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.

OverviewThe 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 engage in a public comment period or a Public Hearing Process.

The Board may present proposed language at a Professional Conference or Meeting.

The proposed rules are reviewed by a legislative Committee

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 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, 1998-1999 published by the Council of State

Governments. If you have questions or comments, please contact Michael Bird at (202) 624-8686.

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 REVIEWING COMMITTEE

RULES SUBJECT TO REVIEW

COMMITTEE POWERS LEGISLATIVE POWERS

Alabama Members of Legislative Council

Proposed Committee reviews then approves or disapproves rules within 35 days. Committee may suspend rules. Inaction is automatic approval.

Legislature may veto rules by joint resolution.

Alaska Joint bi-partisan Proposed and existing Committee may advise only.

Legislature must pass law to veto rules.

Arizona Joint bi-partisan Proposed and existing Committee may advise only.

Legislature must pass law to veto rules.

Arkansas Joint bi-partisan Proposed and existing Committee may advise only.

Legislature must pass law to veto rules.

Colorado Joint bi-partisan Existing Committee 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-partisan Proposed and existing Committee 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.

Florida Joint bi-partisan Proposed and existing Committee may advise only. Committee is required to report annually to the legislature to recommend legislation.

Legislature may act on committee recommendation by enacting law.

Georgia Standing Proposed Committee 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.

Idaho Germane joint Proposed Committee 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.

Illinois Joint bi-partisan Proposed and existing Committee 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.

Indiana Joint bi-partisan Existing Committee may advise only.

Legislature may influence rules only after formal adoption, not during rulemaking process. Legislature may amend rules only by amending statute.

Iowa Joint bi-partisan Proposed and existing Committee reviews then approves or objects to rules. Committee may suspend rules. Inaction is automatic approval.

Legislature may veto rules by joint resolution.

Kansas Joint bi-partisan Proposed and existing Committee 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-partisan Proposed and existing Committee reviews then approves or objects to rules within 45 days. Inaction is automatic approval.

Legislature may veto rules by enacting statute.

Louisiana Standing Proposed and existing Committee 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.

Maine Joint standing Proposed and existing Committee 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.

Maryland Joint bi-partisan Proposed and existing Committee must review then approve or delay rules within 45 days.

Legislature may veto rules but governor has final word.

Massachusetts No committee Proposed No committee. Legislature must pass bill then signed by governor to supercede proposed rule.

 Michigan Joint bi-partisan Proposed Committee 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.

Missouri Joint bi-partisan Proposed and existing Committee reviews then approves or suspends rules. Inaction is automatic approval.

Legislature may veto or suspend rules by concurrent resolution or statute.

Montana Joint bi-partisan Proposed and existing Committee reviews then approves or suspends rules.

Legislature may veto rules by statute.

Nevada Joint bi-partisan Proposed Committee reviews then approves or temporarily suspends rules. Inaction is automatic approval.

Legislative action is necessary to indefinitely suspend rules.

New Hampshire Joint bi-partisan Proposed Committee 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 existing No 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 York Joint bi-partisan commission

Proposed and existing Commission may advise only.

Legislature has no veto power over rules.

North Carolina Public members appointed by legislature

Proposed and existing Commission reviews and advises to approve or reject rules.

Upon commission's advice, legislature may disapprove rules by statute.

Pennsylvania Standing and independent commission

Proposed Committee 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 Carolina Standing Proposed Committee 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 Dakota Joint bi-partisan Proposed Committee reviews then approves or rejects rules. Inaction is automatic approval.

Legislature may veto rules by statute.

Tennessee 

Joint standing Proposed Committee 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.

Utah Joint bi-partisan Proposed and existing Committee reviews rules.

New rules automatically sunset after one year unless specifically reauthorized by the legislature.

Vermont Joint bi-partisan Proposed and existing Committee must review and approve or object to proposed rules within 30 days. Inaction is automatic approval.

Legislature may veto rules by statute.

Virginia Standing Proposed and existing Committee 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.

Washington Joint bi-partisan Proposed and existing Committee 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 Virginia Joint bi-partisan Proposed Committee reviews rules and provides advice.

Agencies must receive specific legislative authorization to promulgate all new rules.

North Dakota Interim Proposed and existing Committee reviews then approves, suspends or voids rules. Inaction is automatic approval.

Legislative action is not necessary to void rules.

Ohio Joint bi-partisan Proposed and existing Committee reviews then may recommend invalidation of all or part of rules. Inaction is not considered approval.

Legislature may veto rules by concurrent resolution.

Oklahoma 

Standing Proposed and existing Committee 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.

Oregon Joint bi-partisan Proposed and existing Committee reviews and reports on rules to legislature.

Neither the legislature nor governor has any veto power over rules.

Wisconsin Joint bi-partisan Proposed and existing Committee 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.

Wyoming Joint bi-partisan Proposed and existing Committee 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.