MINUTES OF THE meeting
of the
ASSEMBLY Committee on Health and Human Services
Seventy-Second Session
May 7, 2003
The Committee on Health and Human Serviceswas called to order at 1:37 p.m., on Wednesday, May 7, 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
COMMITTEE MEMBERS ABSENT:
Mr. Wendell P. Williams (excused)
GUEST LEGISLATORS PRESENT:
Senator Ray Rawson, Senatorial District No. 6
STAFF MEMBERS PRESENT:
Marla McDade Williams, Committee Policy Analyst
Terry Horgan, Committee Secretary
OTHERS PRESENT:
Morgan Baumgartner, General Counsel, R & R Partners
Lucille Lusk, Cochairman, Nevada Concerned Citizens
Marsheilah Lyons, Researcher, Legislative Counsel Bureau
Randal Munn, Sr. Deputy Attorney General, Human Resources Division, Office of the Attorney General
Randall Todd, Ph.D., State Epidemiologist, Health Division, Department of Human Resources
Richard Siegel, Ph.D., President, American Civil Liberties Union of Nevada
Chairwoman Koivisto:
The Assembly Health and Human Services Committee will come to order, please. [Roll taken.] Mr. Williams is excused.
We’ll start with S.B. 386.
Senate Bill 386 (1st Reprint): Revises provisions concerning visitation rights of patients of certain health care facilities and disposition of body of person upon death. (BDR 40-957)
Morgan Baumgartner, General Counsel, R & R Partners:
[Introduced herself.] You should be having amendments to Senate Bill 386 (Exhibit C) distributed to you as we speak. I’m happy to represent to you that we have agreed amongst the interested parties to all the amendments included in the package you are going to get except for two, which I will highlight. Those we have agreed to take out of our amendment package. I believe Ms. Lusk will agree with me.
If you don’t mind, I’ll go through the First Reprint of S.B. 386 and then address the amendments that R & R Partners is proposing to the First Reprint.
The first provision of Senate Bill 386 is a provision dealing with visitation rights in hospitals for patients who are admitted or become unconscious or uncommunicative during their stay in the hospital. The First Reprint allows a patient or potential patient to execute an affidavit to designate a non-legal member of his family, or a family member, to be treated, for purposes of visitation, as a family member. That would mean the person designated by the patient could be accorded the visitation rights of a family member that are typically, in a lot of hospitals and care facilities, a little more liberal than that for non-family members. [A visitor] could stay longer hours, potentially spend the night, and be admitted to the ICU [Intensive Care Unit]. It’s only the designated person who’s allowed to do that.
[Ms. Baumgartner, continued] In our amendment we have suggested that be a letter of authorization rather than an affidavit because in the event that you are admitted to the hospital and become unconscious, there may not be a notary easily available. There are other mechanisms available that don’t require a notary so we thought it more fitting that this be a letter of authorization only. Also in the amendments there is some technical language that we believed was needed as a result of the amendment that was made on the Senate side. It just requires the medical facility to recognize that letter of authorization so that there’s no dispute. Once that [letter] is presented, that person is admitted in accordance with the family visitation policies. That is Section 1 of the bill.
Section 3 of the bill authorizes a person to execute an affidavit designating somebody to claim a body upon death and order the burial of that body. The language of the affidavit, as set forth in the statute, is pretty straightforward.
Section 5 of the bill deals with existing language for making anatomical gifts. You’ll see that the amended language allows the first person who can make a designation of an anatomical gift [to be] the person named in an affidavit that the deceased person named to make that anatomical gift. That person becomes the first person who can make [an anatomical gift] and then there’s existing language in statute that allows the spouse of a decedent, the adult [child], the parent, the adult brother or sister, and on down the line. So the person who’s been affirmatively designated now becomes the primary person who can make that anatomical gift selection. The next section allows that person to make that affidavit.
Section 6 is very similar to the anatomical gift [language]. It deals with cremation and it, again, allows a person who executes an affidavit designating a certain person to order cremation to do so. That person becomes the number one person in line for priority, then the spouse, then the other members of the family. Again, as in Section 5, it allows that affidavit to be executed.
The amendments you have in front of you deal with those sections. I’ll try to take them together because they’re more or less the same amendments. You’ll notice that the Senate Committee did some cleanup language because the order of priority between anatomical gift donations and cremation designations was different. The funeral home directors and some other folks suggested that it would be much easier to administer if those lists were the same, so that change was made.
The amendments that we’re suggesting, and which I believe have been agreed to, would be on the second page of the document I handed out. Section 3.5 would be a new section. For some reason, the Nevada Revised Statutes [NRS] do not carry a designation of priority—people who can claim a body if you’re only requesting burial. It addresses cremation; it doesn’t address burial. We have asked that you adopt the same standards and the same list of priorities for burial as they are for cremation. It would be the person designated in an affidavit, then through the family members, the spouse, the sons, the daughters, the parents, et cetera. We have added to the provision on the burial, to the provision on the cremation, and to the provision on anatomical gift donations, [language stating], “a person who, at the time of the decedent’s death, held the decedent’s primary domicile in joint tenancy with the decedent.” If a person lived in the same home and owned that property in joint tenancy with the deceased person, that person is the last person in priority who can order the burial, cremation, or anatomical gift designation. We’ve added that consistently throughout the statute and we’ve asked that you consider that as one of the amendments to the First Reprint [of S.B. 386].
[Ms. Baumgartner, continued] You’ll also see in those amendments that there’s a provision dealing with a dependent insured by a policy of health insurance of the decedent. We’ve eliminated that request. [In addition, there is language in the amendment stating that] 120 hours after death if nobody has claimed the body then any person may claim the body. We’ve also eliminated that from our request to amend the bill.
Assemblyman Hardy:
Your elimination of the “any person may claim the body” is in Section 3.5, number 2? [Ms. Baumgartner agreed.] There is no more “any person” [language] in Section 5 or Section 6, is that correct?
Morgan Baumgartner:
Section 5, because it [related to] anatomical gifts, never had that designation. In Section 6.1 [of the amendments], there is another subsection 2. It is also eliminated.
Assemblyman Hardy:
Okay, so subsection 2 in Section 5.1 is eliminated? [Ms. Baumgartner agreed.] In Section 6.1, number 2 under (h) is eliminated as well? [Ms. Baumgartner concurred.]
Assemblywoman Leslie:
You said that you thought [your amendments] had been agreed upon. Who has agreed [to them]?
Morgan Baumgartner:
The parties who expressed interest in S.B. 386, primarily Ms. Lusk. R & R Partners is doing this as a pro bono effort and we’ve been very diligently trying to work through these issues. I think we’ve resolved them.
Assemblywoman Leslie:
I think you’ve done a really good job and I’m really pleased to see this bill come forward today. As far as you’re aware, there are no objections to the other part of it?
Morgan Baumgartner:
Not that I’m aware of.
Assemblyman Hardy:
I appreciated you coming in and spending time with me, Morgan, and I appreciate the “heads up.” For legislative intent, this does not preclude the veterans organizations from being involved with claiming an unclaimed body, because it reverts back to the statute as is if there’s an unclaimed body. I just want to make sure that that’s still the case.
Morgan Baumgartner:
I believe that would be the case and I would assume if a conflict did arise LCB (Legislative Counsel Bureau) would flag that and then we could it work out with a technical amendment. From what I understand of the bill, they would not conflict.
Assemblyman Hardy:
I had a question about stepchildren being legally related or any legal relation but that’s probably more complicated than you’re wanting to do right now?
Morgan Baumgartner:
[It is more complicated] than I’m prepared to do right now, but I’d be happy to look into it. There are a whole host of people who are not included in the list right now and it goes from stepchildren to great-aunts, -uncles, et cetera. That list is quite a policy undertaking for you to look at.
Assemblyman Mabey:
What happens when a body isn’t claimed?
Morgan Baumgartner:
Typically, as I understand it, if the body is not claimed it in essence becomes a ward of the county. The public administrator and the coroner dispose of that body. How long they keep [the body] is at the county’s discretion. My discussions with the county indicated only about 1 percent [of bodies] go unclaimed. It’s a fairly unique situation but it does occur.
Lucille Lusk, representing Nevada Concerned Citizens:
We have worked closely with Morgan on developing this bill to this point and would like to express appreciation to her and others for working [the conflicts] out as well as they have. We are in support of S.B. 386 as it came from the Senate Committee and we also support the amendments that have been offered to you today with the two items that have been deleted.
If I might just briefly answer the question Dr. Mabey asked, I spoke with the Public Administrator this morning and he indicated that in seeking to identify the next of kin of the individual, the amount of time that it takes does vary. If they’re seeking a next of kin who they have reason to believe is out of state, that could take a significant period of time. He indicated that if they have reason to believe there is next of kin, generally the decision will be made to bury the body rather than cremate so that it’s not an irreversible situation. If there is no next of kin [or no one who] would fall under the legal definition now [after passage of S.B. 386], then the decision is generally to cremate the remains.
Chairwoman Koivisto:
Any questions for Ms. Lusk? [There were none.] Is there anyone else who wishes to testify on S.B. 386? [There was no response.]
We’ll bring S.B. 386 back to Committee.
ASSEMBLYWOMAN LESLIE MOVED TO AMEND AND DO PASS S.B. 386.
ASSEMBLYMAN HARDY SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Williams was absent for the vote.)
Next we have Senate Bill 82. Senator Rawson, thank you for being so patient.
Senate Bill 82 (1st Reprint): Makes various changes concerning public health laws. (BDR 40-677)
Senator Raymond D. Rawson, Clark County Senatorial District No. 6:
This bill came out of the Interim Committee on Health Care and there were a number of hearings on it. It came in as a very large bill that had a lot of provisions in it and there was a lot of significant testimony. We’ve had many hearings and revisions and it’s refined down now to a basic bill that does three things.
[Senator Rawson, continued] By introduction of the need for this [bill], about 10 years ago I was involved in rewriting the communicable disease statutes in Nevada. We have a very good statute now. It’s considered a model statute by a lot of other states. It was sensitive to the AIDS (Acquired Immune Deficiency Syndrome) issues and it still allowed proper treatment but with sensitivity for the number of people who might be infected with it.
As we come into a new age and we look at the potential for bioterrorism and significant spread of disease very, very quickly, we realize that there are threats that we maybe didn’t foresee. The law needs to be fine-tuned to be able to deal with those issues.
Right now, our communicable disease statutes allow public health authorities to quarantine people. If we had an airplane that landed at one of our major airports with a serious disease, smallpox as an example, how would we deal with that? Well, none of those people would walk through the airport. They would quarantine [the people on the airplane] and do the paperwork afterward. There would be some question as to the legality of quarantining large numbers of people without the court orders and so on. There’s no question that they would [quarantine everyone on the plane], and every community in this country would do [the same]. They think they have the basic laws on the books to be able to do it, but it raises issues. There is no due process in [the current law] and there are certain rights that are not protected in the current law.
Basically, this bill addresses the issue of quarantining large numbers of people and it does add due process provisions so that you simply can’t do that on a whim. There has to be a good reason for [quarantining large numbers of people] and there will be a judicial review of it. People have the right to representation and to communication. They can take a cellular phone with them. There’s a concern that people not just be whisked off and never be heard from again.
Finally, this bill sets up a syndromic surveillance so that we can intercept diseases like SARS (Sudden Acute Respiratory Syndrome) if we see those symptoms showing up in our hospitals or if we see that certain antibiotics are being used in large numbers in a certain area of the state. Very quickly we can start the process of letting other people know that we’re concerned about those issues and that we need to be watching for certain diseases.
It’s a refinement and I suspect over the years we’ll see new things come up that we haven’t thought of. This has been a well-thought-through, well-heard, and oftentimes voted-on bill. I recommend it to you now. It has none of the great concerns that were in the bill when we first saw the fax networks light up with concerns about it.
[Senator Rawson, continued] I might indicate that the American Civil Liberties Union (ACLU) has just presented me with some amendments they would like to present today. They presented those on the Senate side and I thought we had worked them in. As I look through them now, they are refinements and so I would leave that to your judgment as a Committee to listen to those carefully. There is one amendment where they express concern about just a physician being able to make this determination. I would urge you to consider what we’re trying to prepare for here. These are large numbers of people that we’re talking about that might be infected with, say, a bioagent that has been purposely sprayed. It’s difficult for us to come to grips with the fact that there may be thousands of people in the world that want to kill Americans or that want to spread these kinds of diseases. That issue exists. It is out there. If we have a true public health emergency like that there may not be enough physicians to be able to address all of the people. That’s why we wrote in “physician assistants and nurses in the public health setting.” I’ll defer to the judgment of the Committee. You have two physicians and they can certainly weigh in with their feelings about that because they see the practical side of it. That’s why we wrote it in and I understand why the ACLU would raise an issue. They would like to keep those powers as contained as possible.
With that, Marsheilah Lyons is here as staff if you have any questions about the process, the history, or other aspects of it.
Assemblyman Horne:
We’re not going to move on this bill today, right? [Chairwoman Koivisto confirmed that.] One question, when the Senator was speaking on the due process that has been included in this now, what due process is in S.B. 386 that wasn’t [in statute] before? I see in Section 7.5 it’s not due process but it [states that] the person quarantined will be allowed to possess a cell phone and make communications. Wouldn’t they normally be able to? Just because I’m quarantined doesn’t mean I can’t make a phone call.
Marsheilah Lyons, Legislative Counsel Bureau, Research Division:
What the Committee did during the interim is they included due process provisions similar to the mental health statutes [which] were not previously [in statute]. Randal Munn is here from the Attorney General’s office and he can probably speak more clearly to those.
Randal Munn, Senior Deputy Attorney General, Human Resources Division:
The communicable disease statutes as they’re written today really don’t have any due process in them. Essentially, the authority of the health officer is to issue an order and then the citizen has a duty to comply with that order or it becomes a criminal matter. If they were going to get due process, it would be on the criminal side instead of the civil side.
In looking at this issue globally with the onset of the potential for bioterrorism and then looking at the history of law, it has evolved since the 1950s when essentially this area was considered police powers of the state. The courts really wouldn’t look at what kind of due process people got; they would just defer to the state.
The courts have now looked at it over the years and said, “We need to treat this as a civil commitment like the mental health statutes for individuals that are a danger to self or others.” Taking that case law and overlaying that on the public health side, I helped the Committee essentially take Nevada’s existing law for mental health involuntary commitment, overlaid it into the public health arena, and tweaked it so that it would make sense in our arena.
What the due process provisions allow is for a public health authority, a physician, a physician assistant, or a nurse to apply to a health authority to get an involuntary commitment order or to try and isolate or quarantine someone. Then it would be solely up to the health authority to move on that and make sure they have all their ducks in a row by getting the adequate certificate from the medical professional and setting the factual basis for proceeding. They would be allowed to hold that individual for 72 hours upon an order of the health authority. In that 72 hours, the health authority would have to determine that the person is not infected or is not a risk to others and release him, or they would have to file a petition with the court for an involuntary commitment proceeding for isolation or quarantine. Therein lies the due process. It’s essentially a post-deprivation due process, which the courts have said is okay if it’s timely and constructed in such a way that the individual, after he’s been deprived of his liberty, is quickly put through a process where they can have that tested. This bill has been amended, through the other house, to add from the beginning the right of that person to challenge [the involuntary commitment proceeding] through an injunction or some other proceeding, most likely some kind of writ of habeas corpus, to try and prevent the process before it goes any further.
The citizen is empowered from the beginning. [They have] access to their phones so they can access attorneys. The process would provide for legal counsel, if they couldn’t afford one, paid for from their estate if they had one, or from the county otherwise. They would be treated in the same manner as individuals with mental health conditions are under our current law‑being allowed counsel having a standard of clear and convincing evidence, and having the opportunity to appear and cross-examine their witnesses by videoconferencing. If they were infectious they wouldn’t infect the court but they could have access to the court through videoconferencing.
[Mr. Munn, continued] There are lots of provisions being put into this bill to protect the citizens at a time when public health officials are really going to be stressed. The design, from my standpoint, was to put it in a framework in which we have district attorneys and public defenders that deal with this daily on the mental health side. They’re going to occasionally, or rarely, hopefully, ever have to do this on the public health side. If it’s the same procedure, the same concept, due process isn’t going to fail because it’s an out-of-the-ordinary event. It’ll be the same procedure, just a different factual scenario.
Assemblyman Horne:
We suspect somebody in here in this room has smallpox so this entire room is quarantined. At that point somebody would be sent to assess us, I would imagine, to see if that were the case. That person could be anyone from a physician to a physician assistant to a nurse?
Randal Munn:
Those individuals don’t have that authority. All they can do is petition the health authority, which are our public entities, the state Health Division, the Washoe County Health District, or the Clark County Health District. The Districts or the Health Division would have the authority to do exactly that, quarantine this room. They would have to bring in the professionals to do the assessment within 72 hours and make sure that we are right in doing what we’ve done. If not, we release everybody and apologize profusely.
If there was a problem, then that health authority, after getting the physicians in place to write the certificates of the medical condition, would be the basis for the petition to the court to hold [the people] as long as necessary to resolve the infectious time of the condition. That’s going to be based on medical fact and not on just a whim.
Assemblyman Horne:
I was just trying to get a handle on what we’re doing now and the law that’s in place now. I think we’ve all known the health authorities have the power to quarantine. All we’re adding are due process procedures should such an event occur?
Randal Munn:
Under the current law, the same factual scenario, Dr. Todd [State Epidemiologist] could just issue an order. It would have to be issued to each one of us individually because there’s no power to issue a group order for the group in this room. Ultimately, the way the law’s proposed in this bill, yes, you’d get swept up as a group; but then you’re processed individually and given your due process. That’s the power the law doesn’t have right now. What Dr. Todd would have to do is come up with an order of quarantine for every one of us. If we ignored him and walked out of the room, he could refer it to law enforcement. It would be a criminal matter at that point under the statutory scheme.
That power is still going to be there in the statute, and it needs to be, but this is a matter that needs to be dealt with in the civil arena and not the criminal arena. Passions grow pretty strong when someone’s liberty is being taken, and we should be dealing with that in the civil arena.
Assemblyman Horne:
What mechanisms are in place to prevent knee-jerk reactions or hysteria taking hold? If you remember in the 1980s with the AIDS epidemic, it seems to me if such a thing were in place there would have been a lot of people who would have been in quarantine and they would primarily have been gay men. Gay men would have been quarantined just for the fact that they were gay because, “We don’t know what this is, so let’s lock you up.”
Now we have SARS. I’ve spoken to some doctor friends of mine who tell me they aren’t really concerned about SARS because more people are dying of pneumonia in this country every year. But are we going to, just because we don’t know what it is, start quarantining people until we do [know what the disease is]? What mechanism is in place to protect us from that?
Randal Munn:
What we focus on in this bill is keeping that authority with the professional public health people, the Health Divisions and the Health Districts. Though a physician or a nurse or a physician assistant could petition, or essentially put an application in to a health district to quarantine someone, they don’t have the power to do it. Law enforcement doesn’t have the power to do it. The health district would have the power to do it and start the process. These, we have to assume, are the public health professionals in our state. They don’t have knee-jerk reactions as a general rule. They’ve seen the horror stories from history and they study it, it’s what they do for a living. At some point we have to trust someone to make these judgment calls, and in this case this bill focuses on the public health professionals we have in positions of authority now.
Assemblywoman Weber:
I heard in one of the Committee meetings that communities do disaster drills [to test, for instance] if a plane were to crash in a community, how law enforcement, firefighters, and all the levels of responders involved with [such an event would handle it]. Have there been exercises to see how this type of scenario works with 100 people, 500 people, 1000 people? Where would you put them? Was that included in any studies before recommendations [were made for] this legislation?
Randall Todd, State Epidemiologist, Health Division, Department of Human Resources:
[Introduced himself.] Yes, there have been some exercises and drills. I don’t think we’ve had enough of them. There was a drill last summer down in Clark County where the scenario was a deliberate release of tularemia. There is planning underway for a large scale, not a tabletop, but a full-scale exercise that’ll be a joint effort between public health agencies, emergency management agencies, and the military. As I understand, there’ll be a major military deployment. This will also take place in Las Vegas this summer with a different biological agent as the scenario. There have been some [drills], but personally I don’t think there have been enough. I think we need to do some additional tabletops and additional full-scale exercises to ensure that we can efficiently carry out our public health mission should the unthinkable ever happen and we need to respond in a timely manner.
Assemblywoman Weber:
Besides the bioterrorism side of this, SARS would be the most immediate need and I don’t know if there are any states that are actually conducting those types of drills or exercises now since the points of entry are anywhere from an airport to local hospitals.
Randall Todd:
The SARS situation brings up another aspect of this that hasn’t really been touched on. Prior to us having a great deal of concern about biological terrorism, which for all intents and purposes is simply the deliberate introduction of some disease-causing agent into the community, we were concerned about what has been referred to as emerging and/or re-emerging infectious diseases. [These are] diseases we thought we had once controlled that are re-emerging, or diseases we’ve never heard of before that have all of a sudden crossed a species barrier and are affecting the human population. SARS is a good example of that. It’s an emerging infectious disease that we don’t have any prior experience with.
[Dr. Todd, continued] What I can say is, and it’s been happening on a much smaller scale, the public health community has been getting ready for dealing with these types of situations for a number of years through training exercises and conferences. I just returned from one such conference in Washington, D.C., where we were learning how to apply geographic information system technology to the tracking of diseases such as West Nile Virus and SARS. Although some of the exercises and drills we might do [would be specifically] for a biological terrorism event, there is some drift, in terms of applicability, for other emerging infectious diseases. I would note that in the Health Division we’ve chosen not to call our program the “Bioterrorism Program.” We call it the “Public Health Preparedness Program” because we’re really preparing to deal not only with biological terrorism, which is a deliberate act, but also acts that Mother Nature might spring on us from time to time that would be naturally occurring but no less devastating.
Assemblyman Mabey:
Currently there is a suspected SARS case in Las Vegas, is that correct? Is that person being quarantined?
Randall Todd:
To the best of my knowledge, and I’ve been out of town for a couple of days, there have been a couple of suspected SARS cases in Washoe County and a couple of suspected SARS cases in Clark County. It’s important to note that all of these cases met the definition for “suspected” SARS cases; they didn’t rise to the level where we could consider them “probable,” and they certainly didn’t rise to the level where we could consider them as “confirmed” cases. The individuals, once they have been identified, have been asked to place themselves in voluntary isolation for the period of time that they are symptomatic. This is typically what public health does when faced with somebody who has a disease, or is suspected of having a disease, that could be transmitted to other people through casual contact. We do this most frequently with tuberculosis. In this state about a hundred times a year we’ll get a newly diagnosed case of active tuberculosis. Those individuals are immediately put into treatment; however, they will remain infectious for usually about two weeks after they start treatment. In most instances they go into home isolation; they do so at public health suggestion and they do so voluntarily. We certainly have provisions in law to make that a mandatory thing if the individual appears inclined not to cooperate with that public health directive.
We are dealing with SARS in much the same way. If you appear to have a disease that could be transmitted to other people, we would like you to stay out of public circulation for a while until we get this either ruled out, or until you are no longer considered infectious. I would say the vast majority of people are willing to do that because the public health authorities asked them to. Most of our laws are designed to deal with the small percentage of people who don’t do the right thing on a voluntary basis, and so we need these authorities to be able to enforce an appropriate public health action if it becomes necessary to do so. We usually don’t find it necessary to invoke those kinds of high-handed types of measures.
Chairwoman Koivisto:
So current law would read that if you suspected someone might have SARS, just using that as the example, if they didn’t voluntarily isolate themselves you could legally take some kind of action to force that?
Randall Todd:
Yes. My understanding of current law is that if somebody has a communicable disease such as SARS, health authorities could take action to isolate them on a mandatory basis. The difference between the current set of laws and what’s proposed in this bill [S.B. 82] is that, should we take that action now, there is no due process except through the criminal system, as Mr. Munn has pointed out. The other difference is that we would have to do this one person at a time, which could be rather awkward in certain biological terrorism scenarios where somebody might deliberately release a pathogen on a large number of people. On such a very large scale it might be that, in the best interests of protecting the public’s health, we issue a mass quarantine order or a mass isolation order and then fold in the due process provisions on a post-deprivation basis. We can do this now as a matter of law; it’s just a little bit cumbersome if we should have to do it on a large scale.
Randal Munn:
They have the authority to do some things. The question is, how will the courts look at it? There’s United States Supreme Court case law on the books that recognizes police powers with regard to smallpox and the actions of the state to protect the public. Will the Court fall back to that in the right factual scenario and say it’s still good law and what you did was fine? Or would it be the isolated case where your facts don’t pan out and the person really wasn’t sick; you really took away their rights, you didn’t give them any due process, and the court says what you did was wrong. You can do certain things under the law, the question is, at the end of the [situation] did you do it legally? This bill attempts to make sure we’re always doing it legally.
Assemblyman Hardy:
Just an observation. Dr. Todd, I appreciate you coming and giving a conference here in this building about a month ago on public health preparedness, otherwise known as bioterrorism. I think you see the reality of what happens in normal life when some crisis hits. We have what we call denial—it really isn’t happening, it’s really not the shark in the water so let’s not shut down the beach. I think China fell into that trap with the “let’s take the people around in an ambulance until the inspectors are gone and then bring them back.” The medical personnel in the Toronto hospital voluntarily quarantined themselves because they didn’t want to take home something that would potentially be detrimental to the health of their children and families. Self-quarantining is a reality in the medical field. The Hong Kong schools and public buildings shut down because the quicker you can contain an infection, or an epidemic, the better off you are from not only a health standpoint but also an economic standpoint. China’s going to have many economic repercussions from this [SARS outbreak].
To follow up on your preparedness issue, the preparedness we have to have as a nation is not limited to our public health facilities, but we, the public, need to be prepared in our homes. That 72-hour magic figure we talk about from a mental health standpoint is actually not long enough to figure out if you’re infected or not infected. We talk about 10 or 14 days. You have to have at least 10 days to develop an antibody that can be measured in 14 days, or even longer. The 72 hours is, in reality, enough time to start looking at what’s really happening. I was amused about the videoconferencing that you’re allowed to have. I can just imagine all these new little videoconference teams in their Class 4 moon suits setting up videoconferencing for these people who [are quarantined] because I don’t think many people have videoconferencing in their homes.
Preparedness in the family is vital. We all need to be ready for 72 hours, and preferably longer. In reality, if you’re actually exposed, it’s going to be a 10‑14‑day issue. That 72 hours just gives you breathing time to get through it. When we look at SARS and what’s happening now and look back at the 1917‑1918 flu epidemic, that was a vicious flu that did much the kind of thing that we’re looking at with SARS. Without antibiotics or antiviral [medications], those people were doing the same kinds of things we’re talking about now, limiting themselves voluntarily. They didn’t want to give it to somebody and they didn’t want to catch it, either. My hat’s off to the many people who have put so much into this bill. This [bill] is good stuff and I appreciate it.
Assemblywoman Pierce:
The part of this bill that makes me nervous is the phrase, “or group of persons.” Can you explain to me what you can’t do, under the original statute, that you could do by adding that phrase?
Randall Todd:
The way the current law is written, a health authority can issue an order for isolation or quarantine with appropriate cause, but it has to be in writing and specifically directed to an individual. The example that Senator Rawson used is probably an appropriate one. Let’s suppose we get word that an airliner is inbound to McCarran International Airport in Las Vegas. They radio in that there’s an ill person on board. There happens to be a physician on board who’s also examined this ill passenger and describes a rash and illness that bears all the hallmarks of being smallpox. Everybody on this plane has now been exposed and could be in the process of incubating this disease, which they would begin to show symptoms of in about two weeks.
Let’s say there are 300 people on board that airplane. If we allow that plane to land and those people to disperse and go their separate ways, we may have 100 or more other little outbreaks of smallpox taking place as they develop the disease and spread it to people they come into contact with in their respective locations. As it stands under current law, if we were to be unsuccessful at convincing the plane not to land in Las Vegas, we would literally have to meet it at the airport and be prepared to issue orders of quarantine to each individual as they got off the airplane, which would not be a very realistic thing for us to do. This law would give us the ability to issue a general quarantine order to all passengers on that airplane, and then make sure we follow up with appropriate due process.
Assemblywoman Pierce:
Under that scenario, you have a manifest so you know the name of everybody on the plane. It seems to me that you’re going to want that list. A sweeping order to include everyone on that plane might cause you to lose someone if you didn’t have a list. I understand what you’re saying, but this blanket [order] makes me nervous. I wonder if it’s even necessary in this day and age where virtually everything we do, 24 hours a day, is tracked by our credit cards, et cetera.
Randall Todd:
You’re right. We do need to have that list; we have to know the names of everybody who’s on that airplane. However, I can tell you from experience that these events can go down very, very rapidly. To prepare individualized orders of quarantine prior to that plane landing and having the passengers deplane and disperse could present us with an unworkable situation. An event happened just a couple of weeks ago in Las Vegas. It turned out not to be anything, but it illustrates a point. A plane inbound radioed that they had 12 people on board who were vomiting and it had not been a turbulent flight. Was this an outbreak of Norwalk virus? What was going on in this airplane? The communications happened very rapidly but by the time public health authorities were informed, the plane had landed and the passengers had been allowed to depart. It was probably about 15-20 minutes out of town when the information came in and by the time we could have gotten [orders of quarantine], had it been appropriate, it would have been too late. There is a need to issue an immediate order that is somewhat sweeping, but you’re also correct. We do need to follow up with a passenger manifest and be able to track people in a systematic and appropriate way. Nothing in S.B. 82 would prevent us from doing that, either.
Assemblyman Hardy:
Have you ever read The Hot Zone by Robert Preston? It’s probably one of the scariest books I’ve ever read. It obviously is an overplay because it talks about the Ebola virus, which is so rampantly lethal that you run out of people you can infect because you die too soon to go next door and give it to somebody else. Those are the kinds of viruses we’re afraid of. Just a simple bad bug influenza affected this country and that was a horrible event.
As I see this bill, we don’t have a statute that protects our rights, other than the Constitution, as much as we will have after [passage of S.B. 82], which gives me an opportunity to say, “Yes, I do have a mechanism through which I can maintain my rights.” This bill does that kind of thing, whereas now we could do whatever we want and then, later, we can say, “Oops, we didn’t do it the right way.” This gives not only the patient, or the potential patient, but the care providers and the public health people a framework to work within and allows them some safety in what both parties are doing.
Assemblyman Horne:
I don’t believe that those who expressed concern for this piece of legislation are necessarily putting their heads in the sand. I think it’s prudent of us, in moving in this direction, to make sure it is the right step to take because of the liberties we’re speaking of. Fear alone does not necessarily make it a good piece of legislation or make these appropriate actions to take. To Dr. Hardy’s analogy of the shark in the water I would say there are always sharks in the water, but we don’t stop going to the beach. I would remind my distinguished colleague that the Constitution is our supreme law of the land. We should take note of it, particularly at times like this when we’re possibly going to suspend someone’s civil liberties, albeit for the protection of others.
Chairwoman Koivisto:
Any more questions from the Committee? [There were none.] Testifying in support is Lynn Chapman.
Lynn Chapman, Vice President, Nevada Eagle Forum:
[Introduced herself.] We would like to thank all the people on all the committees who have worked so hard on this. It started out as an 80-page bill and it’s now down to 17 pages. We applaud all the changes that have been made. We realize that everybody wants the right thing and the best for the state of Nevada and all its people. There are a couple of things I thought were wonderful that were added and one was Section 7.5 where you could have a cell phone or access to a telephone. That was very helpful.
Also, on page 4, line 33, the provision of consensual medical treatment will be very helpful for everybody. There are a couple of concerns I have, one being on page 4, lines 39 and 40, “Upon voluntary consent of the person, parent of a minor person, or legal guardian of the person.” If there is a child involved, would the child be taken away from the parent and separated from the parent if the parent is not infected and the child is? What happens in that scenario? For a very young child, that might be a very scary thing. We’re concerned about that.
On page 5, lines 40-44, “Pursuant to its own order and without a warrant:” a person could be taken into custody and transported. What we were concerned with was how would a person know? On page 6, lines 30-33, it says, “any health authority or peace officer to take a person…into custody…and transport.” How would a person know if there’s no search warrant? Is there a certificate or piece of paper or something that would be given to the person who is being taken away? We have that concern. What if it is a child that is being taken away? Would the child be given a piece of paper to be given to a parent or would a parent be called right away? We have a little concern with that.
Chairwoman Koivisto:
My recollection is that those were concerns when we first heard the bill as well. Mr. Munn, perhaps you can come up and address this. It appears that Sections 8 and 9 address those concerns.
Randal Munn:
The premise we’re operating from that is getting lost here is that this is all starting with a written order from a health authority. That is the piece of paper that someone is handed, whether it’s in the group capacity under S.B. 82 or as an individual person. Once they receive that order, they know why they’re being detained, upon “an application to a health authority for an order,” the first line in Section 10. The order is what’s happening here, “pursuant to its own order,” meaning the health authority’s order, “without a warrant,” the “person or group of persons alleged” could be taken into isolation and quarantine [in a residence] and possibly transported, if required; that’s why subsection 2 is in there.
[Mr. Munn, continued] If you’ll read Section 10 from [beginning to end], it essentially allows three ways for this to work. One is an application process to a health authority, where the health authority is reacting to someone else’s observation. Those people who can make the application are physician assistants, another health authority, a doctor, or a nurse. [The second way would] be the health authority’s own investigation based on their own epidemiological work in their jurisdiction.
Finally, on page 6, subparagraph (b), if the health authority felt they had a volatile situation they could, rather than issue their own order, get the court to proactively issue an order. [They would] present their facts before they took anybody into custody if they had the luxury of time to do that. An example [might be] someone with TB [tuberculosis] who’s obstructive and dangerous. You don’t want to mess with them, so you go to court to get [that] authority before [law enforcement] ever takes them into custody. It provides a mechanism for swift movement and post-action or pre-deprivation due process if the health authority felt it [was necessary]. That’s the way the bill was constructed, but the paper that a person’s going to get, in most instances, will be an order of the health authority—just a written thing. That’s what’s in the law now.
Chairwoman Koivisto:
[Could you respond to] the other part of Ms. Chapman’s concern? If it’s a child, is the child removed from its family? Does the family stay together? How is that going to work? That would be a concern for people with small children.
Randal Munn:
I could think of every kind of factual scenario where the parents are also quarantined with the child because, obviously, they’re exposed. However, it could happen during school where a health authority came in because the school administration called and said certain symptoms were happening. I can anticipate there being a situation where the health authority needs to move quickly and the child might not be with his or her parents. [In that situation], they’d have to figure out whether the parents were exposed anyway. Obviously that’s a painful situation and, as a parent of two children, I can certainly empathize with it. I think the public health authority’s going to have to make a judgment call in those circumstances. I don’t think they’ll have any choice.
Assemblyman Mabey:
What if a person has a sexually transmitted disease and you know that they’re infecting others. Could you use this provision?
Randal Munn:
I don’t believe this law’s intended to deal with that circumstance. There are criminal statutes that deal with the intentional spreading of a communicable disease. It would depend on the facts. Clearly, if you have someone who is engaging in criminal behavior you’re going to deal with them in the criminal arena because it’s much more swift than the health authorities [could move] and they’re not equipped to deal with a criminal setting. As Dr. Todd testified, the majority of these people will just say, “Yeah, I’ll stay in my home.” That’s all that needs to happen. We’re talking about the small percentage of cases where someone’s going to say, “No, I’m not going to do what you tell me to do.” The criminal setting is equipped to deal with the intentional spreading of a communicable disease that’s life-threatening.
Assemblywoman Pierce:
Assemblyman Mabey brings up an interesting point. The largest epidemic we have in the world today couldn’t be touched by this because what do you do if you quarantine somebody and we can’t cure the disease? How long do we quarantine people? I understand why we want to do this kind of stuff, but I think that mostly this sort of thing doesn’t work. It’s not as if diseases suddenly appear out of nowhere. Even the influenza epidemic that followed World War I didn’t come out of nowhere. As far as we know it started in China and we took it to Europe on troop ships, but that wouldn’t happen today. Look at SARS. Three weeks later we have a real good idea where it started and where it’s going. It seems to me that it’s fairly unlikely that SARS is going to kill 18 million people.
I need to read the rest of S.B. 82. I think this sort of stuff gives us a false sense of hope, this idea that somehow by quarantining we can contain things. I think that once [diseases] like this break out we have the mechanisms we need in statute now to quarantine people and I’m just not convinced at this moment that we need this whole other layer [of legislation]. I am still nervous about the idea that whoever is in the health district can suddenly decide one day that a group of people should be rounded up. The reason that doesn’t happen here is because we do protect [against] that kind of stuff. But that kind of stuff has happened other places and there are places where people get rounded up for all kinds of alleged reasons. I’m actually more worried about that than I am about disease.
Chairwoman Koivisto:
I should point out again that the ability to do all the things that are in this bill already exists. This can already be done. The bill puts in place some protections for individuals that are currently not available.
Assemblywoman Weber:
Having spent a lot of years dealing with communicable diseases and working in the field, I wondered if the differences between communicable disease, infectious disease, and sexually transmitted disease could be explained to us. My understanding is that the most prevalent worldwide infectious disease is tuberculosis. Just to clear up the record, HIV is not a communicable disease, is that correct?
Randall Todd:
HIV would be considered a communicable disease in a broad sense. It isn’t transmitted casually; it requires some fairly intimate contact and exchange of body fluids in order to transmit. For HIV a quarantine would not make any sense. What does make sense is to ask an individual who has that disease to refrain from engaging in certain behavior. There are provisions in existing law where, if the health authority becomes knowledgeable that an individual is consistently engaging in behavior that is likely to transmit a disease such as HIV, then an order can be issued to that person to have them stop that behavior. If they don’t comply with that order then it becomes a matter for the criminal system to deal with.
We have the luxury of time to play that scenario out because we know that that individual is only going to be transmitting under circumstances where they are engaging in those kinds of behaviors. They’re not going to transmit HIV by walking around a busy shopping mall or an airport terminal. It doesn’t transmit in exactly the same way.
I don’t know about your tuberculosis statistic on a worldwide basis. I know that in the United States our most common class of infectious diseases would be sexually transmitted diseases. We see far more cases of chlamydia and gonorrhea, for example, than we do tuberculosis. In this state we see 100 cases at most of tuberculosis a year, whereas we are likely going to see a few thousand cases of sexually transmitted diseases in a year.
Once again, we don’t talk about quarantining or isolating people with those diseases. You’ve heard us use the term “isolation” and you’ve heard us use the word “quarantine.” These are not synonymous terms; they mean different things. We isolate someone if they have a disease, we know they have it, and the disease could be transmitted to other people if they were allowed to have contact with other people who are infected. The duration of that isolation needs to be only for as long as they are contagious.
[Dr. Todd, continued] Quarantine, on the other hand, is applied to people who do not have the disease but who have been exposed to it. They would only need to be quarantined for the duration of the incubation period of the disease they have been exposed to. For example, if you were exposed to smallpox, we know that the incubation period for that disease tops out at about 17 days. We would only need to place somebody in a quarantine where they are observed for the possibility that they might develop the symptoms of that disease for a maximum of 17 days. If they should develop symptoms during that time, they would be placed in isolation and removed from quarantine.
One of the reasons you have a situation where public health quarantine law is based exclusively in police powers without any due process, whereas mental health law has evolved to include quite a lot of due process, is precisely because public health has used its quarantine and isolation authority very sparingly. We very rarely have to resort to it and very rarely do resort to it, so there hasn’t been a need for it to progress into the courts where we would have to evolve greater due process than what we have right now. What you’re seeing here [in S.B. 82] is anticipation that, given the world we live in today with the possibility that people could deliberately introduce pathogens into the community, it makes sense to take a proactive step and make sure that we have the laws we need on the books. Hopefully, we won’t have to use them. Hopefully, the status quo will continue. But if we do, we need to make sure that we wouldn’t face insurmountable legal challenges in the court to controlling public health problems and protecting the vast majority of the population from being exposed to these diseases.
Richard Siegel, Ph.D., President, American Civil Liberties Union of Nevada:
I find myself in the position of being somewhere in between the two sides of the Committee on this issue. I would say to Assemblywoman Pierce and to Assemblyman Horne and others who may be agreeing on that side of the issue that, on balance, if I was on the Committee, I would vote for [S.B. 82] with six of the seven amendments I have put to Senator Rawson today (Exhibit D). The one that he objected to I would exclude, that is my amendment 7. I would exclude that one because I understand it better now. I understand now the point that was made that this is better than the mental health law where a registered nurse could actually put you into a 72-hour surveillance situation. Here, you’re petitioning to the health authority and I can find what is in the law acceptable. On balance, there is an increase of due process in the law which is for me a very good thing.
[Dr. Siegel, continued] I also probably am in the middle because I do recognize that there is, in addition to the concerns that Assemblywoman Pierce raises, a concept called the “right to health.” As such, the neglect by government of the health concerns of the people is a violation of their rights. So there is that balance. The government has both an obligation to preserve liberty interests and [an obligation] to preserve [its citizens’] right to health through the police powers and through others. In principle, I think this bill has been moving along a good track and I personally congratulated Senator Rawson and the committee that worked in the interim for the work they did which started from what I think was a somewhat draconian bill, a model federal bill, and takes us to where we are now.
I have six points left. These are all amendments and I take them very seriously. Deputy [Attorney General] Munn had indicated that they used the model of the mental health bill [in drafting S.B. 82]. At least two of the problems in this bill come because they adopted the state of Nevada’s, and other states’, model of a mental health bill. For example, in my first point in Section 24, in the judicial process we look at here “any past actions of the person alleged to have been impacted.” The “past action” is all about past mental health action. It’s been in Nevada [mental health] law because we would be concerned [about] the psychotic things a person had done previously. This has nothing to do with contagious or infectious diseases, so I am telling you, and I think Dr. Rawson understands, that this is something that need not be in the bill. We might imagine somebody had a history of violation of law [and that] he’s some kind of sociopath, but that isn’t why it’s in the bill. It’s in there because it was in the mental health bill and please remove it from Section 24.
The second point is a minor thing but it’s important to us. There is a good paragraph in Section 29 on “least restrictive environment.” We use this one in mental health and we use it in public health. It says all the things that were said today we should do, but the person should wind up in the least restrictive environment necessary under normal medical practice. If he can be in the house, he should be in the house. If he can be in the hospital and not in some kind of special ward, he should be there. All I’m asking for is in [amendment] number 2, move that [language] from Section 29 to Section 1. If we took this law to court, that would be the basis of our challenge; it would be “least restrictive environment.” It should not be on page 15 of the bill; it should be on page 1. Nothing new [needs to be added to] the bill just put [that language] on page 1 so that people would see that it was part of your legislative [intent].
On point number 3 there is one particular right not mentioned in S.B. 82 although it certainly came up in earlier testimony; it is the right to refuse treatment as indicated in federal and other Nevada law. We do have the right to refuse treatment. It is sometimes overridden by federal courts in mental health cases. It is, to my knowledge, not normally overridden in non-mental health law. If I don’t want to take penicillin for my pneumonia I understand that to be my right unless you could go to court and prove that I’m incompetent in mental terms. You’d have to do that. My point would be, let us at least mention in the statute as part of another due process language that the patient has the right to refuse treatment as indicated in federal and such other Nevada law. That includes the right for somebody to go to the courts and establish that [the patient] is incompetent to make that judgment and a guardian may make that judgment for him.
[Dr. Siegel, continued] In Section 24 we have another one of those mental health languages—30 days for the initial court- [ordered isolation or quarantine]. We’re not objecting to the 72 [hours], which also comes from mental health law, but now we have 30 days for the initial judicial order and up to 120 days after. The doctors may correct me on this, but infectious disease does not run anywhere near 120 days, and 30 days would be problematic. It’s only there because it’s in the mental health model. It isn’t about infectious diseases and it isn’t about the incubation of infectious diseases. I propose 14 days; the doctors on the Committee may have a better idea whether that should be 21 days, but it should not be anywhere near 120 days.
[Concerning my point] number 5, previous iterations of this bill had put in religious or conscientious objections, particularly to treatment, as indicated under this bill, and testing. I mentioned immunization treatment. I could not find the specific reference to religious or conscientious objection in the latest version of the bill but it was in a previous version. That was a major point of testimony in the interim committee and I understood it had been agreed to.
Point number 6 has to do with the 72-hour [period], and I’m recommending that even in the first 72 hours we specifically allow and authorize the seeking of injunctive relief. I understand that there should be a normal time for initial investigation, but there can be, in my mind, such a fundamental error in identifying somebody. It may be that they would have that power anyway, but I would like it to be in the bill.
I am dropping number 7. Mr. Munn convinced me that was not necessary to amend. If the registered nurse was getting somebody into 72-hour detention without the review of the health district I would ask for that amendment, but since the health district must make the order, I do not.
The final point was also something that had been in another recent version of the bill. I could not find it [in this current version]. What I did find in the bill was the ability to telephone or use a cell phone by the patient themselves. There had been [language in] a version of the bill that the authority invoking the quarantine would make a good-faith effort, involving telephone and written notice, to [inform] the closest of kin to that person. The person may be very, very ill and not in a position to [make a] telephone call so that is a necessity. My understanding from Senator Rawson’s remarks was that he was not “really opposed to anything except [Dr. Siegel’s] point number 7.” I hope you will support this bill with the exception of the other amendments I have put forward.
Assemblyman Hardy:
I concur with what you’ve said, Dr. Siegel. I have a question on your point number 3 [involving] a child. Do you have language?
Richard Siegel
That’s why I said, “As indicated in existing federal and Nevada law.” I don’t think we have to rewrite all of that law. There are guardian rights. We do have provisions. The most difficult thing is in those areas of religious and conscientious objection. That tends to create the biggest problems for children. For adults we tend to indulge that kind of thing but for children we don’t always want to indulge that.
Assemblyman Hardy:
You don’t see what we’re doing or what you’re proposing as precluding the treatment of a child if the authorities feel that child needs to be treated?
Richard Siegel:
I think the parents, first of all, would get the opportunity to act instead of the child under 18 [years of age]. Then there would be issues of competency and religious and conscientious objection, which the law has struggled with for many years.
Assemblyman Hardy:
So we don’t need to address this?
Richard Siegel:
I don’t think you have to rewrite the NRS over that. I would hope not.
Chairwoman Koivisto:
I’ve been informed that on page 13, line 20, in Section 24, the concerns in number 5 are covered. It must be in NRS 441A.210.
Richard Siegel:
I did see that, but I didn’t have NRS with me as I prepared [these points]. I wasn’t certain whether the specific right to refuse treatment was included there. If it is fully covered I withdraw my concern.
Chairwoman Koivisto:
I think that probably covers number 5 and perhaps number 3, as well.
Richard Siegel:
Number 3 is what I had primarily in mind. I just wanted [numbers 3 and 5] reviewed and taken into consideration.
Assemblyman Horne:
My question deals with the right to refuse treatment. I don’t understand the rationale if, under these circumstances, we are isolating or perhaps quarantining someone or a group with a virulent disease, but then all they have to say is, “No, I don’t want the treatment.” We’re talking about public health. If we have the treatment available, why would that [option] be extended in such a situation?
Richard Siegel:
Certainly you don’t have the right to risk the lives of others in terms of transmitting the disease, but I believe you have the right to refuse treatment, even if that means the death of yourself, as long as you are mentally competent. That is my understanding of existing law. As you know, several fairly substantial religions oppose any kind of medical intervention and we generally honor that for otherwise competent adults. It isn’t necessarily to save my life. They don’t have the right to force me to save my own life.
Assemblyman Horne:
If I’m in the hospital and I refuse treatment because I have an inoperable brain tumor, [that’s one thing]. But when I have a disease, particularly the type that is communicable, I’m also putting health care workers at risk, aren’t I? They are part of the public we’re trying to protect. In a sense, when we say that they have a right to refuse [treatment] that means the person has allowed themselves to continue to put at least a small segment of our public at continued risk until they die.
Richard Siegel:
Your point is well taken. My fundamental principle is that you should not be in a position where you’re risking the health of other people in that situation. At the same time, there’s a balancing that goes on with the autonomy of the individual. We have come increasingly to respect the right of the person to refuse treatment. It emerged, in part, in mental health law because of [treatment with] Thorazine. There were a lot of negative side effects [of that drug, which was used as an] antipsychotic medication.
[Dr. Siegel, continued] Outside of mental health there are medications people would prefer not to take because they have side effects. Malaria, for example, comes to mind. Even preventive [medications] people may choose not to take. As you know, there are real concerns about immunizations for smallpox, and there are issues of conscience. We have just indulged a huge proportion of the people who we said we wanted to see immunized for smallpox who refused. I believe the great majority of people in the United States who were asked to take immunization for smallpox have refused. They have acted on their autonomy. They didn’t have the disease but these were our first responders, and most have refused.
I don’t have all the answers and I don’t know if this bill is the place where we have to rewrite the entire law on the right to refuse treatment. I was only concerned that we recognize the law as it exists and I was afraid that [language] had been taken out. If it is covered by that reference to NRS 441, I would withdraw my concern.
Chairwoman Koivisto:
You are correct. Many, if not all, of the health care folks at UMC (University Medical Center) in the emergency areas have opted not to take the smallpox vaccinations. Any other questions from the Committee? [There were none.]
I have Janine Hansen signed in [to speak on S.B. 82] and amend the bill. I’m assuming she is probably supporting the same amendments as Dr. Siegel? [Ms. Chapman concurred.]
Comments or discussion from the Committee? [No one responded.] I think I am going to call on medical expertise concerning the timeframes that we have in S.B. 82 such as 120 days, 30 days, and 150 days.
Assemblyman Mabey:
I’m not an infectious disease specialist so I can’t help you very much.
Randall Todd:
I think the reason we had some of those longer timeframes in the bill was to deal with situations such as tuberculosis where somebody may either refuse treatment, which is their right to do as has been suggested, and remain contagious for a very long period of time. We’ve even had rare instances where an individual was refractive to any treatment that we had to offer. I can think of one homeless individual who was in isolation with active tuberculosis. He was contagious to other people and, had he been allowed to mingle, which is what he would have preferred to do, he would have surely spread his disease. He was resistant to every drug we know of that would have treated his disease. Had he spread it to any other individual, they would have also been resistant to any treatment we know of to treat their disease. He was isolated in a mobile home that the health district provided for him for a number of years until he died. The health district made certain he had food and access to television and telephone and other things he might need and ensured that people would visit him safely from time to time. The health district did as much as they could for his comfort, but they couldn’t allow him to be spreading the disease. It would be cumbersome to have to go in for a new isolation order for such an individual every two weeks. In the vast majority of situations, your previous witness was correct. It wouldn’t need to be for that long. The extended timeframe was placed there specifically to deal with issues such as tuberculosis.
Chairwoman Koivisto:
Would it be possible to make a specific reference to tuberculosis for those longer timeframes? That might give people a little more comfort.
Randall Todd:
It would be my suggestion not to be that specific. If we were having this discussion last year and wanted to put something specific in [the language] it wouldn’t have covered the SARS situation. We never know when a new disease entity is going to come up. I think you might consider some language that would indicate that the period of isolation or quarantine would be for no longer than is necessary to prevent the spread of communicable disease.
Bear in mind, these are not inexpensive procedures to do, and I can assure you nobody currently working in public health is of a mind to unnecessarily keep somebody in isolation or quarantine. We would want them out just as quickly as we could get them safely out.
Chairwoman Koivisto:
Following World War II, there were a good many people isolated in sanitariums for tuberculosis and they lived there for quite a while so it’s certainly not unheard of.
Richard Siegel:
I was involved with the ACLU when we developed the public health law approach that became the AIDS approach. I think it would be useful for the Committee to know, in dealing with this and with other issues, that there was a traditional public health law model that was far more coercive than we have now. Almost anything could be done without any follow-up recourse. This changed primarily in the 1980s in the context of the HIV epidemic. It was first referred to as a gay men’s disease, but we came to see this public health law in the context of antidiscrimination issues. We also came to see it as one, and this had been building for a period of decades, in which coercive approaches could be counter-productive. We developed a new set of approaches to public health law in the 1980s in which we really favored non-coercive [approaches such as] community involvement and cooperation and concentration on non-discrimination.
[Dr. Siegel, continued] Perhaps we’re now at a point of trying to find a new synthesis of the two approaches. I think that’s what we’re doing here today. [The response to] AIDS had a great deal to do with communities and discrimination. We’re trying to find something more coercive than the AIDS model but with far more due process than the public health model of 30‑40 years ago.
Chairwoman Koivisto:
While we’re waiting for Janine, is there anyone else who wants to offer testimony on S.B. 82?
Lucille Lusk, Cochairman, Nevada Concerned Citizens:
I will just briefly say we consider S.B. 82 to be primarily protective in nature, not primarily a grant of power. [It recognizes that] changes have taken place in the world and is protective in nature to assure, as Dr. Siegel has indicated, that there is in fact due process. [It attempts] to bring a balance into play that will address situations.
I did want to mention that on page 6 these things can only be brought into play “if the health authority acting in good faith,” it says, “believes that the person or group of persons has been infected with or exposed to a communicable disease, and that because of the risks of that disease the person or group of persons is likely to be an immediate threat to the health of members of the public.” Diseases such as AIDS, candidly, are not immediate threats to the health of the general public because of the specific ways that they are spread.
There are a lot of protections in [S.B. 82]. I am also very sympathetic to Dr. Siegel’s recommendations for amendment and, to the extent that they are not already incorporated, would really appreciate your consideration of those refinements. A couple of them were agreed to previously and some didn’t apparently make it all the way through [the bill drafting process].
We deeply believe that this legislation is needed so that we can be prepared and so that the protections for our civil rights are in place before the situation happens rather than afterwards when there’s an outcry.
Chairwoman Koivisto:
This is a real turnaround from the testimony we heard in the interim. The bill has changed completely.
We’re not going to vote this out today because we’re missing too many Committee members, but we will have a work session on it and we’ll take Janine Hansen’s testimony on it at that time.
We’ll bring the bill back before the Committee, and Marsheilah, will you verify with Senator Rawson [what his position] is on these amendments? We don’t want to do something that’s not going to make it through a conference committee. We will take this up at our next work session.
Is there anything else to come before the Committee? [There was no response.] We’re adjourned [at 3:29 p.m.].
RESPECTFULLY SUBMITTED:
Terry Horgan
Committee Secretary
APPROVED BY:
Assemblywoman Ellen Koivisto, Chairwoman
DATE: