Senate

Bill 1264
2016 Freedom Index Score (-4)
Analyst: Wayne Hoffman
Date: February 12, 2016

ANALYSTS NOTE: Senate Bill 1264 would expand the state Board of Pharmacys authority over durable
medical equipment suppliers. The bill also places several marketplace restrictions on those suppliers. The bill
is a response to restrictions and requirements contained in Obamacare, but the bill uses anti-free market
language and government restrictions to make matters worse

Point No 1: Does it create, expand, or enlarge any agency, board, program, function, or activity of
government? Conversely, does it eliminate or curtail the size or scope of government?

ANALYSIS: Senate Bill 1264 expands the role of the state Board of Pharmacy to create new mandates
and restrictions on durable medical equipment suppliers. (-1)

Point No 3: Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate
activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?

ANALYSIS: Senate Bill 1264 mandates that, among other things, a durable equipment supplier must
have "at least one (1) accredited physical facility that is staffed during reasonable business hours and
is located in Idaho or is within one hundred fifty (150) miles of any Idaho resident being served by the
applicant; and [h]as sufficient inventory and staff to service or repair products." This is similar to the
troubling language used in other legislation, and later defined through rule, allowing state agencies to
dictate the minimum number of hours a business is open. Additionally, the legislation doesn't define
what constitutes "sufficient inventory and staff" to work on products. As these are two separate, new
powers given to the board, points are assigned accordingly. (-2).

Point No 12: Does it violate the principles of federalism by increasing federal authority, yielding to federal
blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing
federal code without noting the specific enactment date, using state resources to enforce federal law, and
refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of
federalism?

ANALYSIS: On page 3 of the printed bill, language proposed would use a non-Idaho code source to
determine who and what is regulated. Specifically, the bill references "products listed in the centers
for medicare and medicaid durable medical equipment, prosthetics, orthotics and supplies
competitive bid product categories in this state in the current calendar year; or ... Intends to bid for
services or products listed in the centers for medicare and medicaid durable medical equipment,
prosthetics, orthotics and supplies competitive bid product categories in this state in the current
calendar year." In other words, the listing of products by a federal agency would make an Idaho
supplier subject to the authority of the Board of Pharmacy. Similarly, the legislation excludes suppliers
under a U.S. Code provision, meaning whenever Congress changes the law, Idaho law would change,
too. Both represent an improper delegation of legislative authority both to a federal agency and to
Congress. (-1)