JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES

 

 

 

Action Minutes

 

MARCH 18, 2011

 

 

Members Present:   Representatives Patten, Pilotte, Schmidt, McGuire, Manuse, Kidder*, and Tremblay*, and Senators Merrill and Groen.  (*)  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 9:00 a.m. by Rep. Patten as Chair.

 

     Members present at this time, aside from Rep. Patten, were Reps. Pilotte, Schmidt, McGuire, Kidder, and Tremblay, and Sen. Groen.

 

     Rep. Patten designated Rep. Kidder and Rep. Tremblay as alternates, respectively, for Sen. De Blois and Sen. Lambert, who were absent.

 

2.  The Committee discussed the minutes of the Committee meeting on March 4, 2011.

 

     Rep Pilotte moved that the minutes be approved.

 

     Rep. Schmidt seconded.

 

     Adopted.

 

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

 

FP 2010-142

PESTICIDE CONTROL BOARD

Definition of Supervisory Level Certificate, General Use

 

 

FP 2010-158

INSURANCE DEPARTMENT

Actuarial Opinion and Memorandum

 

 

FP 2011-3

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services

Expiring Rules Related to the Definition of "Temporary Adjustment Period" and Developing Potential Sources of Income in the FANF and Adult Categories of

Financial and Medical Assistance

 

 

FP 2011-4

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Mental Health and Developmental Services

Certification Standards for Behavioral Health Community Residences

 

 

FP 2011-5

DEPARTMENT OF SAFETY

Readoption of DNA Database Records Rules

     Rep. Schmidt moved that the Committee approve the Final Proposals, except for Final Proposal 2011-4.

 

     Rep. McGuire seconded.

 

     Adopted.

 

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

 

     Rep. Schmidt moved that the Committee postpone the following items to the continued Committee meeting on April 1, 2011:

 

 

 

9.   FP 2010-152

PUBLIC UTILITIES COMMISSION

Affiliate Transactions Rules

(JLCAR Deadline April 11, 2011.)

 

 

11. OR 2010-153

DEPARTMENT OF SAFETY

Various Licensing of Fuel Gas Fitters and Fuel Gas Fitting Business Entities Rules

(JLCAR Deadline June 7, 2011.)

 

 

 

     Rep. McGuire seconded.

 

     Adopted.

 

5.  The Committee discussed Proposed Interim Rule INT 2011-5 from the Board of Acupuncture Licensing (Hearings, Licensing, Renewals, Licensee Responsibilities, and Scope of Practice).

 

     Rep. McGuire moved that the Committee approve Proposed Interim Rule INT 2011-5.

 

     Rep. Schmidt seconded.

 

     Adopted.

 

     Sen. Merrill arrived at the meeting at this time.

 

6.  The Committee discussed the response by the Board of Medicine to the Committee’s revised 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 M. Bradley, the Executive Director, and Elyse Alkaly of the Department of Justice, testified for the Board.

 

     Rep. Manuse arrived at the meeting during the discussion of this item.

 

     Rep. Manuse moved that the Committee (1) make a final objection to Final Proposal 2010-70, as amended in the Revised Objection Response, on the grounds that, pursuant to Committee Rules 402.02(b)(2) and 403.01(d), the Board’s rules Med 412.03(d) and Med 413.02(f) are not in the public interest by being unclear and contrary to legislative intent by leading to oral rulemaking in violation of RSA 541-A:22, I because the rules do not adequately specify the criteria under which the Board and the MRSC shall take action, as outlined in Committee staff comments; and (2) recommend that the policy committees review RSA 329:17, XIII and RSA 329:18, I.

 

     Rep. McGuire seconded.

 

     After further discussion, Rep. Manuse withdrew his motion and Rep. McGuire withdrew her second.

 

     Rep. Schmidt moved that the Committee recommend that the policy committees review RSA 329:17, XIII.

 

     Sen. Merrill seconded.

 

     Adopted.

 

     Rep. Manuse then moved that the Committee make a final objection to Final Proposal 2010-70, as amended in the Revised Objection Response, on the grounds that, pursuant to Committee Rules 402.02(b)(2) and 403.01(d), the Board’s rules and Med 413.02(f) are not in the public interest by being unclear and contrary to legislative intent by leading to oral rulemaking in violation of RSA 541-A:22, I because the rules do not adequately specify the criteria under which the Board shall take action, as outlined in Committee staff comments.

 

     Rep. McGuire 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. Kidder

X

 

Rep. Tremblay

X

 

Rep. Patten

X

 

 

 

 

Sen. Merrill

X

 

Sen. Groen

X

 

 

 

 

Total

8

1

 

     The vote was 8 “yes” and 1 “no”.  The motion was adopted.

 

     Rep. Manuse then moved that the Committee support the introduction of a joint resolution to Med 412.03(d) and Med 413.02(f) on the same grounds as specified in the final objection to Revised Objection Response 2010-70; and further that the resolution recommend that the General Court clarify RSA 329:18 on criteria for record retention and disclosure of confidential information, and that the Board not disclose confidential information until RSA 328:18 is clarified by the General Court.

 

     Rep. McGuire 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

X

Rep. Kidder

X

 

Rep. Tremblay

X

 

Rep. Patten

X

 

 

 

 

Sen. Merrill

X

 

Sen. Groen

X

 

 

 

 

Total

7

2

 

     The motion was 7 “yes” and 2 “no”.  The motion was adopted. 

 

7.  After a break, with Reps. Patten, Pilotte, Manuse, Tremblay, Kidder, and Schmidt, and Sen. Groen present, the Committee discussed Final Proposal 2010-143 from the Pesticide Control Board (Supervisory-Level Certificate Eligibility for Commercial For-Hire Pesticide Applicators and Establishment of a Maximum Number of Educational Credits Required for Commercial Applicator Re-certification).  David Rousseau and Robert Wolff testified for the Board.

 

     The Board had submitted a conditional approval request with a letter and amended rules dated March 4, 2011 and a revised conditional approval request in a letter and amended rules dated March 14, 2011.

 

     Rep. Pilotte moved that the Committee accept the revised conditional approval request and conditionally approve Final Proposal 2010-143 based on the request.

 

     Rep. Kidder seconded.

 

     Adopted.

 

8.  The Committee discussed Proposed Interim Rule INT 2011-4 from the Public Utilities Commission (Organizational Rules and Rules of Practice and Procedure).  Alexander Speidel testified for the Commission.

 

     The Commission had submitted a conditional approval request in a letter and amended rules dated March 17, 2011.

 

     Rep. Schmidt moved that the Committee accept the conditional approval request and conditionally approve Proposed Interim Rule INT 2011-4 based on the request.

 

     Rep. Pilotte seconded.

 

     Adopted. 

 

9.  The Committee discussed Final Proposal 2011-4 from the Department of Health and Human Services (Former Division of Mental Health and Developmental Services, Certification Standards for Behavioral Health Community Residences).   Peter Bacon and Maya Glover testified for the Department.

 

     Rep. Pilotte moved that the Committee approve Final Proposal 2011-4.

 

     Rep. Kidder seconded.

 

     Adopted.

 

10.  The Committee discussed Final Proposal 2010-156 from the Department of Health and Human Services (Former Division of Public Health Services, Certified Other Qualified Agencies).  Susan Lombard and Kathleen Larney testified for the Department.

 

      The Department had submitted a conditional approval request in a letter and amended rules dated March 1, 2011, a revised conditional approval request in a letter and amended rules dated March 3, 2011, and a second revised conditional approval request in a letter and amended rules dated March 17, 2011.

 

      Rep. Pilotte moved that the Committee accept the second revised conditional approval request and conditionally approve Final Proposal 2010-156 based on that request.

 

      Rep. McGuire seconded.

 

      Adopted.

 

      Robert Clegg, representing Granite State Independent Living and Heritage Care Management, then testified.

 

11.  The Committee discussed Final Proposal 2010-149 from the Department of Health and Human Services (Former Division of Elderly and Adult Services, Nursing Facility Services).  Michael Holt testified for the Department.

 

      The Department had submitted a conditional approval request in a letter and amended rules dated March 16, 2011, and a revised conditional approval request in a letter and amended rules dated March 17, 2011.

 

      Rep. Schmidt moved that the Committee accept the revised conditional request and conditionally approve Final Proposal 2010-149 based on the request.

 

     Sen. Groen seconded.

 

      Adopted.

 

12.  The Committee discussed Final Proposal 2011-7 from the Department of Health and Human Services (Commissioner, Child Placing Agency Licensing Requirements).  Maya Glover testified for the Department.

 

      The Department had submitted a conditional approval request in a letter and amended rules dated March 15, 2011.

 

      Rep. Schmidt moved that the Committee accept the conditional approval request and conditionally approve Final Proposal 2011-7 based on the request.

 

      Sen. Groen seconded.

 

      Adopted.

 

13.  The Committee discussed Final Proposal 2011-8 from the Department of Health and Human Services (Former Division of Public Health Services, Certification of Adult Family Care Residences).  John Martin and Tracey Tarr testified for the Department.

 

      Kathy Boylan, representing Moore Center Services, also testified.

 

      The Department had submitted a conditional approval request in a letter and amended rules dated March 17, 2011.

 

      Rep. Pilotte moved that the Committee accept the conditional approval request with an amendment to insert the words “at least” before the words “in the following” in He-P 813.07(e), and conditionally approve Final Proposal 2011-8 based on the request, as amended.

 

      Rep. Kidder seconded.

 

      Adopted.

 

      Rep. Patten noted for the record that Rep. McGuire and Rep. Manuse voted “no”.

 

      Rep. Pilotte then moved that the Committee recommend to the Department that it seek specific statutory authority to require liability insurance for all similar Department providers.

 

      Rep. Schmidt seconded.

 

      Adopted.

 

14.  The Committee discussed its request of March 4, 2011 to the House and Senate policy committees for clarification of RSA 153:29-a on fuel gas fitter licenses for business entities.  This request had been made in conjunction with the preliminary objection on Final Proposal 2010-153 from the Department of Safety (Various Licensing of Fuel Gas Fitters and Fuel Gas Fitting Business Entities Rules).

 

      Rep. McGuire as Chair of the House Committee on Executive Departments and Administration explained that committee’s recommendations and comments on the issues in the request.

 

     It was the consensus of the Committee that these recommendations and comments be communicated to the Department of Safety.

 

15.  The Committee discussed the agenda of the continued Committee meeting scheduled for April 1, 2011.

 

      Rep. Manuse moved that the Committee request a waiver from the Director of the Office of Legislative Services of the April 11, 2011 deadline for Committee action on Final Proposal 2010-152 from the Public Utilities Commission (Affiliate Transactions Rules), which had been postponed to the April 1 meeting.

 

      Rep. Schmidt seconded.

 

      Adopted.

 

      It was the consensus of the Committee that Committee staff contact the Commission whether a waiver of the Committee deadline of April 11, 2011 would be acceptable so that the Final Proposal would be on the agenda for the April 15, 2011 meeting, and that the April 1, 2011 meeting would be cancelled if there was no Commission objection to that waiver.

 

16.  The Committee recessed at 12:10 p.m., effectively postponing consideration of the following item to the next Committee meeting:

 

OTHER BUSINESS

 

13. Other