Capitol Updates

 This week's Capitol Updates newsletter:


January 14, 2019

It looks like we may be in for a wholesale change in the way state government works in the upcoming session.

During the campaign Governor Stitt made an issue of the so called "weak governor" system in effect in Oklahoma since statehood and proposed putting the power to "hire and fire" agency directors in the hands of a "strong" governor. Legislative leaders have endorsed the idea. Oklahoma became a state during time of populism which, by definition, means distrust of concentrating a lot of power in one person. That culture continued and developed through the years and, as additional agencies were created, the legislature followed the model of spreading power among citizen boards and commissions appointed by the governor but not under his direct control. In this way we are similar with Texas and some other states.

In 2012, largely because of dissatisfaction with the Department of Human Services, the people approved a legislative referendum repealing the constitutional Commission for Human Services. The dissatisfaction was reaction to a federal lawsuit filed against DHS because of its perceived failure to adequately care for children placed in its custody for their protection. Since then the Director of Human Services has been a direct appointee of the governor. It's arguable whether the method of employing the director has influenced the performance of DHS one way or the other.

Under our current system agencies like the State Bureau of Investigation, The Bureau of Narcotics and Dangerous Drugs, the Department of Mental Health and Substances Abuse Services, the Office of Juvenile Affairs, the Department of Corrections and dozens of other agencies are managed by directors selected by citizen boards and commissions appointed by the governor (and some partly by legislative leaders) who monitor their performance and determine agency policies. Governors with strong personalities, who wanted to, have usually had plenty of input in the hiring and firing process through their commission appointees and their public bully pulpit when necessary, but that's not the same as a direct line of command.

I think there will be a sea change in Oklahoma government with some unexpected results. There's little doubt, with one boss at the top of the heap, with direct line authority, government could operate more efficiently. It can be less messy with decisions coming quickly. Whether the decisions are good ones, and the state is better off, will depend more than ever on who the governor is. One result of the board and commission form of government is, it has operated largely outside the influence of political ideology. Agency directors committed to the services their agency provides, will be subject directly to wishes of the governor, or possibly some underling in the governor's office. Those wishes may be heavily influenced by politics or ideology. And legislators? Well, they may find themselves dealing with that same underling instead of with the agency director as they do now.

One could argue the merits of either system, strong governor or weak governor. Since we have zero experience with Governor Stitt, or the other governors in our future, ask yourself this: Would it be a good thing for the people of the state if Governor Fallin had been in direct control of all the agencies of state government for the past 8 years?

Federal public comment on proposed SoonerCare work requirements open until Jan. 18

Tyler Talley, eCapitol

The Oklahoma Health Care Authority's (OHCA) proposal for SoonerCare work and community engagement requirements will remain open for public comment on the federal Medicaid website until later this month.
OHCA formally submitted its waiver amendment for the new requirements to the Centers for Medicare and Medicaid Services early last month. The federal public comment period began Dec. 20 and remains open until Jan 18.
At press time, the proposal has received just over 290 responses from the public.
"After that they (CMS) will review all of their comments and that's when they'll start talks with us," OHCA Senior Public Information Representative Katelynn Burns said Thursday.
Burns noted CMS could consider the proposal as long as it deems necessary after its public comment period concludes.
In an executive order issued in the spring, Gov. Mary Fallin directed OHCA to formulate a proposal for Medicaid waiver authority to pursue modifications to Medicaid eligibility criteria and establish work or work-related requirements for certain Medicaid recipients to qualify for the program to be sent to CMS for consideration.
Coinciding with this executive order, Fallin also signed House Bill 2932 in May. Fallin's Communications Director Michael McNutt explained the bill works "in tandem" with the prior executive order.
"The executive order provides a timeline (six months) to establish work requirements for Medicaid recipients," he explained. "HB2932 provides policy and sets that policy into statute, which means it is not dependent on an executive order."
House Bill 2932, by Rep. Glen Mulready, R-Tulsa, and Sen. Adam Pugh, R-Edmond, requires the Oklahoma Health Care Authority (OHCA) to seek Medicaid waiver authority to pursue modifications to Medicaid eligibility criteria so that receipt of SoonerCare coverage for certain Medicaid populations is conditional upon documentation of certain education, skills, training, work or job activities. It exempts Insure Oklahoma eligibility criteria from the requirement. The bill requires the SoonerCare eligibility modifications to include criteria for work or job activities as required for the Supplemental Nutrition Assistance Program (SNAP) and for a SoonerCare enrollee to comply with the work requirements in order to remain eligible for SoonerCare. It requires eligibility criteria exemptions to be the same as those for SNAP or Medicaid populations excluded pursuant to federal Medicaid laws and guidelines. It permits the state to adopt additional exemptions subject to agency rule-making and federal approval.
Pending CMS approval from CMS, the agency will implement new rules requiring SoonerCare applicants or existing members, not otherwise exempted, age 19-50 to provide verification of employment or community engagement in specified educational, job training or job search activities for an average of 80 hours per month.
Those who fail to meet the community engagement requirements for three months during a plan year, unless otherwise exempted, will be disenrolled from the program until requirements are met.
To prepare its draft waiver, OHCA hosted a series of public meetings across state as required by the legislation and CMS to allow for input from stakeholders and those potentially affected by the proposed changes. Given the matters scope and complexity, OHCA extended its public comment period to 90 days.

Oklahoma AARP, Alzheimer's group announce support for antipsychotic medication measure

Shawn Ashley, eCapitol

AARP Oklahoma and The Alzheimer's Association Oklahoma Chapter announced their support Wednesday for SB0142, a measure that would require a nursing home resident to have a psychiatric diagnosis prior to the prescription of antipsychotic medications.
"We have a moral imperative to provide quality care to our state's elderly population, but far too often nursing home residents without an appropriate diagnosis are subjected to strong medications with significant side effects. Without immediate reforms, our state's most frail and vulnerable will continue to fall victim to this crisis," said Sean Voskuhl, AARP Oklahoma State Director and a former state representative.
Oklahoma ranks first in the nation for nursing home resident use of antipsychotic medications without a psychiatric diagnosis, according to an August 2018 AARP report. One in five nursing home residents currently receive an antipsychotic medication without a proper diagnosis. According to research from International Psychogeriatrics1, the failure to properly diagnosis the underlying condition prior to the use of antipsychotic medications can severely impact residents' health, including increased risk of falls, cardiovascular issues, accelerated cognitive decline and even premature death.
SB0142, by Sen. Stephanie Bice, R-Oklahoma City, prohibits, except in case of emergency, long-term care facility residents being prescribed or administered an antipsychotic drug that was not already prescribed to the resident prior to admission to the facility unless certain conditions are satisfied. The bill requires the prescribing clinician to obtain written, voluntary informed consent to authorize the administration of an antipsychotic drug to a facility resident from the resident or the resident's legal representative prior to the administration of the antipsychotic drug. It requires voluntary informed consent meet certain conditions. It requires the prescribing clinician to inform the resident or the resident's legal representative of the existence of the long-term care facility's policies and procedures for compliance with informed consent requirements and to make them available to the resident or resident's legal representative prior to administering any antipsychotic drug upon request. The bill requires antipsychotic drug prescriptions and administration be consistent with standards for dosage, duration and frequency of administration that are approved for the resident's condition. It requires the prescribing clinician or designee to monitor the resident's condition and evaluate drug performance with respect to the condition for which the drug was prescribed throughout the duration of the administration of an antipsychotic drug and at intervals approved for the resident's condition. It requires the prescribing clinician to provide documentation of the status of the resident's condition to the resident or the resident's legal representative upon request and without unreasonable delay. It requires any change in dosage or duration of the administration of an antipsychotic drug be justified by the prescribing clinician with documentation on the resident's record of the clinical observations that warranted the change. It prohibits any long-term care facility from denying admission or continued residency to a person on the basis of the person's or their legal representative's refusal to the administration of antipsychotic drugs, unless the prescribing clinician or care facility can demonstrate that the resident's refusal would place the health and safety of the resident, the facility staff, other residents or visitors at risk. It requires any care facility that alleges that the resident's refusal to consent to the administration of antipsychotic drugs will place the health and safety of the resident, the facility staff, other residents or visitors at risk to document the alleged risk in detail, and to present the documentation to the resident or the resident's legal representative, to the State Department of Health and to the Long-Term Care Ombudsman; and to inform the resident or their legal representative of the resident's or legal representative's right to appeal to the Long-Term Care Ombudsman. The bill requires the documentation of the alleged risk include a description of all non-pharmacological or alternative care options attempted and why they were unsuccessful. It defines applicable terms.
The Oklahoma Chapter, Alzheimer's Association Director of Advocacy, Randle Lee stated, "Our association is pleased to work with AARP on this legislation. Over the past three years, we participated in studies regarding the usage of these types of drugs, and the results lead us to believe such legislation is necessary. The unnecessary prescribing of antipsychotic drugs to residents with dementia can cause over-sedation, falls and death. Many times, these drugs are used in agitation cases with dementia patients when better training of staff could more appropriately address the situation."
SB0142 is one component of AARP Oklahoma's Long-term CARE (Creating Accountability, Reform and Excellence) Plan. The CARE Plan is a series of legislation that seeks to improve resident safety and improve access to home and community-based services.

House, Senate to convene 57th Legislature

Shawn Ashley, eCapitol

The First Session of the 57th Legislature gets underway Tuesday when lawmakers return to the Capitol for organizational day.
Tuesday's meeting is required by the Oklahoma Constitution, which calls for lawmakers to meet the first Tuesday following the first Monday of January in odd-numbered years. The House and Senate will convene at noon, as required by the Constitution, and must adjourn no later than 5 p.m.
One of the first items of business in each chamber will be to certify the results of the 2018 elections, the final step in the electoral process, and to seat the members.
In the House, Rep. Charles McCall, R-Atoka, is expected to be elected to a second term as the chamber's leader. Republicans outnumber Democrats 77-24 in the House. Across the rotunda in the Senate, Sen. Greg Treat, R-Oklahoma City, is expected to be elected President Pro Tempore. Republicans have a 39-9 advantage in that chamber.
The Senate and House are expected to take up their chambers' rules for the 57th Legislature during their respective floor sessions Tuesday.
The Senate also may approve its committee assignments for the first session, as well as mileage and office budgets. The House, too, likely will take up mileage and office budgets. House committee assignments are being finalized.
The two chambers are scheduled to meet in a joint session at 2 p.m. to certify the 2018 congressional election returns.
The House and the Senate will return to the Capitol on Feb. 4 when Governor-elect Kevin Stitt, who will be sworn in Jan. 14, will deliver his first state of the state speech and present his first executive budget.

House adopts rules for 57th Legislature

Sidney Lee, eCapitol

The House adopted rules Tuesday for the 57th Legislature but the minority party was not happy with many of the changes.
Rep. Terry O'Donnell, R-Catoosa, introduced HR1001.
HR1001, by Rep. Charles McCall, R-Atoka, establishes House Rules for the 57th Legislature (2019-2020).
O'Donnell said many of the changes were requested by the presiding officer team.
Rep. David Perryman, D-Chickasha, requested each rule be discussed individually but Rep. Jon Echols, R- Oklahoma City, moved to table Perryman's motion because the House constitutionally had to finish business by 5 p.m. Perryman's motion was tabled.
There were slight changes to many rules, but the two main new rules prohibited members from recording videos on the House floor and requires members be on the House floor to vote.
O'Donnell said the first rule was requested by members who did not appreciate being in the background of videos when they had not consented to be recorded. Rep. Emily Virgin, D- Norman, argued members of the House do not have any right to privacy while on the floor conducting business.
Virgin said if someone wanted to have a conversation that was not public they should not do so on the floor or they should not have the conversation at all.
Perryman, Virgin and Rep. Regina Goodwin, D-Tulsa, took issue with one change made to many rules giving the Speaker the ability to authorize more legislation move outside of the regular process. O'Donnell argued the changes were either on behalf of staff or helped House dictate its own agenda and not be beholden to the Senate, using one rule allowing the Speaker to bring bills to the House floor without a Senate author.
O'Donnell said he believed the Speaker would not solely use these rules for Republican representative nor would they be used to punish Democratic Representatives.
Perryman said House rules are designed to protect the minority and when a Speaker can easily bypass procedures, the rules no longer fulfill their purpose.
The rules passed 75-22.

Treat: 'Thank you for this view from the fencepost'

Shawn Ashley, eCapitol

Sen. Greg Treat was elected Senate president pro tempore Tuesday during the Legislature's organizational day and told his fellow members he felt like the proverbial turtle on a fencepost: "When you see a turtle on a fencepost, you know he did not get there on his own."
"I stand here today as that turtle on a fencepost," said Treat, R-Oklahoma City.
Treat was nominated for the position by Sen. Kim David, R-Wagoner, who he later named Senate Majority Floor Leader. The nomination was seconded by Senate Minority Leader Kay Floyd, D-Oklahoma, who also moved that nominations cease. Treat was elected on a 47-0 vote. Sen. Joseph Silk, R-Broken Bow, was absent from Tuesday's proceedings.
Treat said Floyd's seconding of his nomination meant a lot to him and said a lot about the chamber.
"I want you to hear on the Democratic side of the aisle: You are part of the Oklahoma Senate, too," Treat said. "You got elected. I value that you serve your district and anything that I can do to make this place more successful for anybody in here I will."
"I stand here today on many people's shoulders," Treat said.
He thanked former Senate President Pro Tempores Brian Bingman and Mike Schulz, under whom he served in the Senate. I have learned a lot from those two gentlemen," he said.
Treat recognized those he said were the ones really responsible for him standing before the Senate as its newly elected leader: His parents, brothers, grandfather, a summer school reading teacher, a high school English, a high school math teacher, coaches and candidates with whom he had worked.
"And those who helped that I don't even know, I thank you," Treat said.
"Thank you for this view from the fencepost. I will do my best to honor it. I love this institution that is the Oklahoma Senate," Treat said.
"This place is different," Treat added. "This place is special. This place is something I will do everything within me to defend its reputation and protect its reputation...I love this place."
Treat reflected on when he was first elected to the Senate in 2011 and sat by former Sens. John Sparks, Tom Ivester and Tom Adelson, all Democrats. Treat noted, however, that he and Adelson, who was on the floor Tuesday, became good friends. "I grew to love Tom, he said and urged members to put aside their party labels and to develop relationships with them that he said would be "life-changing."
"I consider Tom one of my dearest friends, even though he is wrong on most issues," Treat joked.
"Under my leadership, what can you expect?" Treat asked. "We are going to lead by example. We are going to lead creatively. We are going to lead through bipartisanship. We will be proactive, rather than reactive."
Treat noted the Senate has suffered "several black eyes" in recent years. "We must honor the constituents who put us here," he said. "I will demand of my and of you be above reproach. We must restore public trust in this institution."
Concluding his remarks, Treat said he was reminded of those times he went rabbit hunting with his father, who told him to leave the field in which they were hunting better than they found it.
"My deepest hope in this position is that we leave Oklahoma better than we found it," Treat said.
In other action Tuesday, the chamber also adopted by a voice vote its Senate Rules for the 57th Legislature.
The rules include a new provision concerning committee votes. The new provision requires every senator present during a committee vote to cast a vote unless they take constitutional privilege. A senator who fails to vote will be shown as voting no on the question and the no vote will be included in the determination of whether the measure passes or fails.
Like the House, the Senate adopted a new rule Tuesday that prohibits members from recording or broadcasting, or allowing another person to record or broadcast, Senate floor proceedings without the express approval of the President Pro Tempore or Majority Floor Leader. [Editor's Note: See related story, House adopts rules for 57th Legslature]
Other changes to the Senate Rules include the dress code. The new language requires appropriate business professional attire, including a suit jacket/blazer, shall be worn by all members of the Senate and other persons granted privileges of the floor, unless otherwise authorized by the President Pro Tempore or Majority Floor Leader. It requires ale members to wear a tie.
"Jeans are not considered appropriate business professional attire," the new language also states.
New language in the Senate Rules also addresses the containers from which senators can consumer beverages on the floor. The rule requires beverages to be consumed from cups of a solid color and no larger than 20 ounces in size. "
"Cups may reflect the seal of the state of Oklahoma but shall not include a logo," the rule states.
The Senate adjourned following a joint session with the House to certify November's congressional election results. The Senate will reconvene Feb. 4 at noon.

McCall elected House Speaker for 57th Legislature

Sidney Lee, eCapitol

The House of Representatives started the 57th Legislature on Tuesday by reelecting Rep. Charles McCall, R-Atoka, as Speaker and Rep. Harold Wright, R- Weatherford, as Speaker Pro-Tempore.
"Thank you members once again for trusting me with this great honor, serving as Speaker of the House of Representatives here in the great State of Oklahoma," McCall said after he was elected and sworn into his office.
But the election was not a quick affair. House Democrats nominated Rep. Emily Virgin, D- Norman, for Speaker of the House and Rep. Ben Loring, D- Miami, for Speaker Pro-Tempore. Each representative was nominated and seconded by representatives who gave a speech along with their nomination. Each nomination and second from the Democrats also came with a speech about the merits of the representative.
McCall won the Speaker position 76-22 and Wright won the Speaker Pro-Tempore position by the same margin.
McCall he will work diligently to bring honor to the institution and work with all of the members of the House.
"We faced crushing budget deficits that forced us to make very tough decisions, but we worked together and we did the job that Oklahomans elected us to do," McCall said about his previous term as Speaker. "It wasn't easy, but we did it; Democrats, Republicans, conservatives, liberals and everyone in-between. We came together to do what was best. Today, we reap the benefits of that."
When his first term as Speaker began, Oklahoma faced a $1.3 billion deficit and had cut spending for four straight years. McCall said the state now expects a surplus of at least $5 million. He said no one person or party can take credit for what the House accomplished last session.
McCall also said he looks forward to Virgin's leadership as minority leader and the opportunities she brings forward in that position.
"I look forward to working with all of the members to accomplish great things for Oklahoma," McCall said.
The Speakers said first and foremost continuing the investment in public education will be the top priority of the House and the work is not done. His goal is to make Oklahoma first in the region for teacher pay.
McCall also took the opportunity to congratulate Governor-elect Kevin Stitt on his election and said his success is success for the State of Oklahoma. McCall said he wants the House to give Stitt the tools "needed to truly reform the executive branch of state government," specifically the ability to hire and fire agency heads.
McCall also said continued criminal justice reforms will be a priority in the House.
"Oklahomans have made it clear they want us to put violent criminals behind bars, not low-level offenders who struggle with addictions. Oklahomans want us to protect their families, not punish people who face the challenges of poverty, mental health illness or other barriers to success," McCall said. "We have made significant progress pushing rehabilitation of incarceration and I hope we can do even more this session. More common sense, more hope, more opportunity, that is what Oklahoma should be about."
McCall ended his speech with a call for civility and said it is the members' actions toward each other that will define the institution.
The House met briefly in joint session with the Senate to certify the results of November's congressional elections. It then returned to the floor to consider other organizational matters, including the consideration and approval of House Rules.

Stitt names Budd chief operating officer, secretary of agency accountability

Shawn Ashley, eCapitol

Governor-elect Kevin Stitt announced Monday that John Budd will serve as his chief operating officer, a new role he is creating to assist him in diagnosing and helping state agencies deliver efficient, customer-focused services, and as secretary of agency accountability, another new cabinet position.
"In my conversation with governors from across the nation, I heard many credit their success to the hiring of a chief operating officer (COO) in their administrations, a model not currently implemented in Oklahoma. This new COO role will be key to fulfilling my campaign commitment of delivering efficient, customer-centered government throughout our 120 agencies," Stitt said in a press release. "I am excited to welcome John Budd, a businessman who has a proven record in helping companies successfully pursue operational transformation and deliver better services. Budd will be tasked with taking a holistic look at ways to more efficiently and effectively implement services and meet today's modern demands on state government. I appreciate his willingness to join us in serving Oklahoma as we work to build a top 10 future."
Budd was most recently the executive vice president, chief strategy and business development officer for the Oklahoma City-based national headquarters of Sonic Corporation. He was responsible for Sonic's strategic near-term and long-term technology path and was a driving force behind the development of enterprise wide strategy; the franchise development function; including sales, real estate and construction; supply chain; enterprise program management; and the implementation of key technology initiatives and technology support.
Budd joined Sonic in 2013 after 16 years with the Boston Consulting Group, where he served as a partner and managing director. In that role, he worked with leading companies in the energy, industrial goods, consumer goods, retail, restaurant, and education sectors to help them grow, become more efficient, and provide better customer service. Prior to his work with Boston Consulting Group, he held various domestic and international roles of increasing accountability with General Electric.
He serves on the Board for the Oklahoma City National Memorial Foundation and is the incoming chair of the Oklahoma Academy for State Goals.
"John's willingness to move to the public sector to apply his exceptional skills is a testament to his having the heart of a servant leader and will be to the benefit of this administration and our state, generally. I look forward to observing and appreciating his impact in this new arena and expect it to be considerable," said Cliff Hudson, former chief executive officer of Sonic.
Sonic President Claudia San Pedro, who previously served as the director of the Office of State Finance and as a Senate staff, said, "Governor-elect Stitt has made a great choice in appointing John Budd as chief operating officer. Working side by side with John for the past five years, I saw and experienced his strategic thinking and ability to build processes to streamline business practices. As former director of finance for the state, I wholeheartedly believe John's knowledge and skills will benefit state government and our citizens."
As a cabinet secretary, Budd's appointment will require Senate confirmation.

Gross receipts improve in December, all of 2018, McDaniel reports

Shawn Ashley, eCapitol

State gross revenue receipts grew at a double-digit pace in 2018, increasing by more than $1.5 billion, State Treasurer Randy McDaniel announced Wednesday.
"Oklahoma's economy has been performing admirably," Treasurer McDaniel said in a press release. "Gross receipts have improved significantly, while unemployment remains low. These and other economic indicators point to a favorable outlook for the state, but could be restrained by the downturn in energy prices, global trade uncertainty, and stock market volatility."
Wednesday's report was McDaniel's first as treasurer. He was inaugurated one week ago to complete the unexpired term of former Treasurer Ken Miller, who resigned from office two weeks before the end of his term to take a job in the private sector. McDaniel, who will be sworn-in Monday to begin the four-year to which he was elected by voters in November, was appointed to the post by Gov. Mary Fallin.
McDaniel's report shows gross receipts for 2018 were slightly less than $13 billion and grew by 13.2 percent compared to calendar year 2017 collections. During the month of December, total receipts topped $1.1 billion and were up by more than $135 million or 13.4 percent compared to December 2017.
Every major revenue stream expanded during 2018 at rates ranging from 84 percent for gross production taxes on oil and natural gas production to 2.5 percent for motor vehicle taxes.
For the month of December, every major revenue source except individual income tax receipts showed growth. The Oklahoma Tax Commission reports a 1 percent reduction in individual income tax collections was likely due to one less remittance deadline for withholding taxes this December compared to last, McDaniel noted.
Changes in monthly gross receipts often indicate which direction General Revenue Fund collections will move. A portion of total collections is deposited in the General Revenue Fund. The Office of Management and Enterprise Services will report General Revenue Fund collections later in the month.
McDaniel said officials continue to closely watch gross production tax collections due to the recent downturn in crude oil prices. December gross production collections of $118.4 million are up by $62.2 million or 110.7 percent compared to December 2017. Those collections, however, reflect oilfield activity from October when West Texas Intermediate crude oil at Cushing averaged $70.75 per barrel, McDaniel said. Collections in January will reflect November production, when oil prices averaged $56.96 per barrel, he explained.
Revenue generated by increased tax rates approved in House Bill 1010 XX during the second special session in March added $62.6 million to monthly collections, 5.5 percent of December gross receipts, McDaniel's report indicates. The largest share, $38.5 million, came from the increase from 2 percent to 5 percent in the incentive tax rate on oil and natural gas gross production. Higher tax rates on gasoline and diesel fuel generated $9.5 million, and the $1 per pack hike in cigarette taxes added $14.6 million to December's total.
December gross collections totaled $1.1 billion, up $135.2 million or 13.4 percent from December 2017.

Have a good week. Give me a call at 918.671.6860 if I can be of help in any way.