The Interim Rules committee had a marathon day for its last meeting of the 2017 interim legislative term. Twenty-one rules packets were reviewed starting at 10 a.m. and concluding at 4:50 p.m. One observation for this interim is that there were no opponents ever present to testify against the rules presented. The only opponents appeared to be committee members for which some of the rules were reverted to a prior step. Such was the case on this last day of rules hearing.
• The Board of Medical and Osteopathic Examiners proposed rule clarification on time frame for individuals renewing their license through the interstate medical licensure compact, and established the different options for the Board when it considers mirroring physician discipline from another state. Basically, the rules allow the board to acknowledge the disciplinary action in another state and determine to what extent it should be effective in this state and if there should be any restrictions on the license if granted.
The issue that took the most time and ultimately was reverted in the process was the request by the physical therapists to require 15 hours of continuing education. Failure to meet the requirement would constitute unprofessional conduct. That was the statement that some members of the committee would not support. Much discussion revolved around the unprofessional conduct and the implication of that being on an individual’s record. The action was to revert that rule back to a new hearing. There were no therapists present to oppose and they had indicated support for the language. The result is that the continuing education requirement will not be in effect at this time.
• The Board of Optometry Examiners adopted rules to clarify the expiration of contact lens and spectacle prescriptions, revise minimum requirements for a comprehensive optometric examination and allow in certain situations optometrists to receive credit for live stream continuing education. As technology advances there is a new spectrum of services for eye exams that can be done over the internet through websites.
The issue is the type of service offered and does it meet the criteria for a comprehensive optometric examination. As consumers search for cost and quality of health care services there needs to be some regulation in place that protects the consumer in the services expected to be delivered and the quality of the outcome for the product purchased. That was the intent for the requirement of a comprehensive optometric exam to be clarified in rule.
The process was approved.
• The ambulances crews proposed rules that revised ambulance equipment standards and air ambulance operations. The rule process was approved.
• The Department of Social Services — divisions of Economic Assistance, Child Support, Child Protection, Medical Services and Child Care Services — proposed to amend rules to reflect annual changes, update terminology and other language to align with current practice and provide clarification. It was also proposed to update recommended immunization standards to align with Department of Health, and provide clarity to what practitioners can provide and bill for certain services. Also, new rules were proposed to distinguish non-emergency medical transportation, repeal duplicative rules and update certain child support enforcement and child protection provisions to comply with new federal regulations.
One rule had previously been sent back for another hearing. It had to do with the failure to comply with the requirement or failure to maintain an active enforcement case if it’s an intentional program violation and will result in ineligibility for child care assistance services.
Members of the committee were not satisfied with the second revision and perceived it as no change from the prior language. The concern is that children were the ones dealing with the consequence as the parents would not be eligible for child care assistance. The rule was sent back for another change.
As chair, I directed the department to engage with the members of the committee that had the concerns and to present with a rule that would not impact children needing the services. The remainder of the rules followed process.
• The Department of Human Services — division of developmental disabilities — proposed to amend rules to define and to create standards for a shared living home service, and allow the delivery of statewide family support services to adults who meet certain criteria.
The issue was the last item. In effect, the department was expanding a program to provide a new service for adults. There were dollars left in the children’s program and adults were on a waiting list for community placement, so the department was moving dollars within the program to a new service sector. The cost savings to the overall program were positive and provided needed services to the adults and their families.
It was the rule-making authority that the department has in statute to create new programs without legislative participation that raised the discussion. After much debate and review of the statute, the rule process was approved. This will be a discussion piece in the upcoming session about the promulgation of rule authority given to departments through legislation that involve new programs and funding sources.
• The Secretary of State proposed rules to update notary public applications and change the forms. Basically, it was making sure that the name of the notary was the same on all places on the document. This was to provide consistency for the name of the individual. The process was approved.
The second set of rules had to do with compliance with the federally required Election Assistance Commission’s Election Day survey, ballots for military and nonmilitary overseas, forms for registration, ballot forms and color, petitions and recounts. All the rules had gone through the State Board of Elections. There is inconsistency with the state and federal levels on some of the form required information. The state must comply with the feds on the documentation requirements. The process was approved. The Secretary of State was instructed to have legislation ready that puts the state in compliance with what is required by Federal law.
• The South Dakota Athletic Commission proposed amending rules clarifying provisions of current rules addressing safety requirements for events and responsibilities of event promoters. Proposals also addressed the requirements for contestants in mixed martial arts contests, penalties for missed martial arts who fail to make weight for a contracted bout, options for correcting a score entered in error, officials required to be in attendance at an event, the roles of the cut man at an event, the authority of a ringside physician during a bout, allowable wraps for a mixed martial artist during a bout, requirements for a ring used for a contest, the process by which a contestant can request a review of a bout, and the adoption of unified rules of mixed martial arts.
As the mixed martial arts grow in South Dakota, rules need to be amended to coincide with the national standards for professional bouts to continue in the state. The rule process was approved.
• The Bureau of Human Resources proposed rule changes to match current practice regarding Family Status Change Forms. The process was approved.
In addition, the department posed rules to allow fathers to take sick leave after the birth of a child, update reasons for using the FMLA and standardize how rates of pay and salary increases are administered. The discussion was on the proposed pay and salary increases as to what comparisons are used. The bureau is continuing to maintain a compensation program that sustains its workforce and is competitive is getting new employees. The state is experiencing the same workforce shortage that all of South Dakota businesses are experiencing. The process was approved.
• The Board of Dentistry prosed rules to update the registration process for dental entities to bring it into compliance with SB47 and repeal obsolete provisions. The process was approved.
• DENR Water Management Board proposed adoption of rules to update South Dakota’s existing surface water discharge and concentrated animal feeding operation permitting rules by incorporating the latest federal regulation by reference and clarifying current rule language. The process was approved.
DENR Division of Environmental Services proposed rules to increase the air fees assessed to businesses that are applicable to the Title V air quality permitting program. The department indicated is had done outreach to all that would be affected for the increase. The process was approved.
• The South Dakota Board of Education proposed rules to set for the public-school accountability system, performance goals, school classifications and school support process as required by state law and the Every Student Succeeds Act of 2015. The process was approved.
• The appraiser Certification Program proposed a rule to adopt the 2018-2019 Edition of the Uniform Standards of Professional Appraisal Practice effective Jan. 1, 2018. The process was approved.
• The Division of Insurance proposed rules to fix outdated references to the Division Securities and the Department of Revenue and Regulation, establish a notice filing requirement for Regulation A-Tier2 offerings and crowdfunding offering. Crowdfunding drew the most discussion. An example would be fundraising on the Internet for a specific cause/benefit for an individual. New rules in place for this type of funding. The process was approved.
• The Lottery Commission proposed to amend a rule to allow the Winner Take All promotion for the Powerball lotto game. This is an additional game/payout for the Powerball lotto game. The process was approved.
So ended a long day and the conclusion of this interim committee. The committee will resume meeting after the conclusion of the 2018 legislative session. I want to thank my committee members for their commitment to the committee and the citizens of South Dakota. Sen. Craig Kennedy is also a member of the committee and has provided much insight into the statutes and the authority that is allowed within them for the rule making by the departments. Happy Thanksgiving!