MINUTES OF THE
SENATE Committee on Commerce and Labor
Seventy-second Session
February 6, 2003
The Senate Committee on Commerce and Laborwas called to order by Chairman Randolph J. Townsend, at 8:00 a.m., on Thursday, February 6, 2003, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4401, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Randolph J. Townsend, Chairman
Senator Warren B. Hardy II, Vice Chairman
Senator Ann O’Connell
Senator Raymond C. Shaffer
Senator Joseph Neal
Senator Maggie Carlton
COMMITTEE MEMBERS ABSENT:
Senator Michael Schneider (Excused)
GUEST LEGISLATORS PRESENT:
Senator Valerie Wiener, Clark County Senatorial District No. 3
STAFF MEMBERS PRESENT:
Scott Young, Committee Policy Analyst
Courtney Wise, Committee Policy Analyst
Kevin Powers, Committee Counsel
Laura Adler, Committee Secretary
Maryann Elorreaga, Committee Secretary
Makita Schichtel, Committee Secretary
Johanna Downey, Committee Secretary
OTHERS PRESENT:
Alfredo Alonso, Lobbyist, Lionel Sawyer and Collins
Steve McCauley, Chairman, Nevada Athletic Trainers Association
Jerry Jackson, Member, Nevada Physical Therapists Association
Lawrence P. Matheis, Lobbyist, Executive Director, Nevada State Medical Association
Sharen Kutnock, Manager, Health and Insurance Portability Act Section, Division of Insurance, Department of Business and Industry
Matthew L. Sharp, Lobbyist, Nevada Trial Lawyers Association
Fred L. Hillerby, Lobbyist, Verizon Wireless
Bobbie Gang, Lobbyist, Nevada Women’s Lobby
Robert A. Ostrovsky, Lobbyist, Employers Insurance Company of Nevada
Charles Duarte, Administrator, Division of Health Care Financing and Policy, Department of Human Resources
Daniel C. Musgrove, Lobbyist, Clark County
Kimberly McDonald, Lobbyist, City of North Las Vegas, and Nevada League of Cities and Municipalities
Margaret A. McMillan, Lobbyist, Sprint
Tom R. Skancke, Lobbyist, AT&T Wireless
James J. Jackson, Lobbyist, Thorndal Armstrong Delk Balkenbush and Eisinger
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police Department
Chairman Townsend opened the meeting and asked if there were any questions. He introduced Senate Bill (S. B.) 7.
SENATE BILL 7: Repeals various obsolete provisions relating to telegraphs. (BDR 58-587)
Senator Valerie Wiener, Clark County Senatorial District No. 3, said this is a cleanup of a repeal bill brought up 4 years ago. It addresses any antiquitated, outdated, redundant, unnecessary language, or laws referring to telegraph lines. Twenty-six sections of law had been repealed. Protections were put in place for references that had been taken out. Examples of changes within the bill are: section 23, subsection 3, where the word “telegraph” had been replaced with “telegram.” In section 25, the word “telegraph” had been replaced with “electronically transmitted,” and “shall” had been replaced with “must.”
Senator Wiener urged the committee to support Senate Bill 7.
Senator O’Connell moved to do pass S.B. 7.
Senator Shaffer seconded the motion.
The motion carried. (Senator Schneider was absent for the vote.)
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Chairman Townsend introduced Senate Bill (S.B.) 27 and said there is a proposed amendment as well as a proposed budget for this bill.
SENATE BILL 27: Provides for regulation of athletic trainers and for appointment of Advisory Committee to make recommendations to Legislature concerning regulation of personal trainers. (BDR 54-5)
Senator Wiener said she helped sponsor a bill 4 years ago, S.B. No. 357 of the 70th Session, that would allow licensure of athletic trainers. A proposed amendment was offered (Exhibit C) as a substitute for this bill. She said Brenda Erdoes, Legislative Counsel, Legal Division, Legislative Counsel Bureau, helped craft the language for this bill. It includes licensure, public protection, and consumer protection that would create and require a high level of accountability for people in the field of rendering services to athletes, most of whom are children and young adults.
Alfredo Alonso, Lobbyist, Lionel Sawyer and Collins, said part of the intent of the bill is to ensure personal trainers are covered by standards, as are physical therapists and athletic trainers. He stated significant portions of the amendment speak to education. Section 4 of the bill adds the word “professional” to “amateur” as it pertains to “athletic organization.”
Senator Neal questioned the necessity of placing language into the bill that already exists.
Steve McCauley, Chairman, Nevada Athletic Trainers Association, said the intent was to put the word “athletic” in front of both “amateur organization” and “professional organization.” It was not included in section 4 of the proposed amendment.
Chairman Townsend asked committee counsel if the terminology was redundant.
Kevin Powers, Committee Counsel, said:
I understand the nature of the minute, Mr. Chairman. I think what the goal is that in both section 3 and section 4 in the relevant phrase of “professional organization,” that’s broader than a “professional athletic organization” and I think the idea here is to narrow it so that it’s only “professional athletic organizations.”
Chairman Townsend asked about the inclusion of the phrase, “amateur athletic organization,” as defined by the board.
Mr. McCauley said the phrase “professional athletic organization” is important because athletes can belong to organizations that do not define themselves as athletic, but are professional nonetheless, such as the Nevada Dance Theater. The board was given the ultimate discretion to determine what an athletic organization is, be it professional or amateur. This was based on the input from a board member who belongs to the Nevada Physical Therapists Association.
Mr. Alonso referred to section 10, page 2, where it states “the prevention, recognition, assessment, evaluation, management, treatment, disposition, rehabilitation, or reconditioning of the athletic injury of an athlete,” is important because of education. Those licensed athletic trainers with a master’s degree that copies the educational process of a physical therapist would be qualified to assess and rehabilitate athletic injuries.
Mr. McCauley said the intent was to remove the words “evaluation” and “rehabilitation” from all provisions of the bill because these terms may have specific medical or therapeutic meanings. This allows licensed athletic trainers who possess a master’s degree, or above, to assess athletic injuries.
Senator Carlton said she had concerns about not putting specific definitions in this bill that would protect the public and to make sure that there is compliance.
Mr. McCauley said the terms “assessment” and “treatment” are definedwithin the “educational standards” section of the bill.
Mr. Alonso cited chapter 630 of Nevada Revised Statutes (NRS)as it pertains to the definition of physician: “Only orders issued by physicians licensed by the Board of Medical Examiners may be carried out by athletic trainers.” Mr. McCauley talked about who should serve on the Board of Athletic Trainers. It is to be composed of one member of the public, three persons who are licensed as athletic trainers, and one person who is licensed as a physical therapist and athletic trainer. For the appointment of the professional members of the board, lists of qualified candidates will be submitted to the Governor from which to make appointments.
Mr. McCauley said the Nevada Physical Therapists Association wanted “joint‑mobilization” to be clearly defined in the educational standards of the practice of athletic training for minimum competencies and guidelines. The compromise is that it is acceptable if a licensed athletic trainer has a master’s degree level or above to perform those joint-mobilization techniques. This would prevent the bachelor’s degreed athletic trainer from performing joint-mobilization techniques as defined by the Physical Therapists Associations.
Jerry Jackson, Member, Nevada Physical Therapists Association, said the association supports this amendment.
Chairman Townsend then directed the hearing towards addressing personal trainers.
Mr. Alonso asked to completely delete section 55 of S.B. 27. This would eliminate the advisory committee on the regulation of personal trainers and require the proposed Board of Athletic Trainers to regulate, through educational standards, the practice of fitness professionals. Mr. Alonso said the intent is for the board and the physical therapists to hold public hearings with the personal trainers.
Chairman Townsend suggested it would be important to have wording specifically stating the board has the authority to hold such hearings for purposes of gathering information about an emerging profession. Recommendations based on the information can then be made to the Legislature.
Senator O’Connell suggested the language in section 54 be established stating the makeup of the board. She also suggested a member of the general public serve on the board. Mr. McCauley said the intent was for one person from the general public, three licensed athletic trainers, and one person licensed as both a physical therapist and as an athletic trainer serve on the board.
Senator O’Connell said boilerplate language should be used to help the board achieve some uniformity in their selection process.
Senator Neal asked how many practicing therapists and athletic trainers within the State hold master’s or bachelor’s degrees. Mr. McCauley answered that there are currently 154 certified athletic trainers in the State and roughly 70 percent of them hold master’s degrees.
Senator Neal asked if the remaining 30 percent would be grandfathered in. Mr. McCauley said the provisions of the bill state that a person is given a license to practice athletic training in the State dependent on the successful passing of the national board of certification’s examination. This requires a person to have a minimum bachelor’s degree from an accredited athletic training program.
Senator Neal asked if all physical therapists and athletic trainers have passed the certification examination defining them as athletic trainers. Mr. McCauley said all 154 athletic trainers are currently certified by the National Athletic Trainers Association Board of Certification.
Senator Neal wanted clarification about athletic trainers and not just physical therapists. Mr. McCauley said certified athletic trainers were required to have graduated from an accredited 4-year program with a minimum of a bachelor’s degree. Seventy percent of those 154 Nevada graduates had gone on to obtain their master’s degrees.
Chairman Townsend asked if the 154 individuals were notified regarding the change in the cost of licensure. Mr. McCauley said that not all 154 were notified. They would be notified in State meetings and smaller caucuses.
Chairman Townsend had two recommendations. The first recommendation was for an appropriate fiscal analyst, as well as counsel in the attorney general’s office, be contacted for assistance. The second recommendation was all public complaints must be directed to Mr. McCauley and Mr. Alonso.
Senator Carlton suggested the board include an audit in their budget.
Senator Hardy asked about section 26, subsection 1, paragraph (c), concerning the specific bachelor’s programs that would be approved by the Board of Athletic Trainers.
Mr. McCauley stated the intent was to follow a national pattern involving anatomy, physiology, kinesiology, athletic injury studies, evaluations of upper and lower extremities studies, muscle testing, and reconditioning exercise classes.
Senator Hardy directed a question to legal counsel, Kevin Powers, regarding section 25, subsection 3, on the terminology of “… about to engage …” in an illegal act. He said he wanted to know how it can be determined that one has the intent of performing an illegal act.
Mr. Powers said:
Mr. Vice Chairman, this is general standard language from our boards and commissions, and the idea here is that, when you go to a court to seek an injunction, you present facts establishing a scenario where that would justify the court issuing an injunction. It could be all the acts leading up to the final act, sort of in the concept of an attempt.
Chairman Townsend stated the board does not hold the power to create their own fee schedules.
Chairman Townsend closed the hearing on S.B. 27 and its proposed amendments. He said there would be opportunity for testimony in front of a subcommittee.
Chairman Townsend opened the hearing on S. B. 24.
SENATE BILL 24: Provides for access for certain persons to health care records of deceased. (BDR 54-178)
Senator Neal said his personal request for this bill was in section 2 of S.B. 24. He was adamant about a standardization of access for certain persons to health care records of deceased. He said it might be difficult in certain instances and not in another. Senator Neal said he did not request section 1 subsection 1 to be placed in this bill. His primary focus was in regards to section 2.
Senator O’Connell asked what reason certain people would be denied access to those records. Senator Neal said it depended upon the circumstances where certain people were unable to obtain health care records of deceased.
Lawrence P. Matheis, Lobbyist, Executive Director, Nevada State Medical Association, said he had concerns about the bill. The first is why a legal representative is unable to receive copies of the medical record of a deceased patient. The representative must show or demonstrate legal authority. The existing statute states the legal representative has access to the patient’s medical records. This access is important for insurance or other purposes. Section 1 confuses durable power of attorney for health care, which is an advanced directive in the statute, with the living will that allows a patient to make arrangements in advance as to what types of medical procedures they would want. A legal representative who is granted durable power of attorney makes decisions on behalf of the patient. It does not address the issue of access to the medical record. If a patient is physically incapacitated and cannot make a medical decision, the physician or the facility would make the medical judgment on behalf of the patient. This is provided in NRS 449.800 and in the durable power of attorney form. Mr. Matheis said taking the wording from one part of the statute about durable power of attorney, and blending the wording about who has the legal right on behalf of the estate of a deceased patient to get medical information, is not a good idea. He said this discourages executing the advanced directive. Secondly, under the existing statute, a legal representative has authority on behalf of a patient.
Mr. Matheis spoke about the Health Insurance Portability and Accountability Act of 1986 (HIPAA). He said it allows people to carry their insurance coverage into new job situations. Under the administrative simplification portion of HIPAA, a complete preemption of existing State laws on the confidentiality of medical records go into effect this April. This preemption will redefine what a medical record is and who can have access to it. Communication and access of any part of a medical record is defined by HIPAA. Mr. Matheis said NRS 629.061, subsection 1, paragraph (a), complies with this HIPAA rule.
Senator Neal asked Mr. Matheis if he was familiar with the Health Records Act as it deals with access to deceased records. Mr. Matheis said yes.
Senator Neal said the Health Records Act states family members could have access to deceased records. He asked Mr. Matheis if the administration simplification of HIPAA would stop the committee from passing a statute clarifying whether family members could have access to deceased records.
Mr. Matheis said if the patient becomes disabled and there is a question of a medical decision, chapter 449 of NRS defines who has the ability to make a decision on behalf of the patient in the absence of a durable power of attorney or written authorization.
Senator Neal asked if the statute requires or permits a person to receive medical care records of the deceased. Mr. Matheis said the statute does not address medical care decisions made on behalf of the deceased. He said whoever acts legally on behalf of the patient can obtain copies of the records once the patient is deceased.
Senator Neal said there is nothing in the statute, in the absence of any written declaration or power of attorney, that would permit an individual family member to receive medical records of the deceased. Mr. Matheis replied it would depend on other statutes defining who has legal rights to the estate.
Senator Neal said if there is no probate will, medical records regarding the cause of death of a deceased cannot be obtained. Mr. Matheis said the next of kin makes the decisions. The further from being the next of kin, the more concerns there are about legal entitlement to medical record information. He said it is necessary to protect the confidentiality of the deceased medical record.
Senator Neal asked what should be protected when information about the deceased is given to a family member. Mr. Matheis said the family member has a legal right and need for that information.
Senator Neal asked if a family member did not have durable power of attorney, what a physician would fear to release about the deceased medical records. Mr. Matheis said there is a presumption of a right to protect medical record information. There has to be a reason to access medical record information, either for purposes of the estate, or for knowing if there has been exposure to some medical condition. Medical records are private information even to family members.
Senator Neal asked if the medical community has the authority to make medical decisions about medical record information. Mr. Matheis said under the guidance of HIPAA, the medical record is a confidential document. Only the person about whom the medical record addresses, and medical care professionals who need to know in order to be able to provide treatment, should have access to those records. He said medical records are highly confidential and sensitive information. Doctors and health care professionals protect this information unless specifically ordered to do otherwise.
Senator Hardy asked why people with the legal rights who have the authority to access health records also have the right to access death records. Mr. Matheis said the standards should be the same. He said whomever has the legal right on behalf of the patient to access medical records should have the right to access death records when the patient is deceased.
Senator Hardy said this issue could easily be resolved by adding the deceased records to the statute with regards to the medical records. Mr. Matheis recommended this addition comply with the federal HIPAA rules.
Sharen Kutnock, Manager, Health and Insurance Portability Act Section, Division of Insurance, Department of Business and Industry, said the discussion has revolved around Title 2 of HIPAA. Her division focuses on Title 1 of HIPAA. Title 2 deals with administrative simplification as it relates to the electronic transfer of health claim transactions of living individuals. She said she has not studied the aspect of electronic transfer of records of deceased persons.
Matthew L. Sharp, Lobbyist, Nevada Trial Lawyers Association, said in the event of a potential wrongful death case there is no real standard he is aware of among hospitals for release of medical records of deceased. He said this bill would help clarify such a standard. He said he supports this bill.
Chairman Townsend asked if a HIPAA Title 2 person exists to handle such questions of medical records of deceased. He asked the committee to stay focused on Senator Neal’s original issue.
Senator Shaffer asked about the period of time a physician should maintain a deceased’s record.
Mr. Matheis said the statute defines the length of record maintenance and how those records are to be disposed of in terms of permanent storage.
Mr. Powers said:
Mr. Chairman? For section 2, the additional language added to subsection 1, paragraphs (B) and (C), was drafted with the federal law in mind so HIPAA was reviewed. The drafter did look into the issue of whether this would comply with the federal law and this, in fact, would comply with the federal law, at least in the opinion of this office. As for as the intent of the bill in section 2, making it clear in the statute that the personal representative of the estate had access to the medical records, I think that’s what the bill was trying to accomplish, was making the law clear. Otherwise, a personal representative has to use the rights granted to the personal representative through the probate code and through that probate code the personal representative would be able to gain access to the records. This just makes it clear in the law, in the provision of the law, dealing specifically with medical records.
Chairman Townsend inquired why section 1 was included even though Senator Neal did not ask for it to be included. He asked if transitory language was for the purposes of HIPAA.
Mr. Powers said:
I was not personally involved in drafting the bill, Mr. Chairman, but I believe that section 1 was a way to provide the medical patient with knowledge that, unless the medical patients actually exercise written authorization, that a direct or immediate family member of the patient could not access the patient’s records. For example, unless a husband executes a written authorization, a wife has no power in the law to obtain those medical records of the husband. So, I believe the idea here was to make it clear that the doctor provided the patient with information that, if the patient wanted to provide that access, they would have to execute a written authorization.
Chairman Townsend said it would be helpful when the bill is returned to the sponsor with a note attached that states certain language was inserted for specific reasons.
Mr. Powers said:
I believe, Mr. Chairman, that it was an attempt to facilitate what Senator Neal was trying to accomplish. If the patient had during their lifetime, when they first received a medical treatment, given written authorization for the spouse or another relative to have access to those written records, when the patient died that person would still have access to those medical records. So providing the patient with notice that they had to exercise a written authorization while alive, that would go to solving the issue that Senator Neal was trying to address. Although section 1 could easily be removed.
Chairman Townsend closed the hearing on S.B. 24, and opened S.B. 23.
SENATE BILL 23: Provides for independent review of certain final adverse determinations made by health maintenance organizations and managed care organizations. (BDR 57-209)
Senator Neal said this bill would provide an independent review process about the decisions made by a health maintenance organization (HMO) or managed care organization. It would be made available to all individuals. He said the states that presently do not allow for independent review are Idaho, Mississippi, Nebraska, Nevada, North Dakota, South Dakota, and Wyoming. The remaining states and the District of Columbia have an external review process of HMO records. Senator Neal cited page 6, subsection 2, line 7 of the bill stating his desire to delete the “Board of Medical Examiners” and include the “American Board of Medical Specialties” in the area to which a person is applying or receiving care.
Chairman Townsend said Senator Neal and the staff should make sure all are notified quickly of the proposed bills. Assemblywoman Barbara Buckley and Senator O’Connell each have a copy of the bills. He said the issue is extremely important and welcomed those people who are in support of the bill to come forward to testify.
Mr. Sharp said he supports S.B. 23. He said with regard to section 13 he wants to see the words added: “in the event the determination is favorable to the insured to clarify that the insured customer has the right both to the duty of good faith and fair dealing and to have access to court a of law.” Mr. Sharp said as the bill currently stands, the review of a final adverse determination is “final and binding upon the managed care organization and the insured.” He said it is an infringement upon the existing rights of the consumer.
Fred L. Hillerby, Lobbyist, Verizon Wireless, said he is representing Nevada Association of Health Plans and he supports the right of the insured customer. The finding of an external review organization is binding only on the health plan and not on the patient. Mr. Hillerby referenced S.B. No. 320 of the 71st Session, which Senator O’Connell had requested, and the commerce and labor committee processed. It was a proposal from the Nevada Association of Health Plans that requested the bill requires external review. Mr. Hillerby said he supports external review.
Senator Neal asked if an external review would be limited to the health plan of the individual. Mr. Hillerby replied that the HMOs in the State of Nevada are voluntarily offering external review to their patients if the patients are not satisfied. The review would be binding on the plan and not on the patient.
Bobbie Gang, Lobbyist, Nevada Women’s Lobby, said it was very important to have the external review in statute. Her only concern was about the selection of the physicians. She said she would like the review process to be placed in the Office for Consumer Health Assistance. She said it was not appropriate for the health maintenance organizations to select the physician to do the final review. She said she would like to see a more independent oversight. Ms. Gang said she supports this bill.
Chairman Townsend asked Mr. Ostrovsky how physicians are chosen and how an injured party gets to that physician.
Robert A. Ostrovsky, Lobbyist, Employers Insurance Company of Nevada, said the rating physicians are assigned by rotating a panel of physicians selected by the Division of Industrial Relations. When an insurance carrier has to rate an employee, the process goes to the department where a rating physician is assigned. When a rating physician completes a report, it goes to the insurer and injured worker. If the injured worker is unhappy with that decision, the worker has the right to appeal that decision. Separate ratings are done in the case of an appeal. Mr. Ostrovsky said a bill draft request would come to the Senate Committee on Commerce and Labor concerning the issue of external review in the workers’ compensation determinations. The bill would resolve difficult medical issues in ratings. Mr. Ostrovsky said a physician who has a financial interest in either the insurance companies or the employer’s business should not make the ratings. Mr. Ostrovsky said he supports S.B. 23.
Chairman Townsend said he hoped the issues could be resolved early during this Legislative Session.
Senator O’Connell requested Mr. Powers create a matrix of the bills for prioritization purposes. Senator O’Connell stated for the record since this is not an issue that comes up very often, she would be willing to use S.B. No. 320 of the 71st Session as a committee bill to help facilitate a resolution.
Chairman Townsend said the committee would take this issue up the following week.
Ms. Kutnock said the commissioner does believe this will necessitate a fiscal note. In reviewing the bill, Ms. Kutnock said there would be a need to develop an interactive database for the maintenance of information. The licensing area in her division is understaffed, overburdened, and running about 16 weeks behind. She expressed concern regarding the need for access to medical expertise as it applies to consumer information and enforcement. She said this combined scenario would require a fiscal note.
Senator Neal referenced section 1 by asking the commissioner to maintain a list of physicians who are eligible to conduct independent reviews. Ms. Kutnock said she would do so.
Senator Neal said he wanted to know about the significance of maintaining a list. Ms. Kutnock said large numbers of specialized physicians and practitioners are defined in chapters 630 and 633 of NRS. She said it would be helpful to have such information provided. It would be almost impossible for laypersons to sort through such information and select physicians or practitioners on their own. The physicians need a current license, be actively practicing as a physician, and not have a financial relationship to the industry.
Senator Neal asked Ms. Kutnock if there was a current list of practicing doctors within the division in the State. Ms. Kutnock said there is no list. There is only the telephone book.
Senator Neal asked if an injured worker came to the division with an industrial injury, if that worker gives the division the name of a potential treating physician.
Ms. Kutnock said the division offers no assistance in locating a treating physician for the injured worker. Senator Neal asked Ms. Kutnock if she would have a problem with the removal of subsection 1 of the bill. Ms. Kutnock said she did not know how to respond to the question. She said if the division did not have to maintain the list, and it was to only give out information, there would be other areas the division would be involved in, such as enforcement.
Senator Neal asked what type of enforcement Ms. Kutnock would anticipate. Ms. Kutnock replied enforcement would be needed for failure of an insurer to properly disclose the information.
Senator Neal asked if enforcement issues would come to Ms. Kutnock through way of complaint and Ms. Kutnock said yes.
Chairman Townsend asked how an immediate independent review could be done effectively and in a financially efficient manner.
Charles Duarte, Administrator, Division of Health Care Financing and Policy, Department of Human Resources, said he is concerned about the bill because it affects two programs administered by his division, Medicaid and Nevada Check‑up. Provisions for programs are enacted under State and federal law that require independent review systems, provide for access to State fair-hearing rights for recipients, and HMO division contracts. He expressed concern this may create a conflict with the provisions. He suggested an amendment be made which would exclude those two programs.
Chairman Townsend asked Mr. Duarte, or an appropriate person, to brief the committee on the recent proposed changes by the Legislative Commission’s subcommittee to study mental health and its affect on Nevada.
Senator Neal said he understood there existed an internal review and asked who does the reviewing. Mr. Duarte said there are two processes for review. One is a department process where reviews of grievances and appeals that come through the HMO are addressed. The second is by an external quality review organization contracted to review quality assurance procedures that are in place in the HMO.
Senator Neal asked what, if any, the penalties are for not following the procedures. Mr. Duarte said generally the division gives the HMO 30 to 60 days to comply with any recommended required changes. If there is no compliance, then the HMO can be sanctioned by termination of the contract.
Senator Neal asked if the division has had an opportunity to impose sanctions. Mr. Duarte said the division has had opportunity to impose sanctions, just not for this reason.
Senator Neal asked if the division had many complaints from individuals who are part of the Medicaid and/or Nevada Check-up program.
Mr. Duarte said given that there are about 100,000 members enrolled in HMOs for the Medicaid and Nevada Check-up programs, data recorded from the last three quarters of 2002 showed there were 111 complaints, 110 of which were resolved within 30 days, and one was resolved within 45 days. There were no requests from recipients enrolled within those programs for a State fair-hearing process.
Senator Neal asked how recipients would be aware of an appeal process and what type of information would be available.
Mr. Duarte said the information on the State fair-hearing process is provided as part of the application and enrollment process to the recipient in the HMO information packet.
Senator Neal asked whom the HMO recipient would contact with a complaint. Mr. Duarte said if it is a medical complaint the recipient contacts the HMO to file a claim within an appropriate time frame. If that is not achieved, the recipient can appeal to the internal grievance and complaint process within the division.
Chairman Townsend closed the hearing on S.B. 23, and opened the hearing on S.B. 10.
SENATE BILL 10: Prohibits certain regulation of use of telephonic device by person who is operating motor vehicle. (BDR 58-57)
Chairman Townsend said there were two concerns brought to him directly regarding a Clark County ordinance that resulted in this bill. One was the inability of law enforcement to distinguish between jurisdictions, thereby putting the burden on them. The second was the issue of family members trying to reach each other. A driver would have to pull over to the side of the road to answer the cellular phone.
Daniel C. Musgrove, Lobbyist, Clark County, spoke of encouraging hands-free use of a phone through a headset device while in a moving vehicle. This would allow parents access to safety and emergency information as it relates to their children and family members while in transit. Mr. Musgrove said in Las Vegas and the surrounding Clark County areas cellular phone use is permitted. He said there needs to be better public understanding of city boundaries that enforce banned cellular phone use because different jurisdictions enforce rules differently. There are laws regarding cellular phone use while driving a vehicle within incorporated and unincorporated Clark County. Mr. Musgrove said his position is neutral on this matter.
Chairman Townsend inquired about the evolution and growth of modern technology and its impact upon today’s society. He said it is important to have an ability to deal with these changes as they arise.
Kimberly McDonald, Lobbyist, City of North Las Vegas, and Nevada League of Cities and Municipalities, said she was here in place of Mary Henderson, who was giving a presentation at the Assembly Committee on Government Affairs hearing. Ms. McDonald said she was concerned about S.B. 10 because it would preempt the local government’s ability and discretion to regulate the use of telephonic devices. She said there is a sharing of global concern for public safety and does not support the bill.
Margaret A. McMillan, Lobbyist, Sprint, said there have been more than 200 proposed State legislative bills considering restricted use of wireless phones while driving during the past several years. Only New York State has enacted broad restrictions on wireless phone use. Over 50 local governments have considered ordinances restricting wireless use. She said the confusion regarding jurisdiction is a valid one as it pertains to Clark County. Inattentive drivers operating a moving vehicle are the culprit, not the wireless phone industry. Ms. McMillan said the bill does not erode the authority that law enforcement has in enforcing reckless driving violations. She said the wireless phone is a well-known safety tool that has lent invaluable help to motorists reporting to law enforcement potentially dangerous road hazards, accidents, emergencies, criminal activities, as well as drunk drivers, and aggressive drivers. Cellular phones also provide consumers the opportunity to contact others whenever there may be personal delays. Safety and security are the two most cited reasons people give when purchasing a cellular or wireless phone. Ms. McMillan said knowing all the benefits provided by their use, drivers should not be discouraged from using a cellular or wireless phone.
According to Ms. McMillan, five states, Oklahoma in 2001, Oregon in 2001, Florida in 2002, Mississippi in 2002, and New York in 2002 have enacted legislation similar to S.B. 10. The restriction exempts municipalities and counties from restricting or regulating wireless phone use. She said she hopes the State of Nevada will pass S.B. 10 to prohibit local ordinances from restricting wireless use and that application be enforced uniformly in the State. She said the wireless industry is concerned about the safety issue. It is committed to educating its customers about safe wireless use and the responsibilities that are inherent with its use.
Tom R. Skancke, Lobbyist, AT&T Wireless, said this issue should be discussed at a State and not a local level. He said he supports the bill.
James J. Jackson, Lobbyist, Thorndal Armstrong Delk Balkenbush and Eisinger, said he is representing Cingular Wireless. He said the bill would create uniformity in the regulation of cellular phone use. He said he supports the bill.
Chairman Townsend asked about defining the boundaries within the city of Las Vegas and surrounding areas that might need signs stating appropriate cellular phone usage.
Mr. Skancke responded by clarifying which streets would be affected.
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police Department, said there are laws in place in Las Vegas and surrounding areas that are broad enough to govern cellular phone use. These laws would address all types of inattentive driving.
Senator Neal asked what constitutes inattentive driving. He asked if it is based on the observations of the police officer, or if it is determined after an accident has occurred.
Mr. Olsen said citations could be issued in either instance. Citations would only be issued for failure to pay attention, and not for using a cellular phone while driving. He said driving with a cellular phone at one’s ear does not constitute a violation, distractive driving does.
Senator Hardy asked if the cellular and wireless phone companies are actively pursuing, through research and development, an effective hands-free mechanism.
Mr. Skancke said the wireless technology changes incredibly quickly. He said the United States lags behind several other countries in regard to this technology. He said hands free telephonic devices, such as headsets, are being improved with new innovations happening constantly.
Chairman Townsend said this particular technology has grown so quickly and changed so drastically in its flexibility of usage.
Chairman Townsend closed the hearing on S.B. 10.
There being no further business, Chairman Townsend adjourned the meeting at 10:29 a.m.
RESPECTFULLY SUBMITTED:
_____________________________
Johanna Downey,
Committee Secretary
APPROVED BY:
Senator Randolph J. Townsend, Chairman
DATE: