At its meeting on February 16, 2001, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2000-203 containing proposed rules of the Pharmacy Board (Board) relative to the registration of pharmacy technicians. The Board responded by letter dated March 7, 2001.

At its meeting on May 4, 2001, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 2000-203. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:

After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.

The following summarizes the bases for the Committee’s final objection:

The Committee objected that Ph 803.01(c)(4) and (5), Ph 805.01(a), and Ph 806 are, pursuant to Committee Rule 401.01(c), beyond the authority of the Board.

Pursuant to Laws 2000, 188, various provisions of RSA 318 were amended to create a new class of persons called registered pharmacy technicians to be regulated, to a limited extent, by the Board. Under RSA 318:5-a, X and XI, the Board was authorized to adopt rules relative to "the duties, functions, and standards of conduct of registered pharmacy technicians, and requirements for the supervision of pharmacy technicians by licensed pharmacists," and "the establishment of fees for registration of pharmacy technicians," respectively.

The Committee concluded, therefore, the provisions of Laws 2000, 188 authorize the Board to register pharmacy technicians, set a fee for such registration, and prescribe the duties and functions of such pharmacy technicians. In the Committee’s view, after the submission of an application that properly identifies the applicant, the issuance of a registration must be non-discretionary. The Committee, however, noted that Ph 803.01(c)(4) and (5) require the applicant to provide information relative to convictions that will be used to evaluate whether to issue a registration to an applicant.

Similarly, Ph 805.01(a) specifically provides for the denial or revocation of a registration for failure to meet minimum qualifications or for engaging in certain conduct. The Committee concluded that Laws 2000, 188 did not authorize the Board to impose minimum qualifications for would-be registrants and did not authorize the Board to impose discipline in any form for violation by registrants of the standards of conduct prescribed by the Board.

Finally, the Committee noted that Ph 806 contained rules relative to the requirements that the Board has imposed concerning the renewal of registration. The Committee examined the provisions of Laws 2000, 188 and concluded that none authorized the Board to set the duration of the registration period and therefore did not authorize the Board to impose any requirements relative to renewal of registration.