MINUTES OF THE meeting
of the
ASSEMBLY Committee on Health and Human Services
Seventy-Second Session
April 28, 2003
The Committee on Health and Human Serviceswas called to order at 1:37 p.m., on Monday, April 28, 2003. Chairwoman Ellen Koivisto presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
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:
Senator Randolph Townsend, Senatorial District No. 4
STAFF MEMBERS PRESENT:
Marla McDade Williams, Committee Policy Analyst
Terry Horgan, Committee Secretary
OTHERS PRESENT:
Ed Irvin, Deputy Attorney General, Human Resources Division
Lynne Bigley, Rights Attorney, Nevada Disability Advocacy & Law Center
Richard Siegel, Ph.D., President, American Civil Liberties Union of Nevada
Carlos Brandenburg, Administrator, Division of Mental Health and Developmental Services, Department of Human Resources
Yvonne Sylva, Administrator, Health Division, Department of Human Resources
Chairwoman Koivisto:
Assembly Health and Human Services will come to order, please. [Roll taken.]
The first bill we have on the agenda today is Senate Bill 179 from the Department of Human Resources, Mental Health and Developmental Services Division.
Senate Bill 179 (1st Reprint): Makes various changes related to mental health. (BDR 39-480)
Ed Irvin, Deputy Attorney General representing Mental Health and Developmental Services:
[Introduced himself.] I’m here this afternoon to discuss and explain S.B. 179, because S.B. 179 revises, clarifies, and authorizes technical changes to existing law. I will first characterize the need for these changes and generally how S.B. 179 accomplishes these goals. Then I will go through the bill’s summary and describe which sections accomplish the summarized changes.
This bill clarifies and reconciles the law related to mental health issues, specifically NRS [Nevada Revised Statutes] 433.164 and NRS 176A.045 that have inconsistent definitions of mental illness. In other states and in the field there is a more common current definition of mental illness, and that’s what’s contained in S.B. 179.
The jurisdiction of a program for treatment in Mental Health Court should include mental illness and mental retardation. The benefits of Mental Health Court will assist both communities equally.
Lakes Crossing Center is a unique facility providing mental health services in a forensic setting. Actually, it’s the only state facility in Nevada. That type of facility is different from other facilities, because in reality, their goal, their charge, the duty they perform, is to provide treatment to competency. Before S.B. 179, treatment to competency was referenced in Chapter 178. However, Chapter 179 references several times that treatment to competency is the goal of the facility under Chapter 178. The bill defines treatment to competency as “treatment provided to a person who is a defendant in a criminal action or proceeding to attempt to cause him to attain competency to stand trial or receive pronouncement of judgment.”
[Mr. Irvin, continued] The bill also makes another bit of language clear in Chapter 178 and that is “involuntary administration of medication,” when an individual has the right to refuse medication. A defendant in a case who becomes a client of Lakes Crossing Center has the right to say, “No, I don’t want to take medication.” Quite often with mental illness it’s the mental illness driving the conduct and the statement, “I don’t want to take the medication.” Often when medication is administered, the [person's] response [to the medication provides] insight into that individual’s situation. [That individual may then also have a] desire to continue with the medication. As you probably know, psychiatry has gone from what existed 80 years ago to what today is basically an administration of medication and other services, and that’s a very important part of treatment to competency.
In a commitment situation under NRS 443A, the facility can get to a court to have a hearing on administration of medication much easier than it can in a criminal proceeding. At Northern Nevada Mental Health, they have court on the premises. A petition can be filed and a hearing can be held, usually on Thursday morning at 10:00, and there’s no problem with that process. In a criminal proceeding the criminal court charges the facility with its duty and places, or commits, the individual into the facility. The criminal court has jurisdiction. If the professionals at Lakes Crossing Center see that there’s a problem, an individual who’s not going to be capable of being treated to competency in the foreseeable future, [it is their task, their duty to] ask that medication be ordered by the court.
My office files a motion and it takes quite a while. There is a due process proceeding that the facility goes through even before making that request. Internally we call it a “92-4R” [and it is composed of] six forms. First, the individual is advised that a psychiatrist thinks certain medication should be administered for certain reasons. The individual, or the client if it’s at Lakes Crossing, is advised in writing and with a social worker as to the effects and the need for that administration of medication. The individual has the right to refuse, which the individual can do in writing. There is a review [of the case] by three professionals, a committee. The individual again has the opportunity to express his desires. He can say, for example, “I took this particular medication five years ago and it caused this reaction.” Of course there are rational reasons not to take medication, and there’s that opportunity.
[Mr. Irvin, continued] That committee makes a decision, a finding, then the individual, the client at Lakes Crossing, is apprised of the result and there is another review. The medical director reviews the material. There is another opportunity for the client to express his desire, and then the sixth form is when the client can say he wants a court review. The client can also say he doesn’t agree with the medication but doesn’t want a court review, or he can say he does want a court review. That’s what starts the process I would be involved in.
We consider that important because the client’s due process rights need to be protected. Prior to advising the criminal court of the situation, Lakes Crossing goes through that process. This bill effectively says in succinct, distinct language that the court can consider involuntary administration of medication at any stage in the proceeding. This bill also does something that’s very important [by allowing] under Chapter 433A an involuntary admission [if] an individual, someone who becomes a client, appears to be a danger to self or others. There are prescribed people [police officers, social workers and other professionals] who can cause [an individual’s] liberty to be curtailed for a short period of time to determine where they are and what their issues are. That’s what we call the “Legal 2000 Process.” There is a form we feel complies with due process [that] puts them on notice and also describes facts as to why the professional feels that this individual should be involuntarily committed to be assessed and evaluated as to their mental ability to take care of themselves or not harm themselves.
That individual then needs to go through a certification process because that individual may have a medical problem. For example, he could have Alzheimer’s dementia, or [any of a number of] conditions that would cause him to appear to be dangerous to self or others. This has to be a mental illness, so [the client] is evaluated by medical staff. If they are healthy and do not need medical treatment, they go through the process and are admitted to a facility. This statute only does what my office has felt was [already] the law—it says that 72 hours, the time of the liberty curtailment, the detention, starts at the time of the admission to the facility. By the way, in the other house we had some questions that related to issues in southern Nevada. It is rumored that some individuals go into emergency rooms for extended periods of time for this certification process. I believe I was asked directly, “Well. Does the 72 hours apply to those hospitals?” Of course, I’m a lawyer, so I didn’t answer that question very directly. I had to interpret what I believe to be the law. I’m not the attorney for those hospitals, but I did interpret EMTALA [Emergency Medical Treatment and Active Labor Act], which is the federal law that says that [there’s a time when rights attach to] people who come into a facility and they can’t just be turned away. I stated in the other house that there’s at least a reasonable interpretation that [EMTALA] triggers something equivalent to an admission [although] the federal regulations on that particular law do not call it an admission equivalent to our statute. [EMTALA] does say that there is a time when rights attach to that individual; and I’ll suggest to you that a reasonable interpretation would be the 72-hour period applies to that individual also.
[Mr. Irvin, continued] This process in rural areas causes another difficulty. In Winnemucca, [for example, let’s assume] there’s an individual on the street who’s acting as if they’re a danger to self or others. A social worker sees that individual, fills out the Legal 2000 form, and assists the sheriff’s department in taking that individual to the local hospital. That person is evaluated, assessed as to their medical condition, and they get a certification. Professionals check with Northern Nevada Adult Mental Health Services to see if that individual is appropriate and whether or not there is room in that particular facility, that hospital, and then that individual is transported. If [the situation occurred in] Winnemucca or Ely, a lot of the 72 hours [could be eaten up] if there is another interpretation [of the individual’s health].
That individual would then come to Northern Nevada Adult Mental Health, let’s say with 24 hours [left in the 72-hour period]. Then the professionals would only have 24 hours to evaluate that individual. It could be argued that the 72 hours is a curtailment of that individual’s liberty and is similar to arrest. It is difficult to comprehend why a person who is free should have their liberty curtailed for that period of time. I suggest to you that this law has been around for a long time. That 72-hour period wasn’t arbitrarily reached. There are similar statutes in many states. There has been litigation as to that curtailment. If you [look at] criminal law, there are certain curtailments, and 48 hours in this state is equivalent to 72 hours for the same curtailment under the federal Constitution.
I’ll suggest to you that it’s not the curtailment that’s important; it’s the service to that individual. Northern Nevada Adult Mental Health has no desire to bring in more clients, more patients, or more people who need services. They do need to fulfill their ethical obligation and their state charge to perform the services for these individuals and they need the time to do an evaluation. After or during the 72 hours, a petition can be filed for a civil commitment. It could be suggested to make it happen sooner and allow their curtailment for 72 hours, and then within the 72 hours file a petition and [get] a judicial review. In the north it’s easy because there is a court actually on the hospital grounds on Thursdays. Court is not held every day but petitions are heard on Thursday. We suggest to you that the curtailment is reasonable mostly for the benefit of the people being served.
[Mr. Irvin, continued] I’ll take you through the summary of what the bill is doing on the front page, and I’ll suggest to you where in S.B. 179 it accomplishes those goals.
The first one revises the definition of “mental illness.” Section 4 changes NRS 433.164 to include the new definition. Section 15 changes the definition that relates to the Mental Health Court so it is consistent, basically citing NRS 433.164. That accomplishes the goal of changing the definition. It is a modern, more appropriate definition.
Section 10 clarifies the period that a person may be detained in a public or private mental health facility or hospital under a [Legal 2000] emergency admission. That period [is set at] 72 hours. My office has felt that [was] the law [although] there have been other interpretations, and I respect those other interpretations. This just makes it clearer.
S.B. 179 also revises the provisions governing the medical examination. Language was put in just to be a little bit more technical. We in Nevada had the language “by a licensed physician or physician’s assistant or an advanced practitioner of nursing.” That’s the professional and, by the way, the federal law says if it’s not a physician, it’s under the supervision of a physician. That’s very important. The language in [NRS] 433A has been changed to include the EMTALA language, the federal language. It actually cites the statute and it also cites the state anti-dumping law, just to make it clear that this is the process that we’re going through.
S.B. 179 authorizes the court to establish a program for treatment of mental retardation. Mental Health Court was set up for mental illness. You’ve all heard testimony [concerning] Mental Health Court. I would suggest to you that all those good reasons equally apply to mental retardation. Section 13 adds [a new section in NRS 176A.010 that] mental retardation has the meaning ascribed to it under NRS 433.174.
Section 17 makes a change in NRS 176A.250 adding language stating “or mental retardation,” which makes it clear [that a court may establish an appropriate treatment program]. S.B. 179 authorizes a court, in determining the competency of a defendant in a criminal action, to consider evidence related to treatment to competency. That statute’s been there for quite a while. That statute has said that when the issue [of competency] arises, if there is a [question] as to an individual’s ability to understand the charges or what’s going on, or to assist their attorney, then the court considers evidence [related to treatment to competency]. That hearing is a criminal proceeding and the presence of the defendant is required unless a court rules otherwise. That proceeding starts and treatment to competency should be considered at that time. That’s the way the law has been. We just feel that it’s clearer [now] and [is stated] throughout Chapter 178.
[Mr. Irvin, continued] I’m going to read briefly from NRS 178.415. “At a hearing in open court the judge shall receive the report of the examination and shall permit counsel for both sides to examine the person or persons appointed to examine the defendant.” The court already appointed somebody and there’s been an evaluation. This is a due process hearing where both sides get to examine whoever did the report. The attorney for the defendant, for Lakes Crossing it’s a client, for a criminal proceeding it’s the defendant, gets to cross-examine. The prosecuting attorney and the defendant may “introduce other evidence including, without limitation…” This doesn’t mean just evidence as to treatment to competency but evidence “without limitation, evidence related to competency and the possibility of ordering the involuntary administration of medication.” Both attorneys also may cross-examine one another’s witnesses. There’s a U.S. Supreme Court [decision] pending, arguments have already been heard, and it’s United States v. Sill. The case was decided in the Eighth Circuit and appealed to the U.S. Supreme Court. It describes what should be considered at a hearing related to competency. The Eighth Circuit specifically described the dangerousness of the charge that is necessary for an individual to be involuntarily administered medication.
I suggest to you that there is nothing in S.B. 179 [that would need to be changed] no matter which way the Sill decision goes. If Sill says it is harder for a court to order involuntary administration of medications, the language doesn’t change. The statute doesn’t say what the court considers the legal precedent to be, that’s for the court to decide. What it does do is clearly set up the process and says that the court can consider involuntary administration of medications. I mention that because the law is not necessarily clear in that area and the Division wanted to be able to survive the Sill decision so that there would be no need for a change.
There’s another bill, S.B. 89, that says that a justice court may initiate this process. That bill, as it has been amended, says that the hearing will still be in district court. By the way, [in the last decade] justice court has had the ability to consider misdemeanors for incompetence. In other words, someone charged with driving under the influence could act as if they don’t understand what’s going on or can’t assist their attorney and that individual could be evaluated. During the Chapter 178 competency process the individual cannot be incarcerated longer than the longest possible sentence, so that individual cannot be evaluated for a very long period of time. An order could come from the justice court saying, “involuntary administration of medication,” so that doesn’t change. [For the hearing concerning] their very important constitutional rights, [however], district court will be considering this. District court will be applying the case law and will be protecting the defendant’s constitutional rights.
[Mr. Irvin, continued] S.B. 179 authorizes the court to order the involuntary administration of medication to defendants in criminal cases for treatment to competency. The order may include involuntary administration of medication if appropriate. While the court is considering just whether or not someone should be evaluated, the court can also consider testimony and evidence, subject to cross-examination, in the presence of the defendant so [they] can face their accusers. There may be sufficient evidence at that time for the court to feel that it has sufficient authority to order involuntary administration of medication. This can save these individuals a great deal of time. If they are committed to Lakes Crossing Center they do not take medications [unless] they’re a danger to self or others or it’s emergent. [An] individual [does not benefit by] sitting and waiting [during] this process.
S.B. 179 changes the word “client” throughout various statutes to include treatment to competency. It’s changed in Sections 5, 6, 7, 8, 9, 12, and 21-24. That just makes it clear that a forensic facility in a Chapter 178 proceeding [is charged with helping] its client by treatment to competency. S.B. 179 also makes clear that involuntary administration [of medication] is a methodology of achieving that goal with correct and proper procedural due process protections.
Assemblywoman Weber:
[I am asking this question] on Assemblyman Hardy’s behalf. In Section 10 on page 5 regarding the 72-hour release, would you elaborate on that section? [Could] a patient be released without being treated, based on that section? Does [the 72-hour period] include the diagnosis, a possible [treatment] plan that would be developed and a workup, since sometimes there are delays upon admission?
Ed Irvin:
Initially, a person [might be] observed by someone who makes a preliminary determination that the person is a danger to self or others. Hypothetically speaking, let’s say that professional social worker then talks to the person for half an hour. During that half-hour [the social worker] notices, using his expertise, that the person appears to be under the influence of something and may not be suffering from a mental illness. Maybe he notices [the individual’s] competency and ability to answer questions and speak clearly, to say, “Yes, I have a house. Yes, I have a place where I can go. Yes, I have a way to get there. Yes, I can protect myself.” Even in a short period of time that professional could change his mind or consider new evidence. Let’s assume that individual filled out the form quickly. “Yes,” they could say, “I filled out this form.” [Then] it doesn’t need to go any further.
[Mr. Irvin, continued] However, if that determination is not made, then that individual can assist in the process of the medical certification. In some communities some hospitals ask them to assist in the process and actually ask them not to leave. Let’s say that the process takes eight hours. By the way, the person has been consuming alcohol and is showing some signs of intoxication but does not appear to be a danger to himself because of intoxication. Over that period of time they’re starting to no longer suffer from the substances in their bodies. An emergency doctor might come in and want to test the chemicals in the patient’s system. [Let’s say the test comes back with a blood alcohol reading of] .40, so obviously there’s a problem here and it may not be mental illness.
If the emergency room is doing the hold, they can decide that the individual is no longer a danger to self or others. Usually for someone to be hospitalized they [can’t] be too much under the influence of [drugs or alcohol]. The process usually [is lengthy enough] that by the time they make it to the facility they’re no longer under the influence, although they may be slightly impaired. [If the] process [is occurring] in Ely, it can take a long time. By the time that individual [arrives at] Northern Nevada Adult Mental Health Services for the initial screening, [he] may be able to say, “Yes, I have a house. Yes, I have a way to get there. I have a job. Yes, I said suicidal ideation. Yes, I said I had a plan; but I no longer have that plan. It was the situation.” That person can be released. As to release prior to the end of the 72-hour [period], during any one of those moments the individual can be released if the professionals feel that the individual is no longer a danger to self or others.
Assemblywoman Weber:
According to the bill, are there individuals who can be committed longer than 72 hours?
Ed Irvin:
That requires the filing of a petition.
Chairwoman Koivisto:
Does the 72 hours start at the time they’re committed to the mental health facility or does the 72 hours start at the point that they’re seen in the emergency room?
Ed Irvin:
For the mental health facility, it starts not from commitment, but from admission. With the state hospital it’s clear when that occurs. It’s my reasonable interpretation that the 72 hours would also apply because the language is clear and I tried to emphasize it, to any hospital, public or private. The person may have been there for up to 72 hours. They’re transferred, as they should be, and they get to the facility that can assist them with their mental illness, and then this language is clear, that 72 hours starts again if it’s already occurred upon admission to that hospital. Theoretically, you can multiply 72 times 2. That allows enough clarity so that the client, the patient, can receive services and be evaluated in a way that can be effective.
Chairwoman Koivisto:
That could be almost a week, 144 hours.
Assemblyman Horne:
Explain again how the decision in U.S. v. Sill is not going to have any effect on this piece of legislation. I think the [U.S.] Supreme Court has already spoken a number of times on [this and has a] very high standard on medicating somebody involuntarily, particularly in this instance we’re talking about—non-violent criminals.
Ed Irvin:
You’re right. U.S. v. Riggins seems to deal with the issue; however, it doesn’t specifically on its face deal with the issue as to what actually is the consideration for involuntary administration of medications because it didn’t need to. The Supreme Court probably is going to do that in Sill, or at least give us some guidance. NRS 178.415 says that when the issue comes up it can be brought to the attention of the court. That starts the hearing process, [which begins] with an evaluation for competency and then there’s a hearing. At that hearing the court considers, with cross-examination, all evidence as to competency. Then the individual can be committed to Lakes Crossing Center and there can be a later hearing as to whether or not the individual can be treated to competency. We have improved, in my opinion, the language that sets up that process, but NRS Chapter 178 will not say the level of violence to be considered. It will not bind the court as to what the court will consider. Basically, the court considers the law, as it exists now. After Sill, it will consider the law, as it will exist then. S.B. 179 does not change that.
Assemblywoman Pierce:
This says if there’s a defendant that’s mentally ill, a judge can force them to be given drugs so that they can stand trial. Am I correct? [Mr. Irvin agreed.] What’s happening now with this? Are they determined to be mentally ill and put in an institution?
Ed Irvin:
Your question, to a large extent, asks what the law is as relates to mental illness in Chapters 433, 433A, and 178. Those are different proceedings for involuntary commitment. Short-term [commitment is] in Chapter 433A.150 and describes the process where someone’s liberty can be curtailed for a short period of time. A hearing needs to be held if that period of time is over 72 hours.
Chapter 178 [relates to] competency. If it’s a defendant, and your question included the defendant, right now the law in my opinion exists the same way that S.B. 179 is written. It’s just that our statute is not as clear. Currently, an individual who is charged with a crime and preliminarily determined to have competency issues will be evaluated by professionals. There will be a hearing. At that hearing it could be considered whether or not involuntary administration of medication would be appropriate. I can tell you I’ve seen orders from that hearing that have said, “administer involuntarily whatever medications professionals feel are appropriate.” That may be problematic, as Mr. Horne pointed out.
What [S.B. 179] does is makes it clear that treatment to competency is the goal and it makes it clear that involuntary administration of medication is definitely a possibility. You may be asking me why we’re bringing it up. It has been argued that Lakes Crossing Center does not have standing to bring up the issue. It has been argued that my office does not have standing to bring the motion. In my experience that has been brought up but never successfully. S.B. 179 makes it clearer but doesn’t change [my interpretation of] the law. If I’m in front of a judge and the judge says, “I’ve never seen this issue before. What are you talking about? What is ‘treatment to competency’?” I’ll be able to point to a statute, to a section, and say, “Here it’s defined, Judge, and here it’s defined in this context so you know that you can consider it.”
Usually it’s not going to be known whether or not involuntary administration of medication is appropriate until professionals have really had a chance to sit down with this individual. Let’s say that the individual has been at Lakes Crossing Center for a month and the professionals say, “We’re not going to get anywhere treating this person in the foreseeable future if the treatment to competency is unsuccessful.” Then the court finds that the individual, the defendant, is incapable of treatment to competency in the foreseeable future. There are ten days allowed in the statute for a petition to be filed for involuntary commitment, that’s under NRS 433A, but it’s the longer-term involuntary commitment, and yes, that person usually is committed to a mental health facility. The important part of S.B. 179 is it makes it clearer.
Madam Chair, you mentioned “almost a week.” That’s the way it is today. The first part [72 hours] is to find out whether or not they’re medically fit. The second part is to evaluate and assess as to their mental illness. The answer to [Assemblywoman Pierce’s] question is, “Usually.”
Assemblywoman Pierce:
I’m not real clear about why competency is the goal. If someone’s off the streets so they’re not going to hurt anybody else, and the only way they can be competent is to be medicated to that point, I’m not clear about what making them competent simply to stand trial accomplishes if they would be institutionalized anyway.
It concerns me. Is it O.K. to medicate people just so they can stand trial and for no other reason?
Ed Irvin:
I believe you’re touching on Assemblyman Horne’s question because that is the question in Sill. The question in Sill is weighing the interest. By the way, Lakes Crossing has a concern only for serving the client. Lakes Crossing Center has no concern related to the criminal justice system as far as finding someone guilty or not. That’s a different process. Lakes Crossing Center is charged, because the individual is committed to Lakes Crossing Center, with achieving competency or not achieving competency if it cannot be achieved in the foreseeable future. Lakes Crossing Center is trying to fulfill its duty. The issue you bring up, which is the same issue that Assemblyman Horne brought up, is why we’re doing that. Sill may say that only in a very important charge, maybe in a very serious charge, should a court be able to order that.
In the Sill case I believe Dr. Sill, a podiatrist, was involved with Medicaid fraud and there were allegations that he tried to get someone disposed of. The court ruled that those allegations were not to be considered, so he’s been sitting in a hospital, legally incompetent, for an extended period of time, [possibly] up to five years. The issue is, should the court be able to order that individual, for this possible Medicaid fraud, to be forced to lose his constitutional right to the integrity of his body, or possibly sanity, and to be involuntarily medicated? In that case, that may be a harder issue. S.B. 179 doesn’t change that. It allows the courts to consider those important issues.
In direct answer to your question, I think I’ve emphasized that these people, these clients, are sitting. In some cases, if they can’t be involuntarily medicated, they need to go on. They need to go to the process where they may be committed to another hospital or they need to go to the process where they’re released because the time has run [out]. This just speeds up that process so that it’s considered. Let me directly suggest to you that Lakes Crossing Center, MHDS (Mental Health and Developmental Services), does not have a “dog in the fight” as to medicating people and deciding the issue as to the criminal charges. It does have an ethical obligation and a duty to do it quickly and to do it so that the person isn’t just sitting there waiting.
Carlos Brandenburg, Administrator, Division of Mental Health and Developmental Services:
[Introduced himself.] Let me respond to Assemblywoman Pierce’s question about the institutionalization. You need to understand that 90 percent of the folks that are sent to Lakes Crossing are sent there for a felony-related offense. Felony-related offenses are usually of a very violent nature, either murder, some type of capital offense, or some type of violent offense against person. Our mandate is to find them competent to stand trial so they can go back to court. Very few of those individuals actually go back into the institutions. Most of them go back into the criminal justice system. Most of them get found guilty or they are basically incarcerated in the prison system. That’s why it’s extremely important for us if we are going to release someone [accused of] a capital offense [such as] murdering someone [that] we make sure we have exhausted all avenues at our disposal and medication is one avenue of that.
Assemblyman Horne:
Here we’re talking about misdemeanors in [Chapter] 178, Section 9 of the bill. As I read the current statute and this legislation I think that the difference is here in this legislation, this bill. We’re talking about including evidence to the judge to say basically that we can medicate this person to be competent to stand trial, and therefore we ask that you do it. The existing language [speaks] only to whether or not this defendant is competent, period, not to evidence saying that we can make him competent. That’s how I’m reading this because you’ve inserted language, “introduce other evidence including, without limitation, evidence related to treatment to competency” and the possibility of ordering involuntary administration of medication. I think that does change the existing statute now.
[Could] Ms. McDade Williams get U.S. v. Riggins for me? There’s no telling when the Sill [decision] will come out, but there have to be earlier cases than Sill. [Ms. McDade Williams responded that she would get the requested information.]
Carlos Brandenburg:
If you recall the Riggins decision, the gist was that there was no physician ordering the medication. When one looks at Riggins the Court said that the issue of medication is appropriate; however, in the Riggins decision there was no physician ordering medication and that’s why Riggins was overturned. The Court basically kept the decision for the medication intact but recommended that it had to be driven by a physician. In the Riggins case, it wasn’t driven by a physician.
Assemblyman Horne:
I’m aware of the Riggins case, but I haven’t read it. That’s why I just requested it, so I could read it and compare it with the contents of this bill.
Ed Irvin:
Riggins is a case where the Court did not consider what it should have considered. It didn’t have the hearing where the factors related to involuntary administration of medication were appropriately considered and therefore the [U.S.] Supreme Court said it should have considered that. Because of that, even though they give us a really good idea of a road map on how to appropriately do that, that was dicta as it relates to their decision. Riggins isn’t something I can cite in court and say, “Even though it says you do one, two, three, and you consider these things,” my opposition can say, “Well, Riggins isn’t necessarily on point because we’re not sure.” [You can get] the Sill decision from the Eighth Circuit. It is very enlightening. They’re a little bit stronger than the other circuits. They’re more concerned about the violent characteristic that has to do with “this is an important charge, therefore someone’s rights should be curtailed in this way.” The Eighth Circuit makes that rather clear and, by the way, there are tons of articles on these issues.
To get to your question, it is my opinion that S.B. 179 does not change the law, it just emphasizes that [involuntary administration of medication] can be considered. If I [expand on] your hypothetical [case and say] it is a misdemeanor case of jaywalking, I’ll suggest to you that a court could order someone to be involuntarily administered medication, but it would not be my reading of the case law that would lead to that result. It just shouldn’t happen that way.
Let’s ask how you can have a misdemeanor that’s so important. What if it’s a first-time domestic violence charge where the characteristics of the domestic violence facts or allegations are very, very, very serious? Because of that, the issue is very important and, at least in my hypothetical, that could be a case where it might be appropriate if the court considers the right information and makes the right ruling. By the way, S.B. 179 doesn’t change what the court considers, it just makes it clear that it consider it at that stage.
Chairwoman Koivisto:
Any other questions from the Committee? [There was no response.] Do we have anyone else testifying in support of S.B. 179? I have Rich Siegel testifying on S.B. 179. [Dr. Siegel requested Lynne Bigley begin the testimony.]
Lynne Bigley, Rights Attorney, Nevada Disability Advocacy & Law Center:
[Introduced herself.] My comments today will focus on the time frame in which individuals alleged to be mentally ill may be detained before a facility must either release them or file a petition for their civil commitment. Before anyone is committed to a mental health facility, he or she must first be medically screened. Because the state’s mental health facility does not provide medical screenings, those who must rely on being treated there, generally the poor and indigent, must be screened at one of the area’s emergency rooms. This would typically be a relatively prompt process if it were not for the fact that the number of individuals who are being detained for emergency admissions to the state’s facility greatly exceeds that facility’s capacity to accept more individuals.
State law currently provides that anyone alleged to be mentally ill may be detained in a public or private mental health facility or hospital under an emergency admission for evaluation, observation, and treatment. However, a person so detained must be released within 72 hours unless a petition for his involuntary court-ordered admission is filed with the court. The 72-hour period then is in fact a critical limitation on the amount of time that a mentally ill detained person may lawfully be held without being afforded his right to a hearing under the due process clause of the Fourteenth Amendment.
As currently written, S.B. 179 seeks to amend NRS 433A so that the 72-hour time period is not deemed to begin until that person is actually admitted to a mental health facility or hospital. This would be of little import if it were not for the fact that, particularly in southern Nevada, it can take several days before the allegedly mentally ill person is admitted anywhere, although that person is being detained at the hospital waiting to be admitted to the mental health facility. Currently, individuals alleged to be mentally ill and awaiting transport to the state facility can languish in area emergency rooms for days on end. It is our agency’s understanding that these individuals are not technically admitted to those medical facilities for purposes of the 72-hour limitation.
We submit that this proposed amendment makes the 72-hour due process time limitation largely meaningless. We submit that the 72-hour time referenced in Chapter 433A should commence as soon as that individual is deprived of his or her freedom rather than when the state determines that the individual has been admitted to any particular facility. The right to due process should be triggered by the actual deprivation of liberty, not by the state’s ability to timely meet the mental health needs of its populace. We believe that most of you would agree that our state’s mental health delivery system simply does not meet the needs of its populace; however, we ask this Committee not to allow this to serve as an excuse to simply dispense with individual’s constitutional rights until this problem is remedied.
Assemblywoman Leslie:
Is it in Section 10 specifically? Is that the language? It looks like they’re adding to subsection 2. [Ms. Bigley concurred.] You’ll be happy to know this morning we closed the mental health budget with a mobile crisis team that will go out into Las Vegas emergency rooms and get people out of there. I think that’s going to help the situation a lot. I don’t think it’s right to keep people. How long are people waiting in emergency rooms?
Lynne Bigley:
As I’m aware, and it’s more than rumor, it is in fact what’s happening down in southern Nevada, we’ve had situations far in excess of 72 hours before they even begin to trigger that 72-hour time frame.
Assemblywoman Leslie:
So they would be in violation of this at this point?
Lynne Bigley:
Based on the way we’re interpreting Chapter 433A, yes. The Attorney General had a different opinion. I believe he said that the 72 hours would trigger in the hospital and, if they got transported to the mental health facility during that time, the 72 hours would start all over again. I don’t see how a person’s constitutional rights can depend upon where they’re being detained in any particular facility. [Assemblywoman Leslie agreed it was an issue.]
Richard Siegel, Ph.D., President, American Civil Liberties Union of Nevada:
[Introduced himself.] I’m here primarily to agree with what Lynne Bigley has just said. I want to comment first on the issue of drugs given to people to make them competent. The run-up to the Sill case has brought a great deal of mass media criticism of what has been seen as a rather strange spectacle focusing on the treatment of people in order to make them subject to our criminal justice laws and our punishment, people who, in fact, are now and very well might be later, really incompetent. The basis of that is in our criminal justice law, not in this law. Although the Supreme Court has said that mentally ill people should not be subject to major crimes, the real problem is that our criminal justice law allows that to happen. We use the M’Naghten rule, which is coming back before this legislature in A.B. 156, which I guess has been passed out of the Assembly by now. It’s a rule that was created over a hundred years ago in order to make people eligible for criminal prosecution.
[Dr. Siegel, continued] I believe neither Ms. Bigley nor myself are here to challenge the language in this bill, which is not the source of the problem. The timing of the forced medication hearing is not of critical importance to us. We agree that it’s good that there has to be such a hearing. We’re not sure at all that such a hearing is adequate. It was mentioned by the attorney that sometimes they say, “You should take whatever medication the doctors want you to take.” That isn’t in the spirit of this language. If anything you should be making that a bit more specific. I do want to focus on the primary issue before us today, the 72-hour rule.
I want to underline the point that the 72-hour rule is written as a due process protection for the individual client. It is not written as a guideline for a mental health or a medical professional. It’s very important for everybody on the Committee to understand that any of us could be held for 72 hours on the recommendation of a nurse, a social worker, or a policeman—people who are fundamentally not qualified to make that judgment. They initiate that process. You are brought into the presence and treatment of medical and mental health professionals eventually, but this is one of the most questionable deprivations of freedom. We tolerate it because we know that some people need to be evaluated. We made the 72-hour [rule].
Why 72 hours? There’s case law, but also an attorney named Pat Cashill came before one of the Assembly committees last session and said, “I had a client, a professional man. He was being held for much more than 72 hours. I want this law clarified.” Only two years ago we clarified this law to solidify the 72 hours on the basis that it was a compromise. Now this is at stake because we have a problem of our own making, a problem with the inadequacies of the emergency room system in Clark County and a problem in some situations of inadequate mental health beds in some parts of the state of Nevada. Those problems in no way should limit our right to no more than 72 hours. If there is a situation [where] someone has been brought to the emergency room and a significant medical problem has been detected and we want to deal with that problem before sending him over to a mental health facility, we should have a process where a judge will be asked to make an order to lengthen that process. The judge should have that kind of discretion.
[Dr. Siegel, continued] As the Chairwoman said, “almost a week.” We’re saying we don’t have to be concerned about what happens in those 72 hours because it really doesn’t mean anything. This law will only make that more emphatic, that it really won’t make any difference. We accept that there will be some people who need more than 72 hours in total process, but we ask that you insist that if it is more than 72 hours, a judge will make an order at the end of 72 hours.
Assemblyman Horne:
I understand that we don’t have the beds, but is there any middle ground? I can see where they’re coming from. It serves no good purpose if we’re going to start the clock right away and then they get to the [mental health] facility with 24 hours or less for the evaluation or they’re cut loose. [I would venture a guess that] your proposal concerning getting a judge to make these determinations wouldn’t always be as expedient [either] because the burden’s on the court. That seems unrealistic to me. It doesn’t seem like you could get a court to make that evaluation, to make those arguments in a sufficient amount of time either. Have you thought about those concerns or any other possible remedies, any middle ground between those two [positions]?
Dr. Richard Siegel:
We’re not asking the judge to make an order such as a short-term involuntary commitment. We’re asking a judge to make an order of further evaluation. It is necessary to make the time, in this particular case, for the exigencies of this case. That was the position that satisfied attorney Cashill when we discussed it today, that there be this kind of due process involved because it is a due process right. We see no substitute for that when we in fact have a really extraordinary law which allows somebody who is really not qualified, to initiate a process of 72-hour evaluation. We’re uncomfortable with the law as it exists, much less the idea of extending the power of somebody who, in our view, is not particularly qualified to initiate that order or to have that kind of power over you or me.
Assemblyman Horne:
So if we had the judge make this extension, who would make that request, that petition? Would it be the facility or law enforcement?
Dr. Richard Siegel:
Somebody wants to hold that person, deprive that person of their liberty, for more than 72 hours. My guess is that it would probably be the Division of Mental Health. I think they should have to make it known that they have not had the opportunity [for evaluation] that they should have had.
Lynne Bigley:
During that 72-hour timeframe, whether [the individual] is in a medical hospital or they get transported to a facility, because of the points Dr. Siegel brought up, because of who can actually initiate that process, we want to ensure somebody has evaluated that individual no matter where they are, [and said], “I’m a mental health professional. I’ve evaluated that individual and, based on my observation, they’ve got a mental illness and I believe they are a danger to self or others.” That’s what we’re talking about. That has to happen within that 72 hours. If that person is a danger to themselves or others and if it looks like [the evaluation will extend] beyond that 72 hours, then a petition to continue to hold that person must be filed by a district attorney.
That 72 hours is critical for a number of reasons. Number one, your liberty is being seriously curtailed; number two, you should be evaluated [as to] whether or not you’ve got a mental illness or whether it’s a medical condition causing the behavior. That evaluation should [be conducted] by a mental health professional. If you’ve got a basis to hold that person you can’t hold that person beyond 72 hours unless you go and you seek judicial review of that decision to continue to hold. To answer your question, I’m not sure how to get anything longer than 72 hours. Maybe a district attorney could go in and request [to extend the time to hold] because of some unusual circumstances. It certainly shouldn’t be something we want to see in our law. We want a certainty in terms of that liberty interest for people who are being detained. That’s our concern with the proposed language. It muddies up the water. We want a certain event, the detention of that person, to trigger that 72 hours.
Chairwoman Koivisto:
Questions from the Committee? [There was no response.] Is there anyone else who wants to testify on S.B. 179? [No response.] O.K., we’ll bring S.B. 179 back to Committee.
We’ll open the hearing on S.B. 301.
Senate Bill 301 (1st Reprint): Creates Nevada Mental Health Plan Implementation Commission. (BDR S-969)
Senator Randolph Townsend, Senatorial District No. 4 (Washoe County, part of Carson City):
[Introduced himself.] The bill before you outlines what many of us, particularly my friend and colleague Ms. Leslie, have been involved in with the issues of mental health, the changing nature of it, and the need to address [that] issue. [The bill also outlines] how the state of Nevada [would] take the information coming from the President’s New Freedom Commission on Mental Health and make the appropriate changes to help people who definitely need our help.
[Senator Townsend, continued] The bill is self-explanatory. We amended it in the Senate because I was under the impression that when the Commission finished its duties, which it now has, and presented [its recommendations] to the President, [they] became public. Apparently [they] only become public when the President decides [they] become public. I amended it in order to accommodate that fact and that’s why, instead of having a date-specific, [the Nevada Mental Health Plan Implementation Commission will] run for six months after the President releases [the report] for public consumption.
I will highlight some of the key points of what we did find on the Commission so you’ll understand the importance of us having a role in trying to implement some of these key things, and we won’t just have one more study sitting in some government agency.
When the New Freedom Initiative was created, it was created to remove the barriers that hinder Americans with disabilities from participating fully in their communities. As part of that initiative, the President established the New Freedom Commission on Mental Health and charged it with reviewing the public and private systems that serve adults with serious mental illness and children with serious emotional disturbances.
Over the past year, the Commission examined the mental health treatment delivery system, and I’ll quote from our six-month required review: the system was “in shambles.” We heard from more than 1,500 persons who gave a human face to the system. The Commission concludes that the system has passed the point at which incremental reform will succeed. What is needed is a fundamental transformation of the mental health service delivery system. The successful accomplishment of this transformation rests on two principles that are premised on respect for the dignity of adults with serious mental illness and the families with a child who has a serious emotional disturbance.
[The first point is] consumer-centered care. The mental health delivery system must demonstrate an understanding that consumers of mental health services stand at the center of the care system. That system will be dedicated to supporting the right of every consumer to participate in developing a plan of care and to receive treatment that is consistent with one’s preferences, needs, and values. The second point is the focus on recovery. The central goal of treatment will be to ensure that every individual who lives with serious mental illness or emotional disturbance has unrestricted opportunities to be actively engaged in planning and achieving their own recovery. Every consumer should have an opportunity to live, work, learn, and participate fully in the community.
[Senator Townsend, continued] I want to assure you, Madam Chairwoman, of my commitment. The way the bill is drafted is to have the appropriate members of the Senate and Assembly be members of this along with appropriate members from the Administration to ensure the development of a plan and the implementation of that plan for persons with mental health needs. It was a real honor to have served on this Commission. We have concluded our work. The reunion for all our members will be held in Las Vegas so there will be an opportunity for members of the legislature and anybody from the Administration who’s involved in mental health services, families, et cetera, to come meet some of the Commissioners and talk with them personally.
The plan is aggressive and specific. There will be people from all walks of life who may not find it the greatest thing in the world, but it wasn’t due to a lack of effort on the parts of the Commissioners. I’ve never before had to build a consensus with six psychosocial individuals and six psycho-pharmaceutical individuals who didn’t always agree.
Assemblywoman Leslie:
I want to commend Senator Townsend for his service on this national commission. It was quite an honor for our state to have a seat on that Commission and I was very proud of the work you did there.
I think [S.B. 301] is a great idea. As I understand this, it’s a short-term, six-month special commission that’s going to take a look at what the national recommendations are and see how they would translate into our state. It’s not an interim study, it’s not an on-going thing, it’s a specific time frame and that is unique.
Do you have any idea when the President is going to release the report? I’m just trying to imagine what the time frame for this might be. [Would it be] in time for budget preparations for the next biennium?
Senator Townsend:
The answer to that specifically lies in the bill and that is why we used the term “when the report becomes public.” We’re still waiting. If you ever ask the White House anything it has to go through multiple attorneys. It could be released the day the White House receives it, then [there might be a] more public presentation with the Chairman of the Commission, various families from throughout the country, and members of successful programs.
[Senator Townsend, continued] [One of our charges] was to look at things throughout the country that actually worked and we’re very proud of the fact that one of the things they looked at was the program you’re involved in, to see how something could be done on a shoestring [budget] or less.
The latest I see [the national study being released] is the spring. The reason [the study] was designed to be narrow, specific, and targeted was because it would force the members of the commission to make determinations quickly for budget purposes.
Chairwoman Koivisto:
Other questions from the Committee? [There were none.] Is there anyone else who wants to testify on S.B. 301?
Dr. Richard Siegel:
I always like to see the public represented on this kind of body. Assemblywoman Leslie mentioned this being a unique opportunity and I would suggest that a couple of public members be added to the list including, perhaps, a representative of the existing state commission. I would be happy to consult with Senator Townsend if he is open to any other possible members from the public.
Carlos Brandenburg, Administrator, Division of Mental Health and Developmental Services, Department of Human Resources:
[Introduced himself.] I’m here to address S.B. 301, which was introduced by Senator Townsend. President George W. Bush [established] his New Freedom Commission on Mental Health April 20, 2002. The President’s Mental Health Commission was established as part of the President’s agenda to ensure that Americans with mental illness not fall through the cracks, that lives not be lost, and that recovery be a realistic goal of treatment.
The President asked the Commission to recommend improvements in the United States’ mental health service system for adults with serious mental illness and for children with severe emotional disturbances. S.B. 301 creates a Nevada Mental Health Plan Implementation Commission that will develop a Nevada action plan for implementing the recommendations of the President’s Freedom Mental Health Commission. The Nevada Mental Health Plan Implementation Commission will report to the LCB [Legislative Counsel Bureau] and to the Governor.
I believe this will provide us with an opportunity to be able to develop our budget, but, more importantly, to actually look at how Nevada’s mental health system is in line, or not in line, with the national commission’s recommendations. On behalf of the Division, we give our wholehearted support to S.B. 301.
Chairwoman Koivisto:
Questions from the Committee? [There were none.] Anyone else who needs to testify for, against, or is neutral on S.B. 301?
Senator Townsend:
I have no objections to Dr. Siegel’s recommendation and whatever the pleasure of the Committee is. I just want to implement whatever we can.
Chairwoman Koivisto:
The bill has a concurrent referral to Ways and Means, so if someone would like to move for a do pass and re-refer…
ASSEMBLYWOMAN McCLAIN MOVED TO DO PASS
AND
RE-REFER S.B. 301 TO THE ASSEMBLY COMMITTEE ON WAYS AND MEANS.
ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.
Assemblywoman Pierce:
Where in the process do we consider putting a member on this commission?
Chairwoman Koivisto:
I think we’ll let Ways and Means deal with that part.
Assemblywoman Pierce:
And we’ll communicate with them?
Chairwoman Koivisto:
We have two members [of the Ways and Means Committee] here.
Assemblywoman Leslie:
I agree with that sentiment and I’ll be happy to take that idea forward. I’ll work with Senator Townsend and Dr. Siegel to come up with some amended language [for the Ways and Means Committee].
THE MOTION CARRIED. (Mr. Williams was absent for the vote.)
Chairwoman Koivisto:
Our next bill is Senate Bill 412. This is from the Board of Health.
Senate Bill 412: Authorizes State Board of Health to allow or require payment of fees for licensing medical and other related facilities in installments. (BDR 40-1244)
Yvonne Sylva, Administrator, Health Division, Department of Human Resources:
[Introduced herself.] Senate Bill 412 is being introduced on behalf of the Board of Health and the state Health Division as well as the medical facilities and facilities for the dependent that are licensed by the Bureau of Licensure and Certification.
Passage of this bill will allow the Board of Health some flexibility to establish a fee payment schedule that would reduce the burden of payment for facilities that make their annual licensure fees. This is also going to allow those local facilities to manage their cash flow better than having one lump sum coming out in December of each year. I should note that it’s also going to assist the Health Division’s cash flow issues, and over time it will ultimately result in a decrease in the amount of the General Fund loan that we currently have each year that’s placed into the Bureau of Licensure and Certification account.
Chairwoman Koivisto:
Questions from the Committee? [There were none.] Discussion from the Committee? [No response.] Is there anyone else who wishes to testify on Senate Bill 412? Committee, do you feel comfortable [about the bill]?
ASSEMBLYWOMAN LESLIE MOVED TO DO PASS S.B. 412.
ASSEMBLYMAN HARDY SECONDED THE MOTION.
Assemblywoman Angle:
Doesn’t the Legislature fix the amount of the fees rather than the agency? It says here, “and may fix the amount of each payment.” Oh, it’s not the fee; it’s the payment. No problem.
THE MOTION CARRIED. (Mr. Williams was absent for the vote.)
Chairwoman Koivisto:
Committee, we’ll go to our Work Session on Senate Bill 231. Marla can lead us through what we need to work on.
Senate Bill 231: Revises provisions concerning service animals. (BDR 38-98)
Marla McDade Williams, Committee Policy Analyst:
You have a work session document for April 28, 2003, with one bill on it, S.B. 231. This bill was requested by Senators Townsend and Titus. We had a hearing on it on April 16. Testimony at that time indicated that the purpose of the bill was to establish sanctions against persons or owners of animals who injure a service animal. Although no one testified in opposition to the concept of establishing such sanctions, there was testimony in opposition to certain aspects of the bill. The following pages describe these issues as well as certain aspects of another measure, Assembly Bill 332, which is currently pending in the Assembly Committee on Ways and Means.
If you’ll go to the next page, there’s a document entitled “Discussion of Senate Bill 231 in Relation to Assembly Bill 332 Including Possible Amendments, Table 1” (Exhibit C).
As I noted, two measures are currently pending concerning the issue of service animals. These are Senate Bill 231 [in this Committee] and A.B. 332 in Ways and Means. A.B. 332 was heard in the Assembly Committee on Government Affairs and amended by that Committee. I believe we have copies of that amended version.
There are conflicting sections in these two bills. Linda Lueck testified from Las Vegas and indicated that she represents the Governor’s Committee on Employment of People With Disabilities. She testified in opposition to Sections 8 and 11 and to the definition of “service animal” that’s currently in S.B. 231. There is an additional table [Table 2] after this one, that goes through some other issues that are contained in A.B. 332 (Exhibit D).
In Table 1, I’ve selected the sections that are similar in S.B. 231 and in A.B. 332. Those sections relate to sanctions against persons who injure, disable, or cause a death of, or allow a dog he owns, harbors, or controls to injure, disable, or cause the death of a service animal. You can see in subsection 1 of Section 2 the definition in S.B. 231. Beside it is the definition in A.B. 332 stating that it is unlawful for a person to allow any animal that he owns, harbors, or controls to cause injury to, or the death of, any service animal or service animal in training, or to endanger or cause injury to a person who has a disability and is accompanied by a service animal or a person who trains service animals and is accompanied by a service animal in training.
I believe that the differences between the two terms, “service animal in training” and “service animal” are substantial. Members of the Committee have to decide if they want to go forward with the language that’s in A.B. 332 in terms of the sanctions against a person who either injures a service animal or allows an animal he has to injure a service animal. The sanctions are different. Senate Bill 231 has a section that’s different and not included in A.B. 332 and that is Section 3 that says that it’s unlawful for a person to obtain or exert unauthorized control over a service animal with the intent to deprive the person using the service animal of that service animal. A person who violates the provisions of subsection 1 is guilty of a Category C felony.
[Ms. McDade Williams, continued] Members can read what the differences are between the two versions. On Table 2 I’ve included the definition of “service animal” in the two bills. I’ve done an edited version and then a version that takes the actual text so you can see there’s text in red that’s being changed from the existing statute and the text in blue is being added to existing statute.
We may need a different interpretation, but when I look at the definitions of “service animal” in Senate Bill 231 and in A.B. 332, it looks to me like the definition in A.B. 332 is broader and potentially includes animals other than those that are specifically trained to assist a person who is disabled.
Move down to the changes for NRS 426.510 in A.B. 332. Section 23 proposes to repeal this particular statute. It’s possible that language in A.B. 332 that establishes sanctions and penalties for discriminating against a person who is disabled suffices to substitute for NRS 426.510; however, A.B. 332 does not appear to have sanctions for persons who fraudulently represent themselves as being disabled, and that is language that’s currently included in the statutes.
On page 2, again there is a side-by-side comparison of the different penalties that are included in the two bills. In Senate Bill 231 there’s a first violation that is a misdemeanor and a second violation that’s a gross misdemeanor. In A.B. 332 a first violation is a misdemeanor, a second or subsequent violation, is a gross misdemeanor, and then it adds a civil liability to a person who’s convicted of a violation. Again, there’s the actual text for you to look at.
Because both bills change the definition of “service animal” it’s necessary to change the term of “pet” currently in the NRS. I think the key difference is that in Section 9 of S.B. 231 the words “for companionship” are deleted out of the definition of “pet.” That companionship issue has a tie-in in A.B. 332 for animals that certain persons who are disabled have. Again we have side-by-side language of the actual text from the bills.
The next row deals with requiring proof that a person is an authorized user of a service animal. In Section 11 of [S.B. 231], in NRS 651.075, “service animal” is simply added into that section to accommodate the new definition. In Section 16 of A.B. 332, significant portions of that statute are rewritten and the new text is included there. This part included the language where the Rehabilitation Division actually did some certification that a person was an eligible user of a service animal. I believe [Committee] members at the time of the hearing had a question about whether or not this function could somehow be assumed by the new office of Disability Services that’s going into the Department of Human Resources. I believe Mary Liveratti is here to address that question if anyone wants to discuss that issue.
[Ms. McDade Williams, continued] The other major change in A.B. 332 is that subsection 2 of that statute is deleted and that’s the language that had the Rehabilitation Division in it.
Moving on to the amendments of NRS 704.145 in Section 12 of S.B. 231, the change just makes accommodation for the term “service animal.”
Section 21 of A.B. 332 significantly changes the language for public accommodations in terms of common carriers and public conveyance or transportation. These sections are not included in S.B. 231, at least in terms of the substantive language that’s in those in A.B. 332.
[There are] changes in Section 13 of [S.B. 231] that affects NRS 706.366, and the edited text is there for you to view.
That takes you through the work session document. I think there are some substantive issues that need to be addressed.
Chairwoman Koivisto:
One of the questions that came up when we had the hearing was the ADA definition of a service animal. We wanted to make sure that S.B. 231 was in compliance with the Americans With Disabilities Act. The ADA defines “service animal” as “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability.”
In A.B. 332 the definition is in line with the ADA but also goes a little beyond. It makes clear that service animals and service animals in training serve individuals whose disabilities may not be visible.
Assemblyman Hardy:
I did not get the impression that the groups who [testified] were in competition [with each other] as much as they both wanted something good to come out of this [legislation]. Did I misinterpret that? I look at A.B. 332 and it looks more comprehensive, and I like it and I like keeping, on Table 2, the misdemeanor penalty for “persons who fraudulently represent themselves as being disabled.” That was the only thing I saw that was substantially different that A.B. 332 left out that S.B. 231 put in.
[Assemblyman Hardy, continued] I think everybody would be happy if we did something. I like the concept of it being more inclusive with the definitions of “service animals in training” and all the language that went there, too.
Chairwoman Koivisto:
I agree with that.
Assemblywoman McClain:
Is this going to go to Ways and Means, too, since the Assembly bill’s there now?
Ms. McDade Williams:
I think what the Committee can do, if you’re comfortable with it, is amend Senate Bill 231 with the language that shows parallel in A.B. 332 on just the first two pages, essentially under Table 1. Then what would happen is, if we amended that language in and didn’t make any other changes to the bill, when bill drafting went back through, they would make the changes in S.B. 231 that they needed to make to accommodate what we’ve done, but we wouldn’t bring in everything that’s in A.B. 332 into this bill. We would only bring in those parts that deal with penalizing a person who injures a service animal.
Assemblywoman McClain:
If we do that, Marla, then S.B. 231 will pass out and not go to any money committees, right? Then if A.B. 332 comes out of Ways and Means the way it’s written, then they’ll still be pretty much one bill in the end, right?
Marla McDade Williams:
What would happen is Senate Bill 231 would have the same language that a portion of A.B. 332 has.
Assemblywoman McClain:
Then whatever’s left over would get reconciled at the end of the session. [Ms. McDade Williams agreed.]
ASSEMBLYWOMAN McCLAIN MOVED TO AMEND AND DO PASS S.B. 231 WITH THE AMENDMENTS FROM TABLE 1.
ASSEMBLYMAN HARDY SECONDED THE MOTION.
Marla McDade Williams:
If I could just clarify, the definition of “service animal” will also change because that will bring in the definition from A.B. 332.
Chairwoman Koivisto:
I think those of us who were on Government Affairs and heard the testimony in there would be more comfortable with that.
THE MOTION CARRIED. (Mr. Williams was absent for the vote.)
Chairwoman Koivisto:
With no further business to come before the Committee, we are adjourned [at 3:34 p.m.].
Terry Horgan
Committee Secretary
APPROVED BY:
Assemblywoman Ellen Koivisto, Chairwoman
DATE: