MINUTES OF THE

      SENATE COMMITTEE ON HUMAN RESOURCES AND FACILITIES

 

      Sixty-seventh Session

      March 31, 1993

 

 

 

The Senate Committee on Human Resources and Facilities was called to order by Chairman Raymond D. Rawson, at 2:00 p.m., on Wednesday, March 31, 1993, in Room 226 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda.  Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

Senator Raymond D. Rawson, Chairman

Senator William R. O'Donnell, Vice Chairman

Senator Randolph J. Townsend

Senator Joseph M. Neal, Jr.

Senator Bob Coffin

Senator Diana M. Glomb

Senator Lori L. Brown

 

STAFF MEMBERS PRESENT:

 

Pepper Sturm, Research Assistant

Susan Henson, Committee Secretary

 

OTHERS PRESENT:

 

Elizabeth M. Breshears, Chief, Bureau of Alcohol and Drug Abuse

Joyce Ray, Concerned Citizen

Yvonne Sylva, Acting Administrator, State Health Division

Gary Crews, Legislative Auditor

 

Chairman Rawson opened the hearing on Senate Bill (S.B.) 312.

 

SENATE BILL 312:  Specifically authorizes bureau of alcohol and drug abuse of rehabilitation division of department of human resources to approve programs which use methadone to treat patients.  (BDR 40-688)

 

Elizabeth M. Breshears, Chief, Bureau of Alcohol and Drug Abuse, presented a proposed amendment to S.B. 312, as referenced in Exhibit C.  She explained originally the bill was requested because of a requirement from the Food and Drug Administration (FDA) which must approve all methadone clinics in every state.  Contingent upon FDA's approval is the approval of the state agency for alcohol and drug services.  The bureau has been operating with the term "approval" being synonymous to "certification," which is in the statute.  This amendment was requested to clarify that language.

 

Ms. Breshears said, since the original bill request, a second issue has been brought to the bureau's attention by several judges and treatment programs around the state.  Nevada Revised Statutes (NRS) 458.290 through 458.330 used the term "state-approved facility" when talking about treatment as an alternative to driving under the influence (DUI) sentencing.  Because that phrase is used both at the federal level and the state level, the bureau is proposing an amendment which would say, in old section 4 of NRS 458.025, which is the new proposed section 5, "upon request from a facility which is self-supported, or which requires state approval, may certify the facility, its programs and personnel and add them to the list of certified facilities, programs and personnel."  The bureau is requesting the proposed section 4 be deleted. 

 

Senator O'Donnell asked Ms. Breshears what the bill is actually allowing, although he sees the technical correction.

 

Ms. Breshears explained it clarifies the phrase, "state-approved," as used in one section, and "certified," as used in another section, as those terms are synonymous.

 

Senator O'Donnell asked if this would change the operation of clinics?  Ms. Breshears replied it would not, but would clarify questions that have occurred. 

 

Senator O'Donnell asked what kinds of questions it would clarify.  Ms. Breshears replied that judges, who have tried to use NRS 458.300, eligibility to elect civil commitment, have called the bureau of alcohol and drug abuse and asked for lists of state approved facilities.  Ms. Breshears has responded, "If state approved facilities equals certified facilities, these are the state approved facilities."  The attorney general has verified that as a correct interpretation of the law.  The change would make the law more explicit.

 

Senator Brown pointed out the original bill specifies methadone clinics and asked if those would be included in the more general language.  Ms. Breshears replied methadone clinics would be included. 

 

Joyce Ray, Concerned Citizen, specified she is not speaking in opposition to the bill, but to some of the language in the bill. She did want to outline her understanding of the words "program" and "facility," as defined by the general provisions of the alcohol and drug abuse office.  An alcohol and drug abuse program is a project concerned with education, prevention, and treatment directed toward achieving the mental and physical restoration of alcohol and drug abusers, whereas a facility means the physical structure used for the education, prevention, and treatment,

 

including mental and physical restoration of alcohol and drug abusers. 

 

Ms. Ray pointed out NRS 458.097 says, "All money received by the bureau, pursuant to NRS 369.174, must be used to increase services for the prevention of alcohol abuse and alcoholism, and for the detoxification and rehabilitation of abusers.  In allocating the money for the increase of these services, the bureau shall give priority to:  (1)  The areas where there exists a shortage of personnel to conduct treatment for alcoholism and alcohol abuse

. . . ."

 

Ms. Ray read from her prepared statement (Exhibit D).  She pointed out she is not asking for federal money, but for a letter of approval from the state which would enable her to open her treatment facility.

 

Ms. Ray asked if the authority given to the bureau in S.B. 312 pertains to future programs, and asked for clarification as to the effective date.  It was her concern the bureau's authority to approve all methadone programs could give them the right to close existing programs. 

 

Ms. Ray presented further testimony (Exhibit E).  Ms. Ray reiterated she would like language to specify that a program cannot be denied if it meets the criteria of the federal government, or based on the fact that it is not a funded program, which is currently happening.  Ms. Ray stressed in her particular situation, she should have received an approval letter from the state.

 

Chairman Rawson commented the amendment proposed by the bureau makes certification permissible, rather than mandatory, as it changes the word "shall" to "may." 

 

Senator Glomb noted the language in the bill already gives the bureau authority to grant or deny certification and questioned why the language, "or which requires state approval" is needed.

 

Ms. Breshears confirmed the bureau already has authority to develop standards for levels of care, and to certify or not certify programs on the basis of whether or not that program meets the standards.  Agencies that are not funded by the bureau have the option to request certification, the same as agencies who receive funding.  The non-funded programs request certification by the bureau to show they meet the standards of care.

 

Senator Townsend outlined the law for the committee.  He pointed out the current law, says, "Upon request from a facility which is self-supported, the bureau may certify . . ."   Even if a program meets the standards, the bureau does not have to authorize the program, as it has discretion for approval.  The proposed language reads, "Upon request from the operator of a program which uses methadone to treat patients, the bureau shall approve . . ."   In this language, the bureau is required, or mandated, to approve the program, if they determine the program complies with the applicable requirements of state and federal law.  However, the bureau is now requesting a change in the proposed language which pulls the amended portion out of the bill, and states, "Upon request from a facility which is self-supported, or which requires state approval, the bureau may certify . . ."   

 

Senator Townsend remarked the bill as drafted mandates the bureau to approve a program if it meets the standards.  However, the bureau is submitting language which goes back to the original law, giving the bureau discretion for approval.  The senator reiterated the concerns of the committee and asked, "why are we here."

 

Chairman Rawson asked Ms. Breshears why the reticence to give approval, inquiring if money was an issue.  Ms. Breshears replied money is not the issue.  She explained if a new type of treatment is going to be offered in a community, the bureau has an obligation to go to the community and ask if the service is valuable and important to the community.

 

Chairman Rawson asked Ms. Breshears if a preexisting treatment facility felt there would be competition from a proposed facility, could they resist, or take exception to the new facility through the public hearing process?  Ms. Breshears confirmed the chairman's understanding and stated the bureau has been contacted by a number of methadone providers interested in opening a facility in northern Nevada. 

 

Senator Neal said it was his understanding it is the bureau's responsibility to publish a list of the programs which meet the standards of care.  Ms. Breshears confirmed the bureau has a directory of the approved programs.  Senator Neal read page 2, NRS 458.025(3), "Shall develop and publish standards of certification and may certify or deny certification of any facilities, programs or personnel on the basis of the standards, and publish a list of certified facilities, programs and personnel."  The senator felt that language was very clear, and if an individual met the standards, the bureau must certify the program.  Senator Neal then directed the committee to NRS 458.025(5).  It is his opinion this is contradictory to NRS 458.025(3).

 

Ms. Breshears explained the orientation is different.  NRS 458.025(5) speaks to those programs which are self-supported, and those programs are not required to be certified, although they may request certification by the bureau.  Senator Neal asked Ms. Breshears what the bureau would do with a new methadone clinic, if it met state standards.  Ms. Breshears replied the bureau would certify the clinic. 

 

Senator Glomb once again questioned the purpose of the amendment.  Ms. Breshears stated apparently there has been some confusion.  The attorney general was concerned with the inconsistency of the words "approved" and "certified" within the statute.  The proposed amendment would clarify that the word certified means approved.

 

Senator Brown pointed out the language proposed in the bill draft would require the bureau to certify anyone who meets state and federal standards.  She questioned if the bureau's standards might go beyond the minimal state and federal standards?

 

Ms. Breshears replied, "The bureau's standards are the state's standards, and federal approval is a separate stream of regulations."  She reiterated however, federal approval depends on state approval.

 

Senator Brown stated it was her understanding that a private clinic, not asking for federal or state money, is not required to be certified with the bureau.  Ms. Breshears replied that is true, except for methadone clinics.  As methadone is a federally regulated drug, the methadone clinics require Federal Drug Administration (FDA), Drug Enforcement Agency (DEA), and state approval, without the transfer of funds.  Chairman Rawson pointed out methadone clinics cannot get that without state approval. 

 

Senator Coffin asked Ms. Breshears why Ms. Ray has been denied state approval.

 

Ms. Breshears replied Ms. Ray has been denied to the FDA because the bureau has not finished the approval process.  The FDA told Ms. Ray she can reapply.  However, Ms. Breshears pointed out, all the entities interested in opening methadone clinics in Reno have until the end of April to submit their documentation to the bureau. Public hearings have been scheduled for early May.  The citizens of northern Nevada will have the opportunity for input regarding the opening of methadone clinics in their communities.

 

Ms. Breshears stressed methadone has become a "hot service" and  a number of states have had problems with methadone clinics which have opened and do not meet state requirements.  Chairman Rawson asked Ms. Breshears what are the state requirements.  Ms. Breshears explained the state requires clinics to provide counseling services along with the doses of methadone, assurances that individuals will not receive multiple doses at one time that are not justified, methadone is intended to be a daily program, as there is a black market for methadone, etc.  The bureau wants to insure minimum risk. 

 

Senator Coffin asked Ms. Breshears if the bureau explained the approval process and the public hearing to Ms. Ray when her check was returned?  Ms. Breshears stated that prior to returning Ms. Ray's check, a letter was sent to all interested parties explaining the certification process applicants were to follow. Ms. Ray is on equal standing with all other interested parties.  Ms. Breshears explained the bureau returned Ms. Ray's check as they did not want to cash a check for certification as it was received prematurely.  The approval process for Ms. Ray was not complete, and the bureau, as a state agency, could not hold the check for 1 month.

 

Senator Coffin asked Ms. Ray if she understood the process as discussed above, and if she understood other applications were pending.

 

Ms. Ray wished to address some of the issues discussed.  She explained she is an owner/administrator of five private facilities in California and Nevada.  Ms. Ray pointed out in other states certification and approval are the same thing.  She stressed her facilities acknowledge and obey all standards required by the states. 

 

Ms. Ray testified when going through the approval process for her Las Vegas clinic, the state agent suggested opening a clinic in Reno, as there were no other methadone clinics in northern Nevada. She surveyed the area and commenced construction on a Reno Treatment Center (RTC) in December of 1992, and at that time notified the state of her intentions.  She was not told at that time the bureau was taking applications from all interested parties.  Ms. Ray emphasized construction on the RTC is now complete, staff is standing by, and a doctor is under contract.  The process was not made clear to her until she had completely finished her facility and called for an inspection by the state.  Ms. Ray feels she has met the standards for approval, and yet has been denied. 

 

A discussion ensued between Senator Brown and Ms. Breshears about the certification process.  Ms. Breshears stated the bureau applies published standards across the board to facilities.  Senator Brown asked how a denial could be given before the process is finished.  She said it appears, in the case at hand, the bureau is attempting to get input from all other facilities before deciding if Ms. Ray's facility meets the standards.  Ms. Breshears clarified the bureau received inquiries from a number of applicants who wished to open clinics.  In order to give all those entities the capacity to submit information to the bureau based on needs, and in order to hold a public hearing, the bureau gave them until April 30th.  Senator Brown asked if a public hearing is required.   Ms. Breshears explained the public hearing is informational to the citizens within the community.

 

Chairman Rawson asked Ms. Breshears if the public hearing is an established process within the bureau.  Ms. Breshears stated the bureau holds public hearings on regulatory changes and they are routinely held with the Governor's drug commission.  The hearings fit in with major changes being explored within a new community.

 

Senator Neal asked Ms. Breshears if the bureau has the authority to limit the number of methadone clinics opening in an area.  Ms. Breshears replied any methadone clinic which meets state certification standards will be allowed to open.  Ms. Ray's denial was not based on state certification standards, rather the denial was based on the upcoming public hearings to be held in May.

 

Senator Neal asked if there were any methadone clinics presently operating in Reno?  Ms. Breshears replied there were none.  The senator asked what the agency has done in the past to certify methadone clinics in other areas.  Ms. Breshears stated the only other clinics are in the Las Vegas area and typically, when the FDA went in to do its review, the bureau was invited to participate.  This process was to help minimize the bureaucracy that a program had to participate in, because, in addition to the FDA regulations, the clinic must meet the state certification regulations as well.  She pointed out in Ms. Ray's case, the bureau did not know FDA had come into northern Nevada.

 

Senator Neal asked Ms. Breshears if the bureau must conduct the public hearings because there have been no methadone clinics in Reno in the past.  He asked her what statute gives the bureau authority to conduct the hearings?  Ms. Breshears was not able to cite the statute, but did point out the bureau frequently and regularly conducted hearings, especially in areas that may cross multiple disciplines.  She noted law enforcement, other treatment programs, the citizens, the city manager, county commissioners, and other entities are advised a program is opening up through the hearing process. 

 

Senator Neal asked if the bureau is required to give information to the law enforcement agencies, the city, or to other interest groups who would have concerns about the opening of a methadone clinic.  Ms. Breshears reiterated the federal statutes regarding distribution of methadone are stringent.  As an example, if a clinic wishes to change sites the state must approve the move, which gives the state and local government an opportunity for input.

 

Senator Glomb once again stated she felt the bill serves no purpose.  She asked Ms. Breshears if the bureau sent out a request for proposal (RFP) based on a survey or study which concluded Reno needed a methadone program?  Ms. Breshears stated the bureau did not do an RFP.  A letter was sent to Ms. Ray and five or six other interested parties.  The letter from the bureau was not to encourage opening a clinic, but was merely a response to those who had shown an interest in opening a clinic.  The letter explained the process for certification, asked for the information those parties had gathered which demonstrated a need, and advised them of the public hearing.  Based on the letter, if an entity had an interest, they were to submit a request for certification.  Ms. Breshears said the letter was sent out after the bureau was contacted by Ms. Ray and several other individuals.

 

Mr. Breshears explained the bureau is responsible for doing a needs assessment, and one way to accomplish that end is to hold public hearings.  The bureau does not have statistics on the number of methadone users in the Reno area.

 

Ms. Ray noted for the committee that the needs assessment involves federal funding, and as a private entrepreneur, she does not have to prove need.  She stated if there is no need, her clinic will close due to lack of interest. 

 

A discussion ensued between Senator Neal and Ms. Ray.  The senator pointed out the bureau has not yet established a need in northern Nevada and hopes to do that with a public hearing.  Ms. Ray stressed the bureau must have a hearing in order to obtain federal funding, and she is not seeking federal funding.  

 

Ms. Ray pointed out she talked with FDA prior to this hearing and FDA said she does not need a state letter if the bureau refuses to give it to her.  Ms. Ray reiterated FDA has already given her approval.  Federal surface guidelines state a letter must be forthcoming, but if the bureau refuses to issue a letter, the entity is still a qualified owner of the methadone program and FDA will go around the state.  Senator Neal stressed it is the bureau's responsibility to establish a need.  Ms. Ray maintained there is need in Reno, as shown in the surveys done by St. Mary's Hospital and the sheriff's department, copies of which were submitted with her application.  Ms. Ray said as a private businessperson, she has a right to fail, and if there is no need, she will close her clinic.  She stressed federal regulations state the only way a state can deny certification is if the program does not comply with state law.  In addition, there is no state law requiring public hearings. 

 

Senator Townsend suggested Ms. Breshears get together with the deputy attorney general to discuss redrafting the bill to meet their specific goals.  He pointed out the language originally proposed deals with the specific problem in that it mandates the state give Ms. Ray certification, if she complies with the published standards.  The senator said the new proposed language

 

goes back to the original bill which says, "may."   This would leave Ms. Ray in the same position she is in today. 

 

Ms. Breshears stated she was not looking at the words "may" or "shall," but does feels "shall" is appropriate.  The bureau was concerned with the DUI civil commitment treatment programs which are similar to the methadone programs, because both entities require "state approval."  Ms. Breshears stated she was attempting to broaden the law to include not only methadone, but the DUI programs as well. 

 

Senator Townsend pointed out there are two separate issues before the committee.  The state is attempting to accomplish a goal which has little to do with Ms. Ray's need, and Ms. Ray has a valid point as well.

 

Chairman Rawson asked Ms. Breshears if there were any elements in the community that would oppose a methadone clinic?  Ms. Breshears replied she is not aware of the feeling in northern Nevada. 

 

Senator O'Donnell asked what the bureau would do if they found a lot of opposition to methadone clinics in the public hearing.  Ms. Breshears replied it would be the bureau's responsibility to find out the basis for the objections and what sort of alterations could be done to overcome the objections. 

 

A discussion ensued between Senator O'Donnell and Ms. Ray regarding exactly what stage she is in with her program. 

 

Ms. Ray testified she has everything she needs to open, business license, etc.  DEA has one final inspection on the security system, which they assured her would not be a problem.  FDA's approval is final authority.  FDA must tell DEA it is okay to sell the clinic methadone, and FDA will not give the okay to DEA until they receive a state letter.  The state letter is pending due to the scheduled public hearing in May.

 

Ms. Breshears wants to insure there is local support from governmental entities and the local communities.  This is somewhat specific to methadone clinics as the drug is highly regulated.

 

Senator O'Donnell asked Ms. Breshears what the alternative would be for treating drug addicts in need of methadone.  Ms. Breshears advised currently individuals in need of methadone are voluntarily going to Sacramento or Las Vegas for treatment.

 

Chairman Rawson closed the hearing on S.B. 312.

 

 

 

Chairman Rawson opened the hearing on Assembly Bill (A.B.) 169.

 

ASSEMBLY BILL 169:      Allows state board of health to authorize county health officers to supply abstracted birth certificates under certain circumstances. (BDR 40-613)

 

Yvonne Sylva, Acting Administrator, State Health Division, stated A.B. 169 was drafted at the request of the state health division in response to a recommendation from the legislative counsel bureau auditors.  The auditors noted in their findings that NRS did not clearly grant authority to Clark and Washoe counties to issue short form birth certificates.  A.B. 169 is designed to make the statute clear that pursuant to the authorization of the State Board of Health, the local health districts can also issue a short form birth certificate.  She pointed out this will allow a family member to go to their local district health department and obtain a short form birth certificate. 

 

Chairman Rawson asked if there would be any problems with unauthorized certificates.  Ms. Sylva replied this procedure has been going on for years without the proper authority and they are not aware of any problems.

 

Senator Brown inquired if the county health officers would be allowed to charge for this service.  Ms. Sylva indicated they have been charging in the past and would continue to do so. 

 

Chairman  Rawson closed the hearing on A.B. 169. 

 

Chairman Rawson opened the hearing on Assembly Bill (A.B.) 182.

 

ASSEMBLY BILL 182:      Prohibits bureau of services to the blind of rehabilitation division of department of human resources from guaranteeing loans to blind persons who are under contract with bureau.  (BDR 38-981)

 

Gary Crews, Legislative Auditor, stated A.B. 182 is a result of the audit of the bureau of services to the blind conducted in 1991.  It was noted at that time that the bureau was guaranteeing loans to blind operators in the sum of $327,000, specifically three loans.  It was noted in the evaluation that there was no authority for this procedure so the auditors requested an opinion from legal counsel.  Legal counsel stated the bureau had no express authority for the procedure, and therefore it should be clarified statutorily.  This issue was brought before the audit subcommittee, who felt legislation should be obtained which would specifically prohibit the guaranteeing of loans. 

 

Chairman Rawson asked if there would be a conflict if the bureau were to continue guaranteeing loans.  Mr. Crews stated a discussion was held with Mr Shaw, the administrator, who has already discontinued the practice and supports the position of not entering into such agreements in the future.  Chairman Rawson stressed this appears to be a safer, more responsible procedure. 

 

Chairman Rawson closed the hearing on A.B. 182.

 

      SENATOR O'DONNELL MOVED TO DO PASS A.B. 182.

 

      SENATOR TOWNSEND SECONDED THE MOTION.

 

      THE MOTION CARRIED. (SENATORS NEAL AND COFFIN WERE ABSENT FOR     THE VOTE.)

 

      * * * * *

 

      SENATOR GLOMB MOVED TO DO PASS A.B. 169.

 

      SENATOR BROWN SECONDED THE MOTION.

 

      THE MOTION CARRIED.  (SENATORS NEAL AND COFFIN WERE ABSENT FOR     THE VOTE.)

 

      * * * * *

 

Chairman Rawson asked Senator O'Donnell and Senator Brown to chair a subcommittee in an effort to resolve S.B. 312. 

 

Senator Glomb stated she has some concerns regarding S.B. 312 and the developments which had transpired during the hearing.  Chairman Rawson agreed the clarity he felt prior to the hearing dissolved when testimony began and expressed hope the subcommittee would report their findings for resolution of the issue in a timely fashion. 

 

There being no further business, Chairman Rawson adjourned the hearing at 3:25 p.m.

 

 

                  RESPECTFULLY SUBMITTED:

 

 

 

                                          

                  Susan Henson,

                  Committee Secretary

 

 

 

APPROVED BY:

 

 

 

                                   

Senator Raymond D. Rawson, Chairman

 

DATE:                              

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Senate Committee on Human Resources and Facilities

March 31, 1993

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