The Rule Making Process

Why Make A Rule? We heard that the XYZ Clinic has one therapist who is supervising 50 aides! We also heard that the therapist only works 5 hours a week!

Most Agencies are created by the State Legislature and are assigned specific powers and duties. Among these powers is the ability to promulgate rules. Laws enacted by the legislature are codified in the revised code. Rules written by agencies are codified in the administrative code.

In General, each Board was created to fulfill some public protection mission or mandate. This mandate often requires the development of rules which are designed to do one of the following: Improve competence, Clarify ambiguous sections of the law, Define or outline administrative procedures or establish specific oversight requirements, or to Establish fees.

The Research Process Board Members or members of the staff often use their resources to gather information. Often members contact their national professional associations to assist them with identifying model practice language or model practice acts to assist them. This research may also require investigating other state agencies to determine how similar issues have been addressed by other professional regulatory boards.

The Decision Process The Board generally reviews all of the researched information and decides which language most accurately addresses the issue at hand. This process can be resolved in one meeting or it can take 2 years or more. SUGGESTION: I recommend writing rationale statements in the board minutes so that people can remember why a particular course of action was, or was not taken!

The Legal Process After the language has been drafted, the Attorney General’s Office or the Agency’s legal counsel reviews the proposed language to determine if there are any major red flags or legal problems. The Attorney General’s Office can also be helpful in making the language more effective. Attorney’s often pick up on legalistic ideas that licensed professionals may overlook.

The Administrative Procedures Act/Due Process/and the Rule Making Process: Most States require some type of public comment period or some type of public hearing. This process allows persons affected by the proposed rules to express their concerns and allow them input into the process.

The Agency Rule Review Process Some states, like Ohio, require a Rule Validation Process. A rule may be invalidated for 1 of 4 reasons: 1.The agency does not have the statutory authority to promulgate the rule. 2.The rule violates the intent of the legislature. 3.The rule conflicts with another rule or part of a statute in the revised code. 4.The Rule does not contain a proper Fiscal Analysis.

Finalizing the Rules In most instances, the rules must be finalized after the legislative committee has given the agency the authority to implement the rules. In most instances the rules are assigned an effective date and codified. In Ohio, rules must be final filed with Joint Committee on Agency Rule Review, the Secretary of State’s, and the Legislative Services Commission.

Overview The Legislature Assigns the Agency Specific Administrative Powers and Duties. The Board Begins Policy Discussions to address issues. The Board and Staff gather background information. This often involves researching what other states or professions have done. The Board writes a draft of the language being considered. The Board may Circulate this language to affected Parties or to persons in the Professional Association. The Board may present proposed language at a Professional Conference or Meeting. The Committee Approves the Rules The board may final file the Rules. The Board may delay the effective date. The Rules are Codified. The Rules Go into Effect. The proposed rules are reviewed by a legislative Committee The Board May engage in a public comment period or a Public Hearing Process. The Board may or may not accept input. The Board may also decide not to go forward. If the Board decides not to go forward this ends the process. The Board may go forward and the committee rejects the rules.

The following states do not have a formal process for legislative review of administrative rules: California, Hawaii, Minnesota, Mississippi, Nebraska, New Jersey, New Mexico, Rhode Island, and Texas. This side-by-side was produced by staff at the National Conference of State Legislatures, using information from The Book of the States, published by the Council of State Governments. If you have questions or comments, please contact Michael Bird at (202) Michael Bird

Administrative Procedures Act and Public Notice Requirements Some States may required that effected persons be notified by mail. This may vary from state to state or agency to agency. Others Agencies may post changes on their Web-Sites or Place adds in their association’s newsletters or professional journals.

State Legslative Review of Administrative Regulations Prepared bySL Staff as an attachment to the testimony of New York State Senator Steve Saland before the United States Senate Governmental Affairs CommitteeApril 12, 1999testimony of New York State Senator Steve Saland National Conference of State Legislatures (autoresponse directory) Denver Office: 7700 East First Place Denver, CO Tel: Fax: Washington Office: 444 North Capitol Street, N.W., Suite 515 Washington, D.C Tel: Fax: STATEREVIEWING COMMITTEE RULES SUBJECT TO REVIEW COMMITTEE POWERSLEGISLATIVE POWERS AlabamaMembers of Legislative Council ProposedCommittee reviews then approves or disapproves rules within 35 days. Committee may suspend rules. Inaction is automatic approval. Legislature may veto rules by joint resolution. AlaskaJoint bi-partisanProposed and existingCommittee may advise only. Legislature must pass law to veto rules. ArizonaJoint bi-partisanProposed and existingCommittee may advise only. Legislature must pass law to veto rules. ArkansasJoint bi-partisanProposed and existingCommittee may advise only. Legislature must pass law to veto rules. ColoradoJoint bi-partisanExistingCommittee reviews then approves or disapproves rules. Inaction is automatic approval. Legislature may pass law to amend or veto rules due to sunset. Each new or amended rule sunsets in May of the year following adoption or amendment. Connecticut Joint bi-partisanProposed and existingCommittee must review then approve, reject or disapprove of rules within 65 days. Inaction is automatic approval. Committee reports on all disapproved rules to legislature. Legislature may pass law to sustain or reverse disapproval of a rule by committee. FloridaJoint bi-partisanProposed and existingCommittee may advise only. Committee is required to report annually to the legislature to recommend legislation. Legislature may act on committee recommendation by enacting law.

GeorgiaStandingProposedCommittee must introduce resolution to veto a rule within first 30 days of session after rule is proposed. Must pass by two-thirds majority or goes to Governor final decision.. Inaction is automatic approval. Legislature may veto rule by resolution. IdahoGermane jointProposedCommittee must approve all proposed rules that impose fees. Inaction is deemed rejection. All other proposed rules deemed approved if committee takes no action. All rules expire one year from adoption. Legislature may reauthorize by passing concurrent resolution. IllinoisJoint bi-partisanProposed and existingCommittee reviews then approves or objects to proposed rules. Agency may adopt, modify or withdraw rules. Committee may suspend objectionable rules for 180 days. Legislature may veto rules by joint resolution. IndianaJoint bi-partisanExistingCommittee may advise only. Legislature may influence rules only after formal adoption, not during rulemaking process. Legislature may amend rules only by amending statute.

IowaJoint bi-partisanProposed and existingCommittee reviews then approves or objects to rules. Committee may suspend rules. Inaction is automatic approval. Legislature may veto rules by joint resolution. KansasJoint bi-partisanProposed and existingCommittee must review then comment on proposed rules within 60 days. Final rules are submitted for additional review and comment. Legislature may veto rules by enacting statute. Kentucky Joint bi-partisanProposed and existingCommittee reviews then approves or objects to rules within 45 days. Inaction is automatic approval. Legislature may veto rules by enacting statute. LouisianaStandingProposed and existingCommittee reviews then approves or objects to rules within 60 days. Inaction is automatic approval. Committee reports objectionable bills to the governor, who may allow or block adoption of rules. Legislature may suspend, amend or repeal rules by concurrent resolution.

MaineJoint standingProposed and existingCommittee reviews then approves or objects to rules. Inaction is automatic approval. Major rules must be reviewed by the legislature prior to finalization. Legislature must approve, amend or disapprove rule by statute. MarylandJoint bi-partisanProposed and existingCommittee must review then approve or delay rules within 45 days. Legislature may veto rules but governor has final word. MassachusettsNo committeeProposedNo committee.Legislature must pass bill then signed by governor to supercede proposed rule. MichiganJoint bi-partisanProposedCommittee reviews then approves or suspends rules. Legislature may veto rules by concurrent resolution. Resolution must pass within 60 days of introduction or it veto bill dies. MissouriJoint bi-partisanProposed and existingCommittee reviews then approves or suspends rules. Inaction is automatic approval. Legislature may veto or suspend rules by concurrent resolution or statute. MontanaJoint bi-partisanProposed and existingCommittee reviews then approves or suspends rules. Legislature may veto rules by statute.

NevadaJoint bi-partisanProposedCommittee reviews then approves or temporarily suspends rules. Inaction is automatic approval. Legislative action is necessary to indefinitely suspend rules. New HampshireJoint bi-partisanProposedCommittee must review then approve or reject rules within 45 days. Inaction is automatic approval. Legislature may veto or suspend rules by statute. New Jersey The entire legislature is involved in the review process. Proposed and existingNo committee.Legislature may review rules to ensure consistency with statutory intent. Legislature may communicate objections to governor and agency. Legislature may veto rules with a majority vote. New YorkJoint bi-partisan commission Proposed and existingCommission may advise only. Legislature has no veto power over rules. North CarolinaPublic members appointed by legislature Proposed and existingCommission reviews and advises to approve or reject rules. Upon commission's advice, legislature may disapprove rules by statute.

PennsylvaniaStanding and independent commission ProposedCommittee has 20 days to review final rules. Commission has 30 days to review final rules. Inaction is automatic approval. Legislature has 14 days to introduce and 10 legislative days to enact legislation to veto rules. South CarolinaStandingProposedCommittee must review and approve or reject rules within 120 days. Inaction is automatic approval. Legislature may veto rules by joint resolution within 120 days of proposal. South DakotaJoint bi-partisanProposedCommittee reviews then approves or rejects rules. Inaction is automatic approval. Legislature may veto rules by statute. Tennessee Joint standingProposedCommittee reviews then approves or rejects rules. Legislature may veto rules by statute. New rules automatically sunset after one year unless specifically reauthorized by the legislature by statute. UtahJoint bi-partisanProposed and existingCommittee reviews rules. New rules automatically sunset after one year unless specifically reauthorized by the legislature.

VermontJoint bi-partisanProposed and existingCommittee must review and approve or object to proposed rules within 30 days. Inaction is automatic approval. Legislature may veto rules by statute. VirginiaStandingProposed and existingCommittee has the option to review and approve or, with concurrence of the governor, temporarily suspends effective date of rules. Legislature has no veto power over rules. WashingtonJoint bi-partisanProposed and existingCommittee reviews and approves or objects to rules. Committee, by majority vote and with concurrence of the governor, may temporarily suspends effective date of rules. Legislature has no veto power over rules. West VirginiaJoint bi-partisanProposedCommittee reviews rules and provides advice. Agencies must receive specific legislative authorization to promulgate all new rules.

North DakotaInterimProposed and existingCommittee reviews then approves, suspends or voids rules. Inaction is automatic approval. Legislative action is not necessary to void rules. OhioJoint bi-partisanProposed and existingCommittee reviews then may recommend invalidation of all or part of rules. Inaction is not considered approval. Legislature may veto rules by concurrent resolution. Oklahoma StandingProposed and existingCommittee reviews then advises regarding rules. Inaction is automatic approval. Legislature may disapprove permanent rule by concurrent resolution within 30 legislative days. Legislature may disapprove any rule at any time by joint resolution. OregonJoint bi-partisanProposed and existingCommittee reviews and reports on rules to legislature. Neither the legislature nor governor has any veto power over rules.

WisconsinJoint bi-partisanProposed and existingCommittee must review then approve or suspend proposed rules within 30 days. Committee may suspend existing rules at any time. Inaction is automatic approval. Legislation is required to sustain the suspension. In addition, legislature may veto rules by statute. WyomingJoint bi-partisanProposed and existingCommittee reviews rules and may recommend action be taken by full legislature. Legislature may nullify a rule by statute but action must be taken prior to the end of the next succeeding session.