At its meeting on March 16, 2001, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A: 13, IV, to enter a preliminary objection to Final Proposal 2000-164 of the Department of Health and Human Services (Department) relative to rights protection procedures. The Department responded by letter dated April 19, 2001.

At its meeting on May 18, 2001, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 2000-164. 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:

The following summarizes the bases for the Committee’s final objection:

1. He-M 202.08(d)

The Committee objected that He-M 202.08(d) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Department.

The rules in He-M 202.08 provide the adjudicative hearing process by which any person may "appeal" various specifically-identified administrative decisions made without benefit of a hearing. In pertinent part, He-M 202.08(d) states that "the burden shall be on the program or facility to demonstrate by a preponderance of the evidence that it acted in accordance with department rules."

The Committee observed that in adjudicative hearings, and unless there is specific authority to the contrary, the party asserting the affirmative of a proposition bears the burden of proving to the trier of fact that the proposition is more likely true than not true. The Committee noted that the express language of the rule removes the burden from the complainant to prove that his or her claim is true and places it upon the respondent to prove that the complaint is untrue. The Committee concluded that nothing in the statutes cited by the Department as authority for this provision appeared to, in fact, provide such authority, and therefore the rule was beyond the authority of the Department.

2. He-M 202.08(e) and (f)

The Committee objected that He-M 202.08(e) and (f) are, pursuant to Committee Rule 401.04, beyond the authority of the Department.

Paragraph (e) provides that the presiding officer who conducted the adjudicative hearing on a complaint must forward to the appropriate director the proposed decision, including findings of fact and conclusions of law for that hearing in question. Paragraph (f) states in its entirety that:

Pursuant to Petition of Grimm, 138 N.H. 42, (1993), in cases in which credibility of witnesses is material to the outcome, due process under the state and federal constitutions requires that those who will render a decision in a case must be present for all testimony on the issue of credibility. The Committee noted that there is no requirement either in (e) or (f) that the director, who will ultimately render the decision in the case, be present for such testimony. And in the Committee’s view, a plain reading of (f) indicates that although the presiding officer would be making proposed findings of fact and conclusions of based upon his or her observation of the witnesses, under (f)(2) at least the director is not obligated to accept them. The Committee concluded that this was not consistent with the state and federal constitutional due process requirements set forth in Grimm and is therefore beyond the authority of the Department.

The Committee objected that He-M 202.10(b)(1) is, pursuant to Committee rules 401.04 and 403.01(d), beyond the authority of the agency and contrary to public interest by not being clear and understandable.

This section deals with waiver requests. Subparagraph (b)(1) provides that the commissioner (or designee) shall grant a waiver if s/he determines that "strict compliance with the procedure sought to be waived is contraindicated by legitimate treatment considerations" and meets one of two other criteria. The Committee noted that, under the language of (b), there are no procedures that are excluded from the possibility of being waived. In the Committee’s view, the provision was worded so that even those procedures that are intended to protect the rights of the litigants could be waived by the commissioner. The Committee concluded that a Department rule that sets forth a waiver process that allows rights to be waived by other than the person to whose benefit the rights inure is not consistent with due process and is therefore beyond the authority of the Department.

The Committee also was concerned with the phrase "legitimate treatment considerations" as that term appears in the context of (b)(1). The Committee could not determine what the term means in practice, or what criteria would be used to make the determination of whether a concern fell into that category, especially to the extent that the rule would be used to decide whether to grant a waiver of rights in the context of an adjudicative hearing. The Committee concluded that the provision was not clear and understandable and therefore not in the public interest.