Certified Final Objection No.
131 of the
Joint Legislative Committee on
Administrative Rules
At its meeting on June 4, 2004, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2004-38 containing rules He-W 910 of the Department of Health and Human Services relative to expanded health care coverage for certain low-income children.
At its meeting on August 19, 2004 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2004-38. 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:
1. Fiscal Impact
Pursuant to Committee Rule 404.01(a), the Committee objected that the proposal contains a substantial economic impact not recognized in the fiscal impact statement.
He-W 910 contains rules relating to the Title XXI State Children’s Health Insurance Program (SCHIP). The proposed rules would delete the existing references in He-W 910 to "Healthy Kids Corporation, Inc." and "Healthy Kids-Silver," and allow the Department to contract with any qualified organization to provide application, enrollment and premium billing services for SCHIP.
The Committee had entered a preliminary objection based on public testimony indicating that the proposal created costs not addressed in the fiscal impact statement (FIS). Specifically, there was testimony from representatives of New Hampshire Healthy Kids Corporation (NHHK) that if the result of the proposal was the awarding of the SCHIP contract to another vendor, there would be significant costs incurred, particularly by NHHK, including the possibility that NHHK would be put out of business entirely. The Committee chose to enter a final objection on the same basis.
Certified Final Objection No. 131 of the
Joint Legislative Committee on Administrative Rules
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Pursuant to Committee Rule 403.01(f), the Committee objected that the rules are
contrary to the public interest by being designed to benefit the administrative convenience of the agency to the detriment of the public. The Committee received considerable public testimony on the final proposal indicating that NHHK has been an effective and efficient administrator, and that the proposed rules could result in dismantling a successful infrastructure, thereby having a negative impact on the families served. In making its preliminary objection, the Committee noted that while putting the SCHIP administration out to bid is not as administratively convenient for the Department as continuing the status quo, there may be administrative convenience derived from the use of the proposal to try to restrain the costs of the program. Because the same issues existed in the objection response, the Committee chose to enter a final objection.
Pursuant to Committee Rule 402.01(c), the Committee objected that the proposal is contrary to legislative intent by violating the overall purpose of RSA 126-H.
The Committee had made a preliminary objection based on public testimony and issues raised by Committee staff relative to the apparent purpose of RSA 126-H, which established NHHK. Based on these, the Committee determined that the removal of NHHK as the administrator, if the Department in the future awarded the SCHIP contract to another vendor, would have a negative impact on NHHK’s ability to carry out its duties under RSA 126-H. The Committee also noted that NHHK was created by RSA 126-H in 1993 for the purpose of providing uninsured children with affordable access to health insurance, and RSA 126-H has been amended to continue NHHK’s existence, even after the creation of SCHIP. Therefore, the Committee inferred that the General Court intended for the continued existence of NHHK, including in its role as administrator for SCHIP. Because the same issues existed in the objection response, the Committee chose to enter a final objection.