‘Prove it.’ Skepticism grows over speed and legality of Dunleavy’s proposed division of DHSS

The House Health and Social Services Committee meets on March 6, 2021.

The House Health and Social Services Committee is putting in extra work to understand and evaluate the Dunleavy administration’s plan to divide the Department of Health and Social Services into two departments via executive order and what they’ve found is nothing but skepticism.

The committee met this weekend to continue hearing from groups who’ve almost universally said the state is rushing the process without adequately addressing concerns from stakeholders or explaining what will change and how those changes will make services better. Process isn’t the only concern, either, and the Legislature’s nonpartisan legal team has also produced a memo that finds legal several flaws that would make the split a prime target for a lawsuit.

The committee is considering a special resolution that would halt the executive order with a hearing scheduled on it for 3 p.m. today.

The administration has argued that the Department of Health and Social Services is too large and unwieldy for Commissioner Adam Crum and his executive office to handle on their own. They’ve argued that adding a new slate of more than a dozen executives for a second department, called the Department of Family and Community Services, would free up attention to the pressing issues facing the department. Crum’s downplayed concerns that the changes would result in impacts for on-the-ground employees or people who utilize the services, arguing that phone numbers and emails will remain the same after the change.

It’s been a very different story for the roughly two dozen groups and individuals that have testified to the House Health and Social Services Committee, who’ve warned that there are more questions than answers in an outreach process that only started after the governor unveiled the plan last December.

“I’m not necessarily opposed to the proposed split in the executive order. However, I’m vehemently opposed to the manner in which this has played out. I’m asking the Legislature to slow the roll on this,” said National Alliance on Mental Illness-Alaska Executive Director Jason Lessard, who was speaking in a personal capacity. “This could be a good idea and if so it will continue to be a good idea in six months or a year. Perhaps, an even better idea if tempered by the actual stakeholder engagement something this executive order has glaringly and offensively lacked.”

Lessard, who’s also a member of the governing body of the Alaska Psychiatric Institute, said that much of the plan is far too similar to the Dunleavy administration’s hasty attempt to privatize API, which was ultimately stopped when the administration’s assumptions about savings and service didn’t match up with reality.

“I’d like the department to show us how this will help the department to help Alaskans with better outcomes. I’m sorry but the updated organization charts and aspirational budgets without real inputs from stakeholders is just not cutting it,” he said. “I’m opposed to this flawed, reactionary and unilateral process. If it’s a good idea, prove it.”

The Legislature has until March 21 to stop the executive order via the special resolution introduced by the House Health and Social Services Committee. The special resolution faces a different process than most bills as it needs to be heard by a committee in each chamber before it’s sent to a joint session of the Legislature where a simple majority would be needed to halt the legislation.

Substantial litigation risk

But like most things with the Dunleavy administration, the executive order is considered to be carrying a “substantial litigation risk” according to the Legislature’s nonpartisan legal team. The Legislative Affairs Agency produced a legal memo reviewing Executive Order 119 finding several areas where the order steps out of the bounds set by the Alaska Constitution. The constitution allows the governor to reorganize departments via executive order but he’s not allowed to delete or add functions or make substantive changes to law. But that’s exactly what the governor does in more than a dozen different sections, according to the memo.

“It appears that this executive order would impermissibly create substantive changes to existing law. However, this is a lengthy, complete and dense executive order and it is possible that additional legal questions and issues may exist,” explained the memo. “The executive order also contains multiple errors and technical issues that cannot be corrected by the revisor and editor through the enrollment process.”

The big takeaway problems with the order are as follows:

  • It changes law by preventing registered nurses from pronouncing the death of a patient at the Alaska Pioneers’ Homes and Alaska Veterans’ Home. It’s a power that nurses currently have under state law that’d be taken away by the executive order.
  • It adds the new commissioner to several boards, taking several committees from an odd number of members to an even number of members while also inflating the administration’s sway on the committees.
  • It deletes the definition of “crisis stabilization center” from state law altogether. The language was added just last year in an effort by the Legislature to ensure people in crisis get the treatment they need when interacting with law enforcement. As the legal memo notes, this will create unintended problems.

Legal analyst Andrew Dunmire told the committee that if it goes forward, the executive could be a prime target for a lawsuit.

“I think there is a risk if Executive Order 119 goes into law that there would be a lawsuit,” he said. “There’s certainly the potential that somebody with an actual interest in the changed law or public interest litigant brings a case. I think that one of the arguments that would be made by a plaintiff in that situation in court would be that the governor has usurped the Legislature’s power by enacting statutes via executive order. To predict how that would play out, I think is not something I feel comfortable doing but I can say there is a substantial litigation risk if this executive order becomes law.”

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