Certified Final Objection No. 89 of the

Joint Legislative Committee on Administrative Rules

At its meeting on March 21, 1997, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 96-181 containing proposed rules of the Board of Medicine (Board) relative to governing the practice of medicine. The Board responded by letter dated April 2, 1997, received by the Office of Legislative Services on April 15, 1997.

At its meeting on May 16, 1997, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-181. 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.

Due to the number of bases for objection, some of the rules to which a final objection has been filed have not been identified in this text. Such unidentified rules, and the bases for final objection, are specified in the annotations to the rules made by the Committee’s staff. Copies of the rules can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 219 in the State House Annex, 25 Capitol Street, Concord, New Hampshire 03301.

The following summarizes the bases for objection to rules specifically referenced by the Committee in its motion to enter the final objection:

  1. Med 203.02(a) et al

The Committee determined that Med 203.02(a), which permits the Board to change the time for filing motions and the time set for hearings, and all other rules in the proposal in which the Board used "may" to reserve discretion for itself, are contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with Laws of 1994, 412:52, RSA 541-A:3, and RSA 541-A:22, I, as discussed below.

Pursuant to 1994, 412:52, agencies are required to comply with the requirements of the Uniform System of Numbering and Drafting (USN&D) contained in the New Hampshire Rulemaking Manual. The Committee determined that the use of "may" in Med 203.02(a) was intended to reserve discretion for the Board. Ls-A 402.10(d) of the USN&D specifically prohibits such action. Additionally, Ls-A 402.10(e) of the USN&D states that,

In rules governing discretionary decisions by the agency, the agency shall set a requirement using "shall" mandating a particular action when or unless certain criteria are met…The form of the rule shall be "the agency shall if" or "the agency shall unless" or "the agency shall when" or some similar language, followed by the conditions or criteria that are required to exist or be met for the agency to take the action specified. The agency’s discretion shall then lie in deciding what the conditions or the criteria are which trigger the decision.

As the Board has not followed the requirements of Ls-A 402.10, the Committee concluded that the rule cited violated 1994, 412:52. Similarly, as the Board has not specified either the conditions or the criteria which must exist for the Board to take the action contemplated by the rule, the Committee determined that such conditions or criteria will be set outside the rulemaking process mandated by RSA 541-A:3 and enforced in violation of RSA 541-A:22, I.

  1. Med 206.08(a)

The Committee determined that Med 206.08(a) is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 329:18, IV and V, and is, pursuant to Committee Rule 401.01, beyond the authority of the Board, as discussed below.

Paragraph (a) of Med 206.08 would allow the Board to delegate its subpoena power to its staff or to a committee. The Committee determined that, while the Board’s authority to issue subpoenas is clearly delineated in RSA 329:18, IV and V, the statutes makes no reference to delegation of such authority. It is the Committee’s view that an agency has subpoena power only to the extent it is specifically conferred by the General Court. Therefore, the Committee objected that paragraph (a) is contrary to RSA 329:18, IV and V, and beyond the Board’s authority.

  1. Med 206.09(c)

The Committee determined that Med 206.09(c) is contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with Laws of 1994, 412:52, RSA 541-A:3, RSA 541-A:22, I, and RSA 541-A:33, II, as discussed below.

In the final proposal, paragraph (c) stated that "The Board may direct that some or all of the evidence be in written form, but oral testimony shall be allowed when necessary to avoid material prejudice or to permit full and fair disclosure of disputed material facts." The Committee had entered a preliminary objection to this language. The Committee noted the language of RSA 541-A:33, II, which states that "subject to the foregoing requirements, any part of the evidence may be received in written form if the interests of the parties will not thereby be prejudiced substantially." The Committee concluded that this language expresses a clear preference for oral testimony, and that written testimony be the exception rather than the default.

The Board amended the paragraph, and it now states that "the board may direct that some or all of the evidence be submitted in written form, but oral testimony shall be required when necessary to avoid material prejudice or to permit full and fair disclosure of disputed material facts." As the language of the rule provides that written testimony is the default and oral testimony the exception, the Committee concluded that the rule still violates RSA 541-A:33, II.

Additionally, as discussed relative to Med 203.02(a), this rule also uses "may" to reserve discretion to the Board. Therefore, the Committee determined that the rule conflicts with 1994, 412:52, RSA 541-A:3, and RSA 541-A:22,I.

  1. Med 212.01(a)

The Committee determined that Med 212.01(a) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board as discussed below.

Pursuant to Med 212.01(a), any interested person may request the Board to waive any substantive rule of the Board. In voting to enter a preliminary objection, the Committee determined that, as drafted, the Board lacked authority to waive rules that implement statutory provisions absent the agreement of those would benefit from adherence to the rule. The Board did not make any changes to this paragraph in its objection response.

When the Committee reviewed the objection response text, the Committee again objected that the Board lacked authority to waive such requirements. The Committee noted that Ls-A 402.22(c) of the USN&D prohibits an agency from, by rule, granting "waivers to requirements contained in a statute, unless there is specific statutory authority to do so." The Committee is not aware of such specific statutory authority, and the Board did not offer any indication of the existence of such authority.

  1. Med 401.03

The Committee determined that Med 401.03 is, pursuant to Committee Rule 403.02(b), contrary to the public interest by not being capable of uniform application, because it conflicts with an existing rule. Med 401.03 and Med 306.05 both list requirements that must be met for license renewal, and the Committee determined that the requirements of these sections conflict.