House Public Health

October 1, 2021

 

Ladyman [00:00:00] Sees a quorum. Members, we’ve got two bills to look at. There will be an amendment coming for the second bill, so we’ll have to address that amendment first when we get down to HB 1977. I want to thank Emily for being here this morning to help us out and filling in for Phil. Appreciate you doing that. So if there’s anyone here in the audience that wishes to speak for or against the bills, there’s a sign up sheet out front. So if you would, go ahead and sign up on that. And the first bill we’re going to list– we’re going to hear is HB 1974 by Representative Rye. Representative Rye, you’re recognized to present your bill. 

 

Rye [00:01:02] Mr. Chairman, do I need to identify, sir? 

 

Ladyman [00:01:04] Yeah, go ahead and identify yourself. 

 

Rye [00:01:06] Representative Johnny Rye from District Number 54. 

 

Ladyman [00:01:10] All right, you’re recognized. 

 

Rye [00:01:11] Okay. Thank you, sir. Basically, y’all, I’m here this, this morning to pull down a bill, but I wanted to explain a little bit about what we were trying to do with this. The Supreme Court has actually been hearing in the last month situations dealing with COVID, masking, and all other situations. I was trying to get this bill through, actually, before yesterday’s decision by the Supreme Court. They had a ruling on the mask and basically what I was trying to do was set this up in a way where if we had an emergency– this bill strictly deals with an emergency within the state, within our schools. And this was handed down anyway that in the bottom line of the situation with the COVID situation that, that is within a school, that it would reach a 6.5 percent level before actually an emergency was declared. But at the tail end of the situation of, of, of the masking and all that sort of stuff, we wanted to make sure that the mother and dad or the guardian were actually in charge of anything that happened to their children and could make a decision concerning, concerning any kind of masking or not use masking. 

 

Ladyman [00:02:36] Rep. Rye, can I ask you a quick question? The 6.4, did you say? 

 

Rye [00:02:40] 6.5. 

 

Ladyman [00:02:42] 6.5 percent positivity, so any school at 6.5 percent, then they have to implement certain requirements, right? 

 

Rye [00:02:52] Right, sir, it would have to reach a 6.5 percent rate of COVID, which would include the teachers, the students, administration, and all of the other people that are actually involved in the school. 

 

Ladyman [00:03:03] But the question is how did you arrive at that number? Was that given to you by the agency or something? Because the reason I ask that question, some schools are using 10 percent– 

 

Rye [00:03:15] Using 10. 

 

Ladyman [00:03:16] — now. So where, where did the 6.5 percent come from? 

 

Rye [00:03:20] The 6.5 percent actually, there was a bill that was introduced by Representative Mayberry, oh, about a month ago, maybe a little bit longer when we were in session, and that was actually around 2 percent. And I moved the percentage up to 6.5. Actually, sir, this is– we’ve been working on this for about three months. I’m thinking that your 10 percent rate that you’re speaking of is probably closer to right now, but that’s basically where we started. 

 

Ladyman [00:03:49] I just knew some schools that used 10 percent. I guess that was their board that decided that. 

 

Rye [00:03:54] Yes, sir. 

 

Ladyman [00:03:56] Go ahead and proceed. You got anything, any further discussion? 

 

Rye [00:03:59] Well, Representative Ladyman, basically, that’s what we were trying to do is cut it off. The Supreme Court met yesterday and had a ruling on this. And they jumped– they were ahead of us just a little bit as far as their ruling up against our legislation. And that’s what we were trying to do. I was hoping I could get this thing in maybe three or four days ago, but it didn’t fall that way. So since they have made their ruling, I think this was probably a moot situation. But I would say that in a special session that will be here in about a month, we need to do some work on this. Because the parents in our state, we feel like need to have control of their children instead of the bureaucracy. Yes, sir. 

 

Ladyman [00:04:46] Yes, Representative Boyd, you’re recognized. 

 

Boyd [00:04:50] Thank you, Mr. Chair. So, Representative Rye, we passed a mask mandate ban earlier and that’s– I think that’s what you’re referring to. Courts have been holding that up. And in that ban, we told the government they couldn’t have a mask mandate, right? That’s your understanding? So, so basically right now, the courts have us on hold that this body can’t tell the government what to do. Does your bill also tell the government what they can’t do? 

 

Rye [00:05:19] You know, I think you’re right. It’s a situation where we came out with something I felt was right in the session, but the court absolutely didn’t go with us on what we had. So I felt like that was a bad thing. Yes, sir. 

 

Boyd [00:05:37] Thank you, sir. 

 

Rye [00:05:38] You’re very welcome. 

 

Ladyman [00:05:39] But the court action was just a ruling on the stay of that bill, correct? 

 

Rye [00:05:47] Yes, sir, Representative Ladyman. And actually, the things that the court is doing is not being done in a complete form. There’s just segments that are coming through from week to week and month to month. So actually, they haven’t finished yet. There’s still two or three points within this particular legislation that will be used later on down the line. But overall, I think if we went forward with this, it’s probably going to contain some stuff that the court system actually is is overrun us with. 

 

Ladyman [00:06:16] Okay. 

 

Rye [00:06:17] Yes, sir. 

 

Ladyman [00:06:18] All right. So you want to pull your bill down today?

 

Rye [00:06:21] Yes, sir. I need to pull the bill, but I appreciate you guys. And we do need to get these things straight because we do feel like our parents statewide should have control of their own children. 

 

Ladyman [00:06:32] All right, thank you, Rep. Rye. 

 

Rye [00:06:33] Thank you, sir. 

 

Ladyman [00:06:35] All right, committee, the next bill is HB 1977. Representative Bryant. So Rep. Bryant, if you would come to the table. Committee, there is an amendment that’s coming around to HB 1977. So, Representative Bryant, if you would go ahead and introduce yourself for the record. 

 

Bryant [00:07:02] Yeah, Representative Bryant, district 96. 

 

Ladyman [00:07:04] Okay. Give us just a couple of minutes to get these passed out. Okay, Representative Bryant, you’re recognized to present your amendment. 

 

Bryant [00:07:30] Thank you, Mr. Chair. Committee, what you have in front of you amending Page 2, where we delete lines 34 and 36. The original language of the bill in 1977, it gave some language that we shall– funding for the testing shall be paid for by the employees’ health care. That gave a little bit of concern for obviously our health care providers saying, Well are you telling us– are you mandating us to make that a provision? So what we need to do– to change that is we put the cost of the testing shall be covered through any state or federal funding made available, including the ARPA funds if the employee’s health plan does not cover it. That gave the health care insurance providers a little bit of, you know, we’re not mandating them to do it. We’re saying if they don’t do it, then we can use ARPA funds or state funds. 

 

Ladyman [00:08:25] So the way it was originally written, it would have been– might be considered as a mandate for the insurance companies? 

 

Bryant [00:08:32] That’s, that’s the way their counsel thought. 

 

Ladyman [00:08:36] All right. Any questions from committee? Seeing none, what’s the will of the committee? I have a motion do pass. Any discussion on the motion? Seeing none, all in favor signify by saying aye. All opposed nay. Ayes have it. Your amendment’s adopted. You’re recognized to present your bill as amended. 

 

Bryant [00:09:03] Thank you, Mr. Chair. This bill House bill 1977, we’ve already discussed pretty good detail. It matches House Bill 1972, except with amendments. The amendments– if you’ll turn your attention to Page 2 lines 21 through 24, the original language of 1972 said it would be on an annual basis and that it would also be a health care provider using a serological test. And then it gave more finite definitions of antibody tests or T cell tests. In talking to physicians, member physicians and other, other bodies, we decided that proof of immunity, changing it to proof of immunity, would broaden what that meant for what kind of tests they could use as a physician. We also turned it into two times a year because one time of year was just too, too long. So we did it twice a year, but not to exceed every six months. That way, an employer can’t say, test my– test on January, test on March, and then not be able to require that test throughout the rest of the year. So just, you know, twice per year not to exceed every six months. And then we got rid of serological tests. That way, the health care provider needs to be the one that performs this procedure. And then the last change we did is we took out originally Section 3, which was the unemployment insurance benefit. And in talking to Department of Commerce at length, we feel that there is plenty of avenues for them to seek benefits in the event that they are dismissed due to this bill or other, other instances of the COVID vaccine. 

 

Ladyman [00:10:47] All right, any questions from committee. Rep. Boyd, you’re recognized. 

 

Boyd [00:10:52] Thank you, Mr. Chair. I just wanted to clarify, page 2 lines 21 through 24, is this some attempt to just drive more business to health care providers? Or is this because we feel like there’s a better standard or a more consistent standard with health care providers doing it than what they might receive somewhere else? 

 

Bryant [00:11:12] I think the original language, the business community was concerned that the employee can just go do what they want to do. They can go to Walgreens and say, I have this and get online and send a test in. So this language, you know, not only basically puts it into a twice a year pattern, but also makes sure that it is from a licensed health care. They’re the ones telling the business, Yes, this employee is good to go per our standards. 

 

Ladyman [00:11:40] Representative Allen, you’re recognized for a question. 

 

Allen [00:11:45] Thank you, Mr. Chairman. I just need to know what is the fiscal impact? Do we have one? 

 

Bryant [00:11:55] I did not get one. We honestly don’t know how many employers are going to participate in this, so I’m sure DFA– my understanding as they have, you know, impact. Bottom line is whatever state or federal funding we put in this will be at our discretion. So when– to me, when the kitty is empty, it’s empty. And then the employer, employee will have to figure out that– you know, what the next steps are.

 

Ladyman [00:12:23] Rep. Wardlaw, you’re recognized for a question. 

 

Wardlaw [00:12:25] Two points. I think DFA is here with some documentation on what they think that cost would look like. My first– my question is on page 2, same, same questions Representative Boyd asked. When we looked at the data from last year, the Health Department reported that 90 days was your immunity from the time you were off quarantine to the time you were back into the quarantine rules and all the documentation. In this paragraph, you’re saying that they don’t have to do this– not to exceed once every six months. So you’re basically saying 180 days. What scientific data do you have or what specialists do you have in your corner that says that 180 days is adequate? And how do we know we’re not sending people out for an extra 90 days to expose or spread the virus? 

 

Bryant [00:13:19] I don’t. I do not have anybody here to answer that. 

 

Wardlaw [00:13:21] That’s just an arbitrary number you came up with? 

 

Bryant [00:13:24] Well, just, just the, the– you know, if you read article after article, if you read NIH documentation, NIH would say, I believe, you know, it could last, you know, up to eight months, nine months. So yes, twice a year seems reasonable. Um, as far as, you know, what your immunity could last. 

 

Wardlaw [00:13:43] At the proper time, Mr. Chair, can we have the Health Department come to the table and comment on that paragraph? 

 

Ladyman [00:13:49] Yeah, they’ll be coming to the table. They’re going to speak on the bill, so you can ask that question. Rep. Dotson, you’re recognized for a question. 

 

Dotson [00:13:59] Thank you, Mr. Chair. Representative Bryant, I didn’t see this before, but I’m comparing this with your previous bill, 1972. In that section you pointed out with the– on page 2 line 21 through 24 where you said proof of immunity, and your previous bill, you’d said the antibodies or T cell response or, or things like that. I’m wondering how you, how you prove immunity from a virus. I mean, I understand it’s a really broad term without, without saying something like, such as the presence of antibodies or T cell or, or something else or, you know, listing a criteria that can be used for proof of it to prove the immunity. Does that make sense? 

 

Bryant [00:15:00] It does. It does. And we discussed that. And the consensus was if you, if you just left it broad with proof of immunity, you could capture all the tests previously mentioned, but any new additional tests that may be available in the future. So the physicians we talked to said proof of immunity in their world covers a very broad array. 

 

Dotson [00:15:20] There’s been a term that I’ve, I’ve heard repeatedly over the last several years that are inserted into bills, lawyers like to put in there, that without limitation. So if, if you added those back into it, but said without limitation, I mean these things without limitation anything else. I don’t know how that would work. You’d have to talk to one of the drafters on that. But as far as a suggestion on it, thank you. 

 

Bryant [00:15:48] Thanks. 

 

Ladyman [00:15:52] Any other questions from committee? Seeing none– Rep. Payton, you’re recognized for a question. 

 

Payton [00:16:02] Thank you, Mr. Chair. So I guess my question based on the last couple of about the proof of immunity, your other bill is still scheduled on the House floor. Do you intend to pull that bill down if this one passes? 

 

Bryant [00:16:16] Yeah, I believe the language in this bill, obviously more agreed upon, it’s a better, cleaner bill. I’d rather run this than run the one previously passed. I’m not going to, I’m not going to run the one previously passed. I’m going to want this one with the language agreed upon by multiple members in the House and the Senate to, to make its way through the system. 

 

Payton [00:16:35] OK, well, if I could follow up. 

 

Ladyman [00:16:36] Yes, you’re recognized. 

 

Payton [00:16:37] That language we’ve been discussing here for a minute on Line 21 of proof of immunity, it’s been proven that after the vaccine, some people still get the virus. And it’s been proven that even after having a case of COVID that people can be reinfected. So I don’t know that immunity to COVID 19 exists anywhere that’s been proven yet. So it just seems like a very broad term for the courts to jump on. Does it not give you concern? 

 

Bryant [00:17:10] It did, but I’m going to rely on the medical community that we discussed, other members, other doctors that are among the membership to say that that’s– to them, that that covers anything they want to do to, to certify that they feel that that employee is, is quote has some immunity may be equal to or better than the vaccine, you know, at that point of testing. 

 

Payton [00:17:34] OK, thank you, Mr. Chair. 

 

Ladyman [00:17:37] Representative Boyd, you’re recognized. 

 

Boyd [00:17:42] I’m just trying here to think through what, what this could mean and so I’m, I’m just going to ask questions, see how it responds. I’m still working on formulation. So back to Line 21 page 2, proof of immunity. So when we have the practice of medicine, practice of pharmacy, practice of nursing, practice of podiatry, the health care professions, there’s an art and a science. And so sometimes you, you make a decision based on the best information available, and it’s not always 100 percent certain. But yet you would say, you know, you have a, you know, this diagnosis or that diagnosis. I mean, so do you expect that proof of immunity would mean you’re 100 percent risk free? I mean, because like the vaccines are at best, 95 percent, you know? But we would say you’re immune because you had– you’re fully immunized. Is that what you mean by proof of immunity? 

 

Bryant [00:18:43] I think that in our conversation was if, if you’re the treating physician and you have a normal patient that you see on an annual basis for their routine checkups, or they came because they had, you know, what they thought was Covid, but a cold. And then three weeks later, they show up and say, or they came to them and said, Hey, I’ve had, you know, I think I’ve got COVID. And they say, Well, yes, you do. And so they get quarantined. They take their, you know, whatever treatment options are available to them. They let their employer know. Well then that, that physician can certify that, that employee’s immunity for this window because, because that physician talking to the ones I’ve talked to said, That will tell me that you have proof of immunity for, you know, at least up to six months, you know, maybe eight, maybe nine months. But, you know, an employer would say this is good for six months. If I choose to ask you to test again, I can in this, you know, in the following six months. 

 

Ladyman [00:19:44] Representative Gray, you’re recognized for a question. 

 

Gray [00:19:45] Thank you, Mr. Chair. And I just kind of wanted to clarify too that I worked with Josh on this language and the intent wasn’t to confuse things. The intent was because someone that tests positive, if they– there’s no reason for them to go back and get an antibody test a month later because they tested positive. So the intent was to broaden it a little bit– it was to kind of broaden that a little bit while reducing the time frame. And I don’t know if this body thinks that we need to adjust the language, but I think that’s appropriate. But I can tell you that’s what the intent was. So not really a question. Do you agree, Representative? 

 

Ladyman [00:20:26] Any other questions? Representative Payton, you’re recognized. 

 

Payton [00:20:31] Thank you, Mr. Chair. Would you be willing to explore other language that would more perfectly define your intent?

 

Bryant [00:20:40] I am open to any options to get this moving. You know, my, my, my concern is, you know, obviously the time crunch we’re in as a body. But, you know, I’d rather have good legislation and wait, but I don’t know if waiting is an option. 

 

Payton [00:20:53] Well, I know we have a timeframe, but you have another bill that’s already passed this hurdle. So if some of us prefer that bill, we might be hesitant to replace it unless we get this language right. 

 

Bryant [00:21:08] Yes. 

 

Payton [00:21:09] Thank you. Thank you, Mr. Chair. 

 

Ladyman [00:21:11] Any other questions? Seeing none, we have six people signed up to speak on the bill and two against the bill- I’m sorry, just one against the bill. OK, so Jim Hudson, if you would, go to the end of the table and please introduce yourself and who you represent. 

 

Hudson [00:21:42] Thank you, Mr. Chairman. Jim Hudson, Arkansas Department of Commerce. One, just real quickly, I know y’all are pressed on time. I do want to thank Rep. Bryant for reaching out, other members as well, just to hear the concerns from the employer community. And I appreciate that some of those concerns getting reflected in the current version of the bill. Just wanted to just make sure, though, that we’re clear, you know, we’re having to– the employer community, as we talk to them, they want to comply with state law and federal law. They don’t have a choice, right? But especially with respect to federal law. Look at the OSHA standard and the incredibly tough hammer that that is. Those employers who are covered by the OSHA standard, those employers who are separately covered by President Biden’s executive order relating to federal contracts, and we’ll have folks, I’m sure, here from the Hospital Association to speak about, you know, those things that are applicable in the hospitals and health care settings. You know, despite this bill or if some version of that passes, those employers are going to have to comply with those laws. They just have no choice. And I just want to make sure we’re clear about that, that the concerns that we’re hearing from the employer community. Do appreciate that the unemployment language got got changed there. And in terms of the issue of testing, you know, the employers, we’re not medical experts. You know, in business, we’re looking to the medical experts to tell us what are the protocols we need to follow. And so we need clarity. We don’t need ambiguity about that. We need to understand what that is. And then in terms of the the cost for that, to the extent that funding is not available from the state, if there’s not available in federal government, if it ultimately comes back to the employers, and if that’s a significant expense, then that could certainly be a hindrance to business in Arkansas. So I can’t really get more specific than that other than just what I’m hearing this morning. And as I listened to the debate, just concerns are kind of popping off in my head about that. So we’ll continue to monitor the legislation. As we see things, we’ll give you feedback as, as we’re able to absorb it. And with that, I’m happy to take any questions. 

 

Ladyman [00:23:47] Excuse me. Talking about OSHA, you brought that up in your comments there, is there any organized, organized opposition in the business community to OSHA rules that might come down due to this mandate? Because the OSHA department– I used to be a special government employee for OSHA– they would have to prove that this is a workplace hazard. And they would have to refer to the rule and that– is there any organized, organized opposition or maybe opposition to this in the business community? 

 

Hudson [00:24:29] Yes, sir. There is. You know, they’re already sending– at this point, I’d say it’s queries to OSHA saying, you know, how are you going to address this, how you can address that. For example, you know, 100 employees is, is the threshold. Well, is that 100 employees at a location? Is that 100 employees for the employer across various locations? It’s things like that. There’s this testing opt out for the OSHA standard that is, by the way, not applicable to the federal contractor standard. There is no testing opt out federal contractors. You have to get vaccinated. And so but for the OSHA standard on, on the testing opt out, well, what is that protocol going to be? And you know better than I based on your experience that OSHA loves to grind into the details. And so I suspect they will tell us exactly what they want. To answer your question, yes, business interests, business community, chamber across the nation, they’re reaching out to OSHA to register their concerns. I believe OSHA has already crossed the threshold of declaring COVID 19 a workplace hazard. I’m not concurring in that determination, but I believe they have already done so. And so it’s going to be a subject of future litigation. 

 

Ladyman [00:25:42] Well, my concern about that, if, if they can declare COVID a workplace hazard, then why can’t I declare the flu a workplace hazard because it has the same effect in manufacturing? I mean, it shuts down your operation. 

 

Hudson [00:25:56] Yes, sir. 

 

Ladyman [00:25:57] Do you agree? 

 

Hudson [00:25:57] I’m not here to defend, defend OSHA. But you know, I believe they have already reached their determination about that, and it’s going to require, I think, actions by the court to either overturn it or affirm it. 

 

Ladyman [00:26:08] All right. Thank you. Questions from the committee? Rep. Bentley, you’re recognized. 

 

Bentley [00:26:16] Thank you, chairman. Would you agree that there are a number of what if’s with these OSHA rules that very well may end up the entire thing in court? 

 

Hudson [00:26:24] Totally agree with that. 

 

Bentley [00:26:25] So I think it’s hard for this body– would you agree that it’s hard for this body to make rulings based on what if’s when we are hearing so many concerns from our constituents that want, want some what I would say very simple things to make sure that the workplace is safe when we know the antibodies when we see what I see or read numerous reports that these antibodies are just as well or more effective than the vaccine. So, you know, as an employer, I’m just going to ask quick question. I just think that we, we, as– I want you to say– would you agree that we as legislators listening to our constituents that are very concerned and have legitimate concerns about this vaccine that we can’t really just be basing things on what if’s when we know that there– we’ve heard from the attorney general and others, other attorney generals across the nation that they’re going to battle these OSHA rules head on and put it in court and delay them. 

 

Hudson [00:27:12] Yes, ma’am. I don’t think I concur and can concur in your statement. I do agree that, you know, this body has to listen to its constituency, which includes the business community as well. We know as a matter of certainty that OSHA is going to promulgate its standard. There’s no question if that’s going to happen. It is going to happen likely sometime in the next six weeks or so. And so in the absence of a court of competent jurisdiction enjoining enforcement, they’re going to have to apply the standard to their workplace and live with it until that gets sorted out in the courts. 

 

Ladyman [00:27:50] Any other questions from committee? Oh, I’m sorry. Representative Wardlaw, you’re recognized. 

 

Wardlaw [00:27:57] Mr. Hudson, where is OSHA regulated at? 

 

Hudson [00:28:01] Federal level. It’s a, it’s a, it’s a function of the U.S. Department of Labor. 

 

Wardlaw [00:28:05] So not, not any law or any bill that would pass from this body would be able to regulate OSHA regulations at any level? 

 

Hudson [00:28:14] No, sir. The supremacy clause of the United States Constitution relegates that authority strictly to the president of the United States interpreting statutes passed by the United States Congress. 

 

Wardlaw [00:28:23] Thank you for my morning civics lesson. 

 

Ladyman [00:28:25] But Mr. Hudson, on that same subject, states that have taken over enforcement of the OSHA regulations do have some effect on how those laws are enforced. Is that not correct? 

 

Hudson [00:28:37] That’s correct. Arkansas is not one of those states. 

 

Ladyman [00:28:39] Unfortunately, we’re not. Any other questions? Rep, Boyd, you’re recognized. 

 

Boyd [00:28:48] Would you agree this bill regulates a market? And regulating markets is one of the purview of this body? Thank you. 

 

Hudson [00:28:58] In the sense of regulating the employment relationship in the labor market? Is that your point, representative? It does. And that is one of the purviews of this body is to regulate that. Yes, sir. 

 

Ladyman [00:29:13] OK. Seeing no more questions, thank you for your comments. 

 

Hudson [00:29:17] Thank you, committee. Thank you, Mr. Chairman. 

 

Ladyman [00:29:29] Paul Louthian, you’re recognized to come to the end of the table. Did I pronounce that correctly? Please introduce yourself for the record and who you represent. 

 

Louthian [00:30:05] Thank you, Mr. Chairman. Paul Louthian, Department of Finance and Administration. 

 

Ladyman [00:30:08] Thank you, sir. 

 

Louthian [00:30:11] My role here today is to give you some information about the funding, the level that we currently have and what the anticipated cost of this could be. We currently have $1 billion 40 million that allocated to the state of Arkansas. 254 million of that is currently available. Another 786 million will not be available until July of next year. I have some handouts if one of your staff could pass these around. They’re on the side of the podium right here. What we did is a simple calculation. 

 

Ladyman [00:30:55] Can I take a look at those before we hand them out, please? Go ahead, sir. 

 

Louthian [00:30:59] What we did was a simple calculation of the number of people that might be tested on a weekly basis at a cost of $100 per test and then ran that at the 95 weeks that are remaining between now and July 31st of 2023. If 25,000 people are tested on a weekly basis, that would cost approximately $237 million dollars over that time period. If we take that number up to 100,000 people on a weekly basis during that time period, the cost would be $950 million, which would approximate most of the remaining funds available. But as you’re aware, there’s been money that’s been distributed. There’s other uses for that money that have been contemplated, and we wanted you all to have those numbers available to you. 

 

Ladyman [00:32:09] Rep. Boyd, you’re recognized. 

 

Boyd [00:32:12] Thank you, Mr. Chair. So you’re– if I understood your testimony correctly, you’re saying this could cost $950 million?

 

Louthian [00:32:22] It’s all dependent upon the number of people that take the weekly testing. But that number is, is one of the ones that we calculated. Yes, sir. 

 

Boyd [00:32:30] So, so could you help walk us through the specific math so that we understand and we can find the right balance of– you know, here’s a range that you– it sounds like you’re saying this is the upper end, but there’s got to be– and 0 would be the lower end if nobody did this, right? So can you help us with the math so we can better understand what we think the implications might be? 

 

Louthian [00:32:57] Yes, sir. So my understanding is is that the test, the reimbursement rate is approximately $100 per test that’s given. We started, we started the calculation out with 25,000 persons per week being tested and there’s 95 weeks between October 1st and the end of July 31st, 2023. So the calculation with that point would be $237 million dollars if that was the number of people on a weekly basis. We have given– graduated this by 25,000 people per week to give you a feel for what that might be. And at the upper range– I gave you a midpoint range of 100,000 people. That cost would be $950 million. So I stopped the calculation at 150,000 people, and that cost would be 1.4 billion. These are simply estimates on a weekly basis. 

 

Ladyman [00:34:05] Did you have a follow up? You’re recognized. 

 

Boyd [00:34:07] Thank you, Mr. Chair. So let me ask specifically– I do have the calculations in front of me and thank you for providing that so that I can see it visually. What evidence do we have that there are even going to be 25,000 people who are going to need this service? Where did you come up with the 25,000 as a starting point, as opposed to 5,000 or 10,000 or three or four or what have you? Could you help me understand that? 

 

Louthian [00:34:37] I simply started with a number. I have no idea how many people will have to be tested and how much the– how many will not be covered by insurance or other forms of payment. I simply gave you a range of numbers for this calculation. 

 

Ladyman [00:34:56] Rep. Dodson, you’re recognized for a question. 

 

Dotson [00:35:00] Thank you, Mr. Chair. I’m– I understand your math here. I’m just curious about how you came up with $100 a test. I believe what we’re referring to is the antigen tests that are here. And just did a quick search and I can get two tests for $14. So that’s $7 per test, not $100 per test. Is this some special government tests? 

 

Louthian [00:35:34] We spoke to the Department of Health yesterday afternoon, and they gave us that amount as a reimbursement rate for tests administered. 

 

Dotson [00:35:42] So our government is spending that much per test when you can get it on the open market for seven bucks a test? I’m, I’m just blown away by the waste. Thank you. 

 

Ladyman [00:35:59] I had a question. Just to make sure I’m reading this correctly, the total cost of the program on the right hand column, if I look at the 75,000, which is in the middle of your chart, so now that is a three year cost, is that correct? Because it goes from October ’21 to July ’23. So an annual basis would be 234,000? 

 

Louthian [00:36:24] Well, yes, sir. 

 

Ladyman [00:36:27] All right. Thank you. Representative Penzo, you’re recognized for a question. 

 

Penzo [00:36:36] I was curious what the fiscal impact for the state of Arkansas would be if we were to lay off 150,000 people. I mean, we’re– have the fiscal impact of what it would cost to test them. But what would be the fiscal impact and to the state, federal government and just overall business community to lay off 150,000 people. 

 

Louthian [00:37:01] Sir, I can’t answer that question. 

 

Ladyman [00:37:05] Rep. Boyd, you’re recognized. 

 

Boyd [00:37:07] Thank you, Mr. Chair, for allowing me another one. So as I’m looking at this, I’m going, you know, that’s a, that’s a lot of money. We don’t really know. But again, we’re, we’re kind of doing a what if scenario, right? And so what if it were 150,000? What if it were 200,000? And I’m thinking, Well, what would we do? But is it correct that if costs started to really spiral out of control that our governor could call us into a special session to address this? 

 

Louthian [00:37:41] There are always remedies, yes, sir. 

 

Ladyman [00:37:46] Rep. Payton, you’re recognized. 

 

Payton [00:37:48] Thank you, Mr. Chair. I believe it’s my understanding that the government is currently paying for the vaccination. Is that correct? 

 

Louthian [00:37:55] I’m sorry. I didn’t hear you, sir. 

 

Payton [00:37:56] Does the government currently pay for the vaccination? 

 

Louthian [00:38:00] Yes. 

 

Payton [00:38:01] Did you deduct anything for, for the cost of the vaccination? Because we’re talking about people that would not get vaccinated? 

 

Louthian [00:38:09] No, sir. I’ve simply calculated what the testing would be. 

 

Payton [00:38:12] Okay, thank you. Thank you, Mr. Chair. 

 

Ladyman [00:38:15] Any further questions from committee? Seeing none, thank you for your comments. Matt Gilmore. Or Laura Shue. Please introduce yourself and who you represent. 

 

Shue [00:38:43] Thank you, Mr. Chair. Members of the committee, I’m Laura Shue. I’m general counsel for the Department of Health. We apologize. We’re having to be in two places at once, so we’re trying to cover all the bases. I believe that there were some questions earlier on House Bill 1977 expressed by Representative Wardlaw and Representative Payton on Page two in Section B on the proof of the immunity. This may be more of a battle of the experts type situation. It seems that the sponsor has talked with some doctors and we wanted to make sure that that you all were aware that the Health Department does recommend, you know, best practices. And we’re trying to make sure that, that you are aware when you’re passing this type of legislation that not all tests are created equal. The tests need to be for specific– you know, for natural infection, they need to be based on a non-spike protein antibody titer. Dr. Romero’s expressed concerns about not really knowing what a protective antibody is with, with a positive titer. There is no correlate of immunity. Right now, there’s still a lack of information and case studies regarding the level of protection with natural immunity that gives up a person over time. And so there is a concern about the current language in there about the basis of two times a year. We had some recommended amendments that would add the proof of the positive titer for the virus that causes COVID 19 or its variants on a basis of at least every three months. So, and making sure that that was from a licensed healthcare provider. So we would recommend that on lines 21 through 24, and we just wanted to express our concerns on that. Thank you. 

 

Ladyman [00:40:30] Any questions from committee? Seeing none, thank you for your comments. Mark White. If you would introduce yourself and who you represent. 

 

White [00:40:54] Thank you, Mr. Chairman. Mark White, Department of Human Services. Of course, I know I’ve spoken with the committee regarding the earlier iteration of this bill the other day. So I don’t want to retread a bunch of ground there. Just to emphasize, as I discussed the other day, CMS is going to be issuing a mandate for vaccination for all healthcare facilities that receive Medicare or Medicaid funding. That means that for the seven facilities we operate, which is the Arkansas Health Center, the state hospital, our five human development centers, we expect that at least two in all likelihood all seven of those facilities will be subject to that mandate. And in this bill before you, there have been some changes made around the type of testing that’s allowed, which I think kind of illustrates the potential conflict here. If CMS comes out with a mandate that says that testing is allowed, but PCR testing has to be every two weeks instead of– or twice a week instead of every week, or if they don’t provide for antibody testing, or if they say the antibody testing has to be every 90 days, if there’s any conflict like that, then that’s going to put us in a position where we cannot comply with the federal mandate. And if that happens, that does put our funding at risk. And as I mentioned, we receive a total of 130 million annually in federal funding for those seven facilities. They represent 3,000 jobs and we have 1,000 clients who live in those facilities that we care for. So I just wanted to make sure the committee understands the possibility of that conflict there. Don’t know for sure there will be conflict, but there is the possibility. And just wanted to make sure that you all understand the the possible risk this represents there. Be happy to answer your questions. 

 

Ladyman [00:42:27] Representative Gonzales, you’re recognized. 

 

Gonzales [00:42:29] Thank you, Mr. Chair. So I’ve heard on multiple bills that have came through here since the time that I’ve been here that, Oh, it puts our funding at risk. This one puts our funding at risk. We passed many of those, it seems like. Have y’all ever had your funding cut? 

 

White [00:42:47] In the past, we’ve been able to work the situations out. I mean, there have been situations where we’ve been put–

 

Gonzales [00:42:53] So the answer is no, right? 

 

White [00:42:54] Yes, sir. 

 

Gonzales [00:42:55] Okay, thank you. 

 

Ladyman [00:42:57] Any other questions from committee? Representative Pilkington. 

 

Pilkington [00:43:02] Thank you, Mr. White. Thank you, chairman. Do you have any draft language from the CMS memo? 

 

White [00:43:08] They have not issued any drafts yet. 

 

Pilkington [00:43:10] Have they issued bullet points, anything like that? 

 

White [00:43:13] No. At this point, we’re in the dark about what the specifics of their mandate will look like. 

 

Pilkington [00:43:17] So it’s just this phantom out there? 

 

White [00:43:19] It’s, I mean, President Biden has directed them to do so. So, as with OSHA, I have every expectation they will be issuing a rule within the next, I would guess, next four to six weeks. But as far as the specifics of what that rule will look like, we just don’t know at this point yet. 

 

Pilkington [00:43:37] Gotcha. Thanks. 

 

Ladyman [00:43:37] Any other questions? Representative Payton, you’re recognized. 

 

Payton [00:43:43] Thank you. Do you think that when CMS promulgates rules that they take into consideration existing state laws and how their rule may be contradictory to existing state laws across the nation? 

 

White [00:43:58] I mean, they may certainly take a look at that and give that some consideration. At the same time, you know, under the supremacy clause, federal law controls. And so they, while they may take that into consideration, they’re not required to, and there’s no guarantee that they will. 

 

Payton [00:44:12] So the supremacy clause federal law rules except in the case of marijuana, I would assume. 

 

White [00:44:18] I’m not an expert on marijuana law, so I can’t speak to that. 

 

Payton [00:44:21] OK, thank you. 

 

Ladyman [00:44:24] Any other questions? Seeing none, thank you for your comments. 

 

White [00:44:28] Thank you, members. 

 

Ladyman [00:44:30] One person signed up to speak against the bill, Jodiane Tritt. If you would please introduce yourself and who you represent. 

 

Tritt [00:44:42] Good morning. I’m Jodiane Tritt. I’m the executive vice president of the Arkansas Hospital Association. I am against the bill as written. I’d like to point out two things for you. If you’ll look at Page 2 starting with Line 12, the word treatment there. A vaccine is not a treatment for COVID. It’s a prevention in order so that you don’t get COVID. People who are COVID positive don’t get vaccines. So you might want to clarify that language to actually be the definition of an immunization if that’s what you’re really after for immunizations and vaccines to be something like a preparation that is used to stimulate the body’s response against diseases. That also helps you in defining who your employers are. Because the way it’s written right now, the only entity that’s really required to treat patients who are also employees is hospitals. Hospitals are required to treat everyone and all diseases. So just if you get that language cleaned up for your real intent might help. Secondarily, and I know that I’ve spoken on another bill about this particular issue, the supremacy clause does cause us great problems. While we agree with everyone here who’s talked about OSHA standards and the Medicare conditions of participation, the Medicare conditions of participation are the lifeblood of hospitals’ ability to be financially stable. If we don’t follow those Medicare conditions of participation, Medicare and Medicaid absolutely will not reimburse us for things that we do for folks over age 65 who are covered by Medicare and for anyone who is covered by Medicaid. And in many of our hospitals that absolutely would financially cripple them. Not to mention lots of insurance contracts with us are based off of Medicare and Medicaid rates. If we’re no longer participating in the Medicare or Medicaid program because the feds say we’re not following enough of their regulations, it puts us in a dramatic bind. And finally, on the perspective of hospitals need all their tools in their arsenal to do what’s best for their individual patients in their individual setting. We actually want hospitals to have the opportunity to determine whether mandating with particular exemptions is appropriate for their individual facilities. I don’t think anyone is happy with the threat of the mandate from the federal level, so we might ask for some language in this bill that would say your state law stands until those regulations come out at the federal level where your state law would be preempted anyway so that it’s very clear that your state law exists and is in place and is the law of the land until there is a conflict with federal regulations. Which I don’t want to speak for DHS, but it might actually solve part of his problem. It certainly would solve ours. Don’t forget hospitals with more than 100 employees, which is pretty much every hospital in the state, they’ll have to comply with two federal standards at the same time. We’ll have OSHA standards and the Medicare conditions of participation. And where those two conflict, the federal government makes us take the most strict version. For example, if the OSHA standards do not allow testing for us, if it’s either a mandate or not, a mandate for a vaccination or not, even if the, if the Medicare conditions of participation say vaccine or nothing and OSHA says vaccine or testing, then we have to go with the one that’s the most strict, which would be vaccine or nothing. I’ll be happy to answer any questions that you might have. 

 

Ladyman [00:48:20] Representative Boyd, you’re recognized. 

 

Boyd [00:48:23] Thank you, Mr. Chair. Thank you, Mrs. Tritt, for being here today. You bring up some valid points and concerns, and I appreciate that. I have two questions if you’ll allow me. 

 

Ladyman [00:48:32] Yes, go ahead. 

 

Boyd [00:48:33] So number one is, would you agree that the term vaccination is a– generally means it promotes active immunity and the term immunization would include both a vaccination and a passive immunity, which actually include treatments such as antibody treatment. 

 

Tritt [00:48:52] Right. But look at the language in that particular bill because it looks like you’re talking about the employer. It is the employer who provides treatment to its employees. If you take out that parenthetically, the including vaccination or immunization, and you just read that sentence without that in there, it looks like the only employer you’re catching in your law is the employer that has to treat COVID, which is hospitals. 

 

Boyd [00:49:16] And then secondly, again, I hear you, I understand you on your request about until federal law basically preempts this. I guess, I know you’re here today representing the Health Care Association and you’re not here to give us legal advice, but I guess my question, though, is is my understanding is is if, if we do something contingent on federal law, unless we put a specific date or something that courts have held that our law then was unconstitutional because it was– we did it based on federal law. So if you have any comments that might guide us in that, I would appreciate it. 

 

Tritt [00:49:54] Yes, I would offer, an employer is exempt from complying with this section during any period of time that compliance with this section would result in a violation of regulations or guidance issued by the United States Occupational Health and Safety Administration, the Centers for Medicare and Medicaid Services, or the Centers for Disease Control and Prevention. 

 

Ladyman [00:50:19] Representative Bentley, you’re recognized for a question. 

 

Bentley [00:50:22] Thank you, chairman. Thank you, Jodiane. I know that you’re looking at what’s going on in New York and would you say that in Arkansas, we’re going to have the same situation here? We’d lose– all of a sudden lose 20 percent of our staff at the hospitals, 15 to 20 percent that we would be in the jeopardy they are of shutting down labor and delivery, having to bring the National Guard. So would you agree that if we had the same scenario here in Arkansas, we could see some of the same things that they’re seeing there in New York? We have been very concerned across the board and you know that you’ve been super helpful, especially on some of the nursing things that we’ve done to try to maintain our own workforce and recruit others to take care of the numbers of COVID positive patients. And frankly, right now, the numbers of really sick Arkansans who are not COVID positive but have appropriately put off care for the healthcare system, but maybe not appropriately put off care for their own individual health. So our hospitals are still full, not so much with COVID patients anymore. Those numbers are declining, even though we still have way more than we’d like. So I absolutely agree with you that workforce is paramount and taking care of our people is paramount, which is why, until these regulations come down from the federal government, we’d like our individual hospitals to have the flexibility to determine what is best for the safety of their individual patients. So we’re constantly going to be afraid of the workforce shortage that we have in Arkansas and we’re constantly battling that. We were battling it before COVID and we’re going to keep battling it long after. 

 

Bentley [00:51:51] One quick follow up. 

 

Ladyman [00:51:52] Yes, you’re recognized.

 

Bentley [00:51:53] Would you not agree that keeping as many of your well qualified employees working as possible would be the best thing for the patients that are in that hospital right now? 

 

Tritt [00:52:01] As long as those employees are promoting the best safety possible for those patients, absolutely. And my members would agree. 

 

Bentley [00:52:09] One fast follow up since that was the remark. You know, and these antigens, we’re trying to be very conscious of our– we want Arkansans safe. But there’s ample evidence out there to show that people that have had COVID and have good antibodies that we’ve seen from Israel, that people that get COVID have their immunities are 37 times stronger than someone who gets a vaccine. So we’re not– I don’t think we’re being reckless. Would you agree that we are really looking out for Arkansans and our our people that are working, our working employees in the hospitals where we’re not trying to be unsafe at all with those that are working with those nurses? 

 

Tritt [00:52:43] I know you quite well. I know there’s no way in the world you would want to create an unsafe environment. I know everyone’s trying to do the best they can with the resources we have, which is why hospitals need the flexibility to mandate, if they need to, vaccine or other accommodations to make sure that their patients are the safest they can be.  

 

Ladyman [00:53:02] Rep. Payton. 

 

Payton [00:53:05] Thank you, Mr. Chair, and thank you, Jodiane. And let’s look closer at that language that you’re concerned about in Section 2A and the term treatment. If you look at it there, it does not go without being defined. It says an employer that requires treatment or an employer that is mandated to require treatment, and then it has a clause that says, including without limitation, vaccination or, or immunization. So I mean, they’re defining treatment in this language without limitation. So it could include other things. But it specifically says vaccination or immunization is is what’s being defined as treatment here. 

 

Tritt [00:53:49] Treatments for COVID 19 are monoclonal antibodies. They’re ventilators if you can’t breathe. They’re dexamethasone, and I’m not pronouncing that correctly, which is a steroid that helps your lungs expand and grow. You have a physician here who knows way more about this than I do. Treatment for– treatment and vaccination– treatment for COVID is something once a person has COVID. A vaccination is to prevent a person from getting COVID or prevent a person from getting those symptoms. They are two different things in the medical field and again, you have medical personnel here. I think with a little clarification, we’re not in argument. If your point is to say that you want this to apply to immunizations and vaccinations, that’s totally fine. You can leave your language, including those things, to make it very specific that that’s your intention. But the word treatment likely needs a better definition so that you’re not also pulling in monoclonal antibodies, et cetera. Other employees are not giving– other employers are not giving monoclonal antibodies to their employees. 

 

Payton [00:54:49] I understand. That’s the whole point. An employer that requires. So do we have any employers that are, that we think are going to require those other treatments that you’re naming? 

 

Tritt [00:55:00] Well, we, no. Because most of them can’t. But the way that sentence reads, what that might mean is only an employee who can require– only an employee who can require that treatment is covered in your law. Walmart would not be. 

 

Payton [00:55:17] Well, I would disagree with the, the reading of that sentence. But I do understand your definition of treatment. I just think that it, it is clear in how it defines treatment here or the requirements, which is the subject of the paragraph, the mandate. Thank you. Thank you, Mr. Chair. 

 

Ladyman [00:55:36] Seeing no further questions, thank you for your comments. 

 

Tritt [00:55:39] Thank you for having me, and thank you for your work, committee. 

 

Ladyman [00:55:42] Thank you. Committee, I’m going to take a five minute recess and I’d like to meet with Representative Gray, Gonzalez and Bryant over here for just a few minutes. So we’re going to be on recess for five minutes. 

 

[01:01:51] [Recess]. 

 

Ladyman [01:01:52] Representative Gonzalez, you’re recognized. 

 

Gonzales [01:02:04] Thank you, Mr. Chair. I’d like to make a motion to expunge the vote by which the amendment CRH 272 passed. 

 

Ladyman [01:02:22] Go ahead. 

 

Gonzales [01:02:23] Well, that– you want me to explain my, explain my motion. 

 

Ladyman [01:02:27] Yes, please do. 

 

Gonzales [01:02:28] So there is– seems like there’s consensus around making more, making another amendment or two to this bill and because of the way this will be, have to be engrossed into the bill before we can add any other amendments, it would take a lot longer to do. So if we expunge this vote, expunge this, get this amendment off, we can come back in, hopefully in 30-45 minutes with new amendments and add this back in with new language that we’ve, that we’ve been talking about this morning. 

 

Ladyman [01:03:03] It’s a valid motion. It is debatable. It requires two-thirds majority of the membership, which is 14. Any discussion on the motion? Seeing none, all in favor, well– all in favor signify by saying aye. All opposed nay. Motion carries. So the vote on the amendment is expunged now. Committee, what we’re going to do is we’re going to recess until 9:40 and wait on the amendment. So hopefully that will be back to us by 9:40. So we’re in recess until 9:40. 

 

[01:34:12] [Recess]. 

 

Ladyman [01:34:13] Alright. Committee, if you would, get your seats. We’re going to get back in session here. So the amendment you should have in front of you. Representative Bryant, you recognize to present your amendment. 

 

Bryant [01:34:31] Thank you, Mr. Chair, committee. 

 

Ladyman [01:34:33] Hold on just a second. Representative Gray, you’re recognized. 

 

Gray [01:34:36] Thank you. Just, I guess, a point of clarity. Did we expunge the original amendment already? 

 

Ladyman [01:34:40] Yes, we did. 

 

Gray [01:34:41] OK, thank you. 

 

Ladyman [01:34:42] You’re recognized, Representative Bryant. 

 

Bryant [01:34:45] Thank you, Mr. Chair and committee and members of the public that gave great testimony, good questions. And I think with this amendment, we’ll, we’ll address some of those and maybe some additional concerns from other members. We have, we’ve approached the issue of Page 2, Line 12, employer that requires, there’s mandated to require treatment. And so members were in agreement with testimony that maybe that’s a little not narrowed, you know, is too narrowly defined and may not be accurate. So we changed that to an employer that requires or is mandated to require vaccination or immunization and then deleted, including without limitation vaccination on Lines 13 and 14. So that should clean up that language. I wish y’all had a clean bill and not just the amendment, but should clean up that language. And then down below that, the questions of just saying proof of immunity, we’ve actually added proof of immunity or variants, including, without limitation, presence of antibodies, T cell response or proof of a positive COVID 19 or its variants test. That way, it’s kind of including without limitation and as what tests the physician should use. So hopefully that not only keeps the proof of immunity, as some members thought would be broad enough to capture the future, but it also shows what tests would be available. And then the last change, the original motion to amend this morning that was previously expunged, it’s still in there with this amendment, but we’ve added B, which says in the event that the cost of testing in Subdivision C3A, which is the ARPA or state funding is not available, the cost of testing shall be covered by the employee. That way, the employer is not bearing the cost in the event ARPA or state funds are not available. 

 

Ladyman [01:36:53] All right, any questions from committee? Seeing none, anyone here in the audience wish to speak for or against the bill? Sorry. I’m sorry, the amendment. Seeing none, what’s the will of the committee. I have a motion to adopt. Any discussion on the motion? Seeing none, all in favor signify by saying aye. Those opposed nay. Motion carries. Congratulations, your amendment’s been adopted. You’re recognized to present your bill as amended. 

 

Bryant [01:37:35] The bill is, is now amended to what we previously discussed. There’s no other changes that we’ve obviously added to it. That’s all I have to say. 

 

Ladyman [01:37:47] All right. Any questions from the committee? Seeing none, anyone here in the audience wish to speak for or against the bill? Seeing none, what’s the will of the committee? I have a motion do pass, a do pass as amended. Any discussion on the motion? Rep. Eubanks, you’re recognized. 

 

Eubanks [01:38:12] Thank you, Mr. Chair. I want to thank Representative Bryant for amending this a little more. It’s closer to what I feel like I could, I can deal with. I believe that businesses do have the right to set certain policies and that employees have to work under those policies and businesses have to make decisions that they think is in the best interests of their, of that business. I also understand why people do not want to possibly take the vaccine, and I thought that there ought to be other options available to them that were truly viable. So I, I believe that if somebody has had the, has had COVID and they show that they have antibodies that ought to, that ought to count. At the same time, I felt that if an employee chose not to take the vaccine, had not had COVID that there ought to be a testing option available. But I also felt like that ought to be the responsibility of the employee. Now I know in your amendment you’re stating that if the funds are depleted, then it does, that responsibility falls on on the employee. I just believe that it should have started that way because that’s, that’s, that’s personal responsibility. You’re giving, you’re giving an employee a viable option as to what their choice is and they get to choose that. They’re not being forced to take the vaccine. So we’re closer to where I think it should be. I wish that other language about the state funds available were not in it. So, but I think we’re close. But I don’t think I can vote for it as it is. But thank you for your effort. 

 

Ladyman [01:40:15] Any other discussion? Rep. Bentley, you’re recognized. 

 

Bentley [01:40:24] I just want to applaud you, Rep.Bryant, for the hard work you’ve done in this and everybody coming together. It’s good compromise. It makes for good legislation. So I’m very supportive. We’re looking for individual liberties and for helping our businesses out. I think it’s a great bill. So just fully support it 100 percent. Thank you for your hard work on that and all the others that worked with you. 

 

Ladyman [01:40:42] Any other discussion? Seeing none, the motion on the floor is do pass as amended. All in favor signify by saying aye. Those opposed nay. The ayes have it. Congratulations, your bill is passed. 

 

Bryant [01:40:57] Thank you, committee. 

 

Ladyman [01:40:58] No more business to be considered. We’re adjourned.