MINUTES OF THE

      ASSEMBLY COMMITTEE ON WAYS AND MEANS

 

      Sixty-seventh Session

      May 10, 1993

 

 

The Assembly Committee on Ways and Means was called to order by Vice Chairman Larry Spitler at 9:04 a.m., on Monday, May 10, 1993, in Room 352 of the Legislative Building, Carson City, Nevada.  EXHIBIT A is the Meeting Agenda.  EXHIBIT B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Morse Arberry, Jr., Chairman

      Mr. Larry L. Spitler, Vice Chairman

      Mrs. Vonne Chowning

      Mr. Joseph E. Dini, Jr.

      Mrs. Jan Evans

      Ms. Christina R. Giunchigliani

      Mr. Dean A. Heller

      Mr. David E. Humke

      Mr. John W. Marvel

      Mr. Richard Perkins

      Mr. Robert E. Price

      Ms. Sandra Tiffany

      Mrs. Myrna T. Williams

 

COMMITTEE MEMBERS ABSENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Mark Stevens, Fiscal Analyst

      Gary Ghiggeri, Deputy Fiscal Analyst

     

 

AB536Makes appropriation to legislative counsel bureau for reproduction of older Nevada reports.

 

Mr. John Crossley, Director of the Legislative Counsel Bureau (LCB), testified the appropriation in AB536 was traditionally a one-shot appropriation included in the Executive Budget, but when the request was submitted to the Budget Division, he was informed it would not be recommended by the Governor.  He emphasized the reproduction of these reports is a statutory requirement as set forth in NRS 345.025 and the funding source would be AB536 rather than a recommendation contained in the Executive Budget.

 

Mr. Marvel inquired what the Budget Office's rationale was for not recommending it as was previously the case.  Mr. Crossley replied it was a result of the shortage of funds and the Budget Office did not believe it was important enough to recommend a general fund appropriation.

 

Mr. Lorne Malkiewich, Legislative Counsel, provided the committee with two documents:  a printing estimate from the State Printing Office and a memo with an inventory of Statutes of Nevada on hand (see EXHIBITS C and D).  The printing estimate would be for printing 400 copies of the Constitutional Debates and Proceedings.  He explained the 1991 session used the 1991 appropriated amount for printing both Nevada Reports and the Constitutional Debates and Proceedings with the intention of having funds remaining based on the estimated number of reprints of Nevada Reports.  He stated the appropriation was actually used solely for reprints of the Nevada Reports and the cost of reprinting Constitutional Debates and Proceedings was more costly than expected because they would have to be completely recreated.  Mr. Malkiewich emphasized over the interim with in-house capabilities all the Constitutional Debates and Proceedings were input and camera ready documents were made. The camera-ready documents could be used for reprints and would save on printing costs.  These items were not included in the budget because of the fiscal constraints.  He requested AB536 be amended to include the amounts for reprinting the out-of-print Constitutional Debates and Proceedings.  He stated the estimated cost would be $7,800.

 

Mr. Malkiewich indicated the Statutes of Nevada are the official laws of Nevada, although NRS is what most people work with, and are a compilation of all bills passed in each session.  He stated the memo from Jeff Tlachac to Bud Howard estimates the reprinting of statutes which are either out-of-print or nearly out-of-print.  He indicated the inventory shows which statutes are on hand and where the supplies are dwindling or non-existent.  The estimates received were for printing 25 or 50 of the volumes which would result in an appropriation of nearly $100,000 for 25.  He remarked the request in AB536 is not for re-stocking the full need.  He emphasized the 1975 and 1977 volumes are completely out of stock and encouraged funding at a minimum level to restock volumes from 1973 forward.  He stated to reprint everything from 1973 forward which is out-of-stock would cost about $30,000.

 

Mr. Malkiewich recognized the fiscal constraints of the state, but noted, these documents are extremely important and in demand.  He pointed out his personal set is missing the 1973, 1975 and 1977 volumes which were sold off his desk.

 

Vice Chairman Spitler asked what amendment is being proposed.  Mr. Malkiewich replied it would include an appropriation of $7,800 for reprinting the Constitutional Debates and Proceedings and $30,000 for reprinting out-of-stock Statutes of Nevada.  He emphasized the $40,000 already listed in AB536 is to fulfill a statutory requirement for the 1993 volumes to be printed.

 

Mrs. Evans clarified the total appropriation, with amendment, would be $77,800.  She voiced her concern that this request is not a fluff piece.  The message is the state is now not funding the basic and essential functions of government.  She emphasized there are certain things each branch of government must do and this clearly is something the Legislature must do, not only for the Legislature to do their job, but also for accessibility for the citizens of Nevada or anyone else who needs this information.  She reiterated this is a basic necessity of government and the Executive branch is saying it will not even do it.   Vice Chairman Spitler concurred with Mrs. Evans comments.

 

Vice Chairman Spitler closed the hearing on AB536.

 

AB22        Allows certain state employees to choose form of compensation for overtime.

 

Mr. Bob Gagnier, Executive Director of the State of Nevada Employees Association (SNEA), stated AB22 was introduced at the request of SNEA and, in its original form did several things.  However, the Assembly Government Affairs Committee amended out one of the functions of the bill.  He pointed out there appears to be new language, however most of it would take language out of NRS 281 and move it to NRS 284 to clarify the statute.  He indicated the only new item is on page three, lines 41-44.  He stated the purpose of the bill would be to change the burden of choice.  Currently it is the employer who determines whether the employee will receive cash or compensatory time off except in those instances where SNEA has written agreements as discussed previously with the committee.

 

Mr. Gagnier asserted if AB22 was passed in its current form, the option would be shifted to the employee's choice rather than the employer's choice of cash or comp. time.  He stated the fiscal impact would be $1.9 million per year.  He testified the cost factor has decreased because two years ago, this same bill had a fiscal note of $6 million.  The lower fiscal note is based upon the assumption 50 percent of the employees will elect cash and 50 percent will elect comp. time.  He pointed out SNEA's records indicate 57 percent of employees, when given the choice, will take comp. time.

 

Mr. Gagnier testified, although this was SNEA's bill and a large amount of work was done in the Assembly Government Affairs Committee, AB22 should be killed.  The recommendation to kill the bill is based on discussions with Legislative Counsel and SNEA personnel.  He indicated, based on the current interpretation of the Attorney General, the state  would apply the law to all state employees except SNEA members.  Therefore, passing AB22 would guarantee an option for everyone except SNEA members because there are agencies which refused to sign comp. time agreements under the Fair Labor Standards Act (FLSA), and the SNEA members within those agencies would be denied the same choice every other state employee would be offered.  He reiterated the passage of AB22 would be against SNEA's best interest.  He commented the Attorney General's interpretation is a result of the continuing problems in regard to comp. time versus cash payment.

 

Ms. Giunchigliani commented AB22 would permit employees to choose rather than the employers and inquired if there is a "use it or lose it" clause for the comp. time to contain costs for budgetary purposes.  Mr. Gagnier stated there is no clause but some caps exist currently.  He pointed out caps vary depending on the job.  Ms. Giunchigliani asked if the Attorney General's interpretation resulted from the recent Supreme Court ruling.  Mr. Gagnier replied it is the same interpretation discussed in regard to AB316 which is currently in Senate Finance.  He explained the discussion had been that SNEA employees must be paid cash for all overtime unless there is a written agreement which allows for comp. time.

 

Ms. Giunchigliani remarked agencies are still refusing to enter into a comp. time agreement.  She emphasized there is the problem with agencies who refuse to follow policies established by the Legislature.  Mr. Gagnier explained the interpretation by the lawyers indicates if there is no proactive agreement, the agencies have no choice but to pay cash, yet the agencies are refusing to sign an agreement.  Ms. Giunchigliani suggested the committee establish some type of policy to require agencies to enter into some type of agreement which could ease the burden on the state.

 

She noted SNEA has come before the committee a number of times threatening lawsuits all of which have been won by SNEA.  She suggested the state begin listening to SNEA's legal counsel rather than the Attorney General and perhaps save the state some money in the future.  The expense of lawsuits and litigation are taking necessary funds away from agencies and programs.

 

Mr. Gagnier responded the Department of Motor Vehicles and Public Safety is the only agency which has declined in writing to sign an agreement.  He emphasized SNEA is already preparing a lawsuit against the agency after meeting with the affected employees.  The basis of the lawsuit would be 1) the refusal to sign an agreement and 2) the verbal directions to supervisors that no SNEA member will be allowed to work overtime.  He indicated these are clear violations of the FLSA.  He cited an SNEA member employee who was directed to leave a meeting at 5:00 p.m. and another SNEA member employee who was told to bring in someone who has agreed to work for comp time.

 

Ms. Giunchigliani requested a list of all agencies which refuse to enter into some type of agreement.  Mr. Gagnier indicated he would comply. 

 

Mr. Price suggested it would be appropriate for the Administration to provide the committee with the list of agencies which do not have a written agreement regarding comp. time versus cash.  Mr. Woody Thorne, Budget Division, replied he would attempt to provide a list of agencies who have not signed an agreement with SNEA.

 

Mr. Gagnier reiterated he would be able to get the list for the committee.  He noted the major agencies without an agreement are the Department of Transportation and the University System, both of which are supposedly under negotiation, and the Department of Motor Vehicles and Public Safety which has refused to enter into an agreement with SNEA.  Vice Chairman Spitler requested a list from both SNEA and the Budget Division in order to compile an accurate list.

 

Mr. Marvel requested Lorne Malkiewich provide the committee with a brief synopsis of the recent U.S. Supreme Court decision as it relates to the Benzler decision and the future implications for Nevada.  Mr. Malkiewich explained the Supreme Court case is Moreau v. Klevenhagen, Sheriff of Harris County Texas.  It was decided May 3, 1993.  It is a strong precedent.  He remarked the case illustrates the difficulty of legislating in this area.  He stated at the time AB316 was in the Ways and Means Committee the assumption under which the Legislature was operating was Judge Reed's ruling indicating SNEA was an authorized bargaining unit.  Therefore SNEA members would be entitled to cash in absence of an agreement.  He emphasized, under this assumption, AB22 would not help SNEA because without a prior agreement cash would be paid while with a signed agreement the agreement would prevail. 

 

Mr. Malkiewich emphasized the Moreau v. Klevenhagen, Sheriff of Harris County Texas case calls the agreement into question.  The case addresses whether any agreements between a public employer and its bargaining unit took precedence.  He explained the way the current statutes are set up, if an employee has an authorized representative, the agreements between the employer and the representative controls, while in the absence of such an agreement the employer is free to enter into an agreement with the employee directly.  He stated the statutes and regulations basically constitute the agreement with the individual employees.  He concluded this is why there are different scenarios for SNEA and non-SNEA members.  He elaborated non-SNEA members do not have an authorized representative and fall into the category allowing the employer and employee to enter into an agreement directly.  For the purposes of the FLSA, the state's statutes and regulations stating when employees receive comp. time and when they receive pay, constitute the prior agreement with the employees.

 

Mr. Malkiewich emphasized the Supreme Court case stated under Texas law, the group in question did not have authority to bargain collectively on behalf of the employees, they could not enter into the type of agreement described in sub-paragraph one and therefore all employees fell under the other category and the employer could negotiate directly with the employees.  He stressed, if the case was applied to Nevada's situation, the argument would be SNEA also does not have the authority to bargain collectively on behalf of its employees and therefore cannot enter into agreement with the agencies.  Mr. Malkiewich indicated Legislative Counsel did not know if this would be the case.  The case could be distinguished.  In Texas collective bargaining is prohibited, but in Nevada there is no prohibition nor anything allowing collective bargaining.  He indicated there is language in the FLSA which states the state's law controls with respect to the determination.  Therefore, legal counsel is not sure how the decision applies.  He emphasized it is possible the summary judgment and the stipulation signed by Judge Reed and entered into by SNEA and the State of Nevada acknowledging SNEA as an authorized representative would be moot under the Supreme Court decision.  He stated it will take time to see what effect the decision will have.

 

Mr. Malkiewich reiterated this illustrates how difficult it is to enact legislation.  If the Legislature passes AB22 and includes language delineating treatment of SNEA members and addressing the policy of agency/employee agreements, an SNEA member could still come back and file suit. 

 

Mr. Malkiewich emphasized the Supreme Court case does not undo anything in AB316 regarding payment of funds as a result of the Benzler decision, but it does cloud the issues about the future.  He noted the changes in language moving verbiage from NRS 281 to NRS 284 was done by bill drafting to eliminate the inconsistency between the chapters.

 

Mr. Marvel inquired if any of the retroactive actions will be affected by the case.  Mr. Malkiewich indicated he did not believe it would, but it would be possible for an SNEA member to come back and say they did not like the agreement entered into between SNEA and the employee's agency.  He noted most agreements give the employees the option of comp. time or cash which is a better position than the law provides.  He stated, as part of the Benzler decision, the court entered a partial summary judgment in favor of SNEA and the stipulation prevents employees from coming back to the courts to better their position.  He concluded all past liability has been resolved and would not be affected by the recent Supreme Court decision.

 

Mrs. Williams inquired, with Benzler aside and based on Mr. Gagnier's testimony regarding some agencies which refuse to enter into agreement with SNEA, if the larger issue would be discrimination against a particular group.  She asked if there could be some serious action against the state for agency decisions.  Mr. Malkiewich stressed he could not comment on either pending or potential litigation being prepared against the state without knowing the facts.  He remarked his initial reaction to the testimony would prompt him to research the information related to applying the 1983 claim of denying Constitutional Freedom of Association Rights by punishing someone for being a member of a particular group.  Mrs. Williams agreed and commented her concern over the basic concept rather than specific violations of the FLSA.  Mr. Malkiewich reiterated, based on the allegations, there could be a cause of action under federal and state laws.

 

Ms. Giunchigliani stressed the situation implies retaliation.  She noted it fully argues for collective bargaining in Nevada.  She emphasized no one has an authorized representative because the state has not permitted the opportunity to vote on who would represent the employees.  At some point the employees should be provided the chance to choose a representative to eliminate the question by the state agencies of whom should they approach to negotiate agreements.

 

Mr. Malkiewich replied he would not respond to the collective bargaining issue, but pointed out the law states the agreements can be either with an authorized representative or with the employee directly.  He noted the law could be interpreted for SNEA members.  Any agreement entered into between the agency and SNEA could be construed as an agreement with the employees.  The Supreme Court case would allow an SNEA member to make his own agreement with the agency.  He explained the Supreme Court has stated the authority to bargain collectively on behalf of the employee is necessary to reach the kind of agreement described in the statute.  He noted the state could possibly grant limited rights where the employees could designate any representative for the purpose of negotiating agreements on the use of comp. time.  This would clearly provide the authority.  But until litigation appears, the state has no means of knowing.  He reiterated there is no Nevada statutory authority to bargain collectively and Texas law strictly prohibits collective bargaining.  Ms. Giunchigliani clarified Nevada law just does not recognize collective bargaining.  Mr. Malkiewich concurred. 

 

Mr. Gagnier commented SNEA has been closely following the Texas case and emphasized it is different from SNEA's original case.  He noted the original case granting SNEA the right was not the Benzler case.  It was the case filed against the Department of Prisons several years ago called the Muller case.  He pointed out the Muller case went to the 9th Circuit Court of Appeals and was not only decided in SNEA's favor, but also reinforced the original decision.  Mr. Gagnier reiterated both cases determined SNEA was a representative within the FLSA for members of SNEA only.  He elaborated collective bargaining agreements with specific representatives are for all groups not just one group as is the issue for SNEA and their members.

 

Mr. Pat Murphy, Assistant State Forester for the Division of Forestry, testified the division has an agreement with SNEA and the language under Section 3, item 7 of AB22 states the employer no longer would have the right to pay overtime when necessary for budgetary reasons.  He emphasized it is important to the Division of Forestry to retain the right of the employer to choose the form of settlement of overtime rather than the employees.  He explained, as an example, the firemen of the division fight fires for other agencies and those agencies are charged for the firemen's time.  He elaborated if an employee chooses comp. time, it would be more difficult to charge back time to the agencies.  It is the division's policy when an employee reaches 240 hours of comp. time, additional time must be paid in cash and becomes an expense to the State of Nevada rather than the U.S. Forest Service or BLM which utilized and were billed for the services originally.  Another example would be the Forestry Nursery which is an enterprise budget, not general fund.  During the "fat" spring and summer growing times, employees accrue comp. time which they can then utilize during the "lean" winter months.  He explained if an employee chooses overtime pay versus the comp. time, an extra $10,000 or so per year would need to be factored into the budget since there are no means for the division to go back for additional general funds over the interim.  He reiterated the division would like to retain the authority to choose.

 

Mr. Perkins commented he was not swayed by Mr. Murphy's argument.  Mr. Perkins pointed out his employer also contracts out to a variety of agencies, the employees have the right to choose the type of overtime payment and there has been no significant budgetary problems for the agency.  He recommended including a stipulation indicating comp. time must be utilized within a certain time period and that it could not be carried over into another budgetary period or restrict the accumulation of comp. time.  He commented by providing the employees with a choice, it is more likely the comp. time option would be chosen and it would save funds for the agency and state budgets.

 

Mr. Humke asked if Mr. Murphy was proposing a formal amendment to the bill.  Mr. Murphy stated he would provide a copy of the amendment proposed for the committee (see EXHIBIT E).  He indicated the verbiage is already included in the agreement signed between SNEA and the Division of Forestry and addresses the budgetary issue.

 

Mr. Humke noted Mr. Gagnier had testified 57 percent of employees would choose comp. time.  Mr. Humke inquired if the percentage would hold true for the Division of Forestry.  Mr. Murphy replied the percentage taking comp. time could be as much as 60 or 70 percent.  Mr. Humke wondered why Mr. Murphy still felt uncomfortable with the employees having the choice.  Mr. Murphy explained the desire to retain authority was based on the goal of saving money.  He cited the example of having three shifts of firemen - A, B, and C shifts, a fire burns on U.S. Forest Service land, through a cooperative agreement Nevada sends a fireman to the fire.  The employee chooses comp. time for the overtime worked on the U.S. Forest Service fire.  The Division currently has no means to bill for comp. time, therefore the extra time costs the state rather than the federal government.  Mr. Humke concurred with Mr. Perkins and did not see Mr. Murphy's argument as valid.

 

Vice Chairman Spitler asserted the Division of Forestry would actually come out ahead even if Mr. Gagnier's estimate of employees taking comp. time was more accurate than Mr. Murphy's higher percentage.

 

Mr. Marvel asked if the division had agreements with all employees.  Mr. Murphy replied they did with both SNEA and non-SNEA employees.  Mr. Marvel suggested the division try to factor what the time is worth for billing purposes.  Mr. Murphy indicated they could.  Mr. Marvel wondered what the difference would be.  Mr. Murphy emphasized it is cleaner, for federal audit purposes, to have straight overtime costs versus comp. time as a charge to the federal bureaus.  Mr. Marvel inquired if the federal auditors recognized comp. time in lieu of overtime.  Mr. Murphy replied, to this point, all charges have been at overtime costs based on cash payment.  Mr. Marvel reiterated the value of comp. time for billing could be calculated.

 

Mr. Price requested additional clarification.  He commented in the private sector comp. time was not an issue.  He asked if comp. time was straight time or time and a half.  Mr. Murphy replied it was one and a half hours comp. time for each hour of overtime worked.  Mr. Price stressed there was no sound reason why comp. time could not be billed to the federal government if the comp. time was actually accrued at a specific rate of time and a half.  Mr. Murphy hypothesized how the use of comp. time could cost the state more money.  He said if one fireman on A shift calls in sick, a B shift fireman is called in to work the A shift and accrues 36 hours of comp. time (24 plus the 12 for overtime).  At the beginning of the B shift, the B shift fireman then has the choice of using comp. time.  If he uses it for the time he would have otherwise worked on B shift, a C or A shift fireman comes to work the B shift and the comp. time accumulation begins again.  Therefore, a rolling effect occurs.  The option of paying for overtime clears up the potential added liability.

 

Vice Chairman Spitler asked if the amendment was offered in Government Affairs.  Mr. Murphy indicated he did not believe it had been.  Mr. Spitler noted the issues were going beyond just fiscal impact and requested the amendment be submitted for consideration (see EXHIBIT E).

 

Mr. Thorne remarked with the Benzler case the state was obligated to pay cash for overtime unless a prospective agreement to the contrary is in place.  AB22 would give the comp. time versus overtime choice to the employee.  He stressed essentially the intent of the bill is already being accomplished by agreements and the Benzler decision.

 

Vice Chairman Spitler closed the hearing on AB22.

 

OFFICE OF PROTECTION AND ADVOCACY -- PAGE 1095

MENTALLY ILL INDIVIDUALS PROGRAM -- PAGE 1099

 

Mr. Kevin Christensen, Acting Director of the Office of Protection and Advocacy (OPA), noted his last visit to the committee resulted in a number of questions regarding enhanced work programs and additional funds available for use by the agency.  He submitted a memo which addressed and answered the issues and provides a spending plan (see EXHIBIT F).  He discussed the memo.  He noted an internal audit of federal funds resulted in additional funds above existing grants.  These resources totalled $181,751 for the Protection and Advocacy for Persons with Developmental Disabilities Program (DDP).  He noted $270,962 were available for the Protection and Advocacy for mentally Ill Individuals Program (MIIP).  He pointed out if the funds were not expended within two years, the balance would revert to the federal treasury. 

 

Mr. Christensen explained the funds rolled up over a number of years by underspending the grants which came to the agency every year.  He indicated the agency did overspend the grants one year and used old funds.

 

Mr. Christensen pointed out $20,000 a year was provided through a letter of agreement with the Budget Division to support legal services in B/A 3822.  He noted a request for $10,000 of the $181,000 in addition to the Governor's Recommended amount and the enhancement amount brings legal services to approximately $20,000 per fiscal year.  He emphasized no general fund dollars would be used for this purpose.

 

MR. Christensen noted the committee was provided a copy of a memo to the Budget Division by Jonathan Andrews which addresses the potential problem with placing the OPA in the Department of Employment, Training and Rehabilitation.  A letter from Will Wolstein (see EXHIBIT F), acting director of the federal granting agency which funds the OPA programs, addresses the federal government's concerns regarding the placement of the agency in the ETR department due to the conflict of the independence of the agency.

 

Mr. Christensen explained the requested spending plan is attached  as pages four through nine of EXHIBIT F and itemizes how the funds are proposed to be expended over the biennium.  He pointed out an additional $151 in each fiscal year for in-state travel to allow advocates to travel on a statewide basis.  Operating expenses would be enhanced by $25,000 in each fiscal year for a number of projects including a statewide training initiative for service providers to developmentally disabled individuals.  He emphasized preferences would be given to individuals or groups with a history of developmental disability or mental illness.  He stated the OPA believes this is an affirmative action initiative and provides consumers with the opportunity for empowerment.

 

Mr. Christensen testified the OPA would enter into agreement with the University of Nevada affiliated program on disabilities and fund, in each year of the biennium, $20,000 to match grant funds which the University affiliated program would obtain to develop a self-advocacy initiative.  The grant requires contributing or matching funds from other agencies or entities.  The OPA would become a cooperative partner in the grant.  He pointed out the OPA has also entered into a letter of agreement with Dr. Rock, the Director of the University affiliated program, to assure neither the OPA nor the University program would be returning to the Legislature in 1995 seeking additional general fund appropriations to fund the cooperative program.  He emphasized the cooperative would be seeking resources on an ongoing basis from private foundations or other federal funding sources.

 

Mr. Christensen testified the spending plan shows an increase in the printing and copying line item in the amount of $1,500 each fiscal year to support the continued publication of The Nevada Times which is currently published cooperatively between the OPA, University affiliated program and the Developmental Disabilities Planning Council.  The costs have increased as a result of staff time and printing costs. 

 

Mr. Christensen elaborated the complexity of a number of the OPA cases require expert consultants in the fields of psychology, education, and psychiatry to evaluate clients, their clinical status, review records and treatment and educational needs.  The spending plan requests $10,000 for each fiscal year to hire the necessary experts.  He noted a request of $3,000 in FY1994 for equipment to purchase some moderately priced chairs, not Chippendales, for the office and an additional FAX machine for the Northern Nevada office because of the bulk of FAXs received.

 

Mr. Christensen stated an additional $10,000 for each fiscal year is requested to fund legal services above and beyond the Governor's Recommended amount of $4,175 plus the enhancement amount of $5,000 resulting in a total request of $19,175 for each fiscal year.  He requested the balance of $25,449 in FY 94 and $20,000 in FY 95 be placed in reserve for unanticipated personnel costs, in-state travel, equipment and legal services to clients.

 

He explained in B/A 3822, Mentally Ill Individuals Program (MIIP), there is $270,962.  He requested in-state travel be augmented $1,000 each fiscal year to support the travel of advisory council members which the MIIP is required to have by federal mandate and to provide for the member's transportation and meeting needs.  The MIIP would match the training initiative funds included in the Developmental Disabilities Program of $25,000 each fiscal year.  The funding would provide training and develop a guide.

 

Mr. Christensen indicated another program proposed is a consumer organization initiative which would cost $40,000 per fiscal year.  He noted his testimony before the Senate Finance Committee had been $20,000 per fiscal year would be adequate to seed the program.  There would be no promise of further funding for a consumer initiative in the future and the program would need to be self-sustaining.  He stated there are a number of consumers of programs for mental health services throughout the state who can best advocate for themselves, train their peers and other consumers and relieve some of the burden on the state agency.  Mr. Christensen stressed self-advocacy works in other states and OPA believes properly trained and organized individuals can become excellent advocates for themselves and others. 

 

He requested $1,500 in each fiscal year for printing and publications to match the DDP and the publication of The Nevada Times as well as update some brochures.  Contract services would cost $45,000 per fiscal year which includes $10,000 for clinical experts and $35,000 for monitoring and inspection of board and care facilities and other facilities where clients are living.  He pointed out after budget reductions it was discovered there has been an increase in board and care facilities in the state which are unlicensed and unregulated.  Many clients are in those facilities and are experiencing the most difficult environments and treatment ever.  He testified MIIP does not have the staff to monitor these types of facilities, but feel strongly there are people who can provide the monitoring function if financing is provided.  The amount of $3,000 is required for Equipment in FY 94 for file cabinets and a FAX machine.  He requested the reserves of $21,760 in FY 94 and $21,202 in FY 95 be held for unanticipated costs as explained in OPA.

 

Vice Chairman Spitler asked how the state agencies get into the situation where grants are underspent.  He commented many constituents call with complaints regarding lack of service delivery.  Mr. Spitler stressed his concern about available grant funds not getting out to the people who desperately need services.  He asked how the decision to hold grant funds is made.  Mr. Christensen explained there are a number of reasons why grant funds are not fully expended.  First, Nevada is a minimal allotment state from the federal government where the state receives the minimum amount of grant funds.  Sometimes, without expectation or anticipation, Congress decides to increase the grant amounts in the middle of the state's fiscal year.  If there is no spending program in place for the increased amount, then the funds rollover into the next fiscal year.  He stated it was unfortunate OPA did not pay enough attention to the expenditure of the funds, although there has been a recent effort to do better.  He remarked when the MIIP came on board, it took nearly a year to get the program into state government and expend the initial grant funding.  Therefore, the funds rolled over and accumulated.  In the last three years, Congress has given the program substantial increases in the grants which were not anticipated.

 

Mr. Spitler emphasized the frustrating part is primarily the funds do not get out in a timely manner to the clients and secondly there is no plan "B" in place to automatically expend the windfall funds.  He asked if the program could expend funds without legislative action.  Mr. Christensen stated all expenditures require legislative authorization.  Mr. Spitler inquired why the agency does not come to IFC or to the committee with a plan "B" in anticipation of client need.  He stressed it is the agency's responsibility to come forward with a work program when additional funds are available to help Nevada citizens.  Mr. Christensen replied it would be the agency's intention to do so if additional funds became available in the next biennium.

 

Vice Chairman Spitler asked if the Budget Division concurred with the OPA spending plan.  Ms. Summers indicated yes, the proposed spending plan is acceptable for expending the funds.  She noted the greatest need is staff, but without commitment of ongoing funds, the spending plan addresses one-shot needs augmented with contract services.  Mr. Spitler emphasized it is understood there may not be ongoing funding past the biennium.  Ms. Summers understood and noted the funds were strictly federal dollars with no general funds.

 

Mrs. Williams asked who Dr. Rock was and where he was located.  Mr. Christensen stated Dr. Rock is the Director of the University affiliated program which is housed in the Department of Education at the University of Nevada Reno.  It is a statewide program funded  by the federal government.

 

Mrs. Williams commented with the numbers in relation to some of the areas of need, she wondered why some of the $181,751 could not be utilized to assist the Committee for the Employment of the Handicapped.  It seems like a logical alternative for funding where all the funds have been cut out, the program will not have any general fund money and will go under when it has been doing the very thing the Office of Protection and Advocacy was intended to do.  She asked, under the $270,962, why some of the funds cannot be devoted to out-patient services in Southern Nevada where there is a desperate need.  She commented the Spending Plan is a carefully planned way to divide up the funds on things which would not have otherwise been funded, including salary increases.  She voiced her concern over the OPA forming constituency groups when NAMI (National Association of Mentally Ill) and AMI (Alliance for the Mentally Ill) are already out there and well organized as patient constituency groups. 

 

Mr. Christensen replied the funds received pursuant to the grants are specifically provided to the state for the protection and advocacy for persons with developmental disabilities and mental illness.  The grant provision also states the agency may subcontract with individuals or entities to provide information and training on the civil and human rights of individuals.  There is no provision within the grants to divert the funds for employment for the handicapped unless contracted specifically with a group of individuals who may be developmentally disabled or mentally ill.  He indicated OPA may not use the grant funds for treatment purposes.  Mrs. Williams asked why the proposal includes a request for funding a psychiatrist.  She wondered why the proposal is directed only to Northern Nevada when the overwhelming need is in Southern Nevada.  Mr. Christensen stressed the program would be statewide.  He emphasized the contracting of psychiatric consultants would be on a case-by-case basis for evaluation, not treatment purposes, and for report writing or court testimony. 

 

Mrs. Williams inquired if the responsibilities OPA is undertaking should be under the authority of Mental Health and the Committee for Employment of the Handicapped.  She stressed these are civil rights agencies also.  Mr. Christensen agreed, however, the broad term of handicapped individuals does not specifically always apply to a person who is developmentally disabled or a person with a mental illness.  The OPA, pursuant to the grants, must target those populations specifically and cannot broadly represent persons with handicapping conditions or other disabilities.  He explained NAMI is a group of individuals, family members, parents and some consumers of mental health services which does not necessarily have the same agenda as the OPA clients as related to protection of client rights.  He emphasized the OPA often sees situations where the AMI, in Nevada and other states, has an agenda quite different from what OPA clients want, such as large institutions versus small community based services or locking up a child versus a person trying to get out of an institution.

 

Mrs. Evans inquired if placing the balance in reserve will prevent reversion to the federal government.  Mr. Christensen replied the balance would be in reserve for unanticipated legal services needs in the event designated legal funds are expended.  He commented the balance could be used for a salary increase where a position budgeted at entry-level is filled at the high end of the grade/step system.  Mrs. Evans remarked the spending plan addresses the issue of preventing federal reversion of grant funds.  Mr. Christensen responded it is OPA's intent to prevent the reversion.

 

Mrs. Evans commented regarding Will Wolstein's April 2, 1993 memo (see EXHIBIT F) which recommended the state refrain from moving OPA from the Department of Commerce over to the proposed Department of Employment and Training.  She asked where the Budget Division recommends placing the services.  Ms. Summers cited Jonathan Andrews' memo and Will Wolstein's memo which both recommend not placing the OPA as proposed by the reorganization.  She stated, based on those recommendations, the Budget Division believes the most appropriate placement would be to retain the OPA services in the proposed Department of Business and Industry.

 

Mr. Humke pointed out there had been problems previously with sexual assaults on the members of the developmentally disabled community in Northern Nevada.  He inquired if the problems had been solved to some extent or was it still a problem for the individuals.  Mr. Christensen replied he believed the problem was much better than it had been.  He explained the completion of the new dual diagnosis unit at the Sierra Developmental Center, seemed to have improved the monitoring of individuals who had antisocial sexual behaviors.  He emphasized many of those individuals had been split up and placed into the community and seem to be followed adequately through supportive living conditions.  He remarked OPA has no indication this continues to be an ongoing problem as it was at that time.  There is active monitoring and there are other problems, unrelated to sexual perpetrators, with physical violence.

 

Ms. Giunchigliani clarified the OPA would be moved into the proposed Department of Business and Industry under Consumer Services.   Ms. Summers concurred.  Ms. Giunchigliani commented the mission statements for OPA and MIIP center on civil protection and advocacy, but not in getting the individuals jobs.  She voiced her concern over the gutting of the Committee to Hire the Handicapped budget and stated OPA's grant could not be utilized for this purpose at all.  Mr. Christensen reiterated the OPA could possibly provide a subgrant for the purpose of providing information on employment rights to persons with developmental disabilities or mental illness, but that is the extent and it would need to be narrowly constructed.  Ms. Giunchigliani remarked she would contact Mr. Coffin to investigate pursuing some coordination. 

 

Ms. Giunchigliani suggested to the Budget Division a better location for the Committee to Hire the Handicapped would also be the Consumer Services Division of the proposed Department of Business and Industry.

 

Vice Chairman Spitler commented when there is a situation of agencies going to the Budget Division to request approval of budgetary variation, it should be considered critical in this particular area where services are in such dire need, and that such requests be expedited and not bogged down in the process.  He stressed the need to move these requests to IFC quickly and get the funds to the individuals and programs which desperately need them. 

 

Chairman Arberry adjourned the hearing at 10:27 a.m.

 

                                                RESPECTFULLY SUBMITTED:

 

 

                                                _________________________

                                                Kerin E. Putnam

                                                Committee Secretary

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Assembly Committee on Ways and Means

May 10, 1993

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