ASSEMBLY COMMITTEE ON HEALTH AND HUMAN SERVICES

MINUTES OF THE meeting

of the

ASSEMBLY Committee on Health and Human Services

Seventy-First Session

May 2, 2001

The Committee on Health and Human Serviceswas called to order at 1:40 p.m. on Wednesday, May 2, 2001. Chairman Ellen Koivisto presided in Room 3138 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.

COMMITTEE MEMBERS PRESENT:

Mrs. Ellen Koivisto, Chairman

Ms. Kathy McClain, Vice Chairman

Mrs. Sharron Angle

Ms. Merle Berman

Mrs. Dawn Gibbons

Ms. Sheila Leslie

Mr. Mark Manendo

Ms. Bonnie Parnell

Mrs. Debbie Smith

Ms. Sandra Tiffany

Mr. Wendell Williams

COMMITTEE MEMBERS ABSENT:

Mrs. Vivian Freeman

GUEST LEGISLATORS PRESENT:

Assemblywoman Barbara Cegavske, District 5

STAFF MEMBERS PRESENT:

Marla McDade Williams, Committee Policy Analyst

Darlene Rubin, Committee Secretary

OTHERS PRESENT:

Bobbie Gang, Nevada Women’s Lobby

Maureen Brower, American Cancer Society

Wendy Simmons, Park Place Assisted Living

Alfredo Alonso, Lionel, Sawyer & Collins

Paul Larsen, California-Nevada Soft Drink Association

Carl Cahill, Washoe County Health Department

Samuel McMullen, Retail Association of Nevada

Helen Foley, Clark County Health District

Daniel Maxson, Environmental Health Supervisor, Clark County Health District

Phillipa Pointin, R.N., Senior Environmental Health Specialist, Clark County Health District

Nikki Meloski, Executive Director, Family to Family

Lew Musgrove, Us Too Organization

Maynard Berkowitz, Survivor of Prostrate Cancer; Us Too Organization

Note: A simultaneous videoconference was held in Room 4406 of the Grant Sawyer Office Building, 555 East Washington Avenue, Las Vegas.

Chairman Koivisto noted there was a quorum present and opened the hearing on A.C.R. 2 with introductory remarks.

Assembly Concurrent Resolution 2: Urges support for Women’s Health Care Platform: Campaign 2000. (BDR R-314)

Mrs. Koivisto recognized some of the women who had been heavily involved in women’s health care issues for some time and the helpful legislation on which they had worked and succeeded in getting passed:

Assemblywoman Merle Berman, Committee on Health and Human Services, who worked on the State Cancer Plan and the legislation to cover breast and cervical cancer. She also worked on legislation to include presumptive eligibility for children under age 19 in the Children’s Health Insurance Program (CHIP).

Assemblywoman Barbara Buckley, Majority Leader, who passed legislation in 1997 called the Patient’s Bill of Rights, an outstanding and nationally recognized plan. The federal government had considered the plan for implementation.

Assemblywoman Dawn Gibbons, Committee on Health and Human Services, for her legislation on anatomical gifts.

Assemblywoman Marcia de Braga, Chairman, Committee on Natural Resources, Mining and Agriculture, who had worked on health insurance programs, particularly health insurance for OB-GYN coverage and contraceptive equity for women.

Assemblywoman Bonnie Parnell, Committee on Health and Human Services, for her legislation for school nurses.

Assemblywoman Vivian Freeman, Committee on Health and Human Services, for her contributions over the years to women’s health care, not only as a nurse but also as the chairman of the committee for many sessions, and co-chairman of the Fund for a Healthy Nevada Task Force, which met during the interim.

Assemblywoman Kathy McClain, Vice Chairman, Committee on Health and Human Services, had put forth tremendous effort to obtain prescription drug coverage for the working poor.

Assemblywoman Sandra Tiffany, Committee on Health and Human Services, for her pilot program for intensive and integrated community service for the mentally ill and homeless.

Chairman Koivisto noted that a number of programs had come out of the Senate:

Senator Margaret Carlton, for introducing legislation to prevent discrimination against employees who had certain medical conditions. She also sponsored legislation for licensure for retired physicians to work in underserved areas and treat indigent people.

Senator Bernice Mathews, a retired nurse, had worked for many years on health issues for women.

Senator Ann O’Connell had sponsored legislation requiring managed care organizations to establish systems for independent review.

Senator Dina Titus had sponsored legislation for the Association for the Handicapped for expansion of the Developmental Child Care Program.

Chairman Koivisto commented that there was a lengthy list of women who had sponsored legislation that had changed the way medical care was given in the state of Nevada, and she believed that as part of hearing A.C.R. 2 it was necessary to remember all those women and the effort expended over the years to improve the health of women.

Assemblywoman Barbara Cegavske, District 5, thanked Chairman Koivisto for her remarks and acknowledgement of all the women who had supported those important issues.

Ms. Cegavske stated she was a primary sponsor of A.C.R. 2, and provided background on the legislation that urged support for the Women’s Health Care Platform, an initiative that highlighted the inequities in health care provided to men and women. The initiative concentrated on outlining goals to eliminate current disparities by focusing on care, research and education relevant to women. All were aware that there were distinct differences between men and women and because of those differences the health needs of women must be regarded as being unique, but equal, to the distinct health concerns of men. One in five women had some form of cardiovascular disease, yet in spite of that statistic, women were less likely to be referred for diagnostic tests and less often treated for heart disease than men with the same disease. That was only one of the many disparities in health care affecting women throughout the country. She also provided literature on the Women’s Health Care Platform (Exhibit C).

Ms. Cegavske stated affording appropriate and equitable health care to all citizens of Nevada was an important goal. A.C.R. 2 would assist in achieving that goal. She thanked her fellow legislators for the support already provided in the measure, and urged the committee’s support in efforts to ensure that every person in the state, male or female, was given the best possible health care available.

Ms. Cegavske noted there were many waiting to testify in support of the measure if the chairman desired. She added how much she appreciated everyone’s support and attendance at the luncheon sponsored just prior to the meeting.

Assemblywoman Gibbons asked if it was known how many permanent offices related to women’s health there were statewide, as the resolution encouraged the establishment of permanent offices. She felt it was important for the committee to be an advocate for those offices. Assemblywoman Cegavske responded that one of the goals of Women in Government was to establish a women’s program in every state. The group had spoken to the Governor, to health advocates, and to Laura England, and the women’s program was a major priority in Nevada.

Bobbie Gang, Nevada Women’s Lobby, noted that women’s health care was one of their major issues and had been for many years. They had lobbied over the years for many successful pieces of legislation to improve the health of women and families, and a few that had not passed, but she expressed hope that the other legislation would be successful in the future. She urged all who had signed on to A.C.R. 2 to also support other worthy pieces of legislation that involved access to services and programs for treatment of illnesses to improve women’s health. She urged everyone to take the resolution seriously and make the services available to women.

Vice Chairman McClain expressed complete support for the resolution, although she wished it was a bill that mandated the implementation of programs. She noted the resolution brought out the issues and made it easier for people to understand that women’s issues were so different. One often forgotten fact was that women were caretakers of their children, elderly parents, and husbands; therefore, it was very important that a woman’s health was always good because they were the caretakers of society. She noted that women were three times more likely to develop rheumatoid arthritis. The issue needed to be publicized over and over, and she commended all the women’s groups who constantly worked on those programs.

Ms. McClain felt very fortunate to be part of the Nevada State Legislature that, until the most recent election, was number two in the United States for the number of women in its legislature; currently Nevada was number three. She expressed hope that many young women would choose the political career path. She especially enjoyed seeing bipartisan efforts with women working together for women’s issues, because women’s issues were society’s issues.

Assemblywoman Tiffany remarked what a pleasure it was to be a member of Women in Government. She and Assemblywoman Cegavske had flown to Chicago then taken a train to Philadelphia, in company with 35 women who were assemblywomen, representatives, or senators from states across the country and it had been a rewarding experience to deal with those women in bipartisan brainstorming on the Women’s Health Care Platform issues. The number one issue had been cardiovascular disease, which she said had surprised her, as she had thought it would be breast and cervical cancer. She noted that at the press conference, the Governor of Wisconsin, who was now the head of Health and Human Services at the national level, spoke in support of the platform. Ms. Tiffany said she strongly supported A.C.R. 2 and would be talking about it on the floor.

Maureen Brower, representing the American Cancer Society, was strongly in support of A.C.R. 2. The focus of the organization currently was breast and cervical cancer support.

ASSEMBLYWOMAN GIBBONS MOVED TO ADOPT A.C.R. 2.

VICE CHAIRMAN MCCLAIN SECONDED THE MOTION.

THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT.

Chairman Koivisto commented that Assemblywomen Cegavske and Tiffany could introduce the bill on the floor.

The Chairman then opened the hearing on S.B. 74.

Senate Bill 74: Clarifies provisions regarding regulation of residential facilities for groups. (BDR 40-963)

Wendy Simons, Administrator/Partner of Park Place Assisted Living, said she had worked with Senator Raggio on the development of S.B. 74 that would add the words “assisted living facility” to the definition of the NRS 449 statutes under Residential Facilities for Groups. She noted assisted living facilities had experienced tremendous growth across the United States over the past ten years. Within Nevada similar growth had occurred in new assisted living facilities.

Ms. Simons explained assisted living facilities were a special combination of housing, personalized, supportive services, and health care monitoring designed to respond to the individual needs of those who required help with activities of daily living. Assisted living promoted maximum independence and dignity for each resident and encouraged the involvement of resident’s families, neighbors, and friends. Staff was available to meet scheduled and unscheduled needs. Assisted living facilities had existed within Nevada since 1948, when they were formerly board and care homes and adult group care facilities, and through the evolution of NRS 449 statutes came to be defined as residential facilities for groups. That was the way assisted living facilities were licensed and had been licensed in Nevada since the new politically correct words “assisted living facilities” came into existence about ten years earlier. The Bureau of Licensure and Certification (BLC) had been requiring all those facilities to license under that category for over ten years, and the regulations within the 449 statutes addressed all the components of the care and services provided within that setting, and providers had been subject to the inspection and certification provided by the BLC under the 449 statutes.

However, she added, during the recent long-term care hearings, assisted living facilities and assisted living were discussed as an alternative in the long-term care continuum. Ms. Simons said she had been involved as an administrator since 1972, and Ms. Simons’ mother had started the first senior care facility in Nevada in 1948. She found great confusion with the term “assisted living facilities” not being defined in statute, and for that reason she had spoken to Senator Raggio and he had been willing to bring the proposed legislation forward.

Ms. Simons noted that Legislative Counsel Bureau Bulletin 01-4 identified the additional discussions of assisted living facilities and through the course of working on S.B. 74 she had spoken with the Division of Aging Services (DAS) and the BLC, providers, and many other individuals all of who supported adding the terminology. She noted when the bill was heard in the Senate there was concern from Medicaid that the words “assisted living” would have a financial impact on some of the waiver programs they had initiated. Accordingly, following the meeting in Senator Rawson’s committee, an amendment was crafted whereby the effective date would be July 1, 2003. That would allow two years to work together to have a common terminology that everyone was comfortable with. In the interim, there would be a task force and collaboration of effort. She noted, too, how rewarding it had been to work with Medicaid, the Bureau of Health Facilities, and Division of Aging Services as they began to partner agencies to have a common ground. Ms. Simons provided her written testimony (Exhibit D).

Assemblywoman Parnell commented she had first become aware of assisted living when her mother became ill seven years earlier and spent some time in an assisted living facility in Carson City. Ms. Parnell said she understood those facilities accepted neither Medicaid nor Medicare. Ms. Simons said many facilities did accept that reimbursement. In fact, for 25 years she had mainly SSI or Medicaid clients, prior to building a new private-pay facility. Most of the new assisted living facilities could not accommodate a client in need of the Medicaid reimbursement, because those facilities were considerably more expensive. However, there was a group or residential care Medicaid waiver program that had an enhancement for those individuals with a lower income base that could be accessed but it did not go up to the private-pay level.

Ms. Parnell commented that when she had been involved in finding care for her mother, the choice had been to stay at home or go into a convalescent center, because the convalescent center was the only one that would work with Medicare. There was not an option of a retirement or assisted living facility, and having someone live in was prohibitive for most people. Accordingly, she asked if there was any chance for Medicare to become part of the assisted living program. Ms. Simons responded that Medicare was aligned more with medical conditions and did not pay for long-term or custodial care in skilled nursing facilities. However, it would pay for restorative, therapeutic care, up to 100 days of coverage in varying degrees of cost. Thereafter, Medicaid would step in and supplement when funds ran out. She felt it was extremely unfortunate there were not more choices. Further, there would never be a national Medicare coverage for assisted living because it was a nonmedical model, rather, a social model of care. Nevertheless, she did anticipate more people considering reimbursement from a Medicaid provider in assisted living settings sometime in the future. Ms. Parnell felt the concern then should be for the person just above Medicaid eligibility who chose the assisted living for $1,600 to $1,700 plus, with no assistance, and she would certainly like to find a solution for that population. Ms. Simons said she would certainly welcome Ms. Parnell’s input in that area, that industry and governmental partners were critical, particularly since Ms. Parnell had experienced the frustrations first-hand.

Vice Chairman McClain advised she had been on the interim committee for long-term care and asked Ms. Simons to explain for the committee the difference between a skilled nursing facility and an assisted living facility. Also, to explain why assisted living facilities should be included with group homes and not skilled nursing facilities. Ms. Simons responded that skilled nursing facilities provided 24-hour medical care, or the access to medical services with full staffing of nurses, CNAs, a medical director-physician; definitely a medical model. Group and residential care had always engendered confusion because the stereotype of group care was a small group home for six persons and/or up to 12 or 18, as existed in Nevada long before the newer designs of assisted living came into being. The Bureau of Licensure and Certification (BLC) over the past ten years had not wanted to create separate licensure categories of assisted living. But 29 states had separate classifications of assisted living licensure, and that was subject to great national discussion and debate through the trade association, Assisted Living Federation of America.

Ms. Simons continued that within the small state of Nevada, all of the assisted living providers with whom she had spoken or worked had been very comfortable with the licensure category of residential care facilities, which was one in the same with group care. Assisted living facilities were nonmedical models. However, as they had grown, the larger corporations had been able to hire nurses so there would be a nurse on staff, which created the illusion they were creating medical services, which was not the case. However, a number of years ago, the BLC expanded the regulations, whether one was in a group care home, a residential care facility, or assisted living, for individuals with certain conditions; catheters, diabetic issues, colostomies, or ileostomies to be addressed within those settings, which allowed many individuals who in the past had to go to a medical setting to remain in assisted living. The key was that they had some capacity for self-care, and also had professional medical oversight by either a home health agency or licensed medical personnel. The three types of facilities were comfortable with that definition within the state of Nevada.

Assemblywoman Berman said she had been working on a Medicaid waiver bill, however waivers were very hard to obtain because they depended upon the state. The idea was not to go to a nursing home, but to what new language termed an “aging in place” facility, where the facility would be split into different sections depending upon the amount of care needed. The bill called for the Medicaid waiver to go to the assisted living facility, however, it had been a long and difficult process and it was not to pass in the 2001 Legislative Session.

Chairman Koivisto noted in reading the bill, all that was being asked was to add “assisted living.” She asked if that was going to put assisted living facilities in the same position as the other facilities to apply for the Medicaid waivers and funding. Ms. Simons replied they already were in the same position, because they were licensed as a residential care facility. Every assisted living facility in the state currently operated as a licensed residential care facility, which made them eligible for the group-care waiver program. Apparently, Medicaid had recognized the consumer-driven request to not institutionalize individuals so they had used the words “assisted living” in a waiver to the disabled and the dependent, and when it was first brought forward there was fear that “the flood gates would open” and every assisted living facility would apply for that portion of assisted living Medicaid eligibility. The facilities of which Ms. Simons was aware felt they could only access the group care waiver portion, which was facility-based. What she was looking for was a differentiation between the words “assisted living facility” versus “assisted living services.” She had hoped to be able to get the word ”facility” in. Her experience had shown many people believed assisted living facilities were not regulated, which they were, but they had not been regulated as such.

Ms. Simons thanked the committee for their excellent questions, and noted that no one had asked questions when the bill was first heard in the Senate.

Chairman Koivisto asked the committee’s wishes.

ASSEMBLYWOMAN SMITH MOVED TO DO PASS S.B. 74.

Vice Chairman McClain was distressed by the July 1, 2003, effective date, but felt perhaps it was to sidestep the budget shortfall in the current biennium. She said she would support it but did not like the date.

ASSEMBLYWOMAN PARNELL SECONDED THE MOTION.

THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT.

Chairman Koivisto opened the hearing on S.B. 352.

Senate Bill 352: Excludes wholesale dealer of nonalcoholic beverages from regulation as food establishment. (BDR 40-1489)

Alfredo Alonso, of Lionel, Sawyer and Collins, Attorneys at Law, representing the California-Nevada Soft Drink Association, introduced Bob Phillips, President of the California-Nevada Soft Drink Association, and by videoconference from Las Vegas, Paul Larsen, also of Lionel, Sawyer and Collins, who would do a brief overview to explain their position.

Mr. Alonso said S.B. 352 was a simple bill that came about as a result of a letter received in April 2000 that asked association members to obtain health cards. That marked the beginning of discussions with the Health District. They entered those discussions with the board; the board had not taken a position at that time. They had discussed trying to go before the legislature and enter the debate with respect to an issue they felt was unfair and over-reaching, namely health cards for fork lift operators. Mr. Alonso provided a series of photographs of warehouses, sealed containers, and so on, (Exhibit E). In 1983, Nevada Revised Statutes (NRS) 446.020 established definitions that were broad enough, unfortunately he said, to include beverage handlers. The days of bottled beverages in Nevada were almost over. The forklift operators worked in warehouses where beverages were stored and delivered to retail establishments, and nothing more.

Mr. Alonso’s exhibit also included letters sent to the counties of Los Angeles and Orange, California, asking what their procedures were with respect to the issue. Those counties indicated that such health cards were not necessary in those jurisdictions. Those counties were chosen as they were near in proximity to Las Vegas as well as significantly larger.

From Las Vegas, Paul Larsen, a member of the same law firm representing the California-Nevada Soft Drink Association, cited the definition of a food handler in NRS 466.030, stated: “A food handler means any person employed in or operating a food establishment.” The Clark County Health District had promulgated new regulations that required food handlers to obtain health cards. The county approached the members of the California-Nevada Soft Drink Association to require all employees in a beverage warehouse to obtain health cards. The Health District had taken a position that a warehouse that provided only beverages in sealed containers, where there was no manufacturing or sale within that facility, was a food establishment. However, in NRS 446.020, it clearly indicated that a food establishment was where food was manufactured, prepared, sold, offered or displayed for sale. Based on that language, it had been a long held interpretation of NRS 446.020 that a warehouse where food was not manufactured, prepared, sold, offered or displayed for sale, was not a food establishment. To further substantiate that definition, in 1983 the Legislative Counsel Bureau, by Frank W. Daykin, Legislative Counsel, provided a letter to Assemblyman Joseph Dini, Jr., indicating that the purposes of regulating food establishments under NRS 446 were (1) to assure the service of safe food; (2) to avoid the sale of potentially hazardous food, and (3) to prevent any other imminent health hazard.

Relying on that policy as articulated in NRS 446.865 and reviewing the rest of the legislation, legislative counsel Daykin opined to Mr. Dini that if there was no manufacture or preparation of beverages and if the wholesaler handled only the sealed container, it did not appear that the wholesaler’s premises needed to be regulated for any of the reasons set forth in the statute. In other words, it was not regulated as a food establishment. That legislative counsel opinion was dated August 26, 1983. It was a direct contradiction to an attorney general’s opinion issued in June of that year which took an opposite position. Since that opinion was issued in 1983, for the next 17 years everyone accepted that interpretation of NRS 446.020, and no one took the position as a legal matter that a food establishment included a warehouse where beverages were stored in sealed containers where there was no manufacture or retail sales going on. However, early last year that changed when the Clark County Health District took a contrary position.

Clark County Health District’s reinterpretation of the definition of food establishment required employees within Clark County in those type establishments to obtain all the necessary regulatory requirements that one would need for someone who worked at a salad bar in a restaurant, or someone working in a produce section of a supermarket. They had to go through the same immunization, regulatory training, and licensing requirements. Mr. Larsen said he took a rather cynical view that it was a revenue generating mechanism for the Health District, in that it really did not serve any strict health purpose as was set forth in some of the testimony on the Senate side. However, what he proposed to do with the legislation presently before the committee was to specify and clarify in the definition of food establishment what was always the intent, to which the Senate committee agreed, that the net effect of the bill was just to clarify the original intent of the statute, and that was to not extend regulatory jurisdiction over those types of facilities. There was precedent, Mr. Larsen reported, as in 1985, the statute was clarified to remove the premises of wholesale warehouses that had alcoholic beverages in sealed containers for exactly the same rationale; that it was in a sealed container, and there was no preparation, manufacture, or handling of that food in a raw state. It need not be regulated for any of the purposes set forth in NRS 446.865, and that was to assure the sale of safe food, to avoid the sale of potentially hazardous food, or to prevent any imminent health hazard.

Mr. Larsen continued that they were not proposing to completely exempt sealed beverages, soft drinks, from any kind of regulation. Clearly, he said, the preparation at the bottling plant had to be regulated. There had to be some indicia of wholesomeness, as well as credibility that the beverage going into the container was free of any contaminants or health hazard; the bottling aspect needed to be regulated. Similarly, when beverages in sealed containers were put in a retail food establishment for sale to the public, the person handling that aspect of it also had to be regulated as that was the last check on whether or not those beverage containers were sealed and the seal unbroken; that was fulfilling the regulatory needs from a health standpoint. All that was being requested was the removal of unnecessary and over-reaching effort, based on the last 17 years of precedence, to extend regulatory jurisdiction solely for the purpose of expanding jurisdiction for which there was no legitimate health reason; except perhaps as a revenue generating tool.

Mr. Alonso returned to clarify a few issues. First, it was an industry measure that included all seven of the bottlers and warehouse companies in the state. It was not, as some people had indicated, a Coca Cola measure; Pepsi, 7-Up, and the others had voted in February 2001 to support the measure. Most importantly, as Mr. Larsen also noted, it was not a change in policy. The law now being reinterpreted had not been in force for 18 years, he said, and it was critical to understand that nothing was being changed; that had been the existing policy that had not been enforced, and now, as of 2000, it was being enforced. When he testified in the Senate he had said he did not know of any jurisdictions in the country that had that type policy. However, apparently there were three; one was San Diego, and in discussing it with people there, they indicated that like Orange and Los Angeles Counties, they had no requirement for a health card.

Mr. Alonso stated that in the warehouse operations there were warehouse managers, individuals who loaded product by mechanical means, forklift operators, sales people, and it was difficult to comprehend the need for a health card for those individuals. Some indicated that perhaps those people could be listed as to who could and who could not have a health card. For the most part, he said, that was unworkable in a warehouse setting.

In closing, Mr. Alonso asked the committee to support the measure. He also provided a voluminous notebook of material (Exhibit F) relative to the issue.

Chairman Koivisto asked if the seven facilities were all warehouses. Mr. Alonso said there were six warehouses and one bottling plant in Reno; the bottling plant would not be exempted as it was considered a food handler.

Mr. Larsen interjected that if there was any food product other than nonalcoholic beverages in a sealed container, the warehouse would then become a food establishment. It was a very limited exemption based upon the specific language of the statute and the interpretation of that statute for the last 17 years. In addition, despite the position Clark County Health District had taken in the past and might take before the committee, Mr. Larsen believed that the health district did retain jurisdiction under NRS 446.920 to come into the facility and if there was a threat to health, if food was determined to be unwholesome or contaminated for any reason they could place a hold on that food and prevent it from being offered for sale or distributed for sale.

Chairman Koivisto asked to clarify that the bill only dealt with facilities that had beverages in sealed cans. Mr. Larsen responded that was correct.

Assemblyman Manendo asked about the author of the small amendment (Exhibit G). Mr. Alonso said that amendment came about as the result of discussion with Mr. Cahill of the Washoe County District Health Department. His desire was to have clarification with respect to their ability to enter the premises for inspection. Mr. Alonso felt the amendment addressed that issue.

Carl Cahill, Division Director, Environmental Health Services Division, Washoe District Health Department, said that Exhibit G was not his amendment, however, they were moving toward a resolution. Washoe County did not issue food handler permits to food personnel staff, so it was really a food handler permit issue in Clark County. Washoe County did regulate and inspect warehouses. The bill did not identify nonpotentially hazardous foods that were also beverages, it only said “nonalcoholic beverage.” In reading the Attorney General’s opinion, it stated if they only handled alcohol, they would not be permitted but exempted from that permitting requirement. Most alcoholic beverage distributors handled other products; such as mixes, cherries, olives, and so on. Most of those were still regulated by the health authority. Mr. Cahill had a problem with S.B. 352 in that the amendment proposed suggested that the county go into the facility using NRS 446.920. If they did not have a permit that gave them the authority to do that, the county had no jurisdictional authority to go in and condemn foods. Mr. Cahill added that a permit was critical to the bill. Accordingly, he recommended defining what a food handler was and making the change there, along with the appropriate exemptions for those individuals who clearly did not handle food product but handled containers and bulk using forklifts. The risk of those individuals contaminating a food product was extremely low, and therefore, he would meet the beverage industry’s need to not have their warehousemen permitted as food handlers, but still be able to maintain some oversight and permitting on the facilities to insure that safe handling practices were in place.

Chairman Koivisto asked if he did not feel the amendment (Exhibit G) handled that. Mr. Cahill responded that the amendment was only giving them a small piece of what was in the “due process” section of the law. Beginning with NRS 444.875 through 920, it provided for the entire due process of licensure, and by exempting that portion of it, they had no permits or reasonable cause to be in that facility. Unless he had a permit on a facility as a food-handling establishment, there was no jurisdiction. The cited NRS section was the due process for permit issuance, appeal process, and so on, necessary in order to regulate an industry. At issue again was the situation Clark County had with the beverage industry of having cards for food handlers and incumbent with that was a permit cost and whatever else Clark County required. That appeared to be the issue; it was a burden for the industry but Clark County had indicated a willingness to try to amend that at the local level. Mr. Cahill stated that Washoe County was trying to work out a language compromise that would meet its needs, as well as the industry’s and Clark County’s needs, but he did not think they had achieved that yet.

Next was Samuel McMullen, who represented the Retail Association of Nevada and also the Las Vegas Chamber of Commerce, who recently decided they wanted a remedy to the problem as well. Mr. McMullen requested that Las Vegas Chamber of Commerce be included in the amendment (Exhibit H) proposed by the Retail Association of Nevada (RAN).

Mr. McMullen said he did not want to change what had been proposed previously for the bill. The soft drink or beverage aspect of the issue was something that had been changed many years ago, but the interpretation of that law had always been that it related to ”open food,” and he said that was his term for the many variations of how food was presented or available, and that had always been the area that needed to be clearly regulated. But, there had been no interpretation by statute, health district, or anyone else that prepackaged goods, canned goods, or anything else in a permanently sealed container, was justification for a food handling permit. However, that had just changed in the last year, therefore, RAN proposed an amendment to the definition of food handler to make sure there was clarification. What should be understood was that there was really no change from what had been in place for decades.

Chairman Koivisto asked if he had shared his amendment with the sponsors of the bill. He said he had and they were in agreement.

Vice Chairman McClain asked if anyone who worked in a grocery store was covered as a food handler. He said yes, and he had passed out a letter from the Clark County Health District (Exhibit I) indicating that a food handler was anyone who was in any place that sold food. The definition of “food” was broad, as was the definition of “establishment.” But “food handler” was limited to those in the business of preparing, manufacturing, and so on, and that had been the definition for almost 40 years. Mr. McMullen felt the most instructive sentence in the letter appeared at the bottom of page 2:

It is Health District policy to treat all permit holders in a like manner.

Mr. McMullen said he had been told indirectly and directly that they had to license everyone in a facility, and that had never been done before. Moreover, one could easily determine there had been no rampant health problems in the facilities that sought exemption. Currently, though, just because someone interpreted the law to extend to anyplace where food was sold did not mean that was the original intention; evidence of that was how it had been interpreted and implemented for years until recently. Furthermore, if a law had been in place for a number of years and been amended based on an interpretation and no change in that interpretation had occurred, then it probably should be done by law; not by a regulatory action.

Vice Chairman McClain requested clarification that employees in grocery stores would need to have food handler cards, whether stock boy or checker. Mr. McMullen said yes, however, if one was only handling bulk items there might be a way of differentiating those type jobs. The issue, he felt, was more for drug or other stores where it was only canned or packaged goods and no opportunity for the person to be in contact with open food.

Chairman Koivisto said the issue was a “can of worms” because, for example, Target stores also had deli sections where hot dogs and so on, were sold. Mr. McMullen said he did not feel it could be dealt with by establishment, because any establishment could have a section where open food was sold. Therefore, for the people who worked in the deli, their job description would be “food handler” and they would have the appropriate permit. If an employee worked in the deli for two days and the other three days was a checker, then a “food handler” permit would be needed. Mr. McMullen said he would be happy to work with the health districts to make sure there were no unintended consequences in the bill.

Chairman Koivisto said in reading the bill as written it did create the concern that a food handler card might be required for everyone working at Target, K‑Mart, and so on, as it could be an unnecessary expense for people who did not make a large wage. Mr. McMullen reported the cost was $30 for a permit, plus the medical and lab costs, which some employers paid for while others required the employee to pay.

Mrs. Koivisto asked for the stakeholders to work with staff to come up with appropriate amendments, as time to process was limited. She then asked for witnesses in opposition, from northern and southern Nevada.

Helen Foley, representing the Clark County Health District, was accompanied by Daniel Maxson, Environmental Health Supervisor, Clark County Health District. She noted Mr. Maxson had been with the Clark County Health District for over 20 years. Ms. Foley also introduced Phillipa Pointin, Senior Environmental Health Specialist, Clark County Health District, who was in charge of investigating all food-born illnesses.

Ms. Foley stated that it was critical for the citizens and tourists in southern Nevada to be able to rely on and feel confident that the warehouses that stored food products were healthy and safe. Mr. McMullen’s amendment, on the surface, looked reasonable. However, she would illustrate how important it was for the people who handled packaged foods to have health cards, as well as for the operations to be inspected. The health district had inspected warehouses where canned goods bore traces of mouse droppings and urine. She asked how many people washed their cans before opening them; only Vice Chairman McClain raised her hand. Ms. Foley noted that sealed, prepackaged food could include muffins, cookies, cakes, and so on, and it was extremely easy for bugs to get into those kinds of products. Further, there were problems with bottling companies who bottled drinks containing fruit juices; there had been terrible outbreaks of diseases from those operations

Daniel Maxson said he had not expected the “curve ball” he got at the last moment in regard to the “food handler” definition. He felt, however, that the approach Mr. McMullen wanted to take might be a solution, not so much in the definition of “food handler” but which food handlers had to have the hepatitis A immunization. Mr. Maxson reported that hepatitis A was transmitted through the ingestion of fecally-contaminated material from humans who had the illness. It was a mechanical transfer; just one or two virus particles caused illness. Due to a significant rise in hepatitis A in the community, to three times the national average, in 1999 the health officer asked the Board of Health to proceed with an immunization program for the food handlers’ card program.

Mr. Maxson then read a prepared statement, but did not provide a written copy, as follows:

We represent the Clark County Health District today in opposition to Senate Bill 352 as currently written. We concur with the opinions of the Washoe County District Health Department with regards to the requirement that these soda facilities, warehouses, have a permanent health permit, that they be regulated by the local health agencies and the state health agencies of jurisdiction.

We are going to be providing a short slide presentation here and a response document to Senate Bill 352 for your review. It is a rather large document and contains everything that we have done on health cards. We would like to submit it for the record.

Mr. Maxson’s document was marked Exhibit J. The “PowerPoint” presentation continued in the background.

Phillipa Pointin, also of the Clark County Health District, said she noticed there had been mention of a policy change, however, it affected only the food handlers, not the permitting of the establishment. Inspections at the warehouses had not changed, only the enforcement of the food handlers’ health card had changed, and that had been in response to an increase of hepatitis A in Clark County to three times the national average. In a tourist-based economy that was a major concern to the health department.

Chairman Koivisto asked if Mr. Maxson had opposed the bill in the Senate. He said he had, however, he had not had the slide presentation then and also he was making corrections to certain testimony.

Mr. Maxson added that in May 1999, the District Board of Health approved the Hepatitis A vaccine for the food handlers’ card. At that time the price rose from $10 every two years to $30 every three years. Amortized over the three years, it was $10 per year, and in view of the fact the state business tax for an employer was $25 per quarter or $100 per year, Mr. Maxson did not feel that was too much considering the hepatitis A vaccine gave the employee a 99.9 percent immunization the first time, and almost 100 percent with the booster shot at three years. The employees were given training, and the health district had offered to go on-site to employers such as Coca-Cola, Pepsi, Wal-Mart, Target, and so on, to train their people. Even if payment to employees was $20 an hour to attend class and get the immunization, the total cost amortized over three years for 100 employees was only $4,000 per year, not $30,000.

Mr. Maxson noted some of their concerns were:

Cleanliness and maintenance;
Identification and elimination of infestations, such as insects, rodents, birds;
Identification and elimination of overhead leaks and contamination sources;
Food product leaks and cleanups;
Rotation of food items. Mr. Maxson emphasized that in stores like Wal‑Mart, K-Mart, Walgreen’s, Target and others, if food items like frozen pizza, lunch meats, eggs, milk, and so on were not properly rotated they were potentially hazardous foods. Those were prepackaged foods but if mishandled temperature-wise, illness could result; and
Sewage backup.

Mr. Maxson noted that in earlier testimony, “food handler” had been defined by Mr. Larsen. Mr. Maxson then read the part of the definition that Mr. Larsen had not read:

Mr. Larsen read: Food handler means any person employed in or operating a food establishment.

Mr. Maxson added there was a comma after “establishment” and the sentence continued: ,whether employer, employee, or independent individual who handles, stores, transports, prepares, manufacturers, serves, etcetera.

Chairman Koivisto asked if Mr. Maxson was opposed to the bill or to the amendment, and to what was he referring. Mr. Maxson said he was referring to a statement made earlier on the definition of “food handler.” He said he was clarifying that the legal definition of “food handler” encompassed more than someone who simply operated a food establishment. It also included those other operations that the health district had been regulating for some time. He pointed also that in looking back to 1983, Coca-Cola and Pepsi warehouses had always been permitted; they applied for those permits and they had always been in compliance. There was nothing new about the fact that they had been food establishments, and those companies recognized that or they would not have applied for the permits.

Chairman Koivisto stated that according to the bill, there would still be that approval authority. Mr. Maxson said the way the bill was currently written, the health district was written out of any legal authority to inspect those establishments. Mrs. Koivisto disagreed. Mr. Maxson, reading from S.B. 352, said,

The premises of wholesale dealer of nonalcoholic beverages who: (1) handles only nonalcoholic beverages which are in sealed containers and which were manufactured, prepared, or bottled in a food processing establishment approved by the health authority; and (2) does not manufacture, prepare, or bottle such beverages on the premises

would eliminate their ability to inspect or investigate the premises of any of those establishments, whether they were soft drinks or fruit juice producers or warehouses. He referred to the PowerPoint depiction of a “thank you” letter from Ocean Spray for the Clark County Health District’s help in procuring the health cards, as they wanted to be in full compliance. He clarified that Ocean Spray had a warehouse in addition to its production facility in Las Vegas, where they did bottle product.

Mr. Maxson referenced another slide depiction of employees of Coca-Cola and Pepsi loading beverages on store shelves. He said many products were brought in by outside vendors and placed on store shelves. Whether or not beverage warehouses were eliminated, when warehouse employees went into stores they became food handlers because they were handling those items as the law was currently written. He noted that Ocean Spray was one of the better warehouse facilities; it was spotless, there were white stripes along the wall as inspection markers so they could easily see whether there were rodent droppings on the ground. That was a key part of monitoring and had to be done in a warehouse to make sure that infestations were caught early before they became a problem.

Mr. Maxson described at length the “bag-in-the-box” drink syrup leakage from containers at Coca-Cola and other warehouses. Those were not simply warehouses of intact products; when leakage occurred the product was repackaged into new containers. When forklift operators moved products, cans were sometimes damaged, leaking onto and contaminating other product, and that was then washed off in sinks, or sometimes outside.

Assemblywoman McClain said there was no dispute warehouses needed to be inspected. The issue was who, working in those facilities, actually had to have a food handler’s card. She believed the amendment from the Retail Association of Nevada would address those concerns about who needed a food handler’s card, and it would not preclude inspections by the Health District. Mr. Maxson responded that he would like to meet with Mr. McMullen and Coca-Cola; it could be resolved at the local level and would not be an issue at the state level.

Chairman Koivisto suggested that Mr. Maxson meet with Mr. Alonso, Mr. McMullen, and the others, and try to come to some conclusion so the bill could be processed. Personally, she felt it was inappropriate for someone driving a forklift to be required to have a food handler’s card and a Hepatitis A shot. Mr. Maxson said they had agreed to exactly that in an amendment he had given to Coca-Cola, but it was rejected. Mrs. Koivisto recommended the parties work with staff to draft an amendment that could be processed. She noted that due to the time constraints of the legislative session, those issues should have been dealt with before the bill ever reached committee.

Assemblyman Manendo asked if facilities were currently being inspected. Mr. Maxson said “yes,” approximately every six months.

Chairman Koivisto informed the parties the committee would try to hear the amendment at the earliest date, and she closed the hearing on S.B. 352.

The Chairman then opened the hearing on S.B. 318.

Senate Bill 318: Creates task force on prostate cancer. (BDR 40-1045)

Assemblywoman Bonnie Parnell, District 40, reported she had volunteered to speak on behalf of her constituent Nikki Meloski, CEO and President of Family to Family Prostate Cancer Center in Carson City. She said S.B. 318 allowed for the creation of a task force to study prostate cancer. There was no fiscal note on local government or on the state. The task force would consist of 11 members comprised of individuals appointed by the Governor, others would be physicians, along with one member who was related to a person who had had prostate cancer. The latter especially pleased her, because it was important for a caregiver to be able to give information and suggestions on what was needed.

Ms. Parnell referenced Section 4 of the bill, regarding the terms of office for task force members. Subsection 5 stated the members would serve without compensation, and the members who were state employees would not lose their state pay while taking time off to serve on the committee, but they would not be given per diem or compensation for service on that committee; again creating no fiscal note.

Ms. Parnell then introduced Lew Musgrove, from Las Vegas, and Nikki Meloski, who would elaborate on the prostate cancer issue.

Nikki Meloski explained her involvement began nearly four years ago when her husband, Bob, was diagnosed with prostate cancer. She said the doctor told her it was “none of her business.” She soon found other women who had been told the same thing. She urged women and men, in politics and elsewhere, to become involved in the issue, and noted that Congressman Gibbons had been extremely helpful in Washington. She reported that Governor Guinn was the first governor in the country to declare September as Prostate Cancer Awareness Month. Since then 37 governors had followed suit. On April 2, 001, the combined legislature passed S.C.R. 26 stating the same.

Mrs. Meloski reported that prostate cancer was the most common cancer and the second leading cause of cancer death among men in the United States. Despite significant advances in diagnosis and treatment, many patients still suffered from the embarrassment of diagnosis, debilitation, pain, and premature death. As little as two years ago the disease was thought to affect only men over the age of 50. The most frightening problem seen across the United States was the increase in men as young as 35 being diagnosed with prostate cancer. In Nevada, for the first time, the numbers for diagnoses had risen over breast cancer. The impact of that statement was intensified by a recent report issued by the American Cancer Society that showed the mortality rate nationally had dropped significantly lower than breast cancer for the first time. It appeared that the screening efforts in Nevada and across the country had been effective in saving men from dying from prostate cancer.

Mrs. Meloski stated they had only scratched the surface in the screening efforts, and not nearly enough had been done in the rural areas. Although the most important aspects of the task force were items 5 and 6: to identify and evaluate methods to increase the number of men in the state who were regularly tested for the presence of prostate cancer, and to identify and evaluate methods to increase the awareness and education of the general public concerning prostate cancer. Also, there was a need to increase funding for research and treatment assistance, and to expand the scope of standard-of- care treatment for men who were unresponsive or hypersensitive to traditionally accepted treatment modalities.

Mrs. Meloski reported that the lack of a urology department at the University of Nevada School of Medicine, and a qualified center to implement clinical trials, were serious handicaps. Additionally, the coverage of clinical trials by health insurers was greatly needed for the state. In New Jersey, a law had been passed to pay for clinical trials with the least amount of impact on the state and insurance companies with the most coverage for the patient. That effort needed to be implemented in every state, especially for patients in a middle-income bracket who did not qualify for medication assistance for low-income patients.

Mrs. Meloski added that in a recent discussion with a well-known California physician she was informed there was little available in clinical trials to treat men who were compromised or were hypersensitive or allergic to traditionally accepted modes of treatment, like her husband. When she asked the doctor about standard of care; treating the man with a treatment shown to possibly stop an otherwise unresponsive disease outside of the clinical study, especially with drugs that were in stage II or III of the trial, she had been told it was “too bad,” there was nothing he could do, and refused anyway, because correct trial numbers were more important. The underlying message was, she said, that was more important than saving a man’s life. Her husband had asked about one of the side effects of traditional treatment, and the doctor informed him they could wait a year and if he had spinal compression they would put him on a preventative medicine, after the fact. Mrs. Meloski said that in the whole county no child with cancer could be turned down for a clinical trial; why not adult men and women.

Subsequent to that experience, Mrs. Meloski telephoned several prostate cancer specialists and expressed her concern about the lack of empathy within the clinical trial arena. Most were as concerned as she, and recommended a meeting be held in Nevada to discuss the issue. That would be another first for the state of Nevada and the country. Those issues would be addressed within the task force. She said she had just returned from the 92^nd American Association for Cancer Research Annual Meeting, in New Orleans, attended by 13,000 of the top scientists in cancer research from around the world. She was one of 36 survivor-advocates working with 21 of the “cream of the crop” researchers. One statistic shared with them was the fact that the entire budget for cancer research was equal to one wing of a Stealth bomber, and more people died from cancer each year than had died in all of the wars in American history.

Mrs. Meloski thanked the committee for helping change those statistics. She provided information on Family to Family and related material (Exhibit K).

Chairman Koivisto asked Mrs. Meloski to confirm that the University of Nevada, Reno (UNR) did not have a urology department. Mrs. Meloski said that was correct, and in the hearing before the Senate, a professor at UNR said a urology department was definitely needed.

Assemblywoman Angle thanked Mrs. Meloski and Ms. Parnell for bringing the bill forward. She was very glad to see the state was going to do something proactive. She said her grandfather had died of prostate cancer, her cousin was recently operated on for prostate cancer, and her attaché’s husband had just returned from a very advanced treatment for prostate cancer, and been pronounced cured.

Lew Musgrove, a prostate cancer survivor, said that in ”every adversity there was a seed of a greater benefit” and that had been his opportunity to find a second calling. Mr. Musgrove was the chairman of the Us, Too Prostate Cancer Support Group in Las Vegas, as well as regional director for Us, Too, an international prostate cancer organization with over 350 chapters in the United States and over 150 in other countries. In Las Vegas, Mr. Musgrove said an average of 85 people attended the monthly meetings; but there were 106 at the last meeting. He also served on the American Cancer Society Leadership Council and was chairman of its prostate cancer committee.

Mr. Musgrove said the organization was having a problem creating awareness among the general public. At the Us, Too meeting there were only about ten newly diagnosed men. One of the things the Nevada task force hoped to accomplish was to bring awareness that all men, starting at age 45, should have a “PSA” (prostate-specific antigen blood test) and a “DRE” (a “fingerwave”). Furthermore, if the man was a bloodline relative to a prostate victim then he should have the tests at age 35, because there was a 30 percent chance of contracting prostate cancer in that circumstance. Also, Mr. Musgrove said that African-American men had a greater propensity for contracting the disease and should also be tested at age 35.

Mr. Musgrove said that outside the counties of Washoe, Carson City, and Clark, there were towns of small populations where the men had probably never seen a urologist; some might not have even seen a general practitioner, or had the opportunity to have those tests.

Mr. Musgrove amplified Mrs. Meloski’s testimony about the absence of clinical trials, adding that without clinical trials there could be no FDA approval, and without FDA approval, it would never be known whether there was a cure for prostate cancer. He also provided information on Us, Too (Exhibit L).

Chairman Koivisto commented that based on the testimony, prostate cancer needed the same kind of public awareness campaign that had been conducted for breast cancer. Mr. Musgrove remarked that was necessary because men were less inclined to speak out, and the cost of that silence was high. Prostate cancer deaths had run 25.5 per 100,000. This year the American Cancer Society was projecting 23.3 per 100,000; which meant that early detection was working.

Maynard Berkowitz, Minden, Nevada, said three years ago he was given a “death sentence.” He had participated in three clinical trials, and had managed to delay the inevitable. He had PSA tests, however, his doctor was not well-informed or vigilant. Mr. Berkowitz believed the medical care in northern Nevada was not good; in fact, he pointed out that when former Governor Miller was stricken with the disease, he went out of state for treatment. Mr. Berkowitz also went out of state for his treatment, because he felt he could not get the quality of care he needed. He strongly urged the committee to pass the bill.

Assemblywoman Smith thanked the witnesses for sharing their stories, and noted she had two friends who had the same experience of having a PSA at a mobile unit, and the physician chose not to react. It had only been through the conscientious effort and persistence of the mobile unit owner that her friends finally went elsewhere and received treatment. She said that taking one’s health issues seriously should be part of the public awareness campaign.

Chairman Koivisto noted the committee had received an amendment (Exhibit M) from the American Cancer Society noting they wanted the executive director to be included as a member. Senator Raggio had agreed to that amendment.

Assemblyman Williams commented that in the past, with similar amendments, it had been necessary to substitute one person for another in an organization. Therefore, he suggested the wording be amended to state: “the American Cancer Society executive director, or his or her designee.”

Maureen Brower, representing the American Cancer Society, agreed to Mr. Williams’ recommendation.

Mr. Musgrove said there was ample opportunity in the composition of the task force for people to be designated, however, he was already on the Leadership Council for the American Cancer Society, and Chairman of the Prostate Cancer Committee, so that organization was already being served, and he was worried an amendment would slow the approval process.

Chairman Koivisto asked if Ms. Brower was aware of that, and she also concurred that it was more important to process the bill. Ms. Brower said she would defer to the committee’s wishes, although she felt that with other organizations being named, and because of their interest in prostate cancer, the American Cancer Society would like to be listed.

Mrs. Meloski said that issue had been brought up in the Senate and to prevent delaying the bill, Senator Rawson felt it was better served under the businesses listed that had been chosen by the Governor. Accordingly, she asked if that could be considered because it was urgent that the bill be passed.

The Chairman asked the committee’s wishes.

ASSEMBLYWOMAN ANGLE MOVED TO DO PASS S.B. 318.

ASSEMBLYMAN MANENDO SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

There being no further business before the committee, the Chairman adjourned the meeting at 3:47 p.m.

RESPECTFULLY SUBMITTED:

Darlene Rubin

Committee Secretary

APPROVED BY:

Assemblywoman Ellen Koivisto, Chairman

DATE: