The lawmaking process is difficult enough to understand and follow; the creation of regulations to implement a law is levels more obscure — yet those regulations can be as important as the law itself.
Connecticut state agencies operate under the Uniform Administrative Procedures Act, which requires that department policies be adopted in the form of regulations. Agencies have 180 days after the implementation of a policy to submit the proposed regulation for public comment and legislative approval.
In our state, approval does not require action by the entire General Assembly but by the bipartisan Regulations Review committee, which holds hearings and often works with agencies to make changes in their proposals. I believe it’s a very effective approach; the committee doesn’t have a high profile, but it tends to attract serious legislators with a sincere interest in seeing things done right.
There’s a notable exception to this procedure that concerns me: the regulation of Connecticut’s Homecare Program for Elders. As a freshman senator, I was the author and principle sponsor of the bill that created our state’s first homecare program. That bipartisan effort was my proudest legislative achievement, saving taxpayers billions of dollars in nursing home costs over the years, while enabling tens of thousands of state residents to remain in their own homes.
In 1992, at a time when our state’s ability to fully fund the program as constituted was in question, language was put into the statute governing the program which allowed the commissioner of the Department of Social Services to change eligibility standards on his own authority, for the purpose of controlling costs. Such adjustments were referred to as “revised criteria” in subsection (j) of relevant statute, 17b-342, and clearly applied only to eligibility for the state-funded portion of the homecare program.
In 1995, PA 95-160 removed the words “state-funded portion” from the statute, allowing the commissioner to issue “revised criteria” to operate the entire homecare program. Interpreting “criteria” in the broadest possible sense, DSS has used this so-called “Subsection J Law” to make significant changes to the operation of the home care program, without obtaining public input or legislative approval.
In last year’s session, the Human Services Committee raised SB 242, which would have closed the J Law loophole.
The bill eliminated “revised criteria” as a special category, thus ensuring that all changes in the regulation and operation of the homecare program go through the normal approval process. DSS expressed understandable concern about its ability to move proposed regulations through the process in that time frame, but voiced no objection to the underlying principle that all regulations should be subject to review.
Legislative review, and especially the opportunity for public comment and the negotiations that take place at the committee level, ensure that all stakeholders have a voice in the crafting of regulations. Otherwise the likely alternative for those hurt by poorly-conceived regulations is a long, costly court battle. It shouldn’t have to come to that.
The General Assembly has another chance this session to affirm the principle of legislative oversight by closing the J Law loophole. It’s an effort that would likely have bipartisan support. Last year’s proposal is a good starting point: the details can be negotiated, but the principle ought to be maintained.
Joe Markley is a former state Senator from Southington and is now working part-time for Companions and Homemakers, which is included among the sponsors of this website.
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