MINUTES OF THE meeting
of the
ASSEMBLY Committee on Health and Human Services
Seventy-Second Session
March 26, 2003
The Committee on Health and Human Serviceswas called to order at 1:37 p.m., on Wednesday, March 26, 2003. Chairwoman Ellen Koivisto presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4412 of the Grant Sawyer State Office Building, Las Vegas, 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, Chairwoman
Ms. Kathy McClain, Vice Chairwoman
Mrs. Sharron Angle
Mr. Joe Hardy
Mr. William Horne
Ms. Sheila Leslie
Mr. Garn Mabey
Ms. Peggy Pierce
Ms. Valerie Weber
Mr. Wendell P. Williams
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Assemblyman David Goldwater, District No. 10
STAFF MEMBERS PRESENT:
Marla McDade Williams, Committee Policy Analyst
Terry Horgan, Committee Secretary
OTHERS PRESENT:
Charles Perry, Executive Director, Nevada Health Care Association
Renny Ashleman, Nevada Health Care Association
Charles Duarte, Administrator, Department of Human Resources, Division of Health Care Financing and Policy
Marcia deBraga, representing Churchill County, Nevada
Reto Gross, Fallon, Nevada
Jeff Braccini, Fallon, Nevada
Buffy Martin, Government Relations Director-Nevada, American Cancer Society
Randall Todd, State Epidemiologist, State Health Division
John Liveratti, Chief, Compliance Unit, Health Care Financing and Policy Division, Department of Human Resources
Leslie Danihel, Chief, Eligibility and Payments Division, Welfare Division, Department of Human Resources
Charles Hilsabeck, Deputy Attorney General, Human Resources Division
Chairwoman Koivisto announced that the bills would be taken out of order to accommodate the Chair of the Assembly Commerce and Labor Committee, sponsor of A.B. 395, and whose Committee meeting began in minutes.
Assembly Bill 395: Provides for assessment of fee on facilities for intermediate care and facilities for skilled nursing. (BDR 38-999)
Assemblyman David Goldwater, Clark County District No. 10, explained that A.B. 395 would require that providers of nursing care in the state of Nevada be paid in full for their services. Current Medicaid reimbursement, he noted, did not fully repay long-term care operators for the actual costs of treating patients, which contributed to the turnover of operators of those facilities and, in some cases, the closure of facilities. Mr. Goldwater indicated that A.B. 395 was designed to help bridge the gap between costs and income.
Charles Perry, Executive Director, Nevada Health Care Association, explained that he represented the majority of the skilled and intermediate nursing care facilities in Nevada. Mr. Perry, reading from prepared text (Exhibit C), pointed out that Nevada, like most states, was experiencing the uncertainties of the economy and the requirement of funding essential services. The Nevada Health Care Association requested A.B. 395, he continued, as a means of increasing federal matching funds for reimbursing the care of Medicaid recipients in Nevada’s skilled and intermediate care nursing facilities. Mr. Perry noted that a new methodology of reimbursing nursing facilities in Nevada was being developed and was scheduled for full implementation at the beginning of the 2004 fiscal year. Its purpose, he mentioned, was to reimburse facilities based upon a more accurate measure of the acuity level of Medicaid recipients and establish a reliable system of funding.
Mr. Perry noted that the success of the “RUG 111 Case Mix” reimbursement system was dependent on adequate funding by the Division of Health Care Financing and Policy, which set the price it would pay based upon the acuity of the patients. He mentioned it was currently estimated that reimbursement to the nursing facilities was $13 to $15 per day less than their actual costs. Mr. Perry added that the “quality improvement fee,” or provider tax, in A.B. 395 would provide funding so that the state of Nevada could pay an appropriate price and would supplement state funds matched by the federal government, but not replace state funding. Mr. Perry noted that similar funding mechanisms were currently in effect in several states and were codified in both federal statutes and the Code of Federal Regulations.
Chairwoman Koivisto commented that the Assembly Health and Human Services Committee had passed a bill during the previous session with a cost-based reimbursement provision, and asked if that was similar to what was under discussion.
Mr. Perry replied that skilled and intermediate nursing homes in Nevada were paid on a “prospective” payment system, which meant that reimbursement was not cost-based in either the Medicaid or Medicare programs.
Renny Ashleman, Nevada Health Care Association, noting that he had a copy of Charles Duarte’s upcoming testimony, stated that the Association agreed, for the most part, with Mr. Duarte’s anticipated remarks. He noted that there might be a need for some technical revisions to the bill, and in that case, he would be happy to work with the Committee and Mr. Duarte.
Charles Duarte, Administrator, Nevada Department of Human Resources, Division of Health Care Financing and Policy, testified that Mr. Perry had accurately described the current situation between the Division and the state’s nursing facilities as it related to reimbursement rates. Rates to those facilities, he added, had been frozen as of October 1, 2001.
Discussing provider taxes, Mr. Duarte agreed that many states used them as a way to provide funds to match federal funds to pay for Medicaid expenditures associated with services. He noted that the Center for Medicaid Services (CMS) was a federal oversight body the Division worked with and that CMS had regulations in place for such taxes and scrutinized them quite closely. Mr. Duarte added that CMS had given a verbal agreement that it would approve the provider tax, but he noted that there was a liability from an old provider tax passed in 1991, never approved by CMS, and subsequently withdrawn in 1995.
Mr. Duarte explained that there was a minor technical stumbling block with respect to intermediate care facilities for the mentally retarded. He commented that those facilities were not separately defined in the Nevada Revised Statutes (NRS) and that, in order to exclude them from the tax, the definition needed clarification and the Division would work with all parties on that issue.
Mr. Duarte added that one final concern had to do with the cost of administrative oversight. The Division would have the responsibility of assuring that the provider tax was broad-based, uniform, and met federal standards. As a result, he wanted language built into the bill so that costs associated with administration of the provider tax, estimated to be approximately $131,000 during the biennium, would be provided for. He indicated that there might be a way to fund those costs through the provider tax methodology, and he wanted to be certain that was addressed.
Assemblywoman Leslie asked whether a state plan change would be required. Mr. Duarte answered that it did require one.
Ms. Leslie inquired how long implementation of the change would take. Mr. Duarte replied that CMS had an expedited process for state plan amendments and that those usually took between 90 and 120 days.
Ms. Leslie noted that Section 14 of A.B. 395 spoke of assessing the fees on July 1 and inquired how that would work.
Mr. Duarte responded that the state had the ability to file a state plan amendment in the fiscal quarter in which the state plan change was implemented. As an example, he noted that if the state were to select an implementation date of July 1, 2003, the state would have until September 30, 2003, in order to submit the state plan change. Mr. Duarte mentioned that public notice on the rate change needed to be given at least 30 days prior to the effective date, so the time frames were a “bit tight.”
Ms. Leslie wanted to know whether there was a provision to pay the state to administer the tax or if the money to pay those expenses would come from the existing budget.
Mr. Duarte explained that he was working with the sponsors of the bill to see if there would be a way to pay for the administration costs through revenues generated by the provider tax itself.
Chairwoman Koivisto, pointing out that the industry was proposing a tax on itself, announced that no vote on A.B. 395 would be taken until the various parties to the bill could present their changes, which she suggested they do by Monday or Tuesday of the next week.
Chairwoman Koivisto turned the meeting over to Vice Chairwoman McClain, who opened the hearing on A.B. 315.
Assembly Bill 315: Requires State Health Officer to analyze information reported by health facilities concerning cancer to determine trends in incidence of cancer. (BDR 40-75)
Assemblywoman Ellen Koivisto, Clark County District No. 14, explained that A.B. 315 required the State Health Officer to analyze the data received by the Cancer Registry to see if any trends existed in the incidence of cancer in a particular area or population of the state. If it were determined that a trend existed, the State Health Officer would be required to work with governmental, educational, and research entities to investigate the trend, advance research into the trend and the cancer identified in the trend, and facilitate the prevention and control of the cancer. The bill also required the Health Division to publish reports and make appropriate uses of the material to identify trends in the incidence of cancer in a particular area or population. Mrs. Koivisto added that the purpose of A.B. 315 was to help change the focus of the Cancer Registry to strengthen the prevention component of the law and add to existing knowledge on the possible causes of cancer.
Marcia deBraga, representing Churchill County, expressed support for A.B. 315, and stated that the bill had been requested because of concerns about the purpose and focus of the state’s Cancer Registry. She reminded Committee members that hearings had been held during the previous legislative session regarding the acute lymphocytic leukemia (ALL) cluster in Fallon. The purpose of the hearings, Mrs. deBraga stated, was to try to bring together available resources and information to look for any possible environmental causes and to help families whose children were suffering from the disease. In the course of the hearings, she noted, it was learned that state law required the State Health Officer, pursuant to regulations of the State Board of Health, to establish and maintain a system for reporting information on cancer. By law, Mrs. deBraga noted, the system had to include a record of the causes of the cases of cancer that occurred in Nevada along with such information concerning the cases as might be appropriate to form the basis for conducting comprehensive epidemiological surveys of cancer and cancer-related diseases in the state and the evaluation of appropriateness of measures for the prevention and control of cancer.
Mrs. deBraga stated that Fallon’s cancer cluster stood out because 16 cases had occurred within 18 months in such a small population. She indicated that the attention received by the cluster was a result of a variety of factors, among them “the showdown between the Environmental Protection Agency (EPA) and Fallon over the high arsenic content of Fallon’s water.” Mrs. deBraga also mentioned that it was learned during the hearings that Nevada’s Cancer Registry was being used as a research tool and that the data in it was at least two years old. In addition, the data had not been analyzed in a manner that would have ever led the Health Division to discover Fallon’s cancer cluster, nor was the Cancer Registry designed to promote a clearly defined manner that could lead to either prevention or control. Mrs. deBraga stated that she was not criticizing Nevada alone, but that other states’ cancer registries, as well as the federal registry, reported data in the same manner. She indicated there was congressional interest in establishment of a national cancer registry and in the creation of a “cancer SWAT team” that would be able to respond quickly and effectively to a cancer cluster. Mrs. deBraga explained that A.B. 315 was a first attempt in that direction on a state level and that it was imperative that the requirement to analyze cancer data be put into law and that the current law be carried out.
The activities assigned to the Centers for Disease Control (CDC) and to Nevada’s cancer reporting laws had a prevention component, she pointed out, and added that if prevention were ever to be achieved or causes found, the state Health Division needed to know as soon as possible when a statistical abnormality appeared to be occurring and where it was happening. A requirement that those elements be reported was already in state law, she noted. If health officials were alerted early, Mrs. deBraga continued, and if a plan were already in place that included investigative teams and protocols to be used, they could “strike while the iron is hot,” which might help them find any clearly obvious contaminants before they had dissipated.
Mrs. deBraga noted that Fallon residents had been told that the tests conducted there did not find a cause for the cancer cluster; however, she expressed belief that the finding was not accurate. She mentioned that the scientists studying the Fallon cancer cluster had learned a great deal and thought that some day what they learned would help lead to a discovery of the causes and to a cure.
Mrs. deBraga testified that there had been spikes in other types of cancers, as well as spikes in the same type of childhood leukemia, during other periods in Fallon’s history. She stated that the research done in Fallon had caused scientists and members of the medical community to take a closer look at things like arsenic’s effect on the immune system and tungsten’s effect on cancer cell growth, both of which chemicals were present in the Fallon environment.
Mrs. deBraga, indicating that scientists might benefit from mistakes that might have been made in Fallon, opined that previous clusters, other bone marrow diseases, adult cancer clusters, and other disease statistics should possibly have been included in the study. She emphasized that in the long run proper analysis of health statistics could be the key.
Mrs. deBraga explained that state law required the reporting of the name, address, pathological findings, stages of the disease, environmental and occupational factors, methods of treatment, incidence of disease in the family, and the places patients had lived, for all cases of cancer. It required that the reports be published, keeping individual patient’s identity confidential, and that appropriate uses be made of the information to advance research and education and to improve treatment. She emphasized that the intent and purpose of the law could not be carried out if the data was not analyzed and tracked and the scope of the investigation properly plotted.
Mrs. deBraga pointed out that the ability to go into action quickly needed to be created, should data extracted from the Cancer Registry show the possibility of an unusual disease outbreak in progress. In September 2001, the Interim Finance Committee approved six new positions to deal specifically with cancer reporting and investigations and she explained that passage of A.B. 315 would put the duties of those positions into law and would require that Nevada’s Cancer Registry data be analyzed, and that unusual occurrences of statistics be investigated. Mrs. deBraga mentioned that there was a fiscal note attached to A.B. 315 but added that she was not certain why.
Reto Gross, father of one of the first children diagnosed with ALL (acute lymphocytic leukemia), explained the difficulty of living with the uncertainties of that illness while hoping for the best, and trusting that the physicians were administering the right treatments. Upon returning to Fallon, Mr. Gross indicated that he and his family were unaware at first that their child’s illness was not an anomaly. One by one, children in other nearby families were diagnosed with ALL, and by the time six children had been diagnosed, he began asking questions but could get no answers because of confidentiality requirements. Mr. Gross said that the Cancer Registry in Nevada at the time was so antiquated that the cluster had not even been noticed. State health officials explained to Mr. Gross that the way the Registry worked, first the physician had to decide to submit information to the Registry and then had to pay to submit the information.
Mr. Gross noted that because northern Nevada had no bone marrow testing facility, his child was diagnosed and treated in California, so the data on his child was not transmitted to Nevada’s Cancer Registry. The only person in Fallon who treated his son was a nurse, and nurses could not report to the Cancer Registry. Mr. Gross would like to see information reported to the Cancer Registry by zip code, which would retain confidentiality but still allow for the identification of a geographic location.
Another problem Mr. Gross identified was the lack of a protocol to research the clusters or outbreaks as they happened. People from the state Health Department had interviewed the Gross family and told them that chances of discovering a cause for the cancer were slim. He emphasized that something was wrong with a system when its investigators admitted defeat before they had even investigated. Mr. Gross indicated that involvement of the media, and the resulting pressure that had occurred had been necessary to draw any research effort to the cluster.
Mr. Gross added that it was approximately a year after they talked to him and his family before the state Health Division took any samples or looked into statistics of the water, the air, or the dirt, or told the family what the Division’s plans were. He noted that the process of developing the protocol, taking samples, analyzing them, and putting the information together had taken two years. With passage and correct implementation of A.B. 315, Mr. Gross stated, there was a chance to find clusters or unusual cancer outbreaks, while they were happening. Mr. Gross emphasized that the Cancer Registry was an important and necessary tool and that it should be mandatory that all physicians in all parts of the country register their patients so that a cause and a cure for cancer could be found.
Jeff Braccini, whose son had ALL, testified that the environment was changing and that Fallon was not the first community, nor probably the last, with a cancer cluster. He added that lessons could be learned from the tragedy and that time was of the utmost importance when identifying a cluster.
Mr. Braccini stated that the current Cancer Registry was a failure because it collected data without analyzing the numbers and because it reported less information to the public than it did ten years ago. He emphasized that the Registry should be collecting data, analyzing the numbers, adjusting that data for age, and identifying problems. A registry, he added, was useless unless a competent medical doctor analyzed the data on a regular basis to establish trends. Mr. Braccini indicated that a positive protocol needed to be established for a rapid biological/environmental sampling. He suggested modeling Nevada’s Registry after those in such as Kansas where data was used to improve treatment opportunities in rural areas. New York, he explained, broke its data down by zip code and was developing maps showing distribution of cancer risks statewide. The Kentucky state cancer registry was able to save thousands of lives, he added, by using cancer statistics to pinpoint women at risk of breast cancer and in need of screening. By identifying trends, he stated, communities could screen for prevention for cancer and other chronic diseases.
Mr. Braccini pointed out that Fallon’s water contained arsenic, a known carcinogen, at levels way above the new federal limits of 10 parts per million. He noted that even though arsenic alone may not have been the cause of Fallon’s cancer cluster, it could not be discounted as a factor in the cancer’s development. Mr. Braccini explained that the effects of ingesting arsenic included damage to the immune and neurological systems and the development of diabetes, and that prolonged exposure could lead to cancer. He indicated that doctors were just learning to identify arsenic-induced chronic diseases, and that a current study by the Environmental Protection Agency (EPA) in Fallon was a positive step in educating the medical profession.
Mr. Braccini pointed out that Fallon’s children continued to have access to arsenic in the water in area schools and yet every toxicologist and oncologist he had spoken to had stated that arsenic, a known carcinogen, should not be fed to children. He asked whether it was worth the risk, when the cost to supply healthy water would be so minimal. It would be one more year until Fallon’s water treatment plant would be online, he explained.
Mrs. deBraga mentioned an informal door-to-door survey in Fallon conducted by resident Floyd Sands, whose daughter had died of leukemia. Mr. Sands had found cases of the same or associated diseases that were not included in the cluster, plus a couple of cases of very rare cancers. Mr. Sands, she noted, advocated that there be some sort of oversight of the Cancer Registry.
Mrs. deBraga indicated that another Fallon resident’s daughter was diagnosed with ALL shortly after moving to Fallon from Sierra Vista, Arizona. Because she had not lived in Fallon long enough, she was not included in the cluster statistics, but she was not listed in the Sierra Vista statistics either, even though a cancer cluster had been identified there. Mrs. deBraga noted that a new cancer cluster had been identified near Sacramento, California.
Assemblyman Hardy asked whether Sierra Vista had a military base; Mrs. deBraga replied that it did.
Mr. Hardy inquired if she knew what kind of base it was and whether it was Fort Huachuca. Mrs. deBraga confirmed that it was.
Mr. Hardy asked whether the community with the cancer cluster near Sacramento was near a military base.
Mrs. deBraga said it was not. She added that in both Sierra Vista and Fallon, tungsten had been found in large quantities in the blood and urine of the residents, and in the water of both communities because it was naturally occurring in those areas. In Elk Grove, California, where the new cluster had been identified, she noted, tungsten was not naturally occurring; however, it was present in the cancer victims.
Assemblyman Hardy clarified that Elk Grove, California, where he had family members, was in fact close to an air force base.
Assemblywoman Leslie thanked Chairwoman Koivisto and Mrs. deBraga for bringing A.B. 315 before the Committee. Ms. Leslie indicated that she had understood that the children in Fallon schools would have safe drinking water because the school board had indicated that the subject would go on their meeting agenda. Ms. Leslie asked what had happened at the school board meeting.
Mr. Braccini explained that, after he asked the school board to convene a committee to research the issue, the board had closed the hearing to further discussion on that topic. He added that water was available for purchase in most of the schools but that water fountains were still in use in the schools. One of the teachers, he noted, mentioned that the “cottage children” could not understand the concept of money.
Ms. Leslie inquired who the cottage children were.
Mr. Braccini answered that they were young special needs children in kindergarten and first grades. It was suggested in the school board meeting that bottled water be put in the cottage school, but after it was noted that the school board could not provide water for one school without providing it to the others, the issue was tabled.
Ms. Leslie commented that she was finding it hard to understand the reluctance of Fallon to provide safe drinking water, when it would only be approximately one year until the water plant would be online and the problem solved. She asked how much it would cost to provide safe drinking water for one year.
Mr. Braccini replied that everyone thought water was being provided in the schools until recently. When it was discovered that water was not being provided, he had spoken with a vendor from Reno who had made a bid to the school district two years ago. That vendor had estimated that it would cost approximately $33,000 to provide water for about a year.
Assemblywoman Leslie stated that she thought Fallon children were worth $33,000 a year and intended to request that the Legislature consider funding safe drinking water for the children in Fallon schools for this year. She added that the school board would have to accept the money and provide the safe drinking water, and she asked if Mr. Braccini thought the school board would do that.
Mr. Braccini, stating that he was in the minority, added that “the older the population, the more resistance to change,” and that he did not know how it could be done.
Ms. Leslie noted that the argument that many healthy Fallon residents had been drinking the water all their lives was offensive to her and she emphasized the importance of protecting the children.
Mrs. deBraga mentioned she owned rentals in Fallon and that every other month or so she received a notice from the city of Fallon that read in part,
People who drink water containing arsenic in excess of the allowable standard over many years could experience skin damage or problems with their circulatory system and have an increased risk of getting cancer . . . A report by the National Resource Council for the National Academy of Sciences has concluded that arsenic in drinking water can cause bladder, lung, and skin cancers and may cause other types of cancers. These health risks are believed to be shared equally by all age groups within the exposed population.
She added that the notice informed her that it was her obligation to inform anyone she leased a home to that they should not drink or cook with the water, and that boiling the water intensified the level of toxicity of the arsenic. Mrs. deBraga pointed out that all city and county officials were supplied with bottled drinking water, but that the children were not.
Mr. Gross interjected that the state only recommended not drinking the water, not that it was harmful and should not be drunk.
Assemblywoman Weber asked whether the arsenic level in Fallon exceeded state standards, what those standards were, and what the new water treatment plant would do to alleviate the situation.
Mrs. deBraga answered that the national standard, set in 1975, had been 50 parts/billion. A new standard was recently set at 10 parts/billion. The water in the city of Fallon, she noted, was at approximately 100 parts/billion and had been for a long period of time. Mrs. deBraga added that there were areas in the surrounding county that were at over 1,000 parts/billion.
Assemblywoman Weber, inquiring about the water treatment plant scheduled to go online, asked if it would filter out the excess arsenic.
Mrs. deBraga replied that the arsenic level would be reduced to the national standard, or even a little lower, to possibly as low as 5 parts/billion.
Ms. Weber asked when the plant would be online. Mrs. deBraga indicated that it was scheduled to open in April 2004.
Assemblywoman Pierce, announcing that she was probably the most recent cancer survivor in the room, stated that it was awful to have cancer as an adult, and that it must be even worse to suffer from it as a child, or to have a child with the disease. She announced her support for anything that would look into tracking cancer and discovering its causes.
Buffy Martin, Government Relations Director, American Cancer Society, provided Committee members with copies of her testimony (Exhibit D) and a booklet entitled “Cancer Facts & Figures 2003” (Exhibit E). She testified that in 2003, there would be approximately 10,300 new cases of cancer in Nevada and that about 4,300 Nevadans would die from it. Ms. Martin indicated that passage of A.B. 315 would create a necessary link to analyze cancer trends and would establish interdepartmental action that could control, and possibly prevent, any further rates of incidence of cancer affecting a particular area or population.
Ms. Martin added that analysis, research, and education could be the tools that helped Nevada stem the rising cases of cancer and cancer-related deaths. She asked that the Committee support A.B. 315.
Randall Todd, State Epidemiologist, Nevada State Health Division, read his introductory testimony from prepared text (Exhibit F). He stated that the Health Division believed the bill would serve to codify current and ongoing analytical and investigative activities with respect to Cancer Registry data. He indicated that he would like to clarify with the Committee the Health Division’s interpretation of the language and the Committee’s legislative intent.
Mr. Todd explained that it was the Division’s understanding and intent to utilize Cancer Registry data and national data to identify trends in cancer incidence that were statistically significant. He also noted that it was the Division’s understanding that the intent of A.B. 315 was that the State Health Officer would use his or her professional judgment and also consider the current state of science and technology, as well as available resources, in making a determination as to whether or not an identified trend, or cluster, of cancer merited an investigation.
Mr. Todd presented the Committee with a friendly amendment (Exhibit G) to expand the language referring to the State Health Officer to include his or her designee. He explained that the addition would ensure the Health Division’s ability to carry out the intent of A.B. 315 should the position of State Health Officer be vacant.
Assemblywoman Angle asked whether the Health Department had jurisdiction over water systems.
Mr. Todd replied that the Bureau of Health Protection Services had regulatory authority over water. He noted that there had been a federal EPA standard, which Nevada had been required to enforce, and that an agreement had been entered into between the Health Division and the city of Fallon to put on hold implementation of that standard. The rationale for that agreement, he added, was that a new standard had been imminent and city management had not wanted to invest in a technology that might ultimately be rendered obsolete.
Mr. Todd noted that approximately ten years went by without a change to the standards but added that with recent passage of the lowered standard of 10 parts/billion, the old agreement had been nullified and Fallon had to immediately begin installing new technology. Another condition, he added, was that the city water district had to supply a notice to all customers informing them that the water contained arsenic at levels above the standard, and that there were health risks associated with the water. He pointed out that the warnings would not be sent to people on private wells because they were not customers of the water system.
Mr. Todd noted that the Health Division did not have regulatory authority over private wells and that the best that could be done was to encourage people on private wells to have their water tested, but he added that some people still did not know how much arsenic was in their well water. Mr. Todd explained that, as an agreement with the federal EPA, the Health Division did regulate public drinking water sources and that currently there were a number of communities around Nevada that would be exceeding the new drinking water standard of 10 parts/billion.
Assemblywoman Angle asked whether the Health Division condemned public buildings or businesses where the water was unsafe to drink.
Mr. Todd replied that he was not a water regulator and did not know what authority other entities might have.
Assemblywoman Angle, referring to the amendment requested by the Health Division, stated that she had understood the word “significant” had a certain number associated with it.
Mr. Todd replied that the suggested amendment would broaden the language referring to the State Health Officer, so that if there was no one in that position, as was currently the case, the Division would still be able to proceed with an investigation.
Referring to the phrase “statistical significance,” Mr. Todd explained that he had wanted to see if the Committee’s intent regarding investigations was to investigate every single aberration, or just those that would be statistically significant. He added that there were numbers associated with statistical significance and that the numbers depended upon the type of cancer, the size of the population, and the expected rate of the cancer based on national trends. He added that he could not give an exact number, but that each investigation would be on a case-by-case basis. Mr. Todd explained that if, over a year’s time, the number of cancer cases had doubled, it would not necessarily be statistically significant, particularly for very rare cancers. If he were expecting one cancer and there were two cancers in a year, that also might not be statistically significant, he added. However, if he were expecting three cancers in a year and got fifteen cases, that situation would probably be statistically significant. Mr. Todd noted that by the middle of 2000, there were five cases of ALL occurring within one year in Fallon, and he commented that that number was “barely” statistically significant. Shortly thereafter, he added, two more cases were diagnosed, which changed the statistics from “marginally” to “quite” significant. The Health Division’s investigation, he pointed out, began within a month of making the determination of statistical significance. He acknowledged that it had taken a year before the first “samples” were taken, but reiterated that the investigation itself had commenced within a month of the determination.
Mr. Todd explained that the reason the Cancer Registry had not detected the cluster was because it took two years before evidence of a cluster would appear in any cancer registry. Nevada was trying to speed that up, he noted, by allowing pathology laboratories to report directly to the Cancer Registry at no cost. One of the other reasons for the two-year “horizon,” he pointed out, was that cancer registries were used for research purposes as well. As a result, much more information, which took time to amass within the patient’s medical record, was needed for cancer abstractors to look at. Mr. Todd also mentioned that physicians were required to report when they diagnosed a case of cancer and were not assessed any type of fee. The only entities assessed a fee when they reported, he added, were hospitals, and he emphasized that reporting was not optional.
Assemblyman Horne stated that to him, five children with ALL in a town the size of Fallon would have seemed statistically significant.
Mr. Todd answered that, based on national trends, in a community the size of Churchill County that had around 8,000 children between the ages of 0 and 19, it would be expected to see one case of childhood acute lymphocytic leukemia every 5 years. On any given year, he noted, when there was one case, the limit of what would be expected would have already been exceeded. He queried whether one case was a “cluster,” or were two cases a “cluster.” There was always a possibility that chance alone could account for the number of cases, and in Fallon, statistical significance had begun at about six or seven cases.
Assemblywoman Leslie asked what “barely” significant and “marginally” significant were and where the line between a number being statistically significant or not statistically significant was drawn.
Mr. Todd replied that his comment about “barely” being significant had to do with where the Division was at the time the Fallon cluster was brought to their attention.
Ms. Leslie responded that something was either statistically significant or it was not.
Mr. Todd answered that, in his prepared comments to the Committee, he had not used the term “marginally,” he had used the term “statistically significant.”
Ms. Leslie, noting that Mr. Todd was the State Epidemiologist, inquired whether he had an opinion on the question of providing safe drinking water for the children in Fallon schools until the water treatment plant went online.
Mr. Todd answered that it had been the Health Division’s recommendation for a number of years that people in that community seek alternative sources of drinking water.
Ms. Leslie clarified if that was a “yes.” Mr. Todd affirmed that it was.
Mrs. deBraga, in discussing the Health Division’s proposed amendment, requested care be taken that the “designee,” who would be determining whether or not to undertake an investigation or who would be analyzing data, would be qualified. She noted that a current Senate bill would allow the State Health Officer to be other than a medical doctor. She added that common sense needed to be used in the decision-making process and that an investigation did not need to be undertaken every time there was more than one case, but that perhaps someone could monitor the situation.
Vice Chairwoman McClain agreed with Mrs. deBraga, adding that if the Health Division waited for something to be statistically significant, the window of opportunity for investigation could be lost.
Vice Chairwoman McClain closed the hearing on A.B. 315.
Mr. Todd interjected that the Senate bill Mrs. deBraga referred to would allow the State Health Officer to be a contracted position, not a state employee, but the individual would need to have a license to practice medicine in the state of Nevada and be board-certified or board-eligible in preventive medicine.
Vice Chairwoman McClain, bringing the bill back to the Committee, asked whether the Committee wanted to amend A.B. 315 to include language proposed by the Health Division about a designee, or the “statistically significant language.”
Assemblyman Horne agreed that the designee was important and that the point was well made about the statistically significant language, because starting a formal investigation prior to the numbers being significant would put too large a fiscal note on the bill. He agreed that the science was sound and that passage of the bill was important.
Vice Chairwoman McClain disagreed that the language called for a full-blown investigation. She had understood that the language indicated watching for trends.
Assemblywoman Leslie indicated that she had not seen the amendment and did not know where it would be placed in A.B. 315. She asked whether the Committee would be processing the bill that day.
Vice Chairwoman McClain replied that the phrase “or his designee” would be added wherever the bill referred to “State Health Officer.”
Ms. Leslie answered that she was clear about that amendment; she was concerned about the “statistically significant” part.
Vice Chairwoman McClain said she was not sure where that language would go.
Assemblywoman Leslie said A.B. 315 seemed to be well written and talked about trends, which she thought was appropriate, but she did not know what other amendment was being discussed.
Assemblyman Hardy stated that A.B. 315 was a good bill and should pass and that language about the State Health Officer or “acting” State Health Officer could be included.
Mr. Todd emphasized that the only amendment the Health Division was formally requesting had to do with “health officer” or “designee.” The “statistically significant” part of the day’s discussion, he explained, was to determine the intent on the part of the Committee that the Health Division exercise sound scientific judgment. That would be well within the Division’s capabilities and a fiscal note on the bill could be avoided, he added.
Vice Chairwoman McClain replied that it was the Committee’s intent that common sense be exercised when looking at trends.
ASSEMBLYMAN HARDY MOVED TO AMEND AND DO PASS A.B. 315 WITH THE AMENDMENT BEING TO ADD THE LANGUAGE ABOUT A DESIGNEE.
Mr. Hardy commented that if the State Health Officer was not around there was an acting state health officer who could step in. He was concerned about who would designate the “designee,” but reiterated that there was always the acting state health officer.
Mr. Todd replied that, to the best of his knowledge, Nevada was currently without a State Health Officer. Recently a “Health Officer Designee” had been hired who was an independent contractor. He mentioned that there had been other times when there had not been a State Health Officer, and that no one had been designated to take that role; however, someone had been designated to take over some of the medical decisions that the Health Officer would sometimes make.
Mr. Hardy responded that his motion would utilize the “designee” language.
Vice Chairwoman McClain stated the amendment would utilize “designee.”
ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Chairwoman Koivisto opened the hearing on A.B. 445 and indicated the bill had come from the Department of Human Resources, Health Care Financing and Policy Division, and would make changes to Medicaid.
Assembly Bill 445: Makes various changes related to Medicaid. (BDR 38-482)
John Liveratti, Chief, Compliance Unit, Health Care Financing and Policy Division, Department of Human Resources, read from prepared text (Exhibit H). He explained that A.B. 445 would amend NRS 422 and rescind NRS 422.2725, the “nest egg” provision, in its entirety. The intent of the nest egg provision, he stated, was to allow individuals with income above the Medicaid standard to protect that income and become eligible for Medicaid. The provision had required the purchase of an approved long-term care insurance policy and the use of that insurance for a period of 36 months before Medicaid eligibility could be approved. It protected an income limit of $200,000, which was above the Medicaid standard. Medicaid regulations, he noted, would support a provision protecting assets, but not income, so when the proposed state plan amendment was submitted to the federal Health Care Financing Administration, they informed Nevada that they would not approve a Medicaid state plan amendment protecting the income stated in NRS 422.2725.
Mr. Liveratti emphasized that NRS 422.2725 had caused a great deal of confusion with the public because insurance salesmen were selling long-term care insurance to individuals, citing this law as the reason why it was a good investment for them. He added that, if the section of NRS were not rescinded, two things needed to be considered: NRS 422.2725 had not been acted upon because the Center for Medicare and Medicaid Services would not approve the state plan required, and insurance salesmen were failing to indicate that their product was never approved by the Department of Human Resources Director, even though the product they sold was viable and approved by the State Insurance Division.
Mr. Liveratti noted that if NRS 422.2725 were not rescinded, the state could expect nothing but negative press and public relations problems the first time someone who purchased and used long-term care insurance for the required three-year period applied for Medicaid but was denied eligibility due to excess income.
Leslie Danihel, Chief, Eligibility and Payments Division, Department of Human Resources, Welfare Division, noted that the remaining revisions requested in A.B. 445 related to the Medicaid Estate Recovery (MER) Program. She explained that MER was a federal requirement under Medicaid that recovered correctly paid Medicaid benefits from the estate of a deceased Medicaid recipient. The intent of the requirement, she added, was that a deceased recipient’s estate offset the previously paid medical services made on their behalf while they were a Medicaid recipient.
Ms. Danihel noted that Medicaid Estate Recovery remained with the Welfare Division, but that the Welfare Administrator had no authority for distribution of the monies collected, so it was requesting authority for operation of the program.
Ms. Danihel added that A.B. 445 also proposed to amend the definition of “undivided estate” by removing community property transferred to another spouse, and adding annuities and declaration of homestead. She pointed out that A.B. 445 also included new language in Chapter 115, Homesteads, which would exempt the MER Program from the operation of Nevada’s homestead provisions. She explained that there had been several recent instances where the state had not been able to maintain a lien against the real property interests of deceased Medicaid recipients. As a result, the recipients were able to receive the free medical care provided by Medicaid and leave substantial property to their heirs without the state being able to recover Medicaid benefits as required by federal and state laws.
Ms. Danihel also noted that there was a typographical error in Section 17, line 19, of the bill and that the word “though” should be the word “through.”
Assemblywoman Angle stated she had a friend who needed several prescriptions filled but would not get them filled because of provisions in the law that any debt incurred would go against his estate. She expressed the view that it was onerous that someone would have to pay back the benefits they received from Medicaid.
Ms. Danihel explained that state statutes had been created in compliance with federal law requirements.
Mrs. Angle asked if this were being extended to homesteads and other property.
Ms. Danihel replied that it was not being extended, but was currently covered in NRS 422.054, in a general category of “other arrangements.” The statute needed clarification, she added, because questions had arisen, and to eliminate the confusion, it had been thought better to itemize “declaration of homestead” and “annuity” in state statute.
Chairwoman Koivisto, for clarification, stated that Medicaid eligibility was based on income, not on property.
Ms. Danihel responded that Medicaid eligibility was based on a combination of income and assets.
Assemblywoman McClain commented that the first part of A.B. 445, to protect people from being sold insurance products that would not live up to expectations, was something that needed to be taken care of. She expressed concern about the other changes in the bill and noted that the declaration of homestead had been around for years.
Mr. Liveratti replied that homesteading was a Nevada law, but federal law did not recognize the homestead, so even though the state protected a homestead, the federal government wanted its money.
Ms. McClain, referring to “undivided estate,” asked whether, by removing community property, they did not have to repay what was spent on their deceased spouse.
Chuck Hilsabeck, Deputy Attorney General, Human Resources Division, explained that he represented the Welfare Division and dealt with most of the MER issues in northern Nevada. He testified that Medicaid was a program that provided medical benefits to indigents. Many times, he noted, people had worked all their lives and managed to buy a home but still did not have large monthly incomes. Rather than have those people sell their homes and spend themselves into indigency, the home was counted as a non-accessible resource for eligibility purposes. In conjunction with the eligibility rules, he added, the federal government placed a condition on receipt of Medicaid grant funds that required the states to have a Medicaid Estate Recovery Program. After the Medicaid recipient died, he continued, the state attempted to place a lien or file a claim in a probate. Mr. Hilsabeck emphasized that the state could not receive money during the lifetime of any surviving spouse, when there was a disabled child, or when there was a child under the age of 21.
Mr. Hilsabeck reiterated that the program was designed to recoup monies from the estates of Medicaid recipients at a time when they no longer needed the assets or their spouse or their disabled or young children needed those assets. He noted that it was a “trade-off” between having access to medical care during the recipient’s lifetime and being able to leave an estate.
Mr. Hilsabeck added that what had happened on a few occasions was that the recipient died, the spouse filed a homestead, declared bankruptcy, and tried to discharge the state’s claim against the undivided estate of the recipient in the spouse’s bankruptcy. Passage of A.B. 445 would clarify that homestead was not a way to avoid the operation of the federally and state-mandated MER Program, he explained.
Assemblywoman McClain asked if the federal government allowed the states any leeway in what assets could be recovered.
Mr. Hilsabeck replied that the states were given the option of adopting the estate as it would exist in the state’s probate law, or adopting an expanded definition that was contained in federal statute.
Assemblyman Hardy commented that if a spouse covered by Medicaid died, the current practice would allow the surviving spouse to continue to live in that house until the surviving spouse died, then it reverted to the Medicaid “fund” and asked if that were correct.
Mr. Hilsabeck replied that it was not exactly correct. He added that, in a case where a recipient died, a lien would be placed on the home in the amount of the claim. After the spouse died, the house would be sold and Medicaid would get paid. He noted that no interest was charged, and Medicaid would only recover the amount of the claim. Medicaid was also prevented from recovering or receiving any money during the surviving spouse’s lifetime, he added.
Mr. Hardy reiterated that the house could not be sold “out from under” the surviving spouse.
Mr. Hilsabeck agreed and mentioned that the Welfare Division had a policy of releasing the lien when the spouse wanted to take the money. They also had a policy of subordinating if the spouse wanted to refinance because steps must be taken, he reiterated, not to receive any funds during the surviving spouse’s lifetime.
Mr. Hardy mentioning Mr. Hilsabeck’s example of the surviving spouse declaring bankruptcy, asked if that negated the lien that the state of Nevada had on that house so that when the house was finally sold, or after the surviving spouse died, the state had lost the lien on that property.
Mr. Hilsabeck answered that there were two scenarios, one inside a bankruptcy and one outside a bankruptcy. The usual case he said he had seen involved the spouse declaring the Medicaid claim as a claim against her bankruptcy estate and then discharging it in her bankruptcy, when actually, it was a claim against the undivided estate of the deceased spouse. If it was inside a bankruptcy, he had, on a few occasions, seen the bankruptcy court discharge the claim. The other scenario, Mr. Hilsabeck added, was when someone exerted a homestead exemption, no bankruptcy involved, and in that case, the purpose of the homestead provision was to prevent a forced sale, but the Welfare Division did not force sales, so arguably, if there were not a bankruptcy involved, the Division could perhaps prevail. Passage of A.B. 445 would remove a mechanism whereby people avoided the operation of the state Medicaid recovery program.
Assemblyman Hardy stated that A.B. 445 would not take the house away from the surviving spouse while they were living in it.
Mr. Hilsabeck, “Absolutely not.”
Mr. Hardy, “And will protect them and their right to live there until they die.”
Mr. Hilsabeck agreed that the surviving spouse’s right to live in the house would not be impacted at all.
Assemblyman Horne asked if the surviving spouse wanted to sell the house and move elsewhere, would the state place a lien on the new residence.
Mr. Hilsabeck explained that the state’s lien could not impede the spouse having access to their equity. What had happened in the past, he noted, was that the state would release its lien so the house could be sold. He added that, in theory, the state could put a lien on the new home, but he was not aware of that ever occurring. Mr. Hilsabeck reiterated that the surviving spouse’s property interest could not be impeded. He noted that the state could not recover any of its claim during the surviving spouse’s lifetime, so the practice had been to release the lien.
Mr. Horne noted that, theoretically, a person could sell the home despite the lien, put the cash in their pocket, live with a relative until their death, and the state would never recover.
Mr. Hilsabeck acknowledged that Assemblyman Horne was correct. He added that passage of A.B. 445 would not change that situation.
Chairwoman Koivisto, assuming the surviving spouse had died and the property had been sold to collect the money, asked if the money went into a Medicaid fund or into the General Fund.
Mr. Hilsabeck indicated it was his understanding that the money came into the Welfare Division, any administrative costs were removed, and the balance was distributed back to the state and to the federal government. In the event that the county was the entity matching the federal funds, the funds would be returned to the county. Basically, he reiterated, the money was distributed back to the entities that had originally spent it.
Ms. Danihel, for clarification, noted that the money was not deposited into a Welfare Division account but was deposited into a Department of Health Care Financing and Policy Account. She added that, under state statute, the Welfare Administrator did not have the authority to distribute the money, which was why it was being requested that the authority be transferred to the program to the Department of Health Care Financing and Policy.
Chairwoman Koivisto inquired if the recovered funds went into a Medicaid account and were then returned proportionately to the federal government and to the state Medicaid account.
Mr. Liveratti agreed that was what happened. He added that the amount spent by Medicaid for the recipient was collected, then those funds were given to the county and then back to the feds. If it were a waiver case, the money would go back to the feds and then to the state. Stating that he was not the accountant involved, he offered to clarify what happened to the money later.
Chairwoman Koivisto indicated that she really wanted to know where the recovered funds went. She said that she understood about sending the federal funds back to the federal government, but was concerned that if the funds were paid out of the Medicaid budget, then those recovered state funds should be returned to a Medicaid budget instead of going into the General Fund.
Ms. Danihel agreed that the Division would be happy to clarify the situation for her and provide the Committee with that additional information.
Chairwoman Koivisto brought A.B. 445 back to the Committee and asked whether they wanted to wait for clarification.
Assemblyman Horne indicated that he wanted to talk to the Legislative Counsel Bureau, Legal Division, because his father-in-law had an application in to Medicaid and while it would not affect him any more than any other recipient, he would abstain from voting on A.B. 445 now, and in the future.
ASSEMBLYMAN MABEY MOVED TO AMEND AND DO PASS A.B. 445 WITH THE AMENDMENT TO CHANGE THE WORD “THOUGH” TO “THROUGH.”
ASSEMBLYMAN HARDY SECONDED THE MOTION.
THE MOTION CARRIED. (Assemblyman Horne abstained. Assemblywoman Leslie was absent.)
Chairwoman Koivisto announced that upcoming Committee meetings would be starting at 1:00 p.m. With no further business to come before the Committee, the meeting was adjourned at 3:46 p.m.
Terry Horgan
Committee Secretary
APPROVED BY:
Assemblywoman Ellen Koivisto, Chairwoman
DATE: