MINUTES OF THE meeting
of the
ASSEMBLY Subcommittee on Commerce and Labor
Seventy-First Session
April 3, 2001
The Subcommittee on Commerce and Labor was called to order at 1:09 p.m., on Tuesday, April 3, 2001. Chairwoman Sheila Leslie presided in Room 1214 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
SUBCOMMITTEE MEMBERS PRESENT:
Ms. Sheila Leslie, Chairwoman
Ms. Barbara Buckley
Mr. Lynn Hettrick
STAFF MEMBERS PRESENT:
Crystal McGee, Committee Policy Analyst
Darlene Nevin, Committee Secretary
OTHERS PRESENT:
Fred Hillerby, Legislative Advocate, Associated Pathology Laboratories
Dr. Henry Soloway, Associated Pathology Laboratories
Lisa Black, Nevada Nurses Association
Carin Franklin, Registered Nurse, Operating Engineers Union, Local No. 3, AFL-CIO
Maryanne Dawicki, Nevada Service Employees Union, Local 1107, AFL‑CIO
Rose McKinney-James, Legislative Advocate, Clark County School District
Robin Keith, President, Nevada Rural Hospital Project
Jim Fry, Risk Management, State of Nevada
Chairwoman Leslie called the meeting to order at 1:09 p.m. and opened the hearing on A.B. 279.
Assembly Bill 279: Provides for availability of industrial insurance benefits to employees for exposure to certain contagious diseases. (BDR 53-123)
Chairwoman Leslie invited Crystal McGee, Committee Policy Analyst, to explain the procedures taken thus far on A.B. 279. Ms. McGee informed those present that she had been asked to formulate a compromise from the amendments proposed for A.B. 279 as a result of the original hearing. She presented to the committee “Proposed Amendments to Assembly Bill 279” (Exhibit C).
The proposed amendments would replace Sections 2 and 3 with language that provided:
Assemblyman Hettrick asked Ms. McGee if the second proposed amendment mandated the initial test, which was given within 72 hours of exposure. Ms. McGee clarified the test was mandated, but an individual could still opt not to be tested. Mr. Hettrick explained if the employee did not have the initial test, it could not be established the disease was contracted at work. Mr. Hettrick agreed with the provisions of the second proposed amendment.
Ms. McGee clarified that under the second proposed amendment, an employee who tested positive by the tests administered within the first 72 hours of exposure would be considered to have contracted the disease before the work-related exposure. Therefore, under A.B. 279, that employee would not be covered under workers’ compensation.
Fred Hillerby, Legislative Advocate, Associated Pathology Laboratories, thanked the committee for accepting the majority of the amendments proposed by Dr. Soloway.
Dr. Henry Soloway, Associated Pathology Laboratories, also thanked the committee. He was concerned that A.B. 279 was open-ended because “contagious disease” included flu, colds, sometimes chicken pox and pneumonia, and numerous other illnesses whose source would be difficult to determine. He recommended the committee create a list of the specific diseases to be covered.
Chairwoman Leslie asked Dr. Soloway which diseases he would put on the list in addition to those already listed, which were hepatitis A, hepatitis B, hepatitis C, tuberculosis, and human immunodeficiency virus (HIV). Dr. Soloway suggested the addition of chicken pox and some of the pediatric diseases that could also be serious, such as measles and German measles. Dr. Soloway stated the list should be as defined and “tight” as possible.
Chairwoman Leslie was concerned there would not be enough time to go through the list of diseases to make the determination. Mr. Hettrick pointed out too many additions might endanger the survival of A.B. 279. He wondered if the nurses would be satisfied with the diseases already listed as the others were not as “life-threatening” or “career ending” as the diseases already listed in the proposed amendment.
Mr. Hillerby supported Mr. Hettrick’s suggestion and recalled most of the testimony reflected concerns over hepatitis and HIV. He recommended leaving the list as it was and pointed out that in the future, as experience might warrant, changes could then be proposed.
Chairwoman Leslie asked Dr. Soloway for any other concerns he might have. Dr. Soloway recommended changing the language in the second amendment. He proposed replacing “the appropriate blood test or skin test” with “the appropriate medical test.” He informed the subcommittee that tuberculosis testing could require an x-ray or test of the sputum.
Dr. Soloway stated the amendments should allow for the “index patient,” or “source patient” to be tested for the illness that might have been transferred through the exposure. He explained that prophylaxis treatment for HIV carried significant risks, including the risk of death. He submitted it would be dangerous to provide prophylaxis treatment to an individual without knowing, through testing of the source patient, what disease to treat for.
Ms. McGee responded that testing of the source patient was omitted because A.B. 279 would reach beyond health care workers to professions in which the source patient could not be identified. Such would be the case if a garbage worker was exposed, by contact, with liquid waste. She offered a provision could be added that stated, “to the extent that you do know the source patient.”
Dr. Soloway welcomed Ms. McGee’s suggestion. Mr. Hettrick also approved of the proposed language and expounded that a source patient might not need to be tested if that patient had already been diagnosed. Therefore, he suggested the language should clarify that the testing of the source patient could be done “if we had an index patient available and there was a reason to do the test that such a test could be performed to allow for prophylaxis treatment.”
Dr. Soloway clarified that a source patient admitted to a hospital for an orthopedic injury, for example, should also be tested for the contagious diseases, even though he or she could have been admitted for an ailment other than a contagious diseases. Mr. Hettrick agreed.
Assemblywoman Buckley raised the problem of testing a source patient against their will. She reported a recent Supreme Court case that concluded you could not test a person just because they were in the hospital. She related Nevada had a statute that authorized, should a possible source individual not consent to testing, a court order within 72 hours to permit the testing. She believed that statute was presently used for police and fire personnel and suggested the committee also adopt that for A.B. 279.
Dr. Soloway suggested a provision for anonymous testing to protect patient privacy as another option. Ms. Buckley felt adoption of the statute was a “cleaner” and safer approach.
Lisa Black, Nevada Nurses Association, agreed with Dr. Soloway’s suggestion to change the language to “medical test ” in lieu of “blood test or skin test” and to include in A.B. 279 only the five major diseases as stated in the proposed amendments.
Ms. Black communicated her concern to the committee regarding the results of tests performed on the source patient. She said generally a source patient who carried a communicable disease would test positive. However, that would not be true in all cases. After seven months of testing, Ms. Black’s own results were HIV negative on the antibody testing. By the PCR-RNA testing, she tested positive. She disclosed that when her antibody test was negative, she was more communicable than ever. Her concern was that a person who tested HIV negative could actually be very much a risk.
Chairwoman Leslie asked Ms. Black how she would address her concern and if the patient would be followed over time to see if they did develop HIV. Carin Franklin, Registered Nurse, Operating Engineers Union, Local No. 3, AFL-CIO, explained the source patient, once released, could not continue being tested.
Ms. Buckley asked the purpose of the testing. Was it to determine whether or not the patient was the source of the disease?
Ms. Black replied that most patients with communicable diseases would test positive, but some would not. In cases where the source patient carried the disease but did not test positive, the worker who suffered the exposure might receive inappropriate prophylaxis treatment. Also, the exposed worker could, in fact, not be covered for the illness resultant of that exposure.
Assemblyman Hettrick, recalling that inappropriate prophylaxis treatment could be fatal, questioned whether or not the exposed individual would want the treatment. He concluded that 95 percent of the time the exposed employee would be better off receiving the prophylaxis.
Ms. Black claimed that perhaps she had not been clear and reworded her concerns. She stated an exposed employee had the right to refuse prophylaxis treatment depending on the risk and that the source patient should be tested. Her point, she restated, was that a negative test did not prove the source patient was truly negative
Mr. Hettrick suggested baseline tests needed to be repeated to find out the source of the infectious disease.
Ms. Buckley asked Ms. Black if she was concerned about the source patient or the exposed employee testing positive. Ms. Black indicated it was the source patient to whom she was referring. Ms. Black affirmed she was concerned that the source patient could be in the incubation period and might not yet test positive. Ms. Buckley asked how the testing of the source patient was tied to the amendment.
Ms. McGee understood the purpose for testing the source patient was to determine which prophylaxis treatment was appropriate. She commented that although legislation might not be necessary for such testing, that did not preclude them from adding a provision to A.B. 279.
Dr. Soloway stated one reason for testing the source patient was to determine the appropriate prophylactic treatment for the exposed worker. The second reason was to establish whether or not the source patient had a contagious disease.
Dr. Soloway also pointed out that the language he and Mr. Hillerby proposed was “appropriate test approved by the State Board of Health.” He offered that perhaps the testing should be defined as, for example, an antibody test or a PCR-RNA test.
Ms. Buckley asked Dr. Soloway to address the second concern. Dr. Soloway repeated the second purpose for testing the source patient was to determine whether or not the source patient had a contagious disease. Ms. Buckley asked how that information would be used. Dr. Soloway instructed that the results would determine whether or not the exposed employee developed the same disease with which the source patient was afflicted.
Ms. Buckley asked what the ramifications were if the source patient did not test positive because he or she was in an incubation phase, or, “in the window.” Dr. Soloway responded that a PCR test would reduce the “negative window” to the point where 98 percent to 99 percent of the individuals would be accurately identified as positive or negative.
Ms. Black agreed but was concerned about the expense of PCR tests. She responded that the antibody test was not as expensive as the PCR test.
Mr. Hillerby explained that the amendments did not intend to preclude an exposed worker from receiving prophylactic treatment. Ms. Buckley stated the issue was not the prophylactic treatment; rather, the concern was whether or not the exposed worker might be excluded from coverage because the source patient never tested positive for the disease the worker contracted. She added the second consideration was the cost of the PCR testing and its affect on insurance.
Ms. McGee related that the proposed amendment did not specify preventative treatment and noted there were provisions in statutes for other workers to receive preventative treatment. She presented the option of amending the definition of “medical benefits” in Chapter 617 of the Nevada Revised Statutes to include appropriate preventative treatment.
Secondly, Ms. McGee pointed out that item 2 of the proposed amendments provided that the employee’s eligibility for industrial insurance coverage hinged on the results of his or her testing at the intervals prescribed following the accidental exposure.
Chairwoman Leslie and Ms. Black agreed the amendment reflected what they desired. Ms. Black added the amendments would be agreeable if they provided for a conclusive presumption for employees who tested negative from post-hire or post-probationary period testing
Chairwoman Leslie observed the request for a presumptive conclusion went beyond the amendments provided and might bring the proponents and sponsor of A.B. 279 back to where they started.
Mr. Hettrick expounded that providing a presumptive conclusion would necessitate limiting A.B. 279 to nurses. Otherwise, testing would have to be provided for all employees, and that would encumber the legislation. He also clarified his reasoning for the baseline testing was to protect the exposed employee from being denied treatment for a disease actually contracted from a source patient.
Chairwoman Leslie asked if there was anything else specific to the amendments Ms. Black wanted to address.
Ms. Black responded if conclusive presumption could not be provided, the language “clear and convincing” needed to remain in lieu of “preponderance of the evidence” which was proposed by the fourth proposed amendment.
Maryanne Dawicki, Nevada Service Employees Union, Local 1107, AFL-CIO, felt the language of the second proposed amendment, “If the results of such a test are negative, it shall be deemed that the employee did not have the contagious disease prior to the occupational exposure,” endangered the employee’s eligibility for coverage. She explained that an employee would often not know when they were exposed.
Mr. Hettrick reinforced the need to keep A.B. 279 focused. He advised that the originators of A.B. 279 had to decide the direction of the proposed legislation. Should they want to remain specific addressing the nurses only, and include airborne diseases that had no identified source, they would be requesting presumptive conclusion. If they wanted a broader range of employees included, presumptive conclusion would be too costly and it would be necessary to stay with the proposed amendments.
Ms. Buckley agreed and proposed A.B. 279 should be a strong bill for nurses, as it was originally intended to protect nurses. The other concerns being raised, she submitted, were larger issues that could be addressed at another time. She deferred to the sponsor of the legislation to decide the direction of A.B. 279.
Ms. Black pointed out it was nurses and other healthcare workers who sustained the greatest risk. She maintained the presumption should be created and limited to nurses and health care workers handling body fluids.
Mr. Hettrick reiterated that providing a presumption conclusion would endanger the passage of A.B. 279. He suggested it might be better for proponents of A.B. 279 to receive 95 percent of what they wanted wherein the benefits would apply to everyone, than to request 99 percent for healthcare workers only and receive nothing.
Rose McKinney‑James, Legislative Advocate, Clark County School District, understood A.B. 279 would affect the county’s school nurses and their concern was the burden of proof. She noted the proposed amendments replaced “clear and convincing” with “preponderance.” She wondered, given the committee’s time constraints, the best approach for addressing the district’s concerns.
Chairwoman Leslie asked Ms. McKinney‑James if she was arguing for “preponderance of evidence” rather than “clear and convincing.”
Ms. McKinney responded she had not seen the language for “preponderance” but noted there was some opposition to the term “clear and convincing.” She restated the concern dealt with the burden of proof as provided by A.B. 279.
Robin Keith, President, Nevada Rural Hospital Project, referred to an amendment provided at the initial hearing of A.B. 279 on March 21, 2001. She informed the committee it was their policy to deny coverage to employees who refused the vaccinations for hepatitis A and B.
Jim Fry, Risk Management, State of Nevada, noted A.B. 279 did not provide for prophylactic treatment. He informed the committee that according to the Occupational Health and Safety Administration (OSHA), the employer had to pay for the treatments. It was his opinion the coverage should be provided under industrial insurance. Otherwise, he supported A.B. 279.
Mr. Hettrick asked how long prophylactic treatment would continue before it was determined no longer necessary.
Dr. Soloway responded treatment for hepatitis B would include three vaccinations costing $35 each, and two shots of hepatitis B immunoglobulin, a month apart, costing between $80 and $100 each. HIV treatment involved one week to ten days, at a cost of perhaps $2,000.
Chairwoman Leslie informed those present she would take the information presented under advisement. Chairwoman Leslie adjourned the meeting at 1:53 p.m.
RESPECTFULLY SUBMITTED:
Darlene Nevin
Committee Secretary
APPROVED BY:
Assemblyman Joe Dini, Jr., Chairman
DATE: