COUNTY OF SAN MATEO

Inter-Departmental Correspondence

County Manager’s Office

DATE:

August 3, 2005

BOARD MEETING DATE:

August 9, 2005

SPECIAL NOTICE/HEARING:

None

VOTE REQUIRED:

Majority

TO:

Honorable Board of Supervisors

FROM:

John Maltbie, County Manager

SUBJECT:

County Manager’s Report #13

A.

Resolution in support of SB 644 (Ortiz), Dispensing prescription drugs and devices

RECOMMENDATION:

Adopt a resolution support of SB 644 (Ortiz), Dispensing prescription drugs and devices

VISION ALIGNMENT:

Commitment: Ensuring the basic health and safety for all

Goal(s): Goal #5—Residents have access to healthcare and preventative care.

BACKGROUND:

As part of licensed health care professional conduct requirements, SB 644 would require certain licensed health care professions to dispense drugs and services pursuant to lawful prescriptions and orders except in specified circumstances including ethical, moral or religious grounds of the licensed health care professional. Such a professional could refuse to dispense a prescription or order only if the professional has previously notified his or her employer of the objectionable drug or class of drugs and the employer can, without creating undue hardship, provide a reasonable accommodation of the professional’s objection. In addition, the employer shall establish protocols that ensure that the patient has timely access to the prescribed drug or device despite the licentiate's refusal to dispense the prescription or order.

While there is no intent in this bill to override the religious beliefs of individuals, the purpose of the bill is to ensure that consumers are not abandoned by pharmacists and pharmacies, and will have timely access to necessary medications even where an individual pharmacist will not dispense the drug requested. According to Senator Ortiz, “This legislation would make sure that all individuals have access to their prescription medication in a timely manner while respecting the rights of pharmacists."

DISCUSSION:

Pharmacists provide an essential service to consumers who rely on their expertise to access medically necessary prescription medications and supplies. There is, however, no legal duty on a pharmacist to dispense medications and other prescription items to an individual with a lawful prescription. Existing law simply authorizes persons with particular training and competency to dispense prescription drugs and makes certain actions by a health care professional unprofessional conduct subject to disciplinary action by the licensing board regulating the health care professional. The law is silent on pharmacists' ability to object on religious, ethical, or moral grounds for any other drug.

There are regulations in place that requires a pharmacist, who declines to furnish emergency contraceptives (EC) based on a "conscience clause,” to refer the patient to another EC provider. However, there have been numerous news stories throughout the United States describing incidents where pharmacists have refused to fill lawful prescriptions, particularly prescriptions for contraception, including emergency contraception (EC) and other types of birth control based on moral grounds or religious beliefs.

Recently, Planned Parenthood Affiliates of California (PPAC) and NARAL Pro Choice California conducted an eleven-day project to ascertain what women's real life experiences are in attempting to fill prescription for emergency contraception (EC). As a result, there were four cases in which women were unable to get their prescriptions filled in pharmacies known to stock EC, and thirteen percent of pharmacies that did not stock EC refused to provide a referral even after the patient requested one. Pharmacists for Life International, an organization with 1,500 members, actively encourage such refusals.

The Commission on the Status of Women reviewed SB 644 and referred it to the Legislative Committee with a recommendation for support. Planned Parenthood Affiliates of California, NARAL Pro-Choice California, the American Association of University Women, and the California Family Health Council jointly sponsor this bill.

SB 644 passed from the Assembly Appropriations Committee (13:5) on July 13 and is currently on the Assembly Floor.

FISCAL IMPACT:

None.

B.

Resolution in support of SB 803 (Ducheny), Ongoing Substance Abuse and Crime Prevention Act of 2005

RECOMMENDATION:

Adopt a resolution support of SB 803 (Ducheny), Ongoing Substance Abuse and Crime Prevention Act of 2005.

VISION ALIGNMENT:

Commitment: Ensure basic health and safety for all.

Goal(s): Goal #7 and 8—Maintain and enhance the public safety of all residents and visitors and help vulnerable people achieve a better quality of life.

BACKGROUND:

In November 2000, California voters approved Proposition 36 (60% to 40%), the Substance Abuse and Crime Prevention Act (SACPA). San Mateo County voters approved Proposition 36, 67% to 33%. Proposition 36 requires the use of probation and drug treatment rather than incarceration, for possession, use, transportation of controlled substances and related parole violations, where completion of drug treatment is a condition of probation. Under SACPA offenders can receive up to a year of drug treatment and six months of aftercare.

The goal of SACPA is to reduce the number of non-violent drug offenders from jail and prison cells and thereby free use of such cells for more serious and violent offenders. Two evaluations by the University of California at Los Angeles (UCLA) have found SACPA arguably to be meeting its objectives of reducing overall costs while addressing the substance abuse problems of nonviolent drug-possession offenders. However, some analyses recommend against direct comparisons between drug courts and SACPA outcomes due to differences in screening and other factors.

While the requirements of the proposition remain, funding for SACPA ends this fiscal year.

SB 803 states the Legislature’s intent to appropriate $120 million annually in support of SACPA. In addition, SB 803 would, among other things, allow the use of SACPA funds for mandatory drug testing, allow the imposition of jail sanctions to enhance treatment compliance, redefine successful completion of drug treatment as completion of the prescribed course of drug treatment, thus eliminating the requirement that the court find reasonable cause that the defendant will not abuse controlled substances in the future, and allows 24-month extensions of treatment services when needed.

Amendment of SACPA by the Legislature requires a 2/3rds vote and that such amendments be consistent with the purposes of SACPA. This bill is currently in the Assembly Public Safety Committee and is expected to advance through the legislative process with rule waivers.

DISCUSSION:

SB 803 is intended to create more accountability on the part of drug offenders and, in turn, improve chances of successful completion of drug treatment programs. Supporters argue that SB 803 better models after Drug Court programs. In contrast, opponents, notably the Drug Policy Alliance Network, a major proponent of the Proposition 36 campaign, argue that SB 803 is a fundamental departure from SACPA. In particular they argue that jail sanctions do not improve outcomes.

A key component of SB 803 is the use of incarceration (or threat of use of incarceration) as a mechanism to enhance treatment compliance. In an opinion reported in the Assembly Health Committee analysis of SB 803, Legislative Counsel opined “legislation authorizing a sentence of incarceration for a defendant who violates a drug-related condition of probation would directly alter the scope and effect of Proposition 36, as described above, and thus would be an amendment of the act. Furthermore, because the legislation would be contrary to the mandate of Proposition 36 not to incarcerate persons eligible for drug treatment under Proposition 36, it is our further opinion that the legislation would not be deemed to both further Proposition 36 and be consistent with its purposes.” This raises questions about the viability of such legislation.

Proposition 36 does not permit the use of funds for drug testing. However, nothing prevents the use of other fund sources. San Mateo County currently takes advantage of this flexibility and all substance abuse treatment providers in San Mateo County utilize random drug testing.

In San Mateo County completion of treatment of those that enroll ranges from approximately 29% to 41% and varies by the level of treatment. In San Mateo County, after a participant is sentenced to Proposition 36, the participant is to enroll into treatment that lasts a minimum of 90 days. The participant is on supervised Probation for a period of 18 months for misdemeanors and a period of 3 years for felonies.

In addition, May 31 amendments to SB 803 clearly remove any ability to recover incarceration costs from SACPA funds.

According to Senator Ducheny’s staff, a compromise is being developed with Senator Migden’s office. SB 803 is expected to be amended to address Senator Midgen’s concerns. The amendments will include new language clearly stating that SACPA funds cannot be used in drug court and that a second parole violation will not trigger a return to jail. These amendments are expected in the second week of August. As of July 12, SB 803 was in the Assembly Public Safety Committee.

The Legislative Committee and with the concurrence of Chief Probation Officer Loren Buddress recommend a support position for SB 803.

FISCAL IMPACT:

Unknown.

C.

Resolution in support of AB 205 (Ruskin), Denture identification

RECOMMENDATION:

Adopt a resolution support of AB 205 (Ruskin), Denture identification

VISION ALIGNMENT:

Commitment: Ensure basic health and safety for all

Goal(s): Goal #7—Maintain and enhance the public safety of all residents and visitors.

BACKGROUND:

Current law requires that certain dentures to be marked with the patient’s name or social security number, unless the patient objects. AB 205 would limit dentures to be marked with the patient’s name (removing the option of using social security numbers) and require dentists to inform patients about the marking and that he or she has the option as to whether the dentures are marked.

DISCUSSION:

In prior years, the practice of using social security numbers for identification was common. However, due to the growth in identity theft and concerns about medical privacy, the public, businesses and public agencies have tried to limit the use of social security numbers as a common means of identification.

The Commission on Aging reviewed AB 205 and referred it to the Legislative Committee with a recommendation for support.

FISCAL IMPACT:

None.

D.

Resolution in support of AB 322 (Oropeza), Athletes' Bill of Rights

RECOMMENDATION:

Adopt a resolution support of AB 322 (Oropeza), Athletes' Bill of Rights

VISION ALIGNMENT:

Commitment: Realize the potential of our diverse population.

Goal(s): Goal #1—Our diverse population works well together to build strong communities, effective government and a prosperous economy.

BACKGROUND:

AB 322 creates the Athletes' Bill of Rights and requires the California Department of Education (CDE) to post the rights created in federal Title IX regulation on its Web site.

Current federal law (Title IX of the Education Amendments of 1972 to the 1964 Civil Rights Act) provides that, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational or athletic opportunities receiving federal assistance.” These provisions, when applied to school athletic opportunities, have had the effect of promoting the opportunities and participation rates of girls and women at both the high school and college levels.

AB 322 also makes findings and declarations that improvement of gender equity in athletics is needed particularly on the high school level due to a lack of training and awareness.

DISCUSSION:

AB 322 follows AB 2240 (Oropeza, 2004), which would have established the Equity in Athletics Bill of Rights and would have enumerate the rights available to a pupil relating to gender equity in athletics. AB 2240 was vetoed by the Governor Schwarzenegger who argued that AB 2240 would have been “generally duplicative and unnecessary. Instead, the Legislature could approve a bill requiring the posting of existing Title IX requirements…to help promote greater student and parental awareness of athletic equity issues in California schools.”

AB 322 does not expressly enumerate rights that must be included in the Athlete’s Bill of Rights. Instead, it requires that CDE post information on its website set forth in the federal regulations implementing Title IX of the Education Amendment of 1972 and simply suggests an assortment of rights derived from Title IX regulations. They include: the right to be provided with an equitable opportunity to participate in all academic extracurricular activities, including athletics; the right to receive equitable treatment and benefits in the provision of equipment and supplies, coaching, and practice and competitive facilities; the right to file a confidential discrimination complaint; and the right to pursue civil remedies.

As of July 13, AB 322 is on the Senate Floor.

The Commission on the Status of Women reviewed AB 322 and referred it to the Legislative Committee with a recommendation for support.

FISCAL IMPACT:

None.

E.

Resolution in support of AB 451 (Yee), Local sales tax: jet fuel: place of sale

RECOMMENDATION:

Adopt a resolution support of AB 451 (Yee), Local sales tax: jet fuel: place of sale.

VISION ALIGNMENT:

Commitment: Responsive, effective and collaborative government

Goal(s): Goal #20—Government decisions are based on careful consideration of future impact, rather than temporary relief or immediate gain.

BACKGROUND:

AB 451 would clarify that allocation of local sales tax on jet fuel with only one place of business in California is to be based on the point of delivery of the fuel into the aircraft. More specifically, AB 451 would establish that the place at which a retail sale of jet fuel is consummated is the point of the delivery of the fuel into the aircraft.

While cities and counties have the authority to impose a tax on retail sales, AB 451 attempts to better define the point (in time and geography) at which a sale is executed to determine what jurisdiction should receive the sales tax. Typically, a retail sale is consummated at the retailer’s permanent place of business and thus the sales tax is allocated to the jurisdiction in which the business is located. This is a simple process for businesses with a single place of business.

Since 1992 local jurisdictions have been able to collect sales taxes from the sale of jet fuel. For a time in San Mateo County, taxes generated by the sale of jet fuel used at San Francisco International Airport (SFO) were allocated to the County in which SFO is located. However, after a request to reallocate the local tax for jet fuel, the State Board of Equalization (BOE) recognized the complexity of using a situs sales allocation method for those businesses with more than one place of business or no permanent place of business. In response, BOE concluded that a sale is consummated and the sales tax is allocated to the jurisdiction in which the sale is negotiated. BOE Regulation 1802 (a)(2) states, "if a retailer has more than one place of business in this state which participate in the sale, the sale occurs at the place of business where the principal negotiations are carried on. If this place is the place where the order is taken, it is immaterial that the order must be forwarded elsewhere for acceptance, approval of credit, shipment, or billing."

In response, AB 66 (Baca, 1998) was enacted to establish that, as it relates to jet fuel, the consummation of a sale for businesses with multiple locations (or no permanent location) is at the location where the jet fuel is delivered. However, AB 66 also created an exception for multijurisdictional airports, which are defined as those airports owned or operated by a city, county or city and county that are not located in the owning/operating jurisdiction. In addition, AB 66 carved out a special exception for the City and County of San Francisco requiring that jet fuel sales tax revenues generated at SFO would be shared equally between San Francisco and San Mateo County.

For business with more than one place of business, AB 66 established the “wingtip” (point of delivery) as the location at which the sale of jet fuel is consummated. However, it did not apply the “wingtip” rule to businesses with only one place of business. For businesses not located at an airport, the sale is consummated (as noted above) at the dealer’s place of business regardless of the fact that the fuel is directed toward an airport in a different jurisdiction.

This exception and a change in BOE regulations changing the applicability of sales taxes to “buying companies” allowed United Airlines, in 2002, to create a separate, single buying company subsidiary to purchase and resell all jet fuel in California. As a business with only one place of business, the allocation of sales tax would (and does) go to the jurisdiction in which the business is located—at the expense of airports throughout California. Presumably, in exchange for locating the business in Oakland, Oakland agreed to rebate 65% of the sales tax that United would have expected to pay otherwise.

AB 451 is intended to close this exception and apply the wingtip rule to jet fuel sales regardless of the number of places of business a business might have.

DISCUSSION:

Since the enactment of AB 66 (and before the creation of United Airlines jet fuel sales subsidiary), San Mateo County has, in conformance with AB 66, shared jet fuel sales tax revenues with San Francisco. In 2003-04, San Mateo County received approximately $2.1 million, of which $1.2 million was from United. For 2004-05, San Mateo County’s estimated receipts will be only $1.1 million.

While AB 451 may be able to undo the United deal with Oakland, it preserves the jet fuel sales tax revenue split codified in AB 66. AB 451’s failure to correct the San Francisco/San Mateo jet fuel sales tax split is in contradiction to arguments in support of AB 451 that focus on the impact airports have on local communities.

San Mateo County’s current Legislative Program directs the County to seek jet fuel related legislation that ensures San Mateo County receives jet fuel sales tax revenues in a manner that is consistent with the 'point of sale' principle. Despite its failure, the County’s effort to sponsor AB 1282 (Mullin) conforms to this position of securing all of the jet fuel sales tax generated from SFO. While AB 451 and its predecessor from last session AB 2466 propose(d) to close the United/Oakland exception, these bills do not meet the objective (of securing all funds for the County) detailed in the Legislative Program. Supervisor Gordon and County staff have met with San Francisco Mayor Gavin Newsom and San Francisco staff. Discussions are ongoing.

As of June 30, 2005, AB 451 passed from the Senate Revenue and Taxation Committee and is scheduled before the Senate Appropriations Committee for August 15.

The Legislative Committee has reviewed AB 451 and recommends support that acknowledges the County’s interest in receiving all jet fuel sales tax revenues generated at San Francisco International Airport.

FISCAL IMPACT:

San Mateo County loses approximately $1.2 million annually from the United/Oakland agreement.

F.

Resolution in support of AB 889 (Ruskin), Weights and measures

RECOMMENDATION:

Adopt a resolution support of

VISION ALIGNMENT:

Commitment: Responsive, effective and collaborative government

Goal(s): Goal #20—Government decisions are based on careful consideration of future impact, rather than temporary relief or immediate gain.

BACKGROUND:

AB 889 would extend the authority of county sealers of weights and measures to levy civil penalties for violations rather than impose criminal actions. The bill would also update the fee schedule, extend counties’ ability to charge registration fees to 2011 and, until 2009, provide counties criteria and methodology to inspect the accuracy of retail point of sale (POS) systems.

Current law allows counties to charge fees to businesses for weights and measure inspection activities ensuring the accuracy of nearly all weighing and measuring devices used commercially including gas meters, water meters, grocery counter scales and others. While current law makes the violation of weights and measure law a misdemeanor, the sealer may impose civil penalties in lieu of criminal prosecution. Much of the current law will sunset on January 1, 2006.

In addition to eliminating or extending sunsets on many of the current law provisions, AB 889 will also update the fee schedule to be consistent with the cost of inspecting devices and splits the fee between a business location fee and per-device fee. This change will recognize the “fixed” costs of going to a site and the “variable” costs for inspecting various numbers of individual devices.

The bill will also establish criteria and methodology for the pricing accuracy of point-of-sale systems. Commonly known as “scanners” in some businesses, the bill details how sealers inspect such devices in businesses.

DISCUSSION:

San Mateo County’s Sealer of Weights and Measures received 60 complaints related to weights and measures and inspected an estimated 2,340 businesses in 2004-05. With the passage of a San Mateo County retail price scanner ordinance, the County has been expanding its inspection of price scanners since 2003.

While the program has been successful, fees no longer cover the cost of operating the program. The state fee schedule for device registration was last amended in 1994. At that time the fees provided full cost recovery for the county inspection program. Because of COLAs and other increased costs throughout the years, the fees now only cover about 40% of program costs. The new fee schedule proposed in AB 889 would allow the County to recover the full cost of our device inspection program.

The Legislative Committee and Gail Raabe, San Mateo County Sealer of Weights and Measures have reviewed AB 889 and recommend support for this legislation.

As of July 6, AB 889 has been read second time, amended, and re-referred to the Senate Committee on Appropriations for a hearing on August 15.

FISCAL IMPACT:

Unknown, but positive.