Administrative procedure changes discussed

State agencies would have more direction and clarity regarding the promulgation of rules and regulations under a bill heard Feb. 4 by the Government, Military and Veterans Affairs Committee.

Syracuse Sen. Dan Watermeier, chairperson of the Legislative Performance Audit Committee, introduced LB867. The proposal was the result of a 2015 performance audit of the Administrative Procedure Act (APA), he said, which found that current language in state law doesn’t give adequate guidance to agencies or reflect best practices.

Among other provisions, the bill would amend the definition of rule or regulation and identify three types of agency documents that are not rules:
• internal procedural documents used to guide agency staff on organization and operations;
• guidance documents; and
• forms and instructions.

The bill also would exempt style, format and citation changes from public notice and hearing requirements. Security policies and procedures that, if released, would endanger public safety also would be exempted.

LB867 also would create short-term emergency rules, which can be adopted outside of normal APA procedures. An emergency rule would require approval of the governor and would remain in effect for 90 days. An emergency rule could be made permanent only through the full promulgation process.

The bill also adds language that would require state Department of Correctional Services regulations for circumstances in which an inmate is outside of a correctional facility.

Tim Texel, executive director of the Nebraska Power Review Board, testified in support of the bill, saying more clarity would benefit agencies and the public.

“We really appreciate some legislative guidance,” he said.

Calder Lynch, director of Medicaid and Long Term Care at the state Department of Health and Human Services, testified in a neutral capacity. His testimony focused on the provision allowing for the promulgation of short-term emergency rules.

The department issues many rules and regulations each year, he said, and programs sometimes are at risk of not being in compliance with state and federal law or court decisions. Noncompliance can lead to audits and expensive reimbursement to the federal government, he said, so it is essential that the agency have some flexibility within narrow parameters.

“Nebraska [currently] does not allow for time-limited emergency situations like every other state does,” Lynch said.

No one testified in opposition to LB867 and the committee took no immediate action on the bill.