MINUTES OF THE
SENATE Committee on Human Resources and Facilities
Seventy-second Session
May 12, 2003
The Senate Committee on Human Resources and Facilities was called to order by Chairman Raymond D. Rawson, at 1:41 p.m., on Monday, May 12, 2003, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office 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 Raymond D. Rawson, Chairman
Senator Barbara K. Cegavske, Vice Chairman
Senator Maurice E. Washington
Senator Dennis Nolan
Senator Joseph Neal
Senator Bernice Mathews
Senator Valerie Wiener
GUEST LEGISLATORS PRESENT:
Assemblywoman Christina R. Giunchigliani, Assembly District No. 9
Assemblywoman Kathryn (Kathy) McClain, Assembly District 15
Assemblywoman Ellen Marie Koivisto, Assembly District No.14
STAFF MEMBERS PRESENT:
H. Pepper Sturm, Committee Policy Analyst
Allison Combs, Principal Research Analyst
Patricia Vardakis, Committee Secretary
OTHERS PRESENT:
Mary Liverotti, Deputy Director, Department of Human Resources
Robin L. Keith, Lobbyist, Nevada Rural Hospital Partners Foundation
Connie McMullen, Strategic Plan for Seniors, Department of Human Resources, and Senior Spectrum
Robert Desruisseaux, Independent Living Specialist, Northern Nevada Center for Independent Living, Nevada Statewide Independent Living Council
Maryellen Waltz, Mental Health Coalition Coordinator, Carson City Consolidated City-County Government Executive Offices
Susan Rhodes, Social Work Supervisor, Clark County Social Services
Ed Guthrie, Executive Director, Opportunity Village
Edward E. Cotton, Administrator, Division of Child and Family Services, Department of Human Researches
Dan Musgrove, Lobbyist, Clark County
Jerri Strasser, R.N., SEIU Nurse Alliance
Cagin Ralls, R.N., Operating Engineers Local No. 3
Lisa Black, Lobbyist, Nevada Nurses Association
Scott Watts, President, Nevada Alliance for Retired Americans
Bobbie Gang, Lobbyist, Nevada Women’s Lobby
James L. Wadhams, Lobbyist, Nevada Hospital Association
Bill Welch, Lobbyist, Nevada Hospital Association
Bonnie L. Parnell, Lobbyist, Nevada Alzheimer’s Advisory Council
Brandy Gregg, Regional Director, Alzheimer’s Association for Southern Nevada
Charles Duarte, Administrator, Division of Health Care Financing and Policy, Department of Human Resources
Thelma Clark, Lobbyist, American Association of Retired Persons
Tom Wood, Lobbyist, Pharmaceutical Research/Manufacturers of America
Mary Lau, Lobbyist, Retail Association of Nevada
John A. Liveratti, Social Welfare Program Chief, Division of Health Care Financing and Policy, Department of Human Resources
Leslie Danihel, Chief, Eligibility and Payments, Welfare Division, Department of Human Resources
Michael J. Willden, Director, Department of Human Resources
Chairman Rawson:
I will open the hearing on Senate Concurrent Resolution (S.C.R.) 36.
SENATE CONCURRENT RESOLUTION 36: Expresses support of Nevada Legislature for four long-term strategic plans developed by Department of Human Resources concerning health care needs of residents of Nevada. (BDR R‑742)
Mary Liverotti, Deputy Director, Department of Human Resources:
Senate Concurrent Resolution 36 supports the work of the four task forces authorized by A.B. No. 513 of the 71st Session. These task forces developed strategic plans to address the needs of seniors, persons with disabilities, rural health, and rates for providers of health care services. The four strategic plans represent the work of 200 members of the task forces and their subcommittees. Over 2000 seniors, people with disabilities, their families, health care providers, and their advocates participated in a yearlong process through public hearings, focus groups, and surveys.
Michael J. Willden, Director, Department of Human Resources has called these plans the “people’s plans, “ because of the participation of so many Nevadans in the planning process. A number of the objectives in the plans have moved forward. The Executive Budget includes funding to address waiting lists for community-based services for seniors, people with disabilities, and mental health services. The department is collaborating with public and private organizations to develop a No Wrong Door, single point of entry system to help families in accessing services.
Robin L. Keith, Lobbyist, Nevada Rural Hospital Partners Foundation:
It was a long process with a great deal of community input. There were a number of rural issues identified. The plan is constructed in three layers: community-specific recommendations, broader goals and objectives that would apply to the Statewide rural care delivery system, and broad brush policy statement which says the State adopts a policy that establishes consistently supportive context in which to debate the best solutions to rural health care delivery issues.
The plan includes many goals in forming categories, planning and coordination, service delivery, creating sustainable financial viability for rural health care delivery providers, and infrastructure development. We view the plan as a beginning. By implementing Senate Concurrent Resolution 36 we establish a tone of support for moving forward.
Connie McMullen, Strategic Plan for Seniors, Department of Human Resources, and Senior Spectrum:
I urge the committee to adoptthe recommendations advocated. “Act Now or Pay Later” has 10-year targets to preserve the health and independence of Nevada seniors. It advocates a shift in the way the State funds senior services to allow more people to live independently in their own homes and avoid premature institutionalization. The plan recommends achieving this goal largely with the funding of community-based services. “Act Now or Pay Later” offers two scenarios, continue the present system or develop a system desired by seniors and their families, which shifts the provision of services from skilled nursing to homes in the community. The task force on the Strategic Plan for Seniors worked diligently for a year considering the needs of the State’s elderly, chronically ill, as well as the needs of those who may need help in the future.
The task force used language and concepts designed to urge the current Legislature to rethink how care and services can be provided in this State. In 1999 Nevada ranked number 50 among states in per capita spending for all community-based care including home health services, personal care, and home‑ and community-based waivers. Nevada’s per capita spending for community‑based long-term care was $11.05 compared to the nation’s average of $60.45. Although Nevada has increased the use of community‑ and home‑based waivers, the State is still not keeping pace with other waivers and is not using it as extensively as other states.
The waiver financing allows for federal Medicaid match for services, which includes: case management, homemaker assistance, home health aides, personal care, residential rehabilitation, and others. A shift in how the State delivers services for long-term care is advocated in the Strategic Plan for Seniors, a concept that has been projected to save the State over $73 million by fiscal year 2009 to 2011 if implemented in fiscal year 2003 to 2005. If this concept were not adopted, the care would continue to be geared toward institutionalized care increasing the State budget substantially. The goal as outlined in “Act Now or Pay Later” is a move to get 60 percent of the targeted population of home- and community–based service and 40 percent institutionalized care by fiscal year 2010. This shift cannot happen without addressing the issue now. Despite the State’s budget crisis we must take charge of this provision and adopt this as a practical approach to future health care policy.
Robert Desruisseaux, Independent Living Specialist, Northern Nevada Center for Independent Living, Nevada Statewide Independent Living Council:
I am here to urge your support of S.C.R. 36. This is the “people’s plan.” This document was compiled by a variety of groups. The Legislature should go forward with the recommendations of this bill.
Maryellen Waltz, Mental Health Coalition Coordinator, Carson City Consolidated City-County Government Executive Offices:
It is my hope this extensive and time-consuming study of health care and other issues will continue to be used as a working document to identify and resolve our many health care issues. I endorse S.C.R. 36 to continue to work on the rural health care including assistance integration and physical and behavioral health care. A continuing dialogue will have an inherent value. Solutions may arise that will not require additional funding, but may require the redistribution of the present funding or personnel. We must stay ahead of the realities that rural health care faces and work on solutions to better care for our rural citizens.
Susan Rhodes, Social Work Supervisor, Clark County Social Services:
I will read from prepared testimony (Exhibit C) explaining the goal of the Senior Services Task Force and support of S.C.R. 36.
Ed Guthrie, Executive Director, Opportunity Village:
Opportunity Village is the largest provider of services to people with severe intellectual disabilities in the State of Nevada. I was the chairman of the Provider Rates Task Force for the long-range planning initiative. Many people have talked about the need for additional community services in Nevada, but for community services to be successful you must have providers. To have an adequate supply of providers you must pay appropriate rates.
The Governor and Legislature realized the problem in the last session of the Legislature and decided to establish the Provider Rates Task Force. They charged us with developing a strategic plan for the rates paid for services. Our focus was in a number of areas, but specifically, the need for standardized rate methodologies across programs when services were the same. We were to include stakeholders in the rate-setting process and promote methodologies that would include mechanisms for regular adjustments to the rates.
The areas identified for these studies essentially were for community support services for people with disabilities, mental illness, and individuals who were elderly. We had a number of areas that were outlined by the Legislature as priorities: community training centers, supported living arrangements, services to individuals with autism, targeted case management, personal assistant services for people with physical disabilities, and others. Our analysis went through a number of steps. There was a stakeholder input from county agencies, providers, and individuals accessing the services, their families, and State personnel. We did an interstate survey to see what other states having similar services have been paying their providers. We did an intrastate survey, which reviewed rates for similar services across different programs. One example would be targeted case management. We did cost collection from providers to get historical cost information and we developed the market basket analysis, which was an independent model.
We have made recommendations on over 50 rates for 38 different services. Many of the recommendations either whole or in part have been included in the Governor’s budget and the alternative tax proposals put forth by the members of the Assembly and the Senate. There were three additional recommendations. One, providers are now required to submit cost information to the State so that baseline information for a service could be developed; two, the management information system would need upgrading; and three, the rates should be re-based and the process repeated every 5 years. For the years the rates are not re-based we suggest the Legislature adopt an inflation index to benchmark whether the rates are maintained adequately or are falling behind. This task force recommended we use the DRI/CMS home health agency market basket rate index.
Senator Cegavske:
I have noted the points in your testimony for further consideration.
Chairman Rawson:
I will accept a motion on S.C.R. 36.
SENATOR WIENER MOVED TO ADOPT S.C.R. 36.
SENATOR CEGAVSKE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL AND MATHEWS WERE ABSENT FOR THE VOTE.)
*****
Chairman Rawson:
I will close the hearing on S.C.R. 36 and open the hearing on Assembly Bill (A.B.) 25.
ASSEMBLY BILL 25 (1st Reprint): Authorizes employee of agency, which provides child welfare services to provide maintenance and special services to certain children under certain circumstances. (BDR 38-690)
Allison Combs, Principal Research Analyst:
I served as research staff for the Legislative Committee on Children, Youth, and Families, which recommended A.B. 25. I am here to provide background information on the bill. The committee requested the drafting of A.B. 25 after receiving information during the interim from the Foster Care and Adoption Association of Nevada which noted that employees of child welfare agencies who have exhibited a tremendous dedication to children through their chosen careers represented an untapped resource for foster care providers.
Chairman Rawson:
This bill allows people who work for the State to adopt or accept a child through foster care.
Ms. Combs:
Assembly Bill 25 revises the existing statute to allow that practice, but with some restrictions. The child cannot be on their current caseload or have been on their caseload in the prior 3 years.
Edward E. Cotton, Administrator, Division of Child and Family Services, Department of Human Researches:
An earlier version of A.B. 25 included a large fiscal note. There is no fiscal note in the bill at this point. There are sufficient guidelines in the bill to assure ethical issues would not arise.
Chairman Rawson:
We recognized the policy against a foster parent being able to adopt was a limiting and damaging policy. This bill goes along with that premise.
Mr. Cotton:
Our staff can become foster parents in order to adopt if I sign a waiver, but it is a long process. This bill will allow us to license people who have not identified a child; therefore, foster homes would be available as needed by the children.
Senator Cegavske:
There will be no fiscal note now or ever?
Mr. Cotton:
Yes, you are correct. The section of the bill, which would have cost $6 million, has been eliminated.
Dan Musgrove, Lobbyist, Clark County:
Clark County is supportive of A.B. 25.
Chairman Rawson:
I will accept a motion on A.B. 25.
SENATOR CEGAVSKE MOVED TO DO PASS A.B. 25.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL AND MATHEWS WERE ABSENT FOR THE VOTE.)
*****
Chairman Rawson:
I will open the hearing on A.B. 313.
ASSEMBLY BILL 313 (1st Reprint): Directs Legislative Committee on Health Care to conduct study of staffing ratios in hospitals and similar health care facilities. (BDR S-729)
Assemblywoman Christina R. Giunchigliani, Assembly District No. 9:
We attempted to approach the issue of staffing at the hospitals in the original version of Assembly Bill 313. This has been a long-term problem. The issue has been discussed periodically during previous sessions. The genesis of this bill is to bring closure to this issue. The bill originally established safe nurse-to-patient ratios hospitals had to meet. They established better nurse staffing patterns because it equates directly to patient care. Better staffing prevents nurse burnout, which would help alleviate the shortage of nurses. The original bill would have established safe nurse-to-patient ratios in Nevada’s hospitals. It would have placed nurses on mandatory overtime. California passed a similar law in 1999. The University Medical Center (UMC) has the best nurse staffing levels in southern Nevada and as a result has the lowest nurse turnover rates.
Recognizing the shortness of this session, it was decided to convert the bill into a study. The Assembly felt it would not be a judgment being called by the Legislature, but recommendations would be brought back before next session regarding the issue of staffing and related problems.
I have received an amendment from the Hospital Association (Exhibit D). No one had expressed concerns after the bill had been previously amended. The amendments from the Nevada Hospital Association will gut the entire intent of A.B. 313. We are aware of the nursing shortage, which is the reason we are spending millions of dollars this session to deal with the issue. I ask this committee to look at the heart of the issue, “What is the appropriate staffing pattern for patient care in the hospitals in Nevada?” I wish to state for the record, “Assemblywoman Koivisto and I do not see the Nevada Hospital Association’s suggestion as a friendly amendment, but a gutting of the intent of what the Assembly wanted to deal with.”
Chairman Rawson:
The Legislative Committee on Health Care technically has the authority to do this. As long as an amendment is not prohibitive, it is likely the study would proceed.
Assemblywoman Giunchigliani:
My initial reaction was that taking out the word “Whereas” changed the intent. As the consideration moves forward the committee can consider any issue. We try to clarify legislative intent so issues are not misunderstood. Whatever is crafted needs to be sensitive to both parties. We do have an obligation to make sure that both the people who work within the hospitals as well as those who run the hospitals have had proper balance and input.
Jerri Strasser, R.N., SEIU Nurse Alliance:
I will be reading from prepared testimony (Exhibit E) concerning A.B. 313. I have given the committee the study conducted by our union (Exhibit F), “Where Have All the Nurses Gone?” There is also a document (Exhibit G) “Hospital Nurse Staffing and Patient Mortality, Nurse Burnout, and Job Dissatisfaction” reporting patient care suffering because of insufficient nursing staffing. We are in support of A.B.313.
Chairman Rawson:
What is the surgical nursing ratio at UMC?
Ms. Strasser:
I believe it is four or five patients to one nurse. I have given the committee a letter and other information (Exhibit H) from Kaiser Permanente concerning nursing ratios.
Senator Neal:
How does A.B. 313 relate to the bill allowing nurses in interstate to transfer to Nevada if we enter into a nurse’s agreement?
Chairman Rawson:
We were dealing with reciprocity of sorts, which should bring more nurses into Nevada, but does not affect the ratio in any way.
Ms. Strasser:
We were against that bill. We felt there is a nursing shortage in almost every state. We already have reciprocity. I am licensed in California and Nevada. There is already recognition of my credentials. Nurses can come to Nevada, but they also can leave. The nurse staffing ratio issue is what must be addressed. Allowing nurses to move about freely creates permanent travelers and does not address the crisis we have experienced.
Senator Neal:
Why is there a need for a study if the problem is already recognized?
Assemblywoman Giunchigliani:
There is no debate about whether there is a nursing shortage. There is a defined shortage. There are sufficient nurses in this State who are licensed, but choose not to practice because of the working conditions. Part of what this study would do is answer the question, “How do you deal with staffing properly for the quality of patient care?” The opposition is trying to use the smoke screen of shortage issue versus the staffing issue.
The same situation happens in the teaching profession. Clark County hires 1200 teachers a year on average. About 38 percent leave within the first 5 years of teaching because of the working conditions, not just the salary. We want to do a study to determine what would be appropriate for Nevada’s nurse’s staffing ratio.
Senator Nolan:
It is in the hospital’s best interest to provide quality patient care. If the end result were a poor outcome or death, this would equate to a significant liability for the hospital. Why, if the hospitals are not staffing at adequate levels is there not an outcry of wrongful deaths in the hospitals?
Cagin Ralls, R.N., Operating Engineers Local No. 3:
As a registered nurse in Nevada I must follow the Nurse Practice Act, which mandates I must accept a safe assignment. If I feel the assignment is above and beyond what I can do, then I must refuse the assignment. If I accept the assignment, I also hold the liability on the patient. One of the reasons for the cry from administration is because the nurses are taking some of the brunt of the responsibility.
Ms. Strasser:
I am a working nurse and a union representative. I receive reports when the nurses feel there is not adequate staffing, which is then brought to administration’s attention. Very often it is due to a nurse not being replaced on sick call. Most nurses feel compelled to provide the best patient care possible. Nurses generally take on more than they should. I care that the patients are better off for having had a nurse than not having one. Administration would put as much load on the nurse as a nurse would accept.
Ms. Ralls:
The amendment from the Nevada Hospital Association focuses on a study of nursing shortages. There are numerous studies on nursing shortages. One of the commonalities in all the studies was working conditions, which is a cause of the nursing shortage.
Chairman Rawson:
Are there many studies addressing staffing shortages? Are you looking for a forum to change the staffing ratios or do we need another study?
Ms. Ralls:
We need a study of Nevada to establish our parameters. Other studies are not specific to Nevada.
Lisa Black, Lobbyist, Nevada Nurses Association:
I have submitted my written testimony (Exhibit I) in support of A.B. 313 for the record
Senator Mathews:
The issue of medical errors and staffing has been looked at before.
Ms. Black:
Yes, you are correct. It has been documented that of the 48,000 to 98,000 people who die as a result of a medical error each year, 25 percent can be directly linked to inadequate nurse staffing. It was discussed, but no action was taken to address the problem.
Scott Watts, President, Nevada Alliance for Retired Americans:
I will read a portion of my testimony, but have submitted a copy of my testimony (Exhibit J) in support of A.B. 313 for the record.
Assemblywoman Giunchigliani:
If the committee’s decision would be not to study this issue, then we could return to the original staffing language, which was our preference.
Bobbie Gang, Lobbyist, Nevada Women’s Lobby:
We are in support of A.B. 313. I have personally observed nurses being pulled from other units who were not experienced in a specific area. There have been occasions when the nurse’s bells were ringing and no one was paying attention. I was told by a nurse, “We just do not have the time to answer.” We have been aware of this problem for years. I hope you will look into this situation during the interim.
Chairman Rawson:
There is such a reliance on the nursing staff. It may be the only comfort a patient receives during a time when a person is frightened and not feeling well.
James L. Wadhams, Lobbyist, Nevada Hospital Association:
We have taken the lead in promoting the development of increased nursing. It is important to note, the issue for the Hospital Association is delivery of care. It is recognized by hospitals that an adequate number of nurses is critical. We support a study in addressing those issues. We are not averse to reviewing the method by which staffing ratios are currently established, because it is already mandatory by law. The difference is, currently, it is done on an equity basis per shift, and personnel are matched to the patients. This has the dynamics necessary to address the circumstances at hand. The difficulty we have is the notion that legislating more nurses creates more nurses. Imposing a California regulation, which has not been put into effect because the imposition of numerical staffing ratios will cause hospitals to close rooms.
A few months ago a crisis occurred in Las Vegas. All the ambulances were occupied, the hospital parking lots were filled, and the hospitals were at capacity because, in part, there was an insufficient number of nurses. We legislated a hospital room can only be open if there is one nurse for four patients that would result in closing hospital rooms, which would reduce capacity and the constituents would be put in the parking lot rather than in the hospital. The issue raised was recruitment and retention. New staff must be recruited and the hospitals retain existing staff. In the first reprint of A.B. 313 this issue is not addressed.
The Hospital Association has developed an amendment (Exhibit D) where retention and recruitment are specific items suggested. Long-term and short‑term solutions to the nursing shortage are recommended areas of study. It has been alleged that nurses have been driven away due to poor management. The evolution of nursing has gone from totally hospital based to less than 50 percent hospital-based nursing opportunities. The expansion of the opportunities to utilize that professional skill has contributed to the deficiency. The dramatic growth in our population outstrips our capacity in southern Nevada. Even if every licensed nurse residing in Nevada were pulled out of their existing job, there would still be a shortfall in the future because of our tremendous growth.
I do not like appearing in opposition to a bill where the intent is worth studying. We recommend this bill to a review by the interim committee. A presumption that a numerical ratio will improve health care is unwise. We are suggesting a balance; the study of areas in recruitment, retention, and the balance of your constituent’s access to hospital care.
Bill Welch, Lobbyist, Nevada Hospital Association:
The Nevada Hospital Association has tried to take a proactive approach in dealing with the nursing shortage as Mr. Wadhams has referenced. Retention, recruitment, and the workplace environment are important parts of the problem. We have created an organization called the Nevada Nurse Institute, which has a broad range representation. Retention was an issue. We focused on what in the work environment was making the nurses unhappy and choosing not to stay in the hospital setting. Recruitment, education, and image are other areas which have been considered. At a future time, or during the interim, we would be willing to give a report to the health committee as to the efforts that have been expended. We have pursued many grant opportunities to address all these focused areas.
A multitude of programs have been developed. One program, which has been recognized on a national basis, is the designation of a chief retention officer in the hospital who specifically would focus on the nursing personnel of the hospital. This would take time to evolve. Attitudes, practices, and policies on both sides of the issue to cause significant change on how to go forward would be a step in the right direction.
There are more licensed nurses in this State than are employed in the hospital community. Only 65 percent of the licensed nurses are employed by hospitals because there are many other opportunities for nurses. There are statistics concerning nurses changing where they practice their profession. Medicine is changing to an outpatient not an inpatient arena. Twenty years ago 80 to 90 percent of surgery was performed in the hospital setting. Today, less than 50 percent is performed in hospitals. The trend is escalating.
Multi-state licensed nurses is another issue. The State Board of Nursing licenses many nurses who are residents of other states. This is a very complex issue. We are not opposed to looking at how staffing affects patient outcome. We are supportive of that approach if there is not a predetermined outcome expected in this study. If the study warrants ratios or different approaches need to be developed, then let those recommendations come forth.
Assembly Bill 313 in its first reprint states, there will be a study and they will develop, which means there is a predetermined outcome to the study. We would be happy to participate in the study. We are committed to address the nursing shortage and workplace environment issues, and to work with both sides of this issue.
Senator Neal:
When I hear nursing shortage, I think of patients being served. The patient should be your ultimate concern, no matter how many nurses it would take to achieve that goal.
Mr. Welch:
I agree with everything you have said. We have presented and participated in a committee formed by Assemblyman Richard D. Perkins, Assemblywoman Barbara E. Buckley, and others to speak to the need for more nurses. The nurses are doing an exemplary job for the number of hours they are working. The hospital community is spending $24 million a year to minimally meet the demand. Even with that effort there are patients waiting in emergency rooms to access hospital floor care because we do not have enough nurses. Hospitals spend $500,000 in direct contributions to the University College System in overhead to expand the nursing education program. We spend $14 million, over and above the base salary, to bring other nurses into the State to supplement the nursing staff. There are $1 million in scholarships.
We have been challenged by this Legislature for the commitment made by approving a plan that will allow for the doubling of the nursing program. In that process we were challenged and have accomplished obtaining the equipment for the program. We have two different grant initiatives to bring in additional resources. We need more nurses in this State so we can meet the patient’s needs.
Senator Neal:
I do not understand your opposition to A.B. 313. The bill seems to be geared toward your objectives.
Mr. Welch:
We are opposed to a study that has a predetermined outcome. Every hospital must have a staffing system in place, which is reviewed for licensure or accreditation. We are not opposed to analyzing those and determining whether there need to be changes made to those policies.
Senator Neal:
All studies emanating from this Legislature have a predetermined outcome; if they did not, they would be scientific studies.
Senator Wiener:
I do not see it as a predetermination. It is to establish parameters, something to aim toward as a policy, which is the Legislature’s responsibility. There are no preconceived numbers.
Mr. Welch:
We looked at the original form of A.B. 313 and other legislation over the last several sessions. We look at staffing as being driven by a combination of multiple factors, not a set number of bodies on either side of the agenda, a set number of nurses, or a set number of patients. We look at staffing from the qualification of the nurses and the medical acuity of the patient. We are not opposed to looking at formularies and how we do staffing, but a numerical formula will not fit every case because patients are not the same and neither are nurses. A numerical ratio will not work. It must have a balance of patient acuity and the qualifications of the nursing personnel.
Chairman Rawson:
I will assign Senator Cegavske to work with Mr. Wadhams, Ms. Black, Mr. Welch, and Ms. Strasser on this issue in a subcommittee. I will open the hearing on A.B. 323.
ASSEMBLY BILL 323 (1st Reprint): Makes various changes concerning long‑term care provided to persons with dementia. (BDR 38-1194)
Assemblywoman Kathryn (Kathy) McClain, Assembly District 15:
I am the Clark County Senior Advocate and have worked with the Clark County Alzheimer’s Association. I am aware of the problems experienced by patients with Alzheimer’s disease or dementia. Assembly Bill 323 addresses dementia in several different forms and in particular Alzheimer’s disease.
Bonnie L. Parnell, Lobbyist, Nevada Alzheimer’s Advisory Council:
Alzheimer’s is a disease people have difficulty discussing. It is frightening and those touched by the disease know why it is called “the long goodbye.” It is time for our State to ensure those suffering from dementia-related diseases and their families have the options and care available that will be in their best interest.
The fiscal note on this bill has been removed. Section 1 requires persons with dementia to be placed in a facility where caregivers have been trained in dealing with dementia. All staff involved with people who have dementia needs quality training. This would be to ensure they have the appropriate skills and understanding to meet the special needs of the people in their care. Quality training enables staff to provide care for people with dementia in a way that treats each person with respect and preserves their dignity.
The prevalence of Alzheimer’s disease is expected to grow from 4 million people in 2000, to 8.7 million in 2020, and to 14.3 million in 2050. With the ever‑increasing older population here in Nevada, we should be especially cognizant of those numbers and the potential impact to our State.
Section 8 of A.B. 323 takes language from the Strategic Plan and gives direction to increasing bed capacity for persons with dementia. In 2002, approximately 60 nursing home residents over the age of 65 were placed in out‑of-state facilities. The distress and anguish caused by placing a loved one in a facility is traumatic, let alone having them placed out of state. These persons were placed in out-of-state facilities because they needed a secure facility, due to wandering or behavioral problems, which require specialized staff training. State staff has indicated that many Nevada facilities are reluctant to accept individuals with behavior issues. At the time the 60 persons were placed out of state, there were no facilities willing to take them.
The Strategic Plan referenced in S.C.R. 36 also determined that alternatives to placing seniors in out-of-state facilities could be implemented. Each biennium the number of such placements should be analyzed and progressed toward eliminating these placements so that there would be no seniors with Alzheimer’s disease placed out of state. Assembly Bill 323 is fiscally responsible, it is compassionate, it is proactive, and I urge your support of the bill.
Chairman Rawson:
Which board is referenced in the bill?
Ms. Parnell:
It is the State Board of Health.
Brandy Gregg, Regional Director, Alzheimer’s Association of Southern Nevada:
A keycomponent to A.B. 323 is training. We are advocating for increased training that would address the complex behavior associated with Alzheimer’s disease. Current training requirements are inadequate in providing our professionals and paraprofessionals with the tools needed to deliver quality care to this special population. There is an urgent need for dementia-specific training and behavior management techniques. It has been shown that appropriate behavior management techniques can minimize the majority of behavioral symptoms including physical aggression. These behavioral issues are the overwhelming reason why individuals with dementia are being placed in out‑of‑state facilities.
I would cite the report generated by the Department of Health and Human Services, Office of Inspector General, dated November 2002 (Exhibit K. Original is on file in the Research Library.). On behalf of the Alzheimer’s Association I would encourage you to support A.B. 323.
Charles Duarte, Administrator, Division of Health Care Financing and Policy, Department of Human Resources:
We are supportive of the intent of the bill and the plan to move forward with developing the capacity to provide specialized services within the state. I will read my prepared testimony (Exhibit L).
Chairman Rawson:
Would you address the fiscal note?
Mr. Duarte:
The fiscal note has been removed with the understanding that the bill is proposing to develop a plan, which would be presented to the interim committee for their consideration. If there would be a need for additional funding, we would need to wait until the next biennium to implement the program.
Chairman Rawson:
Are you in agreement with the intent of the bill? Are there any changes you would recommend?
Mr. Duarte:
Yes, we agree with the intent of the bill and propose no changes.
Thelma Clark, Lobbyist, American Association of Retired Persons (AARP):
Larry L. Spitler, Lobbyist, AARP, has provided his written testimony for the record (Exhibit M). The AARP is in support of A.B. 323.
Chairman Rawson:
I will accept a motion on A.B. 323.
SENATOR WIENER MOVED TO DO PASS A.B. 323.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS WASHINGTON AND NOLAN WERE ABSENT FOR THE VOTE.)
*****
Chairman Rawson:
I will open the hearing on A.B. 384.
ASSEMBLY BILL 384 (1st Reprint): Makes various changes concerning provision of prescription drugs by Department of Human Resources. (BDR 38-775)
Assemblywoman Ellen Marie Koivisto, Assembly District No. 14:
I requested A.B. 384 as a result of several national meetings, which I attended. Nevada was used as an example of how not to do Medicaid prescriptions. I studied the Michigan and Florida plans. Assembly Bill 384 was the product of changes made to the Michigan and Florida plans. I felt it was a more patient‑friendly way to provide Medicaid prescriptions to our Medicaid population and to save the State money. If I had been aware of the many amendments due to arrangements that were made, I would have incorporated them into the bill. Assembly Bill 384 creates a Pharmacy and Therapeutics Committee to put together a preferred drug list. This bill mirrors what the Department of Human Resources has put together as a preferred provider list. The fiscal note is already included in the Governor’s budget.
Chairman Rawson:
Are you agreeable to the amendments?
Assemblywoman Koivisto:
Yes, because the parts I felt were important such as patient protection and safety were included in the amendments.
Tom Wood, Lobbyist, Pharmaceutical Research/Manufacturers of America (PhRMA):
The amendments (Exhibit N) are a collaborative effort between the Pharmaceutical Research/Manufacturers of America and the Department of Human Resources, in conjunction with Assemblywoman Koivisto. This amendment reflects most of what was in the bill, particularly, the patient concerns.
Chairman Rawson:
It does create a preferred prescription list.
Mr. Wood:
Sections 1 through 4give definitions. Section 5 sets up the preferred drug list, exclusions from being considered to the preferred drug list, authority for the committee to identify inclusions and what will be considered the methodology for new drug, new indication inclusions; and continuity of care. Section 6 describes the management subject matter of the Drug Utilization Review Board (DURB), which will be done through evidence-based guidelines, not cost. Section 7 describes the Pharmacy and Therapeutics (P and T) Committee that will oversee and be the final authority of what goes on the preferred drug list. Section 8 describes the committee appointments. Section 9 describes compensation to committee members. The duties of the committee are described in section 10. Section 11 sets up and describes the Advisory Committee to the DURB and the P and T committee. One member on the committee will represent seniors, mental health, and the disability population, and will advise the DURB and the P and T committee.
Chairman Rawson:
Are there any changes to the language you have submitted to us?
Mr. Wood:
Yes, there is one technical amendment. On page 1 of our amendment, section 5, number 2, “The Department shall, by regulation, develop a list of preferred prescription drugs which shall be excluded from restrictions on the list of preferred prescription drugs.”
Chairman Rawson:
Would we change the language “may not be included” to “shall be excluded from the list of prescription drugs?”
Mr. Wood:
It would clarify the meaning.
Chairman Rawson:
Please repeat for the committee staff.
Mr. Wood:
“Shall be excluded from restrictions on the list of preferred prescription drugs.”
Senator Cegavske:
As I recall, when your budget closed, there was a preferred drug list included.
Chairman Rawson:
This is just a policy.
Senator Cegavske:
I thought there was a policy already worked out.
Mr. Duarte:
You are correct. Our budget was closed with the implementation of a preferred drug list starting January 1, 2004. The savings are included in our budget modules.
Chairman Rawson:
Would this interfere?
Mr. Duarte:
We worked with the representatives of PhRMA to assure that it did not interfere with the Governor’s budget.
Senator Cegavske:
Were you referring to the net savings under the fiscal note?
Mr. Duarte:
Yes. We have budgeted the total savings from the preferred drug list starting January 1, 2004.
Senator Cegavske:
Do we need this legislation?
Mr. Duarte:
We do not. We have the authority under the Executive Branch to implement programs including the development of supplemental rebates as a part of a preferred drug list. We appreciate Assemblywoman Koivisto bringing this forward as policy initiative and pointing out the need.
Chairman Rawson:
Does this interfere with what you want to do?
Mr. Duarte:
It does not interfere with us.
Senator Mathews:
Will this interfere with the preferred drug list passed in the budget? We do not need this bill because it will not enhance what has been passed?
Mr. Duarte:
The bill does not interfere, nor does it further enhance except to point out the policy intent of the Legislature.
Senator Mathews:
Could we accomplish this with a letter of intent?
Mr. Duarte:
I believe it could be.
Chairman Rawson:
I believe in letters of intent, but all we see is that letters of intent are not followed. I like the idea of an evidence-based review. There may already be such a policy. A number of states are on the cutting edge of evidence-based reviews. Let us make our decisions on things that have been demonstrated to work.
Senator Wiener:
I believe something this profound and important to the people needs to be established statutorily so that the message would not be a letter of intent, but show we want this to last for a long time.
Senator Neal:
Do you have the authority to negotiate supplemental rebates?
Mr. Duarte:
We do have the authority to pursue what is called a Medicaid waiver in order to establish the authority with the federal government to negotiate supplemental rebates. I would still need to negotiate a waiver with the federal government to get that authority.
Senator Neal:
I am talking about the manufacturer of the drugs.
Chairman Rawson:
Without a waiver from the federal government, this could not be done.
Mr. Duarte:
This is correct. We do have the authority to pursue waivers with the Centers for Medicare and Medicaid services administratively, which we do quite often.
Senator Neal:
Under the federal statute you can seek a waiver to do this?
Mr. Duarte:
Yes.
Senator Neal:
Do you have the authority from the State to do this?
Mr. Duarte:
Yes.
Senator Neal:
Do you have any limitations?
Mr. Duarte:
The limitations are defined by the Centers for Medicare and Medicaid Services and what they would impose on any waiver that they grant to the State Medicaid Agency.
Senator Neal:
If the waiver imposed limitations, you would not go beyond them even if it would be to the benefit of the State?
Mr. Duarte:
Yes. I reiterate. You cannot go beyond that if it would be to the benefit of the State? Our program is defined as a joint collaborative effort between the federal government and State government. We have broad authority to implement our programs in a manner needed for Medicaid recipients.
Senator Neal:
From what section of the statutes does this authority come?
Mr. Duarte:
It comes from chapter 422 of Nevada Revised Statutes (NRS). It gives the director the authority as the Medicaid agency to establish and operate a Medicaid program in Nevada.
Senator Neal:
Do you have the authority to set up advisory committees?
Mr. Duarte:
Yes, we do have such authority. The Drug Utilization Review Board specifically is defined; its function is already established not only in the Code of Federal Regulations, but also in the Social Security Act. We follow those requirements established in federal law.
Senator Neal:
How much rebate have you received under existing law?
Mr. Duarte:
We have received an average of 20 percent of our pharmacy expenditures. We have exceeded the budget expectations in 2002 and 2003.
Senator Neal:
What is the dollar figure?
Mr. Duarte:
It is approximately $16 million a year.
Senator Neal:
Would this bill hamper the rebate?
Mr. Duarte:
If we can get a waiver from the federal government to negotiate on top of those rebates, which are already established, supplemental rebates will bring in additional revenue on top of the federal rebates.
Senator Neal:
This would allow additional revenue?
Mr. Duarte:
The waiver would allow us to do this. The amendment does not address supplemental rebates.
Senator Neal:
You are speaking about an amendment. I am talking about the bill.
Mr. Duarte:
The bill does allow for us to negotiate supplemental rebates with manufacturers. It also asks us to seek a waiver to implement such supplemental rebates. The amendment does not address supplemental rebates.
Senator Neal:
You do not want the amendment?
Mr. Duarte:
We are not opposed to the amendment because we know we have regulatory authority to establish a supplemental rebate program and seek a waiver to develop such a program.
Senator Neal:
You do want the bill?
Mr. Duarte:
We would like the bill with the amendment.
Senator Neal:
It is my understanding the amendment would affect the waiver.
Mr. Duarte:
The bill or amendment does not affect us getting a waiver in order to negotiate supplemental rebates.
Senator Neal:
Why would you want the amendment if it does not do anything for you?
Mr. Duarte:
It requires us to establish in regulation the program we have been discussing. It puts into place the patient protections through regulations to which Assemblywoman Koivisto referred. Separate from the bill and the amendment, it has been our intent to develop a supplemental rebate program. We do not need the bill or the amended bill in order to proceed with the development of a supplemental rebate program.
Chairman Rawson:
Would the amendment give you such authority?
Mr. Duarte:
Yes.
Mary Lau, Lobbyist, Retail Association of Nevada:
We support A.B. 384 and the Michigan plan. In the beginning the Michigan plan struggled. The plan was tested in court and has survived. First Health was the implementer of the plan and is also our provider. They have learned how to do this properly. The reason the pharmacy community would be involved in this type of legislation is because of the cost of Medicaid coverage. The department dealt with the cost by reducing the average wholesale price (AWP) reimbursement to the pharmacies last year. We went from AWP minus 10 percent, to average AWP minus 15 percent. We talked to the department and the Governor’s staff about ways to implement savings within Nevada. The pharmacy community through the auspices of the National Association of Chain Drug Stores and several of our members brought forward proposals on the preferred drug lists.
The language in the amended version of section 5 is better than the original. Our members believe the amended language in section 6 expands the committee too far and leaves room for politics as opposed to policy. We prefer the original bill’s language.
Chairman Rawson:
Let us review the language in dispute to reach an accommodation.
Ms. Lau:
In the original bill the committee is composed of 8 members and the amended version is 11 members.
Mr. Wood:
I will read the language in section 7 of the amended version of the bill. The committee would be composed of medical doctors, pharmacists, and one psychiatrist. The original language consisted of four physicians and four pharmacists.
Mr. Duarte:
The language proposed in the amendment would be consistent with the requirements of the Social Security Act, which defines the structure of a DURB, but is a good model for the establishment of the P and T committees.
Ms. Lau:
The bill’s language was modeled after the Michigan plan’s P and T committee that also satisfied the Social Security Act requirements. It would be a policy decision by the Legislature. We are concerned that a large committee would be cumbersome.
Senator Neal:
Are you saying the Social Security Act does not mandate the number of members?
Mr. Duarte:
The Social Security Act defines the percentage participation of physicians and pharmacists on a DURB. The bill and the amendment meet those specifications in the act.
Chairman Rawson:
Unless you have a specific change we may need to process this amendment as presented.
Ms. Lau:
I can submit the members concerns to you. We were also concerned about the supplemental rebate language being removed from the bill.
Chairman Rawson:
There is an intent established that they will proceed with the supplemental rebate.
Ms. Lau:
My purpose for testifying was to establish the intent for the record because we will be actively participating in the regulatory process.
SENATOR CEGAVSKE MOVED TO AMEND AND DO PASS A.B. 384.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.)
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Chairman Rawson:
I will open the hearing on A.B. 445.
ASSEMBLY BILL 445 (1st Reprint): Makes various changes related to Medicaid.
(BDR 38-482)
John A. Liveratti, Social Welfare Program Chief, Division of Health Care Financing and Policy, Department of Human Resources:
I will read from prepared testimony (Exhibit O) in support of A.B. 445.
Chairman Rawson:
Will this stop people from buying long-term care insurance or being eligible for Medicare?
Mr. Liveratti:
This bill will not prohibit either activity.
Leslie Danihel, Chief Eligibility and Payments, Welfare Division, Department of Human Resources:
The remaining revisions requested in NRS 422 pertain to the Medicaid Estate Recovery or MER program. This is a federal requirement under Medicaid, which recovers correctly paid Medicaid benefits from the estate of a deceased Medicaid recipient. The intent of the requirement is that a deceased recipient’s estate offset the previous medical services paid on their behalf while they were a Medicaid recipient. When the Division of Health Care Financing and Policy was created in 1999, the MER program remained behind with the Welfare Division. All monies collected by the Welfare Division are deposited directly into an account established for this purpose within the Division of Health Care Financing and Policy. Since the welfare administrator does not have the authority for the distribution of the monies collected, we are requesting authority for the operation of the program to be established at the department level. This would allow for the greatest amount of flexibility should any further reorganization of the department occur.
Assembly Bill 445 proposes to amend the definition of “undivided estate” by removing community property transferred to another spouse, adding annuities, and declaring of homestead. The transfer of community property was in State law; the Centers for Medicare and Medicaid Services (CMMS) would not approve this as part of Nevada’s Medicaid State Plan. Nevada was advised by CMMS that annuities and declaration of homestead are covered in current State law in NRS 422.054. Due to the number of questions received, the department wishes to clarify annuities and declaration of Homestead in statute to conform to the Medicaid State Plan.
Assembly Bill 445 includes new language in NRS 115, Homesteads. The bill adds language exempting the MER program from the operation of Nevada’s Homestead provisions. There have been instances where the State of Nevada has not been able to maintain a lien against the real property interests of deceased recipients. In two cases the spouses have declared bankruptcy after the death of the recipient and claimed a homestead exemption in the bankruptcy. In both cases the State was unable to maintain a lien against the property and had the State’s claim against the undivided estate of the recipient discharged in the bankruptcy of the surviving spouse. In another case the surviving children of a deceased recipient asserted a claim of homestead and negotiated a settlement for a lien for less than the full amount of the State’s claim was reached. In these cases the recipients were able to receive the free medical care provided by Medicaid and leave substantial property to their heirs without the State being able to recover Medicaid benefits as required by federal and State law.
Chairman Rawson:
Are we circumventing the purpose of the Homestead Act? By your testimony it sounds as though we would be circumventing its purpose. The Homestead Act’s purpose is to protect the property’s value.
Mr. Liveratti:
It is a federal requirement. The federal law would supersede State law. We are trying to clarify where the federal would stand. The federal law requires us to collect it.
Chairman Rawson:
Without this bill, have you lost cases?
Mr. Liveratti:
Yes, we have lost cases. We are appealing one case and are returning to court.
Chairman Rawson:
You may or may not have lost the case.
Ms. Danihel:
You are correct. We lost the case in State court because of the judge’s understanding of State law. We are appealing the case in federal court.
Senator Neal:
The language in section 8, lines 26 and 27, are about the department transferring authority to the department head. I am concerned as to whether the department’s head can oversee and do the job correctly. What is the need for the repeal section in the bill?
Mr. Liveratti:
You are referring to the section known as the “nest egg” provision. We could not implement it because the CMMS would not approve the State plan amendment to increase income for this program up to $200,000 per individual.
Senator Neal:
Is it in the best interest of the State to get rid of that language?
Mr. Liveratti:
I believe it is in the State’s best interest.
Michael J. Willden, Director, Department of Human Resources:
The department asked that the powers be moved from the Welfare Division to the Medicaid Division, but the bill drafters said the best way to address this is to assign the duties to the director. There is an existing statute giving the director the right to make the decision as to which division would work on this. My office will not be doing this work; the Medicaid Division will be doing the work.
Senator Neal:
Would another division within your control do the work?
Mr. Willden:
There are several pieces of legislation this session where this would take place. The bill drafters seem to be assigning programs and responsibilities to the director, then use the existing statute that permits the director’s office to assign which division operationally implements the program.
Senator Neal:
Will anyone experience a salary reduction?
Mr. Willden:
No. This program is a two- or three-person operation. It will be transferred from Welfare to the Medicaid budget. The budgets are closed, in effect, this bill helps implement what is in the Governor’s budget.
Senator Neal:
Would that be in the best interest of the recipients of this program?
Mr. Willden:
Yes.
Senator Mathews:
How would this bill affect me if I have invoked the Homestead Act?
Mr. Willden:
The federal rules state a homestead exemption does not exempt the Medicaid program from going after property in a State recovery action. There is a conflict between the State’s interpretation of a homestead, exempting it from certain actions, and the Medicaid federal rule saying it is not exempt.
Chairman Rawson:
The major policy decision would be if we wanted to have a “spend down” provision. Nevada has taken a position a person should use their assets to pay for Medicaid.
Mr. Willden:
Medicaid recovery does not require anyone to “spend down” their assets. While they are living, these assets are protected. It is after their death, the program pursues the assets.
Ms. Danihel:
If there is a surviving spouse or a dependent child under 18 years, the estate is not pursued until the surviving spouse is deceased as well.
Senator Neal:
Where in the bill are you addressing the undivided estate? Would it be on page 2, section 2, lines 16 through 24?
Ms. Danihel:
On line 20 the italicized words are being added to that portion of the statute.
Senator Neal:
Does the bill include annuities?
Ms. Danihel:
Annuities are in current federal law.
Senator Neal:
You would pursue both spouses’ assets?
Ms. Danihel:
We determine what assets belong to which spouse. If assets are declared to be of one spouse’s separate property, then those are not pursued through the MER program.
Senator Neal:
If the federal government allows you to do this, why is there a need for the bill?
Ms. Danihel:
We are trying to provide clarification to State attorneys and the public with regard to what is provided by federal law, which has occurred through our State’s operation of the program.
Senator Neal:
Are you looking for an enhancement for your lawsuits?
Ms. Danihel:
If there were no provisions in State statute, federal law would then apply.
Senator Neal:
What would happen without these changes?
Chairman Rawson:
It would be equivocal. Then there would be a need to go to court on these issues. It would be best to have put this in statute in conjunction with federal law.
Senator Neal:
Why do we have to be in line with the federal law?
Mr. Liveratti:
If the bill were not passed, we would still need to go after MER for the people who have homesteaded their property. We would need to go to federal district court because the State’s district court would not agree. We would still be counting annuities as income, and dividing resources, which is presently the practice. This bill will make the process less troublesome when family attorneys are involved. We are going to court on cases needlessly.
Chairman Rawson:
What is the pleasure of the committee on A.B. 445?
SENATOR CEGAVSKE MOVED TO DO PASS A.B. 445.
SENATOR NOLAN SECONDED THE MOTION.
Senator Nolan:
If the federal law is repealed and we have put this in statute, where does that leave us?
Chairman Rawson:
We would have the option to change it. I will call for a vote on the issue.
THE MOTION CARRIED. (SENATOR MATHEWS VOTED NO. SENATOR NEAL ABSTAINED.)
*****
Chairman Rawson:
There being no further business at this time, I will adjourn this meeting at 3:54 P.M.
Patricia Vardakis,
Committee Secretary
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APPROVED BY:
Senator Raymond D. Rawson, Chairman
DATE: