IDHW recommends eliminating 12 of 83 rule chapters

By Melissa Davlin, Idaho Reports

The Idaho Department of Health and Welfare has identified 12 administrative rules chapters that it says are no longer needed — and is bracing itself for a potential huge workload in upcoming months.

During the Thursday IDHW board of directors meeting, Tamara Prisock, Division Administrator for Licensing and Certification, said IDHW currently has 83 chapters of rules. After the 2019 Legislature didn’t reauthorize administrative rules at the end of the session, Gov. Brad Little instructed each department to review its existing rules and make recommendations as to which the state should keep. (Read about that fight here.)

Over the last month, IDHW reviewed each of the existing 83 chapters, and found 12 that were either redundant, as they were addressed elsewhere in statute or other rules, or no longer needed, as they were written for programs that no longer exist. Click here for a list of those chapters, as well as the justifications for eliminating them.

The process doesn’t allow for going through the rules with a fine-tooth comb and eliminating individual lines. Instead, departments had to consider entire chapters.

“In the reauthorization, it had to be all or nothing,” Prisock said.

But that isn’t the end of the work, Prisock said. At the beginning of June, each agency will publish two notices: One that lists all fee rule chapters, and one that lists all non-fee rule chapters, that the state wants to reauthorize. Though many of those rule chapters have been in place for decades, they will all be listed as temporary proposed rules.

As temporary proposed rules, each will be subject to a 3-week public comment period. During that comment period, if 25 or more people request a public hearing on an individual chapter, the department is required to have one, Prisock said.

“There could be a significant amount of work that comes out of publishing those two notices in June,” she said.

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The Commission of Pardons and Parole needs clemency

By Seth Ogilvie, Idaho Reports

The Idaho Commission of Pardons and Parole has been consistently breaking the rules for decades. “That’s the way it has been done for as long as the staff can remember,” said Ashley Dowell, the commission’s executive director.

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Executive Director Ashley Dowell

The rules in question are not complicated. “The decision and supporting documents regarding a commutation will be filed with the Secretary of State,” reads the Idaho statute on clemency hearings. It’s equally straightforward on pardons. “The decision and supporting documents regarding the decision to grant or deny a pardon will be filed with the Secretary of State.”

The Secretary of State’s office is the body tasked with making the decisions and documents available to the public. “As a public agency, transparency is paramount,” said Parole Commissioner Lisa Growette Bostaph in an email to Idaho Reports. “Those processes provide necessary transparency about our decision-making as commissioners.”

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Commissioner Lisa Growette Bostaph

The commission has only been turning over documents related to pardons and commutations they approved, and not always promptly. In response to an inquiry last week, Dowell told Idaho Reports, “We determined that there had been a historical agreement between the Commission of Pardons and Parole staff and the Secretary of State’s staff.”

The agreement was to not turnover documentation for pardons and commutation hearings when they decided to deny a pardon or clemency.

Lisa Mason, the person currently responsible for these documents in the office of the Secretary of State, was unaware of this agreement when talking to Idaho Reports earlier this month.

Former Secretary of State Ben Ysursa told Idaho Reports “I can’t remember any such agreement.”

“We never entered into an agreement,” said Miren Artiach, the former deputy secretary of state responsible for these documents. “We never would have entered into an agreement contrary to the rules.”

Dowell says the commission has maintained records that have not been turned over to the Secretary of State at the commission office. “Generally, those records are retained for ten years, but it varies,” said Dowell.

The commission’s problem with handing over materials, however, dates back far longer.

“I worked with them for 40 years,” said Artiach. “There was always a problem with getting those documents.”

That means 30 years of Idaho pardon and commutation decisions and records may be gone.

Dowell is new to her director position. “Executive Director Sandy Jones began the process of making the commission actually transparent: bringing the backlog of minutes up to date, instituting audio recording of all hearings, shepherding in the use of decision guidelines by commissioners, explicitly and consistently stating reasons for grants and/or denials in decisions, and expanding contact with victims,” said Bostaph. “Executive Director Dowell has begun to further those initiatives in her short time, thus far, by ensuring compliance with the open meeting law.”

Many of these practices in question came from Olivia Craven, a previous director. Both Ysursa and Artiach expressed frustration with their interactions with Craven regarding pardons and commutations.

“Even when we did receive the correct documents there was usually a significant lag time,” said Artiach. “On one occasion the commission was several years behind schedule before eventually dumping three years of documents in our office.”

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Former Secretary of State Ben Ysursa

The Secretary of State contacted the governor about the difficulty they were having acquiring these records. “We had a come to Jesus moment with Olivia Craven about record keeping,” said Ysursa. “We thought it was unconscionable not to have the gold certificate for someone who went through this process.”

On at least one occasion, the Secretary of State received documents only signed by Director Carven rather than the commissioners, according to Artiach.

The Secretary of State has no authority to compel the commission staff to turn over the documents; neither do the actual Pardon and Parole commissioners. The governor appoints the Director. Commissioners and the Secretary of State have no input on the Director position or their staff unless the governor inquires.

When people were unable to find documents or discovered the problem existed, “they often used our office as an excuse when we had never received the documents, to begin with,” said Artiach.

Dowell is not passing the blame to the Secretary of State. “Upon reviewing that practice, the commission will be working with the Secretary of State to provide all documents related to pardons, commutations, and restoration of firearms to the Secretary of State,” said Dowell.

“We do not oversee processing and business operations or the Executive Director,” said Bostaph. “If the commission office is not in compliance with an administrative rule, they need to change that.”

“We will be in compliance moving forward,” said Dowell. “I can’t comment on whether we were in compliance before.”

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Birth certificate gender change fight not yet over

By Melissa Davlin, Idaho Reports 

The fight over changing gender markers on birth certificates isn’t yet over.

The Idaho Department of Health and Welfare Board of Directors voted to require sign-off from a medical or mental health professional for minors who want to change the gender markers on their birth certificates.

An earlier proposal would have required all applicants, regardless of age, to get medical approval before changing their birth certificates. That original draft came from the legislature, though it wasn’t clear at the meeting which lawmakers, or how many, supported the idea. 

After discussion, deputy attorney general Nicole McKay drafted language to make the proposal specific to minors.

Last year, IDHW changed its rules to allow applicants to change the gender marker on their Idaho-issued birth certificates. The change was the result of a 2017 lawsuit from two plaintiffs who were not allowed to change their birth certificate. Read the complaint here.

Sen. Fred Martin, a member of the board and chairman of the Senate Health and Welfare Committee, told the board that the discussion over changing birth certificates has been “contentious” among his fellow lawmakers.

“Individually, I’m most concerned about minors. So I would hope that what the board does and comes forward would most affect those that need the most protection. To me that would be a minor,” Martin said. “Are we going to have consensus? No. But I would encourage something to put a step between the individual and that change, especially as it relates to minors.”

James Aydelotte, state registrar at the Bureau of Vital Statistics, said of the 101 applications for gender change since April 6, 2018, 15 of those have been for minors younger than 18 years old.

Peter C. Renn, Kara Ingelhart, and Monica Cockerille, the attorneys who represented the original plaintiff in the 2017 lawsuit, wrote to the board to object to the original proposal.

“The proposed revisions are not consistent with the Court’s March 5, 2018 order,” the attorneys wrote. “The Court recognized the ‘potential implications of restrictions and restraints IDHW may place on the ability of transgender people to apply for and receive approval of applications to change the sex listed on their birth certificates.’”

“It then cautioned against any rule that would ‘subject one class of people to any more onerous burdens than the burdens placed on others without constitutionally-appropriate justification — for instance, to apply for a change in paternity information the applicant is not required to submit medical evidence, such as DNA confirmation, to prove paternity or non-paternity,'” the letter continued. “Despite the Court specifically citing the example of ‘medical evidence’ as an unjustified burden, the proposed revision would now expressly require such ‘medical evidence.’”

The board debate focused on whether a birth certificate change is a medical decision or a family decision, and how much the government should be involved in it. Some debate also centered on potential litigation, which the board discussed in executive session. 

Board member Timothy Rarick, who made the motion to approve the amended rule change, said minors often question gender roles and identity as a normal part of development, but most often settle on an identity that conforms with their biological sex.

But some were skeptical that the change was needed.

I and the ACLU would be very interested in understanding what that rationale is,” Kathy Griesmyer, policy director for ACLU-Idaho, told Idaho Reports at the meeting. “At this point, the system seems to be working, so why put people through an additional burden?”

Emilie Jackson-Edney, who also attended the meeting, said she isn’t entirely opposed to the idea of requiring a medical sign-off. Jackson-Edney pointed to federal documents, such as passports, which currently require an affidavit for gender changes.

That said, transgender patients seeking health care in rural Idaho could run into issues, both with general access and with finding providers who understand trans-specific issues, Edney-Jackson said. This proposal, she added, could put an additional burden on an already marginalized community.

It could be really difficult for them to access that kind of health care,” she said. 

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About that transmittal letter…

By Melissa Davlin, Idaho Reports

When Gov. Brad Little posted the transmittal letter for the Medicaid work requirements legislation, several reporters (this one included) noticed that the letter itself read like a veto. It outlined multiple issues Little had with the bill, and instructed lawmakers to continue working on the issues.

Idaho Reports did a public records request for all drafts of the transmittal letter, as well as communications regarding the letter.

Those drafts show that Little’s staff wrote the letter the day before he signed it without the key line “with my approval,” and didn’t insert that line until the morning of. Instead, an ellipsis acted as a placeholder in that sentence while Little’s staff members worked out the rest of the letter.

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An April 8th draft of the Senate Bill 1204 aa, aaH transmittal letter.

 

That key phrase “with my approval” wasn’t added until April 9, the morning Little released his letter. In an 9:36 am e-mail, two hours before the letter was posted,  chief of staff Zach Hauge asked communications director Emily Callihan to “add language that the Governor has signed.”

Idaho governors have three options on how to handle a bill: Sign it, veto it, or let it become law without their signature. (The latter is often used to show disapproval.)

In an interview with Gov. Brad Little that aired on April 26th, Idaho Reports asked if these drafts were an indication that he hadn’t yet decided how he would handle the legislation. He said no.

“The transmittal letter means by its very nature that I’m signing the bill,” he said. “You look at every transmittal letter I wrote, I only sent a transmittal letter if I had an issue with that bill.”

Little acknowledged in both the letter and in the Idaho Reports interview the multiple issues he saw with the bill. You can read the final letter here. 

In the Idaho Reports interview, Little said he does not believe the federal government will approve all the waivers, particularly the work requirement and the copay provisions.

“Frankly, CMS and the US Department of Health and Human Services, they’re having a change of heart on some of those issues, so it’s hard to tell,” Little said.  

For the full interview, watch the April 26th episode of Idaho Reports at idahoptv.org/idreports.

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Analysis: Legislature cedes rulemaking approval to Little

By Melissa Davlin

Over the last several years, the Idaho Legislature has paid closer attention to the administrative rulemaking process — a critical bureaucratic function of the government in which departments and divisions create rules that specify how certain statutes are carried out.

But in an attempt to center more power with the Legislature, the House and Senate just surrendered significant authority to Gov. Brad Little.

At the end of the 2019 session, the legislature failed to reauthorize the state’s existing rules, as they normally do every year. The reason: A fight between the House and Senate over how those rules should be approved. Currently, just one body’s vote ensures a rule is approved. The House wanted both bodies to sign off to save a rule from rejection, giving the legislature more control over the process.

Without any action from Little and his staff, all 8,000-plus pages of those administrative rules would expire at the end of the fiscal year on July 1.

Instead of calling a special session to make lawmakers finish their homework, however, Little is using his executive authority to re-up those rules. And in the process, “Governor Little ultimately will make the decision before July 1 whether to let a rule expire,” according to a Tuesday press release from his office. 

Administrative rules have the full force of law, and cover a wide range of topics — which immunizations school children need, what types of medications pharmacists are allowed to dispense, what an electrician needs to do to get a license. Common core curriculum is in administrative rules, as are the hotly debated climate change standards.

While Little has said he didn’t want this to happen, and that he doesn’t plan any major changes, he still has ultimate authority over which rules will carry over into the next fiscal year.

Agencies will also get the chance to weigh in.

“Governor Little’s administration will use the unique opportunity to allow some chapters of Idaho Administrative Code that are clearly outdated and irrelevant to expire on July 1, 2019,” the press release states. “An agency must notify the Division of Financial Management (DFM) if it identifies a rule that could be eliminated. DFM will solicit public comment on any proposed rule elimination.”

In a fight over an obscure bureaucratic process, this could either set a wild precedent for future years, or teach the legislature to finish its chores before leaving to play.

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Renewing urban renewal

By Seth Ogilvie, Idaho Reports

The Idaho tax commission recognizes 86 urban renewal districts in Idaho. House bill 217 will significantly change how they operate.

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The bill has been characterized by many as an attack on the Boise library and stadium projects, but the other 86 districts will have to follow the same rules.

The significant change coming to urban renewal in Idaho is how much money is required to force a vote. A vote, after Governor Brad Little signed the bill, would now be necessary if 51% of the money used on a project was urban renewal money or “any other public funds, not including federal funds or federal funds administered by a public body.” The project would also have to exceed one million dollars.

The election would work much like a school bond election, but unlike a school bond election that requires 2/3rds of the voters to pass, these elections would require only 60% of people to approve the project.

Proponents of the bill argue this will create more civic engagement and accountability within the system. They say people who live within the urban renewal district would have greater control over how their tax dollars are spent.

Senator Maryanne Jordan thinks the bill will have unintended consequences because the law does not distinguish between urban renewal money and other public funds.

Sen. Jordan laid out this example; “a city saves $2,000,000 to remodel their City Hall. The urban renewal district contributes $30,000 to a public plaza outside the building. A plaza is not an exception under the statute, so the whole project is forced to a vote.”

The project would then have to be delayed until the next scheduled election, or a special election would have to be called. “The special election will cost more than the urban renewal contribution,” said Sen. Jordan, “for what amounts to 1.5% of the project.”

The election could also have an unintended impact on contractor availability and costs. Developing construction bids for city projects that are still uncertain may be unappealing to contractors, driving up prices or leaving cities without options for building their projects.

Over the next few months, local government officials across the state will likely meet with lawyers and experts to find out if any of these unintended consequences will come to their town.

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Voter initiatives and administrative rules bill DOA in Senate, Winder says

By Melissa Davlin, Idaho Reports

While the House was at ease to add in amendments to Senate Bill 1205 — changing the Senate legislation into a previously rejected House version that would force both bodies to approve administrative rules — Senate Majority Leader Chuck Winder told reporters in no uncertain terms that the amended bill was dead on arrival.

Why? First of all, the Senate had already rejected the House’s proposal about two months ago, Winder said. He also cited previous administrative rules fights, such as one over whether climate change should go into Idaho’s public school curriculum.

“In that case, I think common sense prevailed,” Winder said. He doesn’t want to give the House more authority over the rules.

Also dead on arrival? House Bill 303, which resurrects part of the previously vetoed voter initiative bill. Winder said he supports the idea of the legislation, which would require initiatives to have a fiscal note and funding source, as well as focus on a single topic. But, he said, it’s too late in the session to consider it. Expect it to come back next year.

Does the House have any recourse? They just passed their last appropriations bill — the budget for the State Board of Education — but they will have to approve the trailer bills for the Medicaid work requirements appropriations passed out of the joint budget committee on Tuesday.

In other words, this isn’t over yet. (But all signs point to sine die. And we all hope that’s the case.)

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