JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES

Action Minutes

NOVEMBER 18, 2010

Members Present: Representatives Pilotte, Patten, Schmidt, Gottling, Millham, Kidder*, Sad*, and Casey*, and Senators Cilley, Merrill, Carson, and Bragdon*. (*) Indicates alternate members.

(**) Part 1, Article 28-a of the N.H. Constitution was not an issue in the Committee’s discussions or decisions in this meeting

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

Members present at this time, aside from Rep. Pilotte, were Reps. Patten, Schmidt, Gottling, Millham, Kidder, and Sad.

Rep. Pilotte appointed Rep. Sad and Rep. Kidder as alternates, respectively, for Sen. Fuller Clark and Sen. Letourneau, who were absent.

2. The Committee discussed the minutes of the Committee meeting on October 21, 2010.

Rep. Patten moved that the minutes be approved.

Rep. Kidder seconded.

Adopted.

3. The Committee discussed the following Final Proposals and Proposed Interim Rule from the agencies indicated (Consent Agenda – Final Proposals and Proposed Interim Rule):

FP 2010-89	BOARD OF PROFESSIONAL ENGINEERS Rules Regarding the Fee for the Lateral and Vertical Forces Components of the Principles and Practices Examination
FP 2010-91	GOVERNING BOARD OF ATHLETIC TRAINERS Initial Application Requirements
FP 2010-97	POLICE STANDARDS AND TRAINING COUNCIL Revocation or Suspension
FP 2010-98	DEPARTMENT OF HEALTH AND HUMAN SERVICES Former Division of Human Services Electronic Notification
FP 2010-100	DEPARTMENT OF HEALTH AND HUMAN SERVICES Former Division of Human Services Electronic Benefit Transfer (EBT) Card Issuance
FP 2010-105	DEPARTMENT OF AGRICULTURE, MARKETS, AND FOOD Breeder's Health Certificate of Dogs and Cats
FP 2010-106	DEPARTMENT OF ENVIRONMENTAL SERVICES Water Quality and Quantity Programs Amendments to Alteration of Terrain Rules
FP 2010-108	DEPARTMENT OF REVENUE ADMINISTRATION Requirements of Auditors/Forms
INT 2010-16	FISH AND GAME DEPARTMENT Wildlife Rehabilitator Rules

Sen. Merrill and Sen. Carson arrived during the discussion of this item.

Rep. Millham moved that the Final Proposals and Proposed Interim Rule be approved.

Rep. Schmidt seconded.

Adopted.

4. The Committee discussed whether to postpone action on certain items to another meeting and cancel the previously scheduled continued Committee meeting on December 2, 2010.

Rep. Schmidt moved that the Committee cancel the meeting on December 2, 2010.

Rep. Patten seconded.

Adopted.

Rep. Schmidt moved that the Committee postpone to the regularly scheduled meeting on December 16, 2010 the following items:

12. DEPARTMENT OF REVENUE ADMINISTRATION
(a) FP 2010-99	Utility Property Tax (JLCAR Deadline December 10, 2010.)
(b) FP 2010-115	Interest and Dividends Tax (JLCAR Deadline December 20, 2010.)
13. FP 2010-92	GOVERNING BOARD OF ATHLETIC TRAINERS Renewal Application Requirements and Reinstatement Supporting Materials Requirements (JLCAR Deadline December 17, 2010.)
14. FP 2010-102	DEPARTMENT OF HEALTH AND HUMAN SERVICES Former Division of Public Health Services NH Nursing Home Rules (JLCAR Deadline December 20, 2010.)
15. Discussion on approval of the amended Drafting and Procedure Manual on Administrative Rules.
OTHER BUSINESS
16. Other

Sen. Merrill seconded.

Adopted.

It was the consensus of the Committee to request from the Director of the Office of Legislative Services a waiver of the Committee deadline of December 10, 2010 for Final Proposal 2010-99, with a new deadline of December 16, 2010.

Rep. Schmidt moved that the Committee also postpone action on the following item to the Committee meeting on December 16, 2010:

8. BOARD OF MENTAL HEALTH PRACTICE
(b) ROR 2008-166	Licensing Requirements, Ethical and Professional Standards, Investigating Allegations, Disciplinary Sanctions, Continuing Education Requirements for Licensees (JLCAR Deadline January 12, 2011.) (Formerly Item #12(b) on 11-4-10 agenda.)

Rep. Patten seconded.

Adopted.

5. The Committee began to discuss Proposed Interim Rule INT 2010-15 of the Department of Health and Human Services (Commissioner, Payments to Non-Public Disproportionate Share Hospitals/Uncompensated Care Fund Reporting).

The Committee took no action in order to go to the next item.

6. The Committee discussed the waiver it had requested from the Director of the Office of Legislative Services of the deadline for Final Proposal 2010-99 from the Department of Revenue Administration (Utility Property Tax).

The Director Carol J. Holahan testified and agreed to the waiver.

7. The Committee resumed discussion on Proposed Interim Rule INT 2010-15 from the Department of Health and Human Services. Kathleen Dunn and Michael Holt testified for the Department.

Sen. Cilley arrived as the discussion began on this item.

The Department had requested a conditional approval with a letter and amended rule dated November 16, 2010.

Rep. Schmidt moved that the Committee accept the conditional approval request and conditionally approve Final Proposal 2010-99 based on the request.

Sen. Merrill seconded.

Adopted.

8. The Committee discussed Final Proposal 2010-101 from the Department of Revenue Administration (Procedural Rules; General Information and Definitions; Specific Rules of Practice and Procedure). John Hayes testified for the Department.

The Department had requested a conditional approval in a letter and amended rule dated November 6, 2010.

Rep. Patten moved that the Committee accept the conditional approval request and conditionally approve Final Proposal 2010-101 based on the request.

Rep. Schmidt seconded.

Adopted.

9. The Committee discussed the response to the Committee’s revised objection to Final Proposal 2008-165 of the Board of Mental Health Practice (Practice and Procedure Rules). Joan Staigers Haley and David Braiterman testified for the Board.

Rep. Pilotte read the names of the following persons. They had submitted testimony cards either on November 4, 2010 or on November 18, 2010, indicating opposition to the rules, including the responses to the Committee’s revised objections to Final Proposal 2008-165 and Final Proposal 2008-166 (Licensing Requirements, Ethical and Professional Standards, Investigating Allegations, Disciplinary Sanctions, Continuing Education Requirements for Licensees), but they chose not to speak:

Rep. David Welch, representing Rockingham District #8.

Sheila Gardner, representing psychologists.

Rep. Gene Chandler, representing Carroll District #1.

Rep. Gregory Sorg, representing Grafton District #3.

Sen. John Gallus, representing Senate District #1.

Rep. Lyle Bulis, representing Grafton District #1.

The following persons testified today:

Dr. Michael Phillips, representing the N.H. Psychological Association.

Dr. Deborah Warner.

Rep. Patten moved that the Committee accept the response and approve the rules.

Rep. Millham seconded.

Adopted.

Rep. Pilotte noted for the record that Sen. Carson voted “no”.

10. The Committee briefly discussed Final Proposal 2010-70 from the Board of Medicine (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).

Rep. Patten moved that the Committee request a waiver from the Director of the Office of Legislative Services of the Committee’s deadline of December 6, 2010 on Final Proposal 2010-70.

After further discussion, Rep. Patten withdrew her motion.

Carol J. Holahan, the Director of the Office of Legislative Services, then testified.

It was the consensus of the Committee to discuss this issue later in the meeting, and no further action was taken at this time.

11. After a break, with Reps. Pilotte, Patten, Schmidt, Gottling, Millham, Kidder, and Sad, and Sens. Cilley and Merrill present, the Committee discussed the response of the Insurance Department to the Committee’s preliminary objection to Final Proposal 2010-67 (New Hampshire Medical Malpractice Joint Underwriting Plan). Deputy Commissioner Alex Feldvebel testified for the Department.

The following persons also testified:

Dr. Georgia Tuttle, representing Joint Underwriting Association policyholders.

Brenda Baer, Laconia City Councilor, representing the City of Laconia.

Dr. David Strang, representing Central N.H. ER Association, P.A.

Dr. Henry D. Lipman, representing LRGHealthcare.

Tom Buchanan, representing Derry Medical Center.

Scott Colby, representing the N.H. Medical Society, who also provided written testimony from John Robinson.

Janet Monahan, representing the N.H. Medical Society.

Kevin Fitzgerald, of Nixon Peabody, representing Joint Underwriting Association policyholders.

Rep.-Elect Harry Accornero of Laconia registered his opposition to the rules but was not available when called.

Sen. Carson returned to the meeting, and Sen. Bragdon arrived, during the testimony of Scott Colby.

Rep. Pilotte appointed Sen. Bragdon as an alternate for Sen. Letourneau, who was absent. Rep. Kidder was not a voting member at this time.

Sen. Cilley moved that the Committee make a final objection to Final Proposal 2010-67, as amended in the Objection Response, on the following grounds:

(1) Pursuant to Committee Rules 401.02 and 402.02(a), the proposed Chapter Ins 1700 authorizes the Commissioner to exercise a degree of management and decision-making authority regarding the operations of the New Hampshire Medical Malpractice Joint Underwriting Plan, currently the New Hampshire Medical Malpractice Joint Underwriting Association, which is contrary to legislative intent and beyond the agency’s authority as noted in Committee staff annotations;

(2) Pursuant to Committee Rules 402.02(b)(2) and 403.01(d), the proposed Ins 1708 on termination and dissolution of the New Hampshire Medical Malpractice Joint Underwriting Plan is contrary to legislative intent and not in the public interest due to lack of clarity, as noted in Committee staff annotations, and, pursuant to Committee rule 404.01(a)(1), the proposed Ins 1708 has a substantial economic impact not recognized in the fiscal impact statement; and

(3) Pursuant to Committee rule 403.01(d), the proposed Chapter Ins 1700, based on public comments received at the time of the preliminary objection, is contrary to the public interest due to lack of clarity regarding “vested rights” and retrospectivity because it fails to acknowledge adequately the decision of the New Hampshire Supreme Court in Tuttle v. New Hampshire Medical Malpractice Joint Underwriting Association.

Rep. Patten seconded.

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

	Yes	No
Rep. Schmidt	X
Rep. Patten	X
Rep. Gottling	X
Rep. Millham	X
Rep. Sad	X
Rep. Pilotte	X
Sen. Cilley	X
Sen. Merrill	X
Sen. Carson	X
Sen. Bragdon	X
Total	10	0

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

Sen. Merrill and Rep. Schmidt left the meeting after the vote, and Rep. Casey arrived.

Rep. Patten then moved that the Committee vote to support the sponsorship of a joint resolution regarding Ins 1700 in its entirety in Final Proposal 2010-67 as amended in the Objection Response on the same grounds as for the final objection, and that the resolution recommend that the General Court clarify by legislation the permissible role of the State under Chapters RSA 404-C, RSA 402:11-a, and RSA
400-A:12 concerning the operations of the New Hampshire JUA and direct by legislation how the vested, constitutional, and protected rights of the JUA policyholders to the JUA surplus funds will be honored

Sen. Carson seconded.

Rep. Pilotte appointed Rep. Kidder as an alternate for Sen. Merrill, and Rep. Casey as an alternate for Rep. Schmidt, who were now absent.

	Yes	No
Rep. Patten	X
Rep. Gottling	X
Rep. Millham	X
Rep. Casey	X
Rep. Sad	X
Rep. Kidder	X
Rep. Pilotte		X
Sen. Cilley	X
Sen. Carson	X
Sen. Bragdon	X
Totals	9	1

The vote was 9 “yes” and 1 “no”. The motion was adopted.

12. The Committee discussed Final Proposal 2010-70 from the Board of Medicine (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). Dr. Robert J. Andelman, Board President, and Elyse Alkalay of the Department of Justice, testified for the Board.

Rep. Pilotte moved that the Committee request the Director of the Office of Legislative Services to waive the Committee deadline of December 6, 2010 for Final Proposal 2010-70, with a new deadline of December 16, 2010.

Sen. Cilley seconded.

Adopted.

13. Rep. Patten moved that the Committee adjourn.

Sen. Bragdon seconded.

Adopted.

The Committee adjourned at 12:35 p.m., effectively postponing the following item:

10. FP 2010-70

BOARD OF MEDICINE 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 (JLCAR Deadline December 6, 2010.)