Understanding the federal rules process
Federal rules and regulations are becoming almost as important in our lives as laws and court decisions-and even more bewildering. For example, this year the most important government decision regarding operating room nursing will be made, not by Congress, but by the US Department of Health, Education, and Welfare (HEW) in its revisions of rules for Medicare. The decision concerns whether operating room technicians will be permittedto circulate in place of registerednurses in hospitals that must meet Medicare standards. In addition, the Federal Trade Commission (FTC) has issued proposed rules that may affect AORN’s technical standards and future standard setting. (See AORN Journal, March 1979, pp 627-628.) We all learned in our civics classes how laws are made, but not many of us are aware of how to influence the rule-making process. Under the US Constitution, the President and the executive branch have the duty to “take care that the laws be faithfully executed.” As government programs become larger and more complex, Congress does not have time to spell out in laws all details necessary to implement them. So implementation is delegated to the executive agencies, which draw up the fine print. These rules and regulations have the force of law, but unlike acts of Congress, they can be amended without legislative action. Nevertheless, there are general guidelines for the rule-making process. The Administrative Procedures Act prescribes the process rulemaking will follow. In recent years, the number of rules issued by federal agencies has mushroomed. In fact, the number of pages of rules issued by HEW has doubled in the last ten years. On Jan 19,
1348
HEW published in the Federal Register 142 pages listingonly the names of rules it is working on. There is concern that those who make rules are not directly answerable to the public, as Congress is. Although federal agency heads are political appointees, most rules are written by civil service employees. Because their jobs are secure, they are not as easy to influenceby lobbying. What kind of influence is effective? First you have to know the process. After a law is passed, rules are drafted in the agency most involved in implementing the law. Then the drafts must travel upward through the agency for approval at every level. They must also be studied and approved by the agency’s attorneys to ensure they comply with the intent of Congress. After drafts of regulations are approved, they are published in the Federal Register. Agencies are required to inform the public of their proposals and allow time for public comment. Keeping up with proposals and comment periods isn’t easy. The Federal Register is a central source of information about proposed and final rules. Published daily, it contains the full texts of all rules and regulations, executive orders, presidential proclamations, and reorganization plans. Most professional associations subscribe, as do public libraries. AORN receives the Federal Register. The size and amount of print in the Federal Register can confound you, so it is wise to seek interpretationsof what is happeningfrom your professional association and other experts in the field. (News of the Medicare and FTC rule revisions has appeared regularly in the AORN Journal and AORN Newsletter.)
AORN Journal, June 1979, Vol29, No 7
At the beginning of each section of rules in the Federal Register is informationabout who will issue the final rules, the deadline for comments, and the name and address of the person responsible for receiving comments. The complete collection of all final rules and regulations is published in the Code of Federal Regulations (CFR). This multi-volume work is revised annually on a rotating basis. Complete sets are kept by law libraries and government depository libraries. To find the closest one, check with your public librarian. You will often see the initialsCFR in citations to rules. For example, the citation for the Medicare rule applying to OR nurses is CFR Title 42.405.1024 (d) (2).Title 42 is Public Health, and the rest of the numbers indicatesthe section and paragraph of the rule. By consulting the index and instructions for using the Code, you can find the specific rule. Keeping track of the rule-making process isn’t easy, but recent changes have improved the situation. The President has ordered major agencies to publish a list of rules they are working on every six months. HEW published its last agenda in the Jan 19 Federal Register and will publish the next one June 30. For questions on the HEW rule-making agenda, contact Rick Cotton, executive secretary to HEW, 200 Independence Ave SW, Washington, DC 20201.The major regulatory agencies also keep a docket of where rules are in the process. Knowing this does not always help explain delays in rule making, however. Often delay is caused when a draft is rejectedat a top level in the agency and is sent back for revision. Drafts can circulate within the agency indefinitely, and it may be difficult to find out when proposals will be published. In fact, as AORN discovered with the Medicare rules, conflicting information may be received from different offices. When this happens, the best approach is to check with your professional association, which has contacts in the bureaucracy, or to check with experts in the field who know the department involved. What is your recourse as a citizen if you believe rules are unfair or violate the intent of the law? First, check with the agency that issued the rule. Personnel there may be able to explain the rationale to your satisfaction. Or they may refer you to a regionalor state office if
the problem is with local applicationof the rule. If the problem seems national in scope and you believe further action is appropriate, two things are vital: documentationof the problem and support from those affected by the rule. Rules can be changed and amended, but this requires considerable evidence of the negative effect. It may be necessary to go to higher and higher levels in the agency to make your views known. Be forewarned: Organizations are reporting it is difficult to change rules once they are final. Although Congress does not play a direct role in writing and enforcing rules and regulations, it does oversee the process. If a rule is controversial enough, it may be challenged by hearings and pressure on the department. Among reforms being sought is requiring departments to publish an analysis of rules they plan to issue. This would include estimates of the cost of compliance, alternativesto the rule, and its goals. Congress is also considering writing into the law the President’s order that agencies publish agendas for their rule making. For progress on these issues, watch the Senate Governmental Affairs Committee. The office of the Federal Register has also been trying to make the process more understandable to citizens. You will find basic information about the process on the first inside page of each issue. The Federal Register offers seminars on federal regulations every other Friday from 9 to 11 :30am in Washington, for the schedule and a DC. Call 202/523-5235 reservation.
Patricia Allen Assistant editor
Head-neck nurses seeking membership The Society of Otorhinolaryngologyand Head-Neck Nurses is a specialty nursing organization formed three years ago. Membership is open to professional registered nurses working in the specialty. Informationabout the Society is available from Linda Seesholtz, National Membership Chairman, 3893 E Market St, Warren, Ohio
44404.
AORN Journal, June 1979, Vol29, No 7
1349
Federal rules and regulations are becoming almost as important in our lives as laws and court decisions-and even more bewildering. For example, this year the most important government decision regarding operating room nursing will be made, not by Congress, but by the US Department of Health, Education, and Welfare (HEW) in its revisions of rules for Medicare. The decision concerns whether operating room technicians will be permittedto circulate in place of registerednurses in hospitals that must meet Medicare standards. In addition, the Federal Trade Commission (FTC) has issued proposed rules that may affect AORN’s technical standards and future standard setting. (See AORN Journal, March 1979, pp 627-628.) We all learned in our civics classes how laws are made, but not many of us are aware of how to influence the rule-making process. Under the US Constitution, the President and the executive branch have the duty to “take care that the laws be faithfully executed.” As government programs become larger and more complex, Congress does not have time to spell out in laws all details necessary to implement them. So implementation is delegated to the executive agencies, which draw up the fine print. These rules and regulations have the force of law, but unlike acts of Congress, they can be amended without legislative action. Nevertheless, there are general guidelines for the rule-making process. The Administrative Procedures Act prescribes the process rulemaking will follow. In recent years, the number of rules issued by federal agencies has mushroomed. In fact, the number of pages of rules issued by HEW has doubled in the last ten years. On Jan 19,
1348
HEW published in the Federal Register 142 pages listingonly the names of rules it is working on. There is concern that those who make rules are not directly answerable to the public, as Congress is. Although federal agency heads are political appointees, most rules are written by civil service employees. Because their jobs are secure, they are not as easy to influenceby lobbying. What kind of influence is effective? First you have to know the process. After a law is passed, rules are drafted in the agency most involved in implementing the law. Then the drafts must travel upward through the agency for approval at every level. They must also be studied and approved by the agency’s attorneys to ensure they comply with the intent of Congress. After drafts of regulations are approved, they are published in the Federal Register. Agencies are required to inform the public of their proposals and allow time for public comment. Keeping up with proposals and comment periods isn’t easy. The Federal Register is a central source of information about proposed and final rules. Published daily, it contains the full texts of all rules and regulations, executive orders, presidential proclamations, and reorganization plans. Most professional associations subscribe, as do public libraries. AORN receives the Federal Register. The size and amount of print in the Federal Register can confound you, so it is wise to seek interpretationsof what is happeningfrom your professional association and other experts in the field. (News of the Medicare and FTC rule revisions has appeared regularly in the AORN Journal and AORN Newsletter.)
AORN Journal, June 1979, Vol29, No 7
At the beginning of each section of rules in the Federal Register is informationabout who will issue the final rules, the deadline for comments, and the name and address of the person responsible for receiving comments. The complete collection of all final rules and regulations is published in the Code of Federal Regulations (CFR). This multi-volume work is revised annually on a rotating basis. Complete sets are kept by law libraries and government depository libraries. To find the closest one, check with your public librarian. You will often see the initialsCFR in citations to rules. For example, the citation for the Medicare rule applying to OR nurses is CFR Title 42.405.1024 (d) (2).Title 42 is Public Health, and the rest of the numbers indicatesthe section and paragraph of the rule. By consulting the index and instructions for using the Code, you can find the specific rule. Keeping track of the rule-making process isn’t easy, but recent changes have improved the situation. The President has ordered major agencies to publish a list of rules they are working on every six months. HEW published its last agenda in the Jan 19 Federal Register and will publish the next one June 30. For questions on the HEW rule-making agenda, contact Rick Cotton, executive secretary to HEW, 200 Independence Ave SW, Washington, DC 20201.The major regulatory agencies also keep a docket of where rules are in the process. Knowing this does not always help explain delays in rule making, however. Often delay is caused when a draft is rejectedat a top level in the agency and is sent back for revision. Drafts can circulate within the agency indefinitely, and it may be difficult to find out when proposals will be published. In fact, as AORN discovered with the Medicare rules, conflicting information may be received from different offices. When this happens, the best approach is to check with your professional association, which has contacts in the bureaucracy, or to check with experts in the field who know the department involved. What is your recourse as a citizen if you believe rules are unfair or violate the intent of the law? First, check with the agency that issued the rule. Personnel there may be able to explain the rationale to your satisfaction. Or they may refer you to a regionalor state office if
the problem is with local applicationof the rule. If the problem seems national in scope and you believe further action is appropriate, two things are vital: documentationof the problem and support from those affected by the rule. Rules can be changed and amended, but this requires considerable evidence of the negative effect. It may be necessary to go to higher and higher levels in the agency to make your views known. Be forewarned: Organizations are reporting it is difficult to change rules once they are final. Although Congress does not play a direct role in writing and enforcing rules and regulations, it does oversee the process. If a rule is controversial enough, it may be challenged by hearings and pressure on the department. Among reforms being sought is requiring departments to publish an analysis of rules they plan to issue. This would include estimates of the cost of compliance, alternativesto the rule, and its goals. Congress is also considering writing into the law the President’s order that agencies publish agendas for their rule making. For progress on these issues, watch the Senate Governmental Affairs Committee. The office of the Federal Register has also been trying to make the process more understandable to citizens. You will find basic information about the process on the first inside page of each issue. The Federal Register offers seminars on federal regulations every other Friday from 9 to 11 :30am in Washington, for the schedule and a DC. Call 202/523-5235 reservation.
Patricia Allen Assistant editor
Head-neck nurses seeking membership The Society of Otorhinolaryngologyand Head-Neck Nurses is a specialty nursing organization formed three years ago. Membership is open to professional registered nurses working in the specialty. Informationabout the Society is available from Linda Seesholtz, National Membership Chairman, 3893 E Market St, Warren, Ohio
44404.
AORN Journal, June 1979, Vol29, No 7
1349
