MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
March 1, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on Monday, March 1, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus*
Senator Raymond C. Shaffer
Senator Ernest E. Adler
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
Nilsine Hansen, Co-Coordinator, Reno Chapter, Adoptees Liberty Association
Kay Zunino, Chief, Nevada Child Support Enforcement
Program
Don Coppa, Assistant District Attorney, Office of the
Washoe County District Attorney
John Sarb, State of Nevada, Division of Child and
Family Services
Sharen Weaver, State of Nevada, Department of Insurance
Frank R. Guisti, Jr., Legislative Chairman for the State of
Nevada Life and Health Underwriters Associations Inc.
B. Bodeau, representing Senator Glomb
Janine Hansen, President, Nevada Eagle Forum
Ben Graham, Legislative Representative, Nevada District
Attorney's Association
* If committee members are only present for a portion of the meeting, this is noted in the body of the minutes.
Senator James opened the hearing on Assembly Bill (A.B. 45).
ASSEMBLY BILL 45:Revises provision concerning extent of knowledge natural parents may obtain concerning prospective adoptive parents. (BDR 11-891)
Senator James advised A.B. 45 was nearly identical to Senate Bill (S.B.) 77.
SENATE BILL 77: Permits natural and adoptive parents to choose whether and how much information to exchange. (BDR 11-403)
Senator James explained the similarities and differences of A.B. 45 and S.B. 77. He advised Senator Glomb, who chaired the interim committee on this issue asked A.B. 45 be held and A.B. 77 be the bill which went forward. He further advised the committee would hold A.B. 45 to allow time for discussion of the issue with Senator Glomb and Assemblyman Bob Sader, Chairman of the Assembly Committee on Judiciary. If it was determined there was a mutual desire to have S.B. 77 be the version adopted, the Senate Committee on Judiciary would proceed accordingly.
Senator James opened the hearing on A.B. 54.
ASSEMBLY BILL 54: Requires written consent for release of certain information contained in state register for adoptions. (BDR 11-257)
John Sarb, Administrator, Division of Child and Family Services, presented oral testimony. He advised A.B. 45, was the division's version of S.B. 77, which came out of the study committee in the interim.
Senator Titus entered the committee room at 2:10 p.m.
Regarding A.B. 54, Mr. Sarb advised the change requested was made by the attorney general, the intent being to clarify the language, to state written permission from the natural parent was required, before release of information from the adoption registry. The concern was the placement of that requirement, coming as it did at the end of section 4 in a subsection speaking to what the adopted person might do, did not make it clear that the division was not allowed to release information unless the natural parent put that request in writing. The only change his division requested was to move that to subsection 3, to make it clear it was the division's responsibility to obtain the written consent from the natural parent.
Senator James asked for and was given confirmation that Mr. Sarb's department was requesting no substantive change.
Senator Jacobsen asked if natural parent meant either the mother or father.
Mr. Sarb replied it meant either one. He assumed the caveat was if the birth mother were to give permission she could not give permission to release information about the birth father.
Senator James stated he would like to become more familiar with Mr. Sarb's division and wished to arrange to meet the people and see how the operation works. He invited any other members of the committee who wished more information to accompany him.
Senator Smith stated he would like to accompany Senator James when he visited the division.
Senator James asked Mr. Sarb where special needs children in Nevada were located, and how they were cared for.
Mr. Sarb replied the division operated 33 different work sites in 16 communities throughout the state. The children were either in foster care or group or institutional care, for the most part within the state of Nevada, but in some more serious cases they might need to be placed out-of-state if they required particularly esoteric treatment not available in Nevada. He continued, without adoption the children, tend to languish in foster care, which is certainly not a good arrangement for them. Historically they have been the most difficult children to place for adoption, and at the same time if there had been an amazement to Mr. Sarb in the previous 2 years it had been how many people were willing to adopt children with extremely serious medical conditions. These conditions last a lifetime and require a lifetime of care. In at least one case, the child had a terminal illness and probably would not live more than a couple of months, and yet the people wanted to adopt that child. It is indeed possible to find adoptive homes for those children. Any time the division found an adoptive home for those children in which the adoptive parents could meet those needs it was preferable to having the children stay in foster care, which was by design, temporary. Mr. Sarb believed one of the very serious shortcomings of his division at present was they had identified 161 children under the age of 10 and who had been in foster care for 3 years or longer. That equates to one-third of their lives and in some cases, all of their lives, in foster care. He continued, the division did an exhaustive analysis of the records of those children to determine why that was the case, and two things were prevalent. The children were either black or poor, neither of which was a good reason for a child to be in foster care. The division needs to do a better job of returning children to their natural families when appropriate, or deciding that option is not appropriate and finding adoptive placements for those children. He felt the division's job is not to put children in care, but to get them out of care. For that reason the Senate Committee on Judiciary was seeing a number of bills to make that special needs adoption process happen more smoothly and to open it up to more people.
Senator James asked the average length of stay in foster care.
Mr. Sarb answered the average was about 2-1/2 years. One of the division's performance indicators was to lower that figure and measure themselves in terms of lowering that average length of stay.
Senator James asked if Mr. Sarb knew how that compared nationally. Mr. Sarb replied unfortunately it was not unfavorable on a national comparison. The average had been going up for about 10 years with the same issues, and with black children particularly. Minority children as a whole, but black children even more than other minority groups, tend to remain in foster care longer, and that really should not happen. While that was true nationally, his division did not look at that and say Nevada was no better or worse than other states. It was Mr. Sarb's feeling that Nevada, being relatively small, had an opportunity to get a handle on that problem and reverse the trend.
Senator James stated the problem seemed not merely to be a fiscal problem, but one of finding homes for children. Senator James asked, assuming the division had the manpower to get the job done, and can publicize the problem to make people aware the children are out there, what can government do to try and solve that problem?
Mr. Sarb believed there was little question the backlog of children in foster care had been in many respects a fiscal problem. The division staffing ratio in mid-1992 was about 42 to 1, and presently is 50 to 1. The state standard is 35 to 1, and the nationally recommended standard is 25 to 1. Nevada's standard is 40 percent higher than the nationally recommended standard and the division was hoping in the future to operate at a mere 20 percent above their own standard. Presently they are operating well above that. What happened in that situation was caseworkers are able to deal with crisis situations only, and those children tend not to be in crisis. They were in a foster home, doing allright, not causing waves or problems, and consequently did not get the proactive attention they needed to move the termination of parental rights along, which was sometimes a barrier, nor to do the legwork necessary to track down relatives and work with the families. He believes the budget currently proposed would bring the division back to the 42 to 1 ratio and the division had spent 6 months, in conjunction with the university, going over every case file to gain information needed to know what needs to be done. The division is targeting the 160 cases, mentioned earlier, to get them out of the system. He believed they would be able to make progress. Administratively, as a matter of policy in Nevada and elsewhere, he believed they have not been very culturally sensitive, pertaining particularly to prospective adoptive families who are black. Mr. Sarb heard a presentation recently concerning the number of black families who inquired about adopting, but somewhere along the line in the qualification process, these potential adoptive parents fell out of the system. This number of black families who fell out was many times higher than the number of white families. Something must be done to make the process of applying to be an adoptive parent user friendly, as it were, to black families.
Senator James asked if Mr. Sarb meant people just became frustrated with the lengthy procedures. Mr. Sarb concurred and added many times people became frightened about what the agency was going to ask of them. They might have assumptions the division did not do a very good job of debunking, about the qualifications expected of prospective parents. The assumption was the prospective parents had to live in a single family detached home with an income of a certain amount and be the "Cleaver" family in order to adopt a child. That was not the case, and the division had not done a good job in getting that message out. One of the things happening was by working primarily through black churches, the division has had a good deal more success in identifying black families to adopt those children. Black children and families are a part of the special needs issue; another part was the need of the division to be up front and clear with prospective adoptive families regarding what they would be getting themselves into when they adopt special needs children. The fear many prospective adoptive families had was they were getting little time bombs who might seem like bundles of joy at the time, but in a few years were going to present behavioral problems beyond the family's ability to handle these problems. Sometimes this was correct. The division explained to them that was a real possibility. For example, sexually molested children may have behavioral problems as they develop. If molested at a very young age, there could be a recurrence of those problems when the child hits puberty and begins to date. One of the things the division was looking at was to be sure they were available to offer services during the lifetime of the child, and not just to get them adopted. There had been lawsuits in the past year from adoptive families suing the division almost like a product liability case. The families stated when hey adopted the child, the division did not tell them there was anything particularly wrong with the child, problems developed, and they were seeking money from the division to take care of the problems. To date, the division had been able to resolve those suits by offering the services rather than cash settlements. While each case had to be looked at on its individual merits, there was some truth to the fact that children who had been abused and neglected were damaged in some way and that damage may crop up in ways which would cause problems for those families. He still believed they could find the families to adopt those children, but believed the division had to be up front with them, to be sure the families were ready to accept the responsibility, and to let them know the division would be there to help them.
Nilsine Hansen, a Co-Coordinator of the Reno chapter of the Adoptees Liberty Movement Association, gave oral testimony in support of A.B. 54. She related her story which included discovering she had been adopted at birth, and the search which ultimately led her to her birth parents. In addition to the wish to know details of her heritage, she advised lack of knowledge regarding medical matters was one of the most difficult aspects of possessing no information regarding her birth parents. When Ms. Hansen located her birth parents, she learned both her mother and father had severe medical problems. She stated her birth records noted her parents' health was "okay". Regarding A.B. 54, Ms. Hansen requested no additional barriers be placed on access to information, and in fact to make information available as adoptees become adults. She believed all adoptees have a right to that information. She is grateful for a registry which makes it possible to link up people, but would also requested the committee consider making that process as open as possible.
Senator James advised Ms. Hansen the law now reads ". . .without consent of the natural parent. . .," and the welfare division should not release information regarding a person related within the third degree of consanguinity, or about the adopted person to the other person related. What the division was saying here was information would not be given ". . .without the written consent for the release of such information given by the natural parent." The requirement has not changed, except that it must be written as opposed to oral consent. He asked if Ms. Hansen disagreed with that.
Ms. Hansen stated she would open the records when the adoptee reaches the age of majority.
Senator James asked if she would disagree with any kind of provision for someone to be able to protect their identity from a natural child who had been allowed to be adopted.
Ms. Hansen replied she would. She was not a party to that agreement originally and thought it denied her rights to knowledge of her own background and heritage. She found a birth mother who was most relieved to know she was allright, that Ms. Hansen was not angry and that her life had turned out all right. Her mother did not know to register somewhere, how to do that, nor did she have the motivation to go through that process herself. Ms. Hansen would hope the process would be as open as possible.
Senator James understood how someone would have a desire to know ones' heritage. He felt this was probably a powerful desire and one which he could respect. His sister researched their family history and had gone to great lengths to do so. He could imagine how it would be for an adopted person to not know at all. With regard to the issue Ms. Hansen raised regarded health, Senator James asked Mr. Sarb how Nevada dealt with that issue; how was information regarding problems in the family which might be hereditary and affect them disseminated to the young people.
Mr. Sarb replied when a birth mother wanted to relinquish parental rights or in a termination of parental rights situation, the division endeavored to find out as much medical history as possible about the birth parents. He stated the amount of information received varies dramatically from situation to situation; all the way from the mother not being sure who the father was, thus cutting off half of the potential information, to someone who had, as Ms. Hansen correctly pointed out, been very young with no health problems, or if they did have them they probably had never seen a doctor to have the problems identified. Mr. Sarb referred to his testimony in a previous hearing regarding genetics issue, and believed the changes they would see in the next few years would involve deoxyribonucleic acid [molecular basis of heredity] (DNA) mapping of children which would possibly provide more information than the birth mother would be able to recall or choose to divulge. Once such information is available, the change which will be seen in Nevada and in other places would be the sharing of that information with prospective adoptive parents. He advised the division could share as well, any implications known regarding the medical information. He stated even a few short years ago, the practice of agencies in Nevada and other states was to withhold much of that information, which created a real problem.
Senator James asked if health information was also available to the person who was adopted, when they become old enough and want to know.
Mr. Sarb answered when the adopted person became 18 years of age, they could obtain that non-identifying information. At that time if the adopted child wished to meet their birth parent, the division would contact the birth parent, ask if that was all right, get it in writing and then put the parties together if they both consented. For all manner of reasons, the birth parent often would not give their consent, and occasionally the division had adoptive children who had absolutely no interest in knowing about their birth parents. He knew the legislature had wrestled with this problem every session in some fashion and believed he would have to be in favor of requiring the consent of both parties, to allow them to be put back in touch when the child reached 18 years of age. He believed the division had some obligation to those birth parents who had made a very difficult choice. If they wanted to request anonymity, he felt the division had to honor that.
Senator James stated he saw a substantive difference regarding information of a general nature and that requested because of a strong desire to have medical information. He gave, as an example, Lou Gehrig's disease or something similar which might affect the decision of the adoptive child whether to have children of their own. He believed this information should be and was available in the system. He affirmed Mr. Sarb's statement if the division could obtain health information it was made available to the adoptive parents and the adopted child.
Mr. Sarb confirmed this was the procedure. He added he was only half facetious when he mentioned in a previous hearing being bald and under the age of 55 increased the possibility of heart attack. He stated that was the kind of thing which would make a big difference for many people. When the day arrived that DNA testing was both more affordable and more accurate he believed test would be seen in adoption proceedings.
Senator James was serious also when he agreed with Mr. Sarb's comment regarding baldness. He believed this was something which would have to be dealt with as better medical techniques were developed.
Janine Hansen, President, Nevada Eagle Forum, asked to testify on A.B. 54. Ms. Hansen stated she had been in contact with the National Committee for Adoption, and worked as liaison with them in Nevada. She advised the committee they favored the concept of the registry where both parties needed to consent. One reason for this was oftentimes the woman's decision at the time she determined whether to give her baby up for adoption may be influenced by the fact that information may not remain confidential, and she could make another choice which could remain confidential. In light of the committee's promotion of adoption the National Committee for Adoption encouraged consent by both parties, and she mentioned 22 states have consent registries and about 10 others have search and consent laws where adopted persons could research that information. Ms. Hansen stated she had compassion for those searching for those records, but believed confidentiality needed to be maintained for those who wished to remain anonymous.
Senator James stated for clarity, A.B. 54 would not change confidentiality.
Senator James confirmed there was no one else present who wished to testify and closed the hearing on A.B. 54. He further advised this bill would be taken up in an upcoming work session on adoption.
The hearing was opened on Senate Bill (S.B.) 164.
SENATE BILL 164: Provides additional remedy to enforce order of court requiring parent to obtain health insurance for his child. (BDR 3-748)
Kay Zunino, Chief, Nevada Child Support Enforcement Program, gave oral testimony in support of S.B. 164. She stated since 1985, with the implementation of federal and state laws, Nevada's employers had helped insure our state's and nation's children received the child support to which they were legally entitled. This was done through the use of court-ordered wage withholding. Employer wage withholdings for child support were the primary source of the $40 million Nevada collected through its Title IV-D Child Support Enforcement Program in state fiscal year 1992. Nevada's Child Support Enforcement Program was deeply grateful to Nevada's employers for their cooperation and support. Additionally, in the federal language, the court might also order the obligor to provide health insurance if available at a reasonable cost. In Nevada, reasonable cost is generally defined as insurance through employment. In court proceedings, health insurance was requested in all public assistance cases and at the request of the custodial parent in non-public assistance cases. In Nevada, Ms. Zunino's department estimates only 20 percent of parents ordered to enroll their children in employment health plans are voluntarily complying with the court order. At present, Nevada courts have few remedies available to enforce medical insurance enrollment other than through contempt proceedings, which are not only costly but also require the employee to be absent from work. Unfortunately, too often children received public assistance for medical care when an obligated parent has private insurance available through employment. In state fiscal year 1992, over $95 million was expended in Nevada in Medicaid for families eligible for Aid to Dependent Children (ADC), ADC-UP, CHAP and Child Welfare benefits.
Ms. Zunino advised there was an enormous and rapidly escalating burden on the state in Medicaid costs. This was caused by the problems associated with noncompliance of court-ordered enrollment of children in health insurance plans available through employment. Because of this the Nevada Child Support Enforcement Program was proposing legislation which would allow the district attorney, to initiate through the employer, the enrollment of a child in a plan of health insurance. This would be available to the custodial parent if the other parent fails to comply with an order of the court requiring him or her to enroll children. In addition it would also allow for the deduction of premiums from the parent's wages to pay for coverage.
Ms. Zunino advised on February 1, 1993, she mailed copies of S.B. 164 to approximately 120 employers who were representative of the employers her department most frequently contacts to initiate wage withholdings. Ms. Zunino requested the employers review the bill and provide her with their comments. She also sent copies of S.B. 164 to unions and chambers of commerce, statewide. Copies of Ms. Zunino's letter and copies of 10 employer replies received by Ms. Zunino were distributed to the committee and are attached as Exhibit C. In reviewing the comments the department received, they noted four common concerns which they felt could be addressed through amendment to S.B. 164. Several employers expressed concern that information required by an insurance company when enrolling a dependent in an insurance plan may not be available to the employer and the employee might not cooperate in providing the information. Ms. Zunino's department suggested an amendment to remedy this concern. A copy of the proposed amendment is attached as Exhibit D.
Ms. Zunino advised, regarding the proposed amendment, the department, upon notice from the employer of insufficient wages, would do a notice to show cause to bring the employee in and at that point in time attempt to address the problem of insufficient wages to cover the health insurance. Generally speaking, what the judges would do in initially issuing a child support order under 125 BO8O, in which they looked at all conditions they could consider in adjusting the amount, was to say if the obligor was required to provide health insurance, and a premium must be paid to enroll dependents, more often than not the amount of the monthly child support would be lowered to reflect the increased cost as a result of insurance plan enrollment. If the obligor went back to work and did not enroll the children, and there were insufficient wages for the employer to enroll them, the department would have to bring the obligor back to court.
The final concern of the employers responding to Ms. Zunino's letters was that they believed they should be entitled to a fee from the employee if required to enroll the employee's dependents in a health insurance plan. Currently the employer was entitled to a $3.00 fee each time he initiated a wage withholding. Therefore, if an employer paid once a week, he was entitled to charge $3.00 each time for a processing fee. This was not included in S.B. 164 since the department believed, in most instances employers did not charge employees to enroll the employee or their families in health insurance plans; however the department had no objection if the Senate Committee on Judiciary determined a fee was appropriate.
Ms. Zunino advised other questions posed by employers involved questions regarding continuing problems with payment of insurance premiums. She stated these problems were currently and would continue to be, addressed by her division at the time of the initial court hearing. That hearing would address, for example, what type of insurance was available through employment, the cost, if reasons existed why the employee was not eligible for the plan and various other things.
Ms. Zunino advised the department sent out approximately 120 letters and had received only approximately 10 responses. This led the department to believe there must not be overwhelming opposition to S.B. 164. Ms. Zunino was delighted the employers who responded supported the proposition that parents should be responsible for providing health insurance for their families whenever possible. With few exceptions the employers indicated willingness to work with the Nevada Child Support Enforcement Program to achieve that end.
Senator James stated when he read S.B. 164 he believed it fairly well accomplished the objective of trying to get the child on the same plan for which the parent was eligible. The concerns raised did not come to mind, but the concerns seemed legitimate. He thought more resistance from employers would have been found.
Ms. Zunino replied she expected more resistance as well. She believed oftentimes the large employers who offer a health insurance plan were used to these kinds of actions. They currently did wage withholdings. One of the letters she found interesting was from Suburban Graphics, Inc., which appeared to be a medium-sized employer. This employer was not particularly concerned, and stated they had reviewed the bill and " . . . as Nevada employers we wholeheartedly support the contents of this amendment. The administrative impact on employers is minimal compared to the benefits of this amendment." Ms. Zunino had spoken to other Nevada employers and had heard no negative comments regarding the bill. On the other hand, in fairness to Senator Jacobsen, Ms. Zunino advised the department heard from the Carson Valley Chamber of Commerce who had taken a vote of their board of directors and were in opposition to bill, but gave no reason for the opposition. Ms. Zunino then received a phone call from Bentley Nevada who was supportive of the bill. Mr. Gunnell, with whom she talked, had a concern regarding subsection 3 with children not always being eligible. That had been included as one of the department's suggested amendments. In viewing letters from the other employers, they were generally supportive of the intent and they raised questions which had been addressed either by amendment or had already been addressed in court.
Senator James stated, if read from an employer's standpoint, S.B. 164 attempted to place the employer in the situation of a wash. They were able to charge the premiums to the employee out of the wages, being essentially a wage garnishment, as it would be added to the attachment and garnishment section of the statutes. He affirmed Ms. Zunino had no problem with the $3.00 fee.
Ms. Zunino replied it would be an additional fee. The administrative cost for wage withholding was $3.00 each time wages were withheld. Some employers thought actually having to submit the paperwork to enroll a dependent in a health insurance program, where perhaps the employee had not enrolled those children, should also require a fee. There was no charge to enroll an employee or their dependents in the state health insurance plan, and therefore the fee was not addressed in the bill.
Senator James also affirmed the language in the amendment ". . for which the child is otherwise eligible. . .," would apply if the employer plan no longer had dependent coverage, negating the option to the employee. Finally, if the child went on the plan and required health care causing the insurance company to want to increase the premiums, the company would have that in any event where they offered dependent coverage. It would then be an employer's decision as to whether or not they could afford to do that or to try enrollment in a different type of program. If the employer changed the program offering a different type of coverage, they could change the child's coverage under that provision in the bill.
Ms. Zunino agreed that was correct. The court would have the discretion, and at that point in time the individual parent might be ordered to obtain insurance, and to gather the information as to what types of plans are available. For example many people have Health Maintenance Organization (HMO) plans. If the employee had coverage under an HMO in Nevada, but the child lived in California, the plan would not be available, because the HMO would not cover a child in California. It is a matter of being court ordered. The obligor had been ordered to enroll the children which he or she had refused to do, and S.B. 164 would provide the department with another enforcement tool to notify the employer, after giving the employee due notice, that the department intended to ask the employer to enroll the child.
Frank Guisti, Legislative Chairman for the State of Nevada Life and Health Underwriters Associations, Inc., presented oral testimony on S.B. 164. His organizations were not aware of the suggested amendments proposed by Ms. Zunino, and it appeared those amendments would clear up the majority of the areas they saw as concerns. One of their concerns was requiring employers to provide coverage for those people when there was currently no state or federal law requiring the employer to provide group insurance coverage for their employees. The first amendment Ms. Zunino mentioned indicated there would be information such as name, rank and social security number; information insurance companies would need to determine if the child was eligible for coverage. Additional information which would be needed would be prior medical history. In a situation where an employee does not elect group insurance coverage when first eligible, and the employee then came in more than 31 days after the original eligibility date, he or she would be required to submit evidence of insurability. This was fairly standard information, with most insurance coverage requiring the prior 5 years medical history of the individual. Payment of premium was also mentioned. Some employers paid a portion of dependant premiums when an employee elected coverage. This was paid in the form of a flat dollar amount, a percentage, or the employee is required to pay a certain dollar amount of the dependent premium. If the employee did not elect dependent coverage when initially eligible and then the employee was required to provide coverage due to S.B. 164, this would cause an additional financial burden on the employer. Not all employers paid a portion of dependent premiums, but some did. What his organizations requested was to work with Ms. Zunino to clear up some items seen as concerns. Otherwise, they supported the bill, but felt it needed to be workable.
Senator James affirmed Mr. Guisti's four concerns, the first being no existing state or federal law. Senator James asked for and received confirmation from Mr. Guisti that this would not impact S.B. 164, as what was involved was a situation in which the employer chose to offer coverage, and no change would be required for this. Secondly, evidence of insurability was needed for underwriting purposes before adding the child to the plan, if this was a subsequent addition, a late entrant.
Mr. Guisti confirmed only the family members would have necessary medical information, and a way was needed to acquire the information.
Senator James read the portion of amendment which stated " . . .the parent, the non-custodial parent or the child support agency shall assist the employer or union in completing the enrollment requirements." Senator James suggested possibly the language should be changed to read "and."
Ms. Zunino stated that change would be fine.
Senator James stated this would place a requirement in the statute stating all of those persons and entities must help provide the information. He believed at some point a default to contempt proceedings would occur, as even this provision could be frustrated due the parents being the only ones having the information. He believed the goal of the Child Support Enforcement Program was to stay out of court. With that in mind Senator James suggested if Ms. Zunino could think of another way to get the needed information to the employer it might accomplish this goal. His concern was the employer who is trying to cooperate, but cannot, because possibly two spouses are fighting and would not give anyone any information, or any number of other situations which could arise.
Ms. Zunino agreed those circumstances arose often, and what her department did not want to do was put any burden on the employer, causing them to think it was their responsibility to attempt to gather that information. That was the reason they added the last sentence regarding all persons cooperating. If the employer could not get that cooperation, the obligor would be brought back into court.
Senator James asked Ms. Zunino to advise the committee if she thought of anything to enhance the bill in that regard. He further advised S.B. 164 would be scheduled for a work session at a later time, and Ms. Zunino could advise if she had additional input.
Ms. Zunino added she sent letters to employers on February 1, 1993, and could well have more responses which she would be glad to provide to the committee.
Senator James advised he would hold the bill for 30 days to give time for all responses to be received, and give Ms. Zunino an opportunity to address them. He affirmed the last thing Mr. Guisti indicated was a situation where the plan is set up, and the employee and employer pay part of the premium. Under S.B. 164, once the person was added that would create an additional burden to the employer.
Mr. Guisti agreed and added on the master application for the group insurance there were two questions; what percent of premium would the employer pay for employees, and what percent or dollar amount would they pay for dependant coverage. If that employer was paying a portion of dependant premium, and the employee for whatever reason elected not to take dependant coverage when initially eligible, and then by court order had to add dependant coverage, that would increase the cost to the employer.
Senator James asked if the law did not allow the employer to charge the entire premium to the employee.
Ms. Zunino asked if the employer had elected to provide for part of the payment for a dependant's insurance and the employee had indicated he or she was the only one desiring coverage, then dependents need coverage by an order of the court, she did not understand the problem. The premiums were deducted from the employee's wages or paid by the employee anyway.
Senator James added these premiums paid were the employee's share. He stated the bill read (at section 1, subsection 3) "After enrolling the child, the premiums required to be paid by the parent for the child's coverage may be deducted from the parent's wages." Senator James asked if they had the plan anyway if it could be modified.
Mr. Guisti replied again the employer had to go by the guidelines of the master application of the policy. The employer signed an application stating if an employee elected dependant coverage they would pay a certain dollar amount. His only concern was to be sure those employers who provided this coverage were aware of the fact S.B. 164, would increase their costs for premium payments to the underwriting insurance company.
Senator Titus believed that was a false argument. The offer is put forth and if the person had a child he could get the service. If he or she chose not to take the coverage that money was saved; it would be only when he or she had to take it more money would be paid.
Mr. Guisti replied in his initial reading of the bill it appeared to him if he was an employer and was mandated by the court to add this dependant...
Senator Titus interjected as an employer he would have already offered that service to the employee. Just because he or she did not choose to take the child on the policy did not mean the employer had not offered it to the employee. If the employee accepted the offer to cover a dependant, whether voluntarily or through the court, the cost was the same. She perceived Mr. Guisti's argument to be the court would be making the employer pay more, which they would not because the employer had already made that offer.
Mr. Guisti stated he was only trying to point out a fact that it was important the employer, who was currently paying a portion of dependant premium, did not believe because S.B. 164 was passed, if that dependant child is added to that employee, the employee must pay the entire portion of the premium.
Senator Titus added the employer would still pay their portion.
Mr. Guisti replied his concern was to insure that was clear on the bill.
Senator James agreed with Senator Titus in that his previous concern was the employers must be aware of the ramifications. Which is when a dependant was added and they had a medical problem, or whatever would cause the insurance company to increase the premiums as that happens. That is a cost they will have to bear. By the same token if a plan exists where part of the dependant premium is paid by the employer and a dependant is added, the cost would go up. He wondered if Mr. Guisti wanted something in the bill to modify this, or even if it could be modified. Mr. Guisti answered, the plan could not be changed, but must be complied with. He asked if the employer could go back if, for example 20 employees got divorced and dependant coverage was needed which was not previously needed, would the employer not have to redo the premium structure.
Ms. Zunino advised in the letters received from employers this issue was not raised.
Senator Titus advised the language on lines 23 to 25 in the bill stated, "After enrolling the child the premiums required to be paid by the parent may be deducted from the parent's wages." If a plan was in place where the parent pays part and the employer pays part of the premium, this seemed very clear it would be the premium required to be paid by the parent which would come out of the wages.
Senator James advised this was the language he read earlier and to which he referred, that this would allow the cost to go up. He affirmed these were all of Mr. Guisti's concerns.
Mr. Guisti stated those were all of his concerns. He wished to have an opportunity to review the proposed amendments in conjunction with Ms. Zunino's suggestions.
Ms. Zunino provided Mr. Guisti with a copy of the proposed amendments.
Senator James again advised he would hold the bill for 30 days to allow the additional employer comments to be received by Ms. Zunino, and then take up the bill again. If there was any need at that time to hear additional testimony, the committee will do so, otherwise the bill with the amendments would be considered in a work session. Senator James commended Ms. Zunino on her approach in sending the letter to employers, giving them an opportunity to respond and to address their concerns on the changes.
Senator James confirmed there were no others present to testify and closed the hearing on S.B. 164.
The hearing was opened on Senate Bill (S.B.) 170.
SENATE BILL 170: Limits physical evidence that becomes public record as a result of consideration by grand jury. (BDR 14-588)
Ben Graham, Legislative Representative for the Nevada District Attorney's Association, presented oral testimony. He introduced Don Coppa, Assistant District Attorney, Washoe County. Mr. Graham advised S.B. 170 related to material presented to a grand jury. Generally, only Clark and Washoe counties have a grand jury on a regular basis. In the criminal procedure process there were two ways to get into district court where felonies are heard. One way was a preliminary examination which occurred in justice court, where the state presented a partial showing of evidence to establish probable cause that a crime had been committed. Probable cause was information sufficient to lead a reasonable person to believe a crime had been committed and that person probably committed it. If the justice of the peace found probable cause, he would hold the person over to answer in district court. Another way of getting into district court was with a grand jury. Normally a grand jury meets in secret, although there are provisions to notify certain target defendants if they were subject of a grand jury proceeding. The state would again put on sufficient evidence to establish probable cause. The case would then go on to district court. Normally when a police officer or an official testified both in the preliminary hearing or the grand jury hearing they would bring certain evidence such as a firearm, narcotics, or some other exhibits for either the grand jury or the judge to review. At the end of the proceeding generally, the evidence would be handed back to the custody of the police officer to be put back into the evidence file. Many times the evidence would be contraband. What was in issue with S.B. 170 was a very narrow area dealing with the evidence part of a grand jury proceeding. Basically what Mr. Coppa wished to ask was for some assistance in helping keep the grand jury evidence intact and untampered with until after a trial or after the evidence has been utilized.
Mr. Coppa testified regarding S.B. 170, a bill which his office in particular felt was very important. He advised S.B. 170 attempts to amend Nevada Revised Statutes (NRS) 172.225 in a significant but limited way. The amendment was proffered pertaining only to subsection 6. The intent was to provide legislation which would establish that any physical exhibits presented to the grand jury not thereafter be made available for public inspection and review, unless actually appended to the transcript. He advised the impetus for the bill draft had been an incident in Washoe County involving a video recording of an incident. Mr. Coppa described the incident and the repercussions which occurred after the video was released for copying. He described the differences in preliminary and grand jury hearings, and the handling of exhibits for each. What was being asked for in a sense was to bring the two procedures into parity. Mr. Coppa advised his department supports S.B. 170 not only on their own behalf, but on behalf of the defendant. One reason for their support was his department's attempt to maintain some integrity and control over the evidence. He explained the reasons for this statement, and reiterated the current procedures. He stated a second reason for their support was of a mechanical nature. He explained this to be the burden of who was responsible for the evidence. He also explained the current procedures in this regard. Mr. Coppa wanted to make it clear that his department was not attempting to eliminate the public's right to know. He stated in any other proceedings through trial there existed an open court system, subjecting matters to be provided to supreme court rules. He added, there was also an open forum in which anyone may participate.
Senator Titus asked what would happen to the evidence if a case did not go to trial. She referred to a case in which there was no indictment and the grand jury had collected the evidence. what would happen to the evidence. She was thinking in terms of a recent case involving the University of Nevada at Las Vegas and the convening of the grand jury, with respect to the boxes of information they presented.
Mr. Coppa replied he had not a circumstance involving a major investigation which did not go very far. He stated generally by law the grand jury had two functions, and explained those functions. If the grand jury investigates a matter, they must either report on it or indict. If they failed to indict or report, the matter remained confidential, to protect the individual who may have been a sensitive target. Therefore no one's reputation would be damaged by what was found not to be valid. The evidence would be returned to the owners and still remain confidential.
Senator Titus asked what would happen in the case of a report.
Mr. Coppa replied a report indicated there was no criminal conduct, in which case they would report what they found and what it was based upon, which was then available for review. That would not change with respect to S.B. 170.
Senator Titus asked Mr. Coppa for, and received, confirmation the report would be public. She then asked if there was an indictment would the information be kept confidential until the trial.
Mr. Coppa advised it would be not so much protecting confidentiality as determining right to access. For example, if he was named a target in a grand jury investigation and the grand jury indicted him, the law presently required the court reporter transcribe that proceeding and file it with the district court within 10 days. That transcript was public record, available to be read at will. What his department was trying to do was limit the public access to the exhibits which may have been presented. Members of the public who were not involved, would not be able to view the exhibits and copy them.
Senator Titus asked what happened with the material brought before the grand jury regarding the University of Nevada Las Vegas (UNLV) matter. She wondered if a report was issued.
Mr. Coppa stated in that instance the material was not reviewed for a report, and was carried through to an investigation.
Senator McGinness asked why the issue at hand had not arisen before.
Mr. Coppa answered it was a circumstance brought to his attention, and one which had never been requested in the past. He assumed because the circumstance had simply not arisen before. It could become popular if left where it currently was, which would be disturbing to all parties concerned, including the court.
Senator James called attention to line 25 of S.B. 170 which provided that the transcript and any physical evidence exhibited to the grand jury became a matter of public record unless one of the two instances listed occurred. He asked Mr. Coppa for confirmation this proposal would separate physical evidence out of that category. There could be a case where the key evidence is documents submitted to the jury, for example in the case of a public official falsifying a public record, and that evidence would be attached to the transcript. That would be dealt with under the transcript and evidence appended thereto.
Mr. Coppa confirmed that was correct.
Senator James asked if the evidence in the case happened to be a tape or photographs, not appended to the transcript, why should that evidence be treated any differently than documentary evidence attached to the transcript. He understood the problem with, for example the integrity of a controlled substance, regarding chain of custody, but did not completely see the point with respect to other types of physical evidence.
Mr. Coppa replied the way the statute was currently written, as amended, stated anything might be appended to the transcript and would thereby become public record and available for anyone to review within the office of the clerk. His argument was basically two-fold in response to Senator James' question. His department had the discretion not to append certain things to the transcript itself, such as matters which could be highly inflammatory or affect the rights of the accused in obtaining a fair trial. The other aspect was one of mechanics. If the case is one involving public documents, for example a check situation in which copies of the checks could be appended to the transcript, it was of little concern to his department. There could be a problem with inspecting that record at the county clerk's office as it would be held within the court file which anyone could view. The problem was in dealing with photographs as an example. His department runs into a problem because, the nature of the photographs in his department's cases. They were not pleasant photographs taken under pleasant circumstances. For example there are pictures of child sexual assault, murder cases, abuse situations and so forth, none of which necessarily belong in a public medium. The department would want to have control of the availability. Also he stated, at present the law allows people to go the police department evidence locker, give the case number and inspect evidence, which was the mechanics problem with which they were trying to resolve. They have a control problem in terms of supervision. An evidence custodian must watch over the evidence whenever anyone is inspecting it. The evidence is a matter of public record. Even though the department is holding it, the public has the right to inspect and examine it. As a result the department must open their evidence custodian sections and to have the evidence available at any time. The evidence may not be tampered with, but may be copied. In terms of the mechanical problem, the department must show all the photographs in a homicide case, to whomever wanted to ask, whereas they did not in any other procedure.
Senator James asked what would happen if the evidence was not admitted. For example the camera was not reliable and the photographs did not meet the standards of evidentiary rules, or possibly were deemed to be too prejudicial. Senator James stated under that scenario, the public would never have access.
Mr. Coppa asserted this was exactly one of the issues of concern. If for instance part of the video was ruled inadmissible, but had been broadcast publicly. His department had a problem because he then had a question of prejudicial pre-trial publicity. He had seen evidence brought out to the public which was not proper evidence under the circumstances, which present law allows to happen, and which S.B. 170 seeks to prevent. He could not determine whether a video presented to a grand jury may later be ruled inadmissible altogether or parts would be ruled inadmissible. That is a determination for the court in the proper forum. If it was made public immediately he would inherit a problem immediately in the sense the defendant would have complaints.
Senator James asked if the grand jury could not consider anything whether or not it was admissible.
Mr. Coppa referred only to a criminal prosecution or indictment which is bound by the rules of evidence, and which is the only situation with which the bill deals.
Senator James asked for and received confirmation from Mr. Coppa this could be applied to documentary evidence as well.
Mr. Graham advised normally documents would not be part of the transcript, but are exhibits given to the jury to review and then turned back over to the investigative agency. If an indictment was issued and the defendant filed a discovery notice, they got copies. The documents, however, remained in the custody of the investigative agency. In his reviewing of grand jury transcripts over the previous 15 years, he failed to see any exhibits attached to transcripts. The end of the transcript told where the exhibits went after the grand jury heard the evidence.
Senator James asked why then the language " . . .which is appended as an exhibit thereto" was in the bill. He wondered if there was a reasonable basis for making the distinction between evidence attached to the transcript and other evidence. There existed a provision in the law allowing the prosecution to make a motion saying they possessed, for example, a video tape which could prejudice the case in some way. This was a provision available for court determination on an ad hoc basis. S.B. 170 would change that to say physical evidence could never come out until submitted at trial. He wondered what was the rational basis for this.
Mr. Coppa answered he seldom, if ever, recalled a document appended to the transcript, but because the transcript must be filed and therefore became public record it would obviously incorporate any exhibits appended. Any item presented to the grand jury, save and except testimony, was considered a physical exhibit. He found no objection to the language " . . .which is appended" in the bill. If a district attorney or the grand jury itself wished to append something to the transcript, it would be within their discretion, but the integrity of the remainder of the evidence would be held as if after a preliminary hearing. In terms of provisions a and b, it would be his motion which had to be filed to attempt to protect the evidence. One thing the language said was that it was to remain secret. That was not his department's effort, but was simply identifying limited access to the items.
Senator James asked if the bill could be changed to say " . . .upon motion orders the transcript in evidence to remain secret or that limited access be had thereto until further order of the court," and would that address Mr. Coppa's concern. He also asked Mr. Coppa how the court ruled on the motion he brought up earlier in testimony.
Mr. Coppa advised the court did not have a choice. The court called his department back in and chastised them and the defense counsel for release of information, as defense was then claiming potential prejudice. His department stated they did not get involved, but were upset about changing venue, which would have been extraordinarily expensive on them to try the case elsewhere. As it turned out a third party released the information. Regarding Senator James' question as it pertained to this, Mr. Coppa did not understand why he had to file a motion if any physical exhibits were filed, in order to preclude the public from reviewing or touching them, when this was not necessary during a preliminary hearing.
Senator James asked for and received confirmation from Mr. Coppa that a preliminary hearing was open to the public, and the public could view evidence. Mr. Coppa stated, however, the public was not allowed to copy any exhibits or see photographs at any closer range than the audience.
Senator James stated the difference then was grand jury proceedings were secret, whereas preliminary hearings are open to the public unless otherwise ordered by the court.
Mr. Coppa affirmed this was correct.
Senator Jacobsen asked if a person testifying before a grand jury had the ability to go back and listen to the tape of the proceedings.
Mr. Coppa advised the proceedings were not tape recorded, but stenographed by a court reporter.
Senator Jacobsen asked what become of the testimony if the person who testified was deceased.
Mr. Coppa advised the testimony would not be allowed at a later trial because it was not subject to cross-examination.
Senator Titus asked, since the press association and trial lawyers were not represented in the hearing, if anyone thought the bill was not a good thing.
Mr. Graham stated he had found no opposition to S.B. 170.
Mr. Coppa advised he had tried to look at the proposed legislation from a standpoint of where objection might lie. If anything, he said S.B. 170 would help protect the defendant from pre-trial publicity. It does not foreclose the public from having complete understanding of what was involved in the grand jury and having access to the material after the presentment. He stated the bill only attempts to limit actual access to inspection, that being the physical act of reviewing the evidence in a particular case. He advised this limitation does not exist in any other type of forum.
Senator James asked where the law provides evidence would become accessible to the public, if not introduced or ruled inadmissible.
Mr. Coppa replied Chapter 179A, NRS provided for disclosure of other items of criminal records. This statute protects the evidence and also provides access where permitted.
Senator James confirmed his understanding that S.B. 170 separated physical evidence not appended, and not subject to court determination, but remaining public record until introduced at trial. If the evidence was not introduced at trial or ruled inadmissible, Chapter 179, NRS provided a way the evidence could still become accessible to the public. The predicate for the indictment would already be public record unless otherwise ordered by the court.
Mr. Graham did not want to mislead about the evidence being accessible to the public at large, because much of it may be private information which, for example, the victim would not want in the newspaper or on public display. However, an attorney representing the victim in a lawsuit or as a victim advocate, could make the request. Every week his department makes hundreds of copies of documents, including photographs, to make available to victims. His department provides anything which could help the victim resolve their issues, even in a civil case.
Mr. Coppa advised rumor and false accusations occur many times in a grand jury. Those would not be available to the public, but in certain circumstances would be available to a victim if sought through a victim's advocate.
Senator James wondered about the rumor and so forth being in the transcript.
Mr. Graham stated generally they would not be included. They are limited to present legal evidence and bound by the rules of evidence in a grand jury hearing.
Mr. Coppa cited autopsy pictures occurring in murder cases as an example. Many of these pictures are not allowed in at trial, but are presented at a preliminary hearing where a justice of the peace may make a determination as to what he thinks. They may also be presented to the grand jury. Normally such pictures are not made accessible in the sense that anyone can review them.
Senator James confirmed there were no other questions from the committee and advised S.B. 170 would be taken up in a work session.
The hearing on S.B. 170 was closed.
There being no further business, the meeting was adjourned at 3:55 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
March 1, 1993
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