Impacting federal rule making: Advocacy Institute

Leza Conliffe, Senior Staff Attorney, NSBA
public comment process for federal regulation

IRS: new player, through Affordable Care Act
FCC through E-rate
USDA: school lunch
DoE...
increasing number of federal regulations with which to comply
impacting what schools are having to do
bullying, sexual harrassment, athletics, hiring and firing

since October 1, 2012 the federal gov't has published 5,567 proposed rules for federal regulations
Just as school boards allow public comment, the federal gov't does
"or at least we'd like to think so"

to implement federal law, federal agencies draft regulations for review and comment: to show the steps to comply and put public on notice on steps for compliance

agency publishes rule in Federal Register
agency reviews all comments and determine what changes (if any) should be made
if there is a substantive change, they amend the rule and publish for comment again
if there is not, they will publish the final rule

in the process, they have to let you know what they did with the comments
publish summaries with the final rule
comment period lasts 30 to 90 days
notice provides time, place, and manner in which to submit public comments

Notice for federal regulatory actions are taking other forms: guidance documents, agency notices, "Dear Colleague" letters (yeah, DoE does this), advisory memos, FAQs, fact sheets, blog posts
How then to track what they are doing?

DoE has called for more comments from a greater variety of sources
need school districts to be specific about challenges from federal rule making
no two districts are the same

If you send in a form letter, IT COUNTS AS ONE COMMENT
personalize it

Yes, the comment period has been known to change regulation
"get more comments from charter schools and private schools than from public schools"
comment periods out of sync with school year (opening in June, for example)

NSBA is "saying it, but they want to hear it from you"
"we can only tell them so much, because we don't have to do this; your districts do"

how to find it?
NSBAwire
Legal Clips

More coming "as you get to the end of an administration, you tend to see more rules, so the next administration would have to undo it"

Can search Federal Register

Comments are submitted to regulations.gov
all comments are public and searchable
Interesting: currently Teacher Preparation is trending ; lots of comments are coming in

Be strategic in your comments:

• impact of use on tax dollars
• actual impact (in dollars or otherwise) on district operations
• important issues that they're missing
• are there areas of a program for which regulation is missing?
• do parts of regulation need to be clarified or further defined?
• are the proposed actions inconsistent with federal law? How?
• was enough time and notice given to respond?
• suggest an alternative
• pick your battles: you don't need to comment on every issue (or every rule)

A single well-written comment can have more impact than hundreds that are poorly constructed

What is coming? for comment:

• child nutrition: anticipated in January 2015
• impact aid: anticipated in January 2015
• early intervention for infants & toddlers: anticipated in May 2015
• revisions to Americans with Disabilities Act (both employers and as affected (students)): was projected for December 2014
• amendments under Genetic Information Nondiscrimination Act: anticipated February 2015
• Head Start performance standards: March 2015
• nondiscrimination under ACA: anticipated April 2015
• nondiscrimination on basis of sex (title IX) (Homeland Security? Not clear how): March 2015
• student exchange visitors: October 2015
• school officials: October 2015
• accessibility of web information and services of state and local government : was projected for December 2014
• medical equipment and furniture: October 2015
• make and maintain accurate records for injury and illness: had been expected November 2014
• limits of exemptions for overtime: anticipated February 2015 (for those on salaries)

"I see a lot of dollar signs, for implementation, for staffing"

Q: if we get a new ESEA...?
"The law is current, the law is in effect, but the regs don't match the law"
"it's hard to do both, but you almost have to...and it took a long time to get those regs out" (when IDEA was redone)