Fixes in flux after emergency status lapses

  • Gov. Mike Dunleavy is seen visiting the alternate care site set up last year at the Alaska Airlines Center in Anchorage to deal with potential hospital overflow from the COVID-19 pandemic. An emergency declaration allowed the site to be set up, as well as the suspension of some 200 regulations, but the administration is now working with legislators on more permanent fixes now that the declaration hasn’t been renewed. (Photo/Austin McDaniel/Office of the Governor)

State lawmakers and Dunleavy administration officials are working to untangle the red tape left after a messy end to Alaska’s COVID-19 state of emergency and see how much of it they still need.

Senate President Peter Micciche, R-Soldotna, said legislative leaders have asked the administration to do a series of analyses to see if there are any gaps in current state policy that could cause departments to forgo any federal COVID-19 funding that could help Alaskans now that the state no longer has an active emergency declaration.

Alaska’s COVID-19 state of emergency expired Feb. 14 after the Legislature failed to pass Gov. Mike Dunleavy’s bill to formally extend it; the House was still unorganized and without leadership at the time and the Republican-led Senate majority has members who questioned the need for continuing the emergency declaration.

Dunleavy declined to unilaterally extend the declaration despite a nonbinding resolution from the Senate and letters signed by the vast majority of House members asking him to do so. Attorneys for the Legislature said the governor likely cannot extend the emergency declaration on his own, even though he did so in the past while the Legislature wasn’t in session to maintain emergency health orders and regulatory changes.

Senate leaders are also working with the administration on legislation that would “essentially provide the same authorization that a declaration would allow” without giving the governor some of the broader powers that come with an official state of emergency, Micciche said.

“Once we have this scrubbed here in the next couple days we are going to share it with the House for hopefully a companion bill they can move through the process fairly quickly,” he said in an interview.

The House is again challenged to conduct business with a minor outbreak of COVID-19 among representatives and staff.

More specifically, the bill addresses primary concerns the administration has regarding its ability to respond to the pandemic: distribute vaccines and financial aid without a declaration, as well as legislators’ desire to increase the state’s current 10 percent education fund balance cap on school district reserves.

Micciche said many districts are approaching the statutory limit that prevents them from holding more than 10 percent of their annual budgets in reserves due to federal CARES Act funding and other money going to districts as a result of the pandemic increasing the cap would allow them to hold that money when future revenues are particularly uncertain.

He also stressed that the bill would allow the state to capture the $8 million per month in federal Supplemental Nutrition Assistance Program, or SNAP, aid commonly known as food stamps.

The federal boost to the program is set to expire at the end of March if the state goes without an emergency declaration or a similar measure.

“We’re not going to let Alaska’s needy families go without,” Micciche said. “$8 million a month is not something we can replace.”

However, the lapse of the emergency declaration also meant the roughly 200 state fees and regulations Dunleavy suspended early in the pandemic immediately went back into effect or became stuck in limbo.

Dunleavy spokesman Corey Young wrote in response to questions about the regulatory situation that the departmental review of the suspended regulations is ongoing to determine which may be eligible for permanent repeal.

“In the face of a global pandemic, Alaskans have been hit hard and Gov. Dunleavy clearly sees the need to prevent Alaskan businesses from failing, which includes making sure there are no roadblocks with regulations to help Alaska’s economy thrive,” Young wrote.

The state Division of Corporations, Business and Professional Licensing gave up approximately $6.8 million in business license and corporate filing revenue over the roughly 11 months the fee suspensions were in effect.

Commerce Department spokeswoman Glenn Hoskinson wrote in an email that other revenue covered the division’s expenses, allowing the forgone amount to stay in the hands of the businesses that needed it.

Alaska State Hospital and Nursing Home Association CEO Jared Kosin said in an interview that the sudden lack of an emergency declaration has left many health care providers questioning what they can now legally do given the pandemic is ongoing.

A statement on the Department of Health and Social Services website lays out the department’s plan to “operate its COVID-19 response under the same guidance and direction that had previously been provided, which includes all prior waived or suspended statutes and regulations” despite not having clear authority to do so.

Kosin said he appreciates the attempt to maintain consistency for patients and providers but questioned: “How can you say ‘just operate as-is’?”

He described situations the association is aware of where cancer patients have not been able to see an out-of-state provider via a telehealth visit because of providers’ fears of running afoul of Alaska laws and regulations.

Among the regulations suspended during the declaration was one requiring Outside doctors performing telehealth visits by videoconference or phone call to have a medical license in Alaska.

“Even though everyone’s acting as if everything’s the same, the providers said that’s not something they can put their license on the line for,” Kosin said.

“There’s so much confusion over what is set aside, what is not — what authority there is to do things.”

He added that ASHNHA is waiting for a clarifying response from Centers for Medicare and Medicaid Services officials regarding the ability for health care organizations to have off-site facilities, such as COVID-19 testing sites, without a state emergency.

A prior federal waiver allowed such activity with an emergency declaration.

A DHSS spokesman did not respond to questions about the department’s management of its regulations and governing statutes in time for this story.

Micciche said under more normal circumstances he would be particularly concerned about a state agency arbitrarily setting its own operating rules but directly challenging the administration on that front isn’t likely to be productive either given the public health situation.

“I think a transition plan is appropriate until we pass this bill,” he said. “I think yanking the rug out from under the administration’s ability to manage COVID right now — it concerns me a great deal. We are doing the best we can under the current conditions to support the governor’s ability to manage a response.”

Elwood Brehmer can be reached at [email protected].

(Editor's note: A prior version of this story indicated Senate President Peter Micciche said in an interview that legislators had requested generally accepted accounting principles, or GAAP, analyses from state agencies for federal COVID-19 aid. Micciche later clarified that he simply meant analyses had been requested to determine if there were any "gaps" in state laws and regulations that prevented agencies from accepting the federal funds without a formal emergency declaration.)

Updated: 
03/05/2021 - 9:09am