MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      February 25, 1993

 

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:12 a.m., February 25, 1993, in Room 332 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Robert M. Sader, Chairman

      Mr. Gene T. Porter, Vice Chairman

      Mr. Bernie Anderson

      Mr  John C. Bonaventura

      Mr. John C. Carpenter

      Mr. Tom Collins, Jr.

      Mr. James A. Gibbons

      Mr. William D. Gregory

      Mr. William A. Petrak

      Mr. John B. Regan

      Mr. Scott Scherer

      Mr. Michael A. Schneider

      Ms. Stephanie Smith

      Mr. Louis A. Toomin

 

 

COMMITTEE MEMBERS ABSENT:

 

      Mr. Ken L. Haller      (absent/excused)

 

GUEST LEGISLATORS PRESENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Ms. Denice Miller, Research Analyst, Legislative Counsel       Bureau           

 

OTHERS PRESENT:

 

      Ms. Anne B. Cathcart, Deputy Attorney General, State of          Nevada, Office of the Attorney General

 

 

Following roll call, Chairman Sader opened the hearing on S.B. 13.

 

SENATE BILL NO. 13.           Clarifies authority of department of                            prisons to determine appropriate method                              to test offender for human                               immunodeficiency virus.

 

Ms. Anne B. Cathcart, Deputy Attorney General, testified on behalf of the Office of the Attorney General as prime sponsor of S.B. 13.  The bill would authorize the Department of Prisons to determine which human immunodeficiency virus (HIV) tests would be the most appropriate to utilize for incarcerated inmates, Exhibit C.

 

Ms. Cathcart summarized what Dr. Kaiser had testified on before the Senate Judiciary Committee that there was more than one strain of immunodeficiency virus and more than one test was available to detect the different strains of HIV.  She noted some strains of HIV were more prevalent.  In the tests utilized to detect HIV,  some were more expensive than others.  According to Ms. Cathcart, the Department of Prisons was currently required to select testing that had been approved by the Department of Health.  S.B. 13 would provide the Department of Prisons the authority to choose which of the various tests would be administered. 

 

As Mr. Carpenter understood, during incarceration, inmates were tested at least one time for HIV infection.  Ms. Cathcart confirmed this statement.  He asked what the procedures were after inmates tested positive for HIV contraction.  Ms. Cathcart understood the inmates were informed of their HIV test results and the Department of Health was also notified.  According to Ms. Cathcart, in these instances, the Department of Health contacted the ex-felons and attempted to work with them.  The Department of Health attempted to contact other inmates who had contracted the disease as well.

 

Mr. Carpenter asked if the state was accountable for liability for inmates who contracted HIV while incarcerated.  Ms. Cathcart understood the state would not be accountable under the facts presented by Mr. Carpenter.  At the present time, according to Ms. Cathcart, HIV tests were administered to inmates upon entrance into the prison system.  Inmates at risk of contracting HIV would also be tested within the Department of Prison system.  She stated the circumstances would determine any liability proceedings.

 

As. Mr. Carpenter understood S.B.13 to read, the initial HIV testing of incoming prison inmates would not be a mandatory process.  Ms. Cathcart stated, as she understood, mandatory HIV tests on both incoming and separating prison inmates were in place.  The bill would not change the current procedures.  The passage of S.B. 13 would allow the Department of Health to determine which type of HIV detection tests would be administered.

 

Mr. Regan addressed his concern toward S.B. 13, page 1, Section  1, Subsection 4, line 25 where the existing bill stated "The offender must be segregated from every other offender whose test results are negative."  As Mr. Regan understood, the HIV positive inmates were integrated with the other inmate population.  Ms. Cathcart stated Mr. Regan's assumption was correct, unless the referenced inmates showed behavior which would place other inmates at risk.  For example, if the HIV infected inmates alluded to were predatory homosexuals, they would most likely be segregated so other inmates would not be at risk.  According to Ms. Cathcart, HIV positive inmates were integrated with the general prison population and tested both upon entry and exiting the prison system.

 

Mr. Anderson requested clarification on his assumption that 100 percent of the current prison population had been tested for HIV and a baseline had been clearly drawn within the system.  Ms. Cathcart understood, from the knowledge she had obtained from the Nevada Department of Prisons' staff, upon entry into the prison system, every inmate had been tested.  She noted there would be inmates who had entered the prison systems prior to the mandatory HIV entry testing, however, it was assumed these earlier inmates would have also been tested for HIV infection.  

Mr. Toomin asked how the precarious HIV inmates were segregated.  Ms. Cathcart responded, to her knowledge, there were no specific cell blocks for the dangerous HIV positive inmates.  She surmised the dangerous HIV inmates would be housed in administrative segregation which meant they were not punished but were segregated from the rest of the prison population to protect them.

 

Mr. Toomin asked what the cost of one HIV test would be.  As Ms. Cathcart recalled, the least expensive HIV test per inmate would cost $4 and the most expensive test would cost approximately $35.  This was according to the testimony presented at the Senate Judiciary Committee hearing by Dr. Kaiser.

 

Mr. Toomin asked what the average amount of HIV testing conducted on inmates was.  Ms. Cathcart understood a minimum of two HIV tests would be administered to inmates, the first test would be conducted upon entrance into the prison system and the second test would be taken during the exiting process.  Mr. Toomin directed his concern toward the inmates who had already tested positive for the HIV disease.  Ms. Cathcart stated she did not know how often HIV infected inmates would be tested.  There were programs available within the prison system to assist these individuals. 

 

Mr. Toomin demanded reassurance testing of HIV positive inmates, at the discretion of the director, would not be a form of punishment levied on the HIV infected inmates.  Ms. Cathcart replied she could not address this concern on behalf of the department.  Although she did point out the financial issues that addressed this concern.  Without medical reasons for repeated HIV testing, it would be irresponsible to authorize such testing.

 

Mr. Petrak asked what the procedures would be in regard to the exiting inmates who tested HIV positive.  Ms. Cathcart noted, once inmates had left the Department of Prisons, the Department of Health had the responsibility to follow up on the inmates.  She assumed the Department of Health would contact the other inmates who had sexual liaisons with HIV infected inmates to offer counseling and treatment.  She stressed she did not work within the Department of Prisons and therefore her testimony was solely based upon her understanding as to how the Department of Health operated.  She stressed the Department of Health had strong interests in controlling the spread of this infectious disease within the prison population. 

 

Mr. Schneider asked if the state would be in a position to incur liability in cases where inmates tested negative for the HIV virus upon entrance into the prison system and later tested positive for the disease during the exit HIV testing.  Mr. Sader noted the issue brought before the committee by Mr. Schneider had been discussed during past hearings.  He requested Ms. Cathcart address this concern.

 

Ms. Cathcart responded to Mr. Schneider's concern by stating the state would be liable in these cases dependent upon the circumstances and the type of lawsuits levied.  Lawsuits regarding negligence would require the inmates to show the Department of Prisons or a particular employee were negligent.  If the cases pertained to deliberate indifference to serious medical needs under civil rights actions, they would have to show that employees of the department of Prisons were deliberately indifferent to their medical needs.

 

 

 

 

To use as a scenario, the only circumstance Ms. Cathcart was aware of pertained to a case outside of Nevada where an inmate was well known to the prison authorities as being HIV positive and a predatory homosexual, yet that inmate was housed with the other prison population.  According to Ms. Cathcart, in those circumstances, claims against the state could be made.  Any prison would have strong interests to assure HIV inmates who exhibited those types of behaviors would be segregated. 

 

Mr. Sader noted, on one hand, it could be argued the prisons would be creating potential liability for themselves by utilizing exit testing.  On the other hand, by establishing the status of the offenders, when they released they might avoid claims HIV contraction occurred in prison.

 

Mr. Sader queried if the state of Nevada had ever incurred lawsuits in cases where inmates had claimed they had contracted the HIV infection while incarcerated, arguing their civil rights had been violated or it had been negligence on behalf of the prison authorities.  Ms. Cathcart responded by saying she was not aware of any lawsuits of this nature within the Nevada prison system. 

 

Ms. Cathcart added, according to Dr. Kaiser's testimony, there were very low percentages of HIV positive results between the entrance tests and the exit tests.  

 

Mr. Regan addressed this particular issue further and asked if those inmates who initiated lawsuits of this nature would be opening themselves up for charges of sodomy or other sexual crimes.  Mr. Sader responded by stating if the inmates were known homosexuals and had participated in various sexual promiscuities within the prison system, it would be difficult convincing the juries and the judges otherwise.  Mr. Regan added the inmates would be questioned as to how they contracted the HIV virus plus opening themselves for prosecution for contraction of the disease.  Mr. Sader interjected provided the circumstances were consensual.  In the instances of proven rapes, the right fact patterns would be in order. 

 

Mr. Sader addressed Mr. Carpenter's concern and noted the statute defined the issue by utilizing the language, "if the defender must submit to an initial test."   As he understood, S.B. 13 did not direct the prison authorities were required to administer the HIV test to inmates.  It would be the director's discretion to determine the appropriate measures used to detect HIV.

 

Mr. Sader confirmed Mr. Collin's comment S.B. 13 allowed the prison system the right to test inmates for HIV, although the bill did not make it a mandatory function.  The statute required the offenders to comply.

 

      ASSEMBLYMAN REGAN MOVED DO PASS ON S.B. 13.

 

      ASSEMBLYMAN TOOMIN SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

 

      ******

 

 

ASSEMBLY BILL NO. 195.        Eliminates period of limitation                                     for commencement of wrongful death                                    action by heir of deceased under                                certain circumstances.

 

Chairman Sader stated the prime sponsor of A.B. 195, Assemblyman Myrna Williams, and Victoria Riley from the Trial Lawyers Association, were not present to testify. 

 

Chairman Sader stated A.B. 195 could not be heard due to a technicality.  Witnesses wishing to testify in favor of the bill were not in attendance.

 

Mr. Sader informed the hearing on A.B. 195 would be tentatively rescheduled for the week ending March 12, 1993.

 

Chairman Sader closed the hearing on A.B. 195.

 

 

 

 

 

Seeing no other business to come before the committee, the meeting adjourned at 8:45 a.m.

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      JESSIE A. CAPLE       

            Committee Secretary   

 

 

  

 

 

 

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Assembly Committee on Judiciary

February 25, 1993

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