Certified Final Objection No. 60 of the

Joint Legislative Committee on Administrative Rules

At its meeting on June 18, 1993, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 93-019 containing proposed rules of the Board of Examiners of Psychology (Board). The Board responded by letter dated July 12, 1993.

At its meeting on October 15, 1993, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 93-019. 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 staff, and include only those annotations made from page 1 through page 37. Copies of the Board's rules can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114 in the State House, at a charge of $0.20 per page.

The following summarizes the bases upon which the final objection has been entered:

1. Uniform System of Drafting and Numbering

The Committee objected that Psy 100 through Psy 301.03(d) are, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by violating RSA 541-A:3-a, VIII as discussed below.

Pursuant to RSA 541-A:3-a, VIII, the agency must conform to the uniform system of numbering and drafting developed by the Director of Legislative Services and contained in the Rulemaking Manual. The Committee had made a preliminary objection that the rules were contrary to legislative intent by the violation of RSA 541-A:3-a, VIII and contrary to the public interest by not being clear and understandable and capable of uniform enforcement. The Committee recommended that the rules be amended generally so that, for example, the rules use proper headers; use "may" and "shall" properly; use proper capitalization; use proper numbering for rules; use proper introductory language for lists of requirements; do not use of titles in subsections; provide criteria and procedure for discretionary decision-making; define words or phrases in a manner consistent with everyday meanings; and include all procedural rules in Psy 200.

The Board did not amend the rules containing these problems in response to the objection. Therefore the Committee made a final objection, on the same bases as for the preliminary objection, to the rules as noted in the annotations which the Committee determined do not conform to the uniform system of numbering and drafting.

2. Testimony of Mary Johnson, PhD. Relative to psy 301.06(d)(3) and (4)

The Committee, based upon the testimony of Mary Johnson, PhD., objected that Psy 301.06(d)(3) and (4) are, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest to the extent that the rules are not clear and understandable and capable of uniform enforcement, respectively, and contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with RSA 330-A:16-e, III, and allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively.

3. Psy 105.02

The Committee objected that Psy 105.02 is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 91-A:2, I.

Rule Psy 105.02, relates to the necessity, or lack thereof, of a quorum for the purpose of convening Board meetings. The rule states "except as otherwise required by law, no quorum shall be required to convene a meeting, conduct a hearing or receive information of any kind, but final action shall be taken only by the affirmative vote of a majority of the board members eligible to participate in the matter in question."

The Committee concluded that the rule was inconsistent with RSA 91-A:2, I, which appears to provide that a quorum is always necessary for the convening of a Board meeting. The Committee also determined that the rule was unclear as to what would make a Board member ineligible to participate in a vote, and that the rules must so specify.

4. Psy 201.04

The Committee objected that Psy 201.04 is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, respectively, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with allowing requirements to be set outside the process mandated by RSA 541-A:3 as discussed below.

Rule Psy 201.04 governs the waiver and suspension of the Board's procedural rules. The rule states that "the board, upon its own motion or petition of any interested person, shall suspend or waive any requirement or limitation imposed by this chapter upon reasonable notice to affected persons and a finding that good cause exists for the proposed action."

The Committee first noted that the Board must indicate the criteria to be used for the Board to determine whether or not it will initiate a waiver or suspension, but the Board failed to do so. The Committee then indicated that the Board lacks authority to waive or suspend any and every provision in Psy 200, since many of the rules restate statutory requirements. The Committee also determined that it was unclear what was meant by or included in the terms "reasonable notice" and "good cause," and that the rules should so specify. Finally, the Committee concluded that the rule was unclear as to what result would obtain in the case of a determination that good cause exists, but that others would be substantially prejudiced by the granting of a waiver.

5. Psy 205.01(b)(6)

The Committee objected that Psy 205.01(b)(6) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement, respectively, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with allowing requirements to be set outside the process mandated by RSA 541-A:3 as discussed below.

Rule Psy 205.01 governs pleadings. Paragraph (a) provides that complaints against certificate holders are considered to be a special type of pleading, and they are governed exclusively by Psy 205.02. Paragraph (b) specifies what must be included in every pleading, and subparagraph (6) requires that the petitioner include, "The name and addresses of the person, if any, against whom the petitioner complains, or against whom the petitioner wishes the board to take action." The Committee determined that this language clearly relates to the content of complaints, despite the fact that it is not contained in Psy 205.02. Thus, the Committee concluded that Psy 205.01(b)(6) conflicts with paragraph (a).

6. Psy 206.09(b)

The Committee objected that Psy 206.09(b) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest to the extent that the rules are not clear and understandable and capable of uniform enforcement, respectively, and contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with RSA 541-A:18, II, and allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively.

Paragraph (b) governs evidence at hearings before the Board, and provides that, "All data which will reasonably assist the board arrive at the truth shall be admissible, but data which is irrelevant; or immaterial, repetitious or cumulative; or needlessly insulting, hostile or scandalous may be excluded."

The Committee determined that paragraph (b) is clearly in conflict with RSA 541-A:18, II, which allows the presiding officer at a hearing to exclude evidence that is privileged or that is "irrelevant, immaterial or unduly repetitious." The presiding officer, pursuant to that statute, has no authority to exclude evidence for any other reason. The Committee wished to make it clear that it does not believe that agencies must endure verbal abuse from participants at hearings, but that such abuse can be handled appropriately under the provisions of RSA 541-A:18, II. In the view of the Committee, evidence which is "cumulative, needlessly insulting, hostile or scandalous" would generally fall into one of the four statutory bases for excluding the evidence. For example, the use of profane language might very well be "insulting, hostile or scandalous," as well as irrelevant and immaterial and therefore excludable. However, it is possible, as in a complaint for harassment, that the use of such language might form the basis of the hearing, and the Committee concluded that under such circumstances the language should not be excludable. Unfortunately, application of this rule could result in its exclusion.

The Committee also determined that the use of "may" in the last sentence made the rule unclear. The rule does not indicate how it is that the presiding officer will determine whether or not to exclude such evidence, or how this discretion will be exercised in a uniform way.

7. Psy 206.09(b) and (c)

The Committee objected that Psy 206.09(b) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest to the extent that the rules are not clear and understandable and capable of uniform enforcement, respectively, and contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with RSA 541-A:18, II, and allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively.

Paragraph (c) requires that, "Evidence shall be submitted in written form unless a party demonstrates that oral testimony is necessary to avoid substantial prejudice or assure the full and fair disclosure of the facts, or the board otherwise directs oral testimony." In the view of the Committee, the rule reverses the focus of RSA 541-A:18, II, which addresses the issue of written testimony. The Committee determined that that statute indicates a preference for live testimony, but allows written testimony if such testimony will not substantially prejudice the interests of the other party. Conversely, the rule indicates a preference for written testimony unless the other party demonstrates substantial prejudice. The Committee also determined that the use of "or the board otherwise directs," without specifying why it would do so, made the rule unclear.

8. Psy 206.10

The Committee objected that Psy 206.10 is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest to the extent that the rules are not clear and understandable and capable of uniform enforcement, respectively, and contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with RSA 541-A:18, I, II and IV, and allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively.

This section indicates the various styles of hearings available, and indicates the circumstances under which each would be most appropriate. There are three such styles of hearings, but only one of them requires or even allows live witnesses and cross-examination in a trial-type hearing. The Committee determined that no party could be denied such a hearing, if that is what the party demanded, because that type of hearing is what is otherwise required by RSA 541-A:18, I, II and IV.