Virginia’s Regulatory Process: Where We Are With TRAP

There is no legitimate medical purpose for singling out abortion providers with burdensome TRAP regulations; regulating abortion differently from other outpatient procedures is playing politics with women’s health and safety. Virginia’s TRAP law, signed by Governor McDonnell in March 2011, is Senate Bill 924, codified as  Va Code § 32.1-127(B)(1).

Based on this law, Virginia’s Board of Health promulgated a set of draconian regulations and licensing laws. Governor McDonnell signed the final Licensing Regulations in June 2013, requiring all existing abortion clinics to file renovation or relocation plans that complied with the infeasible physical plant requirements as a condition of obtaining or renewing a license, or else face immediate closure. The implementation of these regulations, including new building and facility requirements and other unnecessary and expensive mandatory changes led to the closure of multiple abortion clinics in Virginia and a reduction of reproductive health services available to Virginia’s women.

The administration changed in 2014. Governor McAuliffe directed Virginia’s Board of Health to review the new TRAP regulations and find ways to ease the burden on abortion providers. While the process was underway, the Supreme Court decided Whole Woman’s Health v. Hellerstedt, a momentous decision unequivocally declaring any regulation that creates undue burden on access to abortion, without conferring medical benefit, to be unconstitutional. In an attempt to conform to this decision, the Board of Health made some changes to Virginia’s regulations, but the regulatory changes-while a good start-were not nearly enough to relieve the burden on abortion providers and patients. This time, there is an opportunity to take another look at the regulations and make additional changes… Pending the full repeal of the TRAP statute by other means.

The current regulations still require abortion facilities to submit to a licensing scheme to which no other similar outpatient facility is subject. The full list of regulations can be found here. Colonoscopies, wisdom teeth removals, and other procedures with higher complication rates than abortion are performed ever day in outpatient doctors’ offices. Before 2011, abortions were treated similarly. It is time to make common-sense changes to these regulations, reducing the burden on abortion providers and increasing patient access to necessary health care.

Step 0 – Government Agency Internally Starts Process of Preparing for Notice of Intended Regulatory Action

Either the legislature has passed a bill that has become a statute after the Governor’s signature that requires a state executive agency to promulgate (make) regulations on a particular topic or the executive decides on its own pursuant to its ability to periodically review regulations or an outside circumstance to revisit a regulation or set of regulations.

On June 7, 2018, Virginia’s Board of Health moved to direct the State Health Commissioner, Dr. Norm Oliver to develop a Notice of Intended Regulatory Action that the Board of Health intends to amend and re-promulgate 12VAC5-412, Regulations for Licensure of Abortion Providers. The motion was unanimously approved. The motion stated: “The purpose of the proposed action is to assess all current regulation content and to determine whether it should e amended or retained in its current form. The Notice of Intended Regulatory Action shall state that revisions to the regulation content may be proposed based on public comments received and input from the Department. The NOIRA should also state that the Board intends to hold a public hearing on the proposed action after publication in the Virginia Register.”

The rest of the minutes from this meeting can be found here.

As of June 15, 2018, the NOIRA has not yet been published.

Step 1 – Notice of Intended Regulatory Action (NOIRA)

Once a NOIRA is prepared by the agency, the NOIRA goes to the governor for executive review. The NOIRA can take some time to prepare after an agency directs that the process starts. The scope of the NOIRA limits the scope of the regulatory changes that can be made during this process.

After the NOIRA is approved by the governor, the NOIRA is then published in The Virginia Register of Regulations, and there is at least a 30-day period during which the public can comment on the NOIRA. Using these comments, the executive agency drafts the actual language of the proposed regulation. During this time, the agency may also hold public hearings to get additional feedback on the NOIRA.

The NOIRA has been published on October 1st and the deadline to submit a comment ends on october 31st. You can submit your public comment HERE. 

Step 2 – Proposed regulation

After compiling the first set of comments on the NOIRA, the agency drafts the actual proposed regulation, whether it is a brand new regulation, an amended regulation or a complete repeal of the regulation. Drafting the regulation can take some time. Here is a a more detailed look at this stage.

The agency publishes this new regulation along with an explanation of the basis, purpose and substance of the regulation, an Economic Impact Analysis and an agency contact person. After this regulation is published in the Virginia Register, the public has an additional 60 days to comment on the new regulation. The agency may make changes to the proposed regulation based on comments received during the public comment period. The agency may also hold public hearings at this stage.

Sign up here to receive updates about when the new regulation is published, when the comment period begins and ends as well as sample comments and other relevant information.

Step 3 – Final regulation

The new, amended, or repealed regulation is published in the Virginia Register, highlighting (by bracketing changed language) any changes made to the text of the regulation since the proposed regulation was published.

A 30-day waiting period takes place before the regulation becomes effective.

The Governor reviews and can object to the regulation. The Governor may also suspend the effective date of a portion or all of a regulation until the end of the next regular General Assembly session. If the Governor objects of suspends the regulation, this decision will be published in the Virginia Register. The Governor may also require the agency to provide an additional 30-day public comment period on significant changes to the regulation from the proposed regulation to final regulation. This will also be published in the Virginia Register.

The public can also cause suspend the regulatory process if 25 or more individuals request additional public comment, unless the agency determines that the changes requested would be insignificant.

The agency can withdraw or suspend the regulatory action at any time before the regulatory process ends.

Get more information about Virginia’s rule-making process

You can also sign up for official notices about rule-making at the Virginia Town Hall site.