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To: Commissioner Faherty
From: Arthur Keenan, o/b/o Ch. 33 (Time out and Restraint) Committee
Date: December 13, 2010
Re: Recommendation to engage in consensus based rule making
The Department of Education staff working group on Chapter 33 (Restraints and Seclusion) is recommending to you that the Department engage in consensus-based rulemaking, pursuant to Title 5, section 8051-B, to develop a proposed revision to Chapter 33.
The staff working group met with a representative group of interested parties for 3 hours on November 9, 2010. At the end of that meeting, some members of the group expressed a strong desire to participate more fully in development of the proposed rule. On November 23rd, we sent an email to all participants in the stakeholder meeting, asking them to express their preference from among 3 options for additional participation: consensus-based rulemaking; one or more additional meetings similar to the one we held; and one more meeting followed by DOE rule drafting and the normal public hearing process in rulemaking. Sixteen of the 21 represented interests voted for consensus-based rulemaking; two responded that they prefer one or more additional stakeholder meetings.
The staff working group met and agreed that CBR would provide a structured, efficient and effective way to involve stakeholders in drafting a revised rule. While the Department retains the authority and responsibility to propose a rule, stakeholders provide expertise in on-the-ground issues, and their validation and acceptance of the rule is important to creating a workable and beneficial rule.
Steps in Consensus-Based Rulemaking
To begin the CBR process, the Department should amend the Regulatory Agenda filed in July, to indicate that we are undertaking consensus-based rulemaking. We included Chapter 33 on the list of rules that we expected to amend, but did not indicate that we would use CBR.
The department would then: establish a representative group of participants; disclose the funding and time constraints on the department; select an employee or contractor to facilitate the meetings; and develop grounds rules for the process that are mutually acceptable to the agency and the participants.
We propose to group the stakeholders into 7 interest groups and ask that they each select a participant to sit at the table, which person would be responsible for ensuring that he or she collects and reflects input of the others who are not at the table. In addition, all stakeholders (and any interested member of the public) will be invited to attend meetings, to receive meeting summaries and to receive any materials submitted to the CBR Team.
We propose the following grouping of interests:
Timing, Staffing and Funding
We propose that the CBR working group meet 3 times, on dates 3 to 4 weeks apart. This is designed to bring closure to this rule before the end of March. For that reason, we propose that nominations from the interest groups of persons to be participants on the CBR Team be submitted to you for approval by January 10, and that the CBR Team meet on January 27, February 17, and March 10, with March 24 reserved as an alternate in case of a snow day. The department must designate a staff person, or contractor, to facilitate the process. We suggest that Ansley Newton, DOE staff, be the facilitator for this process. She is knowledgeable in the subject matter, has excellent facilitation skills, and we believe that she is trusted by stakeholders to be fair. We also suggest that Nancy Dube be the department participant on the CBR Team and that Steve Spear be the record keeper for the Team.
We will clarify that (1) the department enters into this process in order to improve the likelihood that the resulting rule will be well-informed and acceptable to stakeholders; (2) we feel some urgency to amend the rule, since it can in some cases be a matter of safety for students and staff; (3) the department representative will express the concerns of the department, including attention to the ability of the department to administer any provisions of the proposed rule; and (4) the department will state that it does not anticipate having additional staff or financial resources to implement the rule.
In addition to providing a facilitator, participant, and a record keeper from the department, we will also need to create a process for ensuring that all interested parties receive notice and information about meetings.
If you approve of this proposal, we will ask Greg Scott to amend the Department’s Regulatory Agenda to indicate the CBR process and will begin working with a facilitator and stakeholders to set meeting times and ground rules for the process.
We would be happy to answer any questions you have.
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