MINUTES OF THE
SENATE Committee on Commerce and Labor
Seventy-second Session
April 2, 2003
The Senate Committee on Commerce and Labor was called to order by Chairman Randolph J. Townsend, at 7:00 a.m., on Wednesday, April 2, 2003, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4412, 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 Michael Schneider
Senator Maggie Carlton
STAFF MEMBERS PRESENT:
Scott Young, Committee Policy Analyst
Courtney Wise, Committee Policy Analyst
Kevin Powers, Committee Counsel
Laura Adler, Committee Secretary
Lynn Hendricks, Committee Secretary
OTHERS PRESENT:
Major Keith Brill, M.D., United States Air Force
Scott M. Craigie, Lobbyist, Nevada State Medical Association
Lawrence P. Matheis, Lobbyist, Nevada State Medical Association
Weldon Havins, M.D., Clark County Medical Society
Keith L. Lee, Lobbyist, State Board of Medical Examiners
Larry J. Tarno, D.O., Executive Director, State Board of Osteopathic Medicine
Sharon P. Shaffer, Chairman, State Board of Funeral Directors, Embalmers and Operators of Cemeteries and Crematories
Roger Volker, Executive Director, Great Basin Primary Care Association
Carl E. Heard, M.D., Chief Medical Officer, Nevada Health Centers, Incorporated
Caroline Ford, M.P.H., Assistant Dean, Center for Education and Health Services Outreach, School of Medicine, University of Nevada, Reno
Gail J. Anderson, Administrator, Real Estate Division, Department of Business and Industry
Chris MacKenzie, Lobbyist, Nevada State Board of Accountancy
Fred L. Hillerby, Lobbyist, Nevada State Board of Dental Examiners, Nevada State Board of Nursing, and Nevada State Board of Pharmacy
Debra Scott, R.N., Executive Director, Nevada State Board of Nursing
Steven C. Vaughn, D.D.S., Member, Nevada State Board of Dental Examiners
Rosalind Tuana, Executive Director, Board of Examiners for Social Workers
Sharon Atkinson, Executive Director, Board of Examiners for Alcohol and Drug Abuse Counselors
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police, and Nevada Sheriff's and Chief's Association/South
Chairman Townsend:
We will open the hearing on Senate Bill (S.B.) 389.
SENATE BILL 389: Makes various changes regarding certain physicians and other regulated professions. (BDR 54 709)
Senator O'Connell:
This bill was written mostly by physicians in an attempt to address some of the problems with medical malpractice insurance. Sections 55 through 62 establish the Critically Impacted Medical Specialties Subsidy Fund, to be funded by physicians, to help certain practitioners pay for malpractice insurance. This is a short-term solution modeled on what has worked in other States. The bill was not intended to affect every board covered by Title 54 of Nevada Revised Statutes (NRS), but was specifically designed to apply to the medical boards. The bill also deals with some issues about the way the Nevada State Board of Medical Examiners (NSBME) works which we have not been able to resolve by talking with them.
Major Keith Brill, M.D., United States Air Force:
I am an obstetrician and gynecologist (OB-GYN) physician currently stationed in Nellis Air Force Base near Las Vegas, where I practice under a Pennsylvania license as allowed by federal law. When I leave the Air Force in July, I would like to settle in Nevada and be part of an OB-GYN practice in Clark County. When I called the NSBME to get a license application, I was told I could not apply because I took Step 3 of the United States Medical Licensing Examination (USMLE) during my first post-graduate year. Nevada law (NRS 630.080) States that Step 3 must be taken after the first postgraduate year. The person I spoke to said I cannot be licensed in Nevada and there would be no point in even sending me an application. I spoke with the Nevada State Medical Association, and we are now working with the executive director of the NSBME to resolve this issue. I am board certified in OB‑GYN, which is a much stricter standard than the USMLE. I wrote a letter about this matter to Senator O'Connell (Exhibit C).
Chairman Townsend:
Did you contact the NSBME by phone or via the Internet?
Major Brill:
Both. I asked the person who answered the phone if I could speak to someone else. She would not let me speak to anyone else because the law was the law and could not be changed. Every State has different eligibility requirements for licensure regarding the USMLE, and details of this can be found on the Web site of the Federation of State Medical Boards (www.fsmb.org). Some States require the physician to take Step 3 before the end of the first postgraduate year. As long as you pass the exam and finish your first year, the timing of the test should not make a difference.
Scott M. Craigie, Lobbyist, Nevada State Medical Association:
I would like to offer some amendments to this bill (Exhibit D). One of these amends NRS 630.160 to correct Major Brill’s problem without lowering Nevada’s standards. It would allow certification by a specialty board of the American Board of Medical Specialties to override the USMLE with the requisite timing. The standard time to take Step 3 of the USMLE is during the final postgraduate year. I have heard from other physicians who found themselves ineligible for licensure in Nevada and decided to practice elsewhere.
Senator O'Connell:
The NSBME seems disconnected from problems such as this, which is a major concern to me. They should have been the ones offering this change. They only seem to be interested in the letter of the law.
Mr. Craigie:
The executive director of the NSBME is working with us on this issue now. However, in order to resolve this problem, he will have to go around his own requirements. I do not know if they are statutory or regulatory requirements.
Senator Hardy:
The requirements are regulatory, not statutory.
Lawrence P. Matheis, Lobbyist, Nevada State Medical Association (NSMA):
I have prepared a walk-through of the bill (Exhibit E). The NSMA supports most of the bill with a few changes. The bill addresses four things: legal counsel for the boards, the medical malpractice subsidy, reforms to the NSBME, and oversight of the Board of Osteopathic Medicine.
Section 54 establishes the attorney general as legal counsel for occupational and licensing boards. This may be amended. Currently the boards have authority to employ attorneys. The bill would only allow them to retain private counsel if the specific case constituted a conflict of interest for the attorney general.
Senator Neal:
What triggered this part of the bill? Did the NSBME have difficulties with private attorneys?
Mr. Matheis:
No. Our intention was to spare the physicians supporting the NSBME the expense of hiring private legal counsel should the need arise.
Sections 56 through 65 establish the Critically Impacted Medical Specialty Fund to subsidize the payment of malpractice insurance for physicians in certain specialties. Sections 17, 36, and 55 describe how the monies would be raised for this fund. It would be an independent fund administered by the insurance commissioner. To be eligible for subsidy, a physician would have to derive most of his revenue from practice in Nevada, practice in a specialty critically impacted by the cost of malpractice insurance, and have a malpractice premium exceeding 15 percent of his or her gross revenue.
Senator Neal:
What is the source of this fund?
Mr. Matheis:
The funds will derive from physicians and hospitals in Nevada. Each medical doctor and osteopath will be assessed $200 per year, and hospitals will pay $50 for each live birth occurring at their facility. The fiscal note was prepared by the Health Division.
Senator Neal:
How did you come up with these numbers?
Weldon Havins, M.D., Clark County Medical Society:
The number of live births are used as the criterion for hospitals because the fund mostly benefits OB-GYN doctors. Other states that have established this sort of system have used these assessments successfully. Maine has such a setup at the moment, and several other states, including Texas, North Carolina, and Florida, have done so in the past. It is a temporary remedy to get through tough times. The longest time a state has kept such a fund going is 2 years.
Senator Neal:
Which generates more money, hospitals or doctors?
Dr. Havins:
I do not know. Last year there were 23,000 births in Clark County, and there are some 4500 physicians in Nevada.
Senator Neal:
Do you think this will fix the medical malpractice problem?
Dr. Havins:
It will not correct the problem. This bill is intended to address the short-term problem. The long‑term problem can only be corrected by medical liability reform.
Mr. Craigie:
The short term in this case is 3 to 7 years. The insurance industry will undoubtedly keep its premiums high until forced to lower them. We need something to keep Nevada’s physicians here while the new laws are tested for constitutionality.
Senator O'Connell:
At the hearing on S.B. 97 in the Senate Committee on the Judiciary, an insurance company representative testified that legislation like California’s Medical Insurance Compensation Reform Act stabilizes the market and gives predictability to insurance factors. One point of this bill is to get physicians to stay in Nevada.
SENATE BILL 97: Makes various changes relating to certain actions against providers of health care. (BDR 1-248)
Senator Neal:
Another solution would be to ask our national representatives to change the federal law to allow the states to regulate the insurance companies.
Chairman Townsend:
Does the subsidy pay the entire premium for eligible physicians or simply reduce it to 15 percent of the gross revenues?
Mr. Matheis:
The subsidy would reduce it to 15 percent. This is covered in section 64, paragraph 2, of the bill.
Senator Hardy:
Are there any provisions in this bill to prevent subsidizing “bad actors”? If not, we will need to work on this.
Dr. Havins:
There is no provision for this at this time.
Senator Neal:
How will physicians have access to the subsidy funds?
Mr. Matheis:
The insurance commissioner will set this up via regulation. I should perhaps point out that we do not have a consensus among physicians on this issue.
Chairman Townsend:
Another proposal that has came up to deal with the medical malpractice problem would use these funds to buy an overall policy.
Senator Hardy:
I have difficulty with what will inevitably become known as the “baby tax.” We need to think about this for our work session on this bill.
Mr. Matheis:
Section 10 lets the NSBME hire staff and makes them “at-will” employees. The NSBME may hire an executive secretary to serve as chief administrative officer limited to a term of 8 years. Employees who resign or are terminated may not be rehired in any capacity for 2 years.
Senator Carlton:
Eight years seems an unusually short term for this position. It might be difficult to find someone willing to serve for such a limited time.
Mr. Craigie:
This is not uncommon in management. It is often expected in appointed regulatory agencies that there will be frequent turnover in executive positions. Sometimes it is important to get a fresh point of view.
Senator Hardy:
Are we breaking new ground by putting this term limit in the statute?
Mr. Craigie:
I do not know of any boards with a statutory term limit.
Chairman Townsend:
Do we want to consider terminating the current NSBME and its employees statutorily and allowing the Governor to appoint or reappoint at his discretion?
Mr. Craigie:
This has been done, but it is a drastic solution. We have no position on this.
Mr. Matheis:
Section 11 forbids the NSBME from prohibiting a physician, physician assistant, or respiratory therapist to collaborate or consult with another health care provider. Existing regulations could be interpreted as limiting these contacts. I think the writers of the bill did not intend to include collaborating here.
Senator O'Connell:
It was my understanding there was a misunderstanding about the word “collaboration.”
Senator Hardy:
Would use of the word “collaboration” be a major policy change?
Mr. Matheis:
Yes. It gets into a confusion over the relationship between physicians and advance practitioners of nursing (APNs).
Senator O'Connell:
This relationship is spelled out in the advance practitioners statutes. It should probably be in this statute as well for clarification.
Chairman Townsend:
What is the benefit to the patient of limiting the number of nurses with whom a physician can collaborate ?
Dr. Havins:
There is no benefit to the patient. The confusion is while NRS 630 does not appear to allow the board to regulate physicians collaborating with APNs, the board has a regulation limiting it.
Mr. Matheis:
Section 12 deals with the NSBME’s Web site and specifies that the board’s financial reports be on the Web site. Section 13 lets the NSBME waive one or more licensing requirements under special circumstances. Along with the amendment, this deals with Dr. Brill's situation. It also allows the NSBME to respond to emergencies by bringing in needed specialists, such as were needed in California recently to respond to a possible outbreak of Severe Acute Respiratory Syndrome (SARS).
Section 14 adds levels of nonpunitive discipline, including letters of warning and letters of concern. Section 15 requires a majority vote of the entire NSBME to revoke a physician’s license. It also changes the standard of proof from “a preponderance of the evidence” to “clear and convincing evidence” of malpractice.
Section 16 requires the Legislative Commission to conduct regular performance audits of the NSBME. This was also added to S.B. 250. Section 19 allows physicians who are licensed but not practicing medicine to use the title “M.D.” without prosecution.
SENATE BILL 250: Revises various provisions relating to regulated businesses and professions. (BDR 57-835)
Dr. Havins:
Currently this is considered a Class D felony. Under current law, the former dean of our medical school is guilty. The NSBME has actually asked for felony prosecution of two oral surgeons under this statute.
Chairman Townsend:
The dean was not prosecuted. Does this not constitute selective enforcement?
Dr. Havins:
Yes. I can find this provision in no other state.
Mr. Matheis:
Section 21 requires the president of the board to train new board members in their responsibilities. No individual is currently named as being responsible. Section 23 deletes redundant language regarding employment of staff.
Chairman Townsend:
This section also says the NSBME may maintain offices in many localities. How long have they been located in Reno?
Keith L. Lee, Lobbyist, State Board of Medical Examiners:
They have been in Reno since the board’s inception.
Chairman Townsend:
What percentage of the board’s licensees are in Clark County?
Mr. Matheis:
I believe 70 percent of the licensees are in Clark County.
Chairman Townsend:
Why is the NSBME not located in Clark County?
Mr. Matheis:
I do not know. They had an office in Las Vegas about 15 years ago, but now it is closed.
Mr. Matheis:
Section 25 allows the holder of a special volunteer license to hold it without renewal until it is revoked or voluntarily relinquished. Section 26 modifies the list of acts that constitute grounds for discipline and changes the standard to “clear and convincing evidence.” This ties in with the language of section 5 of A.B. 1 of the 18th Special Session. Section 27 requires repeated acts of malpractice with “clear and convincing evidence” for discipline. Until 1997, Nevada required multiple acts of malpractice for revocation of license.
The only change for the Board of Osteopathic Medicine is to have the legislative audit conducted.
Mr. Craigie:
The other amendment we have has to do with access. This is a critical issue. Board meetings are always held in Reno, and we would like to require the meetings to be broadcast either via videoconference to Las Vegas or on the Internet. This provision was in another bill but they removed it.
Senator O'Connell:
According to Mr. Lee, the board has estimated the cost of videoconferencing as $850 to $1000 per meeting. My inquiries indicate videoconferencing could be done inexpensively using existing facilities at the University of Nevada. This was part of S.B. 229, which required agencies to post their agendas and minutes on the Internet and to videoconference their hearings to allow public access.
SENATE BILL 229: Makes various changes regarding public meetings. (BDR 19‑16)
Senator Hardy:
Could this bill be construed as requiring disciplinary hearings to be public?
Mr. Lee:
Disciplinary hearings are open to the public, but the audience may not participate.
Dr. Havins:
In March 2002, the NSBME met to discuss the issue of videoconferencing their meetings. They were told it would cost $28,200 to set up the equipment and $10,000 to maintain. In that meeting, Larry D. Lessly, Executive Director of the NSBME, said, “In my opinion, meetings in Las Vegas, Nevada cut out the rest of the State. Meetings in Reno, Nevada cut out the rest of the State. Meetings in Elko, Nevada cut out the rest of the State. If you really want to cover the State, you need to go to videoconferencing.” The board did not act on this.
Senator Carlton:
What is the context of that quote?
Dr. Havins:
The entire transcript can be found on www.clarkcountymedical.com.
Mr. Craigie:
I will send a copy of that transcript to the committee.
Senator Shaffer:
The videoconferencing facilities of this building and the Grant Sawyer State Office Building in Las Vegas are routinely made available to the boards at no cost.
Chairman Townsend:
The Nevada State Contractors' Board also has a videoconferencing system in Reno and Las Vegas that they will make available to other boards.
Mr. Craigie:
My experience is that videoconferencing board meetings makes a major difference in recapturing the confidence of licensees and the public.
We would also like to present a partial transcript of an NSBME meeting from September 2001 (Exhibit F), in which the board discussed a revenue surplus of $2.5 million and various strategies for concealing it.
Chairman Townsend:
I would like to commend President Hug-English for her comment on reduction of fees. I have no other comments on this transcript.
Senator O'Connell:
Did the board return this surplus to physicians, as was reported in the newspapers?
Mr. Craigie:
I do not know. There has been no discussion or action on this in the transcripts posted on the Web site, nor is it on the agenda. Exhibit G is a financial statement from the board’s last audit.
Senator O'Connell:
Is this a mistake on the audit sheet, where it says “as of June 30, 2003”?
Mr. Craigie:
Not that I know.
Larry J. Tarno, D.O., Executive Director, State Board of Osteopathic Medicine:
We are glad to hear of a less expensive way to videoconference our meetings. We have four meetings a year, two in Reno and two in Las Vegas. Our main concern with the subsidy portion of this bill is that it will subsidize the “bad actors.” It will take at least a year before funds are available, considering the amount of time required for the insurance commissioner to plan how to administer the fund and develop regulations. We are also concerned about the provision in section 29 requiring our board to give $100,000 to the fund at its start-up. This constitutes our entire reserve. It would mean we would be essentially bankrupt until November when licenses are renewed. The fee of $200 per doctor does not seem excessive to us.
Senator Hardy:
We will close the hearing on S.B. 389 and open the hearing on S.B. 323.
SENATE BILL 323: Revises provisions governing funeral directors, embalmers and operators of cemeteries and crematories. (BDR 54-306)
Sharon P. Shaffer, Chairman, State Board of Funeral Directors, Embalmers and Operators of Cemeteries and Crematories:
I have a brief explanation of the provisions of this bill (Exhibit H). Section 10 of the bill would change the name of the board to the State Funeral Board.
Section 4 of the bill makes remedies cumulative rather than exclusive. This means the board can impose more than one penalty. For example, revoking an operator’s license would not preclude them from seeking criminal prosecution for the same act.
Sections 5 and 6 give the board authority to order an operator to desist or refrain from acts that violate the statutes and/or suspend the operator’s license prior to a hearing. This allows us to put a stop to the violations immediately while we prepare a hearing.
Senator Carlton:
Is the language in section 5 consistent with the other boards?
Kevin Powers, Committee Counsel:
Although the language is not identical to other provisions in NRS, it is based on the same principle that if there are circumstances arising where the board has reasonable cause to believe the person is taking steps to violate a provision of the chapter, then the board can issue their order directing the person to cease and desist and refrain from engaging in that conduct.
Senator Carlton:
I have the same concerns about section 13, subsection 2. It seems very broad.
Mr. Powers:
Section 13, subsection 2, provides that the board may adopt regulations which establish other reasonable fees relating to licenses, permits, certificates issued by the board, or any other services provided by the board. When the Legislature authorizes a board to adopt fees by regulation, it generally either gives them specific fees they may adopt by regulation or gives them a broad grant of authority to adopt any fees by regulation as necessary to carry out the board’s business. It varies from business to business. In this case, this is the broader language.
Mrs. Shaffer:
A two-thirds majority vote is required to change these fees. We have no immediate plans to change or add fees. We also have caps in place and will not change them.
Senator Hardy:
How many licensees do you have?
Mrs. Shaffer:
There are 42 licensees. This small number is one of the reasons we need to be able to regulate fees.
Section 50 allows licensees to seek a judicial review of any decision we make, rather than petitioning for a new trial. The remainder of the bill is small changes for consistency with the other regulatory boards.
Senator Hardy:
Section 50 seems to prohibit persons from seeking judicial review.
Mr. Powers:
Section 50 of the bill, which amends NRS 642.530, does two things. Subsection 1 provides that any final decision of the board is subject to judicial review pursuant to the administrative procedure act in chapter 233(d). What subsection 2 does is create a specific exception to the judicial review provisions in subsection 1, and the specific exception occurs when the board enters an order for immediate suspension. When the board enters an order for immediate suspension pursuant to section 6 of the act, the board has to hold a hearing on that immediate suspension not later than 60 days after they enter the immediate suspension. After that hearing, the person would be entitled to judicial review. The immediate suspension is done because they’re trying to remedy an immediate threat to the public safety or health, and the person is given judicial review after the final hearing on that issue.
Senator Carlton:
On page 7, line 3, the name of the testing body is changed. Is this a name change only, or is it a different agency?
Mrs. Shaffer:
This is a name change only. The testing body is the same one we have always used.
Chairman Townsend:
I would like to publicly commend Mrs. Shaffer for the wonderful job she has done in this position over the years. I referred a constituent to her some months ago, and she resolved the matter with speed, sensitivity, and compassion.
We will close the hearing on S.B. 323 and open the hearing on S.B. 310.
SENATE BILL 310: Makes various changes relating to certain occupational boards and commissions. (BDR 54-223)
Senator Carlton:
This bill affects all the State boards, and each board is treated separately. The first provision changes the statement of intent for every board to confirm their duty to act in the public interest. The wording of this varies for each board.
The second provision deals with the “member of the public” on every board. I believe it has always been the intent that this person truly be a member of the public. This provision specifies that this person is not to be related to one of the licensees of that board. This language may need to be clarified.
The third provision states that newly appointed members of the board be given a summary of their duties and receive training from the attorney general. This was the suggestion of the bill drafters, who felt the attorney general was the best choice as representing the boards and understanding the legal ramifications of their duties.
Senator Hardy:
The provision about the statement of intent would seem to require the boards to find for the public when they mediate a case. Is the language perhaps overstated?
Senator Carlton:
The intention was to remind the boards they exist to serve the public and preserve the public safety. The statement was not intended to say individual cases must be decided against the licensee.
Mr. Powers:
I agree with Senator Carlton’s observations on the issue. I would just add that the addition of this language to each of these sections at the beginning of each of the chapters is not going to change the burden of proof in any individual case, nor is it going to take away the constitutional requirement of each board to impartially weigh the evidence in each circumstance. What it does is make clear to the board when they’re adopting regulations and determining how to best regulate that particular board that the interest of the public for the general regulation of that profession is the paramount interest.
Senator Hardy:
So you do not read it as speaking to the interest of an individual member of the public, but to the public as a whole.
Mr. Powers:
Correct. In the individual disciplinary action, they still as a matter of constitutional requirement have to impartially weigh the evidence and weigh it under the correct burden of proof.
Senator O'Connell:
The intent of the bill in this matter should be very clear in the minutes in case any of the boards have this same confusion.
Senator Carlton:
If this bill is passed and goes to the Senate floor, my statement on the floor will include this issue to make sure it is clear.
The next provision of the bill states the boards may not hire or contract with persons related to board members. There have been problems with individual boards in the past. The purpose of the provision is to ensure the boards act in a professional and appropriate way.
The safety net provider provision of the bill applies only to the medical boards in sections 21, 25, 28, 33, 37, 40, 43, and 46. It requires each board to include a member who “represents the interests of persons or agencies that regularly provide health care to patients who are indigent, uninsured or unable to afford health care.” To avoid expanding the size of the boards, this person will substitute for one of the existing professional members of the board. The intention is to put the voice of the most needy constituents on the boards. Many of these boards are concerned we are replacing professionals with laypeople. However, the safety net person can be a professional as well. On the Board of Medical Examiners, this person must also have been a Nevada resident for at least 5 years. This is to keep the requirements consistent for all members of that board.
Roger Volker, Executive Director, Great Basin Primary Care Association:
I have a short presentation on this bill (Exhibit I). There are 350,000 people in Nevada without health insurance, and over 250,000 of them live in the Las Vegas valley. A safety net provider is someone who provides health care regardless of the person’s ability to pay. Safety net providers are generally nonprofit entities. Their inclusion on the board will lessen the gap between profit and nonprofit decision making.
Carl E. Heard, M.D., Chief Medical Officer, Nevada Health Centers, Incorporated:
I’d like to just give a little background on why I have an interest in public health and where my interest in Nevada’s public health comes from.
I’ve been now in the State for about 8 years working as a chief medical officer for one of the only two community health center systems in the State which are specifically designed to care for people regardless of their ability to pay. In addition, I’ve been a county health officer here in Carson City for the last 2 years and continuing to try to work on public health infrastructure development here. I’ve also served for about 3 years on the Health Smart Board, which is a grassroots organization that is specifically intended to try and improve the public health standing of people in Carson City. I’ve also spent 7 years as a medical director for multiple EMS services throughout the State and 7 years on the Primary Care Associations Board as a clinical representative, which is the association that represents the underserved in this State. Also 8 years of trying to recruit physicians and physician assistants and nurse practitioners in this State. I have brought in excess of probably 50 professionals into the State through that recruiting effort. In addition, I’ve traveled over a quarter million miles in my personal vehicle and probably half a million miles in commercial airlines, and in my personal aircraft at one point, throughout the State talking to professionals to face dilemmas in delivering public health services to the underserved in this State.
The one thing I’ve most consistently found in this is that we have a regulatory environment that for various reasons seems to be broken, and it seems to discourage the influx of qualified professionals in this State. I’d like to give a little bit of background as to how I believe that has actually occurred in this state and see if I can shed some light on some of those issues.
First off, we have to accept that public health is in a crisis in this State. If you look at the indications of teen pregnancy rates; if you look at the high rates of low or no prenatal care in this State, including low birth-weight as a consequence of that; if you look at the low per capita rates of primary-care physicians and dentists in this State, and also include nursing in that, along with the other professionals that are listed in S.B. 310, you’ll also notice that there’s a high per capita income for professionals in this State, and I believe this is in part due to a disruption of the natural free market forces that would keep those rates within the national or regional averages.
The access to care dilemma is really related, I believe, to the low number of professionals in this State. There is relatively difficult access, and there’s relatively few numbers of professionals. The low numbers of professionals also adds to, of course, the free market forces disruption. And it also adds to the basic issue of lack of access even for funded patients. This is particularly true of Medicaid patients who are funded by federal and State dollars, who can’t even get into services because the free market has disrupted the natural inclination of physicians to want to include even some of the lower-paying categories of patients in their practices.
Regarding the regulatory environment, I’d like to first off say that I believe that the boards really and dutifully do carry out their responsibility, to try and ensure that only the highest qualified professionals get into our State, and none of my comments should be construed otherwise. I really believe that all the boards that I’ve had the opportunity to work with really have that as their spirit, as their intent. On the other hand, it is theoretically, and in fact in this case I think practically, possible to be too stringent in allowing professionals into this State, so that it establishes a chilling environment to professionals. At this point I can’t even hire a locum tenens doctor, which is a “rent-a-doc,” to come into this State to cover staffing shortages that I have, because of the encumbrances of bringing those professionals into this State. It’s akin to an inhospitable regulatory environment that discourages people from applying.
In addition, I believe the primary function of the board is to ensure quality of care and access to care within our State. We have to recognize that access to care is paramount in quality. You can only have zero quality in a situation where there is no access. The regulatory decisions of the boards inadvertently, and I believe it is truly inadvertent, actually do lead to an adverse effect on the public’s health by limiting access to care and restricting access to qualified professionals in this State.
I believe S.B. 310 recognizes that public health access is paramount to considerations of quality. I also believe that it recognizes that those active in the public health sector of this industry are important in representing the access to care issues that are presented within these regulatory environments. I believe it gives a costless opportunity to improve public health. Many things come up where we’re asking for money to improve public health. This is one thing that I think has the opportunity to perhaps bring people into the State, to increase access, without costing us anything. It also recognizes that no one wants to decrease the quality of professionals in the State. I think that any inclination towards that or any justification against S.B. 310 is really missing the spirit of the intent of this law. I also believe that it recognizes that every board must consider, in its regulatory deliberations, the impact of decisions on the public’s health, which is I think an extremely important step that we have yet to realize.
If I could just take a minute to give a few examples of how I think the regulatory environment has had a chilling effect in my 8 years of experience in this State. It’s important that we recognize that foreign medical graduates in this State, and more importantly nationwide, are comprising about 25 percent of the physician workforce in the nation. That’s a pretty remarkable number when you think about it. Currently, it takes about a year for a foreign medical graduate to go through the application process for the work visa that’s required to work legally in this State. The difficulty is that in spite of multiple approaches to regulatory bodies, particularly the Board of Medical Examiners, to allow for temporary licensure of these physicians while they’re in that application process with the Immigration and Nationalization Service (INS), we have been basically been told, “No, we’re not even going to consider it.” That is specifically with the executive director; I’ve not actually gone anywhere else besides to the executive director in that regard. In one circumstance, it has actually taken a year and a half for a physician (actually a couple of physicians, a husband and wife that currently work in an underserved population in the State) to go through that INS process. They were unable to work in that year and a half. They ended up actually hocking their wedding rings in order to continue to survive long enough to get their licenses in this State.
There are many other states in this nation that have set up temporary licensure as an opportunity. I think somebody that was sitting on that board recognized the impact on public health or on the needs of the underserved and was there actually to agitate for those interests would have been able to bring that issue to that board and let that board say, “Wait, maybe we ought to have temporary licensure. Maybe we don’t need to have a year or a year and a half of a physician and his family essentially out of work, waiting to get a license in our State, much as other states have done.”
… I’ll continue and just go through my conclusion, if I could. Essentially, the quality of public health in this State is related to access to care. We know that. Access to care is related to the number of professionals in the State. The number of professionals in the State is related to the regulatory environment. In other words, if there’s a chilling regulatory environment, the physicians are naturally going to be inclined to go to states that are not difficult to get into. The most efficient means I can imagine at this time, and that is readily available to influence the regulatory environment in this State, is in S.B. 310.
Please support S.B. 310. I believe it is the most expedient approach to improving public health in this State.
Senator O'Connell:
I would like a copy of your remarks.
Dr. Heard:
I have brief notes only, but I am happy to share them. (Exhibit J)
Chairman Townsend:
We will transcribe your comments verbatim for the record.
Caroline Ford, M.P.H., Assistant Dean, Center for Education and Health Services Outreach, School of Medicine, University of Nevada, Reno:
The safety net provider provision of this bill would allow us the opportunity to bring some of the important issues to the attention of these boards. It would also let the boards work with agencies such as mine and Mr. Volker’s on a way to expedite the licensing procedure and diffuse professionals into areas of need. As we found after the last session, it is often not enough just to diffuse professionals into underserved areas. Sometimes we have to contractually bind them to get them to stay in the rural areas.
Senator Shaffer:
There was a bill in the last session to bring more dentists to the State. Has there been an improvement in access to dental care in your areas?
Mr. Volker:
We are still implementing that bill. The process is very cumbersome and difficult and is only starting to bear fruit 2 years later. Part of the reason for this is the board did not have appropriate dialogue about in whose interest this is being done and why.
Ms. Ford:
Diffusion has not happened.
Gail J. Anderson, Administrator, Real Estate Division, Department of Business and Industry:
This bill should have included NRS chapter 645C regarding real estate appraisers. They have a Commission of Appraisers of Real Estate, and I would recommend they be included.
Mr. Matheis:
The NSBME and the Board of Osteopathic Medicine are concerned about the potential loss of a professional position. The safety net provider members of these medical boards should be required to be physicians. If this is not done, we would recommend the safety net provider position be added to the board rather than substituted for a professional.
Chairman Townsend:
The number of members must be odd to avoid ties. Would you consider adding two positions to these boards?
Senator Carlton:
That is an option. I was trying to avoid the impact of increasing the number of people on the boards: getting a quorum, getting people to serve, and so on. There are numerous vacancies on these boards as it is. The safety net provider person can be a professional if you can find someone who meets both criteria.
Mr. Lee:
While we appreciate what Senator Carlton is attempting to accomplish with this bill, our responsibility at the NSBME is to ensure the initial competency of licensures and to continue to ensure the competency of physicians who are licensed by way of disciplinary proceedings. Health care delivery and access is in crisis in this State, but I am not sure the NSBME does or ought to have a role in that. We also hesitate to lose a professional member from the board. We suggest that one of the laypeople positions on the board be designated as the safety net provider spot.
Senator Carlton:
When we are looking at the new face of health care and these new facilities, they will be becoming before the boards to get their professionals licensed. Persons on the board with experience in this will be able to assist and educate the board on the intricacies of these different licensing procedures. The boards will be licensing the professionals, and the professionals understand what goes on in these facilities. The safety net provider position will be a link between the two. I will be glad to discuss this with you.
Chris MacKenzie, Lobbyist, Nevada State Board of Accountancy:
Section 19, subsection 4, requires new members of the Board of Accountancy to be trained in audit responsibilities. Most members of this board are Certified Public Accountants and do not require this training. We currently have a program in which the executive director already provides this training. We are also unclear who will pay for training and associated travel.
Senator Carlton:
It was not my intention to rewrite your procedures if you already have these provisions in place. We will address your concerns.
Fred L. Hillerby, Lobbyist, Nevada State Board of Dental Examiners, Nevada State Board of Nursing, and Nevada State Board of Pharmacy:
Regarding the provision about the board not hiring relatives of licensees, I understood this was to apply only to independent contractors.
Senator Carlton:
It applies to both employees and independent contractors.
Mr. Hillerby:
The Board of Nursing licenses 25,000 people in Nevada, and several board members and staff have family members in the profession. It is difficult to hire anyone if we may not hire those with relatives in nursing. There are other ways to deal with the conflict of interest issues at stake.
Senator Hardy:
Do you have language to propose?
Mr. Hillerby:
We are happy to discuss policies concerning conflict of interest so employees do not deal with relatives.
Debra Scott, R.N., Executive Director, Nevada State Board of Nursing:
I have a short presentation about this bill (Exhibit K). Nursing is a profession that tends to run in families. The respect you have for a relative in nursing often makes you interested in the profession. We have internal policies governing conflict of interest and ethics.
Mr. Hillerby:
The boards I represent are also concerned about the plan to replace professionals on the board with people experienced in public health. I have great respect for people in public, but I think the expectations are different. Regardless of who is on the board, we cannot deal with new or special licenses until you give us that authority.
Senator Carlton:
When we ask the board to go new places, having that person there will help them achieve that goal. We are not talking about changing public policy; we are talking about implementing public policy and giving you the people to help you do so.
Mr. Hillerby:
Board members must be qualified to make decisions about qualifications, testing, and discipline issues. If you take away the number of professionals on the boards, you will limit how responsive we can be.
I would like to respond to Mr. Volker’s contention that the boards create a gap between profit and nonprofit professionals. We do not license people by where they are going to practice. I would also like to disagree with the point of view that the boards are not sensitive to public health issues.
Ms. Scott:
Four of our seven board members work in safety net settings now. It is difficult to find board members willing to put in the amount of time required.
Chairman Townsend:
One of the intentions of this bill is to provide a guideline for the Governor in making appointments. It is always difficult to fill the public member spots on the boards.
Steven C. Vaughn, D.D.S., Member, Nevada State Board of Dental Examiners:
We have a voice for the underserved on our board now. This board is unique in that we give a clinical exam to licensees, and this test is conducted by board members. Since we need dentists on the board to give these tests, we ask that you add a member from the public health sector rather than substituting. We have also had difficulty getting a member of the public who is willing to commit to the amount of time required by the board because the compensation is so small.
Chairman Townsend:
I want to commend you, doctor, for your work in Health Access Washoe County. You are to be commended for your effort in reaching out to people and trying to get them appropriate health care. The work of the professionals is HAWC is underacknowledged.
Mr. Hillerby:
Access to health care is an issue that concerns me deeply. The Board of Dental Examiners has licensed 201 dentists since January 2002. We issue licenses without the required test and 5 years experience if the licensee will agree to work in one of Nevada’s rural areas. It is still a hard sell. We cannot force them to practice where they are needed. A licensing board can only provide qualified professionals, then discipline professionals who get out of line. For that we need to have professionals on the board. Are we to have representatives on the board for every issue?
Rosalind Tuana, Executive Director, Board of Examiners for Social Workers:
My concern is with the provision prohibiting the board from employing relatives of licensees. Many of our licensees are married to other licensees. We use independent contractors for investigations, expert witness, and specialty practice issues. The language seems to say we cannot hire anyone married to another licensee. The concept is very appropriate, but I would like the leeway to hire the qualified people I need.
Sharon Atkinson, Executive Director, Board of Examiners for Alcohol and Drug Abuse Counselors:
I have the same concerns.
Chairman Townsend:
I will close the hearing on S.B. 310 and open it on S.B. 372.
SENATE BILL 372: Revises provisions relating to cosmetology. (BDR 54-886)
Senator Schneider:
I am sponsoring this bill because of an inconsistency in the statutes brought to my attention by my brother. He wished to start a cosmetology business that included a cosmetologist, a laser hair removal specialist, a chiropractor, and a physician doing hair transplants. When he attempted to license this business, he was told the physician could not practice in the same room as the cosmetologist because the Cosmetology Board licenses the room where a cosmetologist works. The bill remedies this situation. The bill also transfers the responsibility for inspecting cosmetological establishments to the city health department.
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police, Nevada Sheriff's and Chief's Association/South:
I offer a friendly amendment (Exhibit L). The State currently requires cosmetologists to have their photo, name, and personal home address on the face of their license, which must be displayed in a public place. Some cosmetologists tell me they have been stopped and threatened. The amendment will change the statute to remove the address and other personal information from the license.
Chairman Townsend:
It is important to remember that a board licenses a person, not the establishment or the room where the person works. I recommend we make sure we have clarity on the health department issue.
We will close the hearing on S.B. 372 and reopen the hearing on S.B. 389.
SENATE BILL 389: Makes various changes regarding certain physicians and other regulated professions. (BDR 54-709)
Chairman Townsend:
Mr. Lee, we have very limited time at this point. If you would like, you may come back on this issue at our work session next Friday rather than cutting your testimony short today.
Mr. Lee:
We will return on Friday. I will address the issue of the reserve fund at that time. I would like to offer a handout listing the responsibilities of the members of the Board of Medical Examiners (Exhibit M).
As a point of order, I would like the record to reflect that four members of the State Board of Medical Examiners are present today: Cheryl A. Hug‑English, M.D., President; Paul S. Stewart, M.D.; Jacqueline C. Jones, Ed.D.; and Stephen K. Montoya, M.D. Dr. Stewart is the board’s treasurer and chairman of the board’s investigative committee. He will testify from Las Vegas next Friday.
Chairman Townsend:
I will close the hearing on S.B. 389.
We originally intended to include S.B. 122 and S.B. 250 in Friday’s work session. I have just been informed that the amendments to those bills will not be finished until Monday morning. We will therefore include them in Tuesday’s meeting, along with S.B. 364 and S.B. 389. The rewrite of S.B. 389 will be done on standard letter-size paper so it is easier to read. Mr. Powers will e-mail it to all interested parties Sunday night.
There being no further business, the meeting is adjourned at 10:53 a.m.
RESPECTFULLY SUBMITTED:
Lynn Hendricks,
Committee Secretary
APPROVED BY:
Senator Randolph J. Townsend, Chairman
DATE: