Senate committee advances bill to move daycare immunization rules into statute

Representative Dorothy Healy, sponsor of House Bill 290, told the Idaho Senate Health & Welfare Committee the bill moves existing Department of Health and Welfare rules into statute so they cannot be enacted as temporary rules outside a legislative session.

"By doing this, we're putting the control back into the elected officials' hands," Representative Healy said. "By doing this and moving the rules into statute, the department can no longer make temporary rules outside of the legislative session. So, therefore, putting everything back into our hands. So what this means is outside of session, they can no longer make temporary rules on vaccines, increase enforcement, etcetera."

The committee spent most of its discussion on two practical effects of the language in the bill: a provision that permits a licensed daycare facility operator to exclude a child who does not meet the section's conditions until the child is in compliance, and a separate provision that allows the department to randomly select licensed daycare facilities to evaluate compliance and to record violations in writing.

Senator Ziderfeld expressed concern that the exclusion language could lead to children being kept out of daycare during an outbreak "until they come into compliance," and asked whether the bill changes that practice. Representative Healy responded that the exclusion language has long been part of existing rules and that, by moving it into statute, the Legislature would have the opportunity to revisit whether that provision should remain in its current form.

The committee also discussed whether moving rules into statute reduces opportunities for public input. Senator Wintrow noted that rulemaking historically includes public comment and stakeholder input, and asked whether this particular rule had a lot of public participation. Healy said she had not reviewed the historical record but believed "little to no comment was had" for this item under rulemaking. Other senators observed that putting rules into statute gives the Legislature a clearer opportunity to amend the text in future sessions.

Representative Healy confirmed for senators that, if the bill did not pass, the department could still adopt a temporary rule outside the session and that could, in theory, add a vaccine such as the COVID vaccine to the list by temporary rule. "Absolutely. That could be a temporary rule that they could," Healy said in reply to a question.

There were no public comments on the bill during the committee hearing.

A motion to send House Bill 290 to the floor with a "do pass" recommendation was made by Senator Buerke and seconded by Senator Harris. Senator Ziderfeld said on the record she would vote no, citing potential unintended consequences and a preference to amend the language later. The committee proceeded to voice vote; two senators identified on the record as voting "nay" were Senator Ziderfeld and Senator Wintrow. The chair announced the motion carried and the bill will be reported to the floor with a due-pass recommendation.

Why it matters: supporters say the change restores legislative control over substantive health rules and prevents temporary department actions between sessions; critics warned the move could harden rules that previously were subject to a public rulemaking process and could create unintended consequences for daycares and families.

The bill will next appear on the Senate floor for consideration.