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10.24.22 – Topeka Capital-Journal

Growing irritated by the inability of state regulators to timely complete regulations authorized by law, Kansas lawmakers floated the idea of defunding their jobs as a way to motivate agency officials.

The bipartisan frustration stemmed from the Kansas State Board of Healing Arts missing a statutory deadline by five years for creating rules and regulations on independent certified nurse midwife licenses.

But the issue is widespread. Legislative documents show there are 47 additional cases where rules and regulations required under Kansas laws passed since 2015 haven’t been presented to the Legislature for review.

Under a Kansas law passed in 2016, the Board of Healing Arts and the Board of Nursing were required to have the midwife regulations done by Jan. 1, 2017. Some regulations missed the deadline by about three years; others by five and a half years. Yet more regulations still aren’t finalized.

“Would you have a suggestion for the Legislature as to how we could better phrase ‘such rules and regulations shall be adopted no later than Jan. 1, 2017’ in order to obtain compliance with the law?” asked Rep. John Carmichael, D-Wichita.

“I don’t think there needs to be anything different,” said Courtney Cyzman, general counsel for the Board of Healing Arts.

Carmichael, the top Democrat on a legislative committee that reviews regulations, then floated the idea of defunding attorneys and agency heads when they don’t meet legal deadlines.

“Here’s what I think we need to be doing as a committee, irrespective of whether the constitutional amendment on rules and regulations passes,” Carmichael said. “If we have state agencies that don’t follow the law and don’t get their work done, then we have the power of what’s known as a budget proviso.

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“What we do is we don’t authorize the spending of any funds for the salary of the executive director of agencies that don’t comply with the law. We ought to really think about that. Maybe the general counsel, too. We’ll just cut off their pay if they can’t do their job. This really upsets me.”

His proposal got some support from Rep. Bill Sutton, R-Gardner.

“It’s a rare moment, but I stand in solid support of the representative who spoke earlier about handling this through the budget,” Sutton said. “Certainly an option — one I would prefer not to use — but if you have a nail, sometimes you have to use a hammer.”

Multiple Kansas agencies have outstanding regulations

Promulgating rules and regulations isn’t typically a quick process as regulators navigate a morass of bureaucracy, statutory requirements, various approvals, legislative oversight and public input.

In response to questioning from Rep. Paul Waggoner, R-Hutchinson, Cyzman said she was not aware of any other regulations at the Board of Healing Arts that have taken a similar amount of time to promulgate. She also denied knowledge of any previous times the board has failed to meet a deadline.

Yet according to legislative documents, the Board of Healing Arts has yet to complete regulations authorized by a 2015 law. While that statute on patient health care records did not have an explicit deadline, it did call for the regulations to be “updated not less than every two years.”

The Board of Healing Arts if far from alone. Legislative documents show at least 20 state offices or agencies that have yet to promulgate statutorily required regulations.

The Kansas Legislative Research Department has a four-page list documenting 47 examples where regulations mandated by law that had not been sent to the Joint Committee on Administrative Rules and Regulations for review as of July 1.

Some were laws passed this spring, such as the sports betting legislation from late in the session that has since gone through initial approval to get the industry up and running. But several of the required regulations were from older laws.

“There are quite a few it looks like that have not been adopted, some quite kind of stale now, a couple of years have passed since the required date that they were to be adopted,” said Sen. Kellie Warren, R-Leawood, the chair of the committee.

One such law was HB 2104 from 2015, the first year in the tracking report. That one law is listed six times on the KLRD report for regulations the secretary of state’s office has failed to promulgate.

The law was pushed by then-Secretary of State Kris Kobach after he lost a lawsuit before the Kansas Supreme Court. His successor, Scott Schwab, also hasn’t completed the required regulations, which relate to municipal election ballots. Many of them had July 1, 2016, deadlines.

Constitutional amendment wouldn’t address the situation

As legislators on the regulations committee frequently butt heads with agency officials, they routinely talk about the upcoming election.

On Nov. 8, Kansas voters could amend the state constitution to give the Legislature greater authority over regulations and an expedited path to revoking them.

Warren said the case highlights why the Legislature is seeking “to bring checks and balances” with the constitutional amendment.

“How much more clear can the Legislature be?” she said, noting the law clearly requires the regulations be completed by that date.

Sutton, the Gardner representative, decried “the lack of enforcement capabilities of the Legislature. Hopefully we’ll get that taken care of in November.”

But the amendment’s enforcement capabilities are over regulations already proposed or in place by agencies. It does not grant any special powers in cases where agencies have not created regulations they are required to, as is the case with the midwife licensing.

“This isn’t about repealing an action,” said Carmichael, the Wichita representative.

Carmichael, who opposes the amendment, said there are already legislative tools — such as the budget — in overseeing regulations.

“This is about building a fire under administrative agencies,” he said, that the Legislature is serious about statutory deadlines. “I want people be on notice that as far as I’m concerned, I’m ready to start with budget provisos for agencies who can’t get their job done. If the executive director and the general counsel can’t do what we tell them to do, then they shouldn’t get paid.”

What happened to the midwife regulations?

Frustrations over midwife licensing are not new. At an April 26 meeting, committee members expressed their displeasure with the failure to timely create the regulations. At the time, eight proposed regulations were in various stages of development.

The regulations reviewed by the committee last week relate to licensure, certification requirements, continuing education, supervision, patient risk assessments and unprofessional conduct. The statute, 65-28b07, requires the regulations to be “adopted no later than January 1, 2017.”

State law requires the Board of Healing Arts to work with the Board of Nursing, creating a power struggle that fed into the delay. Two additional proposed regulations remain stuck in the process because of disagreements between the boards.

Scheduling conflicts between the boards also contributed.

“This is a complex statutory structure that required a lot of meetings to make sure that these were implemented correctly and by the statutory process,” Cyzman said.

“There is no explanation that would allow you to get out of this,” said Rep. Barb Wasinger, R-Hays.

Sutton laid part of the blame on the “lazy Legislature” for shifting the responsibility to “two agencies that were at odds with each other.” He said legislators should have done more to understand the issues in order to get some of the regulatory framework “nailed down” in statute.

Cyzman said there were multiple meetings after the law passed in 2016, but it wasn’t until December 2017 that the Board of Healing Arts gave initial approval to the regulations. There were then subsequent negotiations between the groups, which presented scheduling challenges.

She said she has prioritized the regulations since she came on as general counsel, and “we have worked hard to get the remaining ones through.”

Cyzman said there was a batch of regulations now in effect from the board’s December 2017 approval that the Board of Nursing concurred with in September 2018. The application system went live in January 2020 with that first batch of regulations, and licenses have been issued since then.

Carmichael noted that January 2020 was still three years after the original deadline, and that licenses are being issued without all the regulations in place.

Upon questioning, Cyzman said the board believes the new regulations are necessary to protect the health and safety of Kansans. She also defended existing regulations as protecting the public.

“If what you did two years ago was sufficient to protect the health and safety of Kansans, then these regulations aren’t necessary,” Carmichael said. “On the other hand, if what you did two years ago to adopt regulations to let people start practicing without these five or six regulations, that would lead to the conclusion that you’ve endangered the public because necessary regulations weren’t adopted in a timely manner.”

Carmichael said a neighbor of his, who is a constituent, had gone through the specialized training to be a nurse midwife and had stressed the importance of the legislation years ago. But because the regulations weren’t in place, she began practicing a different type of nursing.

“All of the time and effort and hopes and aspirations she had to be a nurse midwife, they didn’t come to fruition,” he said. “What do I tell her, that the board just didn’t get around to it?”