Certified Final Objection No. 145 of the
At its meeting on November 19, 2009, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2008-166 containing rules Mhp 300-500 of the Board of Mental Health Practice (Board) relating to licensing requirements, ethical and professional standards, investigating allegations, disciplinary sanctions, and continuing education requirements for licensees. The objection was based on the annotations to the final proposal by Committee staff and public testimony.
At its meeting on September 2, 2010, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a revised objection to the Objection Response for Final Proposal 2008-166, as requested on behalf of the Board. The revised objection was based on Committee staff’s annotations and public testimony.
At its meeting on January 7, 2011, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2008-166 as amended in the Revised Objection Response. 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(f), 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 basis for the Committee’s final objection:
Mhp 503.04(b) and Mhp 504.09(a)
The Committee objected that Mhp 503.04(b) and Mhp 504.09(a) are, pursuant to Committee Rule 402.02(a), contrary to legislative intent by violating or otherwise conflicting with RSA 330-A:32.
Mhp 503.04(b) allows a professional conduct investigator, in conjunction with a misconduct investigation, to examine such records and other documents as are reasonably necessary so that the Board can take appropriate action. Mhp 504.09(a) allows subpoenas for the production of evidence in investigations or disciplinary proceedings to be issues upon the order of the Board.
The Committee determined that the specified rules are, at least in part, intended to implement RSA 330-A:28, IV and V. That statute states “The board may, with just cause, at any times subpoena mental health records from its licensees ….”
Certified Final Objection No. 145 of the
However, it was the Committee’s view, based on public testimony and its own discussions, that Mhp 503.04(b) and Mhp 504.09(a) implemented RSA 330-A:28, IV and V without sufficient consideration to the protections offered by RSA 330-A:32. That statute places the communications and relations between a licensee and a client on the same level as those between a lawyer and client. RSA 330-A:32 also states that “nothing in this chapter shall be construed to require any such privileged communications to be disclosed, unless such disclosure is required by a court order.”
Therefore, the Committee objected that Mhp 503.04(b) and Mhp 504.09(a) are contrary to legislative intent to the extent that the rules allow for records and other documents to be examined and subject to Board administrative subpoena in violation of the privilege given to licensee-client communications under RSA 330-A:32.
The Committee objected that Mhp 503.02(e) is, pursuant to Committee Rule 403.01(d), contrary to the public interest by not being clear and understandable.
Mhp 503.02(e) states “The board shall forward all communications of alleged misconduct to the appropriate licensee except under unique situations such as where disclosure would create the potential of imminent harm to any party or would significantly hinder criminal or civil litigations.”
The Committee determined the rule was unclear because it does not adequately specify the circumstances under which the Board will forward communications of alleged misconduct to the licensee.