JCAR action comes as Pritzker eases more COVID-19 mitigation mandates
A legislative panel on Tuesday, October 18, objected to an emergency rule put forth by the Illinois Department of Public Health, with one member declaring, “The pandemic is over.”
The action came during a meeting of the Joint Committee on Administrative Rules, which has oversight authority over state agency regulatory rulemaking. It’s an action that does not block the rule from remaining in effect, but it does require the agency to respond to the objection within 90 days.
It also came four days after Gov. JB Pritzker renewed his disaster proclamation – his 35th since the pandemic began – spelling out various mandates for mitigating the spread of the virus. In recent months, however, he has gradually rolled back many of those mandates.
The most recent executive order removes the weekly testing requirements for unvaccinated health care and long-term care workers, removes the face covering requirement for health care facilities – although they are still recommended in facilities in areas of high community transmission – and removes the state-issued vaccine mandate for long-term care and health care employees.
At issue before JCAR Tuesday was a program aimed at relieving a shortage of forensic pathologists – physicians who specialize in and investigate deaths that occur under unusual circumstances, perform autopsies and initiate inquests.
The proposed rule expanded an existing program in which the state of Illinois sponsors international medical students for a waiver of normal visa requirements so they can remain in the country after they graduate if they agree to practice at a medical facility in designated Health Professional Shortage Area for a minimum of three years.
Without the waiver, those doctors would have to return to their home country and could not reenter the United States to practice medicine for at least two years.
The program in Illinois currently only applies to primary care physicians, psychiatrists and certain specialty areas, but it does not apply to forensic pathologists who typically work in a medical examiner’s office rather than a clinic or hospital.
Last year, state lawmakers passed House Bill 3592 to expand the program to include medical examiners’ offices as “medical facilities” so that forensic pathologists could take part in the program. Gov. JB Pritzker signed the bill on Aug. 20 and it went into effect Jan.1.
Normally, agency rules go through a lengthy process that involves public notice and comment, as well as a review by JCAR. But state law allows them to enact “emergency rules” if they determine a threat to the public interest, safety or welfare requires rules to be adopted in less time than would be needed to go through the regular process.
Emergency rules can take effect immediately after being filed with the secretary of state’s office, but they can only remain in effect for 150 days, after which they either expire or are replaced with permanent rules. They also are subject to review by JCAR, which meets monthly throughout the year.
IDPH published the emergency rule on Sept. 19 and said in its explanation that it was needed so it could be in effect in time for the U.S. State Department’s waiver review period that began in October.
But at JCAR’s meeting in Chicago on Tuesday, state Rep. Steven Reick, R-Woodstock, objected, arguing that “the department has been issuing an awful lot of emergency rules lately.”
IDPH has, in fact, issued numerous emergency rules since the start of the COVID-19 pandemic in March 2020. But Reick argued that the agency has used the emergency process even when there was ample time to go through the regular rulemaking procedure, including public comment.
“The pandemic is over,” he said. “It is time for us to get back to normal way of doing business, and the normal rulemaking process should be the one that is used instead of emergency rulemaking when the time is available to do that.”
Reick then offered a motion for JCAR to formally object to the emergency rule, noting that IDPH had ample time since the law went into effect on Jan. 1 to go through the regular rulemaking process. His motion also noted that IDPH included provisions in the emergency rule that went beyond the scope of addressing the need for forensic pathologists to apply for the waiver program.
The motion passed on a voice vote with no audible dissent.
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