Affecting Policy Change on a Federal and State Level
Tom Hlavacek and Ed Myers, Arizona Technology Access Program

The following numbered items correspond to each of the numbered slides used in the Power Point presentation.

1. Policy Advocacy

Alternative Methods to Obtaining Systems Change Utilizing the Legislative and Rulemaking Processes

2. Alternative Methods of Systemic Policy Change

• Utilizing Legislative/Administrative rule making to develop policy changes in assistive technology
• Using examples from Arizona, Montana and the Administrative Procedures Act.

3. Advantages to Legislative/Rulemaking

• Ability to resolve a multiplicity of issues
• A general rule provides rapid and uniform compliance
• Judicial precedence may be harder to define/depends on particular facts
• Gives notice and an opportunity to be heard
• Cost effective

4. Legislative Activities

• Bill drafting

- Legislative bill drafting manual
- Legislative counsel's office

• Sponsorship

- Legislator (limits to five introduced bills per session)
- Affected state agency
- Governor's office

5. Legislative Activities

• Know Legislative deadlines and restrictions

- Bill drafting and bills introduced
- Transmittal between the Houses
- Time for Governor's signature

• Keep track of legislative calendars of both houses (ALIS Bill Tracking on Internet)

6. Legislative Activities

• Organize the disability community

- Find individuals who know the legislators on a personal level/or in their districts
- Find legislators who have personal experience with disabilities
- Utilize e-mail and phone trees

7. Legislative Activities

• Don't be afraid to play a secondary role even though you are a lawyer

- Bill drafting
- Answering technical questions
- Negotiating
- Drafting amendments

• Be willing to negotiate
• Know your bottom line

8. Legislative Procedure

• "Strike everything amendment"
• Committee assignment-"power of the chairperson"
• Agenda and notice of hearing

- Notice and agenda required five days in advance
- Agenda may not be followed!

• Rules committee

- Determine constitutionality of legislation
- Technicalities
- Amendments are germane

9. Don't forget the Governor!

• Governor's office must be consulted at some point to determine if he/she will sign.
• Effective Date of Bill

10. Sources for Agency Rulemaking

• Federal and state constitutions

- Procedural and substantive due process issues

• Federal and state administrative procedure act
• Federal and state open meeting laws
• Federal and state public document laws (freedom of information act; Right to know)
• Federal and state privacy acts (Montana constitutional right to privacy)

11. What is a Rule?

• A rule "means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedures, or practice requirements of an agency." § 2-4-102(11), Montana Code Annotated

12. Types and Effect of Rulemaking

• An agency's rules are the administrative equivalent of statutes and have the force and effect of law.
• Legislative rules are substantive. They fill gaps in a statute enacted by congress or legislature.
• Understanding and interpretation of the statutes it administers. (Does not have force and effect of law)
• Procedural rules govern the agency's internal conduct and procedures.

13. Administrative Procedures Act

• There are three kinds of rulemaking under the APA: informal,  formal, and hybrid

- Informal rulemaking
- Formal rulemaking
- Hybrid rulemaking: This is a combination of formal and informal rulemaking
- Negotiated rulemaking: (Montana Negotiated Rulemaking Act §2-5-101 et seq.)

14. Initiating Rule Making

• Statute Grants Rulemaking authority to the agency
• An interested person may petition the agency for "promulgation, amendment, or repeal of a rule." (§2-4-315, Montana Code Annotated) Within 60 days "A decision to deny a petition or to initiate rulemaking proceedings must be in writing and based on record evidence." Id.

15. Informal Rulemaking

• Informal rulemaking. Most agencies use "informal" or "notice-and-comment" rulemaking provided for by the APA. This procedure involves three steps:
• 1. Notice of the proposed rule must be published in the federal register/state register.
• 2. Interested persons must be given an opportunity to submit written comments.
• A. Oral opinions may be expressed at the agency's discretion.

16. Informal Rulemaking

• 3. After at least 30 days and review of public comments, the agency must publish its final rule in the federal register/state register.
• A. The agency must also publish a concise general statement explaining the "basis and the purpose" of the rule.
• B. The 30-day waiting period can be shortened in the event of an emergency.
• C.Temporary regulations may be issued and become effective without following the "notice-and-comment" procedure.

17. Formal Rulemaking

• The APA requires that formal procedures be used "when rules are required by statute to be made on the record after opportunity for an agency hearing."
• 1. The formal procedures under the APA are as follows:

18. Formal Rulemaking

• A. A formal hearing must provide an opportunity for interested persons to testify and cross-examine witnesses,
• B. After the hearing, the agency must make:
• 1) findings of fact
  2) conclusions of law

19. Formal Rulemaking

• 3) its decision concerning adoption of a formal rule
• C.These documents constitute the record. The formal rule must be supported by substantial evidence based on the record.

20. Formal Rulemaking

• 1) the substantial evidence standard requires that enough evidence be in the record for a reasonable person reviewing this evidence to reach the same conclusion as the agency.
• D.Formal rulemaking is expensive and time-consuming. Because of the time and expense involved, congress rarely mandates its use.

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