Certified Final Objection No

Certified Final Objection No. 117 of the

Joint Legislative Committee on Administrative Rules

At its meeting on February 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 2000-177 containing rules of the Insurance Department (Department) relative to privacy of consumer financial and health information. The Department responded by letter dated February 27, 2001.

At its meeting on May 18, 2001, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 2000-177. 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(d), 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 bases for the Committee’s final objection:

Lack of Authority for Rules Relative to Health Information

The Committee objected that the following rules are, pursuant to Committee Rule 401.01(c), beyond the authority of the Department:

Introductory language of Ins 3001.01(a)
Ins 3001.01(a)(2)
Ins 3001.02(a)(2)
Ins 3001.04(m), (n), (o), (s) and (u)

Ins 3005

The rules listed above relate to nonpublic personal health information. RSA 400-A:15, I, authorizes the Commissioner of Insurance to adopt rules for the administration or effectuation of RSA Title XXXVII or of the insurance-related provisions of the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102). Based on public testimony, the Committee concluded that RSA 400-A:15, I, does not provide authority for the Department to adopt rules regarding nonpublic personal health information. In particular, the Committee determined that there is no authority for rules on personal health information because such rules are not necessary to implement the Gramm-Leach-Bliley Act.