July 20: Administrative Rules subcommittee transcript (ALC)

Administrative Rules Subcommittee, Arkansas Legislative Council

July 20, 2022

 

Hammer All right, members, if you’ll find your seat, please. And ladies and gentlemen in the audience, if you’d find your seat. I just want to remind you that those that wish to comment on a rule, if you would, please go ahead and sign in on the sign in sheets down there at the, right in front of the press table, if you would, and be sure to specify the rule on which you wish to be making a comment. And we’ll be taking up sign up sheets, the sign in sheets in just a few minutes, then after that, we won’t allow anybody to sign in after that. First item on the agenda are the reports of the executive subcommittee. You have three reports from the Executive Subcommittee in your packet regarding its approval of emergency rules since our last meeting. And do I have a motion to adopt the reports? Got a motion and a second. All in favor aye. Any opposed? Motion carries. Item C, which are agency updates and outstanding rules. Our next item on the agenda will include updates from those of the agencies that have not completed their rulemaking in accordance with Arkansas Code Annotated 25-15-216 as amended by Act 595 of 2021. As you may recall from last month, the Act provided that if the agency determines that a newly enacted law from the 2021 regular session requires new or amended rules and does not provide a different date, those new and amended rules were to be filed with the Secretary of State on or before June 1, 2022. Under the law, the agencies were required to file their rules with Legislative Council sufficiently in advance of this date so that Legislative Council could consider the rule for approval before the June 1 date. The statute further requires that if the rules were not so filed, the executive head of the agency or his or her designee shall appear before the Administrative Rules Committee to explain why the agency has been, one, unable to comply with the deadline; two, provide an update on the status of the rulemaking; and three, describe the steps being taken by the agency to address its failure to comply with the deadline; and or four, provide an anticipated date for when the final version of the rule will be filed with the Secretary of State. And just as a reminder, while some of the rules may have been filed with us and are in the process, these rules are not being considered for review or approval today. That will occur in the future. Today, we’re just hearing the update on the status of the rulemaking, and we’ll have each agency representative come to the table and provide the update required by the statute. These first agencies will be those that have no other business on today’s agenda. Those that do have rules on the agenda will be heard from at a later time. And so at this time, we’ll go ahead and call up the Department of Ag. If you would please, come to the table. And those representing the Department Ag, if you would please introduce yourself for the record along with your title.

 

Hodge Wade Hodge, chief counsel, Department of Agriculture.

 

Hammer Yes, sir. Go ahead.

 

Hodge Yes, sir. Thank you, Mr. Chairman, members of the committee. This is the Plant Board’s proposed rule to implement the Industrial Hemp Production Act. And as you’ll recall, there was a Supreme Court ruling in 2020 that removed half the Plant Board members. And then it wasn’t until November that we got– I’m sorry, 2021 that we got the Plant Board members reappointed. So we got a little bit of a late start on this rule. But even with that, we had this on the agenda for your review in May. But just shortly before the May date, we heard from some industry representatives that had some issues that we are working with to try to iron out and we’re continuing to work with them. Really hope to be able to present a rule to you next month.

 

Hammer All right. Thank you. Any questions from members? All right. Thank you for presenting today. Department of Commerce. Mr. Rand, if you would, please name and title for the record when you get to the table.

 

Rand Thank you, Mr. Chairman. Booth Rand, general counsel. This is a rule– we, we have issued an emergency rule, Rule 118 last month to implement Act 665 of 2021. We tried unsuccessfully to issue a rule to implement Act 665 twice during the fall and winter of this year. We were unable to get a consensus with the PBM industry and interested parties about data reporting. So we tried again. I filed an emergency rule last month which is implementing Act 665. Yesterday we had a permanent hearing on the rule and we anticipate to be back in front of ALC for approval of a permanent rule in September. So I’ll be glad to answer any questions.

 

Hammer Any questions from members? All right. Thank you for the update.

 

Rand Thank you, Mr. Chair.

 

Hammer Thank you. Department of Education. And if you would, name and title for the record, please.

 

Salas-Ford Courtney Salas-Ford, chief counsel for the Department of Education. The first rules governing the School Safety Act were approved by the governor’s office on June 15, and so those are currently out for public comment. The public comment period ends on July 25. And then upon final approval from our state board, we’ll hopefully be brought back here before committee in September. The next– were there any questions on those?

 

Hammer Yeah. Let’s do this, members. I’m going to let her roll. And if you’ve got a question, just light up the board. Otherwise, I’m just going to let her roll. Okay? Go ahead.

 

Salas-Ford The next one are the rules governing the School Counseling Improvement Act. Act 650 of 2021 gave us the authority to promulgate but did not require rules. And so the division is currently still looking at that and determining whether rules are necessary. We hope to have a final decision made by spring of 2023, and if rules– if we do decide to promulgate rules, we’ll bring them at that time. The division’s rules governing the Succeed Scholarship program were approved for public comment released by our state board on July 14, 2022, and will be next sent to the Governor’s office for approval in accordance with required procedures. And so we hope to have those final and back to ALC later this fall. The division’s rules governing nutrition and physical activity standards and body mass index were approved by the governor’s office on June 10. They are currently out for public comment. I take that back– public comment period ended yesterday. So those will go back to our state board for final approval and, again, hopefully be back here to ALC in September for your approval.

 

Hammer Hang on one second, please. Representative Vaught, is it on this one?

 

Vaught I’m sorry.

 

Hammer That’s okay. Go ahead.

 

Vaught Can you go back to the first one and tell me why we don’t need rules for that?

 

Salas-Ford On the School Counseling Improvement Act?

 

Vaught Yes.

 

Salas-Ford Upon looking and when we started drafting rules, it was determined that there was sufficient information in the law. We do have additional guidance and resources that are out there for school districts, but there was nothing that was an actual additional requirement that we felt news rules were necessary for.

 

Vaught Thank you.

 

Hammer Okay. Go ahead.

 

Salas-Ford And finally, the division’s rules governing professional development. Act 1089 of 2021 did add a professional development requirement for school nurses that we will be including in the rules. However, we are looking at more major revisions to those rules for the professional development for teachers. And so instead of going through the promulgation process twice, we were hoping to just go through it one time. The major revisions are taking longer than expected, but we do still hope to have the final rules brought to ALC early in 2023.

 

Hammer All right.

 

Salas-Ford I’ll be happy to answer any questions.

 

Hammer Members, any questions? All right. Thank you for the update.

 

Salas-Ford Thank you.

 

Hammer Department of Transformation and Shared Services. If you would, please, name and title for the record.

 

Rouse Mitch Rouse, Secretary of the Department of Transformation and Shared Services.

 

Ballard Lauren Ballard, staff attorney for the Department of Transformation and Shared Services.

 

Hammer Okay. Go ahead, please.

 

Rouse All right. So we’ve got two rules out there. The first one is the divisive concepts rule. Public comment period closed Monday. We did not receive any public comments on that. Our goal is to have it to y’all at the next meeting and should be approved in September, I believe. So that’s where that one is.

 

Hammer Hang on a sec.

 

Rouse Sorry.

 

Hammer Is that on this one, Representative Dotson– or Wardlaw?

 

Wardlaw I don’t look anything like Dotson. I’m sorry.

 

Hammer Thank God. Go ahead.

 

Wardlaw I’ve got a motion at the proper time for item 4, which is Department of TSS.

 

Hammer Say that again. I’m sorry. I got distracted. Say it again.

 

Wardlaw I’ve got a motion at the proper time for Item 4a and b at the proper time.

 

Hammer You mind if I let him go ahead and explain b and then I’ll come back to you for your motion?

 

Wardlaw I think it may be, may be better to have the motion first, because my motion is to put this item off to another month. So I wouldn’t want to hear that explanation twice.

 

Hammer All right. You do know that these are just updates, right?

 

Wardlaw I do.

 

Hammer Okay. All right. Let me hear your motion.

 

Wardlaw My motion is we put this off to the September council meeting, items 4a and 4b.

 

Hammer I have a motion to second? Okay. Discussion to the motion? All in favor say aye. Opposed. Okay. Thank you all. All right. Office of Arkansas Lottery. And if you would, please, name and title for the record.  Hey, Brent, push your button there, please. Thank you, sir. There you go. Now you’re good.

 

Standridge Am I good to go now?

 

Hammer Yes, sir.

 

Standridge Okay. Thank you. Good afternoon. I’m Brent Standridge, chief legal counsel for the Office of the Arkansas Lottery. And the particular rule that we were required to implement pursuant to Act 636 of 2021 was to establish the Arkansas Scholarship Lottery Trust Account– Lottery Scholarship Trust Account, and to take money from two other accounts and put them all on that trust account. And all of that was actually done last year, and then there has been an audit of that as well. But the act also charged us with coming up with a rule to basically implement the provisions of the act. And so we have done so. Initially, we’re up under the Department of Finance and Administration, so there was a question, I guess, mainly on my part, as to who would be responsible for, you know, getting the rule through the process. And it ultimately follows with the Lottery because it’s a Lottery rule. So since I was– we’ve actually had the rule drafted for some time since I was here last time. We submitted the rule to the governor’s office. We’ve gotten approval from the governor’s office to go forward with the rule. So it would be our intention to go forward with the rule, get public comment, file it and so forth as we were required to. I’ll also say that we haven’t had any amendments to our rule since 2015. So one of the things that both the director and I have been working on really diligently is to go back and address things in the rules that shouldn’t be there. For example, our rules throughout, our operational rules and also retailer rules, refer to the Arkansas Lottery Commission. As you’re aware, the commission was actually abolished by Legislative act back in 2015, but for whatever reason that did not get addressed by any rules. We’ve got the same rules in place since 2015, so we’re also doing that and we’re also going to be in the process of getting those rules up in front of the committee for approval. So our goal is to have everything, to have, currently the 626– or 636 of 2021 rule, as well as the other rules that we have, before the, before this body in September is our goal. Because then that would give us, you know, enough time, 30 days. I think the August date would be pushing it, but the September date is what we would be shooting for as far as approval of all of our rules that we’re amending right now.

 

Hammer Any questions from members? Okay. Appreciate the update.

 

Standridge Thank you, Senator.

 

Hammer Thank you, sir. All right, members, now we’re going to move on to D. And we do have a little bit of a long agenda. So I would just ask the presenters, if you would, to be as brief, but yet as thorough as possible. And we’re gonna start with the Department of Commerce and State Securities Department. If you all would come forward, please. And if y’all would, please, name and title for the record. If you’ll wait until it turns red. There you go.

 

McLaurin Good afternoon. Campbell McLaurin, Interim Commissioner, Arkansas Securities Department.

 

Tierney Karyn Tierney, Legislative Affairs, Arkansas Securities Department.

 

Hammer Karen, would you pull that a little closer to you, please? Thank you. All right. If you all would, go ahead and present your rule, please. And we’re on–

 

McLaurin Thank you, Mr. Chair and members. We’re here today to request approval of proposed amendments to the rules of the Arkansas Securities Commissioner. The proposed rule amendments contain a continuing education requirement for investment advisor representatives, updated policies and procedures requirements for broker dealers and investment advisors, a modification to the rules concerning advertising by investment advisers, and other general clarifying provisions. The department received one comment during the written comment period. The Department held a public hearing on May 2, and no outside parties attended to make any private or public comment on the proposed rules. We’re happy to take any questions.

 

Hammer Members, have any questions? So without objection, this rule is reviewed and approved. Thank you all.

 

McLaurin Thank you.

 

Hammer And Department of Energy and Environmental Division, please. It’ll be D2. And if you all would, please, name and title for the record when you take your seats.

 

McAlister Good afternoon. Michael McAlister, managing attorney for the Department of Energy and Environment.

 

Pilkington Daniel Pilkington, attorney with the Arkansas Department of Energy and Environment.

 

Hammer Afternoon. If you all would proceed, please.

 

McAlister We’re here for Pollution Control and Ecology Commission Rule 27 and amendments to that rule having to do with the licensing of operators of solid waste management facilities and the training and certification requirements for environmental officers. This amendment to the rule was required to comply with Act 749 and Act 773 of the 2021 session. So this is the final step. We’ve been through the rulemaking, the comments, the promulgation by the Pollution Control and Ecology Commission, and we would appreciate a favorable review.

 

Hammer All right. Any questions from members? Then without objection, the rule is reviewed and approved. Thank you all.

 

McAlister Thank you.

 

Pilkington Thank you.

 

Hammer You’re welcome. Could we have Department of Health, please? If you would, please, name and title for the record.

 

Shue Thank you, Mr. Chair. Members of the committee, I’m Laura Shue. I’m general counsel for the Department of Health.

 

Thompson Charles Thompson, attorney, Department of Health.

 

Smith Craig Smith, attorney for Department of Health.

 

Hammer Okay. We’re on 3A, rules governing the advisory board for interpreters between hearing and individuals, please.

 

Thompson We brought forward the proposed rules for, proposed changes for the rules governing the advisory board for interpreters between hearing individuals and individuals who are deaf, deaf-blind and hard of hearing. Those changes are to enact Act 135 for automatic licensure for military individuals, Act 725 to include the fee waiver, and then some administrative changes regarding deadlines and for renewals to make that more efficient and clear for the members.

 

Hammer All right, do members have any questions? Without objection, the rule is reviewed and approved. Rules for home health agencies?

 

Smith Thank you, Mr. Chair. What you have before you is the proposed rules for the amendments to the home health agencies, the rules governing home health agencies in Arkansas. They were done– the majority of these amendments were done for compliance with Act  817. We did have a number of comments regarding Act 817, some disagreements on the intent of the act. The department went back and reviewed the– reviewed all committees and as well as how the bill was presented on the floor and the testimony thereof. And we determined that we believe that we are correct in our interpretation of Act 817 as presented to the department. I would be– I mean, as presented to the Legislature. I would be happy to take any questions.

 

Hammer Any questions from members? The comment about being able to provide quality care up to 100 miles, could you all maybe make a statement about that or shed any insight on that?

 

Smith We did not– and we did respond to that, Senator Hammer– we did not see the hundred miles as being a health or safety issue. But that is also pursuant to Arkansas General Assembly act. So we didn’t have– there was no discretion there anyway.

 

Hammer Okay. Any questions from members? Then without objection, the rule is reviewed and approved. Massage therapy.

 

Smith Thank you, Mr. Chair. What you have before you are the amendments to the massage therapy rules in Arkansas. The majority of the rule changes were regarding the Earn and Learn Act, adding apprenticeships to a path through apprenticeship for licensure of massage therapists. We did have a number of comments on that. Accordingly, we went back to the Massage Technical Advisory Committee to ensure that we understood their intent and confirmed their intent. But as a result of the questions and result of the robust discussion at MTAC in the public comments, we have added some ad hoc committees to look at maybe some changes in the future regarding the massage therapy rules. We’ve actually already had a couple of those meetings. We have another set of meetings tomorrow. We’re going to be meeting through September to maybe look at another rule revision to come before you all maybe starting next fall. I’d be happy to take any questions.

 

Hammer Any questions from members? Without objection, the rule is reviewed and approved. Let me just make this general comment. Unless somebody signed up to speak against the rules, I’m not going to say that every time. We’re just going to roll on unless there is one. So just for the record. All right, rules pertaining to the State Board of Sanitarians.

 

Shue Thank you, Mr. Chair, members of the committee. This rule is revised pursuant to two acts that were passed during the last session, Acts 135 and 725 dealing with military members and also the Earn and Learn– or excuse me, the Workforce Expansion Act of 2021. We had a public comment period. There were no public comments. We also presented this rule before Public Health and we received no comments. And we would appreciate a good review and approval of this rule.

 

Hammer Any comments or questions from members? Then without objection, the rule is reviewed and approved. Rules pertaining to water operator licensing.

 

Shue Thank you, Mr. Chair, members of the committee. Again, this rule is a similar licensure law dealing with water operator licensing. We revised the rules to conform with the licensure amendments pursuant to Acts 135, 725, and 811 of 2021. We had a public comment period. We received no public comments. We presented the rule before Public Health and received no comments. And we’d appreciate a good review and approval.

 

Hammer Any questions from members? Without objection, the rule is reviewed and approved. And rules for hospices in Arkansas.

 

Smith Thank you, Mr. Chair. What you have before you is the amendment to the rules for hospices in Arkansas. The two items were to ensure that compliance with the tuberculosis provisions for testing that hospices no longer have to test everyone each year. This is consistent with other health care entities in which we regulate. They no longer have to test each year. They just have to follow CDC guidance when it comes to tuberculosis infection control. The other item was ensuring that hospice was in line with the No Patient Left Behind Act. You all had heard and approved the rules for hospitals and critical access hospitals regarding ensuring that the rules reflected the intent of the act and sponsors’ intent. That’s just the same thing with the hospice. Hospice is just, just about a month behind. And so it will reflect consistency across the entities regulated– or an entity subject to the No Patient Left Alone Act. Be happy to take any questions.

 

Hammer And questions from members? Then without objection, the rule is reviewed and approved. Thank you all very much. Next will be the Department of Human Services. And if you would, name and title for the record. And then we’ll go on to ADDT and EIDT transportation services.

 

Weatherton Hey, good afternoon, Melissa– sorry, I almost said my old name– Melissa Weatherton, division Director for Developmental Disabilities Services. I’m here today to talk about rule changes to, particularly in regards to how we pay transportation for providers who own and operate their own fleet of vehicles at early intervention day treatment centers, which is for children with intellectual disabilities and developmental delays, and those providers who run adult developmental day treatment centers who, who serve adults with intellectual disability. Many of those providers own and operate their own van system. If they choose to, we have for years and years been paying them on a methodology called loaded mile, meaning when a child or adult literally loaded onto the van, it was considered to be loaded. And no matter who they picked up, they billed based on that one individual. We know that was an antiquated type of methodology that we’d been looking at with our actuaries for several years. And we are now proposing that we move to a per person, per mileage rate for these providers. That is very consistent with how we pay other transportation brokers through a contract. Other than the transportation rate, which is the major change to these manuals, we did do some cleanup. We worked with providers, adhered to all the public hearing and public comment requirements, received feedback and then did follow up calls with provider associations. I think we are in a very good place. Providers are supportive of this and we worked through their concerns prior to bringing it to you all. So I’m happy to answer any questions.

 

Hammer Representative Ladyman.

 

Ladyman Thank you, Mr. Chairman. This new rule will require providers to have cameras in their vans, is that correct?

 

Weatherton It will.

 

Ladyman Will these providers be given a grace period to install and get these cameras in and operating?

 

Weatherton Yes, we’ve talked about that internally. We have done this in similar other projects, and we’ve allowed six months for providers to get up to speed. And I’ve discussed it with our provider services division and we’re happy to allow that six month window for them to get the cameras installed.

 

Ladyman All right. Thank you.

 

Hammer Any questions from any other members? Just– this is a little bit of a sidebar, so we don’t want to go off the trail too far. In the meeting yesterday that I was attending that you were in, the availability of individuals to transport, are we, are we pretty well blanketed in the state or where are hurting pockets where you don’t have companies that can transport? Just real quick.

 

Weatherton Part of our issue is Medicaid funding can only be used for medical related transportation. We continue to have problems across the state. If a client needs to be transported for something other than a medical appointment– like, for example, if someone wanted to be transported to college that’s even intellectually disabled, Medicaid can’t pay for that. So we– I will say that we do have a problem with just transportation in general if it’s not medical services. And then we continue to keep a very close eye on all of the Medicaid funded transportation to ensure that who we pay is adhering to the contract standards. And Senator Hammer, if I may, since you gave me the floor on this, I apologize on behalf of DHS that we neglected to introduce you yesterday at the council. It was an oversight.

 

Hammer That’s nothing. All right. Any other questions? All right, then without objection, this role is reviewed and approved.

 

Weatherton Thank you.

 

Hammer You’re welcome. All right. We’re going to go on to Item 5. Representative Wardlaw, you have a statement you need to make?

 

Wardlaw Yes, sir. I just wanted to make it clear that I’d be abstaining from the vote on Item 5 due to a potential conflict. No different than any other time I’ve said in here. Just want to make it known. Thank you.

 

Hammer Thank you. Duly noted for the record. Can we get Department of Human Services, Elizabeth Pittman, for the skilled nursing facility payment methodology, please? Oh, you’re there. Okay, name and title for the record, please.

 

Pittman Yes. Yes, sir. Thank you. Elizabeth Pittman, division director for Division of Medical Services.

 

Hammer Go ahead.

 

Pittman Okay. We are here today to present a rule to update the cost report methodology for skilled nursing facilities. We have been working with the Arkansas Health Care Association on this rule over several months, and all of these changes are agreed upon by them. This is the first round of changes and we are– have already started the second round. This rule has not been updated, just so you know, in about 20 years. So these are long overdue. And the majority of these rules are bringing us up to federal cost reimbursement methodology standards. And I’ll quickly go through the changes. There are quite a few of them and I don’t want to take up too much time. But some of them– we did a lot of cleanup– but some of the substantive changes include changing how we pay per bed value. We have traditionally only paid one rate, which is the $56,000 rate there. We are trying to incentivize building private or semi-private rooms with attached bathrooms. And so we’re using a tiered rate approach to incentivize improving the way that nursing homes are built and that residents are housed. That helps with the spread of disease, and in light of COVID, we really think this is an important measure. We’re also dropping the minimum occupancy percentage down to 60% for state fiscal year 2022. And we will slowly raise that back up 5% every year until we reach 75%. Again, this is because of COVID. It helps us to respond to the fact that nursing home occupancy is just very low right now and most nursing homes are having a hard time meeting those minimum occupancies. And we also updated the multiplier to match something that is more more commonly used. And so now we will be using– I can’t remember what it’s called– but we replaced the Moody’s seasoned corporate bond yield. It’s the fair market value methodology is what we’re going to be using. We increased the expense for minor equipment. It had traditionally been $300. We’re going up to $2,500 per item. We are going to monitor this over the next year and see if we need to go up even further. But we weren’t really able to get a good measure of that because we’ve had that $300 threshold for so long. And then, again, we’ve just changed several inflation index and indirect cost indexes just to update them. We’ve allowed for medication assistance to be added. We’ve changed the deadlines for submitting reports so that they’re more favorable for the providers. And like I said, there’s been quite a few clarifying language changes in there just to make things a little more clear. And I’m happy to take any questions. 

 

Hammer Representative Vaught.

 

Vaught Thank you, Mr. Chair. I just want to thank you all. I know it’s something that we’ve been working on for quite a while to try to get these updated and something that’s very much needed in my rural areas. And I appreciate all the hard work that you’ve put in to get this done as quickly as you’ve done it. Thank you.

 

Pittman Thank you.

 

Hammer Any other questions from members? So let me just ask you, getting the rest of it updated, what’s the, what’s your feeling as far as– because I know it is an ongoing task. Have you got any kind of projected expectation out there as far as getting through the rest of them?

 

Pittman So I don’t know the exact timeline. I know those meetings have already started. We’ve brought in a vendor to help us with those new cost based changes and that finance team who’s here, and we can get to that timeline. They’re working with that vendor, the health care association, and within our finance team to try to get the second round going.

 

Hammer Who’s your vendor that you’re working with?

 

Pittman Guidehouse.

 

Hammer Guidehouse. Okay. Do me a favor if you would, and you can send it to staff and we’ll push it out to the rest of committee. If you guys– not that we would hold you 100% to it, but if there could be some sort of guideline as far as reasonable expectation, just so we could track this all the way to the completion, please.

 

Pittman Sure.

 

Hammer All right. Thank you. Any questions from any other members? All right, then without objection, the rule is reviewed and approved.

 

Pittman Thank you.

 

Hammer Thank you. Department Labor and Licensing. It will be for administrative rules of the Board of Electrical Examiners first. If you all would, please, name and title for the record.

 

Moore Lindsay Moore, Code Program manager.

 

Morgan Miles Morgan, associate counsel.

 

Parker Dan Parker. And as of last week, I’m the chief legal counsel for the Department of Labor and Licensing. Our long time chief legal counsel Denise Oxley retired on June the 30. So I look forward to working with everybody.

 

Hammer Very good. If y’all would, please, present.

 

Morgan Yes, thank you, Mr. Chair. With regard to the Board of Electrical Examiners, there were several acts from the 2021 session that impacted the board, required rulemaking. Those included Acts 135, 720, 725, 746, 748. There was other rule amendments that included changes from prior legislative sessions. There was also some grammatical stylistic changes as well. As a result of transformation, and, Mr. Chair, there’s a code update, but that’s Section B. I don’t know if you’d like me to, to proceed with Section B.

 

Hammer Is that the second rule you’re talking about?

 

Morgan Yes.

 

Hammer Let me, let me go ahead and see if there are any questions on this one. Any questions from members? Without objection, this rule is reviewed and approved. Okay. The next one, the National Electrical Code.

 

Morgan Yes, sir. Thank you.

 

Hammer Thank you.

 

Morgan The– this proposed amendment would update the statewide code currently to the 2020 edition of the National Electrical Code. And we’ll be happy to take any questions for that as well.

 

Hammer Any questions from any members? And I got Senator Rice.

 

Rice Thank you. I scanned through some of this a couple of days ago, and all I remembered was the National Electrical Code. I usually have a question. Don’t need you to go into a lot of detail. Is there any big, big changes in this update?

 

Moore It does provide some clarity as far as dealing with solar. We all know that solar is the big boom. They’ve updated some of the codes for, for as far as the installation goes that are important for the life safety aspects as well as the, for the contractors.

 

Rice Is there anything big in here for general contractors, electrical contractors?

 

Moore The only thing in there was one area that we did exempt. It was the arc fault ground breakers for air conditioning.

 

Rice You’re reading my mind.

 

Moore They, they– they’re– just the technology’s not there, in our opinion, for them to be implemented yet.

 

Rice Thank you. Kind of a carryover. Thank you.

 

Hammer Any other questions from any other members? Then without objection, the rule is reviewed and approved. Thank you all.  And Department of Labor Licensing, this is going to be you all, too.

 

Morgan Yes, Mr. Chair. The Elevator Safety Board. Most of these rule changes were mandated by legislative changes in 2021 as well. Other amendments reflected statutory changes from prior sessions, as well as the grammatical and stylistic changes as a result of transformation. The specific acts were 135, 725, and Act 811 of 2021.

 

Hammer That’s on the licensing of elevator mechanics you’re talking about, right?

 

Morgan Yes.

 

Hammer I want to make sure we are on the same one.

 

Morgan Sorry about that.

 

Hammer No, that’s all right. Any questions from members? Without objection, the rule is reviewed and approved. And you have the next one, too, procedures for Arkansas Home Inspector Registration Board.

 

Morgan Yes, Mr. Chair. And our– Ms. Charlotte Bradley, she’s also in attendance today. The director, she’s making her way up. 

 

Hammer Ms. London, if you would, please, name and title from the record, please. 

 

London Charlotte London, administrator for the Home Inspector Registration Board.

 

Hammer Okay, go on and proceed, please.

 

Morgan Thank you, Mr. Chair. These amendments are also primarily a result of enactments in 2019 and 2021. There are a few amendments addressing the stylistic and grammatical changes, as well as repealing obsolete language in the rules. There was one amendment requiring a completion of three home inspections as part of a pre-registration education process. And we’d be happy to take any questions.

 

Hammer Any questions from members? Let me ask you real quick. As far as the licensures being out the door, are y’all, are y’all current on getting the licenses and the applications for the home inspectors? Where do we stand on that? Are y’all current with those, Ms. Longon?

 

London Right now, yes.

 

Hammer You are right now?

 

London Yes.

 

Hammer Okay. Very good. All right. Any of the questions from members? Then without objection, the rule is reviewed and approved. Thank you all.

 

Morgan Thank you, Mr. Chairman.

 

Hammer And Department of Labor Licensing Board Occupation. You all are up again. Or somebody new coming to the table?

 

Morgan Yes, Mr. Crow.

 

Hammer And if you would, please, name and title for the record.

 

Crow Gregory Crow, administrator. Most people call me the director, but I’m administrator of the Arkansas Contractors Licensing.

 

Hammer All right, afternoon. We’re on the Residential Contractors Committee rules creating a process for registration of residential roofers.

 

Crow Yes, sir. Act 1072 of 2021 changed on residential roofers from a license– dropped it from a license to a registration with a bond. The modification to the rules removes any, any reference to residential roofing from a licensing aspect and sets up the bond registration process.

 

Hammer All right. Any questions from members? Without objection, the rule is reviewed and approved. Creating a process for military licensure?

 

Crow We are doing two things. One, we had in the past done rules on military licensure. We’re moving them all to one rule, taking them up from a different location and moving them all to one place, make it easier for the military people to find them. And then we are actually trying to do something we think is better than even the automatic licensure. We’re giving them a temporary license the day the application comes in, even if the application is not complete. And a whole lot of applications are not complete. That gives– they’ll have a license on that day. It’s a 90-day temporary license. We can, we can extend it if we need to.

 

Hammer Any questions from members? Is that privilege just for the military folks or is it applicable to anybody else?

 

Crow That’s just for those military that have a license in another state.

 

Hammer Do you issue temporary licenses for other people? You do, don’t you?

 

Crow Yes, it’s a slightly different process, but, yes, we have, we have a temporary process for everybody.

 

Hammer Questions, members? Without objection, the rule is reviewed and approved. Criminal background checks?

 

Crow Only thing this rule does is take out the reference to the permanently disqualifying offenses that were in the 2019 Act that were taken out in the 2021 Act.

 

Hammer All right. Any questions from members? Without objection, the rule is reviewed and approved. Create a process for fee waiver?

 

Crow That’s an act in compliance with Act 725.

 

Hammer Any questions from members? Without objection, the rule is reviewed and approved. Clean up language?

 

Crow That’s on the commercial side. Removed reference to the word general contractor. That causes confusion. The statute now talks about prime contractors and subcontractors as opposed to general contractor and also clarifies that a construction management can be done by anybody who is within the scope of their license. And then last clean up was there were old references to the Residential Builders Committee, which was the name from 20 years ago. And it’s now called the Residential Contractors Committee. And I just had not caught that before and needed to clean it up.

 

Hammer Okay. Questions from members? Without objection, the rule is reviewed and approved. Bond in lieu of financial statement?

 

Crow This allows contractors to submit– this is on the commercial side– a bond in lieu of a financial statement. It sets out the process for them to do that. A lot of my smaller contractors are loving it. It’s saving them money.

 

Hammer Okay. Any questions, members?  Without objection, the rule is reviewed and approved. Subcontractor, subcontractor registration?

 

Crow Another thing we’ve done to try to be easier on contractors. This allows subcontractors and license contractors to not be licensed, to be registered instead. It’s a much simpler, quicker, easy process, cheaper process.

 

Hammer Questions, members? Without objection, the rule is reviewed and approved. Creating a process for military licensure?

 

Crow Exact same thing from the residential side now on the commercial side. Again, gives them a temporary license the minute they apply even if it’s not complete.

 

Hammer Questions from members? Without objection, the rule is reviewed and approved. Create a process for fee waiver?

 

Crow Again, pursuant to Act 725, fee waiver.

 

Hammer Okay, any questions, members? Representative Cozart. Hang on a sec, my fault.

 

Cozart Thank you, Mr. Chair. Mr. Crow, good to see you again.

 

Crow Yes, sir.

 

Cozart Can you expound a little bit on that fee waiver and what that actually does?

 

Crow So the statute– and all we do is basically parrot the statute. The statute says– and I’m going to have to look at the rules, so forgive me one second.

 

Cozart  Oh, just give it your best guess.

 

Crow The fee, the fee waiver– if you got assistance– say, I don’t know if you got food stamps, if you got Medicaid, if you do unemployment, I think, you get a first year license fee waiver. It’s not for renewals. It’s only for the first year. And it’s– and we’ve actually had– I was surprised we’ve had a few on the residential side. I don’t think we, I don’t think we’ve had any on the commercial side. But we’ve had a few on the residential side who, who have requested and obtained the waiver.

 

Cozart That’s kind of what I thought it was. I just wanted you to remind us and let everybody else know what that actually meant.

 

Crow Yes, sir.

 

Cozart Thank you.

 

Hammer Representative Fortner.

 

Fortner Thank you, Mr. Chairman. If I could back up to A.

 

Crow Yes, sir.

 

Fortner I was reading the description and got lost in my thought. Is this, is this in addition to licensing?

 

Crow No, sir. This is opposed to licensure. So if you– and if you have a license, for example, for a builder or remodeler or anything else, you don’t need this. But if you– we had quite a few people who had a specialty license of just roofing, and this replaces that. So they no longer have a license. They instead have a, a registration. And I will say on the public comment, we only had one public comment on it, and it was very positive.

 

Fortner All right. Thank you.

 

Hammer All right, members, back to I, any questions on the creating a process for waiver fee? Is that for this one, Senator Dismang?

 

Dismang In general. More of a general question, if you want to come back to me, in regards to how this might apply to some other issues that may be happening in towns or communities across the state in regards to licensure. 

 

Hammer You want to, you want to take it? Well, let me– is it on this issue or can I go ahead and– go ahead and ask your question.

 

Dismang Well, I mean, so in general, you’ve had some cities require licensure just for to change out a toilet or to paint a bedroom or to whatever. So this is particularly on rental property. So property owners are not able to perform the most basic of work on their rental properties without having a contractor involved in that. And it specifically, it’s not even residential– like it’s a full blown contractor has to be in charge of the project. And again, I’m saying the paint on the interior of the home has to be done by a contractor. What do we– what is the– I mean, do we need to somehow issue guidance to these cities? Because I think it’s well outside the scope of what we intended? Or how do, how do we rectify that to make it more realistic?

 

Crow I’ve had this issue arise. I don’t know if I want to name cities.

 

Dismang I understand that.

 

Crow But a couple of different– I can think of two in particular, and there’s probably some more. And I have advised the cities what the law is. The law is clear that no license is required by anybody on those type of projects. The homeowner is exempt. The property owner is exempt in those situations, whether it’s commercial or residential. I’ve been told, mind my business.

 

Dismang Fair enough.

 

Crow All I can do is tell the consumers who call me is that, I can tell the cities this. I– you know, and they know what our position is. They– I’ll cite them the law. I’ll send them a letter, an email, a text, a phone call, whatever, any way and every way I can to tell them that they’re wrong. But I don’t control them. So I’m, I’m open to suggestions as to– the law is crystal clear. In my opinion, we don’t need a modification in the law because the law is crystal clear–

 

Dismang Agreed.

 

Crow –that the property owners are exempt.

 

Dismang And I appreciate that. And we’ll circle up again at some point. But, you know, just for– it is, it is an issue that’s arising in some of the cities. And kind of– and it’s their interpretation of our laws is what they fall back on. And even when we provide clarification, they’re not accepting clarification. So but with that, I appreciate it.

 

Crow I will be happy to put something on our website in addition to what’s already there about that issue, whatever, Senator, you’d like me to do. If I can go meet with the mayor of the city, I’ll be happy to. They usually won’t take my meeting when I, when I request it.

 

Hammer I bet they will now. Senator Rice.

 

Rice I just have a quick question back on A before Mr. Crow gets away from the table. 

 

Hammer Say again, I’m sorry.

 

Rice I have a quick question on A before Mr. Crow gets away from the table.

 

Hammer Okay. Well, we’ll finish up and I’ll come back to you before he gets away from the table. All right. Any questions on it? Without objection, the rule is reviewed and approved. J, eliminates reference to permanently disqualifying offenses.

 

Crow Yes, sir. That’s all that does.

 

Hammer Go ahead.

 

Crow It just eliminates the, the rules that we adopted after the 2019 session referred to a permanent disqualifying offense which was removed by legislation in 2021. So that removes that reference.

 

Hammer Okay. Any questions from members? Without objection, the rule is reviewed and approved. Senator Rice, you are recognized, sir.

 

Rice Yeah. Mr. Crow, back on A on the roofers. What is the penalty for not having the license, on roofers now?

 

Crow The same penalty for not having a license is not having it a registration is up to $400 a day for every day of activity. Again, we don’t hardly ever– if someone, someone just makes a mistake, they either just get a slap on the wrist or a warning. But they, if they’re continuing to get them– on these, we, we almost exclusively deal with consumer complaints. We hardly ever go out and just find somebody who doesn’t have a license.

 

Rice  I just want to be able to answer that question. Thanks very much.

 

Crow Yes, $400 a day for each day of activity is the max. We don’t– we try not to do that ever.

 

Rice Thank you.

 

Hammer Representative Dotson.

 

Dotson Thank you, Mr. Chair. The registration fee, how long is that registration good for?

 

Crow One year.

 

Dotson One year. And you said it replaced the license?

 

Crow Yes, sir.

 

Dotson What was the license fee?

 

Crow The licensing fee for, for the initial application was $50 and then renewals were $25. So we purposely set this lower.

 

Dotson So it actually went down?

 

Crow Yes, sir.

 

Dotson All right. Thank you.

 

Hammer All right. Any, any other questions for these gentlemen? Okay. Thank you all for being here today.

 

Crow Thank you,sir.

 

Hammer And we got the Department of Public Safety, Cody Hiland. Cody, if you would, please, name and title for the record.

 

Hiland Good afternoon, Mr. Chairman. Cody Hiland, chief legal counsel for the Department of Public Safety.

 

Hammer Okay, go ahead, please. And it’s the Law Enforcement Family Relief Trust Fund.

 

Hiland Yes, sir. Pursuant to Act 765 of 2021, the Law Enforcement Family Relief Checkoff Program and the Law Enforcement Family Relief Trust Fund were created. These rules establish eligibility criteria, requirements to allow for implementation of those programs that are going to be very nice support for law enforcement and is yet another manifestation of this General Assembly that they care about the people out there putting their lives on the line for us. So we very much appreciate it.

 

Hammer All right, Representative Berry.

 

Berry Thank you, Senator Hammer. And Mr. Hiland, I appreciate your support in getting– I know we’ve gone through this a few times until we got it right, but I appreciate the support. And, you know, this is a great opportunity to use resources to mitigate some of the challenges that family members have after the loss of a loved one. With that being said, we lost a loved one Sunday, a police officer from Jonesboro in training with ALETA. And it’s pretty disturbing in my mind. I have a, quite a bit of experience with heat related injuries and how to prevent heat related injuries on the battlefield and in training. And there is absolutely no excuse for a heat related casualty in a training environment, especially when the Department of Health has excessive heat warnings all over the state for several weeks. It is a duty and responsibility of leadership and supervision to make sure that they protect anybody– officers, soldiers, airmen, whoever– in a training environment. And in this situation, this was not done. And we lost an officer. Another officer had to get transported by EMS to the hospital because of the excessive heat. And I just, I don’t think that the instructors used a risk management assessment to determine whether these officers should be out in a hot environment on Sunday in training, especially after warnings from the Health Department. So my questions are, one, what has the secretary done at this point to prevent the potential for heat related casualties to occur in the future in a training environment?

 

Hiland Do you want me to answer the first one or do you want me to wait for your second one?

 

Berry You can go ahead and answer that one.

 

Hiland Well, I guess I’m curious, Representative Berry, how do you know how he passed away when we haven’t heard from the crime lab? Have you heard from the crime lab as to what the cause of death was?

 

Berry Well, we’ll get to that here in a minute.

 

Hiland No, I mean, no–

 

Berry Counselor.

 

Hammer Stop, stop, stop, please. Cody, Mr Hiland, turn off the mic to your left, would you, please? Thank you,sir. Representative Berry, it’s typical that a person at the table would not ask a question back to the committee. But let me, let me handle it this way. Let’s back up. Representative Berry, would you restate your question, please, to Mr. Hiland?

 

Berry Mr. Hiland, what has the secretary done to prevent any heat related casualties like the fatality that happened Sunday in a training environment?

 

Hiland Representative Berry, there are multiple health precautions taken. In fact, there was an ambulance on site prior to that. The health of the people that go through these training exercises are of utmost concern to the leadership of the Department of Public Safety and ALETA. And there again, I can’t speak to exactly what happened because I don’t know. I don’t have that information. But at the end of the day, accidents happen. And if accidents can be prevented, then we need to do everything we can to prevent them. But I’m uncomfortable, Mr. Chairman, answering a question about facts that I have no knowledge of.

 

Hammer Very good. All right. Stop right there. Representative Berry, do you have a follow up question?

 

Berry One final question, Mr. Chairman. Thank you. Can you provide me with what training that the instructors of the Central Arkansas Law Enforcement Training Academy has had to prevent heat related casualties?

 

Hiland Yeah, we can provide that information.

 

Berry Thank you. Thank you, Mr Chairman.

 

Hammer If you’ll provide that to staff, please, Mr. Hiland, we’ll pass it out to the committee.  Any other questions on this item? I’m sorry, Representative Cavenaugh.

 

Cavenaugh And this is really for you, Mr. Chair. And my concern is also what happened, because I represent Jonesboro. I would like to ask that, since the gentleman here doesn’t have any of the answers for what we’re asking, if we can request that Secretary Cook be here tomorrow so that we can ask these questions.

 

Hammer I think that for the purpose of what this committee is here for, that we are going to take care of the one item that is on the agenda that’s within our, for lack of better term, jurisdiction as a committee. And I would suggest, Representative Cavenaugh, you speak to the chairs of ALC and make that request to them. You’re welcome. Any other questions regarding the rule before us? Then without objection, the rule is reviewed. Thank you. Item 11. Regional Solid Waste Management, please. Good afternoon. If you all would, please, name and title for the record. And if you’ll push it. When it’s red, it is live.

 

Dunn Good afternoon. Tiffany Dunn, executive director for the Saline County Solid Waste Management District.

 

Gibson Mr. Chairman, members of the committee, Sam Gibson, attorney for the Saline County Regional Solid Waste Management District Board.

 

Hammer Good afternoon. If you would, please present your rule on the requirements for solid waste hauler licensing and vehicle permits, please.

 

Gibson What we’re presenting today is an amendment to our existing rule because of some changes in what’s available through the Department of Finance. We have amended our requirements so that solid waste haulers are required only to prove that they have been issued a sales tax permit rather than the good standing letter that was required previously. This will make the licensing process less burdensome on the haulers and a little bit more prompt to complete each year.

 

Hammer All right. Any questions from members? All right. Then without objection, the rule is reviewed. Appreciate it.

 

Gibson Thank you, sir.

 

Hammer Thank you all very much. Good to see you in from Saline County. All right. All right. Our next item, E, we have some rules recommending an expedited process and procedure for occupational licensure of uniformed service members, veterans and their spouses pursuant to Act 135 of 2021. This is the preliminary review prior to the public comment period. Rules will be, will return to the subcommittee for review and approval after the public comment period expires. And will someone with the agency please come up and introduce yourself for the record and explain the proposed rule? The Department of Health. Afternoon. If you would, name and title from the record, please, sir.

 

Gilmore  Matt Gilmore, Department of Health.

 

Hammer Go ahead, Matt.

 

Gilmore Thank you, Mr. Chair. I’m here for the Board of Dental Examiners of the Department of Health. They are requesting to do expedited military licensure instead of automatic and just asking for that permission for them to proceed and move forward with their public comment and written rule.

 

Hammer Are there any questions from members? All right. Then without objection, this rule is reviewed. Thank you.

 

Gilmore Thank you.

 

Hammer We’ll now hear from the remainder of the agency updates on outstanding rules. Some of the rules we’ve just heard were considered outstanding, so we wanted to allow those agencies the opportunity to have those heard before providing their updates on the status of the rule making. And if we could get the following to come up, please. Department of Energy and Environmental. And if you all ladies would, please, name me title for the record.

 

Link Good afternoon, Mr. Chairman. My name is Julie Link. I’m the chief administrator of the Environment for the State of Arkansas, and I have the pleasure of having our legal intern, Hannah Kiley, who today is her first day in the Capitol ever. She’s a student, just finished her first year of law school at the University of Arkansas. And we’re here to answer any questions you might have.

 

Hammer Very good. Welcome this afternoon. Any questions from members? Okay. Thank you for your appearance today.

 

Link Thank you.

 

Hammer That’s probably as easy as it’s going to get, by the way. So. All right. Department of Finance and Administration. And if you would, please, name and title for the record.

 

Smith Thank you, Mr. Chair. Alicia Austin Smith with DFA. I’m the senior counsel.

 

Hammer Okay, if you would proceed. I’ve got the Law Enforcement Family Relief Trust Fund, right?

 

Smith Yes, sir. That is the same rule that was on the earlier agenda as D10A. So it is anticipated that that rule will be filed with the Secretary of State for adoption as soon as it’s receiving full approval.

 

Hammer All right, thank you. And members, any questions? And just a brief explanation, because of the way the law was written and the way it had to be applied, we did this in this order because these have been heard, but because they kind of fell in a gap area. That’s why we’re having to do it this way. Just a brief explanation. All right. How about the next one, please?

 

Smith Yes sir. The rules pursuant to Act 970, it creates a sales and use tax exemption for water used by a poultry farm. We had our public comment period meeting last week. We did not receive any comments. The public comment period has ended this week, so we are submitting the rule to the subcommittee and hope to be on next month’s agenda.

 

Hammer All right. Any questions? Thank you for being here.

 

Smith Thank you.

 

Hammer You’re welcome. Department of Health, please.  Matt, go ahead.

 

Gilmore Matt Gilmore, Department of Health. You just heard a second or two ago about the dental examiner’s board. They are moving forward. They had had their rules promulgated, were moving forward in the right direction early on. We’re working with a couple other boards on some language for other acts that might impact theirs. Were ready to go to public comment, got some more feedback on some comments. So they have pulled the rules back. So there’s been a delay, but they are moving forward. Hope to have this to this committee in August.

 

Hammer Okay. Any questions, members? All right. Thank you. Next one.

 

Gilmore The board of examiners of speech language pathology. They started their promulgation process early on in the process after the last session, did a lot of cleanup around speech pathologist assistance. Getting that right, had lots of stakeholder meetings that delayed things. But they are moving forward. They hope– they presented their changes to the Public Health committee last month, or actually this month, I should say. They will be in this committee next month if all goes as planned.

 

Hammer Any questions, members? All right. Thank you. Next one.

 

Gilmore The state medical board had numerous acts. Several of the changes they were looking at coincided with other boards, the language they were making with their acts that they were doing with their rules. They have reached consensus on most of those with stakeholders and public comment. Hope to have all those in this committee in August.

 

Hammer Any questions, members? All right. Thank you. Next one.

 

Gilmore And the next one, the full independent practice committee. You should hear that one shortly. I think we will– that will be an update for that one, if that’s okay.

 

Hammer All right. Thank you. Any questions, members? Thank you.

 

Gilmore Thank you.

 

Hammer You’re welcome. Department of Health. Laura Shue. If y’all would, name and title for the record, please.

 

Shue Thank you, Mr. Chair, members of the committee. I’m Laura Shue. I’m general counsel for the Department of Health.

 

Thompson Thank you, Mr. Chair. Charles Thompson, attorney for the Arkansas Department of Health.

 

Hammer Go ahead.

 

Shue Thank you. We have 10 remaining rules under item 4. The first six under A, B, C, D, E and F were presented today and reviewed and approved. They deal with home health, hospice interpreters, massage therapy, sanitarians and water operators. If they’re approved by ALC tomorrow, as expected, we can file the final rule with the Secretary of State.

 

Hammer Any questions, members? Okay, B.

 

Shue That was a report for A through F.

 

Hammer I’m sorry. My bad. Okay. Any questions there, members? Okay. G

 

Shue Looking to G, we have the rules governing medical marijuana registration, testing and labeling. This particular rule has gone through extensive revisions after public comments. It is still pending. There is also a court case that has a pending motion to dismiss in Pulaski County Circuit Court that we’re monitoring. And we hope to have amendments once the court case is decided.

 

Hammer Any questions, members? H?

 

Shue Looking to H, the rules for abortion facilities. We had several public comments on that prior to the Dobbs ruling in June of this year. We are still looking at the rules with regard to the licensing aspect of the facilities. There are still several reporting requirements for those facilities and so we are revising those rules according to the recent case and the current state of the law.

 

Hammer Any questions, members? I?

 

Shue Looking to I, we have the rules for cosmetology, body art, permanent and semi-permanent cosmetics. We have spoken with the sponsor of the act that affected this rule of Act 900, and we have worked with several stakeholders to get the revisions in agreement and a consensus with the stakeholders. We have revisions and hope to continue to move forward and hopefully will have a final rule this fall or winter.

 

Hammer J– or questions, members? J.

 

Shue And finally, the rules for volunteer health are going to be presented to the Board of Health next Thursday, July 28. They will be presented to the board, hopefully reviewed and approved, and the governor’s office will receive their information on those rules. And hopefully we can move forward with the Administrative Procedure Act after that.

 

Hammer Any questions, members? All right. Thank you all.

 

Shue Thank you.

 

Hammer All right. Department of Labor and Licensing.

 

Morgan Thank you, Mr. Chair. Miles Morgan, associate counsel, Department of Labor and Licensing. Items A, B, C and D, with regard to the Electrical Examiner’s Elevator Safety Board, Home Inspector Registration Board and Contractors Licensing Board, those have been reviewed and approved today. And Mr. Chair, with regard to the State Athletic Commission, the public comment period ended July 1. The rules that we anticipate being on the August agenda, Towing Recovery Board, that public comment period ends August 5. And we anticipate that being on the September agenda.

 

Hammer Any questions, members? All right. Thank you.

 

Morgan Thank you, Mr. Chairman.

 

Hammer Department of Public Safety. Cody, name and title for the record, please.

 

Hiland Cody Hiland, chief legal counsel for Department of Public Safety.

 

Hammer All right. Go ahead, Cody.

 

Hiland  Senator, Mr. Chairman, the, the rules were just voted on, just voted out earlier. Same rule.

 

Hammer Okay. Any questions, members? All right. Thank you. Appreciate it. Item G. Next Item will be the July monthly– all right. Okay. Next item will be the July monthly written update pursuant to Act 595 of 2021. These updates are for the agencies regarding the status of the rulemaking implementing 2021 and 2022 legislation and are in your packets. These updates are for those agencies who have a later deadline for the rules than June 1. So they have more time. Any questions? Seeing no objection, we’re going to file the July monthly updates. Next, need to take up the supplemental agenda, if you would, please. And if those that are here to present the rule will come forward. Hold on a second, if you would.  Members, let me tell you what’s going on. This is a rule that was heard previously. It’s been through the public comment. It was– I think we’ll find out in a minute– actually restored to what it was. And just for the record, without objection, we’re going to take this up for discussion at this time. Any objection? All right. No objection noted. You all proceed for name and title for the record, please.

 

Tedford Sue Tedford, director of the Board of Nursing.

 

Dawson David Dawson, general counsel for the Board of Nursing.

 

Embree Amy Embree, director of the State Medical Board.

 

Hammer Okay. If you would, please proceed.

 

Tedford Thank you, Mr. Chairman and Committee. As Senator Hammer said, we have been here last month with these rules. These are related to the full independent practice committee, practice for APRNs. There were some concerns last month related to parts of the proposed rules where qualifications did not align with the statute. So we took the rules back. We’ve done some revision with some assistance from several of our legislators. And if you’ll look on Section 3, qualifications for full independent practice. The changes we made were A2, we changed the letters of references from– it was originally three. We changed it to one. Now it’s two. We took out number 5, the notarized affidavit from the nurse practitioner. And we revised number 6, which was the greatest concern of not matching the statute. And it is now the new number 5. It requires the affidavit to come from the, the collaborating physician. And if that is not possible–

 

Hammer Ms. Tedford, let me interrupt you for a quick second. Members, what you have will be a hard copy, but there– you might want to look at the paper clip on the agenda on your laptop for, for a deeper dive for the rule. Okay. Go ahead.

 

Tedford Okay. And then number 5 just outlines the changes that we made that aligned with the statute.

 

Hammer Okay. That it?

 

Tedford Yes, sir.

 

Hammer All right. Any questions from members? All right, Representative Dotson.

 

Dotson Thank you, Mr. Chair. So, looking through here, the, the changes from the last month, the revised copy that we have here, the ones– made it kind of confusing. What’s in red is deleted?

 

Tedford Correct.

 

Dotson And then you rewrote Section 5, and that’s all new?

 

Tedford Okay. The red number 6 that is struck through–

 

Dotson Yeah.

 

Tedford –was rewritten and is the new number 5 that is blue.

 

Dotson And then you added a number 6 after that that wasn’t part of the–

 

Tedford Yes. That has always been a part of it. It may have been a different number in the previous one, but that’s the way the numbers fell now. But that– submission of any of the relevant documents requested by the committee in support of the application has been a part of this document since the creation of the proposed rules.

 

Dotson And if I recall, the– at least the part of the rule that I recall from last month ended at the end of the red struck out part. Have you added the renewal in Section 4, the fees, and is all of that new?

 

Tedford No. That was there too.

 

Dotson That was there?

 

Tedford Yes, sir.

 

Dotson I must have missed that last month. All right, I’ll keep looking through it. I can’t find the copy from last month yet, so I’m just trying to compare them. Thank you.

 

Hammer Any other questions from members? Senator Irvin?

 

Irvin Sorry, I just stepped out. Are we approving?

 

Hammer It’ll be– I’m not saying it. But it will be, without objection, the rule will be reviewed and approved at the appropriate time.

 

Irvin Okay.

 

Hammer We’re not there yet. I’m taking questions.

 

Irvin Oh, I see, I see. And I apologize. I stepped out. But could you just for my– I guess, you know, we were all in this room, and we kind of discussed those different changes. And is there anything that– I just– on the B part of that section where it says, you know, if they cannot get the certified affidavit from the collaborating physician, is there anything that creates a loophole to where they could just automatically go from B instead of going through the A?

 

Tedford Well, the if you’ll look at in blue, the 5B(2), the burden shall be on the nurse practitioner to provide sufficient evidence to support the nurse practitioner’s inability to obtain an affidavit from the collaborating physician. So it will be up to the committee to determine what sufficient evidence is. So I would assume the committee would not allow something to slip through with a loophole.

 

Irvin But as– so, a quick question, who would be the members of the committee? Would there be a physician?

 

Tedford The committee has been appointed by the governor. There are four physicians on the committee and four APRNs on the committee.

 

Irvin Okay. So, so they would be familiar with what type of evidence that might need to be sufficient or asked for or whatever?

 

Tedford Yes.

 

Irvin Okay. Okay.

 

Hammer Representative Dotson.

 

Dotson Thank you, Mr. Chair. So looking through here– and I’m sorry if I haven’t found it and it’s in this new Section 5– you no longer have to have a notarized affidavit attesting to the number? Is that–

 

Tedford Not– in the rule, it does not require the affidavit like we originally had. However, in the application for full independent practice, there is a question that the nurse attests to that they have the number of hours. And it is a legal attestation.

 

Dotson Okay. But that’s, that’s no longer– that, that part wasn’t translated over. That’s a part that’s missing from last month’s rule.

 

Tedford Correct.

 

Dotson Okay.

 

Hammer Senator Irvin.

 

Irvin So just– could you go down your– sorry, I’m over here. Can you go down your line of thinking as to why you changed that? I mean, the reason I’m asking is kind of, we all met about this. And we kind of came to a resolution. And so when I come in today, I’m expecting it to be what we left it at when we all made an agreement and then a resolution was just to put back in what was stricken and just to put it right back into the rule. And so then today I come in and it’s different than what I thought we had all agreed to. So I just would like to know kind of your– why. Because that becomes problematic when, when we have a group of people that meet about something and we all come to an agreement and then we leave that agreement and it comes back to us that’s different than what we just, we just said we were good with the rule as it was. And you struck all this, just put it all back in with some typos changed, then what happened? And what happened? And why wouldn’t that same group of people come be notified, at least, and had the opportunity to review it until right now?

 

Tedford Unfortunately, I was not in the meeting with– when all of y’all got together on that Friday and made an agreement. And this is the way it was proposed back to the committee is what the– y’all, that group that met– this was what we were told y’all agreed to. So we did not question that.

 

Irvin No, no. We, we all were super clear. Even you were here that day, and we just said we– and we told you that day we wanted to just put everything back in that was, that was struck. Y’all struck all this language from the original rule. We wanted just, y’all to put it right back in to restore the rule. And then that was kind of what we left it at. And then today we have something different. And so I just think you need to explain. Like, that group of us legislators who were very involved with that, we could have– it would have been nice to say, Hey, let me just call everybody back in here. This is kind of where we’re at. This is the process we went through. This is what we found. Because, to me, and I’m trying to be fair because, you know, I thought that’s what I was going to be coming back to seeing. And that’s not what I’m seeing. So, just need to have an explanation of it. That’s all.

 

Hammer Matt, do you want to introduce yourself for the record, please?

 

Gilmore Matt Gilmore, Department of Health.

 

Hammer Okay. You’ve heard the comments. You look like you’ve got something you want to say.

 

Gilmore I was in the– there was a meeting after last Rules Committee– or, excuse, me before ALC of last month. And we were, we were handed a markup line through what was requested to be put back in. I had some conversations with members. We worked with the committees, assigned an AG attorney. There was suggestions on some cleanup as to the way this was originally written to make it read more clear. And I think that the committee and the AG attorney that helped write this with Ms. Tedford and Ms. Emery, I think we were on the understanding this was the– this was the same thing that was up there above it. It was lined through, down below, maybe worded slightly different, but I think it was for consistency was my understanding. And that’s, that’s where we– I mean, the committee has reviewed it. They worked with the AG attorney. I think we had– under the, under the impression this was– you know, it would be helpful the way this was written. And I don’t know what else to say at this point.

 

Irvin Mr. Chair, thank you for the latitude. I mean, just for me, for my purpose, I appreciate that very much. And I know this puts you all in a bad position. It just goes to communication. I mean, communication and having professionalism with one another, not with you all, but even with within ourselves. Right? And so there was a group of us, you know, that met and discussed and agreed and talked about it to try to kind of figure it out together so that it would be consistent with the law that was passed. And we kind of walked out of that room and said, yeah, this makes sense to all of us. And then, you know, it changed. It’s just a matter of just collegiality and in saying, we’re trying to work on this collaboratively and together so that we don’t get blindsided when we come in not knowing that, you know, that something else transpired or somebody else brought into the conversation. Because it just, you know, then it just kind of morphs and then you catch people off guard. And that’s just not helpful in the rulemaking process when you kind of have an agreement and you leave the room with an agreement and then it’s changed. And that’s not on y’all, I don’t think. I think that’s just the process. But we, we got to stick to that type of a– we got to stick to that, in my opinion. Or you bring back that same group of people and go, what do you think about this, are you good with this?

 

Hammer Any response?

 

Gilmore I would agree. I think that, you know, we, we’ve tried to– I think it was poorly– I shouldn’t use the word poorly. I think it could have been cleaned up slightly from what was originally in there. I think that those changes were done in good faith trying to make it as clear as possible. I don’t think there’s any major changes from what was stricken originally. I know it’s a different format, maybe a little harder to follow, but I think it would be easier for the licensee to understand what’s required. And I think that the committee understands this body’s directive and intent to, you know, hold these licensees to the, to the standard set forth in the statute and required to be an independent practicing APRN.

 

Hammer Okay. Going to Representative Johnson, Lee Johnson.

 

L Johnson Thank you, Mr. Chair. And some of this may be on me. You know, the question I would have is the markup that we walked out of, some of that markup was in conflict with the statute. That was my understanding of the way the markup was written. There were some things in the markup that were trying to address an out of state APRN coming to the state and trying to address the issue of whether they practiced collaboratively or not. And there was some wording in there about if they came from a state that wasn’t it collaborative. The statute is pretty clear, am I correct, that there is no pathway for anyone from out of state to come and practice? And so any language in that markup reflecting out of state people coming to the state couldn’t be included in the rule. And so any rephrasing of that markup was intended to strike that language that couldn’t be in the rule. The content of what we have should be consistent with what we left in the committee, with, with the only exception being the wording about out of state APRNs. Because they’re just– that’s, in my opinion, and I, you know, helped craft the legislation, it was a flaw in the legislation. We should have done better writing that legislation to allow for out of state caveats. We just didn’t. And so there can’t be anything in the rules, it would be my understanding, that would create any sort of pathway for an out-of-state person to come into state unless they’re coming from a state with the collaborative agreement. Is that correct?

 

Gilmore Yes, that’s correct. That would have to be changed legislatively.

 

Hammer Are you done, Representative Johnson? We’re going to go to Representative Dotson next.

 

Dotson Thank you, Mr. Chair. Thank you for bringing this back. And I’ve looked through it now, both last month’s version and this month’s version. And, and I think from, from what we were, we were thinking it would be real simple to just put all the red back in, fix the typos, and you’d have a clean rule and we wouldn’t be having this long discussion. So just thinking for the future, if you make it as simplistic as possible, it might not get to this complication level. But I’ve gone back and looked at both of these with the exception of the– I had never heard going from to two letters versus the one letter or the three letters. And I don’t know what the, the mentality of us switching that piece of it around is. But other than that, the, the Section 6 or the– was it the new Section 5 of the, the rule does appear to do everything of putting back the red that we were talking about. And so, I mean, I’m completely fine with it the way it is. I think you’ve accomplished the intent of what that meeting was and probably did make it a little bit more clear for the general public. So that, that that listed Section 3A-4 stuff that was part of the original red that just needed clarification, you seem to have accomplished that. So I’m in support of the rule as is. Thank you.

 

Hammer Senator Irvin

 

Irvin And this could be a question for Representative Johnson, actually. But my understanding, though, was that they needed the– I mean, right now, if you’re in the state of Arkansas, you do have a collaborative agreement. Right? So if you– so why would you need the other pathway under subsection B of the other evidence? And is it just because of maybe perhaps military or– 

 

Hammer What the Chair is going to allow, Senator Johnson, I’m gonna light you up and y’all have a dialogue. And I’ll let it go straight between the two of you. Okay.

 

L Johnson Thank you. Thank you, Mr. Chair. Yeah. So the way we– the markup that we were trying to get back to them was– had some– my memory of that markup, but I can’t find it in my phone right now, but my memory was it was trying to create caveats for people that practice in a state that didn’t have a collaborative agreement. The way the rule reads now, you know, you can only come– you can only get– you can only apply for independent practice authority if you’ve practiced 6,240 hours under a collaborative agreement. If you’re coming from a state that doesn’t have a collaborative practice agreement, the only pathway for you to apply would be to come to Arkansas, practice for 6,240 hours under a collaborative agreement, get an affidavit from your physician saying you had done that. There is no other pathway. So the only pathway to apply, the way I understand this rule and the way the intent of the legislation is now as it stands is, you have to practice under a collaborative agreement for 6,240 hours, either in Arkansas or in a state that has a collaborative practice agreement caveat. The other evidence that they’re talking about is more about if, if the collaborative physician’s dead. So, we had to try to include some language in there in case the physician was passed away that you worked with. So the other things they’re asking for–

 

Irvin Right. But it’s– so, so thank you for the latitude. But it’s– so you have to have an affidavit from that collaborating physician. But you’re saying that the, the other evidence is only if the collaborating physician is passed away. But there should be, there’s other things in the B section of that rule.

 

L Johnson But there’s also the number 6, which is any other evidence the committee wants to ask for. So, so the minimum is you have to have an affidavit from your collaborative physician attesting to your hours or, in the event that your collaboration practice physician is dead, you have to have these other things and anything else the committee wants to ask for in regard of evidence. That’s the way I understand the rule to be written.

 

Irvin Okay. I just want to make sure that there’s not two separate pathways, where one is an affidavit from a collaborating physician, the other one is if they’ve deceased or if you just can’t find them. Does that make– like, I just want to make sure the language is tight enough to where it’s not just, you can’t find, quote, unquote, can’t find that person.

 

L Johnson Yeah, it just says, okay. So in the event that he has died, disabled– yeah, so there are– if you can’t get the affidavit, there would be two pathways, all of which would require some kind of proof that you did the 6,240 hours. One would be a physician who you collaborated with is available and they give you the affidavit. One is the physician’s unavailable, in which case you have to provide this other evidence. And the, you know, the burden– it says the burden shall be on the nurse practitioner to provide sufficient evidence. It’s up to the committee to decide when sufficient evidence has been obtained.

 

Irvin Yeah. And that was the part that concerned me, just to be frank. Just because, you know, it’s the definition of that if they’re available or not. I mean, I understand if they’re deceased. They’re not available. But it’s also– so I just want to make sure we’re tight in that. So it’s not, well, that’s– I don’t want to– you know, I just want to make sure that language is tight enough. That’s, that’s all. There could be rules. There can be improvements. I think I agree there could be improvements with all of this that needs to be made. But thank you for the clarification.

 

L Johnson Okay. 

 

Hammer Any other questions? Would you name off who’s on the committee? Do you, do you have that on top of your head real quick? Just hit the hot spots.

 

Tedford Okay. Dr. Julia Ponder, APRN. Dr. Darlene Bird, APRN. Dr. Mark Foster, APRN. And Dr. Leoni de Klerk, APRN.

 

Embree Dr. Mitzi Schoetan. She is at Jonesboro.

 

Hammer M.D., right?

 

Embree I’m sorry?

 

Hammer M.D., right?

 

Embree Yes, M.D. All the physicians are M.D.s. I’m sorry. I have my list in the notebook.

 

Hammer That’s fine.

 

Embree Dr. William Hawkins. He is–

 

Hammer That’s good. One of the other points is the committee has the latitude to ask for whatever they want, if there is not– and this rule in no way prohibits the committee from asking for anything in order to get to a comfort level in order to grant the full practice authority. Is that a fair and accurate statement?

 

Tedford That’s very accurate. The committee is going to have to be careful. Whatever the nurse proposes, the committee may say this is not enough, go back, find more. And until they’re satisfied, they will not be granted full independent practice.

 

Hammer All right. Representative Johnson.

 

L Johnson Yeah, I have one more question. So just for clarification, we keep records of nurse practitioners and who they’re collaborating with, correct?

 

Tedford Yes.

 

L Johnson So we know, in the state of Arkansas if a nurse practitioner has a collaborative agreement with a physician, we know who that physician is. We know what time period they’ve collaborated with that physician. That’s all verifiable and on record for the committee to access. So if there is a question, has the physician relocated, is he in state, is he out of state, all that stuff is there for the committee to verify through the records that we already regularly keep. Is that correct?

 

Tedford That is correct, sir.

 

L Johnson So then if, again, the latitude there, you know, so if someone were to say, hey, Dr. Jones, I just can’t find him, I’ve been trying to find him. We can tell whether he’s still licensed in Arkansas. We can tell whether, in fact, the nurse actually has collaborated with that individual physician for a period of three years or more. All that stuff should be accessible.

 

Tedford Correct. And it will all be provided as part of the– the staff will put together an application packet and all of that information will be provided to the committee that’s on file with the Board of Nursing of, they’ve had these physicians during these periods of time, so that, you know, they’ll see what the nurse has submitted and what we have on file.

 

L Johnson Sure. Okay. Thank you.

 

Hammer Senator Irvin.

 

Irvin Yes. That, that is the conversation that needs to occur. Thank you. I mean, because that’s, you know, that’s where we need to make sure that we have that dialog and understanding to where how that language is written to make sure that there’s the backup of the availability to actually make sure that’s verified, you know, because it could be well, they’re not available. Well, did you try to find them? Did you try to– you know, I mean, I’m not trying to be flippant, but it’s just so important the way the language is written. That’s what, that’s why I had a concern, because it was different from what we saw. And, and I want to make sure, you know, that that’s tightly monitored. And so that’s very good conversation. Thank you.

 

Hammer Seeing no other questions, without objection, this rule is reviewed and approved.

 

Tedford Thank you, Committee.

 

Hammer Thank you all very much. We have no further business before the subcommittee. Meeting is adjourned.