Policy and Practice February 2019

from the field By Lori Anderson, Luba Bezborodnikova, Debbie O’Neil, Tina Chen-Xu, Tyler Farmer (not pictured), and Sonya Stevens

Rulemaking that Works: Consensus by the Community for the Community

H ow do you engage people in the community and leverage their expertise and experience during times of change? Is it possible to bring these diverse community members together and work collaboratively to create transformational outcomes? In Washington State, the Department of Early Learning used a process called Negotiated Rulemaking (NRM), a 10-month effort that brought diverse community members together from across the state to collaboratively update child care regulations. Why Negotiated Rulemaking? Enacting new rules and regulations can be difficult. One major barrier to implementation is often a lack of buy-in from individuals directly affected by the rules. Much of the chal- lenge can stem from the feeling that an administration is “forcing” new changes with a “top-down” approach and doing so in a vacuum, without communicating with those affected. Whether or not this perception is true, a process that embraces the idea that people have the right to influence regulations directly affecting them creates a strong foundation of substan- tive outcomes. 1 Common rulemaking practice is for an agency to draft proposed rules and then decide how much public input is allowed and how much weight the input has on decision-making. Most often, there is limited or no opportu- nity for conversations between affected parties. 2 Although public comment submission processes, often online, and public hearings are designed to

engage all affected parties, they do not always result in an inclusive process for all levels of the community. NRM, on the other hand, can be an effective solution for state and local governments to develop and enact new regulations. NRM is a process where representatives from govern- ment and community stakeholders work together to reach consensus on what ultimately becomes a proposed rule. 3 Consensus means all parties have decision-making power in the negotiation process; in other words, all voices can have an impact on the final language of the rule. NRM, first implemented in the early 1980s and amended in 1990 to improve the acceptability and substance of rules, helps to increase the likelihood that affected parties accept enforce- ment or do not challenge those rules in court. 4 Although the upfront invest- ment of time and effort on NRM can be high, the impact of the investment may mean decreasing the cost of roll-out, implementation, and enforcement of new rules by increasing the “buy-in” by affected parties.

Many federal and state agencies have developed systems to involve community and key stakeholders in the rulemaking process. How does it work? Five Steps for Moving fromTraditional to Negotiated Rulemaking 5 1) Informing the public 2) Consulting the public by requesting input 3) Involving the public by accepting input and engaging in reflection 4) Collaborating through shared decision-making 5) Empowering the public through decision-making NRM in Action in Washington State Mandated by the Washington State Early Start Act (2015), the Department of Early Learning (DEL, now the Department of Children, Youth, and Families) 6 proposed a comprehensive realignment of the state’s child care

See Rulemaking on page 32

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February 2019 Policy&Practice