2007 Annual Conference Administrative Rulemaking Instructor: Amigo Wade Virginia Division of Legislative Services [email protected].

2007 Annual Conference

Administrative Rulemaking

Instructor: Amigo WadeVirginia Division of Legislative Services

[email protected]

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

INTRODUCTIONINTRODUCTION

• Overview• Various sources• Common threads

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

PROCEDURESPROCEDURES• Effective

• Fair

• Objective

• Transparent

• Emergency provisions

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

What is a rule?What is a rule?• Statement of general

application

• Prescribes, implements or interprets

• Defines procedure and practice requirements

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

What does a rule do?What does a rule do?1. Establishes requirements

2. Sets standards

3. Establishes rates or fees

4. Provides procedures

5. Implements

6. Guides

7. Describes

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

KINDS OF RULESKINDS OF RULES

• PROCEDURAL (set out procedures)

• SUBSTANTIVE (set out law/standards)

• INTERPRETIVE (interprets standards and phrases)

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

AUTHORITYAUTHORITY

• Specific grant

• Reasonably related to statute

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

WHEN IS A RULE NEEDED?WHEN IS A RULE NEEDED?

• Required by statute

• Response to conditions

• Public benefit

• Clarification

• Uniformity

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

WRITING GOOD RULESWRITING GOOD RULESRole of Regulatory AuthorityRole of Regulatory Authority

• Frame the issues

• Gather information

• Conduct consultations

• Present options

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

WRITING GOOD RULESWRITING GOOD RULESOversightOversight

• Identify need

• Provide resources

• Approve rule in principle

• Consider input

• Stay within purpose

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

GOOD RULE - PROCESSGOOD RULE - PROCESS

• Identify the objective

• Don’t re-invent the wheel

• Similar rules

• Considerations

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

GOOD RULE - PROCESSGOOD RULE - PROCESS

• Consult legal counsel

• Organizational Outline

• Drafting manual

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

REVIEWING A RULEREVIEWING A RULE

• Understandable?• Multiple interpretations?• Clear definitions?• Vague language?

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

PROBLEM AREASPROBLEM AREASDon’tsDon’ts

• Unnecessarily burden

• Repeat or change statutes

• Improperly delegate or reference

• Unclear standards

• Ambiguous language

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

PROBLEM AREASPROBLEM AREASDo’sDo’s

• Read thoroughly

• Consider possible loopholes

• Ability to prove violations

• Assure clear understanding

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

ADOPTING RULESADOPTING RULES

• Notice of intent

• Public comment

• Consideration

• Publication

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

PUBLIC COMMENTPUBLIC COMMENT

• Stakeholders

• Form of comment

• Hearing

• Professional standards

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

CONSIDERATION OF COMMENTSCONSIDERATION OF COMMENTS

• Views presented• Consider options:

–Adopt as proposed–Withdraw –Minor changes–Major changes

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

PUBLICATIONPUBLICATION

• Usually required to publish the rule

• Synopsis of comments and regulatory authority’s reaction

• Need for education

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

EMERGENCY RULESEMERGENCY RULES• Statutory authority

• Rigid standard for use

• Immediate preservation of health, safety and welfare

• Documentation

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

SUMMARYSUMMARY• Be sure you have clearly and simply stated

rules

• Be sure you comply with the letter of the law in giving clear and adequate notice of intention to engage in rulemaking

• Make sure all interested parties have opportunity to obtain a copy of the rule

Council on Licensure, Enforcement and RegulationAtlanta, Georgia2007 Annual Conference

SUMMARYSUMMARY• If a hearing is required, be sure to provide

proper notice

• Keep a record of the comments received or testimony heard and official responses to it

• Remember: board members are ultimately responsible for ensuring that rules are fair and in the public interest

Atlanta, Georgia2007 Annual Conference

Contact Information:Amigo R. WadeVirginia Division of Legislative Services910 Capitol StreetRichmond, VA 23219Phone: (804) 786-3591E-mail: [email protected]

CLEAR403 Marquis AvenueSuite 200Lexington, KY 40502Phone: (859) 269-1289E-mail: [email protected]