1 1 THE BOARD OF MEDICAL EXAMINERS 2 FOR THE STATE OF NEVADA 3 4 --oOo-- 5 IN THE MATTER OF THE ) 6 WORKSHOP REGARDING ) PROPOSED REGULATIONS ) 7 ______________________________) 8 9 10 11 VOLUME II 12 TRANSCRIPT OF PROCEEDINGS 13 February 25th, 1999 14 Reno, Nevada 15 16 17 18 19 20 21 22 23 24 REPORTED BY: STEPHANIE KOETTING, CCR #207, RPR Computer-Aided Transcription 25 DISCOVERY REPORTING (775) 329-3500 2 1 APPEARANCES: 2 For the Medical Board: RICHARD LEGARZA, ESQ. 3 General Counsel 1105 Terminal Way 4 Reno, Nevada 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DISCOVERY REPORTING (775) 329-3500 3 1 DATED: At Las Vegas, Nevada, February 25th, 1999, 10:00 a.m. 2 --oOo-- 3 4 MR. LEGARZA: This is the time and place set 5 pursuant to notice for a workshop to solicit comments on 6 proposed regulations on the Nevada State Board of Medical 7 Examiners. 8 The record should reflect that today is Wednesday, 9 February the 25th, 1999. The time right now is 10:00 a.m.. 10 The notice indicates that the workshop will be conducted 11 today at 10:00 o'clock a.m. or soon thereafter as may be 12 conducted in the offices of the board at 1005 Terminal Way, 13 suite 301, Reno, Nevada. 14 For purposes of the record, my name is Dick 15 Legarza. I'm general counsel for the Nevada State Board of 16 Medical Examiners. We are located at the offices of the 17 board at 1105 Terminal Way, suite 301, Reno, Nevada for the 18 purposes of allowing comments concerning the proposed 19 regulations that have been circulated and posted in county 20 libraries throughout the State of Nevada and Attorney 21 General's Office and other governmental entities and bodies 22 in the state. 23 Anyone who is present who would like to speak with 24 regard to these things may certainly do so. The record 25 should reflect that we have the presence of one individual, DISCOVERY REPORTING (775) 329-3500 4 1 who we're glad to see here. And at this point in time, I 2 would simply represent to that person you don't have to 3 identify yourself, sir, but it would be nice if you did and 4 please give the floor to you for any comments you have pro or 5 con or suggestions you may have with respect to 6 implementation or change of any of these proposed 7 regulations. 8 MR. MATHEIS: For the record, Lawrence Matheis, 9 Executive Director, Nevada State Medical Association. Thank 10 you, Mr. Legarza. 11 I have a couple of comments, mostly just 12 clarification, questions of clarification or points of 13 clarification. On section four of the proposed regulations 14 on page three, copy I have for this hearing, a request for 15 board action or consideration shall be in written form and 16 must be received at least 17 work days before a board meeting 17 in order to be placed on the board's meeting agenda. We 18 certainly have no problem with that. That is good for the 19 order of the board. 20 I presume that still permits for emergency 21 additions to the agendas or some expedited process. We've 22 had occasion in the last several years when issues arose 23 fairly shortly before Board of Medical Examiner's meetings, 24 but more than three days before them, and I would assume that 25 this would still permit some way to amend the agenda so the DISCOVERY REPORTING (775) 329-3500 5 1 board could take action on an item that simply didn't come up 2 within that 15-day framework. 3 MR. LEGARZA: One of the things that we're 4 attempting to do in these proposed regulations with respect 5 to sections two, three, four and five is that we're 6 attempting to clean up our administrative manual and get that 7 stuff out of our administrative manual and put it in 8 regulation form. 9 And as you well know, one of the reasons why we 10 have a cut off time and date at all is because we have to get 11 this stuff out and have to get this stuff posted and have to 12 get it in front of the public pursuant to the rules of the 13 open meeting law that -- to comply with that. And of course 14 that isn't 15 days by any stretch of the imagination, but we 15 also have board members who are scattered throughout the 16 State of Nevada that we have to get the information to and we 17 have administratively had a 15-day cutoff time. 18 With respect to any emergency items, for that 19 matter, with respect to any added requests that anybody feels 20 like they need to get on the agenda, of course, we would 21 accommodate that as well as even if it were in noncompliance 22 with the open meeting law, if it were an emergency situation, 23 at least the board could -- it could be brought up to the 24 board at the board hearing and anyone could come and be 25 present and make a presentation to the board. But the board DISCOVERY REPORTING (775) 329-3500 6 1 probably couldn't deliberate to a decision as you well know. 2 I don't know if that's in answer to your question 3 or not, but there always is flexibility as you and I well 4 know and I don't think the intent is to say if it's not here 5 in 15 days, go away, we won't talk to you. 6 MR. MATHEIS: Larry Mathesis. Obviously, a number 7 of things that come up as late items during public comment 8 part. I've frequently been the one to raise them for future 9 action and would continue to do so. I want to make sure that 10 the board retains the necessary flexibility to deal with 11 items without having to have a special item. 12 MR. LEGARZA: Absolutely. 13 MR. MATHEIS: Regarding section five, again, 14 there's no objection to this. This is really pretty much 15 common sense in the state of the -- the state of current 16 practice regarding physicians who are physicians assistants 17 who would be -- who would have been identified as being 18 positive for the HIV virus and appropriate action. 19 However, this is the first time this has actually 20 appeared in regulation. And the only concern that I want to 21 state about it is just that in communicating this to the 22 physician community, I'm sure the board is going to do this 23 and I'll make every effort to do it to our membership, to 24 make it clear this really is no change in procedure; it 25 simply is putting into regulation what the current procedure DISCOVERY REPORTING (775) 329-3500 7 1 is. 2 I wouldn't want it to be interpreted that there is 3 some emergency problem or that some significant public issue 4 has occurred recently to result in this. That this is 5 simply, as I understand, it's simply putting into the 6 regulations what have been the operating policies for a 7 number of years now. 8 MR. LEGARZA: That is correct, and as a result of, 9 as I understand it, quite lengthy study with a task force 10 comprised of a multitude of people, there has been 11 suggestion, I will represent to you, at yesterday's hearing 12 in Las Vegas about the possibility of maybe not necessarily 13 defining or putting out as HIV positive being a concern, but 14 how about maybe hepatitis and maybe some more generic type of 15 infectious disease regulation other than simply pegging it to 16 HIV. So I don't know what the board may or may not do, but 17 the board will have those suggestions. What do you think 18 about that? 19 MR. MATHEIS: Larry Matheis. I think that in the 20 longer run is going to be something that you will have to 21 look at. I think especially the issue of hepatitis has 22 become statistically a far more prevalent problem for 23 physicians and for health care workers than HIV serum 24 positivity. There are guidelines, national guidelines on 25 that and I'm not even certain that perhaps the reference CDC DISCOVERY REPORTING (775) 329-3500 8 1 guideline might not have been expanded to include hepatitis 2 and maybe we need to look at that just to make sure that 3 we've got the proper reference, because it -- the -- it is 4 correct that there are a number of communicable diseases that 5 would rise to the level of the same concern as HIV. 6 MR. LEGARZA: It's possible that the CDC guidelines 7 may not even be in the, quotes, health care workers infected 8 with HIV, it may be health care workers infected with 9 communicable diseases or something like that. 10 MR. MATHEIS: Something like that. And I think we 11 need to check on that. And I'll be happy to do it and I 12 think probably the state health division can provide the 13 proper update on that. 14 The intent of this is clearly desirable and -- but 15 there are now several other communicable diseases, which are 16 easily contracted, frequently contracted by physicians and 17 other health care workers. And while in most cases under the 18 proper protections, the public would not be exposed or would 19 not be put at risk, there is responsibility to make certain 20 that the physician with the infection is practicing those 21 safeguards. 22 MR. LEGARZA: And my feeling or understanding that 23 physicians are at risk for contracting this from patients as 24 well. I mean -- 25 MR. MATHEIS: Absolutely. In almost every case of DISCOVERY REPORTING (775) 329-3500 9 1 a physician who has contracted HIV, certainly HIV, the -- 2 they have contracted it while in surgery or because of a 3 needle stick where the transfer of the virus has been from an 4 infected patient. So a big part of the guidelines are really 5 to protect physicians and health care workers from the highly 6 dangerous elements in the -- in the operating theaters, in 7 emergency rooms and in areas where blood to blood or the 8 direct contamination can occur. 9 I have a general comment on the section eight, 10 subsection one, the new proposed L through whatever the 11 final -- to O, which is essentially the new language to 12 implement the law providing for appropriate physician 13 treatment of intractable pain. 14 And we've supported this. This is largely in 15 response to a request that we had made of the board last year 16 and the task force on which we had participated with the 17 board and with a number of other licensing boards. And we 18 have -- we are in the process of circulating this, once 19 again, to the physicians who deal with pain management. 20 We've done that at every step along the way to make sure it's 21 the latest statement of the practice. And unless there is a 22 surprising comment received from anybody, we certainly don't 23 have any problem with this. 24 There is the concern that with each rewriting of 25 the proposed regulatory language, a little bit has been lost DISCOVERY REPORTING (775) 329-3500 10 1 in terms of clearly stating the policy, public policy purpose 2 that was behind this whole effort. And I understand the 3 legal forms question and the issue of how regulations have to 4 be written and they are not as -- one is not as free as one 5 would be in guidelines and other formats to explain the 6 public policy purpose, to explain the intent as far as the -- 7 as far as the practicing physician. 8 It is our intention to, when the board has adopted 9 the final language, to put together a brochure, an 10 informative, informational kind of brochure, which includes 11 what the law and regulation statements are, but puts it in 12 the broader context. This is about effective pain management 13 as an important part of the physician's responsibility in 14 dealing with people who are terminally ill and patients who 15 have intractable pain, that the physician not be concerned 16 about punishment for dealing with pain appropriately and that 17 the public in Nevada have the right to expect that they will 18 get effective pain management. 19 That's what these regulations permit. But just 20 because of the nature and the form of regulations, they don't 21 quite say it in a way that the public and I think some of the 22 physician community will want to see that. 23 So we support and are very encouraged by the board 24 adopting these regulations. We now see the next step as 25 being how to communicate to the public at large and to DISCOVERY REPORTING (775) 329-3500 11 1 physicians what a meaningful and positive step is being taken 2 here. 3 MR. LEGARZA: Couple of comments I can make that I 4 agree with everything that you've said and of course the 5 record should reflect that you actively participated in and 6 were the source of a lot of the good information in the work 7 with the adoption of these things. Yes, it ends up being in 8 lawyer language because what we really had and what we really 9 were working with, as you well know, is we had the federation 10 guidelines. 11 Well, I guess we could set out guidelines, 12 certainly we have the ability to do so. But then that's all 13 they are, of course, are guidelines. So now we've got the 14 lawyers involved and we've got to make the legal language. 15 This is what -- these are not regulations. 16 Couple of things. I participated in a seminar down 17 in Las Vegas a couple, three weeks ago, put together by, I 18 cannot think of the name of the drug company. One of the 19 major manufacturers. And Barry Cole was there, gentleman 20 from Washington, who is -- I think Washington -- a 21 pharmacist. And Keith Macdonald was there and I was there. 22 And what I attempted to get across was that I had 23 understood and the seminars that I had been to that there 24 really are two problems, at least two perceived problems in 25 the prescribing area. One, fear of regulators and, two, lack DISCOVERY REPORTING (775) 329-3500 12 1 of knowledge of physicians. And, quite frankly, I didn't 2 know that, at least my experience with the Nevada State Board 3 of Medical Examiners, that there should necessarily be any 4 fear of regulators except that the fear should be that if you 5 don't know what you're doing, you better get out of it and 6 you better get somebody else to be doing it. But you ought 7 to take a long, hard look at what these regulations not only 8 tell you you can do, these regulations tell you, and that can 9 be in the language, obviously that's what you're going to do 10 when you put together your brochures, what you better do. 11 And the whole new area, if you don't, if you under 12 prescribe, look out. And it didn't get much of a reaction. 13 The only reaction I got was to the regulations, as a whole, 14 was that there was one physician who -- we had a question and 15 answer session at the end -- and one physician who said that 16 he was a pain guy and that he just absolutely hated these 17 regulations because we were now telling him how to practice 18 medicine. And it was micro management. 19 And when we had the board meeting, half of the 20 board was in Vegas, half of the board was here, one of the 21 board members indicated he thought this was micro management 22 and it very well may be. But I think the intent is, as you 23 well know, because you participated in it, say, look, guys, 24 you can be doing this, you should be doing this, you ought to 25 be doing this and this is how we think maybe you can keep out DISCOVERY REPORTING (775) 329-3500 13 1 of trouble with us if you do it by, da-dum, da-dum, da-dum. 2 And we think it may be beneficial for your organization to 3 put it out in English, not in lawyerese. 4 And this is what it means to our guys that are 5 really practicing and what they really mean, I think. And 6 where we've seen the problem, there's a lot of guys don't 7 know what they're doing in this area and they're the ones 8 that get in trouble. I mean, if I'm not qualified to 9 practice brain surgery, then I should not be doing it. And 10 if I'm not qualified to be a pain guy, I ought to send it off 11 to somebody else who knows how to do it. I think this says 12 that as well. 13 MR. MATHEIS: I think it says it as well, and part 14 of the challenge in our perspective in the way we're going to 15 proceed on continuing medical education of physicians on 16 these issues is that as we -- as we face the coming problems 17 for physician practices in dealing with a growing number of 18 chronically ill patients, terminally ill patients, 19 end-of-life care of which pain management is a major part has 20 to be addressed as part of the training of all physicians 21 that increasingly the family practitioner, the internist, the 22 emergency room physician is going to have to be able to 23 recognize the conditions and signs that are related to pain. 24 And that increasingly pain, which is part of the 25 aging process, it's part of dealing with chronic illnesses is DISCOVERY REPORTING (775) 329-3500 14 1 going to have to be recognized as a vital sign by many 2 physicians. It's just part of their practice and our role as 3 the associated -- as the state association is to encourage 4 physicians to become familiar with the latest clinical 5 information and the latest clinical standards in pain 6 management and in all of end-of-life care. 7 We intend to incorporate what these regulations 8 permit into a broader package of training and of information 9 to the state's physicians. It's a challenge and it's a new 10 challenge for the licensing board, for the professional 11 associations, because the practice of medicine, the needs of 12 the patients are changing and our knowledge about how to deal 13 with those needs are changing. 14 Major reason why the -- and I fully understand the 15 frustration of physicians with too much regulation. I'm 16 second to none in opposing many of those, but in this case, 17 it is -- it should be viewed and we will encourage physicians 18 to view this as enabling regulations. That these clearly 19 offer the path by which physicians can begin to reassess how 20 they deal with patients who have pain and how they can do 21 that in the context of being a regulated profession and do it 22 safely. That they should not have fear of regulatory 23 intervention of their decision making and that these 24 regulations, we interpret them as you interpret them, they 25 really lay down the guidelines by which physicians can safely DISCOVERY REPORTING (775) 329-3500 15 1 practice what they believe to be the best medicine without 2 having to worry. 3 And our problem, then, becomes one of education and 4 of consensus building, but this was a very important step in 5 being able to alleviate the concern that physicians had that 6 there would be a preemptive regulatory action taken against 7 physicians. 8 And, indeed, that wasn't a totally unjustified 9 fear. There have been in some states actions taken. The 10 public policy dilemma of facing the proliferating drug 11 problem in the country has led to excessive regulatory zeal 12 closing down necessary use of prescription drugs at the same 13 time they're trying to find illegal, improper use of 14 prescribed or illicit drugs. 15 And so in the current context, this seems to be the 16 fairest and most reasonable route to go. And we're -- we 17 will try to work with the board at every step along the way 18 but it is our intention to take these regulations and then 19 move with them to the next step, which is the more difficult 20 one, actually, of helping physicians to integrate appropriate 21 pain management knowledge into their practices. 22 MR. LEGARZA: You recall that during at least one 23 of our meetings with members of our committee, some of the 24 members of the committee took the position that they would 25 like to see the Nevada State Board of Medical Examiners DISCOVERY REPORTING (775) 329-3500 16 1 require mandatory CME in this area and the board for whatever 2 reason saw fit not to do that. The point being that 3 education is one of the big problems in this area and -- 4 MR. MATHEIS: We view this as a very natural 5 blending of the board's action requiring that for the 6 relicensure process, the 40 hours of CME, at least two hours 7 of that in the areas of ethics and bioethics, that a very 8 natural part of fulfilling that obligation and of bringing 9 physicians up to par on knowledge about these regulations and 10 about pain management that we hope that more and more 11 physicians in the state will use at least those two hours and 12 we hope many more to take classes on this, on both the 13 regulation and on effective pain management. 14 MR. LEGARZA: One side comment, but in that thing 15 that I participated in down in Las Vegas had 230 physicians 16 there, and one of the things Barry Cole said at the outset, 17 he said: If you don't take anything away from here, take 18 this. Get somebody else involved with you. Send the patient 19 to somebody else. Have them look at this patient. There's 20 safety in numbers. And, you know, I told him, I said: Hey, 21 I've been prosecuting guys since I've been here and what have 22 I done? I've used the lack of this stuff and if it ain't in 23 your medical records, Doctor, you got a problem. So that was 24 part of it. 25 MR. MATHEIS: And one last comment, that the Death DISCOVERY REPORTING (775) 329-3500 17 1 With Dignity Caring Task Force in Nevada, which was created 2 by the Attorney General several years ago and which we 3 participated in developing a number of activities, has now 4 changed its name to the Nevada Center for Ethics in Health 5 Policy and is a center at the University of Nevada, Reno. 6 They're having a meeting, which includes all of the 7 hospices, all of the physicians, nurses, attorneys and others 8 who work with that end-of-life care issues, a number of 9 consumer groups, AARP and others. 10 And at an upcoming meeting in April, it's my 11 intention to take a full report on the board's activities, 12 the regulations and present it to that group so that in 13 addition to physicians' understanding of what's going on, 14 that there's a broader understanding among the interested 15 public in Nevada that public agencies and private 16 associations are taking a serious look at this area of need. 17 MR. LEGARZA: On behalf of the Nevada State Board 18 Medical Examiners, I thank you for being here. Thank you for 19 your participation with the task force working on this thing 20 and we always appreciate your input as I'm sure you well know 21 is always welcome. At least it is from staff and I think 22 from the board as well and I appreciate it. 23 MR. MATHEIS: Thanks a lot. 24 MR. LEGARZA: The record should show it is 10:40 in 25 the morning. We are still in the offices of the board, 1105 DISCOVERY REPORTING (775) 329-3500 18 1 Terminal Way, suite 301. The door to the room is open to the 2 hallway. There are two people in the room, myself and the 3 court reporter. Doesn't appear that anyone else is here who 4 would like to speak on these proposed regulations so at this 5 time I will close this workshop. 6 --oOo-- 7 8 9 I, Stephanie Koetting, CCR #207, do hereby certify 10 that the foregoing transcript, consisting of pages 1 through 11 16, is true and correct to the best of my knowledge, skill 12 and ability. 13 DATED: This 8th day of March, 1999. 14 _________________________________ STEPHANIE KOETTING, CCR #207 15 16 17 18 19 20 21 22 23 24 25 DISCOVERY REPORTING (775) 329-3500 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DISCOVERY REPORTING (775) 329-3500