MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-Second Session
February 5, 2003
The Committee on Government Affairswas called to order at 8:34a.m., on Wednesday, February 5, 2003. Chairman Mark Manendo presided in Room 3143 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:
Mr. Mark Manendo, Chairman
Mr. Wendell P. Williams, Vice Chairman
Mr. Kelvin Atkinson
Mr. Chad Christensen
Mr. Tom Collins
Mr. Pete Goicoechea
Mr. Tom Grady
Mr. Joe Hardy
Mr. Ron Knecht
Mrs. Ellen Koivisto
Mr. Bob McCleary
Ms. Peggy Pierce
Ms. Valerie Weber
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Assemblywoman Barbara Buckley, District No. 8
Assemblywoman Dawn Gibbons, District No. 25
STAFF MEMBERS PRESENT:
Susan Scholley, Committee Policy Analyst
Eileen O'Grady, Committee Counsel
Rosemary Zienter, Committee Secretary
OTHERS PRESENT:
Dan O’Brien, Manager, Nevada State Public Works Board
Gus Nunez, Deputy Manager, Professional Services, Nevada State Public Works Board
Mr. Evan Dale, Deputy Manager for Fiscal Administrative Services, Nevada State Public Works Board
James W. Morgan, Associate Director, Government Affairs, Novartis Pharmaceuticals Corporation.
Frankie Sue Del Papa, Former Attorney General, State of Nevada
Larry Matheis, Nevada State Medical Director, Nevada State Medical Association
Scott MacKenzie, Executive Director, State of Nevada Employees Association, American Federation of State, County, and Municipal Employees (AFSCME), Local 4041
Ron Dreher, President, Peace Officers Research Association of Nevada
Stephanie Licht, Legislative Consultant, Elko County
Chairman Manendo welcomed everyone present. He announced first on the agenda would be the Public Works Board overview.
Dan O’Brien, Manager, State Public Works Board, introduced Mr. Gus Nunez, Deputy Manager, Professional Services, Nevada State Public Works Board, and Evan Dale, Deputy Manager for Fiscal and Administrative Services, Nevada State Public Works Board. Mr. O’Brien thanked the Committee for allowing him the opportunity to provide an overview of and insight into the Public Works Board.
Mr. O’Brien explained that the Public Works Board was comprised of seven board members appointed by the Governor. He referred the Committee to the Nevada State Public Works Book 2003-2005 (Exhibit C) and the organizational chart located on the last page. He stated that Sean Carnahan with Granite Construction, was currently Chairman of the Public Works Board; John Breternitz, architect and contractor was the Vice Chairman; Renny Ashleman, Attorney; John Comeaux, Director of Administration; Jesse Paulk, retired general contractor; Bob Weber, formerly the building official for Clark County; and Joanne Blystone, previous owner of a construction-equipment business. Mr. O’Brien stated that the board represented a good cross-section of the construction industry, including architects, engineers, and attorneys.
Mr. O’Brien recapped issues and problems from the last biennium and last Legislature. He explained there were a number of issues with the Public Works Board that pertained to projects not completed in a timely manner. Fortunately, the Lied Library at the University of Nevada, Las Vegas, High Desert State Prison in Indian Springs, and the Southern Nevada Veterans’ Home in Boulder City, were now occupied and being used by the citizens of the state of Nevada. Two of the projects were in litigation and would probably be in litigation for a few years. A goal during the next biennium would be to get the existing lawsuits resolved, and more information on this is available in the handout.
Mr. O’Brien explained that the Public Works Board’s responsibilities and statutory responsibilities were outlined in the overview provided in the budget narratives in Sections 5 and 6 of the Nevada State Public Works Board 2003-2005 handout (Exhibit C). The Public Works Board, comprised of 49 fulltime employees, filled positions of engineers and architects who served as project managers, project coordinators, inspectors, and the administrative staff. The Board oversees all of the design and construction for state facilities on state property. In addition, the Board serves as Building Official for the state of Nevada that included the plan review and inspection of major construction projects. Mr. O’Brien stated that the summary of the Governor’s recommended capital improvement program could be found in Section 4 of the handout (Exhibit C). The recommended dollar amount this session would total approximately $243 million. In addition, approximately $29 million worth of maintenance projects were proposed. Those projects included Americans with Disabilities Act (ADA) upgrades and mechanical systems. Mr. O’Brien said that the Governor’s number one project was the 150-bed psychiatric hospital with land acquisition in Las Vegas. He explained that the Dini Townsend Hospital in Reno was a prototype for the Las Vegas psychiatric facility.
Chairman Manendo asked for clarification of the ADA requirements and upgrades and questioned what buildings were being referred to. Mr. O’Brien explained that the ADA projects could be in response to complaints from the public, and specific projects could include bathroom upgrades and accessibility issues in buildings. One accessibility issue was the Nevada State Museum in Carson City where the handicapped used a freight elevator to access the building. A project was proposed for the museum that provides a new entrance and proper ADA access.
Chairman Manendo questioned what other buildings were in need of compliance aside from the museum. Gus Nunez, Deputy Manager, Professional Services, State Public Works Board, responded that those facilities included both mental health campuses; one in southern Nevada located adjacent to West Charleston Street and the second, in northern Nevada on Galletti Way. The requirements for finishing these projects were based on the current programming being used for those facilities. When programs changed and accessibility needs changed, it could have an impact on the future. A feasibility study would be done at the Ely Railroad Museum to determine exactly to what extent accessibility could be provided in the future.
Mr. O’Brien reiterated that the Capital Improvement Program was a broad program and included maintenance and construction for new facilities. Also included were the University of Nevada, Las Vegas Science and Engineering Building, approved by the last Legislature for design and some infrastructure improvements. When completed the cost would total approximately $75 million.
Assemblyman Knecht asked where in tab 4 (Exhibit C) the references were to the UNLV project. Mr. O’Brien responded that C-23, page 2 of 10, in the Summary List (Exhibit C) referenced the UNLV Science Engineering and Technology Complex in Las Vegas. As could be seen, there existed a little over $35 million in state funding, which would be bonding, and $25 million provided by the University.
Mr. O’Brien stated that another significant project was the Nevada Emergency Operations Center located in Carson City. The Emergency Operations Center is currently housed in the basement of the old National Guard Armory Building on Carson Street. He said that before they could be moved out of that property, there needed to be some place to relocate them and an emergency operations center was not something that could be leased from the local private market. The proposal would be to build a new facility located where the National Guard was located currently on Edmonds Drive. It was hoped federal money would be available for this construction, but there had been nothing available to date; however, the search was still underway.
Mr. O’Brien outlined other projects, including a new Department of Motor Vehicle (DMV) building located in North Las Vegas. The building was 23,000 square feet and cost a little over $9 million. The Health Science Building on West Charleston in Las Vegas was included in the construction money for the Capital Improvement Programs for 2003-2005. The programming and design were all approved in the 2001 Capital Improvement Program and equaled $20 million. The building measured 85,000 square feet and was an asset to the Community College System. He indicated that the proposed budget outlined maintenance projects that would equal approximately $29 million.
Mr. O’Brien referenced C50 and C51 (Exhibit C), and explained that those were the lease purchase of two buildings, one for Conservation and Natural Resources and one for Human Resources. The two buildings would be constructed on the Capitol Complex in Carson City. In addition, the lease purchase process approved in the last Legislature would be utilized. The projects would be a positive project for the state of Nevada because Conservation and Natural Resources facilities and Human Resources agencies were scattered all over the city, and because the buildings would be owned by the state when completed.
Mr. O’Brien reminded the Committee that the Public Works Board was responsible for oversight of design and construction of state facilities and served as Building Official. A role not emphasized by the Public Works Board was that of the Building Official. During the last two years they had focused on what the Board’s responsibilities were in that area. New policies and procedures had been established; project managers had been separated from inspectors because the Public Works Board “wore two hats.” Regarding budget, the inspectors were there to make sure that the health, safety and welfare of the public was protected. Sometimes those functions did not always mesh together and for that reason they had been separated. There were three high profile projects not completed on time. The projects were completed and possibly, for the first time in the state of Nevada, the contractor was fired and another contractor was brought on board to complete the project. Because of those issues, the last legislative session placed emphasis on the qualification of bidders process. The Government Affairs Committee last session was instrumental in hearing testimony and getting changes passed.
Assemblyman Knecht stated that structural separation in the organization had been made and commended Mr. O’Brien for his efforts. He then asked Mr. O’Brien to expand on the subject since the two mandates presented a possible conflict.
Mr. O’Brien responded that because they were one agency, management of the two functions was divided between Mr. Nunez and Mr. Dale. He further explained that he came from a background of working with building departments and knew how that related and how the public works sector fit in with construction of public works projects. The last Legislature approved the position of Project Manager IV whose purpose would be to oversee the plan check and inspection function. The original intention was to hire a fire protection engineer to fill the position. They were unable to find a fire protection engineer but were considering someone who had building department experience including code adoption experience with the enforcement of codes. Mr. O’Brien explained that this was a key position and the duties were currently being shared between himself and Mr. Nunez, and they were making sure the separation existed. The person hired to fill the Project Manager IV position would be the one that the inspectors and plan checkers answered to directly and would not have anything to do with the construction project management segment. In the attempt to keep those functions separate, they worked very closely with the Nevada State Fire Marshall. Fire Marshals were responsible for the non-structuralized safety review, and the Public Works Board did the mechanical, structural, electrical, and ADA reviews. In addition, as the Building Official, Mr. O’Brien explained that he issued the Certificates of Occupancy after approval by the State Fire Marshall.
Mr. Knecht asked to whom the Project Manager IV would report. Mr. O’Brien replied that it would be Mr. Gus Nunez. Mr. Knecht then commented that the accountability would be traceable through three people to the very top. Mr. O’Brien replied that would be correct.
Assemblyman Collins disclosed that his mother was a retired state employee and for a number of years worked for Public Works. He further commented that building inspectors had improved greatly and hoped Mr. O’Brien would hire the better ones.
Mr. O’Brien indicated that the Legislature was exempt from using the Public Works Board by statute. He returned his comments to the qualification of bidders process and explained it was a major issue in the last Legislature. He stated that the qualification of bidders process had been approved in the 1997 Legislature and modified in the 1999 Legislature. However, the Public Works Board had never adopted the regulations and the program was not implemented. Strength was added to the legislation during the last session and the regulations were adopted to implement the qualification of bidders. A couple of contractors were disqualified due to the new regulations.
Mr. O’Brien explained the facilities analysis group comprised of three individuals who inspected state facilities and developed reports recommending those things that needed to be looked at.
Assemblyman Goicoechea stated that the two buildings, Conservation and Natural Resources and the Human Resources buildings were both 120,000-square-foot buildings, built on the same site, one costing $3 million and one costing $10 million. He commented that one was either overbuilt or one underbuilt. He asked Mr. O’Brien to comment.
Mr. O’Brien responded that the Nevada Department of Conservation and Natural Resources Building was located in leased space and they could, through their operating budgets, afford more money toward the payment of the debt on the building and the lease purchase. That was why the $3 million figure was attached to the Conservation and Natural Resources Building. It was basically additional money that was buying down that lease purchase. The human resources project was housed in state-owned buildings scattered everywhere and they were not in leased property. Therefore, they would not have the current lease payments that were as high as Conservation and Natural Resources. The $10 million was being used to buy down the lease purchase.
Mr. Goicoechea commented that this would mean another $7 million was being put into the Conservation and Natural Resources Building. Mr. O’Brien explained that the cost of the two buildings projects would be in the same range, for $23 million total. The difference was that Conservation and Natural Resources pay leases which would retire the debt and the money was already in the operating budget. Human Resources did not have that now and that was why there was a difference between the $3 million and $10 million.
Assemblywoman Pierce asked if a site had been chosen in Las Vegas for the new Psychiatric Hospital. Mr. O’Brien indicated it had been chosen, and the location would be on the southern extension of the current West Charleston campus. He further explained that it was school trust property that included a component in the budget to reimburse the school trust fund approximately $7 million.
Ms. Pierce asked for an explanation on the types of conservation measures used in construction of buildings currently versus ten years ago. Mr. O’Brien commented that mechanical systems were placed in buildings that were energy efficient. They had also looked at landscaping to conserve energy. The Grant Sawyer Building was changed to conserve water by doing away with much of the grass landscaping.
Mr. Nunez explained that there was a national program that is very stringent and the facilities meet or exceed their requirements for energy conservation.
Assemblywoman Weber asked what the total number of buildings were being maintained by Mr. O’Brien’s division and if he would clarify if the three inspectors were assigned to projects statewide. She also asked if they went out proactively to inspect or if they inspected based on complaints only. She inquired if they would also recommend needed maintenance.
Mr. O’Brien commented that his division did not maintain buildings. Buildings and Grounds maintained some, and other state buildings were maintained by the agencies themselves. The three employees with the facilities group responded to complaints and attempted to visit all buildings within a certain time frame. The reports were streamlined, and the time frame goal established for site visits were exceeded. Mr. O’Brien clarified that there were 15 other inspectors who were responsible for new construction. The three other inspectors were responsible for focusing on existing buildings.
Assemblyman Hardy commented that he was from Boulder City and that numerous problems were inherited with the Southern Nevada Veterans’ Home in Boulder City. He asked for clarification on coordination of regulations, citing the existence of different regulations for different facilities. Mr. Hardy asked if the Public Works Board had the final say in regulations or if there were sets of regulations that had to be coordinated. He also asked if there was a pre-inspection of the bidding process so that the regulations would come together.
Mr. O’Brien responded that he wished he had the final say because of the difficulty in attempting to comply with the various agency inspections and codes. He concurred that there was a lot of confusion regarding who was in charge. To alleviate some of those issues, a good rapport had been established with the new State Fire Marshall. Issues common to both agencies were discussed with an attempt to resolve them. It was agreed that the Public Works Board issued, Certificates of Occupancy for state facilities; previously they were issued both by the Public Works Board and the State Fire Marshall. There had not been authority for the State Fire Marshall to issue them but there was through the building code for the Building Official, Mr. O’Brien. There were ongoing conflicts with state health life safety and federal life safety because of their specific codes. Some code conflicts were resolved with their input because federal monies were involved.
Mr. Hardy asked if the discussions were pre-architectural, pre-design, so that a building would not sit for 18 months and face three opening dates. Mr. O’Brien responded no and yes. Prior to the last Legislature, it was discovered that a good check of the plans was not done up front. If the architect was designing something and something was missed or it was designed improperly, finding it out in the field during construction would cause great difficulties. In the past year they had started implementing a plan check. They had attempted to make sure everyone reviewed and approved the plans up front.
Assemblyman Grady asked if it would be feasible for the State Fire Marshall’s Office to be combined under Mr. O’Brien’s heading. Mr. O’Brien responded that if they were in the same facility, the coordination would work much better. He explained that all functions of the State Fire Marshall were not functions performed by him as Building Official. Fire inspections and training were not something Public Works was involved in.
Mr. Grady asked if Public Works inspected University facilities regarding energy-efficient programs. Mr. Nunez responded that the buildings constructed through the Capital Improvement Program were designed in accordance with Public Works’ adopted standards. However, the University did sometimes utilize their own funding and in those circumstances, Public Works only checked for compliance with codes adopted by Public Works and inspected in accordance with the approved plans.
Assemblywoman Pierce commented that the proposed psychiatric hospital to be located in Las Vegas was in her district. She requested a map of the site and a time line on the construction. Mr. O’Brien indicated that they would get Ms. Pierce the information requested, including a feasibility study.
Mr. Knecht asked whether, given statewide ADA projects, would it be the Public Works Board’s interpretation that ADA was legally binding on the state of Nevada. Mr. O’Brien responded that Nevada Revised Statues (NRS) stated “that we shall comply with ADA provisions.”
Mr. Knecht asked what NRS citation makes ADA applicable to the state of Nevada. Mr. O’Brien replied that it was NRS 338.
Mr. Knecht asked Chairman Manendo if he would consider asking parties who would be making presentations to the Committee, if they would distribute the prepared material prior to the meeting, even if it was just the day before, because it would be helpful to digest the information and have adequate time to consider questions and concerns.
Chairman Manendo indicated an effort would be made to notify those coming before the Committee to make presentations available prior to meetings, when possible.
Chairman Manendo acknowledged Evan Dale, Deputy Manager, State of Nevada Public Works Board, and asked if he had any information to add.
Mr. Dale commented it was his first year with Public Works and his responsibility was in the area of finance.
Assemblywoman Weber indicated that she enjoyed publications and asked if there was a place to track the projects on a Web site. Mr. O’Brien responded that the status report of projects could be found on the Web site. It also included Notification of Lease Purchase and Request for Qualifications. Consultant selection and projects going out to bid were also included.
Mr. Collins stated that with the time crunch, presentations to the Committee, and hearing bills, he would recommend that those members with individual needs from agencies, such as Public Works, pursue them and share the information with Committee members.
Chairman Manendo thanked the presenters and noted for the record that former Attorney General Frankie Sue del Papa had entered the hearing room. He introduced A.B. 3 and the primary sponsor, Assemblywoman Dawn Gibbons, District No. 25. He indicated that the bill was pre-filed on January 27, 2003.
Assembly Bill 3: Requires paid leave of absence of certain duration for public officers and employees who donate bone marrow or certain organs. (BDR 23-147)
Mrs. Gibbons explained that A.B. 3 was introduced to encourage more donor awareness. Support had been offered from Novartis Pharmaceuticals Corporation, the Governor’s Office, and particularly from the Attorney General’s Office, and from former Attorney General Frankie Sue Del Papa. The bill was passed in four other states: Utah, California, Wisconsin, and Missouri. Mrs. Gibbons introduced James W. Morgan, Associate Director, Government Affairs, Novartis Pharmaceuticals Corporation.
Mr. Morgan explained that Novartis was a research and development pharmaceutical company located in the United States. He brought to the attention of the Committee members the article in the morning paper that told the story of a 6-month-old Carson City baby waiting for a liver transplant. He indicated that without the transplant, the baby would die. The baby was one out of about 80,000 people currently waiting for an organ or tissue donation. Equally startling was that the number increased by approximately 100 per day. The purpose of A.B. 3 was to increase the number of live donors to relieve the shortage. Mr. Morgan said A.B. 3 would probably not cover all the time necessary for the donation of bone marrow or an organ, but it would reduce a significant barrier making it easier for state employees to participate in the process, since their continued income was the concern. A rough computation (Exhibit D) was developed to supply the Committee with a sense of the cost to provide this benefit. In 2001 there were 6,400 live organ donors in the United States (U.S.). According to the U.S. Census Bureau in 2001, there were 209 million people, 18 years and older. Using those figures it was determined that .003 percent of the U.S. population donated live organs. According to the research department of the Legislative Counsel Bureau (LCB) who just completed a survey of the Department of Personnel and the University and Community College Systems, there were just over 17,000 State employees in Nevada. “If you took the .003 percent of the 17,000 you would end up with 0.54 persons who would participate in the program. That is about one-half a person per year. According to figures by LCB the weighted average annual salary is $41,000 or about $112.00 a day. Thirty days would be about $3,300; 0.54 of the 30 days would end up being about $1,800 to cover the cost of A.B. 3 in a year.” Mr. Morgan concluded his comments by urging passage of the bill.
Ms. Del Papa thanked the Committee members for their time and indicated that she was present in the capacity of co chair of the Organ Donor Task Force. She was privileged to co chair the organization over the past few years with Assemblywoman Dawn Gibbons. She believed the bill had the ability to make a statement for the state of Nevada; that statement would be that organ and tissue donation was important. She said that organ donation was a gift of life, one that was incredible and absolutely necessary. She expressed that her presence was to show support and to ask the Committee for their consideration of A.B. 3.
Assemblyman Knecht stated that he needed to make his disclosure and declaration:
I am currently on leave from my position as an economist with the Public Utilities Commission and will return to that job after the session is over. Therefore, this bill would affect my employment. Nonetheless, I believe affirmatively and strongly that I have no conflict or problem voting on it and on any amendments with nothing but the public interest in mind; and that is what I plan to do.
Mr. Knecht thanked former Attorney General Del Papa, Mr. Morgan, and Mrs. Gibbons for their presentation. He explained he had concern with page 2, line 26, of the bill and stated that he would feel more comfortable with the bill if, instead of “another type of leave,” we substituted “annual leave.” Under the current language there seemed to be no real cost to the employee since sick leave was something given in liberal amounts, it accrued, and people seldom used it all during their careers. He explained that it was not his intention to diminish the willingness of public employees to donate organs. If the donation was not made, he hoped the repayment would be made out of leave time that had cost to the employee or out of the cash reimbursement as provided in the bill. He asked if the specification of “annual leave”, also known as vacation, instead of “another type of leave” would be considered.
Mrs. Gibbons responded that she wanted to wait until the representative from the State of Nevada Employees Association had an opportunity to determine if they would be comfortable with the suggested change.
Mrs. Gibbons commented that she wanted to address the amendment. In an attempt to not put a burden on county and local government, they were asking the Committee to consider deleting from A.B. 3, “or of a political subdivision or an agency of a political subdivision” found on Page 1, line 4, of Exhibit E. She explained that the proposed change would make those in Washoe County, the City of Reno, and the City of Las Vegas more supportive of the bill. She also indicated that Assemblywoman Weber would offer the amendment (Exhibit F) pertaining to confidentiality.
Chairman Manendo indicated that the Committee had not yet had the opportunity to see a fiscal note. However, the Committee would take under consideration the proposed amendment offered by Mrs. Gibbons. He stated members would be interested to see what the fiscal note would be from some of the local jurisdictions. Since it was good legislation, the Committee would like to include as many jurisdictions as possible.
Chairman Manendo stated for the record he and Mrs. Koivisto also needed to disclose that they were both state employees.
Assemblyman Collins asked if procedurally, the Committee members would make their disclosures prior to a vote or at the time of a vote being called. He commented that if a vote were never taken on the bill, there would be no need to make a disclosure.
Chairman Manendo responded that he thought some people would want their disclosure on the record.
Mr. Collins asked if Committee members should remove themselves from the room if there were a conflict of interest.
Chairman Manendo replied that he believed disclosure would suffice, and Committee members could make the determination for themselves.
Assemblyman Atkinson explained that he was a Clark County government employee. Since there was a request to amend the bill to remove county and local government employees (Exhibit E), he would not need to make his disclosure. Mr. Atkinson also voiced concern about taking annual leave out of the bill because, if employees exhausted sick leave, they would then not be able to be a donor.
Assemblywoman Weber asked Mrs. Gibbons to repeat her earlier request. Mrs. Gibbons responded that the confidentiality clause (Exhibit F) was brought to their attention and recommended by Ms. Weber. The proposal would be to add in subsection 8, renumbering the existing subsection 8 to subsection 9, to read as follows:
8. The statement required by subsection 4 and any other information concerning the medical condition of the public officer or employee that is provided to the employer is confidential and must not be made available for public inspection unless subpoenaed by a court of competent jurisdiction.
Chairman Manendo asked if the proposed amendment (Exhibit F) was in writing.
Mrs. Gibbons stated it had been passed out to the Committee members.
Ms. Weber disclosed that she used to be the state coordinator for the National Marrow Donor Program in Nevada. She expressed that the purpose behind the amendment read by Mrs. Gibbons was to protect the anonymity between the donor and recipient. She indicated that most donations would be family member donations and questioned if that information was included in the statistics.
Mr. Morgan commented that the statistics included just employees and what it would take for an employee to take 30 days off.
Ms. Weber responded that her question related to the fiscal side and wondered what the impact would be for the state if, in the event of a transplant, an employee were taken away from work.
Mr. Morgan replied that the attempt was to illustrate just what it would cost the state in terms of payroll for an individual to take 30 days to participate in an organ donation.
Ms. Weber asked for clarification on the $1,800, and Mr. Morgan stated $1,800 would be the cost for one person. Ms. Weber questioned if that was projected out per calendar year, and Mr. Morgan replied that would be one 0.54 of a person per year.
Assemblyman Hardy commented that the confidentiality issues in the medical world had become somewhat problematic. With the Health Insurance Portability and Accountability Act (HIPAA) requirements, looking in Section 4 and at the amendment, Mr. Hardy questioned if the concept of confidentiality would be stringent enough as amended. He asked if there would be a provision to sign a waiver or release of information that would protect the state according to the HIPAA requirements. He further questioned if a person undergoing self-donation, the act of donating bone marrow to one’s self to be used after chemotherapy or radiation combined, would be allowed to have another seven days after the bone marrow had been harvested and given back.
Mrs. Gibbons explained that the language proposed and submitted to the Committee was drafted by the LCB who were very familiar with state and federal law. She commented that the extra seven days would apply to someone undergoing self-donation.
Mr. Hardy suggested that perhaps the Nevada State Medical Director of the Nevada State Medical Association could contribute if invited to testify.
Ms. Del Papa commented that Larry Matheis, Nevada State Medical Director, had been a wonderful asset during his very active commitment with the organ donor committee. She indicated that she would be happy to seek his input.
Assemblyman Williams pointed out his concerns with Section 1, Subsection 2, Line 12, “ . . . but in no case to exceed . . . ” and asked what would happen if complications arose with the individual making the donation that would cause him or her to exceed the time allotted. Mr. Williams posed his second question asking what would happen if a malpractice incident occurred involving a donor situation. He questioned who would pay and what would happen to the donor whose life becomes disrupted because of malpractice.
Ms. Del Papa responded that with any piece of legislation it would be difficult to cover every possible contingency. Limits were set in the bill to dictate normal circumstances. Most state employees had access to catastrophic leave and other mechanisms that would cover a situation beyond what the bill covered. It would be difficult to foresee all issues that could arise. She explained that the bill was patterned after the language used by the other four states and believed it would be the most palatable and represented a significant step forward by the state of Nevada.
Mr. Williams stated that he agreed that most legislation would contain items that could not be addressed, but the issues of donor complications and malpractice were major concerns that would necessitate a review. Before the Committee could move forward with A.B. 3 certain stipulations needed to be included to protect the employees who would volunteer to donate their organs. Mr. Williams concluded that neither of his previous questions had been addressed.
Ms. Del Papa responded that everyone shared the concerns voiced by Assemblyman Williams. However, if an attempt were made to cover all of the concerns it would overcomplicate what the bill was intended to address. Medical malpractice was appropriately addressed in other parts of the Nevada Revised Statutes (NRS). She asked why medical malpractice would be addressed differently for a situation involving an organ donor than for any other circumstance. She suggested that the Committee look at the purpose of the bill that was to express the importance of organ donations. Equally important was the message that the Nevada Legislature supported organ donations and recognized the substantial need for organ donations. She stated that passage of A.B. 3 would put the state of Nevada in a leadership role.
Mr. Williams commented that he agreed that every possible contingency could not be covered, but the concerns raised were important and needed further review. He explained that the Governor had called a special session to deal with malpractice and after that special session it was agreed that the malpractice issue was not adequately addressed or solved. He suggested that after malpractice was adequately addressed and the citizens of the state could be assured that the malpractice issue was resolved then perhaps A.B. 3 could be heard. He agreed that organ donation was an important issue, but believed it would be unwise to put the lives and health of the state public employees at risk of being in a position that could cause more harm than good. Mr. Williams suggested that the legislature review A.B. 3 after the malpractice issues were addressed.
Chairman Manendo stated that there were a number of issues in the legislation that needed to be considered.
Ms. Del Papa stated that there was sufficient legislative history if an issue would come up pertaining to the bill. Complications from any type of medical problem resulting from organ donations would be covered the same as all other medical issues and the donor would have the right to legally proceed should the circumstances be justified. The legislation before the Committee was strictly intended to encourage organ donation and was not proposed to go beyond those boundaries. She stated that she understood Mr. Williams’ concerns and believed they were legitimate concerns, however they were not appropriate concerns for A.B. 3. She offered to work with the Legislative Counsel Bureau (LCB) to review the issues raised by the various questions to guarantee that the bill covered all concerns.
Mr. Williams stated that he would be willing to vote for the bill when his two questions could be answered. He asked what would happen to the employee who donated bone marrow and suffered complications that required them to be absent from work for more than 7 days, and what would happen to the employee who donated an organ and because of complications required more than 30 days’ leave. He further questioned who would pay their salary, and who would pay for their medical expenses beyond the 7 or 30 days. Mr. Williams stated that his second question was if there was a malpractice situation, what would happen to the donors, who would pay for their lawyer and who would pay for their treatment. He stated that he would be comfortable with the bill if those two questions could be answered.
Mrs. Gibbons responded that state employees do have sick leave and catastrophic leave. She believed those would be available if necessary.
Mr. Williams asked that the first question be addressed and asked what would happen should an employee need more than the seven days.
Mrs. Gibbons replied that State of Nevada employees had sick leave and catastrophic care.
Mr. Williams questioned what would happen if the public employee had only four days of sick leave accumulated.
Mrs. Gibbons commented that one could find many scenarios to hinder the legislation; however, the purpose for the legislation was to help people. She stated that many things could be brought forward to “kill” the bill, but hoped the state of Nevada would become a leader in the health field. She reminded the Committee that four other states had adopted the bill.
Mr. Williams asked how those states handled the issues he raised. He explained that he did not want to bring forward issues to kill the bill and that he wanted to pass the bill but wanted answers to his questions: What happens when a person exceeds the 7 or 30 days? Who would pay for that, and who would pay the employee’s salary if there were complications? If they ran into major complications through malpractice, who would pay for that and an attorney to represent them? He explained that it was not his attempt to tear the bill apart; however, he would not vote on any bill unless his questions could be answered. Mr. Williams further commented that if the questions could not be answered today, perhaps they could be answered another day.
Mrs. Gibbons responded by stating that she felt Ms. Del Papa, Mr. Morgan, and she had attempted to respond to Assemblyman Williams concerns. She believed the medical malpractice issue would be covered in another statute.
Mr. Morgan responded that anything in excess of the 7 and 30 days would be handled in much the same way current sick leave or any other surgery needed would be handled. For example, if an employee only had 4 sick-leave days and a medical procedure would require time off beyond the 4 days, then however that was handled, currently, against the 4 days of sick leave, the same would “kick-in” after 30 days for an organ transplant or after 7 days for a bone marrow donation. He explained that if an employee was an organ transplant donor and the procedure took 40 days, A.B. 3 would cover 30 of those, 4 would be covered by sick leave, and the remaining 6 would be covered by whatever mechanism currently existed in the state of Nevada. Mr. Morgan commented that something must exist currently because no one would go into the hospital room, remove the employee, and send them back to work.
Assemblyman Williams indicated that he understood that, however, the bill did not state that.
Mr. Morgan agreed that the bill did not state that, but that the bill was intended to provide at least 30 days that might not otherwise have been covered prior to this point.
Mr. Williams asked Mr. Morgan to look at it from his point of view. He explained that if he represented a state employee who asked him that question, he would need to be able to answer the question. He stated that it would not be responsible of him to pass a law that he was speculating about. He commented that subsection 2, of Section 1, line 12, stated in part “officer or employee but in no case to exceed.” With the language “no case to exceed” the law would dictate “in no case to exceed.” It would not matter what the City of Las Vegas, the Department of Transportation, or the state had as their policies, the law would state “in no case to exceed 7 or 30 days.” And, if passed, this would become law.
Mr. Morgan explained that the language referred to the antecedent Section 1. On line 9 it states, “the leave described in subsection 1 must be granted . . . and in no case exceed.” The leave described would be for part of bone marrow or an individual’s entire organ and any time the leave required would exceed that, another piece of the state employee’s benefit would “kick-in.”
Mr. Williams commented that the specific language needed to be stated in the bill.
Former Attorney General Frankie Sue Del Papa commented that she would suggest looking at subsection 6 where it states, “No part of this section prohibits an employer, after a public officer or employee has exhausted the mandatory paid leave described in subsection 2, from allowing the public officer or employee to: (a) Take unpaid leave; (b) Use annual vacation time, compensatory time or sick leave time.” She suggested that catastrophic leave be added in that section to cover all of the contingencies. She stated that if the entire package were looked at, all of the concerns would be addressed.
Mr. Williams commented that it felt good and sounded good, but the issues were not covered in the bill. He asked for a response to the question about the individual who might fall victim to malpractice. He pointed out that the state of Nevada did not have a solid position on malpractice and wondered how this bill could supersede that. He stated that the intent of A.B. 3 was to be applauded and he commended those who brought the bill forward; but there needed to be an assurance that everybody would be protected.
Assemblywoman Koivisto commented that she would be speaking as a state employee and play “devil’s advocate.” Classified employees with the state of Nevada earn ten hours per month in sick leave. The agency where she worked had 900 plus classified employees and the catastrophic leave account was quite often empty. She explained that she liked the legislation but would feel more comfortable if there were a provision for the state employees to have time under the bill in the event that they needed more time rather than having to exhaust their personal leave accounts because the leave was not really extensive enough. If employees got sick, their leave could be diminished quickly.
Ms. Del Papa responded that the language contained in the bill was patterned after the federal language and the language of the other four states that passed the bill. The question raised would be a public policy decision that should be taken into consideration. The bill presented should be looked at as a first step. It should be a direction the state, from a public policy standpoint, could take, both in terms of the statement it made regarding organ donation and out of concern for state employees, realizing that organ donation was voluntary. Obviously, no one could predict the future or complications that could arise. The attempt was to put the organ situation in context as it related to the country and the state of Nevada. Many issues raised could be addressed very simply. The bill as presented was a simple bill but it was made more complicated than necessary.
Assemblyman Knecht commented that organ donation was an act of altruism. An individual would choose freely to make the commitment and sacrifice. The bill’s essence confirmed that the state of Nevada would assume part of the burden that went with organ donation by picking up part of the burden in order to encourage it. He stated he felt that was an important commitment to make. The objections concerning complications and malpractice amounted to ascertaining that if the state of Nevada was going to encourage organ donation by giving additional leave, then somehow the state of Nevada incurred an obligation to indemnify altruistic individuals and protect them against all possible outcomes. That reasoning did not logically follow and it would defeat the purpose of the bill. What was offered was a measured, reasonable response which would indicate how far the state of Nevada would go to encourage organ donation, and the people of Nevada would pick up part of the burden. Regarding complications and malpractice, Mr. Knecht believed the former Attorney General, Assemblywoman Gibbons, and Mr. Morgan attempted to make the point that remedies were already in place and they were no way vitiated, no way diminished, and no way affected by this bill. Therefore, if those situations arose, there were existing remedies that would provide for a way of addressing them. He indicated that he did not see the bill diminishing those people or discouraging organ donation. In determining if this was a minor contingency, Mr. Knecht stated that he would agree that there was a very minor probability of occurrence. If it did occur, it would become a large consequence contingency but it had a minor probability. What could not be done effectively in legislation would be to address completely anew, every time every minor contingency occurred. It was for that reason malpractice laws and catastrophic leave provisions were in place. He urged support of the law citing reasons the presenters had very well enunciated.
Larry Matheis, Executive Director, Nevada State Medical Association, suggested that any questions about organ and tissue donation procedures should be asked of the two experts on the Committee, Dr. Hardy and Ms. Weber. He commented that the bill before the Committee was a small but positive bill moving towards dealing with one of the two central problems in maximizing what capacity was currently in the medical care system. It made use of not only blood, which for generations had been understood to have an enormous capacity to save people’s lives, but now with organs, tissues, and bone marrow there existed a growing capacity to not only save lives of people, but made those lives and the lifestyle worth living. The problems were twofold in making maximum use of organ and bone marrow donations. One would be to make sure we had the capacity of the specialized physicians, of the units, of the back-up teams, which were ongoing challenges for a state like Nevada. The other part would be to have sufficient supply of the organs, tissue, and necessary substances from humans that would be necessary for the doctors and teams to use. In abundant supply were the growing numbers of patients who needed the services. Since Nevada passed an organ donor act last session, the creation of the Nevada Tissue and Organ Donor Task Force, the incredible work of Assemblywoman Dawn Gibbons and former Nevada Attorney General Frankie Sue Del Papa, there were a lot of Nevadans who had benefited. Mr. Matheis suggested that A.B. 3 was another step in a public policy that would remove barriers which encouraged people who wanted to make the choice to provide organ or tissue to be able to do so in a more economic way. He commented that the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) had caused a great deal of chaos in the health care system. The most recent problems resulted in a massive set of rules on patient-record privacy, which superceded the state laws and traditions and would have to be incorporated over the next few months into the health care system. Mr. Matheis stated that he believed the bill would need to comply with HIPAA and suggested there would not be a problem putting in the bill that it must comply with those rules. He indicated that he would work with LCB and the sponsors of the bill to make sure the confidentiality requirements of the federal law would be covered. He indicated that he agreed with Ms. Del Papa’s interpretation of the law and would recommend that if the Committee had questions about those individual circumstances they could seek clarification from the legal staff of the LCB.
Scott MacKenzie, Executive Director, State of Nevada Employees Association (SNEA), and the American Federation of State, County, and Municipal Employees (AFSCME), Local 4041, stated support of the legislation. He explained that in conversation with his staff it was brought to his attention that situations had arisen where state employees wanted to help a child in need of a bone marrow donation or organ donation and they were not able to do so because of the constraints in their employment. He suggested that the question should be how to protect people so they would get the necessary time off, especially if medical complications arose. One untapped resource would be the sacrificed medical leave of state retirees. Mr. Mackenzie stated that his constituents had asked him what happened to that time. He suggested that perhaps the unused medical leave could be placed into a fund to be available to assist employees who were willing to make an organ or bone marrow donation. He expressed that state employees were concerned that when they were able to return to employment, they wanted to be re-employed as opposed to losing their employment while attempting to do a good deed. The other concerns appeared to be quite complex and the state should look at them as a whole. He stated that he did not believe they could be addressed in the bill.
Ron Dreher, President, Peace Officers Research Association of Nevada, explained that his organization represented over 26 professional peace officer associations throughout the state which included local government and state employees. He stated that they supported A.B. 3. He suggested that the bill would encourage individuals who would not otherwise donate, to donate organs or bone marrow. The bill provided an incentive to donate. He stated that in his opinion the bill already took into consideration those items of concern voiced by Assemblyman Williams. In negotiating several contracts for police associations throughout the state, Mr. Dreher believed the employee would donate and use their own leave, if inclined to be a donor. The bill would serve as an incentive to those employees on the verge of making the decision of whether or not to be a donor. He explained that employees had sick leave, vacation leave, compensatory time; and most local governments did have a form of catastrophic leave such as state employees had. Mr. Dreher concluded his comments by stating that on behalf of the association statewide, and on behalf of the professional law enforcement associations, he encouraged and urged the Committee to support the bill.
Stephanie Licht, Legislative Consultant, Elko County, commented that she was of the same opinion as Assemblyman Grady who questioned the absence of the fiscal note and how the bill would effect local government. She stated that the proposed amendment (Exhibit E) would probably take care of her concerns.
Chairman Manendo noted that no one had signed to testify against A.B. 3 and asked if anyone present wished to speak in opposition of the bill. No one came forward.
Assemblywoman Weber commented that the decision to become a donor was a lengthy process. She pointed out that bone marrow donations are not performed in the state of Nevada and therefore, a donor must travel out of the state. She questioned if the seven days included the day or two required for evaluation.
Ms. Del Papa stated that in response to Ms. Weber’s question, the Committee should look at subsection 4 of Section 1 in A.B. 3 where the eligibility determination was addressed. In her opinion, the donor would have already gone through the evaluation phase and made the determination to move forward.
Ms. Weber summarized Ms. Del Papa’s response and concluded that the individual would be required to utilize their paid leave in order to take time off from work for the pre-evaluation.
Ms. Del Papa stated that would be the way she interpreted the language of the bill.
Assemblyman Williams asked if an employee went beyond the designated allotted time in the bill, and other options available to the donor were used, if the fiscal note of the bill would be affected.
Ms. Del Papa suggested that the fiscal note concern be addressed as a public policy concern. She explained that it was not the intent of the bill to “saddle” the state with a huge fiscal note, particularly if it were unnecessary. With limiting the bill to just state employees it would have a few years to see how the bill worked.
Mr. Williams asked if the fiscal note would relate only to state employees.
Ms. Del Papa responded that Mr. Williams was correct based on the proposed amendment to the bill (Exhibit E). She understood that county and city employees wanted to opt out; therefore the bill was restricted just to state employees.
Chairman Manendo stated that he was not certain that the city and county employees themselves made the determination to be excluded. He suggested that their representatives or the city and county jurisdictions might have made the decision. He stated that he believed the intent of the legislation was good and he hoped as many people as possible would be involved in the life-saving measure.
Assemblyman Grady stated that the reason he looked at local government to opt out of the bill was because, due to past experience, the bill could be construed as an unfunded mandate. He explained that there was legislation that states that if it was an unfunded mandate, the state “may” be responsible for incurring the cost if the local government does not have the financial means. He suggested that all local governments should be encouraged to participate on their own. However, he did not want to see the bill hurt by a fiscal note for the local governments on an unfunded mandate. He reiterated that he would encourage every local government to look at the bill very carefully and to opt in on their own.
Chairman Manendo stated that even if the Committee accepted the amendment (Exhibit E), the money committees would take a look at the issue to determine the impact. If the policy committee chose to include the municipalities, and if the state determined they would assume the burden, then the Ways and Means Committee would review the matter.
Assemblyman Knecht commented that page 2 of a handout (Exhibit D) had what he would characterize as a probabilistic cost analysis. Essentially the probability of an event times the consequence of the event had been taken to determine the probabilistic cost. He explained that, being someone who does that kind of work professionally, he believed it was the true cost in a public policy sense. He stated that with regard to the matters of complications and malpractice, he believed it would be appropriate to do the same kind of probabilistic cost analysis for the other contingencies by taking .003 times the probability of a complication times the cost of that. He suggested that the figure would probably be smaller than the $1,843.
Mr. Morgan stated that he believed Mr. Knecht’s assertion would be accurate.
Chairman Manendo encouraged Mrs. Gibbons to meet with Mr. Williams and himself to discuss their concerns. Chairman Manendo stated, for the record, the Committee did not have a fiscal note.
Chairman Manendo adjourned the meeting at 10:56 a.m.
Rosemary Zienter
Committee Secretary
APPROVED BY:
Assemblyman Mark Manendo, Chairman
DATE: