JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES

 

 

Action Minutes

 

JUNE 18, 2010

 

 

Members Present:   Representatives Pilotte, Patten, Schmidt, Gottling, Millham, and Boyce*, and Senators Cilley and DeVries*.  (*)  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 FP 2010-30 in Item #3 below.  However, FP 2010-30 was approved.)

 

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, Millham, Schmidt, and Gottling, and Sen. Cilley.

 

     Rep. Boyce and Sen. DeVries arrived after the meeting convened.

 

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

 

2.  The Committee discussed the minutes of the Committee meeting on June 4, 2010.

 

     Rep. Patten moved that the minutes be approved.

 

     Rep. Millham seconded.

 

     Adopted.

 

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

 

FP 2010-25

FISH AND GAME DEPARTMENT

Marine Rules Relative to Gear Restriction, Salters, and the Winnicut River

 

 

FP 2010-27

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services
Financial Assistance to Needy Families Standard of Need

 

 

FP 2010-28

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services
Podiatry Services – Service Limits

 

 

 

 

FP 2010-29

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services
Certified Midwife Services

See * below.

 

 

**FP 2010-30

DEPARTMENT OF ENVIRONMENTAL SERVICES

Drinking Water Programs
Public Notification for Public Water Systems

(JLCAR Deadline July 19, 2010.)

See ** below.

 

 

FP 2010-31

DEPARTMENT OF EMPLOYMENT SECURITY

Wages During Week Claimed

 

 

FP 2010-32

DEPARTMENT OF EMPLOYMENT SECURITY

Employment Services; Work Search

 

 

FP 2010-33

DEPARTMENT OF EMPLOYMENT SECURITY

Overpayment Without Fault; Waiting Week

 

 

FP 2010-34

DEPARTMENT OF EMPLOYMENT SECURITY

Leaving Self-Employment or Closing Business

 

 

FP 2010-35

DEPARTMENT OF EMPLOYMENT SECURITY

Termination of Employment

 

 

FP 2010-36

DEPARTMENT OF EMPLOYMENT SECURITY

Approved Training

(JLCAR Deadline July 19, 2010.)

 

 

FP 2010-41

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services
Fluctuating Income

 

 

FP 2010-42

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services
Hearing Aid Services

 

 

*  The only issue with this final proposal is that the agency continued to operate under expired rules as noted in the fiscal impact statement.

 

 

 

**  The only issue with this final proposal is that there is a concern regarding a potential violation of Part 1, Article 28-a of the N.H. Constitution, but these rules appear to implement a pass-through of federal requirements.

 

 

     Rep. Patten moved that the Committee approve the Final Proposals on the consent agenda, with the exception of Final Proposals 2010-32, 2010-33, and 2010-35.

    

     Rep. Schmidt seconded.

 

     Adopted.

 

4.  The Committee discussed Final Proposal 2010-32 from the Department of Employment Security (Employment Services; Work Search).  Lon Siel testified for the Department.

 

     Mark McKenzie, representing the N.H. AFL-CIO, also testified.

 

     Sen. DeVries moved that the Committee make a preliminary objection to Final Proposal 2010-32 on the ground of questionable statutory authority in RSA 282-A:31, I(a) relative to an expectation of reporting for employment.

 

     Rep. Boyce seconded.

 

     On a show of hands, the vote was 4 “yes” and 4 “no”.  The motion was not adopted. 

 

     Rep. Schmidt moved that the Committee approve Final Proposal 2010-32 with the recommendation that the Department seek input from its Advisory Committee relative to the Department’s authority in RSA 282-A in this matter.

 

     Rep. Patten seconded.

 

     Adopted.  Rep. Pilotte noted for the record that Sen. DeVries and Rep. Boyce voted “no”.

 

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

 

     Lon Siel, representing the Department of Employment Security, briefly testified.

 

     Rep. Patten moved that the Committee postpone action on the following items to the continued meeting on June 25, 2010.

 

 

 

2. (h)  FP 2010-33

DEPARTMENT OF EMPLOYMENT SECURITY

Overpayment Without Fault; Waiting Week

(JLCAR Deadline July 19, 2010.)

 

 

2. (j)  FP 2010-35

DEPARTMENT OF EMPLOYMENT SECURITY

Termination of Employment

(JLCAR Deadline July 19, 2010.)

 

12. Responses to Preliminary Objections Made in November 19, 2009 Meeting But Not Yet Received by Committee Staff:

 

 

(a)  OR 2008-165

BOARD OF MENTAL HEALTH PRACTICE

Practice and Procedure Rules

(No JLCAR deadline, because agency's objection response deadline was waived.)

 

 

(b)  OR 2008-166

BOARD OF MENTAL HEALTH PRACTICE

Licensing Requirements, Ethical and Professional Standards, Investigating Allegations, Disciplinary Sanctions, Continuing Education Requirements for Licensees

(No JLCAR deadline, because agency's objection response deadline was waived.)

 

 

13. Responses to Revised Objections Made in June 4, 2010 Meeting But Not Yet Received by Committee Staff:

 

 

(a)  ROR 2009-176

LIQUOR COMMISSION
Agency Store Rules

(JLCAR Deadline September 7, 2010.)

 

 

OTHER BUSINESS

 

14. Other

 

 

 

 

     Rep. Schmidt seconded.

 

     Adopted.

 

6.  The Committee discussed Proposed Expedited Repeal of EXP 2010-2 from the Department of Environmental Services (Division of Water, Filtration, Disinfection, Treatment Plant and Waste Recycling Rule).  Gretchen Hamel testified for the Department.

 

     Rep. Patten moved that the Committee approve Proposed Expedited Repeal EXP 2010-2.

 

     Rep. Gottling seconded.

 

     Adopted. 

 

7.  The Committee discussed Proposed Expedited Repeal EXP 2010-3 from the Department of Environmental Services (Division of Water, Disinfectant/Disinfection Byproducts Rule).  Gretchen Hamel testified for the Department.

 

     Rep. Patten moved that the Committee approve Proposed Expedited Repeal EXP 2010-3.

 

     Rep. Schmidt seconded.

 

     Adopted.

 

     Sen. Cilley left the meeting at this time.

 

8.  The Committee discussed Final Proposal 2009-198 from the Department of Safety (Modular Buildings and Building Components Rules).  Sheri Kelloway and William Degnan, State Fire Marshal, testified for the Department.

 

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

 

     The following persons also testified:

Michael Younus, representing New England Homes and the Modular Manufacturers Association of the Northeast.

            Ari Pollack, representing homebuilders.

 

     Rep. Patten moved that the Committee approve Final Proposal 2009-198 (1) with the understanding that the Department would file Incorporation by Reference Statements for the documents referenced in Saf-C 3304.03(b) and Saf-C 3304.11(d), and (2) with the recommendation to the Director of the Office of Legislative Services that she accept as editorial changes the insertion by the Department in the rules of the date or edition of the incorporated documents.

 

     Rep. Gottling seconded.

 

     Adopted.

 

     Senators Cilley and DeVries left the meeting at this time.

 

9.  The Committee discussed Final Proposal 2010-50 from the Department of Safety (Various Watercraft Safety Rules).  Sheri Kelloway testified for the Department.  Regina Carman also represented the Department.

 

     Sen. DeVries and Sen. Cilley left the meeting as the discussion on this item began.  Sen. Cilley returned before a motion was made.

 

     Rep. Patten moved that the Committee approve Final Proposal 2010-50.

 

     Rep. Boyce seconded.

 

     Adopted.

 

10.  The Committee discussed the response by the Board of Education to the Committee’s revised objection to Final Proposal 2009-191 (Approval of Nonpublic Schools).  Dr. Judith Fillion from the Department of Education testified for the Board.

 

      Rep. Patten left the meeting as the discussion on this item began.

 

      Sen. Cilley moved that the Committee accept the response and approve the rules with a recommendation to the Director of the Office of Legislative Services that she accept as an editorial change the re-insertion of Ed 403.03(b)(4) to the rules which had been deleted in the revised objection response.

 

      Rep. Boyce seconded.

 

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

 

11.  The Committee discussed the order in which the Committee would review the following items from the Department of Health and Human Services:

     

9.   DEPARTMENT OF HEALTH AND HUMAN SERVICES

 

 

(a)  INT 2010-5

Former Division of Mental Health and Developmental Services

Rights Protection Procedures

(JLCAR Deadline September 9, 2010.  Most of the existing rules will expire

July 24, 2010.)

 

 

(b)  FP 2010-26

Commissioner

Submission of Health Care Facility Financial Data

(JLCAR Deadline July 19, 2010.)

 

 

(c)  FP 2010-43

Former Division of Human Services
Expanded Health Care Coverage for Certain Low-Income Children (SCHIP)

 - Co-Payments

(JLCAR Deadline July 19, 2010.)

 

 

(d)  FP 2010-44

Former Division of Mental Health and Developmental Services

Community Mental Health Services

(JLCAR Deadline July 19, 2010.)

 

 

(e)  FP 2010-45

Former Division of Mental Health and Developmental Services

Children's Special Medical Services

(JLCAR Deadline July 19, 2010.)

 

 

(f)  OR 2009-130

Former Division of Mental Health and Developmental Services

Eligibility Determination and Service Planning for Individuals With An Acquired Brain Disorder

(JLCAR Deadline August 10, 2010.)

 

      Maya Glover testified for the Department.

 

      It was the consensus of the Committee to discuss Objection Response 2009-130 first.

 

12.  The Committee discussed the response by the Department of Health and Human Services to the Committee’s preliminary objection to Final Proposal 2009-130 (Former Division of Mental Health and Developmental Services, Eligibility Determination and Service Planning for Individuals with An Acquired Brain Disorder).  Ken Nielsen and Matthew Ertas testified for the Department.

 

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

 

      There was no second.

 

      Sen. Cilley moved that the Committee make a final objection to Final Proposal 2009-130, as amended in Objection Response 2009-130, on the ground that, by authorizing wait lists for individuals currently needing services, as in He-M 522.08 and He-M 522.15, the Final Proposal is contrary to legislative intent as follows:

    

(1)  Under Committee Rule 402.01(c), by violating the overall purpose of RSA 171-A:1-a, as indicated in the Statement of Purpose of SB 138 (Chapter 363:1 of the Laws of 2007);

 

(2)  Under Committee Rule 402.02(a), by violating or otherwise conflicting with RSA 171-A:1-a, I; and

 

(3)  Under Committee Rule 402.01(a), by attempting to implement a bill which the Legislature defeated, as indicated by the unanimous vote of the Senate in the 2010 session to defeat SB 519, which would have allowed for wait lists.

 

     The other Committee members seconded the motion, including Rep. Schmidt, Rep. Gottling, Rep. Millham, Rep. Boyce, and Rep. Pilotte.

 

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

 

 

Yes

No

 

 

 

Rep. Schmidt

X

 

Rep. Gottling

X

 

Rep. Millham

X

 

Rep. Boyce

X

 

Rep. Pilotte

X

 

 

 

 

Sen. Cilley

X

 

 

 

 

Total

6

0

 

 

 

 

     The vote was 6 “yes” and 0 “no”.  The motion was adopted.  It was the consensus of the Committee that the vote to enter a final objection was done in lieu of any other action, such as a vote to sponsor a joint resolution. 

 

13.  The Committee discussed Final Proposal 2010-44 from the Department of Health and Human Services (Former Division of Mental Health and Developmental Services, Community Mental Health Services).  Raymond Perry and Erik Riera testified for the Department.

 

      Raymond Perry requested a conditional approval, on behalf of the Department, to delete He-M 426.08 from the Final Proposal, and restore He-M 426.12 to the same text as the Initial Proposal, with the exception of the change to He-M 426.12 (m)(4).

 

      The following persons also testified:

Jay Couture, representing Seacoast Mental Health Association and the N.H. Community Mental Health Association.

            Suellen Griffin, representing the West Central Behavioral Health Center of Lebanon, N.H.

            Louis Josephson, representing Riverbend Community Mental Health of Concord, N.H.

            Michael Skibbie, representing the Disabilities Rights Center.

 

      Sen. Cilley moved that the Committee postpone action on Final Proposal 2010-44 until the continued Committee meeting on June 25, 2010.

 

      Rep. Schmidt seconded.

 

      Adopted.

 

14.  Rep. Schmidt moved that the Committee also postpone action on the following items to the continued Committee meeting on June 25, 2010:

 

9.   DEPARTMENT OF HEALTH AND HUMAN SERVICES

 

 

(a)  INT 2010-5

Former Division of Mental Health and Developmental Services

Rights Protection Procedures

(JLCAR Deadline September 9, 2010.  Most of the existing rules will expire July 24, 2010.)

 

 

(b)  FP 2010-26

Commissioner

Submission of Health Care Facility Financial Data

(JLCAR Deadline July 19, 2010.)

 

 

(c)  FP 2010-43

Former Division of Human Services
Expanded Health Care Coverage for Certain Low-Income Children (SCHIP) - Co-Payments

(JLCAR Deadline July 19, 2010.)

 

 

(d)  FP 2010-44

Former Division of Mental Health and Developmental Services

Community Mental Health Services

(JLCAR Deadline July 19, 2010.)

 

 

(e)  FP 2010-45

Former Division of Mental Health and Developmental Services

Children's Special Medical Services

(JLCAR Deadline July 19, 2010.)

 

      Rep. Gottling seconded.

 

      Approved.

 

15.  Rep. Schmidt moved that the Committee recess.

 

      Rep. Boyce seconded.

 

      Adopted.  The Committee recessed at 12:30 p.m.

 

16.  Sen. Cilley having left, there was now less than a quorum.  Linda S. Paquette, representing the Department of Health and Human Services, talked to the remaining members about the status of the LEAN government process.