The Senate Committee on Human Resources and Facilities was called to order by Chairman Raymond D. Rawson, at 2:20 p.m., on Monday, May 3, 1999, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4412, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Raymond D. Rawson, Chairman

Senator Maurice Washington, Vice Chairman

Senator Randolph J. Townsend

Senator Mark Amodei

Senator Bernice Mathews

Senator Michael Schneider

Senator Valerie Wiener

GUEST LEGISLATORS PRESENT:

Assemblyman Tom Collins, Clark County Assembly District No. 1

Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27

Assemblywoman Barbara E. Buckley, Clark County Assembly District No. 8

STAFF MEMBERS PRESENT:

Cynthia Cook, Committee Secretary

OTHERS PRESENT:

Deanne Blazzard, Lobbyist, Foster Care & Adoption Association of Nevada

Lawrence Moorhead, Concerned Citizen

May S. Shelton, Lobbyist, Nevada Association of County Welfare Directors

Allen Crandy, Concerned Citizen

Sara Winter, Attorney, Clark County Legal Services Program Inc.

Brianna Hammon, Student

Deidre Hammon, Concerned Citizen

Dee Dee Foremaster, Concerned Citizen

Paula Berkley, Lobbyist, Educare Community Living Group

Deanne Blazzard, Concerned Citizen, testified from Las Vegas as a foster parent, in support of A.B. 531. Ms. Blazzard averred the legal custodian of foster children could be held liable for situations over which they have no control. There are times when a foster child does not respond to a foster parent, and perhaps commits a crime. When this situation arises, the provider must not be held responsible for the action of the child.

Assemblyman Tom Collins, Clark County Assembly District No. 1, supports A.B. 531. In answer to Chairman Rawson, Mr. Collins stated there does not seem to be a problem in Nevada with unlicensed foster care providers, the problem is recruiting foster parents. A.B. 531 would remove an obstacle and help ease the process.

Lawrence Moorhead, Concerned Citizen and foster parent, asserted A.B. 531 would aid in the retention of foster parents in Nevada.

Senator Washington requested clarification concerning responsibility, when the state or the county has legal custody of a foster child. May S. Shelton, Lobbyist, Nevada Association of County Welfare Directors, urged support of A.B. 531. Ms. Shelton introduced Nancy Angres, Chief Deputy Attorney General, Human Resources Division, Office of the Attorney General, to explain the law. Ms. Angres stressed legal liability is with the parent or guardian, and custodians are not legally responsible. Foster parents are defined as custodians, unless they have been specifically appointed by the court as guardian. Ms. Angres continued there have been instances when people have tried to sue foster parents, and the foster parents must go through the expense of defending the action. A.B. 531 sets the stage for no action to be taken in the first place. Ms. Angres continued section 5, subsection 1 of A.B. 531, notes a parent, guardian or other person, who has control of any child and who has been given notice of a child’s truancy and fails to prevent subsequent truancy is guilty of a misdemeanor. Subsection 2 sets a slightly different standard by saying a person licensed by the division, as a foster parent, is liable to subsection 1 only if the person has received notice of the truancy and negligently fails to prevent subsequent truancy.

Chairman Rawson closed the hearing on A.B. 531 and opened the hearing on A.B. 265.

Assemblywoman Sheila Leslie, Washoe County Assembly District No. 27, stated the concept for A.B. 265 came from the Community Unity Coalition, a group meeting monthly in Washoe County. The bill adds a category to Nevada Revised Statutes (NRS) to be used by facilities in Reno, Las Vegas, Elko and Fallon. Ms. Leslie presented Theresa Lemus, R.N., Executive Director, Northern Area Substance Abuse Council Inc. (NASAC). Ms. Lemus explained NASAC has been offering substance abuse treatment services in Washoe County for 35 years. She described the three most recognized models of detoxification services as: the social model which is clinically managed by substance abuse counselors or interns, the hospital model which is a medically managed detoxification program, and a modified medical detoxification facility which is in the middle of first two. The modified medical detoxification facility is a freestanding facility and would employ a physician, who specializes in addictive medicine, as the director; and be staffed with nurses, 24 hours a day. The idea was developed in order to try to hold down costs. Present law mandates the patients treated by NASAC must go to the emergency room in order to receive medication, and such use of the emergency room is not cost-effective. Assemblywoman Leslie declared NASAC hopes to become a model program for the new category and disseminate information throughout the state. Assemblywoman Leslie requested A.B. 265 be amended to define the new category as a modified medical detoxification facility, as opposed to a medically monitored detoxification facility. She asserted she has heard of no opposition from the community for such a category, and the facilities do not administer methadone.

Richard J. Panelli, Chief, Bureau of Licensure and Certification, Department of Human Resources, reported the bureau has no problem with the amendment, as stated. He added there would be a cost of approximately $3,000 to develop the regulations, which would be recovered by fees.

Chairman Rawson closed the hearing on A.B. 265, and called for a motion on A.B. 531.

Chairman Rawson called for a motion of A.B. 265.

SENATOR TOWNSEND MOVED TO AMEND AND DO PASS A.B. 265.

Chairman Rawson opened the hearing on A.B. 280.

Assemblywoman Barbara E. Buckley, Clark County Assembly District 8, described A.B. 280 as a civil rights bill for individuals with disabilities. The bill prohibits aversive techniques, which are sometimes used in an attempt to correct behavior in the disabled. The bill is being sponsored by The Association for Persons with Severe Handicaps (TASH), the parents of persons with disabilities, and others in the disability community. Assemblywoman Buckley affirmed A.B. 280 is designed to apply to any state or local facility, and persons employed by those facilities may not use aversive techniques. Assemblywoman Buckley said she has been contacted in the past day concerning some suggested changes in A.B. 280. The preamble of the bill uses the word "entitled," and Assemblywoman Buckley would accept a change to "deserve;" however, she would not accept an amendment to allow aversive techniques if ordered by a physician. Assemblywoman Buckley requested the committee to consider whether any parent would allow these techniques to be used on a nondisabled individual.

Chairman Rawson asked Assemblywoman Buckley if A.B. 280 targets those with a physical disability (for example a spinal injury) in addition to those with mental illness and mental retardation. She explained special education classes in schools are the main category, and originally the intent of A.B. 280 was to include psychiatric units in hospitals. After meeting with representatives of the hospital association, the bill would cover only those units licensed to treat individuals with disabilities. This would exclude emergency rooms, intermediate care centers, and urgent care centers. In answer to an additional query by Chairman Rawson, Assemblywoman Buckley stressed the use of electric shock is prohibited when it is applied as a punitive measure, not when used as therapy.

Chairman Rawson referred to page 3, line 41 of A.B. 280. He was assured "informed consent" referred to parents or guardians. Chairman Rawson also asked if the periodic checking of the restraints section changes existing standards. Assemblywoman Buckley answered A.B. 280 clarifies existing standards. Chairman Rawson expressed the punitive sections of A.B. 280 might discourage people from doing their job properly for fear of punishment. Assemblywoman Buckley reminded Chairman Rawson and the committee, current law provides for severe penalties for willful abuse, and aversive techniques are abusive. A.B. 280 does not penalize those professionals using effective methods. She explained the bill was the result of stories related over the past few years by some disabled persons, and parents of disabled individuals.

Senator Washington commented he had received correspondence from private schools expressing concern the bill is too far-reaching to be applied to their facilities. Assemblywoman Buckley said private schools are currently subject to the constraints of the Americans with Disabilities Act, and A.B. 280 is no more restrictive than federal mandates, and does not affect ordinary discipline.

Chairman Rawson commented the same standard should apply to the disabled as elder and child abuse. In those situations, legislation has not considered whether the abuse occurred in private or public facilities. Senator Washington added the private facilities wish to comply with the law, but be free from the regulatory provisions. Chairman Rawson reiterated A.B. 280, as written, would establish a cause of action if a child were abused.

Senator Wiener referred to a letter she received from a physician saying there are ample federal regulations, which monitor aggressive methods of intervention. Assemblywoman Buckley said it is her understanding federal laws and regulations governing mental health and mental retardation regulations require certain protocols be followed, and federal funding is tied to those regulations. Nevada law does not have an across-the-board standard as proposed in A.B. 280; and an effort has been made to include those protocols in this bill. She assured the committee the bill applies only to individuals with disabilities, and does not apply to gifted children.

Senator Washington mentioned children who are prescribed Ritalin or other medication by their physician. Assemblywoman Buckley said the bill which carefully spells out chemical restraint does not include the administration of drugs on a regular basis, as prescribed by a physician, to treat the symptoms of medical, physical, or behavioral disorders.

Eric Beininger, Concerned Citizen, testified as a disabled citizen and a member of TASH. The association favors positive reinforcement to help each disabled citizen become the strongest person possible, and A.B. 280 will assure this. Stephanie Richter, Concerned Citizen, told the committee of her disabled son. He is now responding well to being treated as a normal child, while in the past repeated aversion therapy had been used with no success.

Edward R. Guthrie, Executive Director, Opportunity Village, described the organization to the committee. Opportunity Village is the largest provider of vocational training and training services of disabled citizens in southern Nevada. The village strongly supports the development and use of positive behavior to meet individual needs. As a provider, the village trains most of the disabled citizens who have graduated from the school system. During the 5 years Mr. Guthrie has been associated with the village, aversive procedures have never been used.

Allen Crandy, Concerned Citizen, testified as a parent of an autistic child and a founder of Families for Effective Autism Treatment (FEAT). Mr. Crandy strongly supports A.B. 280. Mr. Crandy averred the aversive procedures discussed today are occasionally used as a part of the daily curricula for disabled children.

Sara Winter, Attorney, Clark County Legal Services Program Inc, informed the committee she is a board member of TASH. Ms. Winter asserted the Association for Persons with Severe Handicaps, the Association for Retarded Citizens of the United States, the American Association on Mental Retardation, and the National Association of Private Residential Resources have issued position papers calling for the immediate elimination of aversive intervention.

Colleen Thoma, Ph.D., Assistant Professor, Instructional and Curricula Studies, University of Nevada, Las Vegas, stated she serves as a member of TASH on the local and national level, and is a board member of Opportunity Village. Dr. Thoma urged passage of A.B. 280, to put Nevada in the forefront of other states in recognizing the rights of persons with disabilities. Dr. Thoma described training scheduled in June 1999, for 4 days, to teach positive behavior management. Dr. Thoma reported the training includes assisting staff, guardians, and parents in the development of a personalized plan for each disabled individual. She added legislation is as important as training and A.B. 280 is a significant part of the equation. Chairman Rawson asked Dr. Thoma if persons familiar with aversive treatment are easily retrained. Dr. Thoma answered disabled individuals respond well to positive treatment; however, some staff members are hesitant to change.

Brianna Hammon, Disabled Student, read testimony about aversive treatment she received from a teacher (Exhibit C).

Deidre Hammon, Concerned Citizen, testified as the mother of Brianna and an advocate for the disabled. Ms. Hammon disclosed the teacher with whom Brianna had a bad experience was not one of her regular teachers. A.B. 280 would prevent such incidents, and Ms. Hammon urged passage of the bill.

Dee Dee Foremaster, Concerned Citizen, testified in support of A.B. 280.

Paula Berkley, Lobbyist, Educare Community Living Group, stated her group supports A.B. 280. Ms. Berkley submitted written documentation for the committee to consider for clarification (Exhibit D).

Robert Lynn Horne, M.D., Member, Commission on Mental Health and Mental Retardation, testified from Las Vegas. As a psychiatrist, Dr. Horne supports the general concept of A.B. 280. He suggested the addition of "except for diagnosis or treatment under the supervision of and with the order of a physician licensed in the State of Nevada," to section 6 of the bill.

Brian Lahren, Ph.D., Lobbyist, Executive Director, Washoe Association for Retarded Citizens Incorporated, said the association is neutral on A.B. 280. The association advocates strong support for positive intervention and the need for training. Dr. Lahren noted areas of concern including a lack of clarity between equating aversive intervention with abuse. As defined in the bill, aversive intervention means requiring a person to obtain or maintain a physically painful position, excluding physical restraint. If an exercise is physically guided by another person, how much resistance by the recipient would be necessary to be considered forced? Who decides what is reasonable and necessary? Dr. Lahren recommended the bill include a kind of escape mechanism, some sort of professional review since some treatments known in psychiatric literature to be successful have been outlawed in other states.

Bradley S. Reitz, Executive Director, Student Support Services Division, Clark County School District, explained the district is undecided about A.B. 280. Mr. Reitz read documentation describing the position of the district and suggested clarifications (Exhibit E).

Toni Kuiper, Behavior Mentor Teacher, Student Support Services Division, Clark County School District, testified from Las Vegas. Her testimony included suggestions to clarify A.B. 280 (Exhibit F).

Lawrence P. Matheis, Lobbyist, Nevada State Medical Association, explained to the committee the concerns of the association have been addressed today. Mr. Matheis assured Chairman Rawson he would work with staff to prepare amendments to A.B. 280.

Charlotte Crawford, Director, Department of Human Resources, expressed the department concurs with the intent of A.B. 280 to emphasize positive behavioral intervention. Ms. Crawford said the Department of Human Resources deals with a wide range of behaviors in all age groups, and extensive regulations are currently in place. Areas the department is not comfortable with include the term "entitle" as mentioned earlier by Ms. Buckley. Among the definitions of aversive interventions is "the use of water and other mists or sprays." Ms. Crawford asserted without further description that could be interpreted to include hair spray and colognes. If positive intervention were reiterated in statute, the department would not object. Ms. Crawford suggested looking carefully at language for clarification to not be abusive, and to assure it is not confused with the need to not deny treatment. She suggested A.B. 280 not prohibit the clinical judgement of professionals who deal with a specific individual.

Tammy Neal, Concerned Citizen, explained, from Las Vegas, of her support of A.B. 280.

Robert Bartlett, Chief Executive Officer, Willow Springs Residential Treatment Center, spoke against the adoption of A.B. 280. Mr. Bartlett provided written testimony (Exhibit G). The exhibit defines the standards of the Joint Commission on Accreditation of Health Care Organizations. Chairman Rawson stated there must be a way to deal with these problems in an acceptable manner. Mr. Bartlett said A.B. 280 mixes two populations, the severely sick, and disabled school children. He recommended the removal of mental health facilities from this legislation.

Mary Zuccarini, Director of Quality and Risk Management, West Hills Hospital, testified all seclusion and restraint treatment is for safety reasons, not punishment. A.B. 280 would place the facilities in a quandary for safety, since many adults in the facility are either homicidal or suicidal. Senator Washington asked Ms. Zuccarini if the description of emergency in A.B. 280 addresses those needs. Ms. Zuccarini stated the industry is focused on not using mechanical restraints and seclusion is important, at times.

Philip A. Rich, M.D., Concerned Citizen, supports the intent of the A.B. 280, but some of the language causes problems for people in mental health. Dr. Rich believes mental health facilities are regulated by at least six different agencies, and it is redundant to apply an additional set of rules. In addition, a criminal penalty applied to someone who is trying to help another person is inappropriate.

In Las Vegas, Michele Tombali, Concerned Citizen, testified as the mother of an autistic child, that she favors A.B. 280.

Darlene Schottle, Ed.D, Director, Special Education, Student Support Services, Washoe County School District, requested clarification and changes to the definition of aversive. Dr. Schottle also requested the definition of a child who has a disability. If a child with attention deficit disorder was not allowed to leave the classroom for misbehaving, under A.B. 280, the child could not be sent to the principal’s office. Dr. Schottle requested assurance A.B. 280 does not prohibit occupational or physical therapy and she added the use of restraints on school buses requires further description. Instead of specifying exact lengths of time for the removal of an individual from "time out," Dr. Schottle suggested using "regular intervals according to each student’s need" would be more appropriate. The board of trustees is not the agency to be determining if a denial of rights has taken place for each report filed.

Russell Colletta, Special Education Director, Lyon County School District, voiced support of the changes and positions put forth by Washoe and Clark counties. He added the application of criminal penalties, as detailed in A.B. 280, towards persons using good-faith judgement, could have a negative effect on those considering a career in the education of disabled individuals.

Al Bellister, Lobbyist, Nevada State Education Association, reiterated some of the terms and definitions, in A.B. 280, are vague. Mr. Bellister used two examples of possible aversive intervention: a teacher is ready to administer a test, and tells a child they may not leave for a drink of water; a teacher puts her hands on a child in order to direct the child.

Christina Lacy, Concerned Citizen, and Jan M. Crandy, Concerned Citizen, encouraged the committee to support A.B. 280.

Randy C. Robison, Lobbyist, Clark County Association of School Administrators, requested a prepared statement be entered into the record (Exhibit H).

Christine D. Silva, Concerned Citizen, testified positive reinforcement had benefited her disabled son, and asked the committee to support A.B. 280.

Chairman Rawson closed the hearing on A.B. 280. The meeting was adjourned at 5:05 p.m.

RESPECTFULLY SUBMITTED:

Cynthia Cook,

Committee Secretary

APPROVED BY:

Senator Raymond D. Rawson, Chairman

DATE: