First Regular Session Sixty-fifth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 05-0468.01 Thomas Morris HOUSE BILL 05-1021 HOUSE SPONSORSHIP Plant, SENATE SPONSORSHIP Grossman, House Committees Senate Committees Health and Human Services A BILL FOR AN ACT Concerning a requirement that state agencies conduct a public health analysis for proposed rules. Bill Summary (Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.) Requires state agencies to submit draft proposed rules to the executive director of the department of public health and environment, who then determines whether the proposal would have a negative impact on public health. If so, or if a member of the general assembly so requests, requires the agency to conduct and publicize a public health analysis of the proposed rule using specified criteria. Precludes adoption of the rule for the agency's failure to conduct a requested analysis. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. 24-4-101.5, Colorado Revised Statutes, is amended to read: 24-4-101.5. Legislative declaration. (1) The general assembly finds that an agency should not regulate or restrict the freedom of any person to conduct his or her affairs, use his or her property, or deal with others on mutually agreeable terms unless it finds, after a full consideration of the effects of the agency action, that the action would benefit the public interest and encourage the benefits of a free enterprise system for the citizens of this state. The general assembly also finds that many government programs may be adopted without stating the direct and indirect costs to consumers and businesses and without consideration of such costs in relation to the benefits to be derived from the programs. The general assembly further recognizes that agency action taken without evaluation of its economic impact may have unintended effects, which may include barriers to competition, reduced economic efficiency, reduced consumer choice, increased producer and consumer costs, and restrictions on employment. The general assembly further finds that agency rules can negatively impact the state's business climate by impeding the ability of local businesses to compete with out-of-state businesses, by discouraging new or existing businesses from moving to this state, and by hindering economic competitiveness and job creation. Accordingly, it is the continuing responsibility of agencies to analyze the economic impact of agency actions and reevaluate the economic impact of continuing agency actions to determine whether the actions promote the public interest. (2) The general assembly also finds that: (a) It is in the interest of the state to protect and preserve the health and environment of the people of Colorado, and no agency should take action that may impair Coloradans' health or environment without a full public health analysis to assess the action's impacts; (b) An agency should not promulgate a new rule or amendment to an existing rule unless the agency finds, after a full public health analysis conducted pursuant to section 24-4-103 (2.8), that the action would not impair the health, safety, and welfare of the citizens of this state; (c) Agency action taken without evaluation of its public health impact may have unintended effects, which may include environmental degradation, increased hospital admissions, loss of worker productivity, loss of economic competitiveness, and increased medical care costs; and (d) It is the continuing responsibility of agencies to analyze the public health impact of agency actions to determine whether the actions promote public health. SECTION 2. 24-4-103 (6) and (8.1) (b) (V), Colorado Revised Statutes, are amended, and the said 24-4-103 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read: 24-4-103. Rule-making - procedure - repeal. (2.8) (a) At the time of filing a notice of proposed rule-making with the secretary of state as the secretary may require, an agency shall submit a draft of the proposed rule or amendment to the office of the executive director in the department of public health and environment. The executive director, or his or her designee, shall determine whether the proposed rule or amendment may have a negative impact on public health. If, at least twenty days before the date of the hearing on the rule or amendment, a member of the general assembly so requests or the executive director, or his or her designee, determines that the proposed rule or amendment may have such negative impact, the executive director shall require the submitting agency to perform a public health analysis of the rule or amendment. The agency shall complete the public health analysis at least five days before the hearing on the rule or amendment, make the analysis available to the public pursuant to part 1 of article 70 of this title, and submit a copy to the executive director or his or her designee. Failure to complete a requested public health analysis pursuant to this subsection (2.8) shall preclude the adoption of the rule or amendment. The public health analysis shall include the following: (I) The reason for the rule or amendment; (II) The anticipated public health impacts of the rule or amendment, which may include increased access or improvements to health care and environmental quality; (III) The anticipated public health costs of the rule or amendment, which may include increased hospital admissions, work loss, and environmental degradation; and (IV) At least two alternatives to the proposed rule or amendment that can be identified by the submitting agency or a member of the public, including the costs and benefits of pursuing each of the alternatives identified. (b) The executive director, or his or her designee, shall study the public health analysis and may urge the agency to revise the rule or amendment to eliminate or reduce the negative public health impact. The executive director, or his or her designee, may inform the public about the negative impact of the proposed rule or amendment. (c) Any proprietary information provided to the department of public health and environment for the purpose of preparing a public health analysis shall be confidential. (d) If the agency has made a good faith effort to comply with the requirements of paragraph (a) of this subsection (2.8), the rule or amendment shall not be invalidated on the ground that the contents of the public health analysis are insufficient or inaccurate. (e) This subsection (2.8) shall not apply to orders, licenses, permits, adjudications, or rules affecting the direct reimbursement, from state funds, of vendors or providers. (6) A temporary or emergency rule may be adopted without compliance with the procedures prescribed in subsection (4) of this section and with less than the twenty days' notice prescribed in subsection (3) of this section (or where circumstances imperatively require, without notice) only if the agency finds that immediate adoption of the rule is imperatively necessary to comply with a state or federal law or federal regulation or for the preservation of public health, safety, or welfare and compliance with the requirements of this section would be contrary to the public interest and makes such a finding on the record. Such findings and a statement of the reasons for the action shall be published with the rule. A temporary or emergency rule may be adopted without compliance with subsection subsections (2.5) and (2.8) of this section, but shall not become permanent without compliance with such subsection (2.5) subsections (2.5) and (2.8). A temporary or emergency rule shall become effective on adoption or on such later date as is stated in the rule, shall be published promptly, and shall have effect for not more than three months from after the adoption thereof or for such shorter period as may be specifically provided by the statute governing such agency, unless made permanent by compliance with subsections (3) and (4) of this section. The period of effectiveness provided by this subsection (6) does not apply to temporary or emergency rules adopted by the public utilities commission under section 40-2-108 (2), C.R.S. (8.1) (b) The agency rule-making record shall contain: (V) A copy of any regulatory analysis, or cost-benefit analysis, or public health analysis prepared for the proceeding upon which the rule was based, if applicable, and any formal statement made to the agency promulgating the rule by the executive director of the department of regulatory agencies or the executive director of the department of public health and environment regarding such cost-benefit or public health analysis; SECTION 3. Applicability. This act shall apply to rules proposed by an agency, as defined by section 24-4-102 (3), Colorado Revised Statutes, on or after the effective date of this act. SECTION 4. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.