MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 21, 2003
The Committee on Judiciarywas called to order at 8:08 a.m., on Friday, February 21, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
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:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
GUEST LEGISLATORS:
Assemblywoman Kathyrn A. McClain, District No. 15
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Sabina Bye, Committee Secretary
OTHERS PRESENT:
Doreen Begley, RN, Nevada Hospital Association, Reno, Nevada
Lawrence P. Matheis, Executive Director, Nevada State Medical Association, Reno, Nevada
Lisa Black, RN, Executive Director, Nevada Nurses Association, Reno, Nevada
Bobbie Gang, Lobbyist, Nevada Women’s Lobby, Las Vegas, Nevada
Nick Matteis, Government Relations Assistant, K. Laxalt Consulting, Reno, Nevada
Sandra K. Rush, Assistant Vice President, Nursing Services, St. Rose Dominican Hospital, Henderson, Nevada
Fred Hillerby, Quest Diagnostics, Las Vegas, Nevada
Jerri Strasser, SEIU Nurse Alliance, Las Vegas, Nevada
Lucille Lusk, Lobbyist, Nevada Concerned Citizens, Las Vegas, Nevada
Jack Mayes, Executive Director, Nevada Disability Advocacy & Law Center, Sparks, Nevada
Ben Graham, Legislative Representative, Nevada District Attorney’s Association, Las Vegas, Nevada
Larry Spitler, Associate State Director for Advocacy, AARP, Reno, Nevada
Mark N. Kemberling, Senior Deputy Attorney General, Criminal Division, Las Vegas, Nevada
Bonnie Parnell, National Alzheimer’s Association, Carson City, Nevada
Acting Chairwoman Buckley:
[Sitting in for Chairman Anderson, Assemblywoman Buckley called the meeting to order.]
Good morning, we have three bills on our agenda today. The first one is Assembly Bill 53, so we will go ahead and open the public hearing. This is Vice Chairman Oceguera’s bill, which is why I am chairing.
Assembly Bill 53: Enhances criminal penalty for committing assault upon certain providers of health care. (BDR 15-826)
Assemblyman John Oceguera, Clark County Assembly District No. 16:
[Introduced himself]
Good morning, Acting Chairman Buckley and members of the Committee. Thank you for the opportunity to introduce A.B. 53 to the Committee and to the members of the public who are attending and viewing this morning’s proceedings.
Assembly Bill 53 concerns Nevada Revised Statutes (NRS) 200.471, which is Nevada’s criminal statute concerning assault. In general, this measure amends NRS 200.471 to provide that if an assault is committed against a provider of health care, the punishment for the assault would be automatically enhanced.
An assault occurs when a person intentionally places another in an unreasonable apprehension of immediate bodily injury. A person who is convicted of committing an assault is guilty of a misdemeanor. If an assault is committed against a person whose occupation places him within one of the occupational categories defined under the statute—for example, police officers, fire fighters, prison guards, judges, and even taxi cab drivers—the punishment is automatically enhanced from a misdemeanor to a gross misdemeanor.
In review of the occupational categories defined under the statute, it strikes me that each of the occupational categories listed are occupations the nature of which place an employee at an increased risk of harm because of the public nature of his job. It seems only fitting, therefore, that if one of these positions is a victim of an assault, the punishment for the assault should be automatically enhanced. It comes to my attention, however, that health care providers, such as doctors, nurses, paramedics, social workers, etcetera, are not included in the occupational categories defined in the statute. Therefore, under the criminal assault statute, if, for example, a doctor, a nurse, student nurse, an emergency medical technician (EMT), or paramedic is assaulted while performing his or her job duties, the assault is only punishable by a misdemeanor, and is not automatically enhanced to a gross misdemeanor.
Assembly Bill 53 amends NRS 200.471 to provide that if an assault is committed against a provider of health care, the punishment is automatically enhanced to a gross misdemeanor. Such an amendment will bring Nevada’s laws in line with laws in Arizona, California, Idaho, Iowa, Washington, just to name a few forward-thinking states. Nevada’s health care providers, which include, but are not limited to, Nevada’s 3,587 emergency medical technicians, 268 emergency physicians, and 2,731 licensed nurse practitioners, are deserving of the detriment against assault with an automatic enhancement this statute is intended to provide. I have several representatives here today, and have a packet of letters in support (Exhibit C). I thank you in advance for your consideration of this matter.
Acting Chairwoman Buckley:
Thank you for your testimony. Are there questions of Assemblyman Oceguera? I don’t see any questions.
Doreen Begley, Nurse Executive, Nevada Hospital Association:
Good morning. I offer this testimony (Exhibit D) on behalf of the Nevada Hospital Association. The Nevada Hospital Association adamantly supports A.B. 53. However, this bill is both of personal and professional interest to me, as I spent the first 30 years of my nursing career working in various emergency departments throughout the United States.
Having received my nurse’s training from Los Angeles County General Hospital School of Nursing, I spent the first seven years of my nursing career at San Francisco General Hospital. I then also worked in smaller, less urban facilities, such as Tahoe Forest Hospital in Truckee and Maui Memorial Hospital in Hawaii; my last employer before my current position was Washoe Medical Center in Reno. These experiences taught me one thing: there is no health care facility that is immune to the effects of, or to the potential for, violence to occur.
When I was elected to the National Board of Directors for the Emergency Nurses Association from 1994 to 1999, I had the opportunity to testify before the Surgeon General, Dr. David Satcher, regarding the determination of health care indicators. It was believed that in 1999, the presence or absence of violence from one’s life was a strong “Healthy People 2010” indicator. Violence was not as prevalent as it has become today. However, the prevalence of violence has become so widely spread it now has a very close association to us all. It seems that it is more the norm than the exception.
As a staff nurse in the emergency department for 30 years, I was not only a witness to, but also a victim of violent acts being thrust upon myself and my co‑workers. With the escalation of drug wars, continued gang activity, and the ever-increasing threats of terror and war, health care workers are placed in a particularly vulnerable position.
It is because of this escalation in violent acts that it has become necessary to protect the individuals who spend their days as health care providers caring for others. Once again, the Nevada Hospital Association adamantly supports A.B. 53 and any effort that can improve the safety of the workplace environment for its providers of health care. Given the continuing concerns that we face with the severe nursing shortage in Nevada, this is one more area we can improve, to recruit and retain nurses who are dedicated to saving lives. They must be able to provide that care in safe work environment.
Thank you for allowing me this time to present to you. I am available for questions if there are any.
Acting Chairwoman Buckley:
Thank you for your testimony. There are no questions.
We have quite a few people signed in for this bill, so I am going to call the next three witnesses up as a panel to save a little time. We have Christina Reese, Larry Matheis, and Lisa Black.
Larry Matheis, Executive Director, Nevada State Medical Association:
[Introduced himself] The Nevada State Medical Association wants to thank Assemblyman Oceguera for introducing this [bill].
This is, I think, becoming a standard necessitated by the distressing increase in violence in front-line health care settings. The emergency departments, the outpatient clinics, and the urgent care centers are frequently now, unfortunately, places where there is violence, and where there are criminal assaults on health care workers.
As with any of these criminal assaults, obviously any criminal assault is a tragedy for an individual and for his family. There are some people on whom, by the responsibilities they assume as part of their job or their profession, an attack is an attack on the larger society, on the community, and on the availability of those skills and those services in our community. Therefore, in adding the enhanced penalties for violence against them, it is a way of making a social statement about the importance of having the emergency departments there, as we do about having the police officers there, having the firefighters there, and having those who are doing a job that is of value to the community there. When they are attacked it is an attack on each of us, the larger group that is protected.
We thank you for introducing the bill and we hope that it will be quickly processed. Thank you.
Lisa Black, RN, Executive Director, Nevada Nurses Association:
[Introduced herself and read from prepared testimony (Exhibit E)] I am here this morning to urge this Committee’s support of Assembly Bill 53 to enhance the criminal penalty for assault on a health care worker.
Recent research suggests that workplace abuse of health care professionals, specifically nurses, is a common and widespread problem. A recent survey of nurses in seven western states revealed that nearly one in three nurses surveyed had been the victim of a workplace violence incident in the preceding year. Most of these nurses had been assaulted by a patient, a patient’s family member, or a coworker.
Injury surveillance conducted by the National Institute for Occupational Safety and Health Division of Safety Research indicates that from 1980 to 1995, homicide was the third leading cause of death at the workplace; as early as 1991, 20 nurses had died from wounds sustained in the line of duty. There is compelling evidence that violence in the nursing workplace is steadily increasing. On April 9, 2001, nurse Alda Ellington, age 47, was on duty in a Florida hospital when she was attacked and killed by a patient. On February 26, 2001, a nurse, Bernadette Moreno, was killed by a patient’s estranged husband while on duty in a Guam clinic. Closer to home, on October 28, 2002, University of Arizona professors Robin Rogers, Barbara Monroe, and Cheryl McGaffic were shot and killed by disgruntled student. While she was not physically injured, Nevada nurse and Nevada Nurses Association past president, Mary Koithan, was a witness to this terrible tragedy. Certainly, the psychological effects of that day will be with her forever.
These cases, however, capture only the most egregious cases of workplace violence, and the majority are much more subtle and do not make news headlines. Working in a health care facility is considered to be the third most dangerous job in the United States. Workplace violence takes a high toll on the victims of assault and their co-workers. Often, follow-up counseling is necessary, as post-traumatic emotional distress is often a more debilitating problem for workers than are the physical injuries. In the end, when a health care worker’s health suffers, so does his productivity. In this time of a critical shortage of qualified nursing personnel, we cannot continue to lose those precious societal assets to senseless acts of violence.
On behalf of the nurses of Nevada, I thank you for your attention to this important issue and look forward to continuing to work with the members of this elected body and with our industry partners to address this important issue of violence in the health care workplace. Again, I urge this Committee to support passage of this important legislation to include health care workers in the list of occupations for which an enhanced criminal penalty is applicable when the health care worker is a victim of an assault. I thank you for your time and would be happy to address any questions of the Committee.
Acting Chairwoman Buckley:
Thank you for your testimony. Are there questions for either witness? There does not appear to be. Thank you very much for testifying today.
I have quite a few people who signed in. Is there anyone else in Carson City who would like to testify? Otherwise, I can note your support for the record. We have about 15 people who have signed in to support the bill. I will allow you all to testify; we’ll go to Las Vegas and ask if anyone else wants to testify and then if it’s okay, I’ll just note everyone’s presence for the record and certainly, if anyone else feels that they could add something that hasn’t been offered, I’ll ask for that testimony as well.
Bobbie Gang, representing National Association of Social Workers, Nevada Chapter:
[Introduced herself] We are very much in support of A.B. 53; however, we do have a very simple proposed amendment (Exhibit F). On page 2, line 13, it refers to “clinical social worker,” and we would like to see that changed to “social worker.” The reason being there are four levels of social work practice licensed by the state of Nevada, all of whom might work in health care settings, including hospitals, nursing homes, and home health care, and may be subject to assault. I have asked them to pass out the simple amendment, but also have included the NRS citings where each of the social worker licenses is noted. Thank you.
Acting Chairwoman Buckley:
Are there any questions of the Committee for Ms. Gang?
Chairman Anderson:
Ms. Gang, those went out for a little while, February 10. When did you decide the need for the amendment?
Bobbie Gang:
Shortly after it was posted I had a call from my client. They wanted to discuss it with the [Nevada] Board of Examiners for Social Workers, and I did get the change yesterday. I spoke to the sponsor of the bill, Mr. Oceguera, about it late yesterday afternoon.
Chairman Anderson:
When we have taken up these statutes in the past, the social workers have or have not, I’m trying to recall, feel that they have fallen into this provider of higher emergency room kind of event that whether at work, they don’t feel they are covered by the other aspects of the bill, or current statutes. This isn’t an issue that you started on your own, from your group. That’s the reason why I’m curious about it.
Bobbie Gang:
We have testified in previous sessions in similar instances. I do remember testimony by our executive director, teleconferenced from Las Vegas, in which he followed some parole officers and other law enforcement people, and he pointed to the size of some of the men that were testifying, and said you have to understand that social workers come in all shapes, genders, and sizes. If these men are at risk, certainly social workers that are in nursing home, health care, mental health, and hospital settings would also come under this.
Chairman Anderson:
Thank you.
Acting Chairwoman Buckley:
Thank you, Mr. Chairman.
Nick Matteis, Laxalt Consulting, representing Nevada Dental Hygienist Association and Nevada Podiatric Association:
[Introduced himself] In the interest of being brief, I would merely like to lend my support for this bill. Thank you.
Sandra Rush, Assistant Vice President of Nursing, St. Rose Dominican Hospital, Henderson, Nevada:
[Introduced herself] I am presenting testimony on behalf of the Nevada Organization of Nurse Leaders. Our membership includes nursing executives, managers, consultants, and educators. Again, in the interest of time, I will be brief and not cover some of the points in my speech (Exhibit G), since they have been covered very well.
I do want to share that in the year 2002, in just four hospitals in southern Nevada, which were non-trauma hospitals, over 3,000 security calls were made due to disruptive patients and guests. If we use the estimate that OSHA (Occupational Safety and Health Administration) cites, 80 percent of all cases of abuse against health workers go unreported, and an additional 2,400 calls should have been made.
In a period of just two weeks, two nurses at my facility were assaulted. One incident occurred in the emergency room, where a patient and family member hit a nurse and then verbally threatened her. Another nurse was punched in the head with a fist by an inpatient. Another hospital reported the stabbing of a nurse with a fork while she was in the process of assisting a patient. All of these patients were alert and very mindful of their actions.
Many states have laws that have enhanced the penalty for committing an assault upon health care workers. Harsher penalties do help to deter attacks. Our health care workers offer an invaluable resource to the care of our patients. Heath care workers should have some expectations of safety, and we must be the champions for their protection.
Thank you for allowing me to provide this testimony.
Acting Chairwoman Buckley:
We thank you. I recall you suggesting this idea about a year ago, and appreciate all of your work, and organizing testimony for Assemblyman Oceguera to bring forward for our consideration. So thank you.
No questions, any one else in Carson City who would like to testify? Okay, Fred Hillerby, and then we’ll move to Las Vegas after you.
Fred Hillerby, representing Quest Diagnostic Laboratories:
Thank you, Madam Majority Leader. I appreciate the opportunity to come up, and I will be very brief. I have spoken with Mr. Oceguera, the sponsor of this bill. For the record, I am Fred Hillerby, speaking on behalf of Quest Diagnostic Laboratories.
Whether by oversight or whatever, if you look at the list of health care providers, laboratory personnel are not included. If it is the sponsor’s and this Committee’s desire to do any amending, we would request consideration of laboratory personnel in that. Those of you who have ever had blood drawn or other things that laboratory techs do to you, sometimes we get the same kind of response that these other health care providers have mentioned today. Thank you very much.
Acting Chairwoman Buckley:
Thank you for your testimony. I don’t see any questions. Moving to Las Vegas, I see someone is at the witness table. You may go ahead and proceed.
Jerri Strasser, RN:
I am a registered nurse in a pediatric intensive care unit and the chief steward in my hospital for SEIU (Service Employees International Union) Nurse Alliance Local 1107, the union that represents about 4,000 health care workers in southern Nevada. I would like to thank Assemblyman Oceguera for introducing this bill. I just have a really quick statement. While health care workers like me are the first and foremost advocates for our patients and their health care needs, we fully appreciate the anxiety that patients and their families bring into the hospital setting. Often they are confused, frightened, and worried. We also understand that context in which unfortunate incidents occur whenever patients or family members strike out at the closest person at hand, which is the health care worker. Victimization cannot be a justification for hostile behavior. This bill addresses these realities. We support this bill and its efforts to safeguard health care workers. Thank you very much.
Acting Chairwoman Buckley:
Thank you for your testimony. Is there anyone else in Las Vegas that would like to provide testimony in support of this A.B. 53? Is there anyone that would like to provide testimony or clarification in opposition of the bill?
Lucille Lusk, Nevada Concerned Citizens:
Thank you, Ms. Buckley and members of the Committee. I represent Nevada Concerned Citizens. We continue to have concerns about enhancing penalties for assault on a growing “laundry list” of categories of people. The problem, we feel, is equal protection under the law. Those who are not in one of the identified categories are less protected than the others. This approach began as special protection for people in exceptional danger of assault, but it has gone far beyond that. It is hard to argue, for example, that a podiatrist or a chiropractor is in more danger of assault than a 7-Eleven clerk or a bank teller.
This Legislature, and indeed this Committee, has done great work over the past few sessions in establishing consistency in penalties, first with felonies, and most recently with the study on misdemeanors and the work you are doing this session. These enhancements, we feel, create great disparities that are inconsistent with that work. If harsher penalties do in fact help to deter attacks, then we believe the general public also deserves that protection. Thank you.
Acting Chairwoman Buckley:
Thank you for your testimony. Is there anyone else that would like to provide testimony on this bill?
Jack Mayes, Executive Director, Nevada Disability Advocacy and Law Center:
[Introduced himself] I have submitted a document (Exhibit H) from one of our attorneys in Las Vegas. We are not opposed to this bill; I just want to bring forward a concern that we have, a potential impact on our consumers who have mental health diagnoses. As many of you are aware, in Las Vegas there is quite a problem with the emergency rooms, and our clients must go there to get medical clearance before entering the psychiatric hospitals, and often there is a several hours’ wait, which, for somebody in a possible agitated state, that puts additional pressure on them. We are just concerned that it might criminalize their behavior related to their disorder. So I just wanted to bring that forward; however, I do have a written document for you. Thank you.
Acting Chairwoman Buckley:
Thank you for your testimony.
Assemblyman Mabey:
Thank you, Madam Chair. I guess I need to disclose that I am a physician, and this bill will affect me, but no differently than any other physician. I have to admit that I have never been assaulted, but I personally feel like Ms. Lusk, that maybe I should not be treated any differently. However, in the hospital, I do notice that there is a lot more violence, and I hear a special code that the operator calls to have security arrive to the floor. So personally, I have mixed emotions; I can see Ms. Lusk’s point of view, and I can also see the other side of it. I just wanted to say that. Thanks.
Acting Chairwoman Buckley:
Thank you very much. Well, we will go ahead and close the public hearing on Assembly Bill 53, and will open the public hearing on Assembly Bill 59. And we thank everyone who came to testify.
Chairman Anderson:
Thank you, Ms. Buckley, for what appeared to be a simple little bill that was going to move right along. Let’s take a look at Assembly Bill 59, and remind us all that we are going into Floor session at 10:30 this morning, so we want to try to keep to our schedule. Let’s turn our attention to Assembly Bill 59.
Assembly Bill 59: Permits law enforcement agency to inspect certain records pertaining to abuse, neglect, exploitation or isolation of older persons. (BDR 15-277)
Mr. Graham, are you the primary?
Ben Graham, Nevada District Attorney’s Association:
As I look around the room, it appears that I am. Mr. Chairman, members of the Committee, Ben Graham on behalf of Clark County in this situation, and basically on behalf Lt. Olsen of the [Las Vegas] Metro, who is in another committee on another matter in which he had to testify. This is relatively straightforward; there are confidential measures that many times hinder the ability of the law enforcement community to seek assistance in addressing elder abuse. In light of the aging of your witness, “elder becomes younger all the time!” Generally the agency would like to share this, but under the statutory scheme, they’re not covered to do that, so that is the reasoning behind this bill. There is nothing nefarious or fascist in it at all.
Assemblywoman Buckley:
I believe we killed this bill last session because of the concern that law enforcement should obtain a warrant before they looked at someone’s records. That is kind of a basic tenet of our criminal justice system.
Ben Graham:
Mr. Chair, and Ms. Buckley, you paid really good attention back in our criminal law days, but in order to obtain a search warrant, you have to have facts and information sufficient to lead a reasonable person to believe that a crime has been committed, and evidence of that crime exists in a particular place and at a particular time. In many of these instances, there is, obviously, more than mere suspicion, but it may not rise to the level of probable cause. So availability to view these in an investigatory situation would be advantageous towards protecting people that are potentially abused.
I do not recall if it was a bill last year, Ms. Buckley; I certainly defer to your wisdom.
Assemblywoman Buckley:
I think our thinking in the past on this issue was that we allowed Aging Services, on some of these difficult exploitation cases, the ability to be able to assist to ensure that the senior was not exploited. Then, if the Division of Aging finds suspicious bank withdrawals and they feel the senior is not protected, then they can go to the law enforcement agency, and with that evidence, would certainly be enough for probable cause, and it would not violate our constitutional scheme. So I’m just wondering why that doesn’t work.
Ben Graham:
As you are undoubtedly aware, I have not taken a great deal of participation in this legislation up to this time, and I would certainly ask you to defer any action until we get a chance to have Mr. Olsen and his folks explain a little bit better.
Chairman Anderson:
Are there any other questions from members of the Committee? [Called on] Ms. Clark in Clark County. [Ms. Clark did not wish to speak.]
Larry Spitler, Associate State Director for Advocacy in Nevada for AARP:
[Introduced himself] The American Association of Retired Persons (AARP) is a non-profit, non-partisan membership organization dedicated to making life better for people 50 [years old] and over, of which I am one. We provide information and resources and engage in legislative, regulatory, and legal advocacy and assist members in serving their communities.
We’re here today to offer support of A.B. 59. It’s a brief bill and our testimony (Exhibit I) is extremely brief. While more and more is being done while society addresses issues related to elder abuse, it makes sense that law enforcement agencies engaged in protecting elderly individuals have access to these records, just as the Aging Services Division of the Department of Human Resources, and, in those counties where county offices are available for protective services, have access to these records.
We feel that states should enact and enforce adult protective services laws that provide for investigation, access, and intervention in emergency and non-emergency situations of abuse, neglect, and exploitation of vulnerable individuals. We feel that A.B. 59 supports that goal. Thank you very much for the opportunity to share these thoughts, Mr. Chairman.
Chairman Anderson:
Thank you, Mr. Spitler. You have heard the observations made by Ms. Buckley. Did you have any comments relative to that?
Larry Spitler:
I was hoping, Mr. Chairman, that Mr. Olsen was here to explain a little bit more broadly what they are talking about. However, in our testimony, we specifically addressed law enforcement agencies engaged in protecting elderly individuals. Our thoughts were more and more, as more agencies within government begin to look out for elderly people, especially in the area of exploitation, those units should in fact be treated equally in terms of obtaining information that could stop exploitation or elderly abuse. So our thoughts—it’s not just a general thing that we understand that this bill is doing, but it is law enforcement specifically engaged in the protection of elderly individuals.
Chairman Anderson:
This question of warrant is an old question, I guess, that standing, we’re always concerned about, I guess, particularly relative to the actions of the police department on what they might be looking for, and it has a historical basis of probable cause and other kinds of events, as I’m sure you are aware of. Thank you very much, Mr. Spitler. Are there any questions for Mr. Spitler?
Is there anyone else in Clark County who has a desire to speak in support of A.B. 59; anyone else here in Carson City who wishes to speak in support? Is any one speaking in opposition?
Let me close the hearing on A.B. 59, and as my esteemed, aging colleague, Mr. Graham, aging in the terms that we are both aging; we both arrived here at the same time, so if he’s getting older, I am too. Let me bring this back to Committee, and indicate it is the intention of the Chair to put it on the Board.
Let’s turn to the last bill on our agenda for today, A.B. 73. It’s good to see you back with us, Ms. McClain.
Assembly Bill 73: Revises provisions concerning certain crimes committed against older persons. (BDR 15-357)
Assemblywoman Kathy McClain, Clark County Assembly District No. 15:
[Introduced herself] Good morning. Thank you, Mr. Chair and members of the Committee. I have to admit that I don’t remember this Committee being this big. Of course, I have a different view right now. And I did enjoy being on your Committee.
Today, I have Assembly Bill 73 that was a request from the Attorney General’s Office. What I’d like to do is give you a little overview of what it does, and then Mark Kemberling, down in Las Vegas, will talk [about] the details a little bit more.
One of the things I found out as Clark County Senior Advocate, when we have calls from people that need to find services, they [ask], “What age is a senior?” Well, it depends on what program you’re talking about, what statute you’re talking about. This bill is an attempt to fix part of the statute, the one that provides enhanced penalties for crimes against seniors. It will lower the age limit from 65 to 60, which conforms to the Older Americans Act and some of the other federal and state statutes.
In addition, it also adds court flexibility to order costs paid by the perpetrator for investigations. It’s my understanding that often the perpetrators of exploitation, etcetera, are corporations, and it costs quite a bit of money to investigate these. They have to hire auditors or CPAs, and this is a way that would allow more of these prosecutions to happen, if they know that they could recoup some of the cost they had to expend to prosecute. That is basically the bill in a nutshell. I would like Mr. Kimberling to speak to any specifics; he is available in Las Vegas.
Chairman Anderson:
Ms. McClain, if that is what your desire is, we’ll be happy to move to him next, and then take questions, if you want to hang by.
Assemblywoman McClain:
That would be great. Thank you.
Mark Kemberling, Sr. Deputy Attorney General, Criminal Division:
[Introduced himself] Assembly Bill 73 addresses the protection of the elderly against the crimes of abuse, neglect, exploitation, isolation, and the failure to report those crimes. These protections are found in the primary provisions of NRS 200.5091 through 200.50995, and in that section of statutes, the term “older person” is defined as someone being 60 years of age or older. One of the major provisions of Assembly Bill 73 is to reduce that threshold age of other statutes that presently list the threshold age of an elder person as being 65 years of age or older, and in particular, the penalty enhancement statute of 193.167, and the habitual fraudulent felon statute of 207.014, along with the definition of elderly people as explained in the deceptive trade practice statute and the telephone solicitation statute.
By reducing the threshold age to 60 years of age or older, we will create uniformity throughout the Nevada criminal statutes, and also fall in line with the federal Older Americans Act, which is formerly known as United States Code 42 Section 3002, subparagraph 38, where an older individual is defined as someone whose age is 60 years of age or older. This will allow, in the case of the enhanced penalty statute, for a misdemeanor form of elder abuse or a misdemeanor form of crime to be utilized in addressing victims who are aged 60 or older.
Presently, we have a statutory structure that defines elder abuse as being a Class B felony with a two to six-year period of incarceration. There are no lesser provisions or lesser stages of elder abuse. So a prosecutor when investigating or bringing forward a case of elder abuse is faced with the fact that this will be a two-year to six-year felony or nothing, by dropping the threshold age for penalty enhancements, he is able to address certain types of crime that may have occurred against people aged 60 or older that may not merit the strength of a Class B felony.
The second major provision of this bill is to allow for the recoupment of investigative and prosecution costs when crimes of abuse, neglect, exploitation, or isolation are brought. Presently, these are technical crimes and they are costly to enforce [sic]. Many times the crime itself results in additional medical care or additional accounting or financial services having to be expended, just to correct the original wrongs. If a victim is neglected, often there is additional medical care that needs to be enacted to correct or mend the problem the victim has incurred, and it just is not a fair thing to allow a defendant who has committed these crimes to retain assets, or in some instances the profits that they may have obtained by providing neglectful or abusive services to the elderly.
As noted earlier, often corporations, limited liability companies, or other types of commercial entities provide these services, and an ability to recoup costs is a just and fair penalty against that type of entity. The Nevada Revised Statutes already have a civil statute that addresses this; it is NRS 41.1395, a civil statute that parallels many of the definitions noted in our elder protection statutes and that civil statute also authorizes the imposition of costs, as do a couple of other Nevada Revised Statutes. In fact, just last session, Nevada Revised Statutes 686A.292 was approved, allowing the insurance fraud unit to collect costs of investigation and prosecution on their crimes.
It is a common sense bill, and it is supported. There should be three sheets of exhibits that you have (Exhibit J), which help us define the magnitude of the problem. The first sheet that you have should be the 2000 Census. If you look at the left-hand column you will see where citizens of this state are age 60 or older; there are approximately 304,000 people in that age group. That is a little bit more than 15 percent of our entire population.
The other two sheets indicate that during the fiscal year 2000-2001, more than 3,200 complaints were reported for elder abuse, neglect, exploitation, and isolation. The following fiscal year, 2001-2002, that had increased to over 5,000 complaints of elder abuse. In fact, there was an increase of more than 1,900 complaints; that’s an increase of more than 62 percent in one fiscal year. If you look at the numbers, that would equate to just about 1.3 complaints for every 100 elderly. When we look at A.B. 73, I would like you to take a look at Section 6. The indicator note on the left side of the bill, in the area of 8-33, paragraph 2a, deals with lowering the age for the habitually fraudulent felon. I would propose a slight amendment or modification be made to this paragraph. It presently reads “age 65 years of age or older,” and the original request is to reduce that to “60 years of age or older.” In order to avoid an ex post facto-type scenario, we should probably make one slight amendment where—that would be subparagraph (a): “65 years of age or older for offenses committed after July 1, 1995, but before” the date of enactment of this amendment, and subparagraph (b)…
Vice Chairman Oceguera:
[Chairman Anderson was called away to another meeting and Vice Chair Oceguera took over presiding.]
Mr. Kemberling, could you hold up for one second, we were talking on the side and didn’t catch what section you were talking about. Would you tell us again?
Mark Kemberling:
Sure. If you look at Section 6 at the left-hand margin, the page and line indicators are noted as 8-33. We are talking about paragraph 2(a) as it deals with the habitually fraudulent felon statute, and what probably would be best in avoiding a late claim of an ex post facto-type law. Presently, it reads that the habitually fraudulent felon penalties would kick in when a victim is 65 years of age or older. What may occur is somebody who has agreed in advance to plead guilty and has chosen to agree to plead regarding a count involving a victim age 62, and that has already occurred, and now we go and amend this bill to make that class of elders age 60 years of age or older. That person may not have agreed in advance to plead guilty or to enter into some type of resolution agreement if he would have known the law would reduce that threshold age from 65 to 60. In order to correct that potential problem, subparagraph (a), should read, “65 years of age or older for offenses committed after July 1, 1995, but before...” and insert the date of enactment of this amendment. Then have a subparagraph (b) which would read, “60 years of age or older for offenses committed on or after…” and insert whatever date is chosen for the enactment of this amendment. Then allow subparagraph (c) as, “a mentally disabled person.” Did I lose you?
Vice Chairman Oceguera:
No, I was just hand-signaling the sponsor to see if she was okay with what you were saying, and she said yes.
Mark Kemberling:
In the area of protection towards these records, and the medical and financial records, a review of this section of statutes, 200.5091 et seq., if you were to look at privacy issues that are listed under 200.5095, you would see that there are some stringent restrictions placed on what can be done with the information that is gathered under these statutory provisions. That comment basically addresses some of your concerns regarding the earlier bill.
Vice Chairman Oceguera:
Thank you, sir. Are there any questions for the witness?
Assemblyman Carpenter:
Thank you, Mr. Chairman. The question I have is the part about asking them to pay for the prosecution of the crime. I don’t remember that we asked someone to pay for his own prosecution. I can understand [that] in a civil case, but I’m wondering in a criminal situation like this is, where it’s going to be a misdemeanor.
Mark Kemberling:
Sir, that’s a good question, and what this state has already done, at least on three other occasions, is to authorize the collection of investigation, enforcement, and, sometimes the language used is, “prosecution costs.” There are statutes in Nevada that already authorize that. Regarding arson investigations and prosecutions, it is NRS 205.034; regarding the workers’ compensation fraud type of investigations and prosecutions, it is NRS 616D.620. Last legislative session, this same type of recoupment was authorized in Nevada Revised Statutes 686A.292.
An example of why financial recoupment would be necessary was issued through our Nevada Supreme Court. In May 2002, the Supreme Court issued an opinion in the Reno-based case of DeLois Vallery v. State of Nevada, in which DeLois Vallery was the owner-operator of a corporation that operated residential living facilities in the Reno area. She was charged with one count of elder neglect, which resulted in substantial bodily harm, and two counts of elder neglect, which resulted in death.
In the Nevada Supreme Court’s opinion issued on that case, they referenced, on four separate occasions, the use of experts and medical testimony. Expert medical testimony was used in the area of the description of decubitus ulcers, pressure sores. Medical experts were used, in the area of death by exposure, and expert testimony was used in the area of facility security and alarm doors. Medical testimony was also utilized in the area of burns, scalding, and the treatment of Alzheimer’s patients. It is a true and costly part of [prosecuting] these types of crimes.
In addition to these direct expert costs, which are costs of prosecution, you also have the secondary agency cost through loss of work for their normal, routine employee duties. It was suggested that the Division of Aging Services be authorized to pick up records and then work with the law enforcement agency to further the investigation of a crime. Once a criminal investigation is undertaken and a prosecution is forthcoming, agencies, such as the Division of Aging Services, surveyors from the Bureau of Licensing and Certification, the investigators of the Board of Nursing, and others, are unable to use their employees for their normal day-to-day services of protecting and servicing the elderly because those agencies are losing that ability by committing those personnel and those personnel hours and resources to the prosecution of these cases in the form of witnesses, evidence gathering, or evidence preparation.
The costs that are incurred have an initial primary effect directly through these experts and then a secondary effect through the continued use of these agencies. Nevada has authorized [recoupment for] this, and in three other instances; other states, and in particular, Florida, have authorized this type of recoupment for every crime.
Vice Chairman Oceguera:
Thank you, Mr. Kemberling. Does that answer your question, Mr. Carpenter? [Mr. Carpenter indicated yes.]
Assemblywoman Buckley:
I have some concerns about paying for the costs of prosecution and investigation. With regard to the Division of Aging, that’s part of what we fund them to do. I guess my biggest concern with it is I don’t want it to be able to affect the restitution that might be available, and Assemblywoman McClain, you were always on this Committee, we always looked out for that. We want any money from someone who abuses a senior, we want the senior to get back their money first. My own personal preference would be, on these penalties, to look at some restitution instead of paying the cost of the investigation, so that the senior is put first. I don’t know if you have any comment on that.
Mark Kemberling:
Yes, I do, and thank you. In regards to restitution, subparagraph (c) of Nevada Revised Statutes 176.033 addresses restitution directly. Restitution is a viable issue and can also be ordered in these cases. Maybe in the presenting of A.B. 73 we overlooked the fact that the imposition of costs is a discretionary measure, not a mandatory issue, enacted by the court at the time of sentencing. At that point, the judiciary could also look at the area of restitution and determine what would be appropriate in the area of cost reimbursement. Restitution is addressed in every crime, through 176.033.
Assemblywoman Buckley:
But what about the order? Is there any? Could there be confusion about who gets paid first? In the prisoners’ wages issue, we specified that restitution comes first; it’s a public policy for our state before we reimburse ourselves for board for the prisoner. I guess that concerns me a little bit on this issue as well.
The other question or concern I had is, we’re asking for the costs throughout the statutes, for example, on pages 2, 3, and 4, Section 2 of NRS 200.5093. If someone, within Aging Services or the police, fails to file a report within three working days, they are guilty of a misdemeanor, and then they have to pay, a judge could order, for their own costs of investigation and prosecution of a crime. I guess a judge is not going to convict somebody for getting the report in four days, but still are we not being thoughtful in terms of this statute on that penalty? That’s my second area of concern.
Mark Kemberling:
Committee member Buckley, what originally occurred when drafting this statute was this language was in one location only, at the end of the penalty statute 200.5099. This language was originally enacted as just one additional paragraph that would cover all of the appropriate statutes.
In addressing your concerns about that particular statute or another statute, for instance, the failure to report elder abuse and neglect statute; would that be fair? Once again, this is a discretionary issue that would be up to the court. I’m sure that there would be evidence that could be requested or presented at the time of sentencing. There is a recent example of some of the problems that occur for failure to accurately report. Recently in southern Nevada, three health care workers were prosecuted for that misdemeanor alone. What happened in that case was, they waited approximately 10 days before they inadvertently advised, or inadvertently let it slip out, that an elderly person on a floor of a long-term care center had been abused. So what had happened during the course of that 10-day lapse was, critical pieces of evidence were lost or fading, and the investigation actually became a lot more complicated. We were now faced with the issue of looking at a potential cover-up, as well as the actual abusive acts that had to be investigated.
Sometimes things as simple as a failure to report, though it might sound simple, create a much larger, disproportionately larger, headache in the cost and effort that it takes to investigate and prosecute these crimes. But once again, let’s fall back on the issue that this would be discretionary for the courts; it’s just another tool that they can use when, and if, they see fit.
Vice Chairman Oceguera:
Are there any more questions for Mr. Kemberling? I see none. Thank you, Mr. Kemberling, for testifying.
Larry Spitler, Associate State Director for Advocacy for AARP, Nevada:
[Introduced himself and read from prepared testimony (Exhibit K)] We’re here today to offer our support for A.B. 73. The change in age from 65 to 60 is appropriate in order to bring uniformity into our state laws and also in line with the federal Older Americans Act. It is also important to support the new language in Section 2.9. It states that, “In addition to any other penalty, a court may order such a person to pay the cost of the investigation or prosecution of the crime, or both.” In today’s environment, the cost of expert witnesses can be very high and it seems appropriate that the court have the authority to order such assessments if, after hearing all the facts related to the case, it deems that assessment is appropriate.
AARP supports the enactment and enforcement of laws that make it a criminal offense, with enhanced penalties, when a vulnerable adult has been found to be abused, neglected, or exploited. We feel this measure supports “enhanced penalties.” Thank you, Mr. Vice Chairman and members of the Committee.
Vice Chairman Oceguera:
Thank you, Mr. Spitler. Are there any questions for Mr. Spitler? I don’t see any. Ms. Parnell, a former colleague, I apologize; I didn’t see you back there.
Bonnie Parnell, National Alzheimer’s Association:
Thank you, Mr. Vice Chairman, members of the Committee. I’m here today on behalf of the National Alzheimer’s Association. [We are] very much in support of Assembly Bill 73 and most particularly the age reduction. As you all probably know, maybe through personal experience or someone you know and maybe not in your immediate family, the vulnerability of the dementia and Alzheimer’s patient is especially sensitive in this area. A sad note is that we have even 50‑year-olds, persons in their 50s, dealing with dementia and early onset of Alzheimer’s. So we would support anything that would recognize the needs of those under 65 who I think are in a particularly sensitive place with law enforcement, and the training of law enforcement to deal with these people, the behaviors, which oftentimes lend themselves to exploitation. So we are in support. [We will do ] anything we can do to help out on this. [We] thank you for your consideration, and urge your support.
Vice Chairman Oceguera:
Thank you, Ms. Parnell. Are there any questions for Ms. Parnell? I see none. Is there anyone else in either Las Vegas or Carson City testifying in support of A.B. 73? Mr. Mortenson, a question?
Assemblyman Mortenson:
Yes, thank you. That microphone I think is particularly weak down there. I didn’t hear the answer to Ms. Buckley’s question of who gets the first shot at the money; does the victim get it for restitution, or does the prosecution get it? Was that question answered?
Vice Chairman Oceguera:
There was discussion, but I don’t know that it was completely answered. Ms. McClain?
Assemblywoman McClain:
Just a comment on that. I totally agree with Ms. Buckley and I did not write the language of this, but I think maybe we ought to put something in there that prioritizes where money goes. I agree that restitution should be number one on the list. This is not mandatory, anyhow, so it’s up to the court’s discretion. I wanted to also thank Mark for bringing forward these issues and explaining them.
Vice Chairman Oceguera:
Thank you, Ms. McClain. We’ll note that for the work session.
Is there any testimony against A.B. 73, opposition? If there is no more testimony, we will close the hearing on A.B. 73. If there is no opposition, also, you saw another letter that was passed out to you; seeing no opposition to that, Madam Secretary, would you enter that letter (Exhibit L) into the record on A.B. 53?
[Chairman Anderson returned to the meeting]
Mr. Chairman, do you have any other business to come before the Committee this morning?
Chairman Anderson:
Thank you. We are still working on the work session document. I had it in my own mind that I would have my act close enough together that I would be able to tell you exactly which page we were going to be on. I have not been able to marshal my ideas into where we’re ready to go. I know we are going to be doing some of the continuing discussions on the death penalty and several of the other issues, and for many of the bills we already have amendments for. Tuesday, therefore, could be a very, very difficult day for us. I’m even contemplating starting at an earlier hour. However, I know that at least one of you has a difficult time doing anything much earlier than we are, so we’ll still try to stick to the 8:00. I’ll see if I can talk to the Speaker about possibly moving the Floor session back just a tad for us, so that we have a little bit greater opportunity there.
The other commitment that I made relative to next week is that we are trying to do part of the report from last session that we had asked for, relative to racial profiling questions, and that report has—and while the report is out and had been distributed, we really hadn’t formally received it so we need to provide that opportunity for questions to be heard, and so we are going to be putting that into our agenda for next week. So it isn’t that we don’t have enough boats on the water, it’s just that I’m trying to get them so they all start floating so we’re not over here and over there and back over this way again, so that we can try to keep ourselves in a organized fashion as we move along here. There are a couple major issues in front of us and we need to kind of leave us an opportunity for those to be heard.
If you’re waiting for a major piece of legislation, you might mention to your caucus chair as to the priorities of your bills so that he can relay that on to Legal, so that they have an idea. Although, and I don’t want to speak for the Legal Division, I know that they’re working weekends, to say the least, Saturdays and Sundays, and they’re here late at night and early in the morning. They are working as fast as they can to get your bills out. So I don’t think we can put much more pressure on them than we already have. That’s going to provide a problem with amendments that we would anticipate also. Recognize that we have some problems here that—it’s just a matter of how many people we have working; it just takes time. It’s one of those things. Time is our enemy here. If there is a single enemy, it is time.
Are there any other things we need to do for anybody relative to issues or background materials? If anybody needs [anything], please talk to Ms. Combs. Because, clearly, while she only is giving up her Saturdays and Sundays currently, I’m sure that there must be somebody over there who doesn’t have at least a mountain of paperwork and questions in front of them. If we could find them, we’ll put them to work.
Assemblywoman Ohrenschall:
Thank you, Mr. Chairman. In defense of the entire LCB, I received a phone call last night at 8:30 in the evening from Brenda Erdoes about a legislative matter; so they are working very diligently.
Chairman Anderson:
They are working hard. We’ll see you then on Monday at 9:00 am.
[Adjourned at 9:19 am]
RESPECTFULLY SUBMITTED:
Sabina Bye
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: