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Proposed rules got hard look from review panel legislators

(Daily Republic file photo)

PIERRE — Some of state government's boards and agencies got off relatively easy Tuesday when their lawyers and directors took the witness chairs before the Legislature's Rules Review Committee.

But just as often, others felt the bite of hard questions from one or more of the six lawmakers. Several times the legislative panel decided to stop a rule outright from taking effect and sent it back for more work — or perhaps simply never to return at all.

"This was a marathon day," Rep. Jean Hunhoff, R-Yankton, said as the panel finished work just a few minutes before 5 p.m. The meeting started at 10 a.m. with 30 minutes for lunch.

The meeting was the last of seven this interim for the panel, which considered the first round March 28. The committee ground through more than 20 sets just on Tuesday. "It seems overwhelming this year," Hunhoff, the chairwoman, said

The friction started a few years ago as legislators began to understand exactly how much authority they held.

The difficulties intensified during the past months when some of the daily newspapers failed to timely publish legal notices of some rules hearings.

That caused hearings to be delayed in some cases and prompted a letter to the South Dakota Newspaper Association.

Among those affected was the state Board of Elections, which operates through the office of Secretary of State Shantel Krebs.

Krebs withdrew the board's proposed rules and reassembled for a new hearing last month. She sat down Tuesday to present a long list of proposed changes in South Dakota elections rules.

A specific concern for several legislators was a decision on voter-list regulations. They didn't have a state law but reportedly are required by the federal government.

Doug Decker, the committee's lawyer, said federal law was "supreme."

Hunhoff said she anticipated seeing legislation from Krebs in the 2018 session. "So then we're in compliance on both sides," Hunhoff said.

Sen. Lance Russell, R-Hot Springs, observed that Krebs is at the end of the time frame to have the rules in place for the coming 2018 election cycle.

"I'm struggling with this," Sen. Craig Kennedy, D-Yankton, said. The source and the rule are inconsistent and "it troubles me," he said. The rules won't make sense to the public, Kennedy said.

Rep. Steven Haugaard, R-Sioux Falls, said the ideas of federal supremacy and pre-emption posed "a bit of a challenge" but proceeding was necessary. "I believe it is consistent with our federal law and consistent with our obligation," Haugaard said.

The panel voted 5-1 to let the rules proceed.

Kennedy came out on the winning side on a rule proposed by the Board of Medical Examiners regarding unprofessional conduct for physical therapists.

Kennedy said he couldn't find a legislative act that said failing to receive mandatory continuing education was automatically unprofessional conduct.

"It just places that brand on top of a person," Kennedy said. "I think it's just going too far." He said it could affect people when they seek physical therapy licenses in other states.

Decker said the rules committee doesn't have authority to amend a rule because rulemaking is the province of the executive branch of state government.

Haugaard said "the absolute presumption" that a physical therapist was committing an unprofessional action was "problematic" because the board doesn't know how the label travels across state lines. He said it appears to be more rigid than it needs to be.

Russell said the rest of the medical board's proposals could move forward but the physical therapist provision should be sent back because it has significant implications.

Russell said it's important agencies err on the side of protecting individual rights. He said the rule offends certain constitutional rights.

Haugaard said the three lawyers on the committee — Russell, Kennedy and Haugaard — have run into situations in their practices where there have been legal hurdles that weren't intended.

"It is with that in mind it should be reverted," Haugaard said. The vote was 4-2 to hold back the physical therapist proposal, with Hunhoff and Sen. Alan Solano, R-Rapid City, opposed.

Kennedy later raised a question about a Department of Social Services proposal that he said pre-judged an intentional program violation regarding child support.

Russell said it was the second time the committee had considered the matter. "As far as I'm concerned it is wholly inappropriate," Russell said.

Hunhoff told the department to get the rule right next time. The vote was 5-1 to send it back.

Carole Boos, a lawyer for the Department of Human Services, salvaged a favorable vote from the committee despite the agency offering a new service to adults that wasn't authorized by the Legislature.

Boos said state law gave the department broad authority to serve people with developmental disabilities.

The committee members read their legal codes online. They looked at statute 27B-2-26 that, according to Russell, indeed gave "very broad authority" to the department.

"They can institute all sorts of programs," Haugaard said, agreeing with Russell.

Solano came to the same judgment.

"I do agree it's pretty broad language that gives the department a lot of latitude," Solano said. "We may have to go back and re-look at that degree of authority and how broad we allow that to happen."

The vote was 6-0 to let the new service proceed.

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