JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES

 

Action Minutes

 

NOVEMBER 15, 2007

 

 

Members Present:   Representatives Pilotte, Patten, MacKay, Schmidt, Millham*, Casey*, and Powers*, and Senators Cilley and Letourneau.  (*)  Indicates alternate member.

 

(**)  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 #6 and #9 of these minutes.  However, both items were approved.)

 

1.  The Committee was convened at 9:04 a.m. by Rep. Pilotte as Chair.

 

     Members present at this time, aside from Rep. Pilotte, were Reps. Patten, Schmidt, Millham, Powers, and MacKay.

 

     Sen. Cilley arrived after the meeting convened.

 

     Rep. Pilotte appointed Rep. Millham and Rep. Powers as alternates, respectively, for Sen. Downing and Rep. Mitchell, who were absent.

 

2.  The Committee discussed the minutes of the Committee meeting on October 18, 2007.

 

     Rep. Millham moved that the minutes be approved.

 

     Rep. Patten seconded.

 

     Adopted.

 

3.  The Committee discussed the following final proposals from the agencies indicated (Consent Agenda – Final Proposals):

 

FP 2007-83

 

BOARD OF BARBERING, COSMETOLOGY AND ESTHETICS

Master Barber and Barber Programs

 

 

FP 2007-99

 

GOVERNING BOARD OF PHYSICAL THERAPISTS

Organizational Rules

 

 

FP 2007-100

 

GOVERNING BOARD OF PHYSICAL THERAPISTS

Procedural Rules

 

 

FP 2007-101

 

GOVERNING BOARD OF PHYSICAL THERAPISTS

Procedures for the Receipt of Misconduct Complaints and the Conduct of Disciplinary Hearings; Settlements; Explanation of Adopted Rules; Voluntary Surrender of License)

 

 

FP 2007-119

ASSESSING STANDARDS BOARD

Powers and Duties of the Board; Repeal of Definition of "DRA certified property

assessor assistant"; Definitions for Property Appraisal; Contracts

 

 

FP 2007-128

 

DEPARTMENT OF SAFETY

Approval of Driver Attitude Program Amendment

 

 

FP 2007-141

INSURANCE DEPARTMENT

Military Sales Practices

 

 

FP 2007-149

 

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services

Annual Fee for Services

 

 

FP 2007-150

 

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services

Expiring Rules Related to Acceptable Proofs of Application for Disability Benefits, OAA & ANP Employment Expense Disregard, and Impairment Related Work Expenses

 

     Rep. Patten moved that the final proposals be approved.

 

     Rep. Schmidt seconded.

 

     Adopted.

 

4.  The Committee discussed Final Proposal 2007-129 from the Health Services Planning and Review Board (Organizational Rules).  Cynthia Carrier of the Office of Health Services Planning and Review, in the Department of Health and Humans Services, testified for the Board.

 

     Rep. Schmidt moved that the Committee conditionally approve Final Proposal 2007-129 on the condition that the words “within 144 hours from the close of the meeting” in He-Hea 104.02(c) be replaced with the words “not more than 5 business days after the public meeting”.

 

     Rep. Patten seconded.

 

     Adopted.

 

5.  The Committee discussed Final Proposal 2007-130 from the Health Services Planning and Review Board (Practice and Procedures; Application Procedures for a Certificate of Need).  Cynthia Carrier testified for the Board.

 

     Rep. Casey and Sen. Letourneau arrived during the discussion of this item.

 

     Rep. Pilotte appointed Rep. Casey as an alternate for Sen. Fuller Clark, who was absent.

 

     Rep. Patten moved that the Committee conditionally approve Final Proposal 2007-30 on the following conditions: 

 

(1)  He-Hea 201.01(ba) on page 5 and He-Hea 301.14(b) on page 40 be amended to include “January, 2007” before the words “publication of R.S. Means Company, Inc.” in He-Hea 201.01(ba) and after the words “R.S. Means Historical Cost Index” in He-Hea 301.14(b);

(2)  He-Hea 214.01(h) be deleted;

(3)  He-Hea 214.02(i) be amended to replace the word “recommendation” by “requirement”; and

(4)  He-Hea 208.07(b) be amended to delete the word “business” in “3 business days”.

 

     The motion also recommended that the agency, in a future rulemaking proceeding, adopt rules in He-Hea 200 to address an explanation of rules pursuant to the Drafting and Procedure Manual and RSA 541-A:11, VII, and also seek legislation to address authority to incorporate by reference, without further rulemaking pursuant to RSA 541-A, the current editions of documents like the R.S. Means Historical Cost Index.

 

     Rep. Schmidt seconded.

 

     Adopted.

 

**6. The Committee discussed Proposed Interim Rule INT 2007-28 from the Department of Environmental Services (Division of Water, Surface Water Quality Regulations).  Gretchen Hamel testified for the Department.

 

        Rep. Patten moved that the Committee approve Proposed Interim Rule INT 2007-28 with the understanding that the agency would address in the regular rulemaking proceeding the issues outlined in the annotations to the Proposed Interim Rule by Committee Attorney Morrell.

 

        Rep. Powers seconded.

 

        Adopted.

 

7.  The Committee discussed Proposed Interim Rule INT 2007-29 from the Public Utilities Commission (Electric Renewable Portfolio Standards).  Donald Kreis, General Counsel, testified for the Commission.

 

     Rep. Patten moved that the Committee approve Proposed Interim Rule INT 2007-29 with the understanding that the Commission would address in the regular rulemaking proceeding the issues outlined in the annotations to the Proposed Interim Rule by Committee Attorney Morrell.

 

     Rep. MacKay seconded.

 

     Adopted.

 

8.  The Committee discussed Final Proposal 2007-143 from the Motor Vehicle Industry Board (Hearing and Procedural Rules).  Marta Modigliani of the Department of Safety testified for the Board.

 

     Rep. Patten moved that the Committee conditionally approve Final Proposal 2007-143 on the condition that Mvi 206.02(d) be amended to replace the word “may” with “shall.” 

 

     Sen. Letourneau seconded.

 

     Adopted.

 

**9. After a break, with Reps. Pilotte, Patten, MacKay, Schmidt, Millham, Powers, and Casey, and Sen. Cilley present, the Committee discussed Final Proposal 2007-120 from the Assessing Standards Board (DRA Certified Assessor).  Robert Boley of the Department of Revenue Administration testified for the Board. 

 

        Sen. Letourneau returned to the meeting during the discussion of this item.

 

        Rep. MacKay moved that the Committee approve Final Proposal 2007-120.

 

        Rep. Powers seconded.

 

        Adopted.

 

10.  The Committee discussed Final Proposal 2007-51 from the Board of Education (Charter and Open Enrollment Schools).  Sarah Browning and Roberta Tenney testified for the Board.

 

      Rep. Casey moved that the Committee conditionally approve Final Proposal 2007-51 on the condition that Ed 318.08(i), Ed 318.09(e)(4), and Ed 318.04(c) be amended by replacing “RSA 541” with “Ed 213”.

 

      Rep. Patten seconded.

 

      Adopted.

 

      Rep. Millham left the meeting at this time.

 

11.  The Committee discussed requesting a waiver from the Director of the Office of Legislative Services of the 45-day Committee review deadline of December 17, 2007 for the following final proposals filed on November 2, 2007 for the December 20, 2007 meeting:

 

DEPARTMENT OF ADMINISTRATIVE SERVICES

 

 

FP 2007-144

Bureau of Risk Management Loss Prevention

 

 

FP 2007-145

Loss Prevention, Guidelines for Risk Management

 

      Rep. Patten moved that the Committee request a waiver.

 

      Rep. Schmidt seconded.

 

      Adopted.

 

      Rep. Patten and Rep. Casey left the meeting at this time.

 

12.  The Committee discussed Final Proposal 2007-110 from the Department of Health and Human Services (Former Division of Public Health Services, Career Registry Rules).  Kathryn Frey and Frank Nachman testified for the Department.

 

      The Department had requested a conditional approval in a letter and amended rule dated November 14, 2007.

 

      Rep. MacKay moved that the Committee conditionally approve Final Proposal 2007-110 on the condition that the Department make the changes in its request of November 14, 2007, with the additional change of replacing the words “as updated and available” in He-P 304.02(b) with “and, on or after January 1, 2008, the 12th Edition, Version 11.2.”

 

      Rep. Powers seconded.

 

      Adopted.

 

13.  The Committee discussed Final Proposal 2007-151 from the Department of Health and Human Services (Former Division of Public Health Services, Indoor Smoking Rules).  Kathryn Frey and Frank Nachman testified for the Department.

 

      The Department had requested a conditional approval in a letter and amended rule dated November 14, 2007.

 

      Don Smith testified for the VFW Post 4479 of Raymond, N.H.

 

      Sen. Letourneau moved that the Committee make a preliminary objection to Final Proposal 2007-151 based on the Committee’s discussion relative to the Department’s authority and legislative intent to impose fines administratively under He-P 1906.02 rather than having the fines be determined by a court. 

 

      Sen. Cilley seconded.

 

      Adopted.  Rep. Pilotte noted for the record that Rep. MacKay voted “no”.

 

14.  The Committee discussed the response by the Board of Accountancy to the Committee’s preliminary objection to Final Proposal 2007-92 (Procedural Rules 8-year provisions); Certification, Registration, and Permit Requirements; Continued Status; Ethics).

 

      The Board had requested a revised objection.

 

      Rep. MacKay left the meeting at this time.  A quorum was no longer present.  Therefore, votes could not be taken.

 

      It was the consensus of the Committee that this item be postponed and be the first item on the agenda for the continued Committee meeting on December 6.

 

15.  The Committee discussed postponement of the following items to the continued meeting on December 6:

 

14. OR 2007-92

BOARD OF ACCOUNTANCY

Procedural Rules (8-year provisions); Certification, Registration and Permit Requirements; Continued Status; Ethics

(JLCAR Deadline December 26, 2007.  Most rules expired July 25, 2007.)

 

 

16. Discussion on the following emergency rule filed effective November 9, 2007:

 

Doc. #9025

State Board of Registration of Funeral Directors and Embalmers

Resomation Facility Regulations

 

17. Remaining Responses to Preliminary Objections Made in October 18, 2007 Meeting But Not Yet Reviewed  by Committee Staff:

 

(a)  OR 2007-112

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Division of Elderly and Adult Services

Certification of Adult Family Care Residences

(JLCAR Deadline January 22, 2008.)

 

 

(b)  OR 2007-113

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Division of Elderly and Adult Services

Authorization of Adult Family Care Placement Agencies

(JLCAR Deadline January 22, 2008.)

 

16.  The Committee discussed the response by the Department of Health and Human Services to the Committee’s preliminary objection to Final Proposal 2007-21 (Former Division of Mental Health and Developmental Services, Medical Assistance Services Provided by Education Agencies).  Kenneth Nielsen and Barbara Joyce Reed testified for the Department.

 

      No further action was taken at this time.

 

17.  Rep. MacKay returned to the meeting at this time.  With a quorum now present, the Committee resumed the discussion about postponing items #14, #16, and #17 from today’s tentative agenda to the continued Committee meeting on December 6.

 

      Sen. Letourneau moved that the Committee postpone these items.

 

      Rep. Schmidt seconded.

 

      Adopted.

 

      Rep. MacKay then left the meeting, and a quorum was no longer present.

 

18.  The Committee resumed discussion of the response by the Department of Health and Human Services to the Committee’s preliminary objection to Final Proposal 2007-21 (Former Division of Mental Health and Developmental Services, Medical Assistance Services Provided by Education Agencies).  Kenneth Nielsen and Barbara Joyce Reed testified for the Department.

 

      Rep. MacKay returned to the meeting during the discussion of this item, and a quorum was now present.

 

      Sen. Cilley moved that the Committee accept the response and approve the rules.

 

      Rep. Schmidt seconded.

 

      Adopted.

 

19.  The Committee discussed reconsideration of its vote to postpone consideration of the response by the Board of Accountancy to the Committee’s preliminary objection to Final Proposal 2007-92 (Procedural Rules (8-year provisions); Certification, Registration and Permit Requirements; Continued Status; Ethics).

 

      Sen. Letourneau moved that the Committee reconsider its vote.

 

      Rep. Schmidt seconded.

 

      Adopted.

 

20.  The Committee then resumed discussion of the response by the Board of Accountancy to the Committee’s preliminary objection to Final Proposal 2007-92 and of the Board’s request for a revised objection.  Richard Nusbaum, contractor to the Board, testified for the Board.

 

      Joel Olbricht, representing the N.H. Society of Certified Public Accountants (Society), also testified.

 

      Rep. Schmidt moved that the Committee make a revised objection to the preliminary objection response for Final Proposal 2007-92 as requested by the Board, based on the Board’s desire to amend incorrect rule citations and statutory citations throughout the response to the preliminary objection, and to address the issue of claims contained in the preliminary objection and further discussed in a letter dated November 15, 2007 submitted by the Society.

 

      Sen. Letourneau seconded.

 

      Adopted.

 

      It was the consensus of the Committee that the response to the revised objection would be the first item on the regular agenda for the continued meeting on December 6.

 

21.  Rep. Schmidt moved that the Committee recess.

 

      Sen. Letourneau seconded.

 

      Adopted.

 

      The Committee recessed at 1:30 p.m.