Legislator pushes to be involved in public health rules-making process

Some members of the Arkansas Legislature, including Rep. Dan Sullivan, R-Jonesboro, think legislators should have some oversight when it comes to COVID-19 response rules enacted by the state’s Department of Health.

Gov. Asa Hutchinson and former Secretary of Health Dr. Nate Smith have issued several rules and guidelines during the COVID-19 outbreak aimed at curbing the spread of the lethal virus.

Sullivan sent a letter to the department earlier this month that asks the department to follow the Administrative Procedures Act and use the committee process when formulating rules about public health issues during the pandemic. He said this would allow legislators the ability to vet some of the measures before they are enacted.

After he didn’t receive a response, Sullivan sent a second letter to the department. He said he doesn’t expect a response and wants to know why. Sullivan said he’s contacted other agencies in the past and he’s always received a response within a few days.

“It is of great concern that a week has passed from your receipt of our letter and we have not heard from you nor any member of your staff,” Sullivan wrote to Smith earlier this month.

Sullivan is likely to not receive a response. Arkansas Health Department public information officer Gavin Lesnick told Talk Business & Politics they received the letters and forwarded them to the governor’s office. The department will defer all responses to these questions to the governor’s office, he added.

Hutchinson sent Sullivan a letter addressing his concerns, Communications Director Katie Beck told Talk Business & Politics. In the letter, the governor said steps taken by the department comply with state laws. The governor said Sullivan has misinterpreted what the health department is doing.

“Based on this misrepresentation … you assert that I have granted Dr. Smith unchecked authority to issue ‘orders’ that are actually ‘rules’ under the Arkansas Administrative Procedures Act. Your letter never references any particular order with which you take issue.”

The letter also lists several orders Smith issued against individual businesses and organizations that violated state mandates to stop the spread of the virus. He said those orders are not rules and therefore not subject to the APA.

“While Dr. Smith has issued few orders, he has issued guidance and directives in consultation with me and at my direction during this public health emergency in an attempt to control and respond to the spread of COVID-19. The guidance and directives issued by Dr. Smith are not rules. In issuing the directives and guidance, Dr. Smith carried out his administrative duties as mandated by law, and allowed by promulgated rules and executive orders,” the governor noted in the letter.

Easily the most controversial decision since the crisis started was the public mask mandate that went into effect on July 20. The governor has received pushback from some state residents and even a few law enforcement officials.

“It’s still surprising to me as to how many think that wearing a mask is about protecting yourself. It’s really about helping your neighbor. It’s about being together as a state and simply working together to try to get through this pandemic, this challenge that we face. And I think that you will see from statistics today, that we still have a lot of work to do,” the governor said Monday.

Sullivan said he thinks masks are useful in slowing the spread and believes the governor has the power to push for a mandate, but doesn’t believe the governor has the statutory authority to do so.

“He does have the power, but power and authority are two different things,” Sullivan said.