Current through Register Vol. 49, No. 9, September, 2024
1052.0.0
ADMINISTRATIVE PROCEDURE, RULES PROMULGATION
1052.0.1 This policy establishes a uniform
method and system for promulgation of rules by the Department of Health and
Human Services (DHHS) in accordance with the Arkansas Administrative Procedure
Act (Act), Ark. Code Ann. §§
25-15-201 et seq. The Act requires
that agencies promulgate "rules of practice describing the nature and
requirements of all formal and informal procedures including forms and
instructions used by the agency." All rules promulgated must comply with
federal and state laws.
1052.0.2
This policy is applicable to all divisions and offices within DHHS and to all
managers and staff responsible for rules within their particular division or
office.
1052.1.0
Definitions
1052.1.1
Emergency Rule - A policy or procedure that requires
immediate implementation due to imminent peril to the public health, safety, or
welfare, or loss of federal funds.
1052.1.2
Mark-up
- If an already existing rule is being amended, a copy of the
proposed amendment indicating (significant) changes.
A rule is to be marked up by striking the old language and inserting and
underlining the new language. This is to be submitted in typewritten
format.
1052.1.3
Notice
Of Rule Making - A general clear statement of the subjects and
issues involved, and the time, place, and manner in which interested persons
may present their views thereon.
1052.1.4
Rule - Any
Agency statement of general applicability and future effect that implements,
interprets, or prescribes law or policy; or describes the organization
procedure or practice of any agency. "Rule" does not mean any statement
concerning the internal management of DHHS or any intra-office memoranda.
Policies or procedures that do not affect the private rights or procedures
available to the public are not considered rules that require
promulgation.
1052.1.5
Summary of Changes - A summary of the changes made in
any revision of a rule.
1052.1.6
Summary of Rule - A summary of the provisions of any
new rule in one or more paragraphs.
1052.1.7
Small
Business - A for-profit enterprise consisting of no more than one
hundred (100) full or part-time employees.
1052.2.0
Promulgation
1052.2.1 The DHHS Office of Finance and
Administration (OFA) will promulgate rules that apply to more than one DHHS
division.
1052.2.2 If the rule
applies only to a particular division, the division will promulgate the
rule.
1052.2.3
A. Before submitting any rule for adoption, amendment, or repeal,
DHHS shall first determine if the rule affects small businesses, particularly
as whether the rule increases costs for small businesses.
B. If it is determined that the proposed
rules affect small businesses, DHHS must complete the steps outlined in Section
1052.2.4.
C. If, however, such rules are
adopted on an emergency basis, are federally mandated, or substantially
implement existing state or federal law, Section
1052.2.4 does not
apply.
1052.2.4 For rules that affect small
businesses, DHHS shall:
A. Prepare an economic
impact statement
B. Submit the
economic impact statement and the proposed rule to the director of the Arkansas
Department of Economic Development (ADED)
C. Upon receipt of ADED feedback regarding
whether DHHS has sufficiently balanced the proposed rule with the interests of
affected small businesses, DHHS shall consider the feedback provided.
D. If DHHS determines that no action needs be
taken on the ADED feedback, DHHS shall respond in writing to ADED explaining
its reasons for the determination.
E. If DHHS determines that, based on the
feedback, amendment of the rule is warranted, DHHS shall indicate this in its
response to ADED.
1052.3.0
Executive Staff Review
1052.3.1 The initiating division will prepare
the rule in draft form to be reviewed by the DHHS Executive Staff.
1052.3.2 For rules affecting more than one
division, the initiating division will send that draft rule as an email
attachment to OFA, Policy & Administrative Program Management (PAPM) which
will, in turn, e-mail the draft to all members of the Executive
Staff.
1052.3.3 The draft is to be
accompanied by an Executive Summary consisting of the Summary of Rule or
Summary of Changes.
1052.3.4 The
Executive Staff will have approximately two weeks to reply with concurrence or
with non-concurring comment.
1052.4.0
OCC Approval
After Executive Staff approval of the draft rule a Notice of
Rule Making, Arkansas Register Transmittal Sheet, Arkansas State Library Agency
Certification Form, Legislative Questionnaire, Bureau of Legislative Research
page, and a Financial Impact Statement shall be prepared and submitted to the
DHHS Office of Chief Counsel (OCC). OCC shall review the submission within five
(5) working days for compliance with the Act and will inform the initiating
division of its findings. Upon approval by OCC, the Notice of Rule Making may
be published.
1052.5.0
Notice of Rule Making
1052.5.1
The Notice of Rule Making shall be published in a newspaper of general daily
circulation for three (3) consecutive days to afford all interested members of
the public up to thirty (30) days opportunity to submit comments, orally or in
writing. The initiating division must obtain confirmation of the actual
publication of the Notice of Rule Making in the newspaper to be retained in its
files.
1052.5.2 The Notice shall be
e-mailed to the Secretary of State at register@sosmail.state.ar.us with a date
listing when the agency wishes the Notice to be published. The Notice will be
posted on the Secretary of State's website for 30 days.
1052.5.3 The Notice shall be mailed to any
person who requested advance notice of rule making
proceedings.
1052.6.0
Initial Filing
1052.6.1 Every
initiating division must submit any proposed, revised, amended, changed, or
repealed rule to the Secretary of State's Office and the Bureau of Legislative
Research thirty (30) days before the expiration of the period for public
comment.
1052.6.2
Secretary of State: One (1) copy of the rule (in Adobe
PDF or Microsoft Word 6.0, or higher) must be submitted to the Secretary of
State on disk or e-mailed to register@sosmail.state.ar.us. Submissions must
include the agency number with each rule filing submitted to the office. The
agency number is to be provided in the upper right-hand corner of the first
page of the rule submission and on the disk submitted. The rule will also be
submitted in "mark-up" form if the rule is an amendment to an existing rule.
One (1) copy of a Summary of Rule must be submitted with a new rule. One (1)
copy of a Summary of Changes must be submitted with a revised rule.
1052.6.3
Bureau of Legislature
Research: Three (3) copies each of the proposed rule and the
Legislative Questionnaire, and two (2) copies each of the Financial Impact
Statement and the mark-up (see Section
1052.1.2 for mark-up format)
shall be filed with the Bureau of Legislative Research. Two (2) copies of a
Summary of Rule must be submitted when filing a new rule. Two (2) copies of a
Summary of Changes must be submitted with a revised rule.
One copy each of the rule and the Legislative Questionnaire are
to be file stamped and returned to the division or office. A cover letter must
accompany the submission requesting that the rule be placed on the Legislative
Council, Administrative Rules and Regulations Subcommittee agenda for review.
Providing a copy of the cover memorandum accompanying the submitted materials
for date stamping and return to the agency is optional.
1052.7.0
Final
Filing
1052.7.1 After the thirty (30)
day public review period expires the initiating division shall file its final
rule with the Secretary of State, the Arkansas State Library, and the Bureau of
Legislative Research. Every promulgated rule must be filed at least ten (10)
days prior to its effective date. Each rule adopted by an agency shall be
effective ten (10) days after filing unless a later date is specified in the
rule itself.
1052.7.2
Secretary of State: Two (2) paper copies each of the
proposed rule and the Arkansas Register Transmittal Sheet, and one (1) copy
each of the Notice of Rule Making, and the Financial Impact Statement must be
filed with the Secretary of State. One (1) copy of the rule (in Adobe PDF or
Microsoft Word 6.0, or higher) must be submitted to the Secretary of State on
diskette at the time of the filing or emailed to register@sosmail.state.ar.us.
The agency numbering discussed in 1052.6.2. above also applies to the final
filing. One (1) paper copy each of the rule and the transmittal stamped with
the filing date will be returned to the division or office.
1052.7.3
State
Library: One (1) copy of the proposed rule must be filed with the
Arkansas State Library. Two (2) copies of the Arkansas State Library Agency
Certification Form and one (1) copy of the Financial Impact Statement must
accompany the proposed rule. One (1) copy of the Certification Form stamped
with the filing date will be returned to the division or office. Fifteen (15)
copies of the final rule shall be sent to the Coordinator of Document Services
(682-2326) at the Arkansas State Library upon finalization of
promulgation.
1052.7.4
Bureau of Legislative Research:
Three (3) copies of the proposed rule, three (3)
copies of the Bureau coversheet, two (2) copies of the mark-up, two (2) copies
of the Financial Impact Statement, and two (2) copies of the summary must also
be filed with the Bureau of Legislative Research. One (1) copy each of the rule
and coversheet stamped with the filing date will be returned to the division or
office.
1052.8.0
Arkansas Legislative Council, Administrative Rules and Regulations Subcommittee
(Subcommittee)
The Subcommittee will review promulgated rules at its monthly
session at the State Capitol. The Bureau of Legislative Research will place the
rule on the Subcommittee's monthly agenda based on the information provided in
the Legislative Questionnaire submitted to the Bureau by the promulgating
agency during the initial filing. The promulgating agency must schedule
promulgation such that the public review period has been completed before the
Subcommittee review date.
1052.9.0
Emergency Filing
Under an emergency rule, the division or office may proceed
without prior notice or hearing, or upon any abbreviated notice and hearing
that it may choose, to issue an emergency rule. The initiating division shall
file with the proposed rule a statement that includes a finding that imminent
peril to the public health, safety, or welfare, loss of federal funds, or
requirement for compliance with federal laws or regulations requires issuance
of the rule with less than thirty (30) days notice. The initiating division
shall specifically state the factual reason for the finding of imminent peril
to the public health, safety, or welfare. The emergency rule will be effective
immediately upon filing with the Secretary of State, the Arkansas State
Library, and the Bureau of Legislative Research, but for no longer than 120
days. Within the 120 days, the proposed rule must be promulgated according to
Section 1052.2.0 above.
1052.10.0
Petition for Issuance,
Amendment, or Repeal of Rule
Any person has the right to petition the initiating division or
office within DHHS for the issuance, amendment, or repeal of any rule. The
division or office must either initiate rule making proceedings or deny the
petition in writing within thirty (30) days of the submission of such a
petition.
1052.11.0
Failure To Promulgate
Failure to promulgate a rule can result in a rule being
declared null and void. Failure for any reason to comply with these
promulgation requirements may result in discipline to the DHHS employee who is
responsible for the rule's promulgation.
1052.12.0
Declaratory Orders
The Department shall provide for the filing and prompt
disposition of declaratory orders as to the applicability of any rule, statute,
or order in force by it. These declaratory orders shall have the same status as
agency orders in cases of adjudication. Petitions for declaratory orders shall
be filed with the division or office issuing the rule that is the subject of
the petition of the declaratory order. If this situation occurs, OCC should be
contacted for technical assistance.
1052.13.0
Conflicting Policies
Other policies or parts thereof in conflict with the contents
of this policy are hereby repealed or amended as necessary.
1052.14.0
Originating
Section/Department Contact
Office of Administrative Services
Human Resources/Support Services Section
Policy and Administrative Program Management
P.O. Box 1437/Slot Number W403
Little Rock, AR 72203-1437
Telephone: 682-5835
Replacement Notation: This policy replaces DHS Policy 1052
dated June 17, 2002.
