IDHW holding public hearings on rules

By Melissa Davlin, Idaho Reports

The Department of Health and Welfare is holding six public hearings throughout the state on its administrative rules. 

Because all of the rules were reauthorized this year, the public is invited to comment on any of the department’s existing rules, said Tamara Prisock, administrator of licensing and certification, at the department’s board of directors meeting on Thursday. So far, the department has received petitions on rules regarding immunizations at both public schools and licensed daycares, Child Protective Services, testing for newborns, and consent for medical services. 

There’s a caveat, though: As the state is so far along in the rulemaking process, it’s going to be difficult to make any changes before the final publication of rules in November, depending on the nature of the rule, Prisock said. 

As for the department’s new rule dockets, each of those have their own hearings, or have already had hearings, Prisock said. Those new rules concern emergency medical services, clinical laboratories, gender marker changes on birth certificates, immunization requirements, and more. You can find those new rules here. 

Of the department’s 83 original rule chapters, 71 were reauthorized. The department has identified another 12 with outdated or repetitive language that it plans to amend. Those amendments won’t include substantive policy changes, Prisock said. 

The department also plans to reduce the number of so-called restrictive words — words like “must,” “shall” and “prohibited” — by July 1, 2021. The department has identified 11,158 restrictive words in its 71 chapters, and plans to reduce that by 20 percent, to just under 9,000.

Here are the dates and locations of the rule hearings:

Aug. 22: 1 to 4 pm MDT, 3232 Elder Street, Conference Rooms D East and D West, Boise

Aug. 23: 1 to 4 pm MDT, 150 Shoup Ave, 2nd Floor Conference Room, Idaho Falls

Aug. 26: 9 am to noon PDT, 1120 Iron Wood Drive, Lower Level Conference Room, Coeur d’Alene

Aug. 27: 10 am to noon PDT, 1118 F Street, 3rd Floor Conference Room, Lewiston

Aug. 27: 3 to 4:30 pm, 108 Grangeville Truck Route, Grangeville

Aug. 28: 1 to 4 pm, 601 Pole Line Road, Main Conference Room, Twin Falls

 

Gender markers on birth certificates

One of the pending rules has drawn robust discussion from the public and the board: Applications for gender marker changes on birth certificates.

In May, the board voted to require a medical attestation for minors applying for gender marker changes. (Read more about that, as well as the legal fight over the birth certificate changes, here.) That rule went into effect on July 1st; Since then, one minor has applied for a gender marker change.

Elke Shaw-Tulloch, administrator of public health, gave the board an update on how many people have applied to change their birth certificates since the state changed its policy in April 2018. In total, the state has seen 116 applications, with applicants’ ages ranging from 7 to 78 years old. In that time, 15 applications have come from minors.

Sen. Fred Martin, R-Boise and chairman of the Senate Health and Welfare Committee, noted that some of his colleagues in the legislature originally wanted medical sign-offs for gender marker change applications for both adults and minors. Though he felt good about the board’s May decision, he said he didn’t know how the legislature would handle the rule change in the upcoming 2020 session.

 

Confused on the rules process? Here’s a chart prepared by IDHW.

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Courtesy Idaho Department of Health and Welfare.

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Friends in high places: About those Garth Brooks constituent letters…

By Melissa Davlin, Idaho Reports

Two months ago, Gov. Brad Little made headlines for appealing to country music star Garth Brooks to add another Boise concert to his tour.

In a May 22 video, Little tells Brooks that a few constituents had asked him to request the additional show after the first concert quickly sold out.

“If it happens, it will be because of this phone calls,” Brooks told Little.

All in good fun, sure. But it got me wondering: Outside of the chaos of the legislative session, what do people contact the governor’s office about? And how many people really contacted Little about another Garth Brooks concert?

Idaho Reports submitted a public records request for all constituent comments submitted to Little’s office during the week-long period between when the first Garth Brooks concert sold out and the release of the video.

In that time period, Little received 114 constituent e-mails and three voicemails. This number does not include social media comments to Little’s accounts. 

Of those, three were about the Garth Brooks concert. Two asked for more shows, and one asked for an investigation of ticket resellers.

The rest dealt with a range of issues. A plurality of messages, 23, were related to the environment, including salmon, flood control, nuclear issues and a proposed smelter in Washington near the Idaho border. 

Sixteen concerned judicial issues, including sentencing reform, probation and parole, the conditions of county jails, and the death penalty. Fourteen people wrote to Little about abortion, with the majority asking for legislation restricting abortion access. 

Only six discussed education-related topics. 

Most of the rest dealt with a grab bag of subjects, including licensing, regulations, invitations to events, texting while walking, and a couple pieces of hate mail. 

 

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Idaho Supreme Court decision on warrantless arrests may affect domestic violence complaints

By Melissa Davlin, Idaho Reports

The Idaho Supreme Court has ruled that officers cannot arrest suspects for misdemeanor offenses without warrants if they have not observed the alleged crime, a decision which justices acknowledged will impact officers’ ability to respond to domestic violence calls.

In the unanimous opinion for State v Clarke, authored by now-retired Justice Joel Horton, the court overturned a conviction for Peter O’Donald Clarke for possession of methamphetamine, marijuana, and paraphanelia, all of which were found during a search of Clarke as he was being arrested for misdemeanor battery.

Clarke had been accused of harassing and groping a woman on a Coeur d’Alene beach, touching her without her consent and following her and her son when they tried to leave. Clarke argued that because the responding officer had not witnessed the alleged harassment, the arrest violated both the Idaho and United States constitutions.

The justices agreed, citing Article 1, Section 17 of the Idaho Constitution, which prohibits warrantless arrests.

That has big implications for officers’ ability to respond to misdemeanor domestic violence situations, said Dr. Lisa Growette Bostaph of Boise State University’s Criminal Justice department.

The justices acknowledged the impact of the opinion, noting that Idaho Code allows officers to intervene in domestic violence situations, even if they have not witnessed the alleged incident.

“We are fully mindful of the significance of this conclusion,’ Horton wrote, noting that “domestic violence is a serious crime that causes substantial damage to victims and children, as well as to the community.”

“Nevertheless, the extremely powerful policy considerations which support upholding Idaho Code section 19-603(6) must yield to the requirements of the Idaho Constitution,” the opinion says.

In other words, it doesn’t matter how well-intentioned the statute is if it violates the constitution, and a change to the constitution is likely the only potential remedy.

In the meantime, this ruling will make it significantly harder for officers to respond to alleged domestic violence.

“Unless officers, when they respond, believe a felony has been committed, or unless they witness the actual domestic violence themselves, they will not be able to arrest on-site. They will have to get a warrant and come back,” Bostaph said. “They will not have the legal means when they respond to remove the offending party from their home. They can ask them to leave, but they cannot force them to leave.”

The same will apply to reports of misdemeanor protection order violations and other crimes. If the alleged crime isn’t happening while the officer responds, and the officer doesn’t witness it, they will have to obtain a warrant if they don’t believe a felony has occurred. 

Bostaph said she didn’t want to speculate on how this will affect domestic violence victims and families.

“It’s going to be an unfortunate experiment,” she said. “But to say that I’m nervous, to say that I’m anxious, is not an overstatement.”

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New details in Parker arrest: Coconut oil, conflicting explanations, and a mystery woman

By Devon Downey, Idaho Reports

Screen Shot 2019-05-31 at 9.11.36 AM

When former Idaho Republican Party chairman Jonathan Parker was arrested for first-degree stalking late last month, the responding officers found him in the bushes wearing a long black wig and with coconut oil on his hands, prosecutors alleged during the probable cause hearing.

The individuals who notified police reported that there was a man in a wig seemingly masturbating in their bushes, and that they had seen him peering into their windows while hiding in their dumpster enclosure.

As previously reported, Parker told officers that he was there to “scare” another woman who lived in the complex. Prosecutors said that the responding officers were told that she was an individual whom Parker was dating.

When asked by officers where she was staying and where she was, he could not tell them. Officers were unable to make contact with her, and in the probable cause hearing, it was unclear who the woman was, or if officers knew her identity.

David Leroy, former Idaho Attorney General and attorney for Parker, had claimed during the arraignment hearing that Parker was outside of the protection order area.

However, prosecutors alleged during the probable cause hearing that Parker’s estranged wife lives 100 feet away from where he was found, violating the then 100-yard protection order his wife had. During Parker’s arraignment hearing, Judge Annie McDevitt extended the protection order to 500 feet.

Prosecutors made no reference to a costume party during the hearing, as Leroy claimed during the arraignment.

According to court records, Parker was released on bail. His next hearing will be held on Friday, June 14th.

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Idaho Supreme Court upholds state police whistleblower case, opens door to higher damages

By Melissa Davlin, Idaho Reports

The Idaho Supreme Court on Friday ruled firmly in favor of an Idaho State Police whistleblower, former crash reconstructionist Brandon Eller. In a unanimous decision, the court rebuffed claims that Eller’s case did not qualify under the state Whistleblower Act and reversed a previous decision to cap his damages. Read the ruling here.

Eller sued ISP in 2015 under the Whistleblower Act. He claimed his employer retaliated against him after he testified against a Payette County Sheriff’s deputy who was involved in a fatal crash while responding to a 911 call in 2011. That deputy was later charged for a time with felony vehicular manslaughter. Eller also objected to an ISP policy that directed officers to destroy all but the final drafts of crash reconstruction reports, raising concerns that it violated the law.

In his lawsuit, Eller claimed a commanding officer accused him of lying in the stand. He received a downgrade in his performance review, and ISP later reassigned him. Eller resigned in 2014.

A lower court ruled in Eller’s favor, with a jury awarding him $1.5 million in damages. ISP challenged that award and the district court reduced it to $1 million, citing the Idaho Tort Claims Act, which limits damages.

Both ISP and Eller then appealed the case to the Supreme Court. Along with disagreement over the damage cap, ISP argued Eller’s actions were “routine job performance” that when paired with his “speculative and unproven” concerns, didn’t qualify for whistleblower protection, Friday’s ruling states.

The ruling, written by Justice Richard Bevan, concludes both Eller’s involvement in the crash case and his later concerns clearly qualify him for the protections of the Whistleblower Act.

And in a decision with clear implications for other state whistleblower cases, Bevan said Eller’s damages should be governed by the Whistleblower Act, not the Tort Claims Act. The provisions of the former are more specific to this case, he wrote: “Idaho law provides: ‘Where a statute is clear and unambiguous, the expressed intent of the legislature shall be given effect without engaging in statutory construction.’ In addition, where two statutes conflict, courts should apply the more recent and more specifically applicable statute.

“… Rather than protect individuals as victims of general governmental torts and damages—as under the ITCA — the Whistleblower Act provides an unambiguous ‘legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of a law, rule or regulation,’” the opinion says.

One key difference between the two statutes: The Whistleblower Act doesn’t limit damages, while ITCA limits damages to $500,000 for each claim. Eller had two claims against ISP. The Supreme Court ordered the lower court to revisit Eller’s damages under the Whistleblower Act, without the $500,000-times-two limit.

In other words, this case could get a lot more expensive for ISP.

Nate Poppino contributed to this report.

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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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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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