MINUTES OF THE
SENATE Committee on Human Resources and Facilities
Seventy-second Session
March 10, 2003
The Senate Committee on Human Resources and Facilities was called to order by Chairman Raymond D. Rawson, at 1:46 p.m., on Monday, March 10, 2003, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Building, Room 4406, 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 Barbara K. Cegavske, Vice Chairman
Senator Maurice E. Washington
Senator Dennis Nolan
Senator Joseph Neal
Senator Bernice Mathews
Senator Valerie Wiener
COMMITTEE MEMBERS ABSENT:
Senator Raymond D. Rawson, Chairman (Excused)
STAFF MEMBERS PRESENT:
H. Pepper Sturm, Committee Policy Analyst
Patricia Vardakis, Committee Secretary
OTHERS PRESENT:
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police, and Nevada Sheriff’s and Chief‘s Association South
Bob Rudnick, Chief Deputy, Douglas County Sheriff’s Department
Kami Dempsey, Lobbyist, City of Las Vegas
Morgan R. Baumgartner, Lobbyist, Southwest Ambulance
Ed Irvin, Deputy Attorney General, Division of Mental Health and Developmental Services, Office of the Attorney General
David A. Rosin, M.D., Medical Director, Southern Nevada Adult Mental Health Services, Division of Mental Health and Developmental Services, Department of Human Resources
Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center, Division of Mental Health and Developmental Services, Department of Human Resources
Ole Thienhaus, M.D., FACP, Chairman, Department of Psychiatry and Behavioral Sciences, University of Nevada School of Medicine
James J. Vilt, Attorney, Nevada Disability Advocacy and Law Center
Lynne P. Bigley, Attorney, Nevada Disability Advocacy and Law Center
M. Laura Mijanovich, Lobbyist, American Civil Liberties Union of Nevada
Melanie Nathanson, Senior Health Policy Analyst, Center on Budget and Policy Priorities
Chairman Rawson:
We have Bill Draft Request (BDR) S-1204 and Bill Draft Request 34-1067 for introduction.
BILL DRAFT REQUEST S-1204: Makes appropriations to University of Nevada, Reno, for continuation of Pediatric Diabetes and Endocrinology Center at its School of Medicine. (Later introduced as Senate Bill 258.)
BILL DRAFT REQUEST 34-1067: Authorizes University and Community College System of Nevada to retain reimbursement for indirect costs generated by institutions within System. (Later introduced as Senate Bill 259.)
SENATOR CEGAVSKE MOVED TO INTRODUCE BDR S-1204 AND BDR 34-1067.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Rawson:
We will open the hearing on Senate Bill (S.B.) 86.
SENATE BILL 86: Makes various changes to manner in which intoxicated person who is taken into custody by peace officer is transported for purposes of receiving emergency medical services. (BDR 40-316)
Stan Olsen, Lobbyist, Las Vegas Metropolitan Police (Metro), and Nevada Sheriff’s and Chief‘s Association South:
With me today is Bob Rudnick.
Bob Rudnick, Chief Deputy, Douglas County Sheriff’s Department:
The intent of this change in the civil protective custody (CPC) detainments is for those unique situations where the intoxicated person is at a level that his ability to communicate or care for himself has been greatly diminished. We do not have the medical expertise, training, or ability to evaluate and treat these people. We believe a medical staff should respond, evaluate, transport and/or make this a medical matter instead of a detainment situation for local sheriff’s departments and correctional facilities.
Chairman Rawson:
Where would a law enforcement officer take an intoxicated person now?
Mr. Rudnick:
People who are severely intoxicated can be transported to the local detention facility. Depending on the level of intoxication the need for medical evaluation is to determine whether their condition is solely alcohol generated or involves other medical concerns. Law enforcement officers do not have the ability, expertise, or training to make those decisions.
Chairman Rawson:
Are you aware of the divert crisis affecting both northern and southern Nevada? Will this stack up more diverts or will it be handled through contracts like WestCare?
Mr. Olsen:
The City of Las Vegas will be submitting an amendment to eliminate Clark and Washoe Counties. This is not an issue in the larger counties because we have medical staff in our facilities.
Kami Dempsey, Lobbyist, City of Las Vegas:
We do have a divert situation. The City of Las Vegas and our elected body has had serious concerns regarding chronic public inebriates and have taken the initiative with other local governments to fund a triage center which is contracted with WestCare. This legislation unfortunately would supersede that agreement. We will be submitting an amendment where this would only apply to county populations of under 100,000.
Chairman Rawson:
Who requested this bill?
Mr. Olsen:
The Douglas County Sheriff’s Department requested it.
Chairman Rawson:
In the rural counties where there are volunteer ambulance services will they be transporting inebriated people or will the police have the responsibility?
Mr. Rudnick:
In the rural or remote counties many of the ambulance services is volunteer. In Douglas County there are some volunteer ambulance services in the outer areas but they would be transporting by use of volunteer firemen, emergency medical technicians, and other trained personnel.
Chairman Rawson:
Is there a risk we will not be able to transport people?
Mr. Rudnick:
I cannot speak for other counties. The inebriants are often semi-comatose. The ability for law enforcement officers without training and not having medical staff in the detainment facilities would not be able to make that determination. We would call these people regardless.
Chairman Rawson:
Is there an exemption for Washoe County?
Mr. Rudnick:
I understand Washoe County has medical staff.
Senator Neal:
Is there a conflict with the bill?
Ms. Dempsey:
The language in Senate Bill 86 states if an inebriated person were to be transported it would have to be by a medical professional. The American Medical Response (AMR) and the City of Las Vegas have donated ambulances to enable WestCare to transport individuals that do not need immediate medical assistance.
Senator Neal:
My understanding is if an officer approaches an inebriated person then they call for assistance. If the ambulance is not able to respond the officer takes the person to a medical facility.
Ms. Dempsey:
It provides an alternative. Even if the two transport vehicles for West Care were unavailable an officer would pick up someone who is intoxicated. If Valley Hospital Medical Center were on divert, the officer would go to Sunrise Hospital and Medical Center. You then have a patrol unit off the street and unable to do other duties because they are diverting a patient. Once they get to the hospital they are unable to leave the person until a bed is available.
Senator Neal:
We are talking about an individual who is on the street and who needs attention. Where is the conflict?
Ms. Dempsey:
The conflict lies in whether it is an emergency. WestCare staff have the expertise in handling inebriated persons and can transport that person rather than taking an ambulance from North Las Vegas or Metro. This provides a better alternative and saves taxpayers money.
Senator Neal:
Your position is that an officer needs to stay until an emergency vehicle comes to pick up the person, rather than respond and take the person off the street.
Ms. Dempsey:
Let me restate my position. If Metro were called for a publicly intoxicated person who was only intoxicated, you could have Metro dispatch the call to WestCare because the person did not need emergency assistance.
Senator Neal:
What does Metro do now?
Mr. Olsen:
The officer will wait. We have no problem getting firefighters, AMR, or WestCare to respond. It is a rare case where an officer will have to do the actual transport of an inebriate in the Metro jurisdiction of North Las Vegas and Henderson.
Senator Neal:
Do you have a problem with this supposition of language?
Mr. Olsen:
Which part?
Senator Neal:
Both parts are suppositional. The use of “if.”
Mr. Olsen:
No.
Senator Nolan:
People who are grossly intoxicated are more of a behavioral problem being inappropriate in public. Those individuals may be better off in a detention facility rather than in a bed in an emergency room. The language states, ”if an intoxicated person is taken into custody the officer shall immediately contact the provider.” The language does not allow flexibility for the officer to make the decision of placing the intoxicated person in a holding cell rather than using a bed in an emergency room.
Mr. Rudnick:
There are intoxicated people who do not meet the definition of grossly intoxicated, or those noncriminal detainment situations needing civil protective custody which is a noncriminal event. If there were criminal charges it would change the response or obligation of law enforcement or those people who are routinely grossly intoxicated due to an alcohol overdose. It is our belief and intent that is a medical condition. We do not have the ability to treat or evaluate such a condition. There are people who appear and have the symptoms of being grossly intoxicated due to an alcohol overdose, but what other medical conditions exist? Another scenario may be an individual who has all the symptoms of being grossly intoxicated but may have diabetes. Law enforcement officers do not have the ability to evaluate the situation and make those determinations.
Senator Nolan:
I understand. The rural areas do not have the resources of larger metropolitan areas with medical staff and facilities. There must be a middle ground in this situation. Do we tie up a police unit and a holding cell, or a volunteer ambulance, which are few in a rural area, and engage the resources of an emergency room?
Chairman Rawson:
We have people whose function is law enforcement, not medical treatment and who are put in a situation of liability. Will you prepare language for the committee to consider?
Senator Neal:
Law enforcement officers have a public safety responsibility. If they see someone staggering and intoxicated it is their obligation to approach that person and remove the person from the street and prevent harm. We understand they are not medical personnel, but their public safety responsibility does put them in this category.
Chairman Rawson:
A group has presented the need for an amendment and it would be appropriate for us to consider it in our work session.
Morgan R. Baumgartner, Lobbyist, Southwest Ambulance:
We are in favor of the bill with the proposed amendment of a population cap of 100,000. We do not want our ambulances to be taken off the street unnecessarily if there are not medical conditions needing attention. Gary E. Milliken who represents American Medical Response concurs with our position.
Senator Neal:
Of what ambulance are you speaking?
Ms. Baumgartner:
I represent Southwest Ambulance in Clark County.
Senator Neal:
When an ambulance transports someone they have to be paid, correct?
Ms. Baumgartner:
Not necessarily.
Senator Neal:
Is there is a charge?
Ms. Baumgartner:
There is a charge.
Senator Neal:
Are the police paid when they take someone to a facility?
Ms. Baumgartner:
Yes, through taxpayers’ dollars.
Senator Neal:
Are you carving out a part here because of an intoxicated person? An officer needs to call your ambulance company so you can make money?
Ms. Baumgartner:
The existing law requires us to pick up people who need medical attention. The WestCare system has been functioning with Metro, adequately. We do not wish to increase a divert problem or take more ambulances off the street.
Senator Neal:
If an officer calls and does not get a response, do you want him to remain in a standby status until he receives a response?
Ms. Baumgartner:
The ambulance responds when called. They have an obligation under their franchise agreements to always respond when called.
Senator Neal:
If an officer finds someone who is inebriated to the point where public safety is involved, they would make a call to an ambulance service to transport the person. Are you saying you do not want this to happen?
Ms. Baumgartner:
We do not want to be transporting an inebriated person to jail who does not have a medical condition. We believe this bill if carried to the extreme could require Southwest Ambulance to take those measures. We want to reserve the ambulance for medical uses.
Senator Neal:
Where in the bill is it stated an inebriated person must be taken to jail?
Ms. Baumgartner:
The bill states, “to a security detoxification unit or other appropriate facility.” We do not want to become just a transport company.
Chairman Rawson:
We will close the hearing on S.B. 86 and open the hearing on S.B. 179.
SENATE BILL 179: Makes various changes related to mental health. (BDR 39‑480)
Ed Irvin, Deputy Attorney General, Division of Mental Health and Development Services, Office of the Attorney General:
I will be reading from written testimony (Exhibit C) and explaining Senate Bill (S.B.) 179. This bill revises, clarifies, and authorizes technical changes to existing law. Nevada Revised Statutes (NRS) 433.164 and NRS 176A.045 have inconsistent definitions of mental illness. The proposed definition is the most current, provided, and commonly used. The second part of the bill relates to the jurisdiction of mental health court. It includes mental retardation. People with mental retardation are eligible for mental health court. The advantages of mental health court would apply to both mental illness and mental retardation.
In Nevada, Lakes Crossing Center is the only secure State facility. It is unique because it operates in a forensic setting. It has particular functions such as “treatment to competency.” This bill puts the phrase “involuntary administration of medication” throughout chapter 178 of NRS. Treatment to competency already exists in chapter 178 of NRS but is not clear that it must be made through a criminal proceeding. It does not make it clear involuntary administration of medication is part of the process. In a civil setting hospitals have district courts that come on-site and consider commitment and medication issues. It makes it easier in a civil setting to get the court to consider the issue. In the forensic setting the criminal court maintains or retains jurisdiction. The difficulty is that Lakes Crossing Center goes through a form process, or a due process. There are six steps where an individual is considered for involuntary administration of medication. The last step calls for a court hearing if asked for by an individual and there is difficulty in getting the court hearing. What the language will do is make it clear is the issue from the beginning. It is our interpretation that this language does not change the process. The Sell case in the United States Supreme Court is being considered. Regardless of the decision in the Sell case the language in the bill would not change. The law in this area is one of the major court cases in Nevada. It would not change it, but would make it be considered by the court.
Defendants still have rights relating to the administration of medication. Mental illness may cause them to not want to take medication that could help them. Often the first dose of medication can assist them in realizing what is happening and they can help themselves.
Senate Bill 179 clarifies the period of time for curtailment of the liberty interest under the legal 2000R (433A.150) process. If a person is a danger to self or others, certain professionals can curtail a client’s liberty in order to be evaluated in a mental health facility. Before the evaluation occurs there must be a screening to see if a person is medically able to go through the process. There must be a certification by medical professionals. We would like the language, “by a licensed physician or physician assistant or an advanced practitioner of nursing” included in the bill. Currently, those professionals must certify that someone is medically capable of going for the evaluation. If they are not capable medically then they must be stabilized before they can be mentally evaluated. Once they are sent to the mental facility their liberty interest can be curtailed for the evaluation of up to 72 hours. A petition for involuntary commitment must be filed over the 72-hour limit.
This bill does not clarify what is left open by federal law. The Emergency Medical Treatment and Active of Labor Act (EMTALA) is called the antidumping act. If someone goes to a hospital and says they need an evaluation for medical purposes they cannot be refused because they do not have money.
The legislative history of that federal law describes it is an antidumping act. It is not there to set limits. The law says if they need medical attention they will receive medical attention until something appropriate happens. It does define some of the interests, like the curtailment of liberty as it relates to that time. We are trying to clarify that facilities providing mental evaluation have sufficient time to do so.
We have submitted proposed amendments (Exhibit D) to S.B. 179. This bill revises the definition of mental illness for certain purposes. Section 4 states the definition. Section 15 for mental health court purposes uses the same definition. Senate Bill 179 clarifies the period for retention. Section 11 revises what already is in the medical examination and we would propose keeping the definition of the medical professionals who do the evaluation for certification. The new language states the federal law EMTALA must be followed. There is also a State EMTALA, which is our antidumping law. Senate Bill 179 authorizes a court to establish a mental health court and allows the inclusion of mental retardation as a condition leading to eligibility for a defendant to go through that process.
An important change is the definition of “treatment to competency.” It also allows the introduction of evidence including, without limitation, evidence related to treatment to competency and the possibility of ordering the involuntary administration of medication at the initial hearing for competency. It also allows those things to be considered throughout the competency proceedings. It includes an order that can allow for the involuntary administration of medication. It is our interpretation this does not change the current law related to involuntary administration of medication. Whatever the standard is will be allowed.
Senator Neal:
Who proposed the definition, “treatment to competency”?
Mr. Irvin:
I believe I was the first one to draft the term. It was taken from a book that is standardized throughout the states. I looked for definitions throughout the 50 states.
Senator Neal:
On my computer I could not find a reference of, “treatment to competency.” The definition is treatment provided to a person who is a defendant in a criminal action or proceeding, to attempt to cause him to attain competency to stand trial or pronouncement of judgment. You are using competency to define competency.
Mr. Irwin:
The Legislative Counsel Bureau’s attorney finalized the definition.
Senator Neal:
You want to treat people to stand trial in a criminal action or proceeding and be able to receive the pronouncement of judgment. You are treating the person to be at that particular point in the criminal proceedings where the person understands what is happening. At the end of a trial the person will understand the judgment placed upon them. Do I understand the meaning?
Mr. Irvin:
Yes. The facility does not have the desire but has the obligation. It is not the facility’s involvement in the criminal justice system. It is the criminal justice system utilizing the services of the facility. The description of the circle of competency is correct. This is to allow the facility to fulfill its function without changing the criminal justice process.
Senator Neal:
Do you believe the wording is clear for those who might have to utilize this definition?
Mr. Irvin:
Yes. You may want to address your question to someone more professional. I am an attorney and it describes where we are going and how to get there. The more difficult question others may raise is how it relates to the constitutional standards to get there. This bill is drafted with the specific intention of not getting into that quagmire.
Senator Neal:
Lines 31 through 33, on page 9 of S.B. 179, referring to, “without limitation, evidence related to treatment to competency and the possibility of ordering the involuntary administration of medication.” The term, “without limitation,” could be instructive to the court but it does not necessarily demand it of the court.
Mr. Irvin:
It might have been the intention. If it were argued in court it cannot be considered at that time because the court lacks jurisdiction. The more complex issue is how the court should consider it? We have left it to the court system to determine.
Senator Washington:
Lines 28 and 29, on page 2 of S.B. 179 refers to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. Could that include disorders such as Attention Deficit Hyperactive Disorder (ADHD) or hypertension?
David A. Rosin, M.D., Medical Director, Southern Nevada Adult Mental Health Services, Division of Mental Health and Developmental Services, Department of Human Resources:
It is true the manual you are describing does contain diagnostic codes for mental illness that is secondary to medical conditions. When this occurs it is in a category that clarifies the mental condition is secondary to the primary medical condition.
Senator Washington:
If you were to determine my competency or treatment of competency, and I was listed as having ADHD, would that determination be based upon medical or psychiatric diagnosis?
Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center, division of Mental Health and Developmental Services, Department of Human Resources:
The determination of competency is not contingent on a disorder. A person may have one of those disorders and still be competent. The issue is whether the disorder rises to the level it interferes with the standard we use to determine competency, which is the Dusky standard. This standard states the person has a factual and rational understanding of their charges and able to aid and assist their attorney. If their inability to do neither of those then it would be a product of a mental illness. The person would not be competent and would need treatment to attain competency. Having one of those disorders does not by definition mean the person is incompetent.
Chairman Rawson:
Is it your obligation to try to treat them until they attain competency?
Ms. Neighbors:
Yes. There is a reasonable amount of time if we are not able to assist the person to competency then we would advise the court the person is incompetent without probability of attaining competence. Then a subsequent procedure follows.
Senator Wiener:
Line 29, on page 2 of the bill, the word “and,” does that combine the subsections together for the application of the Dusky standard?
Ms. Neighbors:
We assess the capacities of a person to do the things necessary to go to court and if the disorder interferes it would have to be both situations existing to say the person was not competent.
Senator Neal:
In comparing your definition of mental illness in section 4, on page 2 of the bill with the stricken language of section 15, on page 7, I notice certain things have been omitted. It seems section 15 tracks mostly what you have in section 4. In section 15, reference is made to “mental illness has the meaning ascribed to it in NRS 433.164.” In your amended language to section 4 you use the term DSM‑IV, Axis I, and in section 15, line 37 on page 7 there is stricken language referring to Axis I, II or III. Why is it being eliminated?
Mr. Irvin:
We are changing the language to use the newest most consistent language in both sections.
Senator Neal:
What difference are you making?
Mr. Irvin:
There is no difference. It is the same definition for mental illness in both purposes.
Chairman Rawson:
What is the difference between an Axis I, II, III and the new definition of Axis I?
Dr. Rosin:
Axis I is the primary psychiatric diagnosis, Axis II is a personality disorder diagnosis, and Axis III is a medical diagnosis, if one is present. Axis I defines the mental illness, Axis II are ancillary to that definition.
Chairman Rawson:
The mental competency is related to Axis I.
Senator Neal:
Is the term DSM-IV inclusive?
Dr. Rosin:
Yes.
Ole Thienhaus, M.D., FACP, Chairman, Department of Psychiatry and Behavioral Sciences, University of Nevada School of Medicine:
Senate Bill 179 clarifies definitions that were difficult in the past. In section 11 on page 5, I urge the medical clearance be restricted to the professionals listed in the original language. It would be deplorable if ambulance drivers or law enforcement officials had the responsibility of ruling out the causative medical condition. There are many cases where medical conditions cause or aggravate behavioral abnormalities. The whole traditional dichotomy between mental illness and physical illness has changed. We see the interaction between the physical and mental manifestations more clearly now. There have been unfortunate outcomes due to overlooking hypoglycemia, head injuries, and consequences of epileptic seizures that are difficult to differentiate. It often takes the evaluation of patients not just by a licensed physician but laboratory and radiological methods to rule out the acute medical conditions, which can lead to death or disability.
It is critical to leave the “teeth” in this part of the bill, licensed physician, physician assistant, or an advanced practitioner of nursing should be the only professionals allowed to sign off on the medical clearance section.
Chairman Rawson:
Are you asking to strike the amended language?
Dr. Thienhaus:
Leave the stricken language in the bill.
Chairman Rawson:
Is there any opposition to the request?
Senator Neal:
If a person with a mental problem, as outlined in the bill, is arrested and charged, how would S.B. 179 help the person?
Dr. Thienhaus:
This is an improvement in defining mental illness according to the most current diagnostic, statistical manual. A person cannot be arbitrarily detained because they act in an unconventional manner. If the language remains in the bill, you are entitled to have a qualified professional eliminate that you are not suffering from a medical condition, which could put you at risk. Our law enforcement officials or family members are charged with making the triage decision whether someone has a mental illness, intoxicated, medical problem, or combination. The language requires a person cannot be committed to a mental health facility or held against their will without a medical evaluation. This is the critical part of this legislation.
James J. Vilt, Attorney, Nevada Disability Advocacy and Law Center:
Our first concern is the time limitations on emergency detentions of mentally ill persons. State law currently provides anyone who is alleged to be a mentally ill person may be detained in a public or private mental health facility or hospital under an emergency admission for evaluation, observation, and treatment. A mentally ill person is not someone with a mental illness; it is someone because of a mental illness who presents a clear and present danger to harm themselves or others. A person so detained must be released within 72 hours unless a petition for an involuntary court-ordered admission is filed with the court. This 72-hour period is a critical time limitation on the amount of time an allegedly mentally ill person may lawfully be held without being accorded due process.
Senate Bill 179 seeks to clarify the law so the 72-hour time period is not deemed to begin until a person is actually admitted to a mental health facility. In southern Nevada it could take several days before a person is admitted anywhere. We would submit the interpretation urged by S.B. 179 makes the 72-hour time limitation meaningless. The position that the 72-hour time period does not begin until a person is admitted to a mental health facility only serves to sanction under State law the practice of detaining individuals for days at a time before any procedures designed to afford them due process protections are actually triggered. Because there is no time limitations with respect to when a person actually must be admitted to a facility, there is really no time limitation on how long a person can be held until they are admitted. State law seems to allow for an indefinite confinement of mentally ill, persons or others alleged to be so long as no admission has occurred.
Chairman Rawson:
Is it the current practice?
Mr. Vilt:
The law does not contemplate the situation occurring in southern Nevada. It contemplates a person is picked up, medically screened, and admitted to a facility. Then, they have 72 hours to evaluate and decide whether the person is mentally ill. If the person is found to be mentally ill then the facility will file a petition with the court. There is no provision in the law, it is a “black hole.”
Chairman Rawson
Are you asking to use S.B. 179 to address the practice in existence?
Mr. Vilt:
The law should reflect the realities of the conduct it is intended to govern. We need time limitations governing the period prior to admissions.
Chairman Rawson:
I wish to be clear as to whether it is the standard today? Would we be restricting the period to a tighter standard than what is in practice?
Mr. Vilt:
You would be tightening the existing practice. Currently, people are being detained for days and nothing is required. The hospitals are acting as holding facilities until someone gets transferred, then the law speaks to the situation.
Chairman Rawson:
Can you be called to defend or advocate for a person before they are admitted?
Mr. Vilt:
Yes, we have on several occasions. It has become a difficult situation. Doctors may not know an individual is mentally ill. They do not want to release the person until they are certain the person is not a danger to himself or others, because of liability.
Chairman Rawson:
We are balancing a medical right versus a legal right. It may be a medical obligation not right to see there is no danger. Based on your testimony they may be abusively being detained and not for the good of the individual but to remove them from the street.
Mr. Vilt:
Yes, there is that potential because there is no automatic procedure requiring someone in the hospital to be discharged or start due process protections
Chairman Rawson:
In your experience do you have concern or evidence it is being abused and retained for political purposes or other reasons.
Mr. Vilt:
I would not say abuse, but there are many people who get to the emergency room who do not meet the criteria for a mentally ill person. The interpretation of the law leads to the conclusion the amount of time a person is detained before he is admitted to a facility is somehow less meaningful then the time he is confined after the admission. This initial period is no less a massive curtailment of his liberties than any subsequent period and subject to the same constitutional concerns and safeguards. An individual’s constitutional rights are not suspended until the State can simply get around to admitting him to a facility nor is his confinement less meaningful simply because he is mentally Ill.
Senator Neal:
Mr. Vilt please look at section 10 of S.B. 179. The language addresses a person detained in a private mental health facility or hospital under an emergency situation. The 72 hours would apply both to the hospital and to the mental treatment facility. Are you suggesting there are other areas where people are being held?
Mr. Vilt:
This law does not provide for the situation where people are in an emergency room after being medically screened, stay there for several days, and are technically admitted.
Senator Neal:
An emergency room is part of a hospital, correct?
Mr. Vilt:
Yes. The interpretation of the law hinges on the admission to the facility. People are not admitted to the emergency room.
Senator Neal:
Are there court cases based on the interpretation of this section of the bill?
Mr. Vilt:
I will provide the committee with those court cases.
Senator Neal:
The 72 hours does apply in a hospital or a mental facility. If this it is not the case, provide the committee with information to make the issue clear.
Mr. Vilt:
My understanding is the 72 hours does not begin until a person is admitted to a hospital or mental health facility.
Senator Neal:
Are you referring to language in subsection 2 of section 10?
Mr. Vilt:
Yes.
Senator Neal:
Why would you want a person released otherwise? If a person is not in a hospital or mental facility, is he in jail?
Mr. Vilt:
What we are proposing is not that the facility release the individual in the emergency room but the individual is are accorded due process at an earlier time. The State has an obligation to have a mental health professional go to the emergency room, evaluate the person to determine whether the individual should remain or wait transport to the State mental health facility, or should petition for their involuntary commitment. Presently they are in limbo.
Lynne P. Bigley, Attorney, Nevada Disability Advocacy and Law Center:
Senate Bill 179 includes proposed changes to chapter 178 of NRS, which governs procedures relating to criminal defendants subject to evaluation and treatment for competency to stand trial. Our written comments (Exhibit E) are limited to the absence of procedural protections for pretrial detainees subject to proceedings for the involuntary administration of medication under this chapter and in the proposed language of S.B. 179.
Most, if not all pretrial detainees held at Lakes Crossing Center are not able, do not appear, or have the ability to cross-examine witnesses at any hearing, or a motion to allow for the involuntary medication of that individual. Our position is that the current process is constitutionally deficient. In Washington v. Harper, the United States Supreme Court found the procedures did allow for a convicted prisoner the right to be present at an advisory hearing, and the right to be present and cross-examine witnesses, when considering whether to voluntarily medicate, and did in fact meet due process standards. However, no such protections currently exist in chapter 178 of NRS or are otherwise proposed in chapter 179 of NRS. We are requesting S.B. 179 be amended to include language which specifically articulates a defendant’s right to appear, testify, and cross-examine witnesses at any proceeding which considers the issue of involuntary administration of medications.
M. Laura Mijanovich, Lobbyist, American Civil Liberties Union of Nevada (ACLU):
I am here on behalf of the ACLU in support of the testimony of Mr. Vilt and Ms. Bigley. The part of the statute referring to a person who may be detained under an emergency admission is not a technical clarification but implicates serious consideration under due process of law. As in criminal cases, depriving an individual of his or her liberties are subject to very strict sanctions, the same should apply in a civil confinement. The due process clause should be triggered at the moment the person is deprived of liberty and not at the point when a person is admitted into civil confinement.
The same considerations of due process should be considered here as medication to a defendant in a criminal action. The bill also should provide the right to be present in an advisory hearing as well as appear, testify, and cross‑examine witnesses in the proceedings of involuntary administration of medication.
Senator Neal:
Can a person be in a hospital and not admitted?
Mr. Vilt:
Yes.
Senator Neal:
The language on page 5, lines 13 through 21, addresses the issue concerning a person may be in a hospital and has not been admitted.
Chairman Rawson:
In my mind when a person is accepted in an emergency room that is an admission but it may not always be so. Can anyone clarify this?
Mr. Irvin:
I mentioned earlier the federal law deals with antidumping. It says when someone goes to a facility and presents themself for an evaluation that person should not to be turned away. It is not specific as to when the admission occurs. It is specific at the time of a transfer the criterion for admission must be achieved. It does say hospitals, in their policies and procedures, will define which medical professionals will do the certification. It also allows that is the place where the decision is made. It is not clear about the minute you walk into an emergency room. It seems to me there must be a time when a person is admitted. There is an ongoing decision related to that legal 2000R process. If an individual is a danger to himself or others and goes to an emergency room, that emergency room, might determine that person is no longer a danger to himself or others. Also, if that person has no medical condition necessary to receive treatment, the emergency room personnel might discharge the individual. There are decisions that have to be made by those facilities and are not easy. I cannot tell you there is a clear definition of admission. The Emergency Medical Treatment and Active of Labor Act specifically did not define admission for a very good reason: it did not want to cause people to be dumped, nor did it want to bind facilities. In State law if a hospital acts inappropriately the Health Division may investigate them. If I were the hospital’s counsel, I would advise them to not keep people for long periods of time.
Chairman Rawson:
The driving force with the divert status is to move people along and not stack them up in the hospital. I do not see a driving force to keep people in the hospital. There may be a theoretical consideration here, because it affects people’s rights, but I do not see it as the driving force.
Mr. Irvin:
There is concern in the judiciary and certain judges are suggesting facilities have psychiatric staff so proper evaluations can be made.
Melanie Nathanson, Senior Health Policy Analyst, Center on Budget and Policy Priorities:
I am here to discuss and present a slide presentation (Exhibit F) about federal activity occurring around public health programs. There has been a great amount of activity on the congressional level, and also within the context of the Bush administration regarding the Medicaid program.
Chairman Rawson:
Ms. Nathanson, thank you for the slide presentation. There being no further business at this time, I adjourn this meeting at 3:38 p.m.
RESPECTFULLY SUBMITTED:
Patricia Vardakis,
Committee Secretary
APPROVED BY:
Senator Raymond D. Rawson, Chairman
DATE: