JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES

 

 

 

Action Minutes

 

JANUARY 7, 2011

 

 

Members Present:   Representatives Patten, Pilotte, Schmidt, McGuire, Manuse, Kidder*, Sad*, Winter*, and Tremblay*, and Senators De Blois, Groen, Lambert, and Kelly. 

                                                   (*)  Indicates alternate members.

 

(**)  Indicates where Part 1, Article 28-a of the N.H. Constitution was an issue in the Committee’s discussions or decisions in this meeting.  (See Items #11 and #12.  However, those items were conditionally approved.)

 

1.  The meeting was convened at 9:05 a.m. by Rep. Patten as Chair.

 

     Members present at this time, aside from Rep. Patten, were Reps. Pilotte, Schmidt, McGuire, Manuse, Kidder, Sad, Winter, and Tremblay, and Senators De Blois, Groen, Lambert, and Kelly.

 

     Rep. Patten designated Rep. Sad as an alternate for Sen. Merrill, who was absent.

 

     At this time, alternate members Reps. Kidder, Winter, and Tremblay were not voting members.

 

2.  The Committee discussed the minutes of the Committee meeting of December 16, 2010.

 

     Rep. Pilotte moved that the minutes be approved.

 

     Sen. De Blois seconded.

 

     Adopted.

 

3.  The Committee discussed whether to postpone action on certain items to another meeting.

 

     No action to postpone was taken at this time.

 

4.  The Committee discussed the response by the Board of Mental Health Practice to the Committee’s revised objection to Final Proposal 2008-166 (Licensing Requirements, Ethical and Professional Standards, Investigating Allegations, Disciplinary Sanctions, Continuing Education Requirements for Licensees).

 

     Rep. Manuse moved that the Committee make a final objection to Final Proposal 2008-166, as amended in the Revised Objection Response, on the ground (1) pursuant to Committee Rule 402.02(a), that Board rules Mhp 503.04(b) and Mhp 504.09(a) are contrary to legislative intent to the extent that the rules allow for records and other documents to be examined and subject to a Board administrative subpoena in violation of the privilege given to communications between licensees and their clients under RSA 330-A:32, and (2) pursuant to Committee Rule 403.01(d), that Mhp 503.02(e) is contrary to the public interest by not being clear and understandable, by not specifying circumstances under which the Board will forward all communications of alleged misconduct to the licensee.

 

     Rep. Pilotte seconded.

 

     A roll call vote was called.  The vote was as follows:

 

 

YES

NO

Rep. Manuse

X

 

Rep. McGuire

X

 

Rep. Pilotte

X

 

Rep. Schmidt

X

 

Rep. Sad

X

 

Rep. Patten

X

 

 

 

 

Sen. De Blois

X

 

Sen. Groen

X

 

Sen. Kelly

X

 

Sen. Lambert

X

 

 

 

 

TOTAL

10

0

 

     The vote was 10 “yes” and 0 “no”.  The motion was adopted.

 

     After further discussion, Rep. McGuire moved that the Committee support the introduction of a joint resolution to Mhp 503.04(b), Mhp 504.09(a), and Mhp 503.02(e) in Revised Objection Response 2008-166 on the grounds specified in the final objection to Revised Objection Response 2008-166, and further that the resolution recommend: (1) that the General Court clarify the Board’s authority under RSA 330-A:28 to examine and subpoena records in light of the privilege accorded to licensee-client communicators in RSA 330-A:32; (2) that the Board not enforce RSA 330-A:28 in such a way as to violate the licensee-client privilege in RSA 330-A:32; and (3) that the Board shall not enforce the forwarding of communications under Mhp 503.02(e).

 

     Rep. Manuse seconded.

 

     A roll call vote was called.  The vote was as follows:

 

 

YES

NO

 

 

 

Rep. Manuse

X

 

Rep. Pilotte

X

 

Rep. Schmidt

X

 

Rep. McGuire

X

 

Rep. Sad

X

 

Rep. Patten

X

 

 

 

 

Sen. De Blois

X

 

Sen. Groen

X

 

Sen. Kelly

X

 

Sen. Lambert

X

 

 

 

 

TOTAL

10

0

 

     The vote was 10 “yes” and 0 “no”.  The motion was adopted.

 

     Rep. Schmidt moved that the issues raised by public testimony be referred to the policy committees for action not possible under the Committee.

 

     Sen. De Blois seconded.

 

     Adopted.

 

5.  The Committee discussed scheduling Committee meetings from February to December, 2011.

 

     Sen. Groen moved that the schedule prepared by Committee staff be approved, with continued Committee meetings chosen for Friday, May 6, 2011 and Thursday, October 6, 2011.

 

     Rep. Schmidt seconded.

 

     Adopted.

 

6.  The Committee discussed the response of the Board of Medicine to the Committee’s preliminary objection to Final Proposal 2010-70 (Definitions and Access to Public Records, Practice and Procedures, Fees, Licensure Requirements, Renewal, Continuing Medical Education and Ongoing Requirements, and Ethical Standards for Physicians, Supervision of Physician Assistants, Initial and Renewal Procedures and Fees for Physician Assistants).  Kathryn Bradley and Penny Taylor testified for the Board.

 

     It was the consensus of the Committee to postpone action on this item to the continued Committee meeting on March 4, 2010.

 

7.  The Committee discussed Final Proposal 2010-113 from the Department of Environmental Services (Air Related Programs, Mitigation of Regional Haze).  Gretchen Hamel and Craig Wright testified for the Department.

 

     Arthur Cunningham, representing the N.H. Sierra Club, also testified.

 

     Rep. Pilotte moved that the Committee approve Final Proposal 2010-113.

 

     Rep. Schmidt seconded.

 

     Adopted.  Rep. Patten noted for the record that Rep. Manuse and Sen. De Blois voted “no”.

 

8.  After a break, with Reps. Patten, Pilotte, Schmidt, McGuire, Manuse, Winter, and Tremblay, and Sens. De Blois, Groen, Lambert, and Kelly present, the Committee discussed Final Proposal 2010-92 from the Governing Board of Athletic Trainers (Renewal Application Requirements and Reinstatement Supporting Materials Requirements).  Tina Kelley testified for the Governing Board.

 

     Rep. Patten designated Rep. Tremblay as an alternate for Sen. Merrill, who was absent.

 

     Rep. Kidder and Rep. Sad returned to the meeting shortly before the motion below was made.

 

     Rep. Schmidt moved that the Committee approve Final Proposal 2010-92.

 

     Sen. De Blois seconded.

 

     Adopted. 

 

     Rep. Patten then designated Rep. Sad instead of Rep. Tremblay as an alternate for Sen. Merrill. 

 

9.  The Committee discussed Final Proposal 2010-93 from the Pease Development Authority (Port Captains, Pilots, and Pilotage).  Robert Cheney, of Sheehan, Phinney, Bass, and Green, P.A., and Tracy Shattuck, Chief Harbor Master, testified for the Authority.

 

     The Authority had submitted a request for conditional approval in a letter dated December 15, 2010 and amended rule dated December 7, 2010.

 

     Rep. Pilotte moved that the Committee accept the conditional approval request and conditionally approve Final Proposal 2010-93 based on the request.

 

     Rep. Sad seconded.

 

     Adopted.

 

10.     The Committee discussed Final Proposal 2010-132 from the Department of Health and Human Services (Former Division of Mental Health and Developmental Services, Rights Protection Procedures).  Raymond Perry testified for the Department.

 

     The Department had submitted a conditional approval request in a letter and amended rule dated January 5, 2011.

 

     The following persons also testified:

         Richard Cohen, representing the Disabilities Rights Center, Inc., and who also presented written testimony.

         Lorraine Messineo of Ashland, N.H., representing Thomas Messineo, a mental health patient.

 

         Rep. Manuse moved that the Committee accept the conditional approval request and conditionally approve Final Proposal 2010-132 based on the request.

 

         Rep. Sad seconded.

 

         Adopted.

 

**11. The Committee discussed Final Proposal 2010-102 from the Department of Health and Human Services (Former Division of Public Health Services, N.H. Nursing Home Rules).  John Martin, Rodney Bascom, and Wendy Smigelski testified for the Department.

 

         The following persons also testified:

         Don Rabun, State Long Term Care Ombudsman, representing the Office of the Long Term Care Ombudsman, and who also submitted written testimony.

John Poirier, representing the N.H. Health Care Association, and who also submitted written testimony.

 

         Sen. De Blois and Sen. Kelly left the meeting during the discussion of this item.  Rep. Patten designated Rep. Kidder and Rep. Tremblay as alternates, respectively, for Sen. De Blois and Sen. Kelly.

 

         Rep. Pilotte moved that the Committee conditionally approve Final Proposal 2010-102 on the conditions that (1) the words “at least” be deleted from He-P 803.13(h), and (2) the references to the 2010 guidelines of the Facilities Guidelines Institute (FGI) be changed to the 2006 guidelines of the American Institute of Architects (AIA) whenever the references to FGI 2010 “Guidelines” occur in Final Proposal 2010-102.

 

         Rep. Schmidt seconded.

 

         Sen. Groen had left the meeting during the making of the motion.  Rep. Patten designated Rep. Winter as an alternate for Sen. Groen.

 

         The motion was adopted.  Rep. Patten noted for the record that Rep. Manuse and Rep. Winter voted “no”.

 

**12. The Committee discussed Final Proposal 2010-107 from the Department of Health and Human Services (Former Division of Public Health Services, Sanitary Production and Distribution of Food). Kate Frey, Joyce Welch, and Michael Holt testified for the Department.

 

         Rep. Pilotte moved that the Committee conditionally approve Final Proposal 2010-107 on the conditions that (1) He-P 2304.03(f) and He-P 2304.05(d) be deleted; (2) the following be inserted as He-P 2306.02 (a)(19): “For failure to submit a timely renewal application, in violation of He-P 2304.03(b), the fine shall be $75.”;  (3) the words “Except for violations of (a)(19) above” be inserted at the beginning of He-P 2306.02(b); and (4) necessary editorial changes, including rule numbering and placement of “and”, be made in the final proposal.

 

         Rep. Sad seconded.

 

         Adopted.

 

13.     The Committee discussed Final Proposal 2010-120 from the Department of Health and Human Services (Former Division of Human Services, Citizenship/Identity Requirements for All Categories of Financial and Medical Assistance).  Jennifer Jones and Dawn Landry testified for the Department.

 

         Rep. Kidder moved that the Committee approve Final Proposal 2010-120.

 

         Rep. Pilotte seconded.

 

         Adopted.

 

14.     The Committee discussed Final Proposal 2010-130 from the Department of Health and Human Services (Division of Elderly and Adult Services; Social Service Block Grant (Title XX)).  Maya Glover and Tracey Tarr testified for the Department.

 

         The Department had submitted a request for conditional approval in a letter and amended rule dated January 5, 2011.

 

         Rep. Schmidt moved that the Committee accept the conditional approval request and conditionally approve Final Proposal 2010-130 based on the request.

 

         Sen. Lambert seconded.

 

         Adopted.

 

15.     The Committee discussed Final Proposal 2010-133 from the Department of Health and Human Services (Former Division of Public Health Services, Healthcare Associated Infections – Hospital Reporting).  Michael Holt and Kate Frey testified for the Department.

 

         Sen. Groen returned to the meeting during the discussion of this item.  Rep. Winter was therefore not a voting member at this time.

 

         Rep. Schmidt moved that the Committee approve Final Proposal 2010-133 with the recommendation that the legislature clarify the authority of agencies to incorporate by reference web site materials, such as in He-P 309.03(a), He-P 309.04(a), He-P 309.05(a), and He-P 309.06(a), that do not have a specific date or edition.

 

         Rep. Kidder seconded.

 

         Adopted.

 

16.     Rep. Pilotte moved that that the Committee adjourn.

 

         Rep. Sad seconded.

 

         Adopted.  The Committee adjourned at 2:05 p.m., effectively postponing consideration of the following items to the next Committee meeting:

 

16.   Discussion on approval of the amended Drafting and Procedure Manual on Administrative Rules.

 

 

OTHER BUSINESS

 

17. Other