Learn Everywhere, a proposal from the Department of Education, is a set of rules that would allow private and nonprofit organizations to offer public high school credit (read more here). The State Board of Education approved the rules in June, but they must now go through the second phase of the rulemaking process: review by the Joint Legislative Committee on Administrative Rules (JLCAR).
On Thursday, July 16, the Office of Legislative Services Committee Staff released their comments on the Learn Everywhere proposal. Read their comments on the proposed rules here.
Here’s what you need to know:
- JLCAR makes sure that rule proposals from state agencies follow all applicable laws. They do not, however, determine if the rules are good or bad policy. They leave that up to the department that proposes them.
- JLCAR is made up of 5 state Representatives and 5 state Senators. The current Chair is Representative William Hatch (D-Gorham), and the Vice Chair is Senator John Reagan (R-Deerfield).
- Meetings are open to the public, and attendees can testify about rules that are on that day’s agenda.
- JLCAR can approve, conditionally approve, or object to rules – including all of the elements of the rules. If JLCAR objects to any elements of the rule proposal, the state agency or department has one opportunity to address the objection(s). If the problem is not resolved, JLCAR can issue a final objection to individual proposed rules (although the department may still adopt the individual rules that have been approved), or send it to lawmakers to determine whether or not the rule is appropriate.
Laws or Rules?
New Hampshire has laws that state what agencies and departments within the state can and cannot do, how the state should operate, and the state’s role in our everyday lives. They go through the legislative process: proposed law gets introduced in the House or Senate, then lawmakers vote on it, and then it goes to the Governor’s desk for signature.
In New Hampshire, rules specify how laws will be implemented or interpreted. Rules can have a substantial impact on how the law is carried out.
Rules have the full force and effect of the law, but go through a different process. They are proposed by a Department and must be approved by the Joint Legislative Committee on Administrative Rules (JLCAR).
The Department of Education has two additional steps: proposed rules must be approved by the State Board of Education before they go to JLCAR. After JLCAR approves them, they return to the State Board for one final vote before they take effect.
What does JLCAR use as criteria when considering rules?
JLCAR is an administrative body, and only looks at the technical parts of a proposal. JLCAR makes sure all parts of the rules meet four criteria before bringing it back to the department for adoption.
For the purposes of this explanation, a “proposal” refers to the entire package of rules that are proposed by a department. A “rule” is an individual element of a proposal. JLCAR reviews rules individually, ensuring each part complies with the four criteria above.
State law is very specific as to what the Committee is allowed to consider.
JLCAR must ensure that the rule:
- Is within the authority of the agency, meaning state laws specify that the department can create the rules and that the rules do not go beyond what the legislature has allowed of the department.
- Is within the intent of the legislature, meaning that the proposed rules do not conflict with any other state or federal laws.
- Is determined to be in the public interest, which does not mean that it is good or bad policy. Rather, the proposed rules must be clear and understandable, uniformly applied, and the department must have taken into consideration comments by the public during the public hearing at the relevant department (before it went before the Committee).
- Has an economic impact that isn’t explained in the fiscal impact statement. Each rule proposal must have a fiscal impact statement, which outlines the costs to all parties that would be affected by the rules to avoid unfunded mandates. JLCAR makes sure that all of the costs are outlined in the fiscal impact statement.
The Committee can propose changes or make recommendations for specific rules for the department through a “preliminary objection.” The committee itself does not have the power to directly change or amend a proposed rule or proposal. It recommends changes, but departments must make the actual changes.
What can JLCAR recommend?
As we highlighted above, JLCAR has three options: approve the rule, issue a conditional approval of the rule, or issue a preliminary objection of the rule.
First, the Committee has the option to approve the proposal, whereupon it goes back to the department for a final review. For education-related rules, the State Board must vote on the proposal once more before it goes into effect. It does not need to hold another public hearing.
Second, the Committee has the option of issuing a “conditional approval” of the proposal, meaning that it is requiring the department to address specific issues with individual rules within the proposal. Under a conditional approval, the Committee tells the department exactly what changes must be made to the rules. The entire proposal is put on hold until the department responds to the Committee.
Third, if the Committee determines that there are issues with the proposal or individual rules but does not have a solution to resolve them it may issue a “preliminary objection.” In this case, the department must identify and make the changes required to resolve the issues.
The department gets the chance to amend the rules based on the objection, to explain why it has not amended the rules, or to withdraw the rules entirely. The department can submit a revised version of the rules, and the Committee will take a second look. During this process, the entire proposal is put on hold.
After the department submits a response or amended proposal, the Committee will review the changes. The Committee may issue a “final objection” if there are unresolved issues with the amended proposal, based on the four areas mentioned above.
A final objection does not kill the entire proposal, but only the element(s) that receive a final objection: the department may still adopt the part(s) of the rules that receive approval.
The department only gets one chance to revise the proposed rule. They may, however, restart the rulemaking process with the same rule.
JLCAR can also sponsor a “joint resolution,” meaning it brings the issue(s) to lawmakers to consider. A joint resolution acts like a regular bill and must go through the same legislative process as other bills. The “joint resolution” process delays the implementation of the proposal until the legislative process is over.
Can I testify?
JLCAR welcomes public comment on proposed rules during their meeting when they are considering the proposed rules.
However, it is not a formal public hearing. You may be called to speak, but the Committee reserves the right to call on certain people or limit the number of people who speak.
In this case, it may be worthwhile to have a paper copy of your comments to provide the Committee (one would be fine–Committee staff can make copies).
When you arrive, you must fill out a pink card that includes your name, whether you support or oppose the rule proposal, and whether or not you would like to speak. You do not have to talk–you can register your support or opposition by being there and filling out a pink card.
JLCAR also accepts written testimony. You can send your letter to the Committee Chair, Representative William Hatch, at William.Hatch@leg.state.nh.us
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