Administrative Code & State Agencies

[Guest guest]

Will says:

Mike - I have to disagree about state regulatory boards and interpretation

of statutes. State boards - across the board - are required to write

rules. The rules language is an interpretation of code for the purpose of

regulating a profession.

 

Richard responds:

Having spent the past 11 years involved in Administrative law in Florida,

co-defending several Adminsitrative attacks on the AOM profession in

Florida and the filing of one Administrative Petition to Find the Florida Board

of Acupuncture's Rules INVALID RULEMAKING, I would further clarify.

 

State Boards/Agencies are ONLY required to write rules when they are given

the statutory responsibility (only when given legislatively) to IMPLEMENT

the rulemaking with the INTENT of subject statute section.

 

For example: The Florida legislature gave the Board the general authority

for rulemaking, specific authority for rulemaking and further ordered them

to implement a rule as to how many hours of continuing education are needed

to renew a license - up to a maximum of 30 hours.

 

In any rulemaking there needs to be two parts: 1) specific rule making

authority under each and every individual section/subject matter; AND 2) there

must also be a law which is to be implemented. General Rulemaking

authority is not specific enough.

 

Second example: The Florida legislature gave the Board specific authority

to DEFINE terminology such as: Traditional Chinese Medical Concepts; Modern

Oriental Medical Techniques; Electroacupuncture; Adjunctive Therapies;

Dietary Guidelines; Diagnostic Techniques; & Acupoint Injection Therapies and

so the Board did.

 

The State Administrative Procedures Act/principles follow the Federal

Administrative Procedures Act.

 

State Agency/Boards have a quasi-legislative function but only when they

have been given specific authority for that rulemaking function.

 

By laying out the details the Board may touch upon interpretation as the

experts in the field rather than the legislature which would not want to get

bogged down in muddy waters.

 

Florida has a little over 1100 statutes but way over 10,000 Administrative

Code Rules.

 

Mike says:

Many state regulatory boards are not supposed to provide legal advice and

that usually includes interpretation of statutes. Seems odd when you call

and want to know beforehand if you are following the law. They seem to want

to force you to act and then there can be a legal reaction filed, hearing,

etc. Our statutes in many states do not allow for LAc to order lab tests, a

few are different on this issue. Maybe you can find another provider such

as a ND or DC in your state that will work with your patient. Best of luck

in your search.

 

 

Will says:

I think that the interpretation you are referring to is the application

'in a single case' as opposed to the rulings affecting the professional

practice.

 

 

Richard comments:

Agency Board's are never to interpret statutes although they do have a

regulatory function to answer appropriately properly filed REQUESTS FOR

DECLARATORY STATEMENTS.

Short of that they will always tell you to hire a lawyer.

Ever wonder why laws and sometimes even rules are vague?

 

 

 

 

 

 

[Guest guest]

David

 

If one has the time, the knowledge and the determination....its pretty easy

to FORCE them to address there task of rulemaking.

What can make it better in attaining the goal is to be capable without

having to PAY an attorney.

In Florida one does not have to be an attorney to play in the

Administrative domain as that is the Executive branch of government....not the

judicial

branch even though there are laws & rules on how to promulgate rules.

 

Richard

 

 

In a message dated 9/30/2009 1:52:26 P.M. Eastern Daylight Time,

acuman1 writes:

 

Then there is cases where the regulating agency doesn't wish to go thru

the rigamarole of writing up Rules and regs (which may take years and

hearings) on a specific item they wish to address, and use a case before an

administrative law judge to make law.

Heck, if they can adjust specific legislation by judges, why not the rules

and regs?

DAvid Molony

 

 

 

 

[Guest guest]

Michael

 

If the rule is written with clarification in mind as was done in Florida in

2000 when what I posted before was further delineated then usually no

further interpretation is necessary.

 

Then again - law and code rules are designed to be argumentative.

Makes lots of money for attorneys.

 

And yes....all the lawyers both Dept of Health and AGs office will refer to

hire someone. That's their job.

 

And the people you get when you call up the STAFF for a Board are usually

clerical in nature.

 

As I said....if one needs further clarification a properly drafted and

filed request for DECLARATORY STATEMENT should bring forth what is needed.

 

Richard

 

 

In a message dated 09/30/09 4:26:46 P.M. Eastern Daylight Time,

naturaldoc1 writes:

 

 

Will,

Publishing a rule is one thing, being willing to interpret that rule is

another. I have had the op to contact more then one state board and found

that the actual personnel on hand refuse to give clarification. I have also

found out that they are being guided, at least in this case, by the state's

AG office not to give answers that could be used against them. I do not

blame them but it would be nice to discuss some ideas before going ahead

with them. I am talking about the people you get when you call up the board

and not what is published by the state, as rules. Thanks for making the

distinction.

 

Michael W. Bowser, DC, LAc

 

 

 

 

[Guest guest]

Then there is cases where the regulating agency doesn't wish to go thru the

rigamarole of writing up Rules and regs (which may take years and hearings) on a

specific item they wish to address, and use a case before an administrative law

judge to make law.

Heck, if they can adjust specific legislation by judges, why not the rules and

regs?

DAvid Molony

 

 

On Sep 30, 2009, at 12:26:05 PM, acudoc11 wrote:

 

acudoc11

Re: Administrative Code & State Agencies

September 30, 2009 12:26:05 PM EDT

Chinese Medicine

Will says:

Mike - I have to disagree about state regulatory boards and interpretation 

of statutes. State boards - across the board - are required to write 

rules. The rules language is an interpretation of code for the purpose of 

regulating a profession.

 

Richard responds:

Having spent the past 11 years involved in Administrative law in Florida, 

co-defending several Adminsitrative attacks on the AOM profession in 

Florida and the filing of one Administrative Petition to Find the Florida Board 

of Acupuncture's Rules INVALID RULEMAKING, I would further clarify. 

 

State Boards/Agencies are ONLY required to write rules when they are given 

the statutory responsibility (only when given legislatively) to IMPLEMENT 

the rulemaking with the INTENT of subject statute section. 

 

For example: The Florida legislature gave the Board the general authority 

for rulemaking, specific authority for rulemaking and further ordered them 

to implement a rule as to how many hours of continuing education are needed 

to renew a license - up to a maximum of 30 hours.

 

In any rulemaking there needs to be two parts: 1) specific rule making 

authority under each and every individual section/subject matter; AND 2) there 

must also be a law which is to be implemented. General Rulemaking 

authority is not specific enough.

 

Second example: The Florida legislature gave the Board specific authority 

to DEFINE terminology such as: Traditional Chinese Medical Concepts; Modern 

Oriental Medical Techniques; Electroacupuncture; Adjunctive Therapies; 

Dietary Guidelines; Diagnostic Techniques; & Acupoint Injection Therapies and 

so the Board did.

 

The State Administrative Procedures Act/principles follow the Federal 

Administrative Procedures Act. 

 

State Agency/Boards have a quasi-legislative function but only when they 

have been given specific authority for that rulemaking function. 

 

By laying out the details the Board may touch upon interpretation as the 

experts in the field rather than the legislature which would not want to get 

bogged down in muddy waters.

 

Florida has a little over 1100 statutes but way over 10,000 Administrative 

Code Rules.

 

Mike says:

Many state regulatory boards are not supposed to provide legal advice and 

that usually includes interpretation of statutes. Seems odd when you call 

and want to know beforehand if you are following the law. They seem to want 

to force you to act and then there can be a legal reaction filed, hearing, 

etc. Our statutes in many states do not allow for LAc to order lab tests, a 

few are different on this issue. Maybe you can find another provider such 

as a ND or DC in your state that will work with your patient. Best of luck 

in your search. 

 

 

Will says:

I think that the interpretation you are referring to is the application 

'in a single case' as opposed to the rulings affecting the professional 

practice. 

 

Richard comments:

Agency Board's are never to interpret statutes although they do have a 

regulatory function to answer appropriately properly filed REQUESTS FOR 

DECLARATORY STATEMENTS. 

Short of that they will always tell you to hire a lawyer. 

Ever wonder why laws and sometimes even rules are vague?

 

 

 

 

 

[Guest guest]

Will,

Publishing a rule is one thing, being willing to interpret that rule is another.

I have had the op to contact more then one state board and found that the actual

personnel on hand refuse to give clarification. I have also found out that they

are being guided, at least in this case, by the state's AG office not to give

answers that could be used against them. I do not blame them but it would be

nice to discuss some ideas before going ahead with them. I am talking about the

people you get when you call up the board and not what is published by the

state, as rules. Thanks for making the distinction.

 

Michael W. Bowser, DC, LAc