MINUTES OF THE
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 5, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader, at 7:00 a.m., on Saturday, June 5, 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 Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. Ken Haller Absent
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Ms. Stephanie Smith
Mr. Michael Schneider
Mr. Louis A. Toomin
OTHERS PRESENT:
Nancy Angres, Deputy Attorney General/Welfare
Kay Zunino, Chief of Support Enforcement, Welfare Division
Terry Hubert, Dept. of Prisons Classification Analyst
Following roll call, Chairman Sader continued the hearing from the previous day and opened the hearing on AB 583.
ASSEMBLY BILL 583 - Authorizes contracts for assisted conception and provides for determination of parentage under such contracts.
Mr. Gregory reported the subcommittee, Mr. Regan, Ms. Smith, Mr. Toomin, Mr. Scherer and he, unanimously recommended the amendments proposed in Exhibit C. He discussed the various changes made, and suggested the original bill be completely replaced by the proposed language.
In response to Chairman Sader's question, Mr. Gregory said the definition of "assisted conception" had been devised by he and Mr. Scherer and Mr. Regan had provided the definitions of "intended parents" and "surrogate."
ASSEMBLYMAN GREGORY MOVED TO AMEND AND DO PASS AB 583.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Mr. Gregory was asked to handle the bill on the floor.
ASSEMBLY BILL 520 - Requires court, when entering decree dividing community income, assets and obligations of husband and wife under certain circumstances to make equal division of property.
Nancy Angres, Chief Deputy Attorney General for the Human Resources Division/Welfare, came forward to explain Exhibit D. This proposed amendment would totally rewrite the bill, Ms. Angres stated. Section 1, subsection 1 defined "institutionalized spouse" and "community spouse," definitions derived from the federal Medicaid Act. Mr. Angres continued with a discussion and explanation of Exhibit D.
Mr. Porter took issue with the proposed language on page 3, subsection 10. He believed the court was capable of making the decisions alluded to in the language. Ms. Angres said too often the court only assumed there was agreement between the parties. Mr. Porter declared he had never seen the court sign a document without very careful consideration and scrutiny. If the Welfare Division needed the right to intervene in every petition, why was there a 45-day time limit? he asked. Would this not delay matters unduly? Ms. Angres said it would only affect exceptional cases as delineated in subsections 5 and 6. Generally, the Division would not intervene upon the filing of a petition because they did not truly have standing until a Medicaid application was filed.
Referring to Mr. Porter's question regarding the provision of 45 days, Mary Ellen McCarthy, Senior Attorney for the Nevada Legal Services, said they had agreed to this because under federal law the Division had 45 days to act on a Medicaid application in the majority of the cases. Since the law was designed to tie into a Medicaid application, she said it appeared appropriate and consistent to agree on the same amount of time already provided under federal law. This did not mean there was a net 90-day window, she assured Mr. Porter. She also assured Mr. Porter most petitions were brought under subsection 4, not subsections 5 and 6, and thus, were cases in which the court would not intervene. Mr. Porter continued to oppose the 45-day provision and additionally did not believe a judge should make the decision.
Ms. Angres agreed to deleting the first sentence of subsection 10 stating, ". . .the welfare division of the department of human resources has the right to intervene in any action seeking relief under subsection 5 or 6 of this section within 45 days after service of the petition. In addition. . ." but retaining "the welfare division has the right to intervene within 45 days from the date of receipt of an application for medical assistance and a copy of any order . . .".
Mr. Porter also questioned whether the benefits would be paid pursuant to the court order while the Division was moving to intervene and perhaps reduce those benefits. Ms. Angres assured Mr. Porter when the court entered its order, the Division would evaluate the assets and resources to determine eligibility according to the court order.
Regarding the division of resources, Mr. Gibbons asked Ms. Angres to explain the process. Ms. Angres said certain resources were exempt, such as a house. If the spouse was living in the house, it was exempt and the Welfare Division did not count it as a value, and it would not be counted in the $70,000 of transfer. Mr. Gibbons questioned if there was an asset with a community interest, whether it would just be the community interest of the party receiving Medicaid.
In response, Ms. McCarthy explained under federal law governing the division of resources, community property laws were superseded by the federal statute. This meant the moment someone entered a facility (hospital or long-term care facility), a "snapshot" was taken which looked at all the resources owned by the married couple at that precise time. The interest was then valued and divided in half. As in a court order, one half was assigned to the institutionalized spouse and the other half was assigned to the community spouse. At the point the institutionalized spouse's share was reduced to $2,000, the person became eligible for Medicaid.
ASSEMBLYMAN SCHERER MOVED TO AMEND AND DO PASS AB 520.
Ms. McCarthy pointed out subsection 3 would need to be amended if subsection 10 was adopted. Chairman Sader suggested the language could be cleaned up by the bill drafter.
Summarizing, Chairman Sader ascertained Ms. McCarthy's suggestion for conforming language in subsection 3 of Section 1 would be a part of Mr. Scherer's motion. The amendment would also include the deletion of the second clause of the first sentence of subsection 10.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Mr. Scherer was asked to handle the bill on the floor.
ASSEMBLY BILL 499 - Revises penalties for driving under influence of intoxicating liquor or controlled substance.
Chairman Sader recalled the bill had a consensus of agreement to adopt the proposed amendment (Exhibit E) when it was first heard. However, the Bureau of Alcohol and Drug Abuse (BADA) had noted the fiscal note had not been revised. The Chairman said from the information he now had, if the evaluator was changed, i.e., the agency of state government providing the evaluation of the evaluators from the Department of Motor Vehicles (DMV) to BADA, there would be no fiscal note as BADA already provided this type of evaluation and accommodating a few more applications would be no problem. If the evaluation was performed by the DMV, there would be a fiscal impact from the additional work load.
Reviewing, Chairman Sader said the proposed amendment requiring an evaluation if an individual's alcohol blood level was .15 or more, substantially changed the bill; however, it satisfied certain problems mentioned by the Clark County people, and Dorothy North from the Commission on Substance Abuse supported the amendment.
ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS AB 499.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Mr. Carpenter was asked to handle the bill on the floor.
ASSEMBLY BILL 596 - Makes various changes to encourage education of illiterate offenders in custody of department of prisons.
Based on testimony heard before, Chairman Sader noted they had held the bill until an amendment could be formulated. The Chairman also noted there was a conflict amendment which would have to be added to the bill.
Mr. Regan submitted Exhibit F, a fiscal note provided by the Director of Prisons. He did not believe, however, the prison administration had provided a dollar value, and noted the Department of Prisons appeared to lack enthusiasm for the bill. Mr. Regan insisted the bill would alleviate recidivism. The amendment was discussed.
Terry Hubert, Department of Prisons Classification Analyst, told the committee it was difficult to calculate the fiscal impact of the bill. Presently, the parole grant rate was one of the lowest in the nation. The information contained in Exhibit F was an attempt to explain if the bill was enacted the parole grant rate would decrease even more and this would mean an increase in prison population. The prison administration believed there were already vocational and educational achievement award programs which provided lump sums to encourage prisoners to acquire general education diplomas, high school diplomas, vocational certificates and academic degrees at the community college level.
If the bill was enacted, Mr. Hubert indicated there was language the Department of Prisons and the Attorney General's Office wished to see inserted. This read as follows: "No offender has a right to be admitted to a class or program or education established pursuant to this section. It is not intended to establish such a class or programs, or failure to establish such class or programs creates any right or interest on the inmate's behalf." Chairman Sader acknowledged this kind of liberty interest language had been included in other instances.
Mr. Hubert said he was also concerned the bill would serve to hamper the Department of Prisons' ability to classify and move inmates, especially minimum custody prisoners, into rural camp beds during the fire fighting season. This would stack the prisoners into the major institutions where the costs for the education would be passed onto the counties.
Finally, Mr. Hubert remarked, the Department of Prisons would have to increase the number of classrooms. Because the classes would be held at night, there would be a security problem posed in moving the prisoners about during the night, requiring additional security staff. Basically, Mr. Hubert stated, an inmate could not be forced to learn.
Mr. Regan argued where the programs had been installed in other states, they had worked. He said he had been told by the community colleges and the Clark County School District, what was currently in place was not working. This program gave the convict the opportunity to learn -- and if he did not learn, parole would be withheld.
Chairman Sader was troubled by the lack of a fiscal note.
Mr. Toomin noted the testimony heard from the Department of Prisons indicated the need for more time to study the proposal before they could come up with a dollar figure. He wondered how much time the prison administration needed to produce a fiscal projection; however, Mr. Hubert was unable to answer the question.
Philosophically, Mr. Anderson believed the bill was essential to provide the basic elements of education and to reduce recidivism.
Mr. Hubert agreed with the Chairman's synopsis that the Department of Prisons considered the bill to provide a good program as long as it was understood what the possible ramifications were.
The matter of funding for the program was discussed, with the Chairman indicating the bill would clearly have to go to Ways and Means Committee for final disposition. Chairman Sader reminded the committee during the previous hearing there had been a suggestion for an amendment to Section 5 to provide the Prison Director the discretion to deny work release. Mr. Regan said he had no objection to this provision.
ASSEMBLYMAN SMITH MOVED TO AMEND AND DO PASS AB 596 AND REREFER TO WAYS AND MEANS COMMITTEE.
ASSEMBLYMAN COLLINS SECONDED THE MOTION.
Chairman Sader summarized Section 5 would be amended to provide the Director of Prisons the discretion to determine whether an illiterate offender would be eligible to participate in a work release program.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
ASSEMBLY BILL 604 - Provides additional remedies for collection of child support.
Kay Zunino, Chief of the Support Enforcement Office for the Welfare Division, submitted Exhibit G and explained changes made to the bill:
1. Section 1. The suggestion made the previous day in committee hearing which required interest to be applied, had been deleted and the 10 percent per annum penalty in the initial bill had been reinstated.
2. Section 3 remained basically the same except it was now permissible rather than mandatory for the Division to make the posters. This was in order to reduce the fiscal note.
3. Section 4 had unnecessary language, Ms. Zunino opined. She suggested the last phrase of the last sentence should be deleted: ". . .but shall not transmit the address of the person to whom payments are due or other personal information about that person." This information was available elsewhere.
4. Section 7. Ms. Zunino said she had been told there would be no fiscal impact posed by the section. Chairman Sader ascertained there was no "suspension" or "temporary licenses" posed by the section.
Chairman Sader noted the original bill had dealt with wage assignments in Section 1. He indicated he had received support for the proposition from certain members of the judiciary. Ms. Zunino said this had been deleted because the language in the original bill was language contained in the federal Family Support Act of 1988. She said the Division had no problem with retaining the provision, but it only duplicated federal language.
Currently, from the Welfare Division's perspective, there was no fiscal impact, Ms. Zunino indicated; also, the licensing boards she had spoken to indicated no fiscal impact.
ASSEMBLYMAN PORTER MOVED TO AMEND AND DO PASS AB 604.
Mr. Porter explained the amendment would be to retain Section 1 of the original bill, and delete Sections 2 through 9, which would serve to delete the discretionary poster campaign and the licensing board provisions.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
In discussion, Mr. Gibbons said he believed the important thing about the notification of the licensing board was twofold. First it provided information back to the Welfare Division with regard to spouses who were not paying. Also, it provided a hammer in that there was a requirement in most licensing commissions to determine whether the applicant had violated any state statutes. Therefore, in determining the qualification of suitability for the licensee, it was important to have the information going both directions. Mr. Porter argued the legal implications against Mr. Gibbons' premise.
Mr. Scherer agreed with the proposal to delete Sections 3 through 8, but he saw merit in exchanging information between the Division and the licensing boards.
ASSEMBLYMAN SCHERER MOVED TO AMEND MR. PORTER'S MOTION TO REINSTATE SECTIONS 2, 7 AND 8 AND TO ALSO INCLUDE A STATEMENT THAT "IT SHALL NOT BE GROUNDS FOR REVOCATION OF A LICENSE."
ASSEMBLYMAN GIBBONS SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMEN ANDERSON, PORTER, SMITH AND REGAN VOTED NO, ALL OTHERS VOTED YES.)
Returning to Mr. Porter's motion, Chairman Sader clarified the motion to amend and do pass as amended would be to delete Sections 3, 4, 5 and 6, and add a provision stating delinquency in child support would not be grounds for revocation of a license.
Mr. Anderson said he no longer could support AB 604 if the revocation of a license was not included in the bill.
Ms. Smith agreed with Mr. Anderson.
A roll call vote was taken.
THE MOTION CARRIED. (ASSEMBLYMEN ANDERSON, PORTER, SMITH AND SADER VOTED NO, ALL OTHERS VOTED YES.)
There being no further business, the meeting was adjourned at 8:05 a.m.
RESPECTFULLY SUBMITTED:
Iris Bellinger
Committee Secretary
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Assembly Committee on Judiciary
Date: June 5, 1993
Page: 1