Certified Final Objection No. 41 of the
Joint Legislative Committee on Administrative Rules
At its meeting on February 28, 1992, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, IV, to enter a preliminary objection to Final Proposal 91-258 containing proposed amendments to the rules of the Board of Registration in Medicine (Board). The LCIP responded by letter dated March 16, 1992.
At its meeting on May 1, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 91-258. 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:3-e, VI:
After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. 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.
Due to the number of bases for objection, some of the rules to which a final objection has been filed have not been identified in this text. Such unidentified rules, and the bases for final objection, are specified in the annotations to the rules made by the Committee's Attorney. Copies of the Board's rules with the annotations made by the Committee's Attorney can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114 in the State House, at the normal copying rate of $0.20 per page.
The following summarizes the basis upon which the final objection has been entered:
1. Compliance with RSA 329:9-d
The Committee objected that the amendments in 91-258 are, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 329:9-d as discussed below.
In reviewing these proposed amendments, the Committee was made aware of RSA 329:9-d, which requires that "at the same time the board files the text of a proposed rule with the director of legislative services under RSA 541-A:3-a, VII, the board shall provide the commissioner of the department of health and human services with a copy of the text of the proposed rule." To determine compliance with this provision, the Director of Public Health Services, who serves as the executive secretary of the Board was contacted. The Director responded that, to his knowledge, no such copy had been sent to the Commissioner. To inquire further, the Commissioner's office was contacted. John Poirier, the Assistant Commissioner, reported that, to his knowledge, his office had not received a copy of this proposed rule. Therefore, the Committee concluded that the requirements of RSA 329:9-d had not been met.
2. Incorporation by Reference Statement
The Committee objected that the Board improperly incorporated by reference material that should have been written and included as drafted rules, and that such inclusion is, pursuant to Committee Rule 402.02(a) and (b), contrary to legislative intent, as discussed below.
The final proposal had included Med 501.02(f), which specified what was to be included in the Board's form used to record and report continuing education taken by physicians. The Committee had objected to this rule, as there were many problems with respect to clarity, compliance with the uniform system of drafting and numbering, and authority. Therefore, the Committee objected that the rules were contrary to the public interest by not being clear and understandable and capable of uniform application, and contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3, and by conflicting with the uniform system of numbering and drafting in violation of RSA 541-A:3-a, VIII.
The Board responded by deleting the text of the rule from the objection response, and by incorporating the requirements of the form by reference. Pursuant to RSA 541-A:3-d, II(e) and IV, agencies are permitted to incorporate by reference rules or documents from "bodies outside the state, such as a national code." Pursuant to Ls-A 402.07(a) of the uniform system, "an agency may incorporate into its own body of rules standards or codes published by technical societies or organizations of recognized national standing, known as third party standards." In the Committee's view, the requirements for a N.H. agency form could not possibly be considered to be a document which satisfies the requirements of RSA 541-A:3-d and Ls-A 402.07(a). Therefore, the Committee objected that the inclusion of this incorporation by reference statement is contrary to legislative intent by conflicting with RSA 541-A:3-d, II(e) and IV, and by conflicting with the uniform system of numbering and drafting in violation of RSA 541-A:3-a, VIII.
3. Med 407.03
The Committee objected that rule Med 407.03 is, pursuant to Committee Rules 403.01(d), 403.02(c) and (d), 402.02(a) and (b), and 401.01(a), contrary to the public interest, contrary to legislative intent, and beyond the authority of the Board as discussed below.
This section governs the imposition of administrative fines for violations of various rules. The rule states that "violations of the rules of the board and advisory committees may result in the imposition of fines in the amounts of $50 to $1000 per violation upon the licensee and/or $100 to $2000 upon the temporary permit holder." The Committee determined that there are several problems with this rule. A similar provision, except for the reference to advisory committees, is found in Med 407.04, and it has similar problems.
The Committee determined that the first problem is that there is no authority to make violations of "rules" of advisory committees punishable at all, let alone by administrative fine. If committees are, in fact, "advisory" then by definition the committee can only advise, not require. The Committee also concluded that there also is a statutory basis for the conclusion that the Board cannot enforce advisory committee "rules", and it is based upon the fact that there is a single rulemaker for this subject matter: the Board. Pursuant to RSA 541-A:12, III(e), the rulemaker is prohibited from delegating its rulemaking authority, which is, in the Committee's view, precisely what this rule attempts to do.
The second problem is that the rule provides that a fine "may" be imposed. Pursuant to Ls-A 402.08(c) of the uniform system, it is impermissible to use "may" to reserve discretion for an agency. The third problem is that it is unclear what process will be used to determine where, in the $950 range, the actual fine amount will fall. The fourth and fifth problems are very closely related, and relate to the doubling of fines for those who hold temporary permits. The rule, for example, allows two physicians, one holding a permanent license and the other a temporary permit, to even be partners in exactly the same misconduct but receive fines of different amounts solely because of their licensure status, with the one licensed permanently receiving the lower fine. The Committee determined that there is no authority to impose a different fine amount for exactly the same behavior under exactly the same circumstances, and it amounts to treating like entities in a dissimilar manner.
Therefore, the Committee objected that the rule is contrary to the public interest by not being clear and understandable and capable of uniform enforcement and does not treat like entities in a similar manner, contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3, conflicting with RSA 541-A:12, III(e), as well as conflicting with RSA 541-A:3-a, VIII, and is beyond the authority of the Board.