Certified Final Objection No

Certified Final Objection No. 127 of the

Joint Legislative Committee on Administrative Rules

At its meeting on October 29, 2003, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2003-126 containing rules of the Department of Health and Human Services relative to personal property resources.

At its meeting on December 4, 2003 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2003-126. 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 in the rule is filed with the director under subparagraph V(f), the burden of proof 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:

He-W 656.04(a)(13)

The Committee objected that He-W 656.04(a)(13) is, pursuant to Committee Rule 403.01(d), contrary to the public interest by not being clear and understandable.

He-W 656.04(a)(13) addresses the question of when distributions from a special needs trust will be considered income to the beneficiary for Medicaid eligibility purposes. The Committee had entered a preliminary objection to this provision based on the oral testimony of attorneys Michelle Winchester and Ann N. Butenhof, and the written testimony of a group of attorneys including John S. Kitchen, Ms. Winchester and Ms. Butenhof. Their testimony indicated He-W 656.04(a)(13) is unclear because it does not differentiate between self-settled trusts and third-party trusts, and it cannot readily be determined what things will be considered educational or medical expenses. Because no changes were made to the rule in the objection response, the Committee chose to enter a final objection on the same basis.