Legislature(2021 - 2022)DAVIS 106
02/19/2022 03:00 PM House HEALTH & SOCIAL SERVICES
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| Audio | Topic |
|---|---|
| Start | |
| Eo 121: Department of Health and Social Services Reorganization | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE HEALTH AND SOCIAL SERVICES STANDING COMMITTEE
February 19, 2022
3:06 p.m.
MEMBERS PRESENT
Representative Liz Snyder, Co-Chair
Representative Tiffany Zulkosky, Co-Chair (via teleconference)
Representative Ivy Spohnholz
Representative Ken McCarty (via teleconference)
Representative Mike Prax
MEMBERS ABSENT
Representative Zack Fields
Representative Christopher Kurka
COMMITTEE CALENDAR
EO 121: DEPARTMENT OF HEALTH AND SOCIAL SERVICES REORGANIZATION
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
ADAM CRUM, Commissioner
Department of Health and Social Services
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during the hearing on EO 121.
ANDREW DUNMIRE, Legislative Counsel
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Provided information and responded to
questions during the hearing on EO 121.
STACIE KRALY, Director
Civil Division (Juneau)
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on EO
121.
ACTION NARRATIVE
3:06:04 PM
CO-CHAIR LIZ SNYDER called the House Health and Social Services
Standing Committee meeting to order at 3:06 p.m.
Representatives Prax, Spohnholz, McCarty (via Teams), Zulkosky
(via Teams), and Snyder were present at the call to order.
^EO 121: Department of Health and Social Services Reorganization
EO 121: Department of Health and Social Services Reorganization
3:07:11 PM
CO-CHAIR SNYDER announced that the only order of business would
be Executive Order 121: Department of Health and Social Services
Reorganization.
CO-CHAIR SNYDER reviewed that EO 121 would bifurcate the
Department of Health and Social Services (DHSS) to the
Department of Health (DOH) and the Department of Family and
Community Services (DFCS). A previous version had been
introduced last session [as EO 119], but it was withdrawn. The
committee heard an overview of EO 121 on 2/8/22. Referring to
the memorandum ("memo") from Legislative Legal Services and to
the response documents received from the Department of Law (DOL)
and DHSS, she stated that a great deal of information is before
the committee. She said the focus of the hearing would be on
the legality and impact of EO 121. She reviewed the process the
committee takes when evaluating an executive order.
3:10:31 PM
CO-CHAIR SNYDER introduced the five categories directly related
to EO 121: board and commission compositions; potential
broadening of authority; precedent on the scope of an executive
order; drafting errors on potential policy changes and
implications; and other potential substantive changes.
3:14:53 PM
ADAM CRUM, Commissioner, Department of Health and Social
Services, expressed that the bifurcation of DHSS is a
substantial undertaking that is important for Alaska. He said
the department had considered the feedback of stakeholders, the
legislature, and Legislative Legal Services when drafting EO
121. He commended DOL for its efforts. He emphasized the need
DHSS has for separate departments.
3:16:17 PM
ANDREW DUNMIRE, Legislative Counsel, Legislative Legal Services,
Legislative Affairs Agency, acknowledged that he had drafted the
aforementioned memo analyzing EO 121. He specified that
Legislative Legal Services takes no position on EO 121. He
explained that reviewing an executive order would mirror the
process of editing and revising bills. Errors or issues would
be identified for consideration by the legislature, in regard to
its decision-making process. He said, this is done "with a
fine-tooth comb."
3:17:34 PM
CO-CHAIR SNYDER asked Commissioner Crum to address issues
regarding the composition of boards and commissions. She
directed attention to the following boards and commissions:
Section 14, regarding the emergency response commission; Section
27, regarding the Alaska Mental Health Trust Authority in an
advisory role; Section 35, regarding the Governor's Council on
Disabilities and Special Education and the creation of an annual
plan; Section 35, regarding the Alaska Commission on Aging; and
Section 116, regarding the Interdepartmental Coordinating
Committee. She observed that these would involve the new
commissioner of DOH, as opposed to DFCS. She questioned the
implications of the new arrangement and the roles each
commissioner would assume.
3:20:19 PM
COMMISSIONER CRUM replied that EO 121 was drafted by alignment.
He explained that DOH would be assigned aspects of processing
and payments for Medicaid, while direct care and facility-based
functions [for Medicaid] would be assigned to DFCS. He stated
that DFCS would be assigned the Pioneer Homes and the Alaska
Psychiatric Institute, which he characterized as being licensed
hospitals. He added that these institutions must abide by
specific state and federal rule sets. He said because DOH deals
with programs and program management, it would be tasked with
managing the services and grants while setting up the community
providers. Considering the aforementioned boards, he said, the
decision was made to keep them in DOH. He explained that the
thought was to have two commissioners holding seats on the
boards; however, adding a second commissioner was called into
question. It was decided that the most appropriate commissioner
would be chosen, even though a "gap" would be left in the
system.
3:23:16 PM
REPRESENTATIVE PRAX concurred with Commissioner Crum. He
expressed the understanding that adding more commissioners could
happen at a later time.
3:24:03 PM
MR. DUNMIRE, in response to Representative Spohnholz, stated it
is not disputed that the governor has the authority under the
Constitution of the State of Alaska to move positions around
within the executive department. He voiced that this is a
permissible use of power; however, the legislature would be able
to decide whether to disapprove of the executive order or to
introduce legislation to amend it in some way.
3:25:52 PM
MR. DUNMIRE, in response to Representative Prax, stated that it
is the legislature's prerogative to create boards and
commissions and define them in statute. In response to a
follow-up question, he confirmed it would be permissible to use
executive power to switch the roles of the commissioner within a
principle department.
3:27:24 PM
CO-CHAIR ZULKOSKY questioned what the implications would be if
the executive order made substantive changes to law.
MR. DUNMIRE responded that the question is difficult. He
offered his understanding that there has never been an executive
order which has been challenged in a meaningful way.
CO-CHAIR ZULKOSKY, clarifying the question, asked whether Mr.
Dunmire's memo had alluded to the possibility of the executive
branch unintentionally usurping legislative authority.
MR. DUNMIRE confirmed that this is a concern; however, the line
where the governor would have gone too far is not well defined.
3:30:18 PM
CO-CHAIR SNYDER, following the line of questioning, asked
whether the legislature would determine its own "comfort level"
in terms of approving a particular executive order.
MR. DUNMIRE responded in the affirmative. He specified that in
his position the issue is a legal question, while for the
legislature it is a political question.
3:31:56 PM
STACIE KRALY, Director, Civil Division (Juneau), Department of
Law, offered clarification regarding the idea of a substantive
change. She said executive orders change law, which means there
will be changes to a number of statutes. The Constitution of
the State of Alaska allows the executive branch to make changes
to the organization of the executive branch or in the assignment
of function. She emphasized that EO 121 would reorganize a
function; however, EO 119 was problematic because it would have
added a commissioner to a board or commission, and this would
have changed state law, which is not an assignment or a
reorganization. She indicated the addition of another
commissioner should be done through a bill. She explained that
the substantive change is not the legal standard on whether EO
121 is constitutional; the standard is whether the change in
statute results in a reorganization or reassignment of a
function.
MR. DUNMIRE concurred that the permissible scope according to
the constitution is "resetting functions and moving departments
around and things like that." However, he stated that he only
partially agrees with Ms. Kraly's comments about the term
"substantive." He said it is the legislature's prerogative to
write statute, and the governor can amend statute by executive
order. He stated that the question would be whether this
becomes substantive to the point that the legislature or the
court would take action to invalidate the executive order. He
described this as "a large gray area."
3:36:35 PM
REPRESENTATIVE SPOHNHOLZ requested that Mr. Dunmire speak about
the differences between the responsibilities of the legislature
versus that of the administration.
MR. DUNMIRE, in response, gave an example of a governor creating
new law, which would be unconstitutional. On the other hand, he
said, the governor can move people, positions, and assign
functions, but to do this would require a change in statute. He
said this is the "gray area."
REPRESENTATIVE SPOHNHOLZ expressed the opinion that there is not
a disagreement between the administration and Legislative Legal
Services regarding the need for legal changes to ensure the
executive order can be moved forward. She stipulated there
would need to be clarity. She requested background information,
or case law examples, in order to understand "the bright line
between ... what is administrative in nature and what is policy
in nature."
MR. DUNMIRE answered that he has done research and found there
is "not authority out there establishing a bright line rule."
3:42:34 PM
MS. KRALY, in response to Representative McCarty, confirmed that
the legislature is given 60 days to respond to an executive
order, and if it does not respond, the executive order [is
signed into law]. In response to a follow-up question regarding
reorganization versus reassignment, she explained that under
statute this is the standard as to what can happen via an
executive order.
CO-CHAIR SNYDER added that it is up to the legislature to decide
whether this is the best course of action.
3:44:19 PM
REPRESENTATIVE PRAX, regarding the choice of a commissioner,
observed that either commissioner would be appropriate. He
expressed the opinion that at this stage "we should let it go at
that."
3:45:12 PM
REPRESENTATIVE SPOHNHOLZ asked whether the administration had
considered introducing legislation which would address the
issues of the "dividing line."
MS. KRALY responded in the negative. She talked about allowing
the executive branch the ability to manage itself. She
suggested the introduction of a bill could affect Medicaid,
foster care, and other programs. She spoke about the separation
of powers. Concerning a bill, she said, the governor would have
veto power; concerning an executive order, the legislature would
have veto power. She stated that the language in EO 121
exemplifies appropriate use of an executive order.
3:49:11 PM
CO-CHAIR ZULKOSKY gave an example of an executive order in
Washington State. She questioned the work done on the executive
order during the interim and suggested more work would have made
sure everyone was on the same page.
MS. KRALY responded that the administration has been working on
EO 121 for 15 months with robust stakeholder engagement. She
said that the administration withdrew EO 119 because it needed
work. She acknowledged that a lot of effort could have occurred
in the last six months; however, DOL did not receive questions
from Legislative Legal Services or others. She cautioned
against comparing Alaska with Washington.
CO-CHAIR ZULKOSKY, to ensure legislators and policy makers were
included in the executive order, questioned DOL's intention
regarding "the ambiguity around the separation of powers."
3:54:43 PM
COMMISSIONER CRUM responded that the plan has not changed from
EO 119, rather the changes concerned the drafting aspects. He
said this is not a policy call, rather it would be taking "the
exact definition of Article III, Section 23, and putting
together the executive branch for the best administration of
function." He said the administration made its intent clear.
CO-CHAIR ZULKOSKY, addressing Mr. Dunmire, questioned whether
choosing one commissioner over the other would be substantive.
MR. DUNMIRE answered it is substantive in the sense that the
legislature gets to pick who sits on a board or commission.
CO-CHAIR SNYDER remarked that adding or subtracting programs, or
the authorities under them, could be considered "sticky areas."
She indicated that the question is whether the legislature is
comfortable setting the precedent of EO 121, given its size and
scope.
4:00:18 PM
MS. KRALY, regarding the timing of EO 121, responded to
Representative Spohnholz that the executive order had been
introduced on the first day of the [2022] session. After EO 119
had been withdrawn in 2021, the administration agreed that
everyone would work collaboratively with Legislative Legal
Services on drafting issues and concerns. She said the
administration gave Legislative Legal Services a draft on
October 30, 2021, with the instructions to meet with DHSS and
DOL. She said Legislative Legal Services answered some
questions from [the administration] on January 14, 2022, but did
not give a full review until February 14, 2022. She clarified
that when the executive order was 90 percent done and
essentially finished, it was shared with Legislative Legal
Services; it only needed to be proofed and reviewed.
4:05:52 PM
MS. KRALY, in response to Co-Chair Zulkosky, said the draft was
provided to Senator David Wilson's office.
4:07:43 PM
COMMISSIONER CRUM added that there was an opportunity to reach
out formally and informally. He spoke about sharing the
executive order with the leadership of both bodies.
4:08:52 PM
MR. DUNMIRE confirmed [Legislative Legal Services] is the
attorney for the legislature and does not draft or advise DOL.
He said he takes issue with the timing laid out by Ms. Kraly.
He stated that it is not the job of Legislative Legal Services
to endorse executive orders a disclaimer that is included with
every memo.
MS. KRALY, in response to Co-Chair Snyder, offered her
understanding that Senator Wilson had received a copy of the
memo on October 30, 2021. She added there is an e-mail which
reflects that the copy was sent to the Legislative Affairs
Agency.
4:10:20 PM
REPRESENTATIVE SPOHNHOLZ asked whether there was a reason the
memo was not supplied to the chairs of the House Finance
Committee.
COMMISSIONER CRUM, in response, explained that Senator Click
Bishop had requested that he and Legislative Legal Services work
together during the interim to put together information which
could be shared in advance. To a follow-up question, he
expressed that he has tried to be "open on this" and addressed
questions which have arisen from legislators. He reiterated
that EO 121 presents the same plan as EO 119, and it was the
legal aspects which were in question. He said this is why [the
administration's] primary efforts were "working with Legislative
Legal [Services]."
REPRESENTATIVE SPOHNHOLZ expressed disappointment that the
information was shared with the Senate and not the House.
4:14:42 PM
CO-CHAIR SNYDER said she would like more information regarding
the broadening of authority.
4:15:47 PM
MR. DUNMIRE expressed the opinion that broadening the authority
of a commission would be a permissible use of executive-order
power. He added that whether this would rise to the level of
"being so blatantly unconstitutional that it renders the
executive order void" is a separate question. He mentioned
Section 133 which grants the department the authority to adopt
regulations to implement the executive order. He said rule
making and administrative code derive power from the legislative
branch. He noted Section 18 has a drafting change. He said,
removing this qualifier would permit DOH to run any state
program, not just those enumerated in the current state statute.
He indicated this is a "gray area."
CO-CHAIR SNYDER, in terms of the issue of scope of authority,
mentioned Section 29-32 and Section 65. She asked whether
expanding authority would be disallowed under an executive
order.
MR. DUNMIRE responded in the affirmative.
4:18:48 PM
MS. KRALY reiterated that any addition or subtraction would be
unconstitutional and concurred regarding the issue of expansion
of authority. She expressed disagreement that the executive
order has expanded authority. In particular, she pointed out
the transitory language in regulation. She stated that the
language in the back of [Section 133] does not include any
additional regulatory authority. She clarified that it allows
the departments to amend and fix the regulations which currently
exist, so they are properly assigned going forward. She
emphasized this would be a necessary function to achieve the
intent of EO 121, as it is the same regulatory authority that
exists today.
4:20:50 PM
CO-CHAIR SNYDER, in response to Representative McCarty, assessed
the legislature's process of reviewing executive orders. She
stated that changes would have to be proposed through separate
legislation.
MR. DUNMIRE, in response to Representative McCarty, clarified
that although the personal bill deadline has passed, committees
could still introduce bills.
4:24:24 PM
CO-CHAIR ZULKOSKY, regarding the expansion and broadening of
powers, referred to Mr. Dunmire's memo and his remarks about
Section 28, which would amend the statute allowing DOH to
administer any state program, not just those in statute. She
asked for Mr. Dunmire's perspective on the issue.
MR. DUNMIRE responded that this is an example of how Legislative
Legal Services would not draft a statute. He explained that the
language using "including" would mean "not limited to", and the
changes effected by EO 121 would relate that DOH would
administer state programs under the definition of "including"
without a qualification. He stated that this would mean there
is no limit to what could be included in the future.
CO-CHAIR ZULKOSKY, with a follow up, referred to the ambiguity
in the current language in EO 121. She questioned whether the
ambiguity could result in the unintentional expansion of
authority of the commissioner of DOH.
MR. DUNMIRE responded that her interpretation is fair; however,
this may not happen. He spoke to the specifics that Legislation
Legal Services would follow.
4:28:17 PM
CO-CHAIR ZULKOSKY requested a follow-up question for
clarification. She referred to AS 47.06.112 in the executive
order, which would drastically reduce the selection of documents
DFCS would be able to use to adopt or amend regulations. She
asked for Mr. Dunmire's and Ms. Kraly's assessments as to
whether this would be considered a substantive change.
MR. DUNMIRE said he considers this to be substantive because it
does not involve moving divisions around or reassigning
functions. He said this would change the statute which
authorizes the department to incorporate reference material when
regulations are adopted.
MS. KRALY expressed the opinion that it would not be a
substantive change, rather a reassignment of function. She
advised that AS 47.05 is the "adoption by reference" statute.
This statute provides a list of documents which do not need
readoption every time a new version is introduced. She
explained that departments are reassigned in regard to how those
documents apply to the respective departments. She continued
that this is a classic example of the reassignment of a function
and the efficiency of an administration.
CO-CHAIR ZULKOSKY, regarding AS 47.0[5].112, asked whether this
remains unchanged for the commissioner of DOH. She clarified
that she would like to know whether DOL made changes to the
current documents that the commissioner of DHSS is able to
utilize. She added that while she appreciates the department's
perspective regarding the assignment of documents to DFCS,
excluding powers the statute provides seems to tread on
legislative purview.
4:34:29 PM
CO-CHAIR SNYDER, in response to Representative Prax, clarified
that the discussion involves page 62 of EO 121 and refers to the
comparison of language in respect to materials which could be
referenced by the two new departments.
MS. KRALY offered her understanding that AS 47.05.012 would not
be amended under EO 121, rather it would remain as is. She said
that DOH would need all of the documents incorporated by
reference in the back of the bill. Looking to page 62, she said
that the new statute, AS 47.06.030, pertains to the documents
incorporated by reference for DFCS, which includes federal
poverty guidelines and the diagnostic and statistical manual for
mental disorders. Directing a response to Co-Chair Zulkosky,
she stated that medical documents are added because they would
be used for Medicaid related billing and program issues, which
would be under DOH. She added that these documents would not be
used in the same context as they are now. The documents would
apply to DOH and the billing side, whereas the same things would
not be necessary for DFCS.
4:37:33 PM
The committee took an at-ease from 4:37 p.m. to 4:39 p.m.
4:39:10 PM
CO-CHAIR SNYDER clarified that a change in EO 121 would shorten
the list of materials incorporated by reference to be utilized
by DFCS, as compared to the existing list used currently by
DHSS. She observed that the existing list would be maintained
in its entirety for DOH. She restated that the question is
whether the shortened list is appropriate and whether anything
would be lost.
4:42:56 PM
CO-CHAIR ZULKOSKY spoke about the importance of DHSS, as it
exists, and the removal of authority which had been granted
originally by the legislature. She emphasized her concern about
"protecting the institution and the precedence that would be set
through such a substantive, meaty, executive order for future
legislatures, for future administrations."
4:45:32 PM
REPRESENTATIVE SPOHNHOLZ requested that the administration
provide a list of all legislators who had been provided a draft
of EO 121, and the date each received the draft.
4:46:16 PM
REPRESENTATIVE PRAX shared his interpretation of AS 44.29.20,
along with the executive order. He expressed the understanding
that, in this context, DOH would not run anything more than
itself. He questioned why Legislative Legal Services would
interpret otherwise.
4:47:49 PM
MR. DUNMIRE answered by reiterating his previous statement which
explained the interpretation of the word "including". In
response to a follow-up question, he explained that the word
"including" broadens provisions rather than restricts them.
REPRESENTATIVE PRAX opined that "a reasonable person would not
infer from this that [the Department of] Health could get into
the business of the Department of Transportation." He opined
that "we're tripping over words unnecessarily." He concluded
that he has "agreed with the drafting process all along."
4:51:07 PM
CO-CHAIR SNYDER indicated that the committee may revisit some of
these issues in the future.
CO-CHAIR ZULKOSKY expressed appreciation for the process.
4:55:16 PM
ADJOURNMENT
There being no further business before the committee, the House
Health and Social Services Standing Committee meeting was
adjourned at 4:55 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| EO 121, Legislative Legal Department Memo, 2.14.22.pdf |
HHSS 2/19/2022 3:00:00 PM |
EO 121 Memo |
| Law response to 2.14.22 Leg Legal memo_Final1.pdf |
HHSS 2/19/2022 3:00:00 PM |
DOL Response |
| EO 121 Packet 2.18.2022.pdf |
HHSS 2/19/2022 3:00:00 PM |
EO 121 |