Senate committee advances bill moving daycare health rules into statute amid questions about exclusions and inspections

Representative Healy, presenting House Bill 290 to the Senate Health and Welfare Committee, said the bill would move existing department rules into statute to return authority to elected officials. "By doing this, we're putting the control back into the elected officials," Representative Healy said. "By doing this and moving the rules into statute, the the department can no longer, make temporary rules outside of the legislative session. So, by in, 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 bill drew sustained questions from committee members about operational consequences that currently are handled under rules. Senator Wintrow noted that rulemaking typically includes public input and stakeholder comment, asking whether the provisions now being codified had previously been the subject of such input. "When we do rulemaking, we have all kinds of public input...so then we gather stakeholder, comments and concerns and so forth," Wintrow said. Representative Healy replied that she did not research the historical comment record and that, to her recollection, "Little to no comment was had. So this is not one that I remember hearing a lot of public comments on, but I can't speak historically."

Senator Ziderfeld raised a specific operational concern about the bill's language on exclusion of children from licensed daycare settings. Quoting the bill text on page 2, Senator Ziderfeld said a child who "does not meet the conditions of this section shall be excluded by the licensed daycare facility operator until the child is in compliance" and added, "I do realize that if there's an outbreak, but I have grave, concerns about that because then we will be excluding children during an outbreak until they come into compliance and that's my first question." Representative Healy said that the exclusion language has been present in rule historically and that moving the language into statute would allow legislators to revisit it: "That is something that has been enrolled for a long, long time. By moving these back in, I believe we would have the capability of changing that."

Committee members also asked about enforcement provisions. Senator Ziderfeld pointed to section 5, where the bill says the department "may randomly select and visit licensed daycare facilities to evaluate compliance with this section," and asked what inspectors would be looking for. Representative Healy said inspectors would check whether daycares were maintaining documentation required by the facility's policy, including signed exemptions when a family chooses that option: "So they're just making sure that they're in compliance with their policy...if the family is chosen to exempt their child, that will need to be documented."

Several senators framed the bill as a general policy of moving rules into statute so the legislature, not agency staff, has the final say. Senator Lenny characterized the change as placing matters "within our purview to come back next year" rather than leaving them to agency temporary rules. Senator Shippey said one advantage is that "the legislature [has] looking at it and deciding whether or not this is actually what we want." Senator Seiderfeld announced on record that she would vote no, citing worries about unintended consequences and preferring amendments before codifying rules.

Senator Buerke moved that the committee send House Bill 290 to the floor with a due-pass recommendation; Senator Harris seconded the motion. The committee approved the motion; Senator Ziderfeld and Senator Wintrow recorded nay votes. The committee then moved on to House Bill 327.

The bill text and committee discussion made clear that House Bill 290 would take existing rule language currently used by the department for licensed daycare facility health and exclusionary practices and place it in statute, while leaving open the prospect that the legislature could later amend those provisions. The transcript did not include a roll-call showing all members' votes or a final tally number on the record; two senators were named as voting no.