Understanding the regulatory process

By Kerry

In case you missed it while preparing for Hurricane Irene, the Virginia Department of Health released its much anticipated draft emergency regulations last Friday for women’s health centers providing first-trimester abortions. As NARAL Pro-Choice Virginia executive director, Tarina Keene told Mother Jones earlier this week, the proposed regulations as currently drafted will impose unduly strict, burdensome facility requirements on women’s health centers performing at least five first-trimester abortions a month:

”It would be challenging for the majority of our facilities to continue offering first-trimester care,” Keene said. “These are designed to really cease first-trimester abortion services in the Commonwealth of Virginia.”

The regulations are the product of SB 924, which narrowly passed the state Senate and was signed into law by Governor McDonnell last March.

Understanding the process and timeline for these regulations is one of the most confusing aspects of this issue. When singling out women’s health in SB 924, anti-choice lawmakers in Virginia took advantage of a special “emergency regulations” process which enabled them to mandate that the new rules be implemented within 280 days. By utilizing this emergency procedure, the draft regulations can take effect while permanent regulations are still being formulated – a drawn-out process that can take over two years.

A major concern of this fast-track process is the fact that there will be very little time for the public and health care professionals to offer feedback on the regulations before the Board of Health votes on them. With the Board set to vote during its September 15^th meeting, that leaves only a few weeks for concerned citizens and advocates to submit written comments. More troubling still, there will only be one limited opportunity for oral comments before the vote, which will take place at the September 15^th meeting just before the Board members consider the draft regulations.

Should the Board of Health approve the draft regulations, the new rules will still be subject to an “executive review” by Gov. McDonnell, the attorney general, the Virginia secretary of Health and Human Services, and the Department of Planning and Budget. Depending on whether they opt for revisions, the emergency regulations will then take effect on or after January 1, 2011 and can remain in effect for a maximum of 18 months.

Fortunately, the public will have at least a bit more room to voice their concerns when it comes to the process for the permanent regulations. Here’s a rundown of how it will work:

1) The Board of Health will file another “Notice of Intended Regulatory Action,” this time for the permanent replacement regulations, which will be followed by a 30-day comment period. As stated in Friday’s Notice of Intended Regulatory Action for the emergency regulations, the Board plans to hold one or more public hearings on the issue.

2) After this initial comment period, the Board of Health will file proposed permanent regulations, which will then be followed by a 60-day comment period. The Board also have the opportunity to appoint a special regulatory advisory panel in order to seek out professional opinions on the matter, although, they don’t plan to do so (at least not at this time). During this extended feedback period, the Board is also free to modify the regulations, and if they do so, the public will get another 30 days to offer comments.

3) Once the comment period is up, the Board of Health will publish a final version of the permanent regulations in the Virginia Register. The publication date marks the start of the “executive review” period for the permanent regulations during which the governor or the committees of jurisdiction in the Virginia General Assembly can file objections to the regulations. If either decides to file an objection, it will be published in the Register, and the Board of Health will then have 21 days to respond. Should both the legislature and the governor file objections, they can stop the clock – i.e. suspend the date the regulations become effective. If no such objections are raised, the regulations will be implemented at the end of the “executive review” period.

Quite a complex process before all this is said an done. But before we even get to permanent regulations, we have a lot of work ahead with the emergency regulations.

What can you do to stand up for women’s health in light of these politically-motivated regulations that could detrimentally affect access to health care for Virginia women?