More licensure changes — This time from the Board of Medicine

By Melissa Davlin, Idaho Reports

Idaho’s physician shortage has been a long-simmering problem in the state, especially in rural areas. But the Board of Medicine is removing licensure barriers for doctors from other states and countries in an attempt to improve that deficit.

Anne Lawler, executive director of the Idaho Board of Medicine, presented rule changes to the House Health and Welfare Committee on Thursday morning, citing then-Lt. Gov. Brad Little’s 2017 Licensing Freedom Act executive order as incentives for removing some requirements for medical license applicants.

Among the numerous changes: Broadening allowances for international medical school graduates, raising the dollar amount of malpractice settlement reporting requirements from $50,000 to $250,000, and eliminating a requirement that applicants report past health conditions.

Previously, applicants who attended international medical schools had to show that those institutions had been graduating students for at least 15 years. Just one other state had that requirement, Lawler said, and it had prevented at least one physician from getting her license in Idaho.

The Board of Medicine also repealed multiple rule sections that Lawler described as redundant, as those issues are addressed elsewhere in Idaho’s administrative rules. Those rule sections addressed telehealth, supervising and directing physicians registration, complaint investigations, and more.

The committee adopted the rule changes on a voice vote, with Rep. John Green, R-Post Falls, praising Lawler and Little for slimming down the regulations.

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No more Gab for Idaho

gab logoIdaho state employees and legislators can no longer Gab on state computers and networks.

The controversial libertarian-leaning website Gab is now blocked by the Idaho state IT department.  

“We do not specifically block this site,”  said Jon Pope, Chief of Operations for IT Services in the Executive Office of the Governor. “However, as part of the automated protections in our firewall, this site falls into a security rating of ‘questionable.'”gab

The “free speech” website entered the zeitgeist in the wake of the Pittsburgh synagogue shootings when it was discovered that minutes before the incident Robert Bowers posted “I’m going in” on the Gab. Bowers then allegedly killed 11 people and injured many more in the anti-semitic attack.

Searches indicate there are Idaho members of Gab, but it’s unclear how many, nor is it clear if the website had been frequented by state employees or individuals on the state system before the site was blocked.

Gab was accessible by state computers through the beginning of 2019 before it was flagged as a possible “threat introduced to our network,” said Pope.

Last November, Gab had 800,000 users, including far-right personalities like Richard Spencer and Alex Jones.

The site calls itself a laissez-faire platform for discussion but has been characterized by multiple scholars as a safe haven for hate speech.

Facebook, Twitter, and Reddit are still accessible through the Idaho state network.

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Proposed workload standards might not save Idaho from the courts

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By Seth Ogilvie, Idaho Reports

New rules addressing public defense in Idaho could have huge implications on the ability of indigent Idahoans to receive a fair trial and the state to fend off a lawsuit from the ACLU.

On Monday, the Senate Judiciary and Rules Committee accepted new public defender workload standards. The change would cap public defender workloads at two active capital cases at a time, as well as 210 non–capital felonies, 520 misdemeanor cases, 232 juvenile cases, 608 civil cases, or 35 non–capital substantive appeal cases a year.  

“There are approximately 16 states with standards,” said Kathleen J. Elliott, Executive Director of the Idaho State Public Defense Commission. “Idaho is a leader and one of only a few states that conducted an actual study.”

The study assumes 2,080 work hours in a year, according to Elliot. The math on 2,080 hours paints an interesting picture. That would mean public defenders would be able to work a full 40 hour week worth of casework, for 52 out of the 52 weeks in a year. They would not have time for vacation or sick time. That number leaves no time for travel or administrative and clerical work they may be responsible for, without exceeding a typical 40 hour work week. They would be able to work full time on cases every week of the year and then do every other job requirement on top of these hours and still meet the expectations of the survey.

In a nutshell, that means public defenders who hit the maximum on these standards would take no vacation and no sick time, or they work far more than 40 hours a week.

“It needs to be an Idaho-based system, so we did the Idaho study,” said Chairman Todd Lakey, R-Nampa. “This may not be the final, end-all answer, but it’s a good start, and it substantially increases the standards, which again means we’ve got to fund it.”

“I’m a bit disturbed when I hear we can’t afford to comply with the constitution,” said Sen. Mark Nye, D-Pocatello, upon learning of possible problems funding the new guidelines.

The Idaho Association of Counties had previously opposed the standards. “Counties have born the brunt of financing this system,” said executive director Seth Grigg. On Monday, though, the association remained neutral “because compliance with the standards is tied to funding from the state.”

The Public Defense Commission standards allow for a higher caseload than the National Advisory Commission on Criminal Justice Standards, or NAC, standards.  These standards were created in the seventies, long before advanced forensics and audio and video recordings became prevalent in trials. These modern pieces of evidence require more extended case hours. NAC standards permit defending attorneys no more than 150 felonies, 400 misdemeanors, or 200 juvenile court cases.

“It’s going to result in ongoing Sixth Amendment rights violation for people who are charged with crimes, and this probably also means more people in prison,” said Kathy Griesmyer of ACLU Idaho. “It’s this assembly line of, you meet your client, and you plead them out because that’s all you have time for.”

The American Bar Association says NAC caseload standards “should in no event be exceeded.” Despite this warning, the Idaho standards allow for ongoing workloads for attorneys in Idaho that go beyond this standard.

That doesn’t worry Lakey. “Their numbers weren’t generated by an empirical study,” he said, referring to the NAC standards. “It was people sitting in a room at a hotel at a conference coming up with, ‘Here’s what I think it should be.’”

According to 2018 caseload reports, over 50 percent of indigent cases in Idaho were handled by attorneys with caseloads exceeding the PDC standard, and attorneys violating the NAC standard handled almost 90% of cases.

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A December motion made by the ACLU in Tucker v. Idaho states it bluntly: “The undisputed factual data makes it plain that, at best, no more than half of indigent defendants in Idaho are being assigned to defending attorneys who are not overextended by caseloads that force them to triage individual cases. The other half of the cases, or more, are being handled by attorneys who are forced to triage and prioritize cases due to excessive caseloads.”

The 2018 reports don’t only reveal a system that surpasses the PDC standards but highlights many individuals who exceed the limits. An attorney in Payette County, who resides in the judiciary committee’s Vice Chair Sen. Abby Lee’s district, reported handling 63 felony cases, 776 misdemeanor cases, 105 juvenile cases, 34 felony probation cases, 32 family law cases, and 71 misdemeanor probation cases.

Based on the PDC proposed caseload standards and 2018 reports, Idaho would need around 28 new attorneys added into the system to meet its PDC requirements. If Idaho were to adopt the “not to be exceeded” NAC standards, they would need to hire around 75 new attorneys.

“The numbers that were proposed were adjusted to diminish the number of attorneys that are needed,” said Griesmeyer. “Despite knowing that, they would still be excessively high caseloads that attorneys would be asked to take on.”

These numbers are likely not even the full picture. Thirty-eight counties allow defense attorneys to have a private practice, adding even more work on top of their indigent defense caseloads. “I mean, the study was what it was and it’s still three times the standards,” said Lakey. “And everybody’s nervous about how we’re gonna pay for it.”

Time is of the utmost importance for the state, both for the people currently in the system and the looming litigation. “We cannot procrastinate on this,” said Elliott. “We need to make ongoing improvements to the system.”

The adoption of these rules sits in the shadow of the ACLU lawsuit against the State of Idaho, meaning the real PDC standards may be set in a courtroom, not in the legislature.

“If the state was not interested in having this lawsuit, they should be significantly considering the recommended suggestions by the ACLU, and we’ll be asking a judge to decide,” said Griesmyer. “It’s not a threat, but just a really encouraged suggestion.”

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Board of Pharmacy changes get bipartisan praise, and interest from private business

By Melissa Davlin, Idaho Reports

Don’t want to go to urgent care for that nagging cough? Now, you might not have to.

Changes in rules governing Idaho pharmacists received bipartisan praise on Monday, as presenters noted how experiences for patients and pharmacists alike have improved since those rules took effect last year.

At a House Health and Welfare meeting, Idaho Board of Pharmacy chairwoman Nicki Chopski presented rule changes that allow, among other things, pharmacists to prescribe certain medications and the removal of a $250 law exam once required for pharmacists to get their license.

These changes, along with ones in previous years, have already made a difference, according to those who testified in front of the committee.

Former board chairman Mark Johnston, who currently represents CVS, said the Board of Pharmacy and legislature’s actions caught CVS’s attention — particularly a modification from last year that allows pharmacy technicians to do data entry work remotely.

As a result, the company is opening up a mail order facility in west Boise. That facility is scheduled to open in late summer, Johnston said, and will eventually employ an estimated 150 people.

The facility won’t have any drugs on-site, Johnston told Idaho Reports. Instead, employees will do data entry and other work for CVS shipping facilities located around the country.

That wouldn’t have been possible before last year, said Alex Adams, former executive director of the Board of Pharmacy.

We used to have a law that required anyone working for a pharmacy had to be physically at the pharmacy,” Adams said. But doing data entry in the busy atmosphere of a pharmacy can be distracting, and allowing technicians to do that work elsewhere has resulted in more accurate reports, Adams told the committee.

Currently, only a handful of states allow technicians to do data entry and paperwork away from pharmacies, Johnston said. That was key in attracting the CVS facility to Boise. Since the rule change went into place, other companies have expressed interest in opening similar branches in Idaho, Adams said.

Another change that allows pharmacists to write prescriptions for certain common maladies — such as minor acne and mild coughs — has proven popular among patients and pharmacists alike, Chopski said.

Adams cited one case in which a pharmacist in McCall was reportedly able to help a woman with an ailment, saving her from driving to Boise for care.

“The first prescription was written within hours of this rule taking effect,” Adams said, and has resulted in zero complaints.

Chopski said the Board of Pharmacy has cut six licensure categories. “This year, you’ll see us continue in that same direction,” she said.

Committee members of both parties praised the Board of Pharmacy for its actions.

“I feel like the Board of Pharmacy is taking the lead in slashing regulations and promoting a free market,” said Rep. Bryan Zollinger, R-Idaho Falls.

Rep. Sue Chew, D-Boise and the legislature’s only pharmacist, agreed.

“It’s so nice to get outside of the lines we’ve been constricted to and do the things we’re more than capable of doing,” Chew said.

 

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Council on Indian Affairs: Dental legislation, government shutdowns, and grim history lessons

By Melissa Davlin, Idaho Reports

In the early morning hours of Jan. 29, 1863, US soldiers massacred more than 400 Shoshone men, women and children in what is now southeast Idaho.

If you didn’t know that piece of Idaho history, you’re not alone, Chairman Darren Parry of the Northwest Band of the Shoshone Nation told the Idaho Council on Indian Affairs on Thursday. The Bear River Massacre is often glossed over in US history.

But Parry hopes to change that with the Boa Ogoi Cultural and Interpretive Center, for which he’s currently fundraising. His goal: $5 million. He currently has $2 million of that, plus another potential $1 million from the Utah Legislature. The Church of Jesus Christ of Latter-Day Saints has also donated $1 million, he said.

Parry isn’t asking for money from the Idaho Legislature, he said, but he did want to share the story of his people with the committee, which is made up of representatives from Idaho’s five tribal nations and representatives from the Idaho Legislature.

Though the Northwest Band of the Shoshone Nation is recognized as a Utah tribe, the people were historically indigenous to what is now southern Idaho and northern Utah.

“When the Mormons discovered Cache Valley in 1855, that was pretty much the death knell for our tribe,” Parry said. After years of simmering tensions and fights between the tribe and Mormon settlers, soldiers from Fort Douglas attacked the village near Bear River.

The Boa Ogoi Cultural and Interpretive Center will be located in Idaho, Parry said, where the tribe purchased 700 acres near Preston last year.

Parry said the interpretive center will be “much more than a visitor center, but a place of learning.”

Also at the meeting, Gov. Brad Little made an unannounced appearance, spending most of his time in front of the committee answering questions from tribal chairmen on the state’s position on Indian Child Welfare Act, natural resources, transportation and education.

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Gov. Brad Little addresses the Idaho Council on Indian Affairs on Thursday. Melissa Davlin/Idaho Reports

While Little offered few specifics, he said he hoped to continue working with tribal leaders on these issues, pointing out common concerns regarding clean water, foster care, schools and road safety.  

Nez Perce Chairman Shannon Wheeler took the opportunity to remind Little of the Nez Perce Treaty of 1855, which guaranteed the tribe access to renewable resources. “We (want to) protect those things and a way of life that we’ve had for thousands of years, and we would like definitely the state perspective on that,” Wheeler said.

The committee heard a presentation on proposed legislation on dental health aide therapists, which would allow a new category of dental practitioners to practice on reservations. The idea, said Tyrel Stevenson, legislative director for the Coeur d’Alene Tribe, is to provide culturally respectful care in underserved communities on reservations.

“The whole idea is to provide better care,” Stevenson said. “Not lesser care. Better care.”

A few members of the committee also brought up the federal government shutdown, which has furloughed employees of the Bureau of Indian Affairs. After the meeting, Fort Hall Business Council Vice-Chairman Ladd Edmo of the Shoshone Bannock Tribe told Idaho Reports that the shutdown is affecting not just BIA employees, but basic transactions like land purchases, for which tribal members rely on the BIA.

Wheeler also addressed the federal government shutdown. “We’re having some tough times with the shutdown,” he told the committee. “We’re looking forward to the government getting going and start working at the behest of all of us.”

 

Watch Idaho Reports in coming weeks for more information on the dental health aide therapy proposal.

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New filing in Medicaid lawsuit doubles down on constitutionality question

By Melissa Davlin, Idaho Reports

There is a new filing from Bryan Smith in the lawsuit on the constitutionality of Proposition 2. Read the reply brief to the state’s response here.

Smith, who represents plaintiff Brent Regan, says as written, the new statute that expands Medicaid gives authority to the federal government to change Idaho Code without the legislature’s input.

The gist of the argument: If the federal government changes the parameters of Medicaid, Idaho law could automatically — and, Smith argues, unconstitutionally — change without input from the legislature.

“The issue is not whether states may voluntarily choose to comply or not comply with
changes made by the federal government in Medicaid law,” Smith writes. “The issue is whether Idaho gets to voluntarily choose before or after the federal law already has become Idaho law.”

The Idaho Attorney General’s Office has called Regan’s lawsuit frivolous and without merit, saying it’s based purely on hypotheticals. The Idaho Supreme Court will hear oral arguments on Jan. 29th.

In the new filing, Smith doubles down on the argument that Medicaid expansion opens the door to allowing the federal government to change Idaho law, which he says is unconstitutional.

“(The state) does not dispute Petitioner’s claims that the federal government does
possess unilateral power to change federal law that will flow into the provisions of Section 56-267… Specifically, (the state) admits that the hypotheticals ‘may or may not happen’ and ‘may never come to pass.'” Smith writes. “The fact that they can happen and could come to pass establishes the federal government has unilateral power to change federal law that affects Idaho and Section 56-267 in particular.”

There are a handful of potential ways Congress could tweak laws surrounding Medicaid, such as the cost-sharing mechanisms between the federal government and the states, as well as eligibility.

But Medicaid expansion isn’t the only law on Idaho’s books that could be affected by potential federal government changes. Tax, commerce, foster care, and child support issues are just some of the laws on Idaho’s books that interface with federal code.

Smith didn’t return a request for comment on Wednesday, but in his filing, he focused solely on Medicaid expansion, not other areas of Idaho Code.

“Requiring the legislature to revisit Section 56-267 (Medicaid expansion) and adopt changes, if necessary, preserves Idaho lawmaking power,” Smith continues. “Moreover, it requires the legislature to exercise its lawmaking power proactively and deliberately, rather than reactively, and prevents turning our lawmakers into “zombie legislators” whose failure to act results in new Idaho law.”

On Wednesday, Rep. Bryan Zollinger told Idaho Reports said the potential exists for a ruling in Regan’s favor to open up “Pandora’s box” for other laws that require federal conformity.

Still, “it’s an easy fix,” said Zollinger, who practices law with Smith in Idaho Falls. The Legislature would merely have to adopt changes every year.

In the filing, Smith also addresses the timing of the lawsuit, saying Regan couldn’t have sued before the initiative was signed into law because of a previous ruling, Noh v. Cenarrusa, that says the court can’t rule on the constitutionality of propositions until after voters pass them.  Smith also says Regan has standing to sue as a “qualified elector” — which means anyone who is legally qualified to vote.

The Idaho statute on initiatives specifically allows for this, saying “Any qualified elector of the state of Idaho may, at any time after the attorney general has issued a certificate of review, bring an action in the supreme court to determine the constitutionality of any initiative.” 

“Waiting until the voters passed the initiative allowed the lawmaking process to proceed without unconstitutional judicial interference, while at the same time honoring the legislature’s intent to allow (a) qualified elector to challenge the constitutionality of the initiative, but only after its passage,” Smith wrote.

 

 

 

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This week: New leaders, same challenges

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Sen. Todd Lakey and Rep. Tom Dayley, chairmen of the judiciary committees in the Senate and House, join Melissa Davlin on the December 14th episode of Idaho Reports. Photo by Troy Shreve.

 

Idaho’s judiciary has faced challenges for years — overburdened public defenders, lawsuits over public defense, overcrowding in prisons and county jails, the opioid crisis, and a recidivism rate that the state is struggling to reduce, to name a few.

In 2019, new leaders will face those challenges. The Idaho Legislature has two new judiciary committee chairmen: Rep. Tom Dayley in the House, and Sen. Todd Lakey in the Senate. Josh Tewalt is replacing Henry Atencio as Idaho Department of Correction director, and, of course, Governor-elect Brad Little takes office in January.

So is this a time to be innovative and assertive with new policies to reduce incarceration trends, or a time to be cautious while these new leaders figure out their roles? This week, I sat down with Lakey and Dayley, as well as Kathy Grismyer of ACLU-Idaho and Cindy Wilson of the IDOC Board of Correction to discuss those challenges.

Tune in to Idaho Reports at 8 pm Friday on Idaho Public Television, or watch online at idahoptv.org/idreports after it airs.

Also, I’ve put together a newsletter with Idaho political and legislative news, with links to reporting from across the state. New issues come out at noon — most days, anyway. Subscribe here: nzzl.us/i92ej36

 

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