Slice of Life – May 2018

As you hopefully know, we have launched a new weekly series called Closer Looks. Closer Looks takes a deeper dive into one or two individual bills that got a lot of traffic on BillTrack50 for that week. The pieces are written variously by Sarah, Michael, and Karen. Slice of Life will now be a monthly compilation of the Closer Looks from the month, and May sure started us off right with a variety of interesting topics.

US H.R. 2 – THE 2018 FARM BILL

The last week of May’s Closer Looks focused on US HR 2 – The 2018 Farm Bill.

Why does a self-professed hater of Congress (well, more of a hater of federal lobbying as a profession for myself – I don’t know how they do it everyday) want to take a closer look at a federal bill? First, it could actually pass, so that alone sets it apart from most Federal bills. When the Farm Bill is due for reauthorization, it is usually one of the few “must pass” pieces of legislation, though given the divisions both within the Republican party and between Republicans and Democrats, the Farm Bill might not pass. Second, the Farm Bill, if it passes in its current form, will have significant impact on the states. Certainly more than most pieces of federal legislation. And third, I had some requests.

Let’s start with the failure of the House to pass this version of the Farm Bill. Earlier this week, the House voted against passing the bill 198-213. Thirty Republicans joined every Democrat in voting against it. While the Democratic votes were probably centered o their philosophical issues with the bill, the Republican votes, mostly from the conservative House Freedom Caucus, were reportedly about immigration. Caucus Member Jim Jordan (OH-4) was quoted as saying, “Some members have concerns about the farm bill. but that wasn’t my main focus. My main focus was making sure we do immigration policy right.”

With that in mind, I pulled three sections from the Farm Bill for a closer look.

Title IV – NUTRITION; Subtitle A – Supplemental Nutrition Assistance Program; § 4015 – Workforce Solutions (a) Conditions of Participation. This section is among the most controversial of all the Farm Bill sections. It expands the work requirements for SNAP, the Federal benefit program better known as food stamps, recipients. The benefit portion of the food-stamp program is fully-funded through the Federal government. States administer the program, and split the administration cost with the Federal government. The proposed language requires most adults between 18 and 59 to work part-time or participate in a training program. The increase will impact between 5-7 million, of the roughly 40 million people who receive food stamps.

The controversy is over whether or not the expanded work requirements (which are 20 hours per week through 2025 then increasing to 25 hours, or enrolled in a qualified training program), which have been a key part of Republican welfare reform proposals for years, will keep the program from serving as the emergency safety-net program it is mean to be. Democrats argue that the requirements push people off the program, thus hurting families in need.

The lesser-publicized piece of this is an increase of the work training program from $9oM to $1B. This is a key piece of the Republican argument, as they claim that getting people on the program into better-paying jobs is the key to getting them off the program altogether. The issue for states is that the new language requires states provide a training spot for every eligible adult, though it is not clear that any state has the capacity to do so.

The House Agriculture Committee (who introduced the bill) and the Congressional Budget Office seem to agree that the changes will remove around 1 million people from the food stamp program over the next decade. They differ on whether that is a good thing or a bad thing. Democrats will argue it is because they were forced off, while Republicans will say it was because they found work. It is the age-old giving a man fish vs teaching a man to fish argument, and it is not likely to end soon.

Title XI – MISCELLANEOUS; Subtitle G – Protecting Interstate Commerce; § 11701 – Prohibition against interference by State and local governments with production or manufacture of items in other States & 11702 – Federal cause of action to challenge State regulation of interstate commerce. This is the so-called “King Amendment,” named for Congressman Steve King (IA-4).

These sections, depending on who you ask, would use Federal preemption, which means the law of a higher level of government (in this case Federal) supersedes a lower level (in this case State or Local) government, to force states to allow agricultural products approved in other states to be sold in all states. It would also create a Federal cause of action to challenge states that don’t (meaning states will be sued in Federal court). It stems from a ban in California on the sale of certain eggs (the egg issue is one that states are also dealing with on the state level – An Iowa bill was recently signed which would force certain grocers to sell non-cage-free eggs and thirteen states are challenging laws in California and Massachusetts that would ban the sale of certain eggs and meat in those states).

There are many sides against this amendment. Animal cruelty groups are against the amendment because they believe that the way some animals are raised for eggs, milk and meat is inhumane. Police groups are against it because they believe states should be able to set their own animal cruelty standards. Many groups are against it because it sets up a race for the bottom in terms of food safety standards, animal cruelty standards, environmental standards and more. I guess that many activists groups are against it, simply because it makes their work harder. I would hope states’ rights groups would be against it because, well because it tramples on states’ rights.

The bill also takes choice away from businesses. Wal-Mart and Kroger promised to switch to cage-free eggs. This bill, along with the Iowa bill, could put an end to that choice.

Trampling states’ rights, forcing government regulations on businesses, and opening up of the possibility of litigation is not what anyone would expect from Rep. King. Though protecting the interest of Iowa farmers (the largest U.S. producer of eggs) probably is.

Title IX – HORTICULTURE; Subtitle B – Regulatory Reform – State Lead Agencies Under Federal Insecticide, Fungicide & Rodenticide Act (FIFRA); Part I ; § 9101 – Recognition and role of State lead agencies. FIFRA is the section of code that regulates pesticides at the Federal level, and all states have similar legislation that regulates them further on the state level. If the Farm Bill passes in its current form, the changes will have an impact on some states, but and even more so for anti-pesticide activists.

Section 9101 (b) (3) – Condition on More Restrictive Regulation – will be changed by striking ‘‘A State may’’ and inserting ‘‘A State, but not a political subdivision of a State, may…” What does that mean? For the state, it means that only the state can change state’s pesticide law. That is not a significant change. Forty-three states have already passed some level of state-wide preemption.

So, if 43 states already follow this, how big of an impact will it actually have in the seven that don’t (which incidentally are Alaska, Hawaii, Maine, Maryland, Nevada, Utah, Vermont, though I would have argued Maryland already had state-wide preemption). The answer could be a lot. In two of the seven states that don’t have preemption, pesticide activists helped pass local pesticide bans (Portland, ME and Montgomery County, MD). While the Maryland ban was overturned in state court, the Federal change could possibly overturn the Portland ban, and more importantly end the chance of similar bans being enacted in other localities around the country.

Activists originally turned to local advocacy for a few reasons. One being that they were running out of states to try to enact pesticide bans. Two being that they were losing when they did try to pass these bans. And three being that local bans are the hardest to fight. Just as activists and advocates began to focus on the state level due to inactivity in Congress and more welcoming legislatures, pesticide activists found the need to focus on localities, because a state strategy simply wasn’t working anymore. Local bans are difficult to fight because they are difficult to track, especially if you are organized at the national or state level. But this strategy becomes moot if the Farm Bill passes, because once this becomes law, it will be very difficult to change.

Bathroom Bill from 2016 getting new traffic:

Oklahoma SB1323; a “bathroom bill” from 2016 resurfaced. It’s an old bill but seems to have regained the spotlight again recently.

Remember back in 2016 when it seemed like every week there was a different “bathroom bill” being introduced, thrusting this issue into the national spotlight? It started with the passage of North Carolina’s HB2 – prohibiting transgender individuals from using public restrooms based on their own gender identity. The law then established a statewide nondiscrimination ordinance, explicitly superseding any local nondiscrimination measure that would contradict the bill. States like Indiana, Kansas, and Minnesota also proposed similar legislation. To read a post Sarah wrote about this issue back in 2016, go here.

Oklahoma was amongst the states with legislation that gained national opposition in 2016.

HB3049 and SB1014 required student restrooms, locker rooms and showers (designated for one biological sex) only be used by members of that biological sex. SB1619 required school districts to provide separate restrooms for students who object to sharing restrooms with transgender students. Under the bill, a student or the legal guardian of a student would be able to request a religious accommodation based on the student’s sincerely held religious beliefs.

Under SB1323, the bill which started trending again this week, if a parent or guardian complained about a school policy that allows transgender students to use the restroom facility they most identify with, the school district would have had thirty days to either reverse the policy or force transgender students to use single-occupancy facilities (SB1619 explicitly forbade this). If the school district had failed to respond to a single complaint in thirty days, the school districts’ State Aid allocation would be withheld. The bill didn’t pass; it didn’t even get a vote.

Here is a map of all the “biological sex” legislation related to restrooms and places of public accommodation.

Sports Betting:

I couldn’t find a bill I was really excited about this week, so I chose to do a closer look at a topic that was trending this week with significant implications for state legislatures and state governments in general, and selected two bills related to that topic.

This week we take a closer look at the Supreme Court decision that essentially paves the way for states to establish and regulate sports betting. And while I expect to see a number of bills related to the this topic in the trending bill widget on BillTrack50 in the coming weeks and months, I am doing a closer look into two bills from where it all began – New Jersey and the recently introduced bills – Assembly Bill 3911 and Senate Bill 2602.

But before we can look at the present, we have to go back to the beginning. In 2011, New Jersey voters backed a constitutional amendment that would allow for sports betting. From that, the 2012 legislature passed NJ S1323, a bill known as the Sports Wagering Act of 2012. Sports leagues quickly sued and it died in the appellate courts when the Supreme Court refused to hear the case.

Obviously, it didn’t end there, as the appellate court ruling only barred New Jersey from legalizing sports betting, and not from repealing laws that made it a crime. Which brings us to NJ S2460, the 2014 bill that allowed New Jersey allowed casinos and racetracks to establish sports betting operations without state licenses (probably not the best idea, but then again, it is New Jersey). Then-Governor Chris Christie asked the courts for ruling on the legality of this step, which the sports leagues again challenged.

And this time New Jersey won, with the Supreme Court releasing a decision that appears to pave the way for states to decide if sports betting will be legal in their state. Many states are preparing to do so, but New Jersey is leading the way. With NJ S2460 now part of NJ public law, experts believed the law would have allowed New Jersey casinos and racetracks to be able to offer sports betting within a couple weeks of the decision. That timeline has been put on hold, however. At the request of legislators and the governor, casinos and racetracks (at least Monmouth Park Raceway, and my guess is others will follow suit) will wait to take bets until the legislature allows it. That could happen in early June, as June 7th is the next legislative voting day. So keep an eye on NJ A3911 and S2602 and see which one crosses the line.

That delay is setting up a horse race between New Jersey and Delaware to see which state will be able to offer legal sports betting first. I’m betting on a photo finish.

Family/Child Protection & Accountability Act:

This week we took a look at NC S594, the Family/Child Protection & Accountability Act. This bill works to completely reform many areas of the child welfare system in North Carolina and is also known as Rylan’s Law, named for Rylan Ott. Rylan was a toddler who drowned four months after a judge returned him to his mother’s care in December 2015, despite the objections of his foster family and his court-appointed guardian.

Primarily, this bill would move the state from a county-based system to a regionally based one while requiring child services workers to more carefully evaluate whether to return foster children to parents. Currently, every county is handling the system in a way they deem most appropriate; according to Senator Tamara Barringer, “We have 100 counties delivering services 100 different ways. Some are doing a fine job. Others are failing miserably.” She went on to say “Our state has seen a 25 percent increase in the number of children coming into foster care over the last five years. And both federal and state reviews and audits have identified systemic failures and weaknesses in our system.”

This bill works to address systemic failures and weaknesses gaining attention over the last few years in a few different ways:

* Improve accountability and oversight of the child welfare system (structuring the system regionally would help communication problems between counties that have plagued the system)

* Establish a child well-being transformation council to improve coordination, collaboration, and communication among child-serving agencies

* Establish a pilot program to help youth in substitute care obtain drivers licenses and a pilot program to authorize a waiver of the employment requirement for foster parents of children receiving intensive alternative family treatment

* Reduce the time frame a parent has to appeal from a termination of parental rights order and for licensure approval regarding foster care

One of the most interesting services the bill aims to address is the lack of support for helping teens in foster care obtain driver’s licenses. As we all know, it’s difficult to get to school or to a job when you can’t drive, which directly impacts these children’s ability to succeed. The bill will set aside $75,000 for a pilot a program to help cover the cost of driver’s education, license fees, and insurance.

There are problems all over the country with child welfare systems being insufficient in some way. Below is a map showing all of the current legislation around the country having to do with child welfare, read explore the bills here. The inconsistency of care across the country can make oversight almost impossible. Caseworkers and supervisors can be overwhelmed by excessive caseloads. In some places, they receive inadequate training and support. As a result, children often do not receive the care they need and deserve to set them up for the best possible outcome when trying to recover from abuse or neglect. It is interesting to see the ideas in this bill, and if any of them do get implemented, we’ll want to keep an eye on the results.

Ban Toxic Sunscreens:

Nurse Practitioners:

This week we looked at Virginia House Bill 793 – Practice Agreements for Nurse Practitioners. The bill allows for nurse practitioners with certain levels of education and experience to practice without oversight from a physician. Nurse practitioners are usually required to have a practice agreement, which is a contract that outlines the supervision of a nurse practitioner by a physician. While nurse practitioners in Virginia could already diagnose illnesses, prescribe medications and manage chronic conditions such as diabetes and high-blood pressure, they could not do things like admit a patient to a hospital without a doctor’s consent.

I chose this bill for my first Closer Looks post because it was recently signed into law in the Commonwealth of Virginia, where I currently call home. I am also very interested in this bill because I often deal with legislation that changes the scope of practice in the medical and dental fields. I have been working on these bills for years, often trying to strike a balance between ensuring patient safety and increasing access to competent quality healthcare professionals. Given the shortage of physicians and dentists, expanding scopes of practice and loosening barriers to practice for mid-level providers might be the only way to ensure access to quality, affordable healthcare. However, since every state has different needs, every state manages these situations differently.

A map by the American Association of Nurse Practitioners shows Virginia’s currently in the red or restrictive. HB793 should change that.

HB793 became public law when Governor Ralph Northam signed the bill on April 4, 2018. The bill sailed through the Virginia General Assembly garnering unanimous support in the Senate and passing the House of Delegates in its final version 97-2. The bill’s chief patrons (the Virginia equivalent of lead sponsor or champion) were Delegates Roxanne Robinson and Dawn Adams. The bill had strong bi-partisan support and had many patrons from Northern Virginia, including my representative, Delegate David Bulova.

I believe interest in this bill was spurred by a recent Washington Post article. The article references the new law, but also focuses on Federal changes from 2016 that already allows some nurse practitioners practicing in VA hospitals to practice without the supervision of a lead physician. The article highlights two nurse practitioners that work at the VA hospital in Hampton, VA, one with full-practice authority and one half-way through the process . It also mentions the past opposition by the American Academy of Family Physicians. AAFP had opposed the changes at that time in the name of patient safety. While health professional groups often oppose scope of practice changes of their competitors for what they see is a true threat to patient safety, that opposition by is is often seen by legislators and regulators as legislative or regulatory capture (a term that means an organization or industry protecting its financial interest or market share through the legislative and regulatory processes).

In Virginia, the Medical Society of Virginia issued a fairly neutral statement about the newly signed bill -“The Medical Society of Virginia (MSV) believes team-based care is best for patients. Given the continued pressure for independent practice, MSV supports the Garrett substitute that requires 11 clinical components that preserve the minimum conditions to uphold quality care and patient safety.” To me that says there was probably initial opposition to the bill, and the final bill is the result of legislative compromise language introduced by Delegate Scott Garrett.

And I tend to believe that compromise policy makes the best policy.

There are over 1600 bills from the states’ current or most recent sessions that mention “nurse practitioners.” For a closer look at all of the bills, check out our BillTrack50 interactive stakeholder page.

Mandatory Immunizations:

We took a look at New Jersey’s A3818, a bill clarifying statutory exemptions from mandatory immunizations for students. 

Legislation relating to mandatory vaccinations — where choice and public safety collide — has been a topic of national discussion increasing in volume over the last decade. For some general information on this issue, read this blog. New Jersey has been attempting to pass a bill similar to this one for the last six years, and with a new legislative freshly started, here it is again, introduced and committee. 

Here is a list of all of the different bills in New Jersey having to do with mandatory immunizations over the last seven years.

Sue Collins, co-founder for the New Jersey Alliance for Informed Choice in Vaccination, said the bill is vague, stating, “Who is deciding whether the people’s beliefs are valid but somebody else’s beliefs may not be?”

In 2012 the Senate passed a similar bill, but it never advanced beyond committee approval in the Assembly. In 2015, the bill stalled again. During this time, Meg Fisher, medical director for the Unterberg Children’s Hospital at Monmouth Medical Center in Long Branch, said “We’re concerned that in New Jersey people are using the religious exemption as a philosophic or concern about safety exemption, not truly a religious exemption. We would like to tighten that up so people can’t just say it’s against my religion therefore I can’t immunize my child with one or another vaccines.”

This attempts to tackle this issue, individual liberty vs public safety, in a way that tries to protect both. Have they got the balance right?

Right to Know:

This week we took a closer look at New Hampshire’s trending bill, SB555. This is our first post in the new Closer Looks series.

SB555 would have establish a citizens’ right-to-know appeals commission and a right-to-know law ombudsman.  A Right-To-Know commission was established last year to examine the law they passed in 2013. The commission recommended that the state create a Citizens Right to Know Appeals Board and a Right to Know Ombudsman to mediate disputes that arise over access to public records. Currently, the only alternative for people whose requests are denied is for them to take their cases to Superior Court (a considerable cost for most people).

What is the idea behind “right-to-know”? This bill put forth detailed procedures that must be followed to ensure citizens have access to government meetings and records with the overall goal of making government more open and transparent. There is a Right to Know NH non-profit which educates citizens on their Right to Know and aids them in exercising their rights under the law. They also educate public officials on improving their adherence to the law and delivering greater government transparency to their constituents.

Senator Bob Giuda, who chairs the commission studying the right-to-know, said “This bill will level the playing field and save communities significant amounts of money as well by avoiding court cases. This is about transparency in government. This is information people are entitled to by law, but is being denied to them by process.”

There have been many bills over the last few years having to do with right-to-know and different areas this law affects. Here is a list of all of the bills over since 2011 having to do with it. The bills range from allowing voters to register as members of political organizations to information to be included in the minutes to costs for paper records or for electronic records to prohibiting costs for inspection to collective bargaining under the right-to-know law.