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 |
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FP 2010-27 |
DEPARTMENT OF
HEALTH AND HUMAN SERVICES Former
Division of Human Services |
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FP 2010-28 |
DEPARTMENT OF
HEALTH AND HUMAN SERVICES Former
Division of Human Services |
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FP 2010-29 |
DEPARTMENT OF HEALTH AND HUMAN
SERVICES Former Division of Human Services See * below. |
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**FP 2010-30 |
DEPARTMENT OF ENVIRONMENTAL SERVICES Drinking Water Programs (JLCAR
Deadline July 19, 2010.) See ** below. |
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FP 2010-31 |
DEPARTMENT OF
EMPLOYMENT SECURITY Wages During Week Claimed |
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FP 2010-32 |
DEPARTMENT OF
EMPLOYMENT SECURITY Employment Services; Work Search |
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FP 2010-33 |
DEPARTMENT OF
EMPLOYMENT SECURITY Overpayment Without Fault; Waiting Week |
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FP 2010-34 |
DEPARTMENT OF EMPLOYMENT SECURITY Leaving Self-Employment or Closing Business |
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FP 2010-35 |
DEPARTMENT OF
EMPLOYMENT SECURITY Termination of Employment |
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FP 2010-36 |
DEPARTMENT OF
EMPLOYMENT SECURITY Approved
Training (JLCAR Deadline July 19, 2010.) |
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FP 2010-41 |
DEPARTMENT OF
HEALTH AND HUMAN SERVICES Former
Division of Human Services |
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FP 2010-42 |
DEPARTMENT OF
HEALTH AND HUMAN SERVICES Former
Division of Human Services |
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* The only issue with this final proposal is
that the agency continued to operate under expired rules as noted in the
fiscal impact statement. |
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** 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. |
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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.
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2. (h)
FP 2010-33 |
DEPARTMENT OF
EMPLOYMENT SECURITY Overpayment Without
Fault; Waiting Week (JLCAR Deadline July 19, 2010.) |
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2. (j)
FP 2010-35 |
DEPARTMENT OF
EMPLOYMENT SECURITY Termination
of Employment (JLCAR Deadline July 19, 2010.) |
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12. Responses
to Preliminary Objections Made in November 19, 2009 Meeting But Not Yet
Received by Committee Staff: |
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(a) OR 2008-165 |
BOARD OF
MENTAL HEALTH PRACTICE Practice and
Procedure Rules (No JLCAR deadline, because agency's objection
response deadline was waived.) |
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(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.) |
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13. Responses to Revised Objections Made in June
4, 2010 Meeting But Not Yet Received by Committee Staff: |
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(a)
ROR 2009-176 |
LIQUOR COMMISSION (JLCAR Deadline September 7, 2010.) |
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OTHER BUSINESS |
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14. Other |
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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 (
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 |
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(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.) |
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(b) FP 2010-26 |
Commissioner Submission of
Health Care Facility Financial Data (JLCAR Deadline July 19, 2010.) |
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(c) FP 2010-43 |
Former
Division of Human Services - Co-Payments (JLCAR Deadline July 19, 2010.) |
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(d)
FP 2010-44 |
Former Division of Mental Health and
Developmental Services Community Mental Health Services (JLCAR
Deadline July 19, 2010.) |
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(e) FP 2010-45 |
Former
Division of Mental Health and Developmental Services Children's
Special Medical Services (JLCAR Deadline July 19, 2010.) |
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(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:
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No |
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Rep.
Schmidt |
X |
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Rep.
Gottling |
X |
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Rep.
Millham |
X |
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Rep.
Boyce |
X |
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Rep.
Pilotte |
X |
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Sen.
Cilley |
X |
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Total |
6 |
0 |
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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
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 |
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(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.) |
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(b)
FP 2010-26 |
Commissioner Submission of Health Care Facility
Financial Data (JLCAR Deadline July 19, 2010.) |
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(c) FP 2010-43 |
Former Division
of Human Services (JLCAR Deadline July 19, 2010.) |
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(d) FP 2010-44 |
Former
Division of Mental Health and Developmental Services Community Mental
Health Services (JLCAR Deadline July 19, 2010.) |
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(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.