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Capitol Roundup – February 26, 2021

Capitol Roundup – February 26, 2021

Half & Half
​At the Statehouse…

As the Legislature reaches its midway point it is rarely surprising for much of the introduced legislation to end up on the cutting room floor, if we can borrow a phrase from Hollywood. What’s new for 2021 is the sheer number introduced – a total of 1,824, including all bills, resolutions, and memorials. That’s an unprecedented number and fully 90 more than were introduced the prior year. Between pent-up demand from measures stopped mid-stream in 2020 because of COVID-19, a fresh crop of legislators entering their first term, and – oh, by the way – lingering hard feelings about the 2020 Presidential election, there was no shortage of, shall we say, enthusiasm for the legislative process.True to form, word arrived this week that half-plus of all these monuments to public policy were, well, no longer with us. We bid them adieu – for now. If past is prologue, as the Bard so perspicaciously wrote, more than a few will reappear in future years.

A Bit of Good News

For Arizonans with disabilities and the advocates who stand with them, the week’s results were a decidedly mixed bag. On the one hand, bills aimed at increasing safety, self-determination, and supports and services advanced; on the other hand, concerns persist about the impact of various elections-related bills that remain alive.Arizona’s system for supporting and protecting individuals with developmental disabilities has been chronically underfunded since the Great Recession hit the state full-force in 2009. Today the shortage stands at between $250 million and $400 million, by the state’s own studies, and the shortcomings of the state’s Adult Protective Services have been starkly spotlighted in the aftermath of the Hacienda HealthCare incident of 2018, when a woman with profound cognitive disabilities was raped and impregnated by a male nurse at the Phoenix care facility. Senate Bill 1355 (developmental disabilities; provider increases), sponsored by Sen. Nancy Barto (R-15), seeks to get the ball rolling on restoring DD system funding to meet the full need of Arizonans who rely upon it by appropriating $30 million from the general fund in FY21-22, and increasing amounts in two successive years, to be used for payments to provider agencies that serve the DD population. At the same time, SB 1321 (appropriation; adult protective services), introduced by Sen. Lela Alston (D-24), dedicates $3 million and 43 FTE positions from the general fund to support improvements and growth of Adult Protective Services.

Both bills passed the Senate overwhelmingly. They now move to the House – where they are expected to meet with sympathy, but a similarly warm embrace is not guaranteed. Price tags matter in the Arizona Legislature; despite the comparatively small appropriations involved, either or both may stall in committee and be relegated to a place in the larger budget discussions between legislative leadership and the governor’s office.

Cause for optimism could be found on the other side of the courtyard, too, where HB 2538 (supported decision-making; supporter obligations), a measure offering legal recognition and protections for Arizonans with disabilities who engage in Supported Decision-Making, passed the House unanimously. The bill, sponsored by

Rep. Jennifer Longdon (D-24) and backed by The Arc of Arizona, had similar good fortune in the House in 2020 but fell victim to the Legislature’s pandemic-induced early adjournment and did not receive a hearing in the Senate.
Silver Lining, Meet Dark Cloud

But not everything was rainbows and unicorns. Disability advocates are alarmed about the possible impacts of the array of elections bills wending their way through one chamber or the other. Arizona has gained a dubious distinction this year for the aggressiveness of Republican legislators’ attempts to impose greater controls over citizens’ access to the ballot box. Individuals with disabilities and seniors would be especially hard-hit by changes that make it more difficult to register to vote, vote by mail, access polling places, or overcome other barriers to easy submission of a ballot.

The most far-reaching of these – Rep. Kevin Payne’s (R-21) proposal to completely do away with the Permanent Early Voting List, or PEVL; Sen. Wendy Rogers’s measure to rename and reconfigure the list so that voters would be required to re-register for it every two years; and Rep. Shawnna Bolick’s (R-20) proposal to allow the Legislature to override the will of voters and select the state’s slate of presidential electors irrespective of the popular vote tally – never saw the light of a committee hearing. That’s a relief to the 68 percent of Arizona voters currently on PEVL (and maybe the 100 percent who want their votes to matter). And a lifesaver for the List, which has served residents without controversy since 2007.

Still, what’s gone is sometimes not gone for long. Like the mythical bird after whom cities are named, SB 1069 (permanent early voting list; eligibility) – which, though not as draconian as the Payne and Rogers bills, would nonetheless remove an estimated 200,000 Arizona voters from PEVL and which was declared dead after a 15-15 vote in the Senate on Feb. 16 – rose from the ashes this week through the peculiar alchemy of the strike-everything amendment. Sponsor Michelle Ugenti-Rita (R-23) used her own SB 1485 (elections; voting center tabulation) as the vehicle to revive her PEVL bill; it quickly passed the Senate Appropriations committee and is scheduled for full Senate consideration on March 1. The big question: How will Sen Paul Boyer (R-20) vote? Boyer’s “no” on 1069 was its initial kiss of death and did not sit well with his Republican colleagues.

More than a dozen bills affecting the elections process remain active. And the deep divide exposed by the 2020 Presidential election isn’t disappearing quickly. Nor is the fear of the damage that may be done by efforts to disenfranchise Arizona voters.

Stop the Presses!

Breaking News: The 2020 election is over.

Closing the door on any remaining uncertainty about the outcome of the Presidential contest, the U.S. Supreme Court this week refused to hear arguments from supporters of former President Donald Trump, including Arizona GOP chair Kelli Ward and complainants from four other states, alleging election fraud and other irregularities.

So…we can put that one to rest, right?

Underhelped and Overhoused

Apparently, the Arizona Dept. of Corrections not only keeps inmates at its 10 state prisons in unsafe conditions. It also keeps many of them unsafe longer than the law requires. So say a federal court and a group of whistleblowers who together cite failure to address longstanding medical care issues and uncorrected technological errors for the situation. And that, my friends, is already costing Arizona taxpayers millions of dollars in fines and housing costs – with no resolution in sight.

Problems providing adequate healthcare to inmates have plagued the Dept. of Corrections for years and resulted in a $1.4 million judgement in 2019 for failure to make agreed-upon improvements. The additional $1 million fine levied this week by US District Court Judge Roslyn Silver was an expression of her displeasure with the state’s lack of progress. More fines may be in the offing – potentially $100,000 for each instance of missing performance measures during 2020.

Other required improvements, it seems, also have not come to fruition. A law passed by the Legislature in 2019 was designed to make it possible for certain nonviolent offenders to be released early – reducing the negative impacts of prison time for inmates as well as the cost to the state (up to $1.4 billion over 10 years) for keeping them jailed. But for the past two years, the $24 million software developed for the purpose of tracking those eligible for early release hasn’t been capable of performing this function. And the problem has been well-documented by employees of the department, yet no solution has been found. Corrections officials dispute the assertion that anyone eligible for early release through the program has been overlooked.

Pump it Up. Way Up

Been out driving lately? Brave enough to stop for gas? If so, you may have come close to passing out – not from the gasoline fumes but from the precipitous rise in fuel prices over the past few weeks. Arizona’s gas prices have been heavily affected by the winter storms that recently blanketed Texas and forced the closure of numerous refineries along the Gulf Coast. The result for our state is the second-highest price jump in the nation and an average gas price we haven’t seen in two years.

Until refineries resume operation and prices stabilize, that work-from-home requirement might not seem like such a bad thing.

Priority Bills
  • H2023 (SCHOOLS; EMPLOYEES; EMPLOYMENT; DISCIPLINE) – Dept of Education required to investigate written complaints alleging that a “noncertificated person” has engaged in immoral or unprofessional conduct. State Board of Education authorized to review complaint to determine whether to take disciplinary action against noncertificated person who has engaged in immoral or unprofessional conduct, including prohibiting person’s employment at school district or charter school for up to five years. School districts and charter schools required to conduct search of educator information system maintained by Dept on prospective employee and prohibited from employing in position that requires valid fingerprint clearance card either certificated person whose certificate has been suspended, surrendered or revoked and not reinstated, or noncertificated person prohibited from employment at a school district or charter school by Board under this legislation. Passed House 58-0 01/28/21. Substituted for identical bill S1061, passed Senate 29-0. Signed by Governor 02/05/21.
  • H2046 (DISABILITY LICENSE PLATES; MINORS) – Dept of Transportation required to issue special disability license plates to person who is parent or legal guardian of minor with permanent physical disabilities. Person issued special disability license plate on behalf of minor under this requirement may only use designated and marked parking space when transporting minor with permanent physical disabilities. Passed House 59-0 01/28/21. To be heard in Senate Transportation and Technology Monday, 03/01/21 2:00 PM, Senate Rm. 109. Watch here.
  • H2113 (CHARITABLE CONTRIBUTION; DEDUCTION; INFLATION ADJUSTMENT) – For tax years beginning with 2022, Dept of Revenue required to adjust percentage of taxpayer’s charitable deductions that are allowed in addition to standard deduction for personal income taxes according to average annual change in metropolitan Phoenix Consumer Price Index published by US Dept of Labor, except that adjusted percentage cannot exceed 100 percent. Revised percentage must be raised to nearest whole percent and cannot be revised below amounts prescribed in the prior taxable year. Passed House 44-15 02/02/21. To be heard in Senate Finance Wednesday 03/03/21 9:00 AM, Senate Rm. 109. Watch here.
  • H2141 (APPROPRIATIONS; ALTERNATIVE PROSECUTION; DIVERSION PROGRAM) – Appropriates $11,264,625 from general fund in each of FY2021-22, FY2022-23, and FY2023-24 to Arizona Criminal Justice Commission for alternative prosecution and diversion programs. Specifies amounts to be allocated each fiscal year to each county attorney’s office. Monies may be used only to establish and operate alternative prosecution and diversion programs, and to explore, develop, apply and evaluate evidence-based best practices for alternative prosecution and diversion programs. Passed House, as amended, 56-4 02/23/21. Referred to Senate Judiciary and Senate Appropriations.
  • H2186 (PROSECUTION; DEFERRED; DIVERTED) – County attorney no longer prohibited from diverting or deferring the prosecution of a person who has been previously convicted of a serious offense, a sexual offense, a dangerous offense, or a dangerous crime against children, or who has been convicted three or more times of either personal possession of a controlled substance or personal possession of drug paraphernalia. Passed House 52-7 02/11/21. Referred to Senate Judiciary.
  • H2298 (MEDICAL MARIJUANA; RESEARCH; GRANTS) – Arizona Biomedical Research Center in Dept of Health Services required to provide competitive grants from monies in Medical Marijuana Fund for marijuana research studies, including clinical testing for safety and efficacy of using marijuana and researching public health implications of medical marijuana use in Arizona and impacts of marijuana interactions with prescription drugs. Center authorized to provide up to $5 million annually for five consecutive years from Fund to administer and award competitive grants. Legislation requires affirmative vote of at least 3/4 of members of each house of Legislature for passage. Passed House 58-1 02/23/21. Ready for Senate.
  • H2299 (DHS; LONG-TERM FACILITY SURVEYORS) – Makes supplemental appropriation of $1 million and 13 FTE from the general fund in FY2021-22 to Dept of Health Services to hire additional long-term care facility surveyors. Passed House, as amended, 40-18 02/08/21. Referred to Senate Appropriations.
  • H2300 (GROUP HOMES; MONITORING; APPROPRIATION) – Establishes 3-year Developmental Disabilities Group Home Monitoring Pilot Program in Dept of Economic Security, which requires designated entity to monitor and inspect in person all group homes once each year and take other specified regulatory actions. DES required to develop process to determine which of its clients are at higher risk of abuse or neglect. Appropriates $1.2 million from general fund in FY2020-21 to DES for Pilot Program. Passed House Health & Human Services 02/15/21.
  • H2334 (DANGEROUS; INCOMPETENT PERSON; EVALUATION; COMMITMENT) – Establishes new chapter in Title 36 (Public Health and Safety) governing procedures for dangerous and incompetent persons who are committed. Requires biannual examination of such persons, and requires court to hold hearing on examination report that indicates person is no longer dangerous or incompetent. Committed incompetent allowed to petition court for conditional release or discharge under certain circumstances; requirements for hearings and determinations on petition are established. Establishes requirements for detention and commitment and for revocation of conditional release. Committed incompetent cannot be transported from licensed facility except for specified reasons. Also makes various changes to statutes relating to determining whether defendant is dangerous or incompetent. Retroactive to January 1, 2021. Passed House COW, as amended, 02/24/21.
  • H2409 (ADULT PROTECTIVE SERVICES; AUDIT; APPROPRIATION) – Auditor General required to engage independent consultant with expertise in adult protective services operations and investigations to examine current adult protective services and consider best practices to improve delivery of services in Arizona. Consultant required to submit report of its findings and recommendations to Governor and Legislature by July 1, 2022. Appropriates $300,000 from the general fund in FY2021-22 to Auditor General for this purpose. Passed House 55-4 02/24/21. Ready for Senate.
  • H2454 (TELEHEALTH; HEALTH CARE PROVIDERS; REQUIREMENTS) – Modifies requirements for health and disability insurers to cover telehealth services, and applies these requirements to policies issued, delivered or renewed on or after January 1, 2021. Insurers required to reimburse health care providers at same level of payment for equivalent services whether provided through telehealth or in-person care. Definition of “telehealth” expanded to include use of audio-only telephone encounter between insured and health care provider if specified conditions are met. Medical examinations for workers’ compensation insurance may be conducted via telehealth with consent of both employee and requesting party. Health care provider regulatory board or agency prohibited from enforcing any statute, rule or policy that would require health care provider licensed by that board or agency and authorized to write prescriptions to require in-person examination of patient before issuing a prescription, except as specifically prescribed by federal law. Health care providers required to make good faith effort to use best practices in determining whether health care service should be provided through telehealth instead of in person. Health care providers licensed in another state authorized to provide telehealth services to person in Arizona if provider complies with list of requirements, including maintaining liability insurance and following community of care standards. Establishes 22-member Telehealth Advisory Committee on Telehealth Best Practices to review standards for telehealth best practices and relevant peer-reviewed literature. Emergency clause. Passed House 37-22 02/11/21. Referred to Senate Finance.
  • H2521 (LONG-TERM CARE; HEALTH AIDES) – Subject to approval by Centers for Medicare and Medicaid Services, Director of AHCCCS Administration required to implement program under which licensed health aide services may be provided to Arizona Long-Term Care System (ALTCS) members under 21 years of age. Licensed health aide services may be provided only by parent, guardian or family member who is licensed health aide employed by Medicare-certified home health agency service provider. Person who wishes to practice as licensed health aide required to apply to Board of Nursing and pay application fee of $50. Establishes qualifications for licensure as health aide, including completion of training program approved by Board and competency examination. Passed House 52-7 02/11/21. To be heard in Senate Health and Human Services Wednesday 03/03/21 9:00 AM, Senate Rm. 1. Watch here.
  • H2535 (MANDATORY REPORTING; VULNERABLE ADULTS; PENALTIES) – List of persons with duty to report reasonable belief that vulnerable adult has been victim of abuse, neglect or exploitation is expanded to include any “health professional” who has responsibility for care of vulnerable adult. If failure to report involves sexual offense, criminal classification is class 6 (lowest) felony, instead of class 1 (highest) misdemeanor. Emergency clause. Passed House 59-0 02/23/21. Ready for Senate.
  • H2538 (SUPPORTED DECISION-MAKING; SUPPORTER OBLIGATIONS) – Adds new article to Title 14 (Trusts, Estates and Protective Proceedings) regulating “supported decision-making agreements,” defined as agreement between adult with “disability” (defined as physical or mental impairment that substantially limits one or more major life activities) and “supporter” (defined) to enable adult to make life decisions without impeding adult’s self-determination. Adult is authorized to voluntarily enter into supported decision-making agreement to authorize supporter to provide supported decision-making, assist adult with accessing relevant information and understanding that information, and assist adult in communicating adult’s decisions to appropriate persons. Supported decision-making agreement is required to set forth rights and obligations of both adult and supporter. If supporter intimidates or deceives adult in procuring supported decision-making agreement, supporter is subject to criminal prosecution and civil penalties. Supporter prohibited from receiving compensation as result of supporter’s duties under supported decision-making agreement. An “interested person” (defined) authorized to file verified petition with superior court to determine validity of supported decision-making agreement. Supported decision-making agreement required to be signed by adult and supporter in presence of two or more subscribing witnesses or notary public. Supported decision-making agreement terminates if at any time adult becomes “incapacitated person” or on appointment of guardian. Establishes standard form for supported decision-making agreements and requires supported decision-making agreements to be in substantially that form. Supported decision-making agreement is added to definition of “governing instrument” for purpose of Title 14. Effective January 1, 2022. Passed House 59-0 02/24/21. Ready for Senate.
  • H2565 (AREA AGENCIES ON AGING; APPROPRIATION) – Appropriates $2.5 million from general fund in FY2021-22 to Dept of Economic Security to distribute to area agencies on aging for home and community-based services. Legislature intends that this appropriation be considered ongoing funding in future years. Passed House 45-14 02/24/21. Ready for Senate.
  • H2585 (OCCUPATIONAL THERAPISTS; FINGERPRINT CLEARANCES CARDS) – Beginning January 1, 2022, applicant for licensure by Board of Occupational Therapy Examiners is required to possess valid fingerprint clearance card, instead of being required to submit full set of fingerprints for criminal records check. Effective January 1, 2022. Passed House 60-0 02/11/21. Referred to Senate Health and Human Services.
  • H2792 (EARLY BALLOTS; REQUEST REQUIRED) – Except for a voter who is on permanent early voting list or for an all mail-ballot election, a county recorder, municipality clerk or other election officer is prohibited from delivering or mailing early ballot to person who has not requested early ballot for that election. An election officer who violates this prohibition is guilty of class 5 (second lowest) felony. House COW approved, as amended, 02/25/21.
  • H2811 (SAME DAY REGISTRATION; PROHIBITION) – An agency, department or division of Arizona or any person acting on its behalf, and any political subdivision or any person acting on its behalf prohibited from registering person to vote on election day and deeming that person eligible to vote in that election. Any person who violates this section is guilty of class 6 (lowest) felony. House COW approved, as amended, 02/25/21.
  • HCR2016 (INITIATIVES; SUPERMAJORITY VOTE REQUIREMENT) – The 2022 general election ballot to carry question of whether to amend state Constitution to require approval by 60 percent of votes cast on measure for an initiative or referendum measure to become law, instead of majority of votes cast. Retained on House COW calendar 02/24/21.
  • S1003 (EARLY VOTING; SIGNATURE REQUIRED; NOTICE) – If signature is missing from early ballot envelope, county recorder or other officer in charge of elections required to make reasonable efforts to contact voter, advise voter of missing signature and allow voter to add signature no later than 7:00 PM on election day. Information that must be printed in instructions to early voters must include statement that ballot will not be counted without voter’s signature on envelope. Session law states that Legislature intends these are clarifying changes only and do not provide for any substantive change in the law.  Senate COW approved 02/24/21.
  • S1007 (PARENTAL RIGHTS; TERMINATION; SEXUAL ASSAULT) – At any time, parent of child who was conceived as result of “sexual assault” (defined) committed against that parent by child’s other parent may file petition to terminate parental rights of parent who committed sexual assault. Court authorized to grant petition to terminate parental rights if it finds by clear and convincing evidence that child was conceived as result of such sexual assault. It is presumed that termination of parental rights under these circumstances is in best interest of child. If parent who is subject of the petition pleads guilty to or is convicted of sexual assault, court must accept guilty plea or conviction as conclusive proof that child was conceived as result of sexual assault by that parent. Passed Senate Judiciary, as amended (strike everything), 02/18/21. On Senate COW calendar #1 03/01/21.
  • S1028 (ALTERNATIVE ASSESSMENT; SPECIAL EDUCATION) – State Board of Education required to adopt rules that allow student to participate in alternative testing instead of required statewide testing if student is enrolled in special education program and meets criteria specified by Board. Establishes 13-member Alternative Assessment Study Committee to discuss alternative assessments and related issues. Passed Senate 28-1 01/28/21. To be heard in House Education Tuesday 03/02/21 2:00 PM, House Rm. 1. Watch here.
  • S1029 (PSYCHIATRIC SECURITY REVIEW BOARD; HEARINGS) – Numerous changes to statutes relating to Psychiatric Security Review Board. Modifies process for examining defendant pleading guilty except insane. After plea of guilty or after disposition of matter where defendant has pled guilty except insane, court is required to order reports sealed, and may order that reports be opened only for list of specified purposes. Modifies actions that the Board may take after hearing requested by person who is placed under Board jurisdiction. Establishes requirements for person who is conditionally released by Board, including that supervised treatment plan must be in place. All hearings conducted by Board are subject to Uniform Administrative Hearing Procedures Act. Procedures for requesting hearing before Board are repealed and replaced. Board is independent state agency. One former judge is added to Board as chairperson and nonvoting member, except if necessary to break tie vote. Compensation for Board members changed. Board required to employ Executive Director to perform all administrative, operational and financial functions for Board. Beginning January 1, 2022, Board members required to complete 12 hours of training within one year after initial appointment to Board. Board is authorized to set hearing to monitor person’s progress on its own motion. Establishes process for treatment supervisor to request hearing by Board. Board is required to hold hearing for each person under Board jurisdiction at least once every 24 months. Establishes procedures for and conditions under which Board may order a person’s return to secure mental health facility. Establishes process for Board to transfer jurisdiction of person from Board to superior court. Before any hearing before Board, either party permitted to retain independent qualified expert to evaluate person and make recommendations to Board. Appropriates unspecified amount (blank in original) from general fund in FY2021-22 to Board for operating costs. Passed Senate 30-0, as amended, 02/23/21. Ready for House.
  • S1030 (GUILTY EXCEPT INSANE; COURT JURISDICTION) – Repeals Psychiatric Security Review Board. Beginning from and after effective date of this act, superior court has exclusive supervisory jurisdiction over all persons under supervision of Board on the effective date of this legislation. Superior court vested with powers and duties of Board as they existed before effective date of legislation. Various sections of statute repealed and replaced or transferred to different section of statute. Impossible to determine new provisions without a line by line comparison. Effective July 1, 2022. Passed Senate 30-0 02/23/21. Ready for House.
  • S1058 (SCHOOLS; LEARNING MATERIALS; ACTIVITIES) – By July 1 of each year, each school district and charter school required to prominently list on publicly accessible portion of website “learning materials” and “activities” (both defined) that were used for student instruction at school during prior school year, organized by subject area and grade, and any procedures in effect for review or approval of learning materials and activities. Information that must be included in list is specified. Passed Senate Education, as amended, 01/26/21. On Senate COW calendar #2 03/01/21.
  • S1059 (MENTAL DISORDERS; CONSIDERATIONS; INVOLUNTARY TREATMENT) – For purpose of statutes relating to mental health services, including court-ordered evaluation and treatment, definition of “mental disorder” modified to remove language distinguishing mental disorder from conditions that are primarily those of drug abuse, alcoholism, or intellectual disability and from character and personality disorders. Person who has substance use disorder without any co-occurring mental disorder cannot be considered for involuntary treatment. Person who initially presents with impairments consistent with both mental disorder and substance use disorder eligible for screening and evaluation, and may be eligible for involuntary treatment if, after considering person’s history, appropriate examination and reasonable period of detoxification, impairments of mental disorder persist or recur. Person who has intellectual disability or character or personality disorder cannot be considered for involuntary treatment unless person also has mental disorder that would benefit from treatment. Passed Senate 29-0 02/11/21. Referred to House Health & Human Services.
  • S1061 (SCHOOLS; EMPLOYEES; EMPLOYMENT; DISCIPLINE) – Dept of Education required to investigate written complaints alleging that a “noncertificated person” has engaged in immoral or unprofessional conduct. State Board of Education authorized to review complaint to determine whether to take disciplinary action against noncertificated person who has engaged in immoral or unprofessional conduct, including prohibiting person’s employment at school district or charter school for up to five years. School districts and charter schools required to conduct search of educator information system maintained by Dept on prospective employee and prohibited from employing in position that requires valid fingerprint clearance card either certificated person whose certificate has been suspended, surrendered or revoked and not reinstated, or noncertificated person prohibited from employment at a school district or charter school by Board under this legislation. Passed Senate Education 01/13/21. Identical bill H2023 substituted. Passed House 58-0 01/28/21. Signed by Governor 02/05/21.
  • S1069 (PERMANENT EARLY VOTING LIST; ELIGIBILITY) – If voter fails to vote an early ballot in both primary election and general election for two consecutive primary and general elections for which there was federal, statewide or legislative race on ballot, county recorder is required to remove voter from the permanent early voting list and voter will no longer be sent early ballot by mail automatically. By December 1 of each even-numbered year, county recorder or other officer in charge of elections is required to send notice to each voter removed under this provision informing voter that if voter wishes to remain on permanent early voting list, voter must confirm in writing, sign notice, and return completed notice within 30 days after notice is sent. Failed Senate 15-15, as amended, 02/16/21.
  • S1085 (NURSING-SUPPORTED GROUP HOMES; LICENSURE) – By July 1, 2022, “nursing supported group home” operated in Arizona by service provider under contract with Dept of Economic Security required to be licensed as health care institution. Effective July 1, 2022, nursing supported group homes added to various statutes regulating group homes. Nursing supported group home not required to comply with zoning standards for health care institution prescribed by Dept of Health Services. Passed Senate Health and Human Services 01/20/21. Passed Senate 28-1 01/28/21. To be heard in House Health & Human Services Monday 03/01/21 2:00 PM, House Rm. 4. Watch here.
  • S1092 (DEAF; HARD OF HEARING; DEAFBLIND) – Duties of Commission for the Deaf and the Hard of Hearing expanded to include issues and services relating to needs of “deafblind” (defined), and to include making recommendations to Legislature on assessment standards that optimize language acquisition and literacy development of deaf and hard of hearing newborns, infants and children. Passed Senate Health and Human Services 01/28/21. Passed Senate 29-0 02/04/21. Referred to House Health & Human Services.
  • S1093 (DEVELOPMENTAL DISABILITIES; SPINA BIFIDA) – Definition of “developmental disability” is expanded to include severe, chronic disability that is attributable to “spina bifida”. Passed Senate 29-0 02/04/21. Ready for House.
  • S1097 (PUPILS; EXCUSED ABSENCES; MENTAL HEALTH) – Arizona Dept of Education required to identify absence due to mental or behavioral health of pupil as excused absence. ADE authorized to adopt guidelines and rules for determining what constitutes absence due to mental or behavioral health of pupil. Passed Senate 29-0 01/28/21. Referred to House Health & Human Services and House Appropriations. To be heard in House Education Tuesday 03/02/21 2:00 PM, House Rm. 1. Watch here.
  • S1114 (SCHOOLS; REQUIRED POSTING; ABUSE HOTLINE) – School district schools and charter schools required to post in clearly visible location in public area of school that is readily accessible to students a sign that contains telephone number of centralized intake hotline concerning suspected abuse and neglect of children, instructions to call 911 for emergencies, and directions for accessing website of Dept of Child Safety for more information. Passed Senate 30-0 02/23/21. Ready for House.
  • S1126 (APPROPRIATION; BEHAVIORAL RISK FACTOR SURVEY) – Appropriates $160,000 from general fund in FY2021-22 to Dept of Health Services to fund Arizona-specific behavioral risk factor surveillance survey on cognitive decline and caregiver modules. Passed Senate Appropriations 01/20/21. Passed Senate 28-1 01/28/21. Referred to House Health & Human Services and House Appropriations.
  • S1135 (INCOME TAX SUBTRACTION; 529 CONTRIBUTIONS) – Subtraction from Arizona gross income for purposes of individual income taxes for contributions to college savings plans established under section 529 of federal Internal Revenue Code modified to allow taxpayers to subtract up to $2,000 per beneficiary, instead of $2,000 total, for single individual or head of household, and to subtract up to $4,000 per beneficiary, instead of $4,000 total, for married couple filing jointly. Retroactive to tax years beginning with 2021. Passed Senate 18-12 02/16/21. To be heard in House Ways & Means Wednesday 03/03/21 9:00 AM, House Rm. 3. Watch here.
  • S1141 (HEALTH CARE INSTITUTIONS; ACCREDITATION; INSPECTIONS) – Dept of Health Services authorized to accept accreditation report in lieu of compliance inspection for any health care institution, instead of only behavioral health residential facility providing services to children, only if institution is accredited by independent, nonprofit accrediting organization approved by Secretary of the US Dept of Health and Human Services, and institution has not been subject to enforcement action within year preceding annual licensing fee anniversary date. Passed Senate Health and Human Services 01/20/21. Passed Senate 29-0 01/28/21. Ready for House. Substituted in House for identical bill 2290. Passed House 59-0. Signed by Governor 02/12/21.
  • S1142 (SMI; EMPLOYMENT; INCOME TAX CREDITS) – For tax years 2022 through 2024, establishes individual and corporate income tax credit for taxpayer who employs 100 employees or fewer and who employs at least one Arizona resident who is “seriously mentally ill” (defined elsewhere in statute). Amount of credit is $2 for each hour worked by eligible employee during calendar year, capped at $20,000 per taxpayer. If allowable amount of credit exceeds taxes due, unused amount may be carried forward for up to five consecutive taxable years. Credit is subject to aggregate cap of $5 million for any calendar year. Passed Senate 25-5 02/23/21. Ready for House.
  • S1221 (VULNERABLE ADULTS; JURISDICTION; GRAND JURIES) – Any violation of Title 13 (Criminal Code) or Title 46 (Welfare) where victim is a “vulnerable adult” is added to list of offenses or violations of law that state grand jury’s authority to investigate and return indictments for is limited to. Passed Senate Judiciary 01/28/21. Passed Senate 29-0 02/4/21. Referred to House Judiciary.
  • S1256 (VICTIMS’ PRIVACY; CRIMINAL CASE INFORMATION) – A victim’s identifying and locating information obtained, compiled or reported by law enforcement agency or prosecution agency must be redacted from records pertaining to criminal case involving victim, including discovery disclosed to defendant’s attorney or any of attorney’s staff. Passed Senate 21-9 02/16/21. Substituted in House for identical bill H2428. Passed House 58-2 02/22/21. Ready for Governor.
  • S1292 (APPROPRIATION; DYSLEXIA AND LITERACY SERVICES) – Appropriates $2.5 million from general fund in FY2021-22 to Dept of Education for list of specified dyslexia and literacy services, including designating dyslexia specialist, implementing dyslexia screening plan, improving reading proficiency of pupils in kindergarten through 3rd grade, and distributing to school districts and charter schools to provide additional funding to support students with language-based learning struggles, including dyslexia. Passed Senate 22-8 02/17/21. Failed Senate on reconsideration 15-15 02/17/21.
  • S1319 (APPROPRIATION; AGENCIES ON AGING; OMBUDSMAN) – Appropriates $1 million from general fund in FY2021-22 to Dept of Economic Security to distribute to area agencies on aging for ombudsman services. Legislature intends that appropriation be considered ongoing funding in future years. Passed Senate 23-7 02/23/21. Ready for House.
  • S1321 (APPROPRIATION; ADULT PROTECTIVE SERVICES) Makes supplemental appropriation of $3 million and 43 FTE positions from general fund in FY2021-22 to Dept of Economic Security for Adult Protective Services. Passed Senate 28-2 02/18/21. Ready for House.
  • S1355 (DEVELOPMENTAL DISABILITIES; PROVIDER INCREASES) – Appropriates following amounts in the following fiscal years to Dept of Economic Security (DES) to provide reimbursement rate increases for services to individuals with intellectual and developmental disabilities: $30 million from general fund and unspecified amount (blank in original) in Medicaid expenditure authority in FY2021-22, and unspecified amount (blank in original) from general fund and unspecified amount (blank in original) in Medicaid expenditure authority in FY2022-23 and FY2023-24. DES required to use FY2019-20 rate rebase study to provide reimbursement rate increases for all services provided to individuals with intellectual and developmental disabilities in FY2021-22, FY2022-23, and FY2023-24 so that each service receives increase in each of three fiscal years. DES required to ensure all reimbursement rates for services provided to individuals with intellectual and developmental disabilities are at 100 percent of benchmark rates by end of FY2023-24. DES is required to report to Joint Legislative Budget Committee by September 1 each fiscal year describing its plans to implement these provider rate increases. Contains a legislative intent section. Passed Senate 28-0 02/24/21. Ready for House.
  • S1373 (HEALTH FACILITIES; DUTY OF CARE) – Licensed health care institutions that provide congregant or residential care and institution’s employees and agents have affirmative duty of care for their residents. These institutions are required to provide basic life support and first aid, in accordance with resident’s advance directives and do-not-resuscitate order, including initiating immediate cardiopulmonary resuscitation (CPR) before arrival of emergency medical services, to resident who experiences symptoms of cardiac arrest or cessation of respiration. Staff certified in CPR and first aid must be available at the health care institution at all times. These institutions prohibited from implementing policies that prevent employees from providing immediate CPR, first aid or emergency care to institution’s residents. Passed Senate 25-5, as amended, 02/23/21. Ready for House.
  • S1374 (CRISIS STANDARDS OF CARE; REQUIREMENTS) – If Department of Health Services (DHS) adopts or establishes a crisis standards of care plan to address resource allocation when demand for certain health care services exceeds supply of necessary resources, a list of specified tenets and requirements apply to plan, including requiring individual assessments made on basis of best available objective medical evidence. A health care provider or health care institution staff member is prohibited from pressuring or coercing patient or patient’s health care decision maker to sign do-not-resuscitate order or make particular health care treatment decision. DHS required to modify any existing crisis standards of care plan within 60 days after effective date of this legislation to comply with these requirements. Emergency clause. Retained on Senate COW calendar 02/22/21.
  • S1376 (SCHOOLS; CURRICULUM; MENTAL HEALTH) – State Board of Education must require that all health education instruction include mental health instruction. Mental health instruction may be included in health course or another existing course and is required to incorporate multiple dimensions of health by including mental health and relationship of physical and mental health to enhance student understanding, social and emotional learning, and attitudes and behavior that promote health and well-being. Passed Senate 29-1 02/16/21. To be heard in House Education Tuesday 03/02/21 2:00 PM, House Rm. 1. Watch here.
  • S1381 (DISABILITY-SELECTION ABORTION; PROHIBITED) – It is class 2 (second highest) felony to perform an abortion knowing that abortion is sought based on disability, sex or race of child or child’s parent, and to solicit or accept monies to finance disability-selection, sex-selection or race-selection abortion. Previously, it was class 3 (upper mid-level) felony to perform abortion knowing that abortion is sought based on sex or race of child or child’s parent, and to solicit or accept monies to finance sex-selection or race-selection abortion. Increases maximum civil penalty for physician, physician’s assistant, nurse, counselor or other medical or mental health professional who knowingly does not report known violations of this section to appropriate law enforcement authorities to $20,000, from $10,000. Passed Senate Judiciary, as amended, 02/18/21. No further action to date.
  • S1389 (INCAPACITATED PERSON; SPECIAL INVESTIGATOR) – In domestic relations proceeding, if court finds reasonable cause to believe an adult party is or may be “incapacitated person” or “person in need of protection” (both defined elsewhere in statute) and that party is or may be in need of guardianship and/or conservatorship, court is authorized to appoint special investigator to conduct investigation concerning need for guardian and/or conservator. If deemed necessary, on request of special investigator or on court’s own motion court is authorized to order independent evaluation by licensed physician. A special investigator appointed by court and any evaluator designated by court may receive reasonable compensation for work performed, which must be paid for by person alleged to be incapacitated or in need of protection or paid from appropriate available marital community property fund or asset. Passed Senate 28-0 02/25/21. Ready for House.
  • S1390 (GUARDIAN AD LITEM; PROTECTIVE PROCEEDING) – Court is authorized to appoint guardian ad litem for individual if court determines that individual’s best interest otherwise would not be represented or adequately protected. If conflict of interest does not exist, a guardian ad litem may be appointed to represent multiple individuals or interests. If not otherwise compensated, guardian ad litem is entitled to reasonable compensation from estate of ward or protected person. Passed Senate Judiciary, as amended, 02/18/21. On Senate COW calendar #2 03/01/21.
  • S1415 (GUARDIANSHIP PROCEEDINGS; SEALING OF RECORDS) – If petition for guardianship is withdrawn before adjudication of incapacity or is denied based on finding that allegation of incapacity is unproven, or if petition for guardianship was filed frivolously or without merit, court is permitted to order that file and records contained in file be sealed. A file that is sealed may only be unsealed pursuant to court order after showing of good cause. Passed Senate 30-0 02/24/21. Ready for House.
  • S1417 (HEALTH CARE DIRECTIVES; CONTACT ORDERS) – An agent who is appointed under health care directive is required to encourage and allow contact between principal and other persons who have significant relationship with principal, but is authorized to limit, restrict or prohibit contact between principal and any person if agent reasonably believes that contact will be detrimental to principal’s health, safety or welfare. A person who has significant relationship with principal may petition court for order compelling agent to allow person to have contact with principal. Establishes list of factors court must consider in determining what, if any, contact between person and principal is in principal’s best interest. Establishes requirements for modifying, suspending, or terminating contact order. Senate COW approved, as amended, 02/25/21.
  • S1456 (SEX EDUCATION INSTRUCTION; PARENTAL RIGHTS) – School districts and charter schools prohibited from providing sex education instruction before 5th grade. Prohibits charter schools, in addition to school districts, from providing sex education instruction to student unless student’s parent provides written permission. Written permission from a parent is also required for student to participate in instruction on AIDS and HIV. School districts and charter schools required to make any sex education curricula, including curricula related to instruction on AIDS and HIV, available for parent’s review, and to notify parents where curricula is available before parent provides written permission. Before school district or charter school offers sex education instruction, school district governing board or charter school governing body required to review and approve sex education course of study and ensure compliance with statute. Before approval, board must make any proposed sex education course of study available to public for review and comment. Public educational institutions required to obtain signed, written consent from student’s parent or guardian before providing sex education instruction or instruction regarding sexual orientation, gender identity, or gender expression to student. When public educational institution seeks consent, it must at same time inform student’s parent or guardian of parent or guardian’s right to review instructional materials and activities. By December 15, 2021, each school district and charter school that offers any sex education instruction required to review its course of study and revise to comply with legislation. On Senate COW calendar #2 03/01/21.
  • S1457 (ABORTION; UNBORN CHILD; GENETIC ABNORMALITY) Numerous changes to statutes relating to abortion. Laws of Arizona are required to be interpreted and construed to acknowledge, on behalf of an “unborn child” (defined elsewhere in statute) at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of Arizona, subject only to U.S. Constitution and decisional interpretations thereof by U.S. Supreme Court. Does not create cause of action against woman for indirectly harming her unborn child by failing to properly care for herself or failing to follow any particular program of prenatal care. Except in medical emergency, it is class 3 (upper mid-level) felony to knowingly perform abortion knowing that abortion is sought because of “genetic abnormality” (defined) of child. It is class 3 (upper mid-level) felony to knowingly use force or threat of force to coerce abortion because of genetic abnormality of child or to solicit or accept monies to finance abortion because of genetic abnormality of child. A facility run by or that operates on property of public educational institution, and person who is employed by public educational institution acting within scope of employment are prohibited from performing or providing abortion, unless abortion is necessary to save life of woman having abortion, counseling in favor of abortion, or providing referral for abortion. Public monies or tax monies of Arizona or political subdivision, including federal pass-through monies, and monies paid by students as part of tuition or fees to state university or community college are prohibited from being expended or allocated for research project that involves abortion or human somatic cell nuclear transfer. Dept. of Health Services required to adopt rules relating to final disposition of bodily remains from surgical abortion, which must include that woman has right to determine final disposition of bodily remains and be informed of available options. Abortion-inducing drug may be provided only by qualified physician in accordance with statutory requirements. Manufacturer, supplier or physician or any other person prohibited from providing abortion-inducing drug via courier, delivery or mail service. More. Legislature, by concurrent resolution, may appoint one or more members who sponsored or cosponsored legislation in member’s official capacity to intervene as matter of right in any case in which constitutionality of legislation is challenged. Severability clause. Passed Senate Judiciary 02/08/21. No further action to date.
  • S1466 (FAMILY CAREGIVER GRANT PROGRAM) – Family Caregiver Grant Program expanded to include individual’s qualifying expenses during a calendar year due to caring for and supporting qualifying family member in qualifying family member’s primary residence, in addition to in individual’s home. An individual who receives Program grant ineligible to apply for another Program grant after receiving $1,000 for each qualifying family member, instead of being ineligible for three consecutive calendar years after receiving a Program grant. Session law allows individual who received Program grant before effective date of this legislation to apply for additional grant monies if individual has not received grant monies totaling $1,000 for each qualifying family member. Passed Senate 30-0 02/18/21. Ready for House.
  • S1512 (VULNERABLE PERSONS; INSPECTIONS; NEGLECT) – Increases criminal classification for improper, abusive treatment or neglect of person with developmental disability to class 1 (highest) misdemeanor, from class 2 (mid-level) misdemeanor. Definition of “neglect” for this purpose expanded to include intentional failure to report client’s health problems or changes in client’s health condition to an immediate family member or client’s guardian, health care advocate or health care power of attorney within 24 hours, and intentional failure to attempt to restore client’s health to equilibrium as soon as reasonable. Dept of Health Services (DHS) required to visit each adult developmental home and child developmental home without prior notice at least two times each calendar year, instead of annually, and inspect the premises. During each visit, DHS required to communicate with each resident without presence of home’s staff. Office of State Long-term Care Ombudsman required to visit each long-term care facility in Arizona without prior notice at least two times each calendar year to speak with each resident without presence of the facility’s staff. Passed Senate Health and Human Services 02/18/21. No further action to date.
  • S1593 (EARLY VOTING; TIME LIMITS; ENVELOPE) – Early ballot distribution cannot begin more than 22 days, decreased from 27 days, before election, and early ballots must be mailed no later than 19th day, instead of 24th day, before election. Officer charged by law with duty of preparing ballots is required to provide second internal envelope that bears ballot affidavit and is designed to contain voted ballot and be placed inside ballot return envelope. If voter mails voted ballot and affidavit to county recorder or other officer in charge of elections, ballot is valid only if postmarked on or before Thursday before election day and received no later than 7PM on election day. Withdrawn from Senate Government; referred to Senate Appropriations. Passed Senate Appropriations, as amended, 02/24/21. On Senate COW calendar #2 03/01/21.
  • S1660 (CRIMES AGAINST CHILDREN; DEPENDENCIES; OMNIBUS) – Numerous changes to statues relating to dependent children. For purpose of Criminal Code relating to sexual offenses, definition of “position of trust” expanded to include adult school employees, minor’s employer, employee of group home or residential treatment facility where minor resides, and more. On motion of prosecution, court may order that pro se defendant in prosecution for sexual abuse or child sex trafficking is prohibited from directly questioning minor victim if court determines direct questioning by pro se defendant would prevent minor victim from being able to reasonably communicate. Term “child sex trafficking” replaces term “prostitution” in various statutes. State Board of Education required to establish best practices for social media and cellular telephone use between students and school personnel, including teachers, coaches and counselors, and encourage school district governing boards and charter school governing bodies to adopt policies that implement these best practices. Dept of Education required to develop statewide training curriculum on child abuse mandatory reporting laws for public school personnel, and each public school must require its personnel to complete training. On Senate COW calendar #3 03/01/21.
  • S1680 (NEWBORN SCREENING PROGRAM; TESTING) – Newborn screening program is required to include all congenital disorders included on recommended uniform screening panel adopted by Secretary of U.S. Dept of Health and Human Services for both core and secondary conditions. Beginning January 1, 2022, disorders added to core and secondary conditions list of recommended uniform screening panel must be added to Arizona’s newborn screening panel within two years after addition. Session law requires Dept of Health Services (DHS) to add spinal muscular atrophy and x-linked adrenoleukodystrophy to Arizona’s newborn screening panel by December 31, 2021 and add all remaining core and secondary conditions included on recommended uniform screening panel as of December 31, 2021 to Arizona’s newborn screening panel by December 31, 2023. Additionally, within 60 days after DHS adjusts fee for newborn screening program, each health insurer is required to update hospital rates that include newborn screening to reflect increase. Senate COW approved, as amended, 02/25/21.
  • SCR1001 (STATE OF EMERGENCY DECLARATION; TERMINATION) – Legislature declares Declaration of Emergency issued by Governor on March 11, 2020, due to COVID-19 outbreak is terminated. Secretary of State is directed to transmit copy of resolution to Governor. Referred to Senate Government and Senate Appropriations. Passed Senate government 01/26/21. Passed Senate Appropriations 02/09/21.
​​On the Bright Side…

A green wave may be coming your way soon. Through a joint initiative between Local First Arizona and the City of Mesa, the Arizona Green Business Program is expanding to involve more of the region’s independently owned business in a certification process that recognizes their sustainability efforts. The program, which aims to help businesses minimize their environmental footprint and maximize the resulting business benefits, has already seen participation from businesses in both Phoenix and Tempe.

On the Federal Front…Major Recent Events

Senate Committee Approves Cardona, Walsh Nominations
 

On February 11, the Senate Committee on Health, Education, Labor, and Pensions voted to favorably report the nominations of Miguel Cardona for Secretary of Education and Marty Walsh for Secretary of Labor. The Department of Education is responsible for implementation of federal education laws, including the Individuals With Disabilities Education Act, the Every Student Succeeds Act, and the Higher Education Act. The Department of Labor is the agency responsible for the implementation of federal labor and employment laws, including those relating to wages and hours. Additionally, it includes the Office of Disability Employment Policy, which is a non-regulatory agency that promotes employment of people with disabilities. Visit the Committee website for more information or to access live video of the executive session at which the nominations were approved.

Biden Nominates Chiquita Brooks-LaSure for CMS Administrator

On February 17, President Biden nominated Chiquita Brooks-LaSure for Administrator of the Centers for Medicare and Medicaid Services (CMS). CMS oversees both Medicare and Medicaid. Medicare is the national health insurance program available to people age 65 or older, younger people with disabilities, and people with end-stage renal disease. Medicaid is a joint state-federal health insurance program for low-income individuals. Both programs serve people with disabilities. In addition to medical care, Medicaid also covers long term supports and services, such as residential support, personal assistance, respite care, supported living, assistive technology, and supported employment.

CMS Rescinds Guidance Allowing Medicaid Work Requirements

On February 12, CMS rescinded guidance from 2018 that encouraged states to implement Medicaid work requirements. Additionally, CMS indicated that it would begin to unwind currently approved waivers allowing work requirements. Medicaid work requirements can cause many low-income adults to lose coverage and hurt people with disabilities.

House Budget Committees Mark Up Reconciliation Bill

On February 22, the House Budget Committee marked up the reconciliation bill, combining sections submitted by authorizing committees. Notable provisions include:

Agriculture Committee

  • Extension of Supplemental Nutrition Assistance Program (SNAP) benefit increase through September

Energy and Commerce Committee

  • $9.3 billion of additional federal funding for Medicaid home and community-based services (HCBS)

Ways and Means Committee

  • Economic Impact Payments of $1,400 per person, including for adult dependents
  • Temporary increase in premium tax credits under the Affordable Care Act
  • Extension and expansion of paid leave tax credit
  • Expansion of Earned Income Tax Credit for childless adults
  • Temporary increase and extension of unemployment benefits
Financial Services Committee
  • $10 billion for Defense Production Act spending
  • $25 billion for emergency rental assistance
If passed by the House, a reconciliation bill can be passed by the Senate with a simple majority.

Senate Committees Holds Hearings on Becerra Nomination

On February 23, the Senate Health, Education, Labor, and Pensions Committee held a hearing on the nomination of Xavier Becerra to be Secretary of Health and Human Services (HHS). The Senate Finance Committee held a hearing on his nomination on February 24. HHS is the cabinet level department that administers most federal health and social service programs, including Medicare, Medicaid, Affordable Care Act programs, Developmental Disabilities Act programs, Head Start, and Temporary Assistance for Needy Families. Additionally, it oversees the Centers for Disease Control and Prevention, the Food and Drug Administration, and the National Institutes of Health.

Senate Committee Holds Hearings on Garland Nomination

The Senate Judiciary Committee held two days of hearings on the nomination of Judge Merrick Garland to be Attorney General beginning February 22. The Attorney General is a cabinet level position in charge of the Department of Justice, which is responsible for enforcing federal civil rights laws, including the Americans With Disabilities Act. Visit the committee website (Day 1Day 2) for more information or to access video of the hearing.
Announcements
CMS Announces Special Enrollment Period for Health Coverage
The Centers for Medicare and Medicaid Services (CMS) has announced it will open a special enrollment period for federal marketplace health coverage. Typically, individuals can only enroll in marketplace health coverage or change plans toward the end of the year or after a major life event. As a result of the COVID-19 pandemic, CMS opened a special enrollment period from February 15 to May 15 for individuals in states that use the federally facilitated marketplace (healthcare.gov). Additionally, several states with states-based marketplaces have also announced special enrollment periods.
Amtrak Accepting Claims in DOJ Settlement
The Department of Justice recently announced the opening of the Compensation Fund in their 2020 settlement with Amtrak. More information on how to submit a claim can be found here: $2.25 Million Fund Available in Justice Department Settlement With Amtrak.
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