Certified Final Objection No. 143 of the

 

Joint Legislative Committee on Administrative Rules

 

            At its meeting on May 7, 2010, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2009-130 containing He-M 522 of the Department of Health and Human Services (Department) relative to eligibility determination and service planning for individuals with an acquired brain disorder.  The objection was based on the Committee’s determination that inclusion of a wait list in the proposal was contrary to legislative intent by conflicting with RSA 171-A:1-a, and contrary to the public interest.  The Department responded pursuant to RSA

541-A:13, V(c) with a cover letter and amended rule from the Commissioner dated June 14, 2010. 

 

At its meeting on June 18, 2010, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2009-130.  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(f), 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 basis for the Committee’s final objection:

 

            He-M 522

 

            The Committee objected that He-M 522 is contrary to legislative intent as follows:

 

1.       Under Committee Rule 402.01(c) by violating the overall purpose of RSA 171-A:1-a, as indicated by the Statement of Purpose of SB 138 (Chapter 363:1 of the Laws of 2007);

 

2.       Under Committee Rule 402.02(a), by violating or otherwise conflicting with RSA

171-A:1-a, I; and

 

3.       Under Committee rule 402.02(a), by attempting to implement a bill which the Legislature defeated, as indicated by the unanimous vote of the Senate in the 2010 session to defeat SB 519, which would have allowed for wait lists.

 

 


Certified Final Objection No. 143 of the

 

Joint Legislative Committee on Administrative Rules

 

Page 2

 

He-M 522 relates to eligibility determinations and service planning for individuals with an acquired brain disorder.  The proposed rules (e.g. He-M 522.08(c) and 522.15(a)) state that services will be provided only “to the extent that funds for this purpose are available and appropriated to the bureau by the Legislature.”  In the absence of such funding, He-M 522 would permit the Department to require the placement of individuals who are eligible for services on a wait list.

 

The Committee noted that it was the finding of the Legislature, as contained in the Statement of Purpose of SB 138 (Chapter 363:1 of the Laws of 2007) which adopted RSA 171-A:1-a, that “undue delays in providing services to eligible individuals with developmental disabilities and acquired brain disorders are contrary to the welfare of such individuals, their families, and the citizens of New Hampshire.”  The Committee determined that the use of wait lists would conflict with this finding.  Therefore, the Committee concluded that He-M 522 is contrary to legislative intent by violating the overall purpose of RSA 171-A:1-a.

 

RSA 171-A:1-a, I specifically requires the Department to allocate funds for services for eligible individuals within 90 days.  Because He-M 522 would allow the 90-day period to be exceeded, the Committee determined that He-M 522 conflicts with RSA 171-A:1-a, I.

 

SB 519 from the 2010 session would have made the obligation of the Department under RSA 171-A:1-a, I contingent upon the availability and continued appropriation of funds by the Legislature, thereby allowing wait lists.  On March 24, 2010, the Senate unanimously defeated SB 519.  Therefore, in the view of the Committee, He-M 522 would have implemented a bill which the Legislature had defeated.