Senate

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

ANALYST'S 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)