president of the Maryland Podiatry Association for many years. I wrote and edited nine books on podiatric medicine and surgery and lectured throughout the United States in the 1960s and 1970s. I am well known in my profession.

 

I retired from practicing podiatry in Maryland in 1999 and moved to Las Vegas for medical reasons. I would like to be able to practice my profession again on a limited basis here in Nevada. I have excellent skills and have maintained all of my knowledge.

 

Mr. Goldwater:

Dr. Fielding asked me for help in acquiring a limited license to practice podiatric medicine in Nevada. My research showed that unlike medical doctors, osteopaths, dentists, chiropractors, and psychiatrists, the podiatry board do not allow limited licenses. I then contacted the board and worked with them to craft legislation to change the situation. When I introduced the resulting bill in the Assembly Committee on Commerce and Labor, the board opposed the bill. In an era where attracting physicians of all sorts is a high-priority issue, limited licenses are very important.

 

As originally written, the bill gave the board discretion to issue limited licenses under very specific conditions. The Assembly Committee on Commerce and Labor was so outraged by the board’s opposition that they made it mandatory for the board to issue limited licenses under these conditions.

 

Senator Neal:

Dr. Fielding, do you presently have an active license in another state?

 

Dr. Fielding:

Yes. I am licensed to practice in Maryland, the District of Columbia, and Virginia.

 

Cathy Bax, D.P.M., Secretary-Treasurer, State Board of Podiatry:

The board is opposed to this bill in its entirety. I have written testimony (Exhibit H).

 

Chairman Townsend:

The conditions of this limited license, as listed in the bill, are the most narrow I have ever seen in 25 years. Yet in section 1, subsection 6, it says the board may place such restrictions or conditions on the limited license as it deems appropriate. Do you not think this gives you enough flexibility to be able to protect the public?

 

Dr. Bax:

No. Regulations concerning limited licenses issued by the dental and medical boards are extensive. We feel this bill is not narrow enough. There are not enough restrictions on what makes a person qualified for a limited license. We welcome practitioners to Nevada, providing they go through the usual licensing process. I have a deep respect for Dr. Fielding; I have read his textbooks and I have learned from him. When we checked with the board in Maryland, we were told he does not currently have an active license with them. He told us he did not want to take the licensing exam here. He is asking to be issued a limited license based on his experience alone, which we do not think it is appropriate.

 

Chairman Townsend:

Our discussion has nothing to do with Dr. Fielding. We are dealing with what is written in this bill. We have given the board all the authority it needs to restrict the limited license in any way it wants.

 

Dr. Bax:

We do not want limited licenses the way they are described in the bill. We would like to research with other boards how they handle this situation.

 

Senator Carlton:

Holders of limited dental and medical licenses are allowed to practice on their own without supervision. This bill requires the holders of limited licenses to practice only under the direct supervision of a licensed podiatrist. That is the significant difference between the two.

 

Mr. Goldwater:

I agree. This bill was drafted to be similar to other limited licenses, with the distinction of being more narrow than most. It was written like this to meet the board’s request. I am having a tough time finding out what is so unique about the feet, as opposed to the mind, the teeth, or the rest of the human body, that podiatry requires a limited license so much more constricted.

 

Senator Carlton:

I would like to remind the board that your required quarterly summary of disciplinary actions has not been submitted to the LCB for 2002 and 2003. If you need help in this, I will be more than happy to assist you.

 

Senator Hardy:

We must not lose sight of the fact that we have licensing requirements to ensure that we have qualified people, not to pull up the ladder.

 

Sean Lehmann, D.P.M., Nevada Podiatric Medicine Association:

We oppose this bill. We already have regulations in place to license podiatrists and do not want to have two different classes of license. No other state in the country has two separate podiatry licenses. There is nothing in this bill about whether the limited license holders can do surgery or prescribe medications. Dr. Fielding has a great deal more experience than I do. I would suggest he do what I did: take the examination and get a regular license.

 

Senator Hardy:

From a public-policy perspective, there is a difference between someone fresh out of medical school and someone who has been practicing in the field for 25, 30, or 40 years and wants to practice on a limited basis.

 

Senator Neal:

As the bill is written, the limited license must be renewed annually. After that, the board may put any requirements it wishes on the renewal of the license.

 

Dr. Bax:

Correct.

 

Senator Neal:

It seems to me the board will have the authority to restrict the license to a single year. Correct?

 

Dr. Bax:

Every podiatrist in Nevada have a certain amount of continuing education and cardiopulmonary resuscitation (CPR) certification. This is true for every licensee.

 

Senator Neal:

Is a license issued in Maryland any different from a license issued in Nevada?

 

Dr. Bax:

Every state has its own requirements for licensure. There is no practical difference in the practice of podiatric medicine. However, the bill says an applicant for a limited licensed does not need to hold an active current license in another state. It requires only that the person “was licensed” in one or more states.

 

Senator Neal:

What is the difference between a limited licensed and a temporary license?

Dr. Bax:

A temporary license allows someone in a residency program to practice under supervision for 1 year. It is not renewable. We also have statutes for podiatric hygienist. This is an ideal position for a retired physician who does not want to go through the regular license application process.

 

Mr. Goldwater:

Whatever it says in this bill, the board still has the ability to pass any regulations it wants to limit this even further. Some boards see themselves as a regulatory authority to uphold a standard of care and expand it to the citizens of Nevada. Other boards see their role as pulling up the ladder behind them so there is less competition. You are getting a good sense of this board’s attitude and the frustration we felt in the Assembly on this issue.

 

Senator Neal:

Dr. Fielding has indicated he has written a number of books on podiatry. Are you familiar with them? Are they currently used as textbooks?

 

Dr. Bax:

I am familiar with the books and studied with them when I was in school many years ago. I believe I still have his book on skin tumors in the attic somewhere.

 

Senator Neal:

Dr. Fielding, would you list the books you have written?

 

Dr. Fielding:

The book the doctor referred to was on skin tumors. There was one on bone tumors. The first book I wrote was Surgery Of The Hallux Abductor Valgus. Minimal Incision Surgery was another one. Correction of Toe Deformities was a third book. The fourth book was on retractable metatarsal surgery to eliminate lesions on the bottom of the feet. There was one on establishment of podiatric practices and how to sell and buy a podiatric practice. We did one on intractable keratoma. We did one on neuroma surgery and one on pathological laboratory diagnoses. These were all designed as compendia the doctors could refer to when the need arose. These books were required reading in podiatry schools from 1973 to about 1984. They are still in the libraries, and for some there is a waiting list.

 

Senator Neal:

Are any of these books still current in the podiatry community?

 

Dr. Fielding:

I do not think so. They have been out of print since the 1980s, and there are much better podiatric texts out there now.

 

Senator Neal:

Do you attend meetings of the podiatry associations?

 

Dr. Fielding:

Yes. I attend to continue my own education. I miss my profession. Since I retired, I have been purchasing and studying the new texts that have come out.

 

Senator Neal:

What do you have to do to remain current in this profession?

 

Dr. Fielding:

In the state of Maryland, you need 52 hours of continuing medical education every 2 years. I am current with that standard.

 

Senator Neal:

What is the requirement in Nevada?

 

Dr. Bax:

The requirement in Nevada is 50 hours every 2 years.

 

Senator Neal:

Dr. Fielding, when did you last accumulate continuing education credits?

 

Dr. Fielding:

I last attended a seminar on wound care in Las Vegas 2 weeks ago.

 

Dr. Bax:

As a final comment, I would repeat the statement of the gentleman testifying on the last bill: “If it ain’t broke, don’t fix it.” We have a very good licensing procedure and welcome anyone who wants to go through that process. The limited-license process as written in this bill would lower the standard of podiatry in Nevada. I fail to see how this bill would serve the interests of the public.

 

James Oscarson, State Board of Podiatry:

I am opposed to this bill. It is the board’s responsibility to ensure the public is protected and has a voice in matters concerning the practice of podiatry in Nevada. There is a logical, rigorous process in place to be licensed as a podiatrist in Nevada. To change this process to accommodate those who choose not to follow it is to lower Nevada’s standards. It is fundamentally an unsound practice to allow a bypass of established rules or write new laws to circumvent the system. To characterize this board as “pulling up the ladder behind them” is unfair in my experience. The board has gone above and beyond to allow people to practice. I would also like to say I believe Dr. Fielding would be an asset to Nevada. I think the problem here is communication. The board did not have the input into this bill they should have and were not consulted in a timely manner. We could have worked out a resolution to this if we had been allowed the time.

 

Mr. Goldwater:

I contacted the board well in advance of the beginning of the session. I was contacted by Dr. Fielding and put him and LCB staff in touch with the board several months before the session started. Even if this bill passes, I have very little confidence that Dr. Fielding will be issued a limited license. The problem we are addressing here is that someone with Dr. Fielding’s experience, expertise, and abilities is not allowed to serve the people of this State in even the most limited fashion.

 

Senator O'Connell:

How many applicants have you had for limited or temporary licenses that you have not granted?

 

Mr. Oscarson:

I do not have that information. I will get it to you this afternoon.

 

Dr. Fielding:

I met with the board before we submitted any kind of bill and got a very good reception. I was therefore surprised when they opposed the bill and do not know what the problem is. As I told the board, I did not want any sort of bill presented that would be contrary to their thinking. I have had the misfortune in the past 3 years to lose a good deal of my retirement income, as have a lot of people, and I need to seek another source of income. Podiatry is the only thing I know. Taking an examination designed to test the knowledge of recent graduates is very difficult for someone who has been in practice for over 50 years. I am very much indebted to Mr. Goldwater, who has done an admirable job for me, and to the committee for considering this bill.

 

Chairman Townsend:

We will close the hearing on A.B. 231 and open the hearing on A.B. 443.

 

ASSEMBLY BILL 443: Provides additional penalty for selling or providing certain controlled substances in certain circumstances. (BDR 40-1281)

 

Chairman Townsend:

This bill was referred to us in error and is more appropriate for the Senate Committee on Judiciary.

 

SENATOR HARDY MOVED TO RE-REFER A.B. 443 TO THE SENATE COMMITTEE ON JUDICIARY WITHOUT RECOMMENDATION.

 

SENATOR O’CONNELL SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman Townsend:

We will open the hearing on A.B. 451.

 

ASSEMBLY BILL 451 (1st Reprint): Provides that certain forms of cancer contracted by firemen are occupational diseases under certain circumstances. (BDR 53‑1197)

 

Raymond C. “Rusty” McAllister, Lobbyist, Professional Firefighters of Nevada:

I have written testimony (Exhibit I).

 

We bring before you today A.B. 451. This bill is an attempt to make an addition to existing statute. Back in 1987, this Legislature passed a bill on NRS 617.453 that provided cancer coverage for firefighters. As a matter of fact, in reviewing the records of the hearings on that bill, Senator Townsend was the chairman of this committee back then, and Senator O'Connell was on this committee also. … Under the statute that you helped create back in 1987, there were three things that you had to show to be covered for a claim for cancer if you were a firefighter. You had to have been a firefighter for 5 years or more, you had to show that you had been exposed to a known carcinogen that was recognized by the International Agency for Cancer Research or the National Toxicology Program, and there had to be a reasonable association between the carcinogen you were exposed to and the type of cancer you had. Under this bill that we’re proposing, that doesn’t change. Those requirements still need to be met.

 

But we have a problem. You passed this law in 1987, and since that time we’ve had an extremely difficult time getting insurers to accept claims for cancer for firefighters. That’s not to say all insurers. There are a couple out there who are doing a good job; they’re reviewing the cases, they’re spending the appropriate amount of time to decide whether the case is legitimate or not. But there are insurers out there who claim that we cannot show a correlation between the type of cancer we have and the carcinogen listed within those agencies that we’ve been exposed. This occurs even after we produce research or physician testimony to the contrary, stating that there is a correlation.

 

A recent example of that is one firefighter who currently has thyroid cancer. He has been on the job for 10 years, so he meets the first requirement. He has been repeatedly exposed to soot, which is a known carcinogen and is recognized by both of those agencies. Research has shown there is a correlation between soot and certain esophageal cancers, especially thyroid cancer. And yet his claim has been denied. He is having to go through the process, and it is headed to the district court level.

 

The bill before you is meant to provide some type of clarification to the insurers that there are certain types of cancer that are associated with specific types of carcinogens. There have been many studies that show there is a correlation between certain carcinogens and being a firefighter. They are numerous, and they are lengthy. I can provide them for you if you like, but I didn’t want to burden you with a stack of paper. Those studies show there are increased risks to firefighters when exposed to carcinogens that are recognized by those two agencies in their day-to-day operations. They go into house fires, vehicle fires, even dumpster fires, because everything that you have in your house you eventually use and throw into your dumpster. All those different types of exposures produce those carcinogens. Even inside the fire station there is excessive amounts of diesel exhaust. Every time they fire up the fire engine, diesel exhaust is put out. That’s a known carcinogen to man, yet our dorms typically are stationed right next to, and we sleep right next to, right where the fire engines start up. We are attempting to reaffirm the connection established by the 1987 Legislature. We are not trying to change the existing statute other than to get some clarification in these correlations.

 

Originally there were some fiscal notes that were produced on this bill. The bill has been modified somewhat since its initial introduction, but we looked at these fiscal notes and we have some concerns with the way they were done. I think there was some misinterpretation by the insurers on how they were costing these out. I have provided a breakdown on those fiscal notes that were put in record in the Assembly (Exhibit I), but there are a couple that really stick out. I guess the two that really stick out for me are first of all, the State of Nevada initially had thought volunteers were in it, so they put a $250,000 and a $500,000 price tag on it. They have since revised that to $25,000 and $75,000. However, in talking to representatives from risk management, they told me they expected to have one claim per year. They still expect to have one claim per year. Yet they put a fiscal note on it of $25,000 for the first year and an additional $75,000 for the second year. My question to them would be, if you had one yesterday, and if this bill passes you still have one, how come it costs more tomorrow when the bill passes or if the bill passes than it did yesterday when the existing statute was already in place? I’m not sure I understand that when you still only have one claim per year.

 

The second fiscal note I guess I would look at, probably the far other extreme of the situation, was the City of Henderson’s fiscal note of $15,354,600 per year. They assumed there was a conclusive presumption, which is not our intent, that’s not what we’re trying to do. They assumed there was a change to make it a lifetime benefit, which we’re not asking for. There’s a sunset clause on it. They have made a lot of assumptions that are not correct. They only have 157 firefighters. The City of Las Vegas has 475 firefighters and put a fiscal note of $50,000 for the first year and $75,000 for the second year. I don’t understand how one entity would put that large a fiscal note on something when all the other entities are not even remotely close, and yet it might be three times larger than this particular department. We don’t believe the fiscal notes are appropriate. They range all the way from $25,000 a year to $15,000,000 a year. That’s quite a wide range of variation in actuaries within departments.

 

A couple of things the bill doesn’t do: It’s not going to increase claims from firefighters. We’ve had an existing statute since 1987. If a guy has cancer and he’s going to file a claim, he’s going to file a claim whether this bill passes or not. It doesn’t change the amount of compensation or increase it. It doesn’t change the presumption. If it does, that’s not our intent. We certainly want to make sure we get that on the record, that this is meant to still be a rebuttable presumption. The intent is not to create a conclusive presumption. It doesn’t extend the sunset clause. It’s still the same as it always was since it started in 1987. It doesn’t change the list of carcinogens that are recognized by these two agencies. And it doesn’t change the initial requirements that you have to meet before you can even move on to the part of the bill that we’re adding in. It doesn’t cover all cancers. In fact, it narrows the scope; it reduces the number of cancers that we specifically believe through research have been shown to be of a higher prevalence in firefighters.

 

The bill clarifies that some cancers have been shown to be of a higher incidence in firefighters after exposure to specific carcinogens. We believe this will not increase the cost as much as it will compel insurers to start paying claims that they should have been paying all along. We believe that this bill will help to clarify the intent of the existing statute that you passed in 1987.

 

In the material I provided to you, I put an amendment in there … after talking to members of the insurance industry after the Assembly hearing. One of the cancers that was covered under there was lung cancer. They said that’s already covered for under another provision of the law, NRS 617.455, and so we went ahead and removed it out of the cancers of this bill and let it continue to remain covered under existing statute.

 

Senator O'Connell:

“Rusty, did I understand you to say there’s a sunset in the bill?”

 

Mr. McAllister:

Within our bill there is not. In 1987, when you passed this law, you put a sunset in it then. The sunset is 3 months for every year of service to a maximum of 60 months after you leave the job. After that, you are no longer covered for this.

 

Senator O'Connell:

And in the fiscal note, on one of them they talk about $1 million per claim. … In your experience with people who have acquired cancer of some kind during their employment, do you have any idea of the cost?

 

Mr. McAllister:

I do not know that because first of all, not many claims have been accepted. I do know that it depends on the type of cancer, the extent of the cancer. I think you’ll get some testimony in a little bit on a specific individual who has cancer and is currently undergoing various types of treatment, and so he can probably give you a better clue or idea as to that. I find it kind of ironic that the State, although they say and list “up to $1,000,000 in cost,” if that’s the case they put a $25,000 fiscal note. That’s a contradiction of what they’re saying, to me.

 

Chairman Townsend:

“They have an individual here who can testify to that.”

 

Mr. McAllister:

“I’m not sure I exactly understand that.”

 

Senator O'Connell:

“I believe it’s over the period of the case. Maybe that is the $25,000 on an annual basis. Could that be it?”

 

Chairman Townsend:

“Jim, are you here to testify on behalf of the State? We have numbers floating around here, and we may as well get the State on record as to what is they’re testifying to.”

 

Jim Fry, Workers’ Compensation Analyst, Risk Management Division Department of Administration:

The fiscal note that Rusty’s talking about is based upon a cash‑flow basis. I noticed when I went through some of the other fiscal notes from other entities that they looked at it as an incurred cost, what is the cost of the claim through its lifetime, which may be 10, 20, 50 years, where ours is based upon a cash flow. The first year of a claim, generally you do not have a high fiscal impact. Starting with the second year, you can usually expect it’s double. That’s where it goes from $25,000, add another claim the next year, it goes from $25,000 to $50,000 in the second year. Add another claim at $25,000. So that’s how you come up with $75,000. And then it just goes on.

Chairman Townsend:

“You basically self-insure, you have a huge deductible. Is that right? And then you buy reinsurance for the larger portion.”

 

Mr. Fry:

“We have a $2 million deductible program.”

 

Chairman Townsend:

“So in essence, you self-insure for the first $2 million and then move on.”

Mr. Fry:

“I should be careful what I say. I don’t want to say that we are self-insured.”

 

Chairman Townsend:

“No, but the practicality is that the State is self-insured for the first $2 million, and then you buy a policy, or you’ve bought a policy that has a $2 million deductible.”

 

Mr. Fry:

“Yes, Senator.”

 

Chairman Townsend:

“Okay. And so therefore, you deal with this as a cash-flow issue because in fact your deductible is so high, as opposed to incurred claim, which goes to the lifetime of the client.”

 

Mr. Fry:

“Yes, sir.”

 

Chairman Townsend:

“Okay. … ”

 

Assemblyman John Oceguera, Assembly District No. 16:

Assembly Bill 451 has personal significance for me, but not for the reason you may be thinking. Not because the bill speaks to cancer as an occupational disease of firefighters, but for a different reason. The reason is Bill Harnedy. Bill Harnedy is a friend. He’s a firefighter who served the public in Carson City and North Las Vegas, ensuring their safety for many years. In 2001, Bill Harnedy was diagnosed with cancer. When Bill was diagnosed, he came to me with a copy of the Nevada Revised Statutes, knowing I was an Assemblyman in our State Legislature, knowing that I was pursuing my law degree. Bill asked me point-blank. He said, “Am I covered?” And at that moment, I read NRS 617.453. To me, its meaning and intent were plain, and they were clear. To me, Bill Harnedy is qualified for disability compensation under the statute. However, the denial that Bill received was supported by an enclosed copy of that same statute. I submit to you, Mr. Chairman and members of the committee, that you too would have thought the same thing had you yourself read that statute.

 

Bill Harnedy has traveled all the way from Las Vegas today, enduring the discomfort travel necessitates, given his advanced condition, subjecting himself to the stares that follow him, in order to support this bill, even though the changes that A.B. 451 could bring about will not change his circumstances. You see, despite his belief, and the belief of his family, and the belief of his doctors, and my belief, that he qualified for disability compensation under the statute, his disability claim was aggressively opposed. I feel compelled to repeat that, Mr. Chairman: Bill Harnedy’s disability claim was aggressively opposed.

 

So Bill’s presence here today is truly altruistic. His experience is not, I assure you, uncommon. Despite the plain and clear meaning of NRS 617.453, firefighters’ disability and death claims are routinely denied. This approach carries over to firefighters and peace officers processed under the heart and lung statute. The heart and lung statute is different from this statute. It contains a conclusive presumption that says heart and lung conditions are caused by the stress of this job. Yet firefighters and police officers who make claims under the heart and lung statute again are routinely denied benefits and are being forced to appeal all the way to the Nevada Supreme Court in order to receive benefits they were wrongly denied in the first place.

 

I find this policy of oppose, deny, and force an appeal so offensive that I have taken it upon myself to prepare an amicus brief in my capacity as a State Legislator for filing in a case concerning two peace officers who were wrongfully denied benefits under NRS 617.457. I’ve also made a request to the Legislative Commission that was recently approved to prepare an amicus brief on this issue for the Legislature as well. You will note that A.B. 451 doesn’t make any changes that could be argued were intended to make it easier to make a claim under the statute or easier to qualify for these benefits, or increase the benefits available under the statute. That’s not what A.B. 451 is about. The concept behind A.B. 451 is simple. Since the plain and clear meaning of NRS 617.453 is not being recognized or furthered in its interpretation and enforcement, let’s amend this statute and make it really, really, really clear under what circumstances we believe a firefighter who receives cancer should receive disability or death benefits.

 

Mr. Chairman, if you hear any bitterness in Bill’s voice during testimony, I wouldn’t mistake that bitterness for what it is not. It’s not due to the fact that he will not live to see his 40th birthday. Nor is it due to the fact that his time with his family, with the passing of each day, is coming to a close. It’s because the system mistreated him. That’s what he asked me to speak about at his funeral. How the system let him down. I’ve not been able to begin writing those remarks, and it’s my hope with the passage of a bill like this, at the end of those remarks, I can end on a positive note, talk about how Bill changed the way firefighters are treated and made a difference when it came to firefighters with cancer.

 

Chairman Townsend:

“Who is the coverer? Is it a self-insured local entity? Did they purchase private insurance? If it was covered by self-insurance, is there a third‑party administrator (TPA) involved in this particular case?”

 

Mr. Oceguera:

“Mr. Harnedy was employed by the City of North Las Vegas, who is self‑insured, and then Compfirst is the insurer.”

Chairman Townsend:

“And where is that in the process? Has it gone to the district court? Are you at the appeals level? Where are you in the process?”

 

Mr. Oceguera:

“I think in Mr. Harnedy’s presentation you’ll get a good scope of where that’s at.”

 

William Harnedy:

What I’d like to do today is just give you a quick overview of what I’ve been through since October 2001. As a firefighter, I believe it’s very important to stay in shape, and I felt that I was in pretty good solid shape. I started experiencing pain in my side through the summer of 2001. When I finally went to the doctor, we thought it was kidney stones. As the water in Las Vegas isn’t really that good, kidney stones are prevalent. We diagnosed a mass on October 2, 2001, through ultrasounds and computerized axial tomography (CAT) scans. On October 6, I had a right radical nephrectomy; that is, they took out my right kidney, at University Medical Center. On October 10, 2001, I was told the pathology report came back as stage 4 renal cell carcinoma. I still had active cells in my renal fossa, which meant that I had to seek a medical oncologist for his interpretation. On October 17, I met with a general oncologist in Las Vegas. Right off the bat, he gave me life expectancy of 7 months at most. That was with or without any type of treatment. It’s been 16 or 17 months since, so I’m still fighting.

 

At that time I filed a C-1 claim with the City of North Las Vegas. In November I received a letter from CDS Compfirst. They basically said my claim was denied. In the middle of November, 7 months wasn’t a good diagnosis for me. I found a kidney cancer center in San Francisco and I met with a kidney cancer specialist out there. At that time, he wanted me to go through a positron emission tomography (PET) scan to see if the spots in my right lung were active cancer cells. On December 2, I had a thoracoscopy, and it showed that the spots in my right lung were renal cell carcinoma. December 17 was when I started interleukin therapy, which builds your immune system. It’s not chemotherapy; what it does is increase your white blood cells to fight the cancer. It’s such an aggressive form of treatment that you have to be monitored in an intensive care unit. So I was in San Francisco a week at a time, one in December, one in January, and twice in February, going through this treatment. The treatment was extremely excruciating. Side effects of the treatment were completely unbearable.

 

As the process of my treatment was continuing on, I kept filing my claim. We appealed the decision by CDS, and on January 28, my denial was affirmed by a State hearing officer. We appealed that decision. In March 2002, I was reevaluated after my treatments in San Francisco and found that the cancer only had progressed by 50 percent. There was not much left that that kidney cancer specialist could do for me, and under the protocol by the National Cancer Institute, for renal cell carcinoma chemo and radiation were not an option. I saw a report on “Miracles in Mexico: The Tijuana Treatment” that was done by KBBC, Channel 3, in Las Vegas, and I followed up and went to Mexico and met with a Dr. Vargas down there, an oncologist. I went through low-dose chemo, low-dose radiation. In July 2002, I had an open thoracotomy, which is basically like open-heart surgery, to get tumors that were in my right lung, and then another tumor that had come back in my right renal fossa area.

 

I know that I was cancer-free for about 4 months. I was ready to come back to work. The City of North Las Vegas required me to meet with a specialist, and I met with an oncologist in San Francisco who evaluated my treatment in Mexico and signed off on me to come back to work, light duty. Then I started experiencing pain, and follow-up CAT scans 4 months after my surgery noted that I had a recurrence of the cancer. At this present time, the cancer is back in my right lung and my right renal fossa.

 

In January of this year I started treatment of aggressive chemotherapy, 96 hours of continuous intravenous (IV) infusion with a take-home and a pump. I became extremely ill after the second treatment and was in Sunrise Medical Center for 2½ weeks recuperating. I’m in this condition now because of that chemotherapy, and it hasn’t done anything. When I testified in front of the Assembly 3 weeks ago, at that time I was waiting for a phone call from the University of California at Los Angeles (UCLA) for an evaluation of my case. I received that phone call on Friday, and they said I’m not a feasible candidate for any further treatment.

 

Right now my back is against the wall. My time is short, and I won’t see my 40th birthday. What I’ve learned is you have to take charge of your own health care any more. But throughout this whole process, I not only went through excruciating treatments, I continually got the letters of denial and continuances through this case from CDS. In fact, in April 2002, CDS sent a nurse from Reno to San Francisco to meet with me and Dr. Meyer, the specialist treating me with interleukin. Dr. Meyer followed up with them and changed my diagnosis from kidney cancer or renal cell carcinoma to “a disease process in the lungs.” That produced this letter, which I received July 10, 2002. It says, “Dear Mr. Harnedy: On behalf of the City of North Las Vegas, Compfirst is accepting your claim filed on May 4, 2002, for lung disease. We accept this in accordance with NRS 617.455. Please be advised that the acceptance is limited to the disease process in your lungs, which is diagnosed as lung metastases from kidney cancer. It is our belief that this disease process involving the lungs is presumptive pursuant to NRS 617.455. The diagnosis of kidney cancer filed in claim #NV0100178, which was denied and is currently under appeal, will not be covered under this claim. Compfirst will authorize care and treatment recommended for the treatment and eradication of diseases of the lungs. Treatment and care which is specifically related to the diagnosis of kidney or for other affected areas outside of your lungs will not be authorized under this workmen’s compensation claim. You should continue to seek authorization for the care of the kidney cancer from your group health insurance.” And it continues, “Treatment will be limited to treatment in the continental United States.”

 

When you have group health insurance, when you leave Nevada you come into the 70-30 rule. What that means is the insurance will cover 70 percent and you’re liable for 30 percent because you’re going out of the network. I couldn’t receive this interleukin therapy in Las Vegas; I had to go to San Francisco to receive it. When I was diagnosed with this cancer I brought that bill to Assemblyman Oceguera. It says, “You’re compensated, you’re going to be reimbursed and compensated.” It’s a never-ending frustration. In July of this year, we met in a good-faith attempt with representatives from the City of North Las Vegas, CDS, my legal counsel, our union president, and Assemblyman Oceguera. We figured we’d meet in good faith, see if we could resolve the situation. What we did is combine the two claims into one, and we filed to go straight to the appeal officer, instead of going to a hearing officer first. The continuation went from August 26 to October 7, then they changed the date to October 14. Then something came up and we couldn’t do it on October 14, and we figured December 13 would be a good date. Again it was put off. My legal counsel had me visit a doctor in Las Vegas to be evaluated under an occupational medical evaluation. That doctor was supposed to be deposed prior to the hearing; he wasn’t, so they had a continuance of that. Then when he was supposed to be deposed, everyone showed up except a court reporter. They finally had the deposition, so now we’re waiting for the final review of the deposition and all this to be in front of the hearing officer. No date has been set. That’s where I’m at this time with my case. 

 

Chairman Townsend:

Well, sir, in spite of the former president who wrote a remarkable book called Profiles In Courage, I think you’re Nevada’s example of that. We really appreciate and respect your testimony here today. The process is supposed to work substantially more efficiently than this relative to your appeal. I don’t know what’s happened, and we’ll certainly look into it, because we need to get resolution to this. That’s a separate track from this bill, but it needs to be done, because that’s the one that directly affects your needs. We’ll assure you that before we adjourn sine die here in June, we’ll have an answer and we’ll know exactly the time frame in which this process will move forward relative to your case.

 

Mr. Harnedy:

I was diagnosed 7 months. I’m putting up a fight; I’m going to put up a fight to the end. I have no options at this time. I’m researching on the Internet all the time for clinical trials. But I really feel I got put off hoping that I would die and this case would just disappear. But I have made a dying resolution to my friends and put it into my trust: should I pass, I want this to continue for the future. It’s just a clarification of the language in this statute that we have. I think that’s where the stumbling block is.

 

Chairman Townsend:

Okay. Any questions, committee? Thank you, John.  It’s important that people like you are involved and bring these issues that are real, that have a face to them. Many times we just see stuff on a page. That’s a little tougher to deal with. As I remember, your testimony is to remove paragraph (g) in subsection 2, the lung cancer portion, because it’s redundant; it’s covered in the other section.

 

Senator Neal:

“Are there any other states that have this particular section on page 2, starting at line 25, going through to the next page?”

 

Mr. McAllister:

I am not sure there is anything that is exactly like this. But I do know that within the research that we have, there are laws in the states of Arizona, Massachusetts, Virginia, New York, and California, and we just had statutes passed with specific types of cancer very similar to this from studies that were done in Manitoba and Ontario, Canada.

 

Senator Neal:

But you’re asking this committee and this Legislature to make a finding based on the foregoing, starting at line 8 on page 3. You list those things beginning at line 25 on page 2, and then you say, “The cancer is an occupational disease and compensable as such under the provision of this chapter.” That is forcing we the committee to make that determination based on starting from paragraph (a) and skipping (g) to (h).

 

Mr. McAllister:

That was brought to my attention just a little bit ago, just prior to this hearing. It is not our intention to make this conclusive. That language was not in our initial drafting of this bill. This bill came out of drafting pretty much as you see it. That was not in the initial language we put in there. If that doesn’t meet the requirements or the needs of the committee to allow it to be rebuttable, we’d certainly be amicable to trying to work language to make it so that it is. But we’ve identified a problem. This Legislature passed a bill in 1987 to cover firefighters for cancer, and at this point in time, that’s not being done. And if we have a law that’s not working, we either get rid of it or fix it. Let’s make it so that it does work and do what it was intended in 1987. If this doesn’t do that or this is too much, it wasn’t our intention and we’d certainly be willing to try and work to make sure that we do accomplish what we’re trying to accomplish.

 

Chairman Townsend:

Do we have any research about those things that were appealed about cancer since the passage of the bill, and what the results were: those that were accepted, those that were denied, where they were denied? Because your point is a very important one. In other words, the point wasn’t to have something on the law that no one ever gets a benefit from. That’s eyewash, and none of us want to do that. Do we have that research? It’s easy to get; it only takes half a day. Do you have the history of that?

 

Mr. McAllister:

“Do you mean here in the State of Nevada?”

 

Chairman Townsend:

“Yes.”

 

Mr. McAllister:

Last session you passed a bill that required reporting by local entities on a yearly basis for occupational disease, cancer claims, things like that. They’ve reported it, but they’ve got it bunched up so that it’s not separated out. They just say, “Yeah, we had 3 cancer claims, and we had 15 exposures to an occupational disease. These claims have been submitted. We accepted five and denied ten.” But they don’t say, “We denied 3 cancer claims” or “We accepted 3 cancer claims.” They never separated it out. They just bunched it all together and submitted all their data to the Division of Industrial Relations. Our feeling is it was an effort to make it so that we can’t decipher that information out.

 

Chairman Townsend:

“If we process this bill, we might want to clarify that.”

 

Mr. McAllister:

“That would certainly be helpful.”

 

Chairman Townsend:

You need the information, not just gloms of it. The reason I asked this question was to number one, find out if what this committee thinks occurred is not being followed and it’s being shortstopped by denial at the beginning but nobody’s appealing those. That’s one thing. People who appeal them and then get them to court and then the court rules, because they’re the ones that look at this and say, “This is what the meaning is, based on the court’s interpretation,” gives us some guidelines. That’s why I was asking the question. Because if it is not clear on what this is, and if your position is, I think, well stated that you do not want to make this a conclusive presumption, but in fact you think that what this maybe not just perfect language the way it sits, but maybe language that you’re intending does clarify what it is, then we want to get to that. So we’re looking for all kinds of help that could point us in the right direction. That’s why I ask that question.

 

Mr. Oceguera:

I’d just like to add there is quite a bit of case law in the heart and lung statutes. Not to move this over there at all, but what we did with the heart and lung statute was attempt to put an end to that controversy. What Senator Neal is asking, yeah, we are asking him to put an end to that controversy. We can bring 50 doctors that say that it is, and I’m sure they can find 50 doctors that say it isn’t. That’s what the Legislature does is make those kinds of decisions so that type of intent and that type of case law is certainly out there.

 

Mr. McAllister:

The only light I can shed is the only employer I know of at this point in time personally that has accepted a firefighter’s cancer claim is Clark County. They have accepted some claims. I can speak on the City of Las Vegas. There have been to my knowledge, at least in my experience two claims filed. Both of them have been denied. One is still in the process; one of them, after he was denied he decided not to pursue it. And we also had one female with breast cancer who chose not to subject herself to that type of situation in a male-dominated environment. In North Las Vegas, I believe there are two cancer claims that have been filed. I don’t believe either of them have been accepted, Mr. Harnedy’s being one of those. The City of Henderson has not had any claims filed for cancer for an active employee. The two people that they had die of cancer were after they left the job, and they fell outside of the sunset clause, and therefore they didn’t qualify under the legislation to be covered. And with that, that’s the only ones I know of that I have at least personal knowledge of.

 

Senator Neal:

When I look at the way this is written, it suggests to me that after you look at the language in subsection 2 on page 2 and you follow that with the enumerated alphabet language there, it suggests to me that the only qualification that you have to say whether a person has contracted these various cancers is that the person be a fireman. That’s it. Once you’ve been a fireman, you’re working, you’ve contracted this, that’s it. That’s all the qualification that’s needed. That’s what it seems to suggest to me. I wondered whether or not you wanted that. What if a person just stays in an office and doesn’t go into a fire, you see? He would still be classified as a fireman. This says that you contract bladder cancer or any of these cancers, it is esteemed and occupational disease and compensable as such.

 

Mr. McAllister:

First of all, I would say that there are to my knowledge no firemen who fight fire who sit in an office and are not exposed to these carcinogens. Second, I would say that it is not our intention to take away the ability for an insurer to rebut when there is evidence to prove or dispute the case otherwise. As an example, if they can produce evidence that the person is an alcoholic and he develops liver cancer and has cirrhosis, then by all means they should have the ability to rebut that. But what we’re finding is the denials we’re getting, they’re denying on the ground that you can’t show a correlation between the type of cancer that you have and the carcinogen you’ve been exposed to.

 

Senator Neal:

But this language I see as totally eliminating any cause and effect here. The qualification of the person, the occupation of the person, that’s it. And that’s what this language seems to be suggesting here. And I of course question whether or not you want it that way because you’re making this committee determine that if a fireman is a fireman, then the fireman would be compensated for any cancer that is contracted.

 

Mr. Oceguera:

“I guess in a sense I agree with you. But that’s what it said before.”

 

Senator Neal:

“And that’s what it’s saying now.”

Mr. Oceguera:

And what we’re trying to do is clarify that. It said that before. And now, if you think about this on the opposite side, though, if the cancer falls outside of these cancers that we’ve listed, then you’re definitely not going to get covered. They’re already not covering them, so if it falls outside of these ones that are enumerated, you’re not going to get covered.

 

Chairman Townsend:

“Thank you. We will take this up in our work session … on Thursday.”

 

John Ellerton, M.D.:

I’m a physician and cancer specialist. I wish to speak in favor of this bill, and I’ll be brief and specific. I have been on occasion asked by the insurers to look at these cases. I have a specific example of a case where the cancer was clearly related to the exposure that the fireman had. The insurer then thanked me very much for my opinion and disappeared into the sunset. I suggested that they settle whatever the case was because there was clear evidence of the relationship. That’s why I support this bill, because by specifying the cancers and their relationship to the occupational exposure, it takes away the latitude of the insurance company to do inappropriate doctor-shopping to find an opinion that will support their unwillingness to compensate the firefighter fairly. I do agree that this should be a rebuttable presumption. Some of these cancers can have other causes, and in certain patients, certain firefighters, the exposure may not be the cause. But absent another explanation and given the appropriate exposure, I believe the firefighters should be compensated. It’s clear, at least from my experience, that this is not the intent of the insurer. Therefore I would strongly urge you to pass these clarifications to beef up this valuable bill.

 

Chairman Townsend:

I will suspend the hearing on A.B. 451 briefly. Committee, is there any interest in processing A.B. 231?

 

SENATOR CARLTON MOVED TO DO PASS A.B. 231.

 

SENATOR HARDY SECONDED THE MOTION.

 

THE MOTION CARRIED. (SENATOR O’CONNELL AND SENATOR SHAFFER WERE ABSENT FOR THE VOTE.)

*****

 

Chairman Townsend:

We will resume the hearing on A.B. 451.

 

Buffy Gail Martin, Lobbyist, American Cancer Society/Reno:

We are in full support of A.B. 451. We often take our firefighters and peace officers for granted. Refusing their service-related workers’ compensation claims further illustrates our attitude. Formaldehyde, vinyl chloride, soot, diesel exhaust, asbestos, benzine, nitrogen dioxide, organic solvent: all known cancer‑causing chemicals. I am fairly certain that very few of us come into contact with these cancer-causing agents on a daily basis in our jobs. However, Nevada’s firefighters do, and they do so without hesitation. Cancer is a fight for your life that requires every ounce of physical, emotional, spiritual, and sometimes financial energy. To add a fight with an insurance company or workers’ compensation claim is inhumane. It is time to honor the dangerous and life-threatening work that firefighters do for our community without asking. They not only put their lives on the line for our safety, but also their health. On behalf of the American Cancer Society and our 6000 Statewide volunteers, we ask you to vote to support our professional firefighters and pass A.B. 451. Thank you.

 

Robert Schreihans, President, Carson City Firefighters:

One of the questions was are there any cancer claims. I’ve been here for 20 years and Carson City hasn’t had any that we’ve gone through. But we sat through all the other hearings where they said, “If it ain’t broke, don’t fix it.” Well, this system is broke, and you kind of need to fix it. We had a heart-lung claim here a couple of years ago where we actually took a guy off line and had to take him to the hospital because he couldn’t breathe. He had a lung empyema and ended up having lung surgery, and the city denied his claim. We had to take it to the district court to process that. So there are some issues here with the process that these claims are not being covered. Every time we file a claim, we automatically know we have to go through the appeal, and it is expensive to take cases to district court and up to the Nevada Supreme Court. So whatever you guys can do to help us out, approve or pass these bills, fix the process so the insurers can’t just automatically deny claims hoping that either one, the patient dies, or two, they can’t afford to take it to district court, or they just go on through their own private insurance.

 

Senator Hardy:

Is there anyone else wishing to testify on this bill that needs to get on the record today? We’ll take this up in work session. We appreciate those who have taken the time to do this. This is one of the toughest issues. I personally lost a brother-in-law at 34 years old, and this weekend had to go say goodbye to a very, very dear friend who I went to high school with. This is a tough, tough issue, so thank you.

 

Wayne Carlson, Lobbyist, Public Agency Compensation Trust:

I’m handing out two things; one is my written testimony (Exhibit J), and the other is a proposed amendment (Exhibit K). I just want to highlight a couple things on my written testimony. When I prepared my testimony on the Assembly side, I had read the bill as a conclusive presumption-for-life provision, as I found the language to lead us to that conclusion. After that testimony, I revised my fiscal note and I also revised my testimony.

 

There are a couple things I think the committee needs to consider. We’ve had a lot of bills in the last session and this session in this whole area of occupational disease for police and fire. I’ve looked for studies that indicated one way or the other regarding these types of cancers, whether they were or were not particularly exposed for firefighters. I found the information mixed. Some were saying it was definitely connected, others said they were not, others said these the kinds of ones they were more susceptible to. I think a lot more study needs to be done in that regard to make it clear where all these bills ought to go. But in terms of the attempt in this bill to clarify what existing intent was, the language is not quite there in the bill as the first reprint. What I’m suggesting might help clarify that.

 

I also think in addition that some study of the whole range of issues that I have listed in the rest of my testimony might help regarding this entire issue. The costs are becoming very difficult for those of us in rural Nevada to bear, all of these benefits for police and fire, primarily because of the conclusive presumption lifetime interpretation added a lot of cost burden to us.

 

In terms of my specific amendments, I understand that Assemblyman Oceguera has removed the lung cancer. I prepared this prior to knowing that particular element. I tried to articulate the details, but I think it’s a lot clearer just to look at the redraft language. In the first reprint and in the original bill, section 1 said, “except as otherwise provided in subsection 2,” and then subsection 2 said, “notwithstanding any other provision of the chapter … this is an occupational disease.” That said to me conclusive presumption. So to try to narrow it to the intent of rebuttable presumption, let’s get rid of all of that “except as.” Let’s go into 453 and just insert it. What I’ve done is insert in section 1(b), subsection 3. I’ve created a new subsection 3, so that’s eliminated all these roman numerals in the bill, and just listed them there and said it’s tied into everything above, or the disabling cancer. It’s the same list with the exception of paragraph (g), as the other amendment would do. Then if you read the rest of it along that line, when you get to section 3, which is existing language, it says, ”The disabling cancer is presumed to have developed or manifested out of the course of employment of any fireman described in this section.” It goes on to say, “This presumption applies to disabling cancer diagnosed after termination if the diagnosis is within 60 months,” and so forth. My interpretation of this approach is tying this more clearly to the rebuttable presumption language, preserving that the presumption applies, and in the last sentence, that the presumption controls the award “unless evidence to dispute the presumption is presented.” So it leaves that all tied together as existing law. So in that sense it would not need the language in the first reprint.

 

Chairman Townsend:

“Have you shared this with Mr. McAllister or Mr. Oceguera?”

 

Mr. Carlson:

Yes. I gave it to Rusty last week for him to look at. As a result of our conversation, he decided to take the disease of the lungs piece out because the coverage under the lung-disease statute and coverage under the cancer statute when you have cancer of the lungs becomes a conflict of law. Obviously you could put it in one or the other, and he’s chosen to request to have it left under the lung-disease statute and not put in the cancer statute. That’s a public-policy choice as to where it should go. I think the amendment I’ve done has tried to clarify the issue of the conclusive presumption and the presumption for life with respect to cancer. That was the reason for the amendment. 

 

Randy Waterman, Risk Manager, City of Sparks:

First of all, I agree with Mr. Carlson about the cumulative effect of all the different occupational disease bills and laws that are currently on the books. However, specific to A.B. 451, I had earlier testified in the Assembly in opposition to this bill. I can tell you that our concerns would all but go away if the language in section 2 were clarified to eliminate what I see as a conclusive presumption and maintain the rebuttability of the conditions.

 

Chairman Townsend:

“I think that was the testimony of Mr. McAllister.”

 

Mr. Waterman:

“Exactly. And I want you to know I agree with that.”

 

Don Jayne, Lobbyist, Nevada Self Insured Association:

Essentially we’re really neutral on this bill as an association. I wanted to go on the record as well that Senator Neal and I actually agree that there is some question here on whether or not we’ve got a conclusive presumption or not. When we eliminate the “out of the course of employment,” when we’ve got the sections in lines 8 and 9 on page 3 that the senator was addressing, we too share that concern as to whether or not we really have language here that would provide for the rebuttable presumption. The only other point we had on this bill was we wanted to see at least some reference to the Nevada medical fee schedule when we talk about full reimbursement in some of the language here. And that’s what we have for today.

 

Chairman Townsend:

Okay. Anyone else? What I suggest is meeting with the proponent of the bill, in this case Mr. McAllister as well as the sponsor, Mr. Oceguera, that we take their good-faith effort here and all of us working with Mr. Young, who will take everyone’s legal input and put it all together, then we’ll give it to Mr. Powers to see if we have commonality on the issue of conclusive presumption. Then Senator Neal’s point is an important one. If you take out that one section, the fact that you are employed as a firefighter, that makes another trigger that we need to be sensitive to. Rusty, if you and Mr. Oceguera and I can kind of gather up all of the legal versions of what we think we heard, and we’ve got one from Mr. Carlson and one from Mr. Jayne, we’ll clarify all of that. We’ll give all of that to Mr. Young and then he can organize it. We’ll sit with Mr. Powers and we’ll say okay, this is what we heard, this is the testimony we took, this was the goal of the proponents, let’s find the appropriate language that tries to accomplish that. Then we’ll bring that back to this committee and go from there. Is that all right? I’d like to get that done fairly quickly, over the next couple days, while we have work sessions. …

 

Mr. Jayne:

I had prepared an amendment that I didn’t want to delay your committee today with, but I’ll provide that to you (Exhibit L). I’ve provided it to Mr. McAllister already, and I’ll make sure the committee has it. It’s very similar in nature to what we talked about, and I’ll provide that as well from our side.

 

Chairman Townsend:

There being no further business, we will adjourn at 11:18 a.m.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Lynn Hendricks,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Senator Randolph  J. Townsend, Chairman

 

 

DATE: