Certified Final Objection No. 9 of the

Joint Legislative Committee on Administrative Rules.

At its meeting on December 19, 1989, the Joint Legislative Committee on Administrative Rules (Committee) voted to make a Preliminary Objection to Final Proposal 89-177, containing proposed rules of the Board of Dental Examiners relative to the continuing dental education. The Board responded on January 16, 1989, by amending some of the proposed rules to address some of the Committee's concerns.

At its meeting on February 16, 1990, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to make a Final Objection to five of the rules In Final Proposal 89-177: Den 304.02(b)(1); Den 304.02(j)(1); Den 304.02(k); Den 304.02(m)(3)c.; and Den 304.02(o). 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 this objection is stated in RSA 541-A:3-e, VI:

After a committee objection is filed with the director under paragraph V(e), 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 Implied legislative authorization of its substantive or procedural lawfulness.

The following outlines the rules to which the committee objects and the reasons for the Final objection:

1. Den 304.02(b)(1). Den 304.02(j)(l) and Den 304.02(o)

The Committee objects that the rules are contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rule 402.02, by leading to requirements being set orally rather than through the process mandated by RSA 541-A:3.

In the rule submitted with the objection response letter, subparagraph (b)(1) requires that the board shall not issue licensure renewals until proof, satisfactory to the board has been submitted" relative to meeting the continuing education requirements. The rule is silent as to what would constitute "satisfactory" proof of meeting such requirements. Similarly, in subparagraph (j)(1) a licensee shall be granted credit for continuing education "upon adequate documentation to the board," but the rule does not specify what would be "adequate" for such documentation. Paragraph (o) requires that licensees shall "satisfactorily document a specific course content and the licensees attendance" without specifying what would be "satisfactory documentation."

2. Den 304.02(k)

The Committee objects that the rule is contrary to the public Interest, pursuant to Committee Rules 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rule 402.02, by leading to requirements being set orally rather than through the process mandated by RSA 541-A:3, and by conflicting with RSA 541-A:12, III(e), relative to delegating rulemaking authority.

The rule provides that licensees who have matriculated in postgraduate programs "shall be awarded CEUís for satisfactory completion of each course within said curriculum or program as determined by the Continuing Education Advisory Council ("CEAC")." The Committee objected on two grounds. The first is that the Board is delegating its rulemaking authority relative to the "awarding" of CEU's in these cases to the Council. RSA 541-A:12, III(e), prohibits an agency from delegating -its rulemaking authority. The second ground is that there are no criteria for determining when or how many credits will be 'awarded."

3. Den 304.02(m)(3)c.

The Committee objects that the rules are beyond the authority of the Board, pursuant to Committee Rule 401.01(c), contrary to the public interest, pursuant to Committee rule 403.01(d) and 403.02(c), by not being clear and understandable and capable of uniform application, and contrary to legislative intent, pursuant to Committee Rule 402.02 by leading to requirements being set orally rather than through the process mandated by RSA 541-A:3, and by conflicting with RSA 541-A:12, III(e) relative to delegating rulemaking authority.

This provision requires that those who wish to be approved as in-state providers of continuing education shall, among other requirements, make certain records available to CEAC and the board an request. It is unclear who will make such requests, i.e., whether it may be the CEAC or the Board or both, under what circumstances such requests will be made, and what authority the board has to require that such providers make the records available to the CEAC.