At its meeting on July 16, 1993, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 93-073 containing proposed rules of the Board of Registration in Medicine (Board). The Board responded by letter dated August 11, 1993.

At its meeting on January 21, 1994, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 93-073 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:

1. Med 407.01

The Committee objected that Med 407.01 is contrary to legislative intent, pursuant to Committee Rule 402.02(b)(2), by allowing requirements to be set outside the process mandated by RSA 541-A:3, and, pursuant to Committee Rule 402.02(a), by violating RSA 541-A:3-a, VIII.

The rule in question provides that those regulated by the various practice acts over which the Board has jurisdiction, shall be "subject to" the assessment and imposition of administrative fines "in addition to, or in lieu of," any of the other options for disciplinary sanctions available to the Board. The Committee determined that it is unclear under what circumstances any of the disciplinary options, or combinations thereof, would actually be selected by the Board as the most appropriate sanction. The Committee concluded that the lack of criteria and procedure for making such discretionary decisions violates Ls-A 402.09(d) and Ls-A 402.17 of the uniform system of numbering and drafting with which agencies must comply pursuant to RSA 541-A:3-a, VIII.

2. Med 407.02(a), (b), and (c)

The Committee objected that Med 407.02(a), (b) and (c) are contrary to legislative intent, pursuant to Committee Rule 402.02(b)(2), by allowing requirements to be set outside the process mandated by RSA 541-A:3, and, pursuant to Committee Rule 402.02(a), by violating RSA 541-A:3-a, VIII.

Each of the three paragraphs indicates that, based upon the number of occurrences of similar violations within specified period of time, the fine that could be assessed "shall not exceed" the stated dollar amount. The Committee determined that the provisions place a maximum fine amount for such violations, but the fine amounts could be lower than the maximums. The Committee also determined that the provisions do not specify the criteria and procedure that the Board will use to determine where in the ranges particular cases will fall. The Committee concluded that the lack of criteria and procedure for making such discretionary decisions violates Ls-A 402.09(d) and Ls-A 402.17 of the uniform system of numbering and drafting with which agencies must comply pursuant to RSA 541-A:3-a, VIII.

3. Med 407.02(d) and (e)

The Committee objected that Med 407.02(d) and (e) 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. The Committee also objected that Med 407.02(d) and (e) are, pursuant to Committee Rule 402.02(b)(2), contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3, as discussed below.

Paragraphs (d) and (e) both contain factors that the Board will consider in determining the total amount of administrative fines to be imposed. The Committee determined that it is unclear what "consideration" of the factors means in practice, or how such consideration can be accomplished in a uniform manner. The Committee observed that of the factors listed, no factor indicates how it is to be applied. For example, it was unclear to the Committee how the Board could consider, as a factor in determining the appropriate disciplinary sanction, "the purpose of the rule or statute violated," given the absence of purpose statements in the rules and applicable statutes. Similarly, it was unclear to the Committee how the Board will determine the "state of mind" of the licensee at the time of the alleged offense and, once determined, how the Board will apply the determination in its decision. Thus, the Committee concluded that, as written, the factors are not clear and are not capable of being applied uniformly.

4. Med 407.03

The Committee objected that Med 407.03 is contrary to legislative intent, pursuant to Committee Rule 402.02(b)(2), by allowing requirements to be set outside the process mandated by RSA 541-A:3, and, pursuant to Committee Rule 402.02(a), by violating RSA 541-A:3-a, VIII.

This provision states that the Board "may" impose a fine as a disciplinary sanction, and that the Board "may" accept payment of fine at any time as a means of settlement in a disciplinary proceeding. The use of "may" to preserve or denote agency discretion is expressly prohibited by Ls-A 402.09(d) of the uniform system of numbering and drafting, and Ls-A 402.17 specifies how an agency is required to implement its discretionary powers in its rules. The Committee noted that, pursuant to RSA 541-A:3-a, VIII, agencies are required to comply with the provisions of the uniform system of numbering and drafting. The Committee concluded that, as the Board has not stated the criteria and procedure it will follow in implementing its discretion, the Board must resort to setting requirements outside the RSA 541-A rulemaking process.