FIVE YEAR REGULATION REVIEW EXPLAINED…


From Melanie Elsey, CHEO Legislative Liaison
November 1, 2018

Background:
Ohio law requires most agencies that promulgate rules / regulations for the Ohio Administrative Code complete a review of the rules at least once every 5 years. The State Board of Education (SBE) is the rule making authority for the Ohio Department of Education. The ODE will prepare recommendations for creating, amending, or eliminating rules (as authorized by statutes) for consideration and approval by the State Board of Education.

The oversight of the rule making process rests with the Joint Committee on Agency Rule Review (JCARR) which is comprised of state legislators from both chambers. JCARR’s function is specific and limited. It does not “approve” rules adopted or changed by state agencies. It can only recommend through a concurrent resolution that the full membership of both chambers invalidate a rule.

JCARR can’t evaluate a rule based on agreement with the content of the rule. It can only evaluate based on standards (prongs) set in state law (see RC 106.021 below). For example, does the rule exceed the scope authorized in statute? Does it conflict with the legislative intent of the authorizing statute?

We are explaining this because JCARR will not be the effective point of communication for the public. The most effective points of input will be when the draft rule changes are posted by the ODE seeking public input and when the State Board of Education schedules a vote on the proposed rule changes (if any). Public testimony may be offered to the SBE in person or in writing. There will be advance notice for these actions / opportunities for you to be involved.

The Process:

1. The Ohio Department of Education will review the home education rules internally and prepare a final draft to be presented in a survey format to the public for comments. This will occur online, but feedback may also be submitted in writing through regular mail, email, or fax to the ODE for approximately a 30 day period. At this writing (Nov. 1st) the date has not been established. CHEO will provide information through our website, newsletter and social media once the public comment period is announced.

2. At the close of the public comment period, the ODE will compile the comments for the State Board Education in a document with commonalities grouped by type.

3. The final draft of the rules will be presented to the SBE initially in a smaller committee. We don’t know yet which committee will consider these rules or which members of the board will be on the committee. Everything changes in January since this is an election year.

4. The State Board committee will make a recommendation to the full board for a consideration and vote. At this time the draft rules will be filed by the ODE with JCARR.

5. This will prompt a public notice for what is referred to as a 119 hearing before the board. We will have advance notice of this hearing and CHEO will provide information through our website, newsletter and social media.

In conclusion…

There will be 2 formal opportunities to testify before the SBE.

  • When the full board votes on the committee’s recommendations
  • When the full board conducts the required 119 hearing

CHEO will issue separate legislative alerts throughout these steps so you won’t miss opportunities to be involved in protecting your fundamental right to home educate.

 

For your additional reading pleasure:

119.03 Procedure for adoption, amendment, or rescission of rules.

In the adoption, amendment, or rescission of any rule, an agency shall comply with the following procedure:

(C) When an agency files a proposed rule, amendment, or rescission under division (B) of this section, it also shall file in electronic form with the joint committee on agency rule review the full text of the proposed rule, amendment, or rule to be rescinded in the same form and the public notice required under division (A) of this section. (If in compliance with this division an agency files more than one proposed rule, amendment, or rescission at the same time, and has given a public notice under division (A) of this section that applies to more than one of the proposed rules, amendments, or rescissions, the agency shall file only one notice with the joint committee for all of the proposed rules, amendments, or rescissions to which the notice applies.) The proposed rule, amendment, or rescission is subject to legislative review and invalidation under sections 106.02, 106.021, and 106.022 of the Revised Code. If the agency makes a revision in a proposed rule, amendment, or rescission after it is filed with the joint committee, the agency promptly shall file the full text of the proposed rule, amendment, or rescission in its revised form in electronic form with the joint committee.
An agency shall file the rule summary and fiscal analysis prepared under section 127.18 of the Revised Code in electronic form along with a proposed rule, amendment, or rescission, and along with a proposed rule, amendment, or rescission in revised form, that is filed under this division.
If a proposed rule, amendment, or rescission has an adverse impact on businesses, the agency also shall file the business impact analysis, any recommendations received from the common sense initiative office, and the agency’s memorandum of response, if any, in electronic form along with the proposed rule, amendment, or rescission, or along with the proposed rule, amendment, or rescission in revised form, that is filed under this division.
The agency shall file the hearing report in electronic form with the joint committee before the joint committee holds its public hearing on the proposed rule, amendment, or rescission. The filing of a hearing report does not constitute a revision of the proposed rule, amendment, or rescission to which the hearing report relates.
If the proposed rule, amendment, or rescission requires liability insurance, a bond, or any other financial responsibility instrument as a condition of licensure, the agency shall conduct a diligent search to determine if the liability insurance, bond, or other financial responsibility instrument is readily available in the amounts required as a condition of licensure, and shall certify to the joint committee that the search was conducted.

106.021 Resolution to invalidate rule; grounds.

If, upon reviewing a proposed rule or revised proposed rule, the joint committee on agency rule review makes any of the following findings with regard to the proposed rule or revised proposed rule, the joint committee may recommend to the senate and house of representatives the adoption of a concurrent resolution to invalidate the proposed rule or revised proposed rule or a part thereof:

(A) The proposed rule or revised proposed rule exceeds the scope of its statutory authority.
(B) The proposed rule or revised proposed rule conflicts with the legislative intent of the statute under which it was proposed.
(C) The proposed rule or revised proposed rule conflicts with another proposed or existing rule.
(D) The proposed rule or revised proposed rule incorporates a text or other material by reference and either the agency has failed to file the text or other material incorporated by reference as required by section 121.73 of the Revised Code or the incorporation by reference fails to meet the standards stated in sections 121.72, 121.75, and 121.76 of the Revised Code.
(E) The agency has failed to prepare a complete and accurate rule summary and fiscal analysis of the proposed rule or revised proposed rule as required by section 127.18 of the Revised Code.
(F) The agency has failed to demonstrate through the business impact analysis, recommendations from the common sense initiative office, and the memorandum of response that the regulatory intent of the proposed rule or revised proposed rule justifies its adverse impact on businesses in this state.