CHAPTER Plc
100 ORGANIZATIONAL RULES
PART Plc 101 DEFINITIONS
Plc
101.01 “Board” means “board” as defined
in RSA 310:2, I(a), namely “a board, council, commission, committee, or other
regulatory body with jurisdiction over professions listed in paragraph
II.” The term includes the executive
director if the board is an advisory board or if the applicable statute does
not establish a board.
Source. #12863, eff
9-4-19; ss by #13293, eff 11-24-21; ss by #13797,
eff 10-26-23 (formerly Plc 101.05)
Plc
101.02 “Executive director” means the
executive director of the office of professional licensure and certification or
designee.
Source. #13293, eff 11-24-21; ss by #13797,
eff 10-26-23
(formerly Plc 101.01)
Plc
101.03 “License” means “license” as
defined in RSA 541-A:1, VIII, namely “the whole or part of any agency permit,
certificate, approval, registration, charter or similar form of permission
required by law.”
Source. #12863, eff 9-4-19;
ss by #13293, eff 11-24-21 (formerly Plc 101.02); ss by #13797,
eff 10-26-23 (formerly Plc 101.02)
Plc
101.04 “Office of professional licensure
and certification (OPLC)” means the New Hampshire office of professional
licensure and certification established by RSA 310.
Source. #13293, eff 11-24-21; ss by #13797, eff 10-26-23
(formerly Plc 101.03)
Plc
101.05 “Office of the executive
director” means the legal authority conferred by law on the executive director
as implemented by OPLC staff who are not assigned to the division of licensing
and board administration or the division of enforcement.
Source. #13293, eff 11-24-21; 21; ss by #13797, eff 10-26-23 (formerly Plc 101.04)
Plc
101.06 “Telephone number” means a
10-digit number that is assigned to a particular telephone and used in making connections
to it.
Source. #13506, eff 12-16-22; ss by #13797, eff 10-26-23
PART Plc 102 DESCRIPTION OF OFFICE
Plc
102.01 Office of Professional
Licensure and Certification - Purpose.
The OPLC’s
purpose is to safeguard the public health, safety, welfare, environment, and
the public trust of the citizens of the State of New Hampshire by promoting
efficiency and economy in the administration of the business processing,
recordkeeping, and other administrative and clerical operations of the boards
identified in RSA 310:2, II.
Source. #12863, eff 9-4-19; ss by #13293, eff
11-24-21; ss by #13797, eff 10-26-23
Plc
102.02 Authority of the Executive
Director.
(a)
RSA 310:4, I, authorizes the executive director to:
(1)
Employ such clerical or other assistants as are necessary for the proper
performance of the office's work;
(2)
Make expenditures for any purpose that the executive director determines
are reasonably necessary for the proper performance of the OPLC’s duties under
RSA 310; and
(3)
Contract for the services of investigators, presiding officers, legal
counsel, and industry experts as necessary and in consultation with the
appropriate board.
(b)
RSA 310:4, II authorizes the executive director to, among other duties:
(1)
Examine applicants, process applications, and issue or deny licenses for
all license types, based on objective standards developed by the boards and
adopted as rules in accordance with RSA 541-A;
(2)
Investigate all complaints of professional misconduct in accordance with
RSA 310:9; and
(3)
Draft and coordinate rulemaking for all boards in accordance with RSA
541-A, with the advice and recommendations of the boards.
(c)
RSA 310:6 authorizes the executive director to adopt rules pursuant to
RSA 541-A for:
(1)
All fees set forth in RSA 310:5, with the advice and recommendations of
the respective board;
(2)
Such organizational and procedural rules necessary to administer the
boards, including rules governing the administration of complaints and
investigations, hearings, disciplinary and non-disciplinary proceedings,
inspections, payment processing procedures, and application procedures;
(3)
The rate of per diem compensation and reimbursable expenses for all
boards;
(4)
Rules governing the professionals’ health program as set forth in RSA
310:5; and
(5)
Temporary licensure of out-of-state health care professionals who
present evidence of an active license in good standing from another
jurisdiction.
Source. #12863, eff 9-4-19; ss by #13293, eff
11-24-21; ss by #13797, eff 10-26-23
Plc 102.03 Office Hours, Office Location, and Contact
Information.
(a)
The OPLC is located at 7 Eagle Square, Concord, New Hampshire.
(b)
The OPLC’s normal business hours, during which it is open to the public,
are 8:00 a.m. to 4:00 p.m. on weekdays, excluding days on which state offices
are closed in observance of holidays.
(c)
Correspondence shall be addressed to the OPLC at:
New
Hampshire Office of Professional Licensure and Certification
7
Eagle Square
Concord,
NH 03301-4980.
(d)
The OPLC’s main telephone number is (603) 271-2152.
(e)
The OPLC’s TDD access number is relay NH 1-800-735-2964.
(f)
The OPLC’s website URL is www.oplc.nh.gov.
(g)
General inquiries may be directed to CustomerSupport@oplc.nh.gov.
Source. #12863, eff 9-4-19; ss by #13293, eff
11-24-21; ss by #13797, eff 10-26-23
Plc 102.04 OPLC Organizational Structure. The OPLC comprises:
(a)
The office of the executive director, described in Plc 102.05;
(b)
The division of licensing and board administration, described in Plc
102.06; and
(c)
The division of enforcement, described in Plc 102.07.
Source. #12863, eff 9-4-19; ss by #13293, eff
11-24-21; ss by #13797, eff 10-26-23
Plc
102.05 Office of the Executive
Director. The office of the
executive director is responsible for implementing the authority conferred on
the executive director by RSA 310 that has not been delegated to the division
of licensing and board administration or the division of enforcement, including
but not limited to:
(a) Human resource functions;
(b) All business administration and accounting
functions, including but not limited to:
(1) Supervision of the purchase of all equipment,
materials, supplies, and services;
(2) Management of the agency’s fleet vehicles; and
(3) Maintenance of the OPLC’s equipment and
consumable inventory;
(c) Establishing a retention policy for the
retention and disposal of records of the OPLC and the boards; and
(d) Adopting, maintaining, and implementing the
rules authorized by RSA 310:6.
Source. #12863, eff 9-4-19; ss by #13293, eff
11-24-21; ss by #13797, eff 10-26-23
(formerly Plc 102.06)
Plc
102.06 Division of Licensing and
Board Administration.
(a) The division of licensing and board
administration supports the licensing and administrative functions of the OPLC
and the boards, including but not limited to:
(1) Processing applications for licensure;
(2) Issuing licenses to qualified applicants and
referring applicants whose applications cannot be approved to the relevant
board;
(3) Notifying licensees of the pending expiration
of their licenses as required by RSA 310:8, IV;
(4) Supporting the meetings held by each board,
including ensuring that the notice required by RSA 91-A is given;
(5)
Supporting adjudicative proceedings initiated in accordance with Plc
200; and
(6) Maintaining the records of each board as
required by RSA 91-A.
(b) Except for boards that are advisory boards,
the boards are separate and distinct for the purpose of regulating various
professions and protecting the public health, safety, welfare, environment, and
the public trust.
Source. #12863, eff 9-4-19; ss
by #13293, eff 11-24-21; ss by
#13797, eff 10-26-23 (formerly Plc 102.04)
Plc
102.07 Division of Enforcement. The division of enforcement supports the
compliance, investigative, and disciplinary functions of the OPLC and the boards,
including but not limited to:
(a) Conducting inspections of places where
regulated professions are practiced to determine compliance with the standards
established by the boards, whether in connection with an application for
licensure or on an on-going basis;
(b) Conducting inspections of mechanical and
electrical installations in locations where the local authority has requested
assistance;
€ Reviewing allegations of misconduct to
determine whether the allegation is viable and recommending the board dismiss
the allegation if it is not viable, in accordance with RSA 310:9, II;
(d) Investigating viable allegations of
misconduct, whether on its own initiative or upon receiving a written
complaint, in accordance with RSA 310:9, III; and
€ Supporting adjudicative proceedings initiated
in accordance with Plc 200.
Source. #12863, eff 9-4-19; ss by #13293, eff
11-24-21; ss by #13797, eff 10-26-23
(formerly Plc 102.05)
PART
Plc 103 REQUESTS FOR INFORMATION AND
ACCESS TO RECORDS
Plc 103.01 Requests for Information or Access to
Records.
(a)
Requests for access to governmental records pursuant to RSA 91-A:4 shall
be made directly to the executive director by sending a request with the
information specified in Plc 103.02 either:
(1) Electronically, to righttoknow@oplc.nh.gov;
or
(2) By mail or other delivery to the address
specified in Plc 102.03(c).
(b)
Requests for other records shall be addressed to the executive director
or directly to the division that is responsible for the records being
requested.
Source. #12863, eff 9-4-19; ss by #13293, eff
11-24-21;
ss by #13797,
eff 10-26-23
Plc 103.02 Contents of Requests for Access to Records. The request for access to governmental
records shall contain as much information as the requestor can provide to
reasonably describe the records, including but not limited to:
(a)
The type of record(s) sought, such as meeting minutes, orders, or
reports;
(b)
The date or date range the records were created, such as “April 2021” or
“from January 1, 2019 through December 31, 2022”;
(c)
The board, specific profession, or topic to which the records relate,
for example “the Funeral Board”, “midwives”, or “reports filed with the
Legislature or Governor’s Office”; and
(d)
If records of a specific licensee are sought, as much information as the
requestor has to identify the licensee, including name, location of practice,
and license number.
Source. #13797, eff 10-26-23
CHAPTER
Plc 200 PRACTICE AND PROCEDURE
Statutory
Authority: RSA 310-A:1-d, II(h)(2); RSA 541-A:16, I(b)
REVISION NOTE:
Document
#13427, effective 8-4-22, readopted with amendments Part Plc 201 through Plc
213 in Chapter Plc 200 and renumbered the rules as Part Plc 201 through Part
Plc 211. Document #13391 extensively
reorganized the rules within the former Part Plc 201 through Part Plc 213,
which had first been filed under Document #12863, eff
9-4-19. Document
#13427 also adopted new rules; Part Plc 212 titled “Waiver of Procurement
Provisions” and Part Plc 213 titled “Disciplinary Proceedings; License
Conditions.”
As practice and procedure rules, the
rules in Document #13427 will not expire except pursuant to RSA 541-A:17, II.
PART
Plc 201 PURPOSE AND SCOPE
Plc 201.01 Purpose.
(a) The purpose of
the various proceedings undertaken pursuant to this chapter is to acquire sufficient
information to make fair and reasoned decisions on matters within the statutory
jurisdiction of the office of professional licensure and certification (OPLC)
or other regulatory authority undertaking the proceeding.
(b)
The purpose of this chapter is to provide:
(1) Uniform procedures for the
conduct of adjudicative proceedings and non-adjudicative proceedings;
(2) Uniform procedures for the
submittal, review, and disposition of complaints, rulemaking petitions,
requests for explanation of adopted rules, requests for declaratory rulings,
waivers of rules, and waivers of procurement provisions under RSA 21-G:37;
(3) Procedures for
investigations, settling matters without adjudicative hearings, and
disciplinary proceedings; and
(4) Uniform criteria for
suspending, revoking, or refusing to issue or renew licenses issued by the
regulatory authority.
(c) These rules are intended to supplement the
requirements of RSA 541-A and any procedures or criteria expressly set forth in
the practice act of a regulatory authority or in RSA
310-A:1-j through RSA 310-A:1-n.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 201.02 Applicability.
(a) The definitions in Plc 202 and rules in Plc
203 shall apply to all administrative proceedings conducted by the by the OPLC
or other regulatory authority, as described in Plc 204 through Plc 213, and
shall be in addition to applicable requirements of RSA 541-A and the rules set
forth in Plc 204 through Plc 213 as applicable to a specific type of
proceeding.
(b) This chapter
shall apply to the following professions, as regulated directly by the OPLC:
(1) Body art;
(2) Court reporters;
(3) Electrology;
(4) Massage therapy;
(5) Medical imaging and radiation therapy;
(6) Ophthalmic dispensing;
(7) Recreational therapy;
(8) Reflexology, structural integration, and
Asian bodywork therapy; and
(9) Respiratory care practice.
(c) This chapter
also shall apply to the boards, commissions, and
councils listed in RSA 310-A:1-a, I, hereinafter referred to as “supported
boards, commissions, and councils”, provided that these rules shall not
supplant or supersede any procedures expressly set forth in the practice act of
the supported board, commission, or council.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART
Plc 202 DEFINITIONS
Plc 202.01
“Adjudicative proceeding” means “adjudicative proceeding” as defined in
RSA 541-A:1, I, reprinted in Appendix B.
The term includes “disciplinary proceeding” and “emergency proceeding”.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.02
“Appearance” means a written notification to the regulatory authority
that a person or a person’s representative intends to actively participate in a
proceeding.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.03
“Applicable law” means the statute(s), rules, standing orders, and case
law, if any, under which a profession is regulated in New Hampshire.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.04
“Complaint” means a communication of alleged misconduct containing
information that, if true, could violate ethical codes or other applicable law.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.05 “Data”
means all information relevant to an investigation, including but not limited
to:
(a) Oral or written
descriptions provided by a complainant or witness;
(b) Reports obtained
in the course of the investigation;
(c) Maps, charts,
drawings, and photographs obtained or created in the course of the
investigation;
(d) Audio or video
recordings obtained or created in the course of the investigation; and
(e)
Computer programs or computer printouts obtained or created in the
course of the investigation or otherwise used to analyze other information
obtained.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.06 “Disciplinary proceeding” means an
adjudicative proceeding commenced by a regulatory authority for the purpose of
determining whether to suspend, revoke, or refuse to renew a license or to
impose other sanctions.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
202.07 “Emergency proceeding” means an adjudicative
proceeding initiated by a regulatory authority pursuant to RSA 541-A:30, III,
or pursuant to the regulatory authority’s practice act if applicable, to
address a threat to public health, safety, or welfare that requires emergency
action.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.08 “Enforcement division” means the division of
enforcement of the OPLC established by RSA 310-A:1-a.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.09 “Executive director” means the executive
director of the OPLC or designee.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.10 “File” as a verb means to place a document in
the actual possession of a regulatory authority.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.11
“File electronically”, for other than applications for a license and
related documents that can be filed using the on-line licensing portal, means
to file a document by:
(a)
Using the electronic filing system available at https://www.oplc.nh.gov when it becomes available; or
(b)
Until an electronic filing system becomes available, by sending an email
with documents attached in portable document format (pdf) in accordance with
Plc 203.02 or Plc 204.02, as applicable.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
202.12 “Hearing” means a component of a
proceeding, through which the regulatory authority receives testimony,
evidence, arguments, or comments, or any combination thereof. The term includes hearings conducted
in-person and hearings conducted in-person with remote participation.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
202.13 “Intervenor” means a person
allowed by the presiding officer to intervene in an adjudicative proceeding
pursuant to RSA 541-A:32.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.14 “Investigation” means a gathering of data by
a regulatory authority concerning matters within its jurisdiction.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.15 “Investigator” means an individual designated
by the regulatory authority to conduct an investigation or oversee the
activities of the professional conduct investigators, or both.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.16 “License” means “license” as defined in RSA
541-A:1, VIII, reprinted in Appendix B.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.17 “Licensee” means a person who holds a
license, certification, registration, or other form of approval required by law
to engage in a profession regulated by the OPLC or a supported board,
commission, or council.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.18 “Motion” means any request to the presiding
officer for an order or ruling directing some act to be done in favor of the
participant making the motion, including a statement of justification or
reason(s) for the request.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
202.19 “Oral adjudicative hearing” means
a trial-type hearing that is part of an adjudicative proceeding and is held at
a specific time for the purpose of receiving live testimony from witnesses,
together with any evidence and argument that is presented. The term includes oral adjudicative hearings
conducted in-person and conducted in-person with remote participation.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
202.20 “Oral public hearing” means a legislative-type
hearing that is part of a non-adjudicative proceeding, that is held for the
purpose of receiving oral or written comments, or both, from the public. The term includes oral public hearings
conducted in-person and conducted in-person with remote participation.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.21 “Order” means a document issued by the
regulatory authority or a presiding officer to:
(a) Establish procedures to be followed in an adjudicative
or non-adjudicative proceeding;
(b) Grant or deny a petition or motion;
(c) Require a person to do something, or to
abstain from doing something, as a result of an adjudicative proceeding; or
(d) Determine a person’s rights to a license or
other privilege established by law.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
202.22 “Participant” means:
(a) For an adjudicative proceeding, a respondent,
respondent’s representative, intervenor, intervenor’s representative, or
prosecutor for that adjudicative proceeding; or
(b) For a non-adjudicative proceeding, any person
who attends or otherwise participates in the oral public hearing or submits
comments in writing on paper or by e-mail, or both.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
202.23 “Participants” means:
(a) For an adjudicative proceeding, all
respondent(s), respondent’s representative(s), intervenor(s), intervenor’s representative(s),
and prosecutor(s) for that adjudicative proceeding; or
(b) For a non-adjudicative proceeding, the
collective group of individuals who attend or otherwise participate in the
public hearing held on the matter or provide comments orally or in writing on
paper or by e-mail, or any combination thereof.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.24 “Petition” means any request to a regulatory
authority seeking an order or any other action for relief other than a license
application or a motion.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.25 “Practice act” means the statute(s) that
confers authority on the OPLC or on a supported board, commission, or council
to regulate a specific profession.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.26 “Presiding officer” means the individual who
has been designated by a regulatory authority to preside over some or all
aspects of a proceeding.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
202.27 “Proceeding” means the totality
of the handling of a matter, including the initiation, review, hearing,
decision, and, if applicable, reconsideration of the matter. A proceeding can be either adjudicative or
non-adjudicative.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.28 “Prosecutor” means the individual appointed
by a regulatory authority to present the evidence collected in an investigation
in a proceeding related to licensee misconduct allegations.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.29 “Regulatory authority” means the OPLC or a
supported board, commission, or council that has the statutory authority to
regulate the conduct of persons who are or seek to be
licensed in the profession within the regulatory authority’s jurisdiction,
which in the case of the professions listed in Plc 201.02(b) is the OPLC.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
202.31 “Respondent” means:
(a) For purposes of a disciplinary proceeding,
the person who holds the license or who has applied for renewal of a license;
(b) For purposes of an administrative fine
proceeding, the person against whom the regulatory authority proposes to impose
an administrative fine; or
(c) For any other action initiated under Plc 200,
the person against whom the regulatory authority proposes to take the action.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 202.33 “Working day” means any Monday through
Friday, excluding days on which state offices are closed in observance of holidays.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 203 PROVISIONS APPLICABLE TO ALL PROCEEDINGS
Plc
203.01 Computation of Time.
(a) Unless otherwise specified, all time periods
referenced in this chapter shall be calendar days.
(b) Computation of any period of time established
in these rules shall begin with the day after the action that sets the time
period in motion and include the last day of the period so computed.
(c) For time periods not established in statute, if the last day of the period so computed does not fall on a working
day, then the time period shall be extended to include the first working day following.
(d) Time periods established in statute shall be
determined as specified in the statute.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 203.02 Filing
of Documents with the OPLC or Other Regulatory Authority; Service in
Non-Adjudicative Proceedings.
(a) A document shall
be considered filed when it is actually received by the regulatory authority to
which it is addressed, whether filed electronically or on paper, and facially
conforms to applicable rules.
(b)
A document that does not, on its face, comply with applicable rules shall not be
accepted for filing. In such cases, the
sender shall be notified of the deficiencies without prejudice to subsequent
acceptance if the deficiencies are corrected and the document is refiled within
any applicable time period.
(c) All
correspondence, filings, or communications intended for the OPLC shall be
addressed to the OPLC in care of the executive director’s administrative
assistant.
(d) All
correspondence, filings, or communications intended for any other regulatory
authority shall be addressed to that regulatory authority in care of its board
administrator.
(e) Until an
electronic filing system becomes available, documents other than applications
and appeal-related documents may be filed electronically to customersupport@oplc.nh.gov.
(f) Subject to (g),
below, all petitions, motions, exhibits, memoranda, or other documents filed in
connection with a request for action by a regulatory authority shall be filed
with an original and one copy if filed in hard copy.
(g) Only the original or another single copy shall be filed of:
(1) Transmittal letters;
(2) Requests for public
information;
(3) License applications; and
(4) A complaint against a
licensee or against a person who is engaging in a regulated profession without
the requisite license.
(h) Applications and petitions for rulemaking
shall be filed with the regulatory authority without service upon other
persons.
(i) Petitions for
declaratory ruling shall be filed with the regulatory authority with service on
persons who would be directly affected by the ruling, as required by Plc
210.02(c).
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 203.03 Date of Issuance or Filing.
(a) All orders, decisions, notices, or other
written correspondence or documents issued by or at the direction of a
regulatory authority shall be deemed to have been issued on the date noted on
the document.
(b) All correspondence, petitions, applications,
requests for findings of fact and conclusions of law, motions, requests for
reconsideration, and any other written documents shall be deemed to have been
filed with or received by the regulatory authority or, for filings in an
adjudicative proceeding, the presiding officer to which it is addressed, on the
actual date of receipt by the addressee, as evidenced by a date stamp placed on
the document by the addressee in the normal course of business or the date the
addressee receives the electronic filing.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 204
COMPLAINTS; INVESTIGATIONS
Plc 204.01
Purpose and Applicability.
(a) The purpose of this part is to establish the
procedures that apply to the filing of complaints against a licensee or against
a person who is engaging in a regulated profession without the requisite
license and the procedures that will be followed to investigate such
complaints.
(b) This part shall apply to complaints against
individuals and businesses engaged in any of the professions regulated by the
OPLC or other regulatory authority.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 204.02 Filing a Complaint.
(a)
Individuals wishing to file an official complaint against a licensee or against a
person believed to be engaging in a regulated profession without the requisite
license shall do so by submitting a written complaint as provided in this part.
(b) Complaints shall
be filed:
(1) With the OPLC at Complaints@oplc.nh.gov or directly with the
regulatory authority; and
(2) As promptly as reasonably possible after the
conduct occurs or is otherwise discovered, so that it is more likely that any
relevant records still exist and the recollections of witnesses are more likely
to be reliable.
(c) The regulatory
authority shall notify the person who is the subject of the complaint of the
complaint unless doing so would jeopardize:
(1) The safety of the complainant or any other
individual; or
(2) The process of a criminal investigation.
(d) If the OPLC
receives a complaint relating to a profession regulated by
another regulatory authority or by a board,
commission, or council that is not a supported board, commission, or
council, the OPLC shall forward the complaint and response, if any, to that
board, commission, or council for action under that authority’s rules.
(e) All
communications of alleged misconduct filed under this part shall:
(1) Contain the information specified in Plc
204.03; and
(2) Be signed and dated by the individual making
the complaint or by a duly-authorized representative of such individual,
provided that for documents filed electronically, the act of filing shall
constitute the signature and the date the transmission is sent shall be the
date of the complaint.
(f) The signature on
a complaint filed pursuant to this part shall constitute certification that:
(1) The signer has read the complaint;
(2) The signer is authorized to
file the complaint;
(3) To the best of the signer’s
knowledge and belief, there are good grounds to support the complaint; and
(4) The complaint has not been
filed for purposes of harassment or delay in any active or contemplated
administrative, civil, or criminal proceeding.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 204.03 Required Contents of Complaint. A complaint shall include:
(a) Identification of the profession to which the
conduct being complained of relates;
(b) The name of the individual or business that
is alleged to have engaged in the conduct complained of;
(c) If known, the type and license number of the
license held by such individual or business, if any;
(d) A clear and concise statement of the facts on which the complaint is
based, including but not limited to the following for each occurrence of the
conduct being complained of:
(1) A description of the specific conduct that forms the basis of the complaint;
(2) The date and time the
conduct occurred, provided that if the conduct occurred on more than one
occasion, the date and time of the most recent occurrence may be provided with
a statement of the overall time frame in which the conduct occurred and the
number of times the conduct was repeated;
(3) The location or locations where the conduct
occurred; and
(4) Whether there were any other
individuals present when any instance of the conduct occurred and, if known,
the name of and contact information for each such witness or observer;
(e) Information
about the individual who is making the complaint, including:
(1) The complainant’s first and last name;
(2) The telephone number including
area code and extension, if any, at which the complainant can be reached during
normal daytime business hours; and
(3) The complainant’s email address and mailing
address; and
(f) Whether the
complainant has:
(1) Attempted to resolve the complaint with the
licensee;
(2) Retained an attorney in the matter, and if so
the name, address, email address, and telephone number including area code of
the attorney; and
(3) Reported the complaint to any other local, state,
or federal agency and if so, the agency’s name and the name, email address, and
telephone number of a contact to whom the complaint was made, if known.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
204.04 Initiation and Conduct of Investigations.
(a) A regulatory authority shall authorize or conduct such
investigations as the regulatory authority deems necessary to examine acts of
possible misconduct that come to the regulatory authority’s attention through
complaints or other means, as provided in RSA 310-A:1-j.
(b) The initiation of an investigation shall not
constitute or be deemed to commence a disciplinary proceeding.
(c) The initiation of an investigation shall not
constitute an allegation of misconduct against a licensee.
(d) When an investigation occurs, an investigator
shall contact such persons, conduct such inspections, and examine such records
and other documents as are reasonably necessary to make a recommendation as to
whether further action should be taken based on the allegations in question.
(e) Investigations, including those based upon
allegations in a complaint, shall be conducted on an ex parte
basis.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 204.05 Subpoenas For Investigations.
(a) Subpoenas issued by the executive director
for purposes of conducting an investigation shall be issued as provided in RSA
310-A:1-j, IV(d).
(b) Subpoenas issued by any other regulatory
authority for purposes of conducting an investigation shall be issued as
provided in the authority’s practice act or RSA 310-A:1-j, IV(d).
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 204.06 Investigation Reports.
(a) Upon completion of an investigation, the
investigator shall:
(1) Make a written report to the
regulatory
authority of the data gathered as a result of the investigation; and
(2) Provide a recommendation to the
regulatory
authority as to whether there is a reasonable basis to proceed with a
disciplinary proceeding.
(b) As provided in RSA 310-A:1-j, III, the
following information obtained during investigations shall be held confidential
and shall be exempt from the disclosure requirements of RSA 91-A:
(1) Complaints received by the
OPLC or other regulatory authority;
(2) Information and records
acquired during an investigation; and
(3) Reports and records made by
the investigator or regulatory authority as a result of an investigation.
(c)
Investigation reports, exclusive of any legal analyses contained
therein, and all data gathered by an investigator shall be provided in any
adjudicative proceeding resulting from the investigation to:
(1) The respondent and
respondent’s representative;
(2) Each intervenor and
intervenor’s representative; and
(3) The prosecutor.
(d) The regulatory authority shall also provide, upon request, the
confidential information gathered in an investigation to:
(1) Law enforcement agencies;
(2) Boards or agencies relating
to the respondent’s profession in other jurisdictions in which the respondent
is licensed or is applying to be licensed;
(3) Investigators and
prosecutors in the same or related disciplinary matters;
(4) Expert witnesses or assistants
retained by the prosecutor or investigators in the same or related disciplinary
matters; and
(5) Persons to whom the licensee
has given a release.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 205 SETTLEMENT
PROCEDURES; NON-DISCIPLINARY REMEDIAL ACTIONS
Plc
205.01 Purpose and Applicability.
(a) The purpose of this part is to establish the
criteria and procedures for settling a matter without the need for an
adjudicative hearing.
(b) This part shall apply to any matter in which
an investigation determines that there is a basis to proceed with a
disciplinary proceeding, subject to the time limitations in RSA 310-A:1-j, VI,
reprinted in Appendix C.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
205.02 Definitions.
(a)
“Confidential letter of concern” means a non-disciplinary written letter
from a regulatory authority to a licensee to draw the licensee’s attention to
specific acts or omissions that could place the licensee at risk of future
disciplinary action if the acts or omissions are repeated or otherwise
continue.
(b)
“Consent order” means a written order, issued by the regulatory
authority with the consent of the licensee, that contains stipulated facts and
imposes disciplinary actions that have been consented to by the licensee to
resolve specific allegations of licensee misconduct.
(c)
“Preliminary agreement not to practice (PANP)” means an agreement
between a respondent and a regulatory authority that the respondent will
refrain from practicing until any disciplinary proceeding that results from a
pending or completed investigation is resolved.
(d)
“Treatment program” means a program, including but not limited to a
professionals’ health program under RSA 310-A:1-e, I-a, in which an individual
receives medical or psychological treatment, or both, or another appropriate
form of intervention or monitoring, to assist the individual in overcoming a
condition that has impaired the individual’s ability to practice competently
and safely.
(e)
“Voluntary surrender” means the relinquishment by a licensee of the
right to practice a profession without a formal adjudication of misconduct.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
205.03 Actions Upon Receipt of
Investigation Report. Upon the
receipt of an investigation report, the regulatory authority shall:
(a) Dismiss the action, if the investigation does
not reveal that misconduct occurred;
(b) Dismiss the action and issue a confidential
letter of concern, if the investigation shows that:
(1)
The licensee’s actions constituted misconduct, but occurred under
conditions that suggest the licensee would not, under normal circumstances,
engage in the conduct and the actions have not been repeated; or
(2)
It might not be possible to prove in an adjudicative hearing that the
licensee engaged in the actions, even though a reasonable person would
conclude, based on the totality of the evidence, including evidence that might
not be admissible at a hearing, that the licensee did engage in the actions; or
(c) Commence an adjudicative proceeding.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
205.04 Consent Orders; Review of
Proposed Settlement Terms.
(a)
If a disciplinary proceeding is initiated and discussions between the
prosecutor and the respondent result in an agreement on the facts that
constitute the basis for sanction(s) and on the appropriate sanction(s),
including but not limited to diversion to a treatment program, voluntary
surrender, limitations on the scope of practice, or suspension, the agreement
shall be written as a proposed settlement agreement and presented to the
regulatory authority for review, as required by RSA 310-A:1-k, III.
(c)
If the regulatory authority agrees with the terms of the proposed
settlement agreement, the regulatory authority shall:
(1) Approve the settlement agreement and issue it
as a consent order of the regulatory authority, if the matter did not arise
from a complaint; or
(2) If the matter did arise from a complaint,
approve the settlement agreement and issue it as a provisional consent order,
then proceed in accordance with (d)-(g), below.
(d)
To provide the opportunity for comment required by RSA 310-A:1-k, III,
if the matter resulted from a complaint, the regulatory authority shall notify
the complainant of:
(1) The terms on which the matter is proposed to
be resolved; and
(2) The deadline for submitting written comments
on the proposed terms, which shall be no sooner than 14 days from the date of
the notice.
(e)
If notice is provided to a complainant pursuant to (d), above, and no
comments are received from the complainant, the consent order shall become
final 30 days after issuance under (c)(2), above.
(f)
If comments are received from the complainant, the presiding officer
shall review the comments and:
(1) If the comments indicate the complainant’s
agreement with the terms or if the comments do not demonstrate potential
fundamental flaws or errors in the proposed terms, approve the proposed
settlement agreement, resulting in the consent order becoming final 30 days
after issuance under (c)(2), above; or
(2) If the comments demonstrate potential
fundamental flaws or errors in the proposed terms, present the comments to the
regulatory authority for review, resulting in the consent order not becoming
final automatically, provided that for purposes of this section, “fundamental
flaws or errors” means mistakes of law or of material fact that, if corrected,
would result in the proposed terms being unacceptable given the nature and
severity of the actual underlying violation(s).
(g)
After reviewing comments received pursuant to (f)(2), above, the
regulatory authority shall:
(1) Affirm the provisional consent order, if it
determines after further review that no fundamental flaws or errors are
present, resulting in the consent order becoming effective as of its
confirmation; or
(2) Revoke the provisional consent order and
schedule the matter for an adjudicative hearing, if it determines after further
review that there are fundamental flaws or errors in the terms.
(h)
If the regulatory authority to which comments are submitted pursuant to
(f)(2), above, revokes the provisional consent order as a result of the
comments and schedules the matter for an adjudicative hearing, the terms of the
proposed settlement agreement and provisional consent order shall not be made
part of any record and the respondent shall not be bound by any terms of the
proposed settlement agreement or provisional consent order.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
205.05 PANP, Voluntary Surrender Not
an Admission of Wrongdoing.
(a) A PANP shall not constitute an admission of
wrongdoing by the licensee.
(b) The voluntary surrender of a license shall
not, in and of itself, constitute an admission of wrongdoing by the licensee.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
205.06 Non-Disciplinary Remedial
Actions.
(a) As provided in RSA 310-A:1-k, VII, a
regulatory authority “may take non-disciplinary remedial action against any
person licensed by it upon finding that the person is afflicted with physical
or mental disability, disease, disorder, or condition deemed dangerous to the
public health.”
(b) For purposes of this section, the following
definitions shall apply:
(1)
“Deemed dangerous to the public health” means that the affliction or
condition causes the licensee to be incapable of behaving in conformity with
accepted professional standards for the profession in which the licensee
practices; and
(2)
“Unacceptable threat to public health, safety,
or welfare” means that the threat posed by the licensee to the life,
health, or safety of individuals with whom the licensee interacts in a
professional capacity is greater than the licensee’s interests in retaining his
or her license.
(c) In order to take non-disciplinary remedial
action, the regulatory authority shall:
(1)
Provide notice and an opportunity for an adjudicative hearing to the
licensee; and
(2)
Only take the action after making an affirmative finding that:
a.
The licensee is afflicted with a physical or mental disability, disease,
disorder, or condition deemed dangerous to the public health; and
b.
Allowing the licensee to continue to practice would create an
unacceptable threat to public health, safety, or welfare.
(d) The action taken by the regulatory authority
shall be the least restrictive action that will address the affliction or
condition and abate the threat.
(e) The regulatory
authority shall take non-disciplinary remedial action as specified in RSA
310-A:1-k, VII(a)-(c), reprinted in Appendix C, provided that the regulatory
authority shall revoke the license only if the findings required by (b)(2),
above, are made based on clear and convincing evidence.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 206 ADJUDICATIVE PROCEEDINGS
Plc 206.01 Applicability. The rules in Plc 206 shall apply to any
proceeding initiated by a regulatory authority under the regulatory authority’s
specific statutory authority to:
(a) Suspend, revoke,
or refuse to renew a license or impose an administrative fine, or both; or
(b) Conduct a
hearing to determine whether to issue an initial license.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 206.02 Contact
Information Updates Required; Specify Whether Email Service is Acceptable.
(a) Any participant
in an adjudicative proceeding and any person who has filed a motion for
reconsideration shall maintain a current mailing address, daytime telephone
number including area code, and personal e-mail address on file with the
presiding officer until completion of the matter.
(b) Each participant
other than the prosecutor shall indicate whether or not service of documents
using the email address provided will be accepted.
(c) The prosecutor
shall accept service via email.
(d) Notices mailed
by first class mail, postage prepaid, to the address on file with the presiding
officer shall be presumed to have been received by the addressee.
(e) Emails sent to
the email address on file with the presiding officer for which no delivery
failure notification is received shall be presumed to have been received by the
addressee, provided that service of documents under Plc 206.11 shall be by
email only if the participant has indicated that service will be accepted by
email.
(f) For purposes of
this section, “completion of the matter” means the later of:
(1) The date compliance is achieved or the fine
is paid, if applicable;
(2) The expiration of the time period allowed by
law for appealing the decision, if no appeal is filed within that time; or
(3) The date of the final decision on the last
appeal taken.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 206.03 Presiding
Officer Appointment and Authority.
(a) All hearings in any adjudicative proceeding
initiated by the OPLC shall be conducted by the executive director or designee,
sitting as presiding officer.
(b) All hearings in
any adjudicative proceeding initiated by any other regulatory authority under
this chapter shall be conducted by the individual authorized by that regulatory
authority to serve as presiding officer.
(c) The presiding
officer shall as necessary:
(1) Regulate and control the course of a hearing;
(2) Facilitate an informal resolution of the
subject matter of the hearing;
(3) Administer oaths and affirmations;
(4) Issue or request the regulatory authority to
issue subpoenas to compel the attendance of witnesses at hearings or the
production of documents, if so authorized by law;
(5) Receive relevant evidence at hearings and
exclude irrelevant, immaterial, or unduly repetitious evidence;
(6) Rule on procedural requests, including
adjournments
or continuances,
at the request of a participant or on the presiding officer’s own motion;
(7) Question any individual who testifies;
(8) Cause a complete record of any hearing, as described in
RSA 541-A:31, VI, to be made; and
(9) Take any other action consistent with
applicable law necessary to conduct the hearing and complete the record in a
fair and timely manner.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.04 Withdrawal of Presiding Officer.
(a) Upon his or her
own initiative or upon the motion of any participant, the presiding officer
shall, for good cause, withdraw from any proceeding.
(b) If the request
to withdraw is made by a participant, the motion shall contain or be
accompanied by sworn testimony or other evidence to support the motion.
(c) Good cause shall
exist if the presiding officer:
(1) Has a direct interest in the outcome of a
proceeding, including but not limited to a financial or family relationship
with any participant;
(2) Has made statements or engaged in behavior,
other than voting upon matters relevant to the case, that objectively demonstrate that he or she has prejudged the facts of a
case; or
(3) Personally believes that he or she cannot
fairly judge the facts of a case.
(d) Mere knowledge of the issues, the
participants, or any actual or potential witness shall not constitute good
cause for withdrawal.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 206.05 Waiver
of Rules by Presiding Officer. The
presiding officer, upon his or her own initiative or upon the motion of any
participant, shall waive any requirement or limitation imposed by this chapter
upon reasonable notice to affected persons when the proposed waiver or
suspension appears to be lawful, and would be more likely to promote the fair,
accurate, and efficient resolution of issues pending before the regulatory
authority than would adherence to a particular rule or procedure.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 206.06 Commencement of Adjudicative Proceedings.
(a) Except for
emergency proceedings initiated as provided in Plc 206.07, the regulatory
authority shall commence an adjudicative proceeding by issuing a notice of
hearing to the respondent, the respondent’s attorney if known, and the
enforcement division, at least 15 days before the first scheduled hearing date
or first prehearing conference.
(b) The notice
commencing an adjudicative proceeding shall:
(1) Identify the docket number assigned to the
matter by the regulatory authority;
(2) Specify the date, time,
place, and nature of any hearing that has been scheduled;
(3) Summarize the subject matter
of the proceeding and identify the issues to be resolved;
(4)
Specify the legislative authority for the proposed action and identify
any applicable rules;
(5)
Specify the date by which, and the address to which, appearances or
motions by participants shall be filed;
(6)
Specify the date and time of an initial prehearing conference if one has
already been scheduled, together with the telephone number or log-in
information to be used to participate in the prehearing conference;
(7)
Identify the presiding officer for the proceeding;
(8)
Identify any special procedures to be followed;
(9)
Identify any confidentiality requirements applicable to the proceeding;
(10)
Specify that each respondent has the right to have an attorney represent
him or her at the respondent’s own expense;
(11)
Specify that each participant has the right to have the regulatory
authority provide a certified shorthand court reporter at the participant’s
expense and notify all participants that any such request be submitted in
writing at least 10 days prior to the proceeding, as provided in RSA 541-A:31,
III(f); and
(12)
Contain such other information or attachments as are warranted by the
circumstances of the case, including, but not limited to:
a.
Orders consolidating or severing issues in the proceeding with other
proceedings; and
b.
Orders directing the production or exchange of documents.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.07 Initiation and Conduct of
Emergency Proceedings.
(1)
A determination that there is a reasonable basis to believe that public
health, safety, or welfare requires emergency action, if the action is
commenced under RSA 541-A:30, III; or
(2)
Such determination as is required by the practice act under which the
action is commenced.
(b) If a regulatory authority commences an
emergency proceeding, the regulatory authority shall conduct an adjudicative
hearing within the time specified in the statute upon which the action is
based, which for actions commenced under RSA 541-A:30, III is not later than 10
working days after the date of the regulatory authority’s order suspending the
license, to determine whether to continue the suspension of the respondent’s
license pending a full adjudication of the matter.
(c)
The regulatory authority shall issue a notice of the date, time, and
place of the hearing to determine whether to continue the suspension that:
(1) Complies with Plc 206.06(b); and
(2) Includes a statement that offers of proof may
be made as provided in Plc 206.23.
(d)
A respondent may request the hearing held pursuant to (b), above, to be
delayed, which request shall be granted only if the respondent agrees to the
emergency suspension remaining in place until the regulatory authority issues
its decision after the hearing held pursuant to (b), above.
(e)
Except as provided in (f), below, at a hearing held pursuant to (b),
above, the prosecutor shall have the burden of proof by a preponderance of the
evidence that:
(1) Allowing the respondent to remain in practice
pending a full adjudication of the matter poses a threat to public health,
safety, or welfare,
based on the nature and severity of the alleged violations from which the
matter arose; and
(2) The threat to public health, safety, or
welfare outweighs the
respondent’s interests in continuing to practice.
(f)
If applicable law establishes different elements of proof, the
prosecutor shall have the burden of proof by a preponderance of the evidence on
each such element.
(g) The license suspension shall be continued
pending a full adjudication of the matter only if the prosecutor meets the
burden of proof established in (e) or (f), above, as applicable.
(1)
The prosecutor and the respondent agree to delay the proceeding; or
(2)
More time is needed to obtain information that is necessary to make a
final determination, provided that the hearing shall be held no later than 120
days from the date of the initial emergency suspension unless the information
is not available within that time due to:
a.
Reasons within the control of the respondent; or
b.
The pendency of a criminal prosecution arising from the same
circumstances as those on which the administrative proceeding is based.
(j) If a hearing is delayed pursuant to (i),
above, the presiding officer shall schedule a prehearing conference to request
a status report from the prosecutor and the respondent within 120 days of the
initial emergency suspension and at intervals no shorter than 60 days and no
longer than 90 days thereafter until a full adjudicative hearing is scheduled.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.08 Methods of Proceeding - Generally.
(a) If the
participants agree, the regulatory authority shall proceed as
follows:
(1) Where facts material to the subject matter of
the proceeding are in dispute, but personal observation of the witnesses or the
immediate opportunity for cross-examination of witnesses is not required, the
proceeding shall, to that extent, consist of the submission of affidavits and
memoranda; and
(2) Where no facts material to the subject matter
of the proceeding are in dispute the proceeding shall, to that extent, be
limited to the submission of memoranda that argue the conclusions the
participants wish the regulatory authority to draw from the undisputed facts.
(b) If the
participants do not agree to one of the methods of proceeding in (a), above,
the matter shall proceed to an oral adjudicative hearing.
(c) For proceedings
in any of the professions listed in Plc 201.02(b), the oral adjudicative hearing shall be conducted either by the executive director alone or,
if the executive director determines that the expertise of the advisory
committee or advisory board members, as applicable, is necessary, by a panel
consisting of the executive director and a minimum of 2 members of the relevant
advisory committee or advisory board.
(d) For proceedings in any other professions, the
oral adjudicative hearing shall be conducted in accordance with applicable law,
including but not limited to RSA 310-A:1-l, II, reprinted in Appendix C.
(e) A recording of the hearing shall be taken and
preserved. If requested by a
participant, the record of the proceeding shall be made by a certified
shorthand court reporter at the requestor’s expense, pursuant to RSA 541-A:31,
VII-a.
(f) If a participant has reason to participate
remotely, the participant shall file a motion no later than the deadline for
filing a witness list, or as much in advance as possible based on the
circumstances, which motion shall be granted if the presiding officer
determines that:
(1) The participant has access to equipment
necessary to enable remote participation; and
(2) The participant has demonstrated a compelling
reason or justification, including but not limited to circumstances beyond the participant’s
control that impair the participant’s ability to attend the hearing in person.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.09 Appearances and Representation.
(a) A respondent or the respondent’s representative
shall file an appearance that includes the following information:
(1) A brief identification of
the matter, including the docket number;
(2) A statement as to whether or
not the representative is an attorney and, if so, whether the attorney is
licensed to practice in New Hampshire;
(3) The respondent’s or
representative’s daytime address, telephone number including area code, and
email address; and
(4) Whether the respondent or
representative will accept service via email, provided that if the filing does
not so indicate, the presiding officer or designee shall contact the individual
filing the appearance to find out in lieu of rejecting the filing.
(b) The prosecutor shall file an appearance that
identifies:
(1) The matter in which the
prosecutor will be appearing; and
(2) A daytime address and
telephone number including area code and email address that can be used to
contact the prosecutor.
(c) Any changes to the information in (a) or (b),
above, shall be filed with the presiding officer, in writing, within 5
working days of the change.
(d) The regulatory authority shall, after providing
notice and opportunity for hearing, prohibit an individual from acting as a
representative upon a finding that the individual has repeatedly violated rules
or orders of the regulatory authority, willfully disrupted proceedings of
the regulatory
authority, or made material misrepresentations to the regulatory authority or a participant in a proceeding of the regulatory authority.
(e) Any prohibition issued under (d), above,
shall apply only to that regulatory authority’s proceedings.
(f) Nothing in this section shall be construed to
permit the unauthorized practice of law.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.10 Filing of Documents; Certain Communications Prohibited.
(a) Documents in an
adjudicative proceeding shall be filed in accordance with Plc 203.02, provided
that if a presiding officer has been identified, all documents shall be sent to
the attention of the presiding officer.
(b) The requirement
to file documents with the presiding officer shall not constitute permission
for any participant to otherwise communicate with the presiding officer without
all participants having prior notice of, and an opportunity to participate in,
the communication.
(c) All petitions,
motions, and replies filed in the proceeding shall be signed and dated by the
proponent of the document or, if the proponent appears by a representative, by
the representative.
(d) The signature
shall constitute certification that:
(1) The signer has read the
document;
(2) The signer is authorized to
file the document;
(3) To the best of the signer’s
knowledge, information, and belief, there are good grounds to support the
document; and
(4)
The document has not been filed for purposes of delay or harassment in
any pending or contemplated administrative, civil, or criminal proceeding.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 206.11 Service
of Documents.
(a) All objections,
motions, replies, memoranda, exhibits, or other documents filed in an
adjudicative proceeding shall be served by the proponent upon all other
participants by:
(1) Depositing a copy of the document in the
United States mail, first class postage prepaid, addressed to the address of
record in the proceeding for the participant being served, no later than the
day the document is filed with the presiding officer;
(2) Delivering a copy of the document in hand to
the participant being served on or before the date it is filed with the
presiding officer; or
(3) Sending a copy of the document to the
participant being served on or before the date it is filed with the presiding
officer as an attachment to an email addressed to the email address of record,
provided that the participant who provided the email address has indicated that
service would be accepted in this manner.
(b) Notices, orders,
decisions, or other documents issued by the regulatory authority or presiding
officer in connection with an adjudicative proceeding shall be served by the
issuer upon all participants in the matter by:
(1) Depositing a copy of the document, first
class postage prepaid, in the United States mail, addressed to the address of
record in the proceeding for the participant being served;
(2) Delivering a copy of the document in hand to
the participant being served; or
(3) Sending a copy of the document to the
participant being served as an attachment to an email addressed to the email
address of record, provided that the participant who provided the email address
has indicated that service would be accepted in this manner.
(c) When a respondent’s representative or intervenor’s representative has filed an appearance,
service shall be upon the representative.
(d) Except for
exhibits distributed at a prehearing conference or hearing, every document
filed with the presiding officer shall be accompanied by a certificate of
service, signed by the person making service, attesting to the method and date
of service and the person(s) served.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.12 Motions and Objections.
(a) Motions and objections shall be in writing
unless the nature of the relief requested requires oral presentation upon short
notice.
(b) Prior to filing a written motion, the
participant filing the motion shall seek concurrence with the relief requested
in the motion from the other participant(s), provided however that if the
motion would result in a ruling that is adverse to another participant’s
interests, the moving participant shall not be required to seek concurrence
from that participant.
(c) All motions shall state clearly and concisely
in separately numbered paragraphs:
(1) The purpose of the motion;
(2) The relief sought by the
motion;
(3)
The statutes, rules, orders, or other authority authorizing the relief
sought by the motion;
(4)
The facts claimed to constitute grounds for the relief requested by the
motion; and
(5)
The signature and date required by Plc 206.10(c).
(d) Objections to motions shall be filed within
10 days after the filing of the motion.
Failure to object to a motion within the time allowed shall constitute a
waiver of objection to the motion.
(e) Objections to motions shall state clearly and
concisely:
(1) The objection
or defense of the participant filing the
objection to any fact or request in the motion, set forth in separate
paragraphs numbered identically to the paragraphs in the original motion;
(2) The action the participant
filing the objection wishes the presiding officer to take on the motion;
(3) Statutes, rules, orders, or
other authority relied upon to rebut the motion;
(4) Any facts that are
additional to or different from the facts stated in the motion; and
(5) The signature and date
required by Plc 206.10(c).
(f) Motions shall be decided upon the writings
submitted, unless the presiding officer or, in the case of a dispositive
motion, the regulatory authority, determines that a hearing is necessary to a
full understanding of the motion or objection, or both.
(g) Repetitious motions shall not be submitted.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.13 Role of Complainants and
Regulatory Authority Staff in Adjudicative Proceedings.
(a) Unless called as a witness or granted
intervenor status, a person whose complaint resulted in an adjudicative
proceeding shall have no role in the adjudicative proceeding.
(b) Unless called as a witness or serving as the
regulatory authority’s representative in the adjudicative proceeding or as the
presiding officer, staff of the regulatory authority conducting the proceeding
shall have no role in the adjudicative proceeding.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.14 Intervention.
(a) Any person who is not a respondent,
respondent’s representative, or prosecutor who wishes to participate in an
adjudicative proceeding shall file a motion to intervene.
(b) A motion to intervene shall state with
particularity:
(1) The petitioner’s interest in
the subject matter of the hearing;
(2) Why the interests of the
existing participants and the orderly and prompt conduct of the proceeding
would not be impaired by allowing the petitioner to intervene; and
(3) Any other reasons why the
petitioner should be permitted to intervene.
(c) A motion to intervene shall be granted if the
presiding officer finds that:
(1) The petitioner has a
substantial interest in the proceeding;
(2) The petitioner requested
intervention in accordance with these rules; and
(3) Granting intervention will
not prejudice an existing participant or unduly delay the proceeding.
(d) If a motion to intervene is granted, the
intervenor shall take the proceeding as he or she finds it and no portion of
the proceeding shall be repeated because of the fact of intervention.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.15 Consolidation; Severance.
(a) Adjudicative proceedings that involve the
same or substantially related issues shall be consolidated for hearing or decision,
or both, when fairness, accuracy, and efficiency would be served by such an
action.
(b) Consolidation shall be ordered in response to
a timely motion from a participant or on the presiding officer’s own
initiative.
(c) Upon timely motion from a participant or on
the presiding officer’s own initiative, the presiding officer shall sever one
or more issues from a proceeding and dispose of those issues in another
proceeding if he or she determines that doing so would materially promote the
fairness, accuracy, and efficiency of the proceeding.
(d) The presiding officer shall issue written
notice to all participants of any determination to sever or consolidate
proceedings.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.16 Continuances.
(a) Any participant may make an oral or written
motion that a hearing be delayed or continued to a later date or time.
(b) A motion for a delay in the commencement of a
hearing or a continuance of a hearing that has already commenced shall be
granted if the presiding officer determines that there is good cause to do so.
(c) Good cause shall include:
(1) The unavailability of one or
more participants or witnesses necessary to conduct the hearing;
(2) The likelihood that a
settlement will make the hearing or its continuation unnecessary; and
(3) Any other circumstances that
demonstrate that a delay in commencing the hearing or a continuance of a
hearing that has already commenced would assist in resolving the case fairly
and efficiently.
(d) If the later date, time, and place are known
when the hearing is being delayed or continued, the information shall be stated
on the record. If the later date, time,
and place are not known at that time, the presiding officer shall as soon as
practicable issue a written scheduling order stating the date, time and place
of the delayed or continued hearing.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.17 Prehearing Conferences.
(a) At any time following the commencement of an
adjudicative proceeding, the presiding officer, upon motion or upon his or her
own initiative, shall request the participants to attend a prehearing
conference when the presiding officer believes that such a conference would aid
in the efficient and fair resolution of the proceeding.
(b) The prehearing conference shall be conducted
by telephone or via electronic means unless one or more of the participants
objects to doing so.
(c) Matters that can be addressed at a prehearing
conference shall include:
(1)
The distribution of exhibits and written testimony, if any, to the
participants;
(2)
Opportunities and procedures for simplification of the issues;
(3)
Possible amendments to the pleadings;
(4)
Opportunities and procedures for settlement;
(5)
Possible admissions of fact and authentication of documents to avoid
unnecessary proof;
(6)
Possible limitations on the number of witnesses and possible limitations
on the scheduling of witnesses;
(7)
Possible changes to the standard procedures that would otherwise govern
the proceeding; and
(8)
Other matters that might contribute to the prompt and orderly conduct of
the proceeding.
(d) As provided in RSA 310-A:1-k, V, pre-hearing
conferences shall be exempt from the provisions of RSA 91-A.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.18 Discovery and Disclosure;
Identification of Exhibits.
(a) The regulatory authority shall provide for the disclosure of
any investigative report or other unprivileged information in the possession of
the regulatory
authority that is reasonably related to the subject matter of the
proceeding.
(b) Parties shall attempt to agree among
themselves concerning the mutual exchange of relevant information. If these efforts prove unsuccessful, a
participant wishing to initiate discovery against another participant, shall,
by motion:
(1) Seek leave to do so; and
(2) Identify the exact type of
discovery requested.
(c) Discovery shall be ordered when the
participants cannot adequately address specific relevant factual issues at the
time fixed for the presentation of evidence, and addressing these issues at a
subsequent time would place the requesting party at a material disadvantage.
(d) Subject to (e), below, not less than 14 days
before the hearing the participants shall provide to the other participants and
to the presiding officer:
(1) A list of all witnesses to
be called at the hearing together with a brief summary of their testimony;
(2) A list of all documents and
exhibits to be offered as evidence at the hearing; and
(3) A clear and legible copy of
each document or exhibit, which shall be sequentially marked and identified as
follows:
a. Exhibits from the prosecutor
shall be marked with the words “Prosecution Exhibit” followed by a sequential
cardinal number, so that the first exhibit is labeled “Prosecution Exhibit 1”
and the second is “Prosecution Exhibit 2,” and so on;
b. Exhibits submitted by other
participants shall be labeled in the same manner as the prosecutor’s, except
they shall be identified by the words “Respondent Exhibit” or “Intervenor
Exhibit” as appropriate; and
c. Exhibits submitted by any
person not covered by a. or b. above shall be marked as directed by the
presiding officer; and
(4) Any requests for changes to
standard procedure or other matters concerning conduct of the hearing.
(e) If the proceeding was initiated pursuant to
Plc 206.07 relative to emergency proceedings, the time period for providing the
items specified in (d)(1)-(4), above, shall be not less than 3 working days
before the hearing held pursuant to Plc 206.07(b) to determine whether to
continue an emergency suspension pending a full adjudication.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.19 Subpoenas for Hearings.
(a) The regulatory authority shall issue
subpoenas for the attendance of witnesses or the production of evidence in an
adjudicative proceeding in accordance with RSA 310-A:1-k, II or such other
authority as is conferred by applicable law.
(b) The participant requesting a subpoena to be
issued shall attach a copy of the proposed subpoena to its motion. If the motion is granted, the requesting
participant shall be responsible for the service of the subpoena and payment of
any applicable witness fee and mileage expenses.
(c) A motion to quash or modify a subpoena shall
be entertained from the person to whom the subpoena is directed, if filed no
later than one working day before the date specified in the subpoena for
compliance therewith. If the presiding
officer denies the motion to quash or modify, in whole or in part, the person
to whom the subpoena is directed shall comply with the subpoena or any
modification thereof, within the balance of time prescribed in the subpoena or
within 3 days from the date of the presiding officer’s order, whichever is
later, unless the presiding officer expressly provides additional time to
comply.
(d) The presiding officer shall grant a motion to
issue a subpoena or a motion to quash a subpoena if there is a preponderance of
evidence to support the motion.
(e) If a person fails to comply with a subpoena
issued pursuant to this section, then:
(1)
If the person is a licensee, such noncompliance shall constitute
misconduct, for which the regulatory authority shall:
a.
Impose sanctions specific to any pending proceeding or investigation,
including, but not limited to, entry of a default judgment as to some or all of
the pending issues that is adverse to the noncompliant participant; or
b.
Institute a separate investigation against any non-compliant individual
who is subject to the regulatory authority’s jurisdiction; or
(2)
For all non-compliant persons, the presiding officer shall:
a.
Order the proceeding to continue and defer all, or part, of the subpoena
enforcement issues;
b.
Recommend that the regulatory authority seek judicial relief; or
c.
Determine there was just cause for the failure to comply with the
subpoena, which shall include:
1.
Illness;
2.
Accident;
3.
Death of a family member; or
4.
Other circumstances beyond the control of the non-compliant person.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.20 Testimony at an Adjudicative Hearing;
Remote Testimony.
(a) All testimony at an adjudicative hearing
shall be in accordance with RSA 541-A:33, I.
(b) Any individual offering testimony, evidence,
or arguments shall state his or her name and municipality of residence on the
record. If the individual is
representing another person, the person being represented shall also be identified
by name and address.
(c) Except as provided in (d), below, testimony
shall be offered in the following order unless otherwise agreed at a prehearing
conference or changed in a ruling on a motion:
(1)
The prosecutor and such witnesses as the prosecutor calls;
(2)
The respondent and such witnesses as the respondent calls; and
(3)
Any intervenor(s) and such witnesses as the intervenor(s) call.
(d) At a hearing held pursuant to Plc 206.07(b)
to determine whether to continue an emergency suspension pending a full
adjudication, the prosecutor shall present first.
(e) Anyone offering testimony shall be subject to
cross-examination as provided in Plc 206.21.
(f) Any person included within (c)(1) through
(3), above, who wishes to submit written testimony at the hearing in addition
to oral testimony shall do so to the presiding officer, provided the person
signs and dates such testimony and the presiding officer determines, as
required by RSA 541-A:33, II, that the interests of the other participants will
not thereby be prejudiced substantially.
The participant submitting written testimony shall give a copy of such
testimony to each other participant. All
participants shall have the opportunity to cross-examine the witness on and
offer rebuttal testimony to the written testimony.
(g) If a participant wishes to call as a witness
an individual who is not in New Hampshire, the participant may file a motion to
allow the individual to testify from a remote location using a video
teleconference electronic meeting platform that allows all participants and the
presiding officer or regulatory authority to communicate contemporaneously with
each other, which motion shall be granted if:
(1)
The witness is outside the jurisdiction of New Hampshire but is willing
to testify;
(3)
The testimony to be offered by the witness is material to the moving
participant’s presentation; and
(4)
Either:
a.
The other participants will not be materially prejudiced by allowing the
witness to testify from a remote location; or
b.
Any disadvantage to another participant from allowing remote testimony
is outweighed by the disadvantage to the moving participant if remote testimony
is not allowed.
(h) The presiding officer shall terminate any
comments, questions, or discussions that are not relevant to the subject of the
hearing.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.21 Inquiry by Presiding Officer or Panel
Members; Cross-Examination.
(a) The presiding officer shall make such inquiry
of witnesses or participants as he or she believes necessary to develop a sound
record for decision.
(b) If the adjudicative hearing is being held by
a regulatory authority that is a supported board, commission, or council, or if
there is a panel pursuant to Plc 206.08(c) or (d), the presiding officer shall
allow the board or panel members to make such inquiries as are necessary for a
full understanding of the issues to be determined.
(c) The presiding officer shall allow the
participants or their representatives to cross-examine each witness, including
any witness allowed to testify from a remote location pursuant to Plc
206.20(g), at the conclusion of the testimony of the witness.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.22 Evidence.
(a) Receipt of evidence shall be governed by RSA
541-A:33.
(b) Evidence that is relevant and material to the
subject matter of the adjudicative proceeding in which it is offered and that
will reasonably assist the presiding officer and regulatory authority to
determine the truth shall be admissible.
(c) The presiding officer shall exclude
irrelevant, immaterial, or unduly repetitious evidence.
(d) Whenever necessary for a full and fair
consideration of the matter, the presiding officer shall take official notice
in accordance with RSA 541-A:33, V.
(e) If a document or other exhibit has not been
pre-marked as required by Plc 206.18, the presiding officer or designee shall
mark each item accepted as an exhibit with a number or other notation to
identify the exhibits in a sequential manner.
(f) If the original of a document is not readily
available, the documentary evidence shall be received in the form of copies or
excerpts.
(g) All documents, materials, and objects
admitted into evidence at an adjudicative hearing and all written testimony
submitted for the hearing shall be made available during the course of the
hearing for examination by any participant.
(h) Any participant who objects to a ruling of
the presiding officer regarding evidence or procedure made during an
adjudicative hearing shall state the objection and the grounds therefor at the
time the ruling is made. Any participant
who objects to a ruling of the presiding officer regarding evidence or
procedure made at a time other than during an adjudicative hearing shall file a
written objection to the ruling in the form of a motion within 5 working days
of the date of the ruling. Nothing
herein shall be construed as independent authorization for interlocutory appeal
of rulings of the presiding officer on issues of evidence or procedure.
Source.
(See Revision Note at chapter heading for Plc 200) #13427, eff 8-4-22
(a)
An offer of proof shall be based on a sworn, written affidavit that
details the facts and circumstances the offering participant wishes to prove.
(b)
An offer of proof shall only be made if the individual
who swore to the truth of the statements in the affidavit is:
(1) Present for the hearing in which the offer of
proof is made;
(2) Sworn in under oath or affirmation; and
(3) Subject to cross-examination.
(c)
A participant may rebut an offer of proof with an offer of proof that is
subject to the conditions specified in (b), above.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.24 Burden and Standard of Proof.
(a) Subject to (c)
through (g), below, the person asserting the affirmative of a proposition shall
have the burden of proving the truth of that proposition by a preponderance of
the evidence.
(b) Without limiting
the generality of (a), above, the person filing a motion shall have the burden
of persuading the presiding officer or, for any dispositive motion, the
regulatory authority, that the motion should be granted.
(c) In a
disciplinary hearing, the prosecutor shall have the overall burden of proof by
a preponderance of the evidence, unless (f), below, applies.
(d) In a hearing
held pursuant to Plc 206.07(b) to determine whether to continue an emergency
suspension pending a full adjudication, the prosecutor shall have the burden of
proof as stated in Plc 206.07(e) or (f), as applicable.
(e) Subject to (f),
below, in a hearing to determine whether to issue a license, the applicant
shall have the overall burden of proving that he or she meets the
qualifications established in applicable law by a preponderance of the
evidence.
(f)
In a hearing held pursuant to RSA 332-G:13 relative to determining
whether an applicant or potential applicant is disqualified by reason of a
criminal record, the regulatory authority shall have the burden of proof on the
factors listed in RSA 332-G:13, VI(b) by clear and convincing evidence.
(g) In any
disciplinary proceeding, license revocation shall be imposed only if all
elements of the misconduct on which the revocation would be based are either
admitted by the respondent or proven by clear and convincing evidence.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.25 Failure to Attend or Participate in the
Hearing.
(a) For purposes of this section, “party” means:
(1) The prosecutor or the
respondent, in any disciplinary proceeding; or
(2) The applicant, in any
hearing held to determine whether the applicant is qualified to receive a
license.
(b) A party shall be in default if the party:
(1)
Has the overall burden of proof;
(2)
Has received the notice given as required by Plc 206.06; and
(3)
Fails to attend the hearing.
(c) If a party is in default under (b), above,
the matter shall be dismissed unless there is just cause shown for failure to
attend. Just cause shall include
illness, accident, the death of a family member, or other circumstance beyond
the control of the party that prevented the party from attending the hearing.
(d) If a party who does not have the overall
burden of proof fails to attend the hearing after having received the notice
given as required by Plc 206.06, the testimony and evidence of any other
parties or intervenors shall be received and evaluated.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.26 Reconvening of Adjudicative
Hearings.
(a) If a hearing is held in a participant’s
absence pursuant to Plc 206.25, the participant may file a motion within 10
days after the date of the hearing to reconvene the hearing.
(b) The motion to reconvene the hearing shall
include an explanation of why the participant did not attend the hearing and
why the participant did not notify the presiding officer in advance of the
hearing, which explanation shall be supported by affidavits or other evidence.
(c) If the submitted evidence shows that good
cause exists to explain the participant’s failure to appear at the hearing and
to explain the participant’s failure to notify the presiding officer in advance
of the hearing, the hearing shall be reconvened and testimony and evidence
offered by the participant shall be received.
(d) For purposes of this section, good cause
shall be limited to circumstances beyond the control of the participant that
render the participant unable to attend the hearing and unable to notify the
presiding officer in advance of the hearing.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.27 Proposed Findings of Fact and Conclusions
of Law.
(a) Participants may submit proposed findings of
fact or conclusions of law.
(b) If proposed findings of fact or conclusions
of law are submitted, each requested finding or conclusion shall be set forth
in a separately numbered paragraph.
(c) The presiding officer shall direct any
participant to submit proposed findings of fact or conclusions of law if the
presiding officer finds such a submission will clarify the pertinent facts or
more specifically identify the applicable law.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.28 Deliberations and Decisions.
(a) For cases in which the OPLC is the regulatory
authority, the following shall apply:
(1) If the adjudicative hearing
was held with a panel pursuant to Plc 206.08(c), the panel members may sit for
deliberations with the presiding officer and offer recommendations for the
final disposition of the case or any pending motions;
(2) Notwithstanding (1), above,
the executive director shall have sole and exclusive authority to decide on the
final disposition of the case; and
(3) A final adjudicative order
shall take effect on the date it is served on the respondent and the
enforcement division pursuant to Plc 206.11(b).
(b) For cases conducted by a regulatory authority
other than the OPLC, the following shall apply:
(1) The members of the regulatory authority who were present for the
adjudicative hearing shall participate in the deliberations and offer
recommendations for the final disposition of the case or any pending motions;
(2) Notwithstanding (1), above,
if the adjudicative hearing was conducted with a panel of members, a quorum of
the regulatory authority shall have sole and exclusive authority to decide on
the final disposition of the case; and
(3) A final adjudicative order
shall take effect on the date it is served on the respondent and the
enforcement division pursuant to Plc 206.11(b).
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 206.29 Motion for Reconsideration or Rehearing.
(a) Motions for reconsideration or rehearing
shall be filed within 30 calendar days after service of a final adjudicative
order.
(b) The motion shall:
(1) Clearly identify points of
law or fact that the movant asserts the regulatory authority has overlooked or
misapprehended;
(2) Contain such argument in
support of the motion as the movant desires to present; and
(3) Be served by the movant on
all other participants in accordance with Plc 206.11.
(c) No answer to a motion for reconsideration
shall be required, but any answer or objection filed shall be delivered to the
regulatory authority within 5 working days following receipt of service of the
motion for reconsideration.
(d) The motion shall be granted if the movant
demonstrates by a preponderance of the evidence that:
(1) The law was applied incorrectly;
(2) The facts on which the decision is based are
not supported by the record; or
(3) Another compelling reason exists to
reconsider the matter, including but not limited to new material evidence
becoming available or material evidence that was offered was improperly
excluded.
(e) If the petition
is not filed within the time specified in (a), above, or if the movant does not
meet the standard for granting the motion specified in (d), above, then:
(1) The motion shall be denied; and
(2) An order denying the motion shall be:
a. Served on the participants in accordance with
Plc 206.11; and
b. Effective on the date it is served.
(f) If the motion is
not denied, the presiding officer shall forward the motion and any response(s)
received to the regulatory authority for consideration.
(g) The regulatory
authority shall issue a decision on reconsideration after fully considering the
motion and any responses thereto, which reconsideration shall include a hearing
on the issues identified in the motion if the regulatory authority determines a
hearing to be necessary to a full consideration of the issues.
(h) A final order
upon reconsideration shall be:
(1) Served on the participants in accordance with
Plc 206.11; and
(2) Effective on the date it is served.
(i) Successive
petitions for reconsideration or rehearing shall not be permitted.
(j) The filing of a motion for reconsideration
shall not stay any order.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.30 Stay of Orders Pending Appeal
Prohibited By Statute.
(a)
Pursuant to RSA 310-A:1-n, I, any person who has been refused a license or certification by
a regulatory authority or who has been disciplined by a regulatory authority
“shall have the right to petition for a rehearing within 30 days after the
original final decision.”
(b)
Pursuant to RSA 310-A:1-n, II, appeals from a decision on rehearing
shall be by appeal to the supreme court pursuant to RSA 541.
(c)
Pursuant to RSA 310-A:1-n, III, no sanction shall be stayed by the
regulatory authority during an appeal.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
206.31 Records of Decisions. The regulatory authority shall keep a final
decision in its records for at least 5 years following its date of issuance,
unless the director of the division of records management of the department of
state sets a different retention period pursuant to rules adopted under RSA
5:40 or approves a different retention schedule.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 207
NON-ADJUDICATIVE PROCEEDINGS
Plc 207.01 Purpose and Applicability.
(a) The purpose of this part is to provide
uniform procedures for the conduct of non-adjudicative proceedings, in
particular oral public hearings.
(b) This part shall apply to proceedings
conducted by a regulatory authority to:
(1) Adopt, readopt, amend, or
repeal rules, referred to as rulemaking; or
(2) Provide information to the
public and receive comments from the public in any other matter that is not an
adjudicative proceeding covered by Plc 206.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 207.02 Notice
of Oral Public Hearing. Notice of
the date, time, and place of an oral public hearing shall be given as follows:
(a) For a rulemaking
hearing held pursuant to RSA 541-A:3, IV, by publication as specified in RSA
541-A:6, together with notice required by RSA 91-A if the regulatory authority
is subject to the open meeting provisions of that statute;
(b) For any other oral public hearing conducted by or on behalf of
the executive director, by such means as the executive director determines will
notify those persons likely to be interested in the most cost-effective manner;
or
(c) For any other
oral public hearing conducted by or on behalf of a regulatory authority that is
subject to the open meeting provisions of RSA 91-A, as required in that
statute.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 207.03 Attendance
of Regulatory Authority at Hearings on Proposed Rules.
(a) As required by
RSA 541-A:11, II, for rules proposed by a regulatory authority that is a board
or commission, each hearing on proposed rules shall be attended by a quorum of
its members.
(b) As required by
RSA 541-A:11, II, for rules proposed by the OPLC, each hearing shall be
attended by the executive director or a designee who is knowledgeable in the
particular subject area of the proposed rules.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
207.04 Presiding Officer for Oral
Public Hearings.
(a) The presiding officer for a non-adjudicative
proceeding for the OPLC shall be the executive director or designee who is knowledgeable in the subject area of the subject
of the hearing.
(b) The presiding officer for an oral public
hearing for any other regulatory authority shall be the individual designated
by that regulatory
authority for that proceeding.
(c) The presiding officer at an oral public
hearing shall:
(1)
Call the hearing to order;
(2)
Identify the subject matter of the hearing and, if the hearing is to
receive comments on proposed rules, provide copies of the rules upon request;
(3)
Cause a recording of the hearing to be made, if a recording is deemed
necessary to preserve the offered testimony, provided that if a recording is
not made then the presiding officer or designee shall prepare written notes to
summarize the testimony;
(4)
Recognize those who wish to be heard;
(5)
If necessary, establish limits pursuant to Plc 207.06; and
(6)
Take any other action consistent with applicable statutes and rules
necessary to conduct the proceeding and complete the record in a fair and
timely manner, including but not limited to:
a.
Effecting the removal of an individual who speaks or acts in a manner
that is personally abusive or otherwise disruptive to the hearing;
b.
Postponing or moving the hearing; and
c.
Adjourning or continuing the hearing.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
207.05 Public Access and
Participation.
(a) Non-adjudicative hearings shall be open to
the public, and members of the public shall be entitled to attend and to testify
if they so choose, subject to the limitations of Plc 207.06.
(b) Subject to (c), below, each individual who
wishes to testify shall be asked to write on the speaker’s list:
(1)
His or her full name and municipality of residence or, if testifying on
behalf of an organization or other person, the municipality in which the
organization or other person is located; and
(2)
The name of each organization or other person the speaker is
representing, if any.
(c) If the number of people attending the hearing
is small enough that a list is not needed to ensure that everyone who wishes to
testify is provided an opportunity to do so, a speaker’s list shall not be
required, provided that each individual who testifies shall orally provide the
information specified in (b), above.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
207.06 Limitations on Public
Testimony. The presiding officer at
an oral public hearing shall:
(a) Refuse to recognize for speaking or revoke
the recognition of any individual who:
(1)
Speaks or acts in an abusive or disruptive manner;
(2)
Fails to keep comments relevant to the subject matter of the hearing; or
(3)
Restates more than once what he or she has already stated; and
(b) Limit presentations on behalf of the same
entity to no more than 3, provided that all those representing such entity may
enter their names and municipality of residence into the record as supporting
the position of the entity.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 207.07 Postponing,
Continuing, or Moving an Oral Public Hearing.
(a) A hearing on proposed rules shall be
postponed only in accordance with RSA 541-A:11, IV.
(b) An oral public hearing held for any other
purpose shall be postponed if:
(1) The weather is so inclement
that it is reasonable to conclude that people wishing to attend the hearing
will be unable to do so;
(2) The presiding officer is ill
or unavoidably absent and no other individual can be designated to serve as the
presiding officer;
(3) A quorum of the regulatory
authority is necessary but is not present;
(4) Postponement will facilitate
greater participation by the public; or
(5) The presiding officer finds
there is other good cause to do so, such as but not limited to conditions
existing in the building or locality where the hearing is being held that pose
an unreasonable risk to the health or safety of those who wish to attend the
hearing.
(c) A hearing on proposed rules shall be moved to
another location only in accordance with RSA 541-A:11, V.
(d) An oral public
hearing held for any other purpose shall be moved to another location if the
original location is not able to accommodate the number of people who wish to
attend the hearing or otherwise becomes unavailable, provided that the
regulatory authority shall provide notice of the change in location in the
manner that is most likely to be seen by those wishing to attend the hearing,
including posting a notice on the regulatory authority’s website.
(e) A hearing on proposed rules shall be
continued past the scheduled time or to another date only in accordance with
RSA 541-A:11, III.
(f) An oral public hearing held for any other
purpose shall be continued past the scheduled time or to another date if:
(1)
The time available is not sufficient to give each individual who wishes
to speak a reasonable opportunity to do so; or
(2)
The capacity of the room in which the hearing is to be held does not
accommodate the number of people who wish to attend and it is not possible to
immediately move the hearing to another location.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 207.08 Closing
the Hearing and the Record.
(a) The presiding officer shall close the oral
public hearing when he or she determines that no one has further questions or
comments that are relevant to the subject of the hearing.
(b) At an oral public hearing other than a
rulemaking hearing, if additional time is requested to submit written testimony
or supplemental information that the presiding officer determines to be
relevant to the subject of the hearing, the presiding officer shall designate a
specific time period for the record to remain open to receive such information.
(c) For rulemaking hearings, the record shall
remain open until the date specified in the notice published pursuant to RSA
541-A:6 unless extended pursuant to RSA 541-A:11.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 208 RULEMAKING PETITIONS
Plc
208.01 Applicability. The rules in this part shall apply to any
petition submitted to a regulatory authority pursuant to RSA 541-A:4.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
208.02 Filing of Rulemaking Petition.
(a) Any person wishing to file a petition to
adopt, amend, or repeal a rule in title Plc shall file the original and one
copy of the petition with the executive director, provided that only the
original or other single copy shall be required if the petition is filed
electronically.
(b) Any person wishing to file a petition to
adopt, amend, or repeal a rule in a title assigned to any other regulatory
authority shall file the original and one copy of the petition with that regulatory
authority, provided that only the original or
other single copy shall be required if the petition is filed electronically.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
208.03 Content of Petition for
Rulemaking. A petition to adopt,
amend, or repeal a rule shall contain the following:
(a) The name of each person requesting the
adoption, amendment, or repeal of the rule, with an e-mail address for the
person;
(b) If the person making the request is other
than an individual, the name, daytime telephone number including area code, and
email address of the individual who can be contacted regarding the petition;
(c) Whether the person is asking the regulatory
authority to adopt, amend, or repeal a rule;
(d) A clear and concise statement of why the petitioner
wants the regulatory authority to undertake the action requested;
(e) If the petition is to adopt a rule or to
amend an existing rule, the text of the proposed or amended rule or a statement
of the particular results intended by the petitioner to flow from the
implementation of the proposed or amended rule;
(f) If the petition is to amend or repeal an
existing rule, identification of the particular rule sought to be amended or
repealed; and
(g) Such other information or argument as the
petitioner believes would be useful to the regulatory authority in deciding
whether to commence a rulemaking proceeding.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
208.04 Burden of Persuasion for
Rulemaking Petitions. The petitioner
shall have the burden of persuasion relative to demonstrating that the criteria
for denying the petition specified in Plc 208.05(e) are not met.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
208.05 Disposition of Petition for
Rulemaking.
(a) Within 30 days of the submission of a
petition to the executive director, the executive director shall:
(1)
Determine whether to grant or deny the petition; and
(2)
Notify the petitioner of the decision in writing sent to the email
address provided in the petition.
(b) If the petition is submitted to a regulatory
authority that is a supported board, commission, or council, then within 30
days after the first meeting of the regulatory authority held after receipt of the
petition, the regulatory authority shall:
(1)
Determine whether to grant or deny the petition; and
(2)
Notify the petitioner of the decision in writing sent to the email
address provided in the petition.
(c) As required by RSA 541-A:4, I, if the
petition is denied, the notice sent pursuant to (a)(2) or (b)(2), above, shall
specify the reason(s) for the denial.
(d) If the petition is granted, the regulatory
authority shall commence a rulemaking as required by RSA 541-A:4, I, reprinted
in Appendix C.
(e) A denial shall be based upon a finding by the
executive director or other regulatory authority, as applicable, that:
(1)
The proposed action is not consistent with established standards of
practice of the profession being regulated or the purpose and intent of the
statute being implemented;
(2)
The regulatory authority lacks rulemaking authority over the issue(s) in
the petition; or
(3)
The proposed action is not in the best interests of affected persons or
is contrary to legislative intent.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 209 EXPLANATION OF ADOPTED RULES
Plc
209.01 Requests for Explanation of
Adopted Rules.
(a) Any interested person may, within 30 days of
the final adoption of a rule, request a written explanation of that rule by
making a written request to the regulatory authority that adopted the rule.
(b) A request submitted pursuant to (a), above,
shall include:
(1)
The name and address of the person making the request and, if the
requestor is an entity, the name, address, and email address of the individual
authorized by the entity to make the request; and
(2)
Identification of the specific rule for which an explanation is sought.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
209.02 Response to Request for
Explanation.
(a) The regulatory authority that adopted the
rule shall provide a written response within 90 days of receiving a request in
accordance with Plc 209.01 if no board meeting is required or within 60 days of
the regulatory authority’s first meeting after receiving the petition.
(b) The response required by (a), above, shall:
(1)
Concisely state the meaning of the rule adopted;
(2)
Concisely state the principal reasons for and against the adoption of
the rule in its final form; and
(3)
State why the regulatory authority overruled any arguments and
considerations presented against the rule, if any were presented.
(c) If the regulatory authority is a supported
board, commission, or council, the response shall reflect the consensus of a
quorum of its members.
(d) If the executive director determines that the
technical expertise of an advisory board or advisory committee is needed to
respond to a request for explanation, the executive director shall consult with
the advisory board or advisory committee.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 210 DECLARATORY RULINGS
Plc
210.01 Purpose.
(a) The purpose of this part is to establish a
mechanism whereby a person who is uncertain of the applicability of a
particular statute implemented by a regulatory authority or rule adopted by the
regulatory authority may request a decision in advance of taking an action that
might be subject to such statute or rule.
(b) This part shall not be used to circumvent
other established methods of adjudication, such as an appeal, in cases where
the regulatory authority has already made a determination, such as by issuing
or denying a license or by initiating a disciplinary action.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
210.02 Filing of Petition for
Declaratory Ruling.
(a) Any person seeking a declaratory ruling from
the executive director shall file a written petition for declaratory ruling
that meets the requirements of Plc 210.03 with the executive director in
accordance with Plc 203.02.
(b) Any person seeking a declaratory ruling from
any other regulatory authority shall file a written petition for declaratory
ruling that meets the requirements of Plc 210.03 with that regulatory authority
in accordance with Plc 203.02.
(c) If the ruling sought by the petition would
directly affect a person other than the person filing the petition, the person
filing the petition shall serve the petition on each other affected person by:
(1) Depositing a copy of the petition in the
United States mail, first class postage prepaid, addressed to the person being
served, no later than the day the petition is filed with the regulatory
authority; or
(2) Delivering a copy of the petition in hand to
the person being served on or before the date it is filed with the regulatory
authority.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
210.03 Contents of Petition for
Declaratory Ruling; Signature Required.
(a) A petition for declaratory ruling shall
contain:
(1)
The name and mailing address of the petitioner and, if the petitioner is
filing electronically or is filing on paper but agrees to receive the notice
under Plc 210.04(b) and a response by email, the email address to which the
notice and response should be sent;
(2)
The exact ruling being requested;
(3)
Each statutory and factual basis for the ruling, set forth in separately
numbered paragraphs; and
(4)
Any supporting affidavits or memoranda of law.
(b) The petition shall be signed by the
individual(s) submitting the petition or, if the petition is filed on behalf of
an entity, by a duly-authorized representative of the entity, provided that if
the petition is filed electronically, the act of submitting the petition shall
constitute a signature.
(c) The signature(s) shall constitute a
certification that:
(1)
The signer has read the petition;
(2)
The signer is authorized to file the petition;
(3)
To the best of the signer’s knowledge and belief, there are good grounds
to support the petition; and
(4)
The petition has not been filed for purposes of delay or harassment in any pending or contemplated administrative, civil, or
criminal proceeding.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
210.04 Processing of Petition for
Declaratory Ruling.
(a) Within 25 days of receipt by the executive
director of a petition for declaratory ruling, the executive director shall
review the petition to determine:
(1)
Whether additional information or explanation is needed from the
petitioner; and
(2)
Whether the complexity of the petition, including but not limited to the
issue(s) in question and the legal implications thereof, will cause the
executive director to seek assistance from the department of justice.
(b) Within 25 days of the first meeting held by
any other regulatory authority after receipt by the regulatory authority of a
petition for declaratory ruling, the regulatory authority shall review the
petition to determine:
(1)
Whether additional information or explanation is needed from the
petitioner; and
(2)
Whether the complexity of the petition, including but not limited to the
issue(s) in question and the legal implications thereof, will cause the
regulatory authority to seek assistance from the department of justice.
(c) The executive director or other regulatory
authority, as applicable, shall notify the petitioner in writing of the results
of its review under (a) or (b), above.
(d) If additional information or explanation is
needed from the petitioner, the notice sent pursuant to (c), above, shall:
(1)
Identify the information or explanation needed; and
(2)
Establish a deadline for the petitioner to provide the information or
explanation, which shall be no sooner than 25 days after the date of the
notice.
(e) If the executive director or other regulatory
authority, as applicable, will be seeking assistance from the department of
justice, the notice sent pursuant to (c), above, shall inform the petitioner of
the anticipated amount of time that will be needed to obtain such assistance.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
210.05 Action on Petition for
Declaratory Ruling.
(a) Subject to (c), below, the executive director
shall make a decision on the petition and, if the petition is not denied, issue
a declaratory ruling in writing within 60 days of:
(1)
Receipt of the petition, if no additional information or explanation
from the petitioner or assistance from the department of justice is needed;
(2)
Receipt of all additional information and explanations requested from
the petitioner pursuant to Plc 210.04(d); or
(3)
Receipt of advice from the department of justice, if advice is
requested.
(b) Subject to (c), below, any other regulatory
authority shall make its decision on the petition and, if the petition is not
denied, issue a declaratory ruling in writing within 60 days of the authority’s
first meeting after:
(1)
Receipt of the petition, if no additional information or explanation
from the petitioner or assistance from the department of justice is needed;
(2)
Receipt of all additional information and explanations requested from
the petitioner pursuant to Plc 210.04(d); or
(3)
Receipt of advice from the department of justice, if advice is
requested.
(c) If additional information is requested from
the petitioner and is not received in time for a decision to be made and
declaratory ruling issued within 60 days of receipt of the petition, the
regulatory authority shall request the petitioner to agree to an extension as
provided in RSA 541-A:29, IV. If the
petitioner does not agree to an extension and a reasoned decision cannot be
made without the information requested from the petitioner, the petition shall
be denied and no declaratory ruling shall be issued.
(d) If advice from the department of justice is
requested and is not expected to be received within 60 days of receipt of the
petition, the regulatory authority shall request the petitioner to agree to an
extension as provided in RSA 541-A:29, IV.
If the petitioner does not agree to an extension, the regulatory
authority shall make a decision within 60 days of receipt. If the decision is to deny the petition, no
declaratory ruling shall be issued.
(e) A copy of each declaratory ruling shall be
filed with the director of legislative services as required by RSA 541-A:16,
II(b).
(f) A copy of each declaratory ruling or denial
of a petition shall be:
(1)
Sent to the petitioner by first class mail, or by email if the
petitioner filed electronically or filed on paper but provided an email address
and agreed to receive the decision via email; and
(2)
Sent to any other person who was served pursuant to Plc 210.02(c) in the
same manner as service was made.
(g) If the executive director determines that the
technical expertise of an advisory board or advisory committee is needed to
respond to a petition for a declaratory ruling, the executive director shall
consult with the advisory board or advisory committee.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 211 WAIVER OF RULES
Plc
211.01 Petitions for Waiver
of Rules.
(a) Any participant in a
non-adjudicative proceeding or otherwise affected by the rules in Plc 200 et
seq. who wishes to request a waiver of a rule in Plc 200 et seq.
shall proceed in accordance with this section.
(b)
Waiver requests made in conjunction with an adjudicative proceeding
shall be in the form of a motion that is filed and handled in accordance with
Plc 206.12.
(c)
A petition to waive a rule filed under this section shall:
(1) Be directed to the presiding officer if one
has been designated, or to the regulatory authority if no presiding officer has
been designated;
(2) Be in written form, unless made in response
to a matter asserted for the first time at an oral public hearing or on the
basis of information that was
not received in time to prepare a written request prior to the hearing at which
the request is made; and
(3) Be included in the record of the proceeding
if in writing, or recorded in full in the record of the hearing if made at an
oral public hearing.
(d) A petition for a waiver shall include a clear
and concise statement of the reason(s) why the waiver is being sought,
including an explanation that addresses:
(1) The economic and operational
consequences to the petitioner of complying with the rule as written;
(2) Whether the requested waiver
is necessary because of any neglect or misfeasance on the part of the
petitioner;
(3) Whether waiver of the rule
would harm or otherwise operate to the disadvantage of any third person(s); and
(4) Any additional information
the petitioner believes provides good cause for waiving the rule.
(e) If examination of the petition reveals that
other persons would be substantially affected by the proposed relief, the
regulatory authority shall:
(1)
Require the petitioner to serve the petition on such persons; and
(2)
Advise such persons of their right to reply to the petition.
(f) The petitioner shall provide such further
information or participate in such evidentiary or other proceedings as are
ordered by the regulatory authority after reviewing the petition and any
replies received.
(g)
If a request for waiver is made orally at an oral public hearing and the
presiding officer finds that additional information is needed in order for the
request to be fully and fairly considered, the presiding officer shall direct
the requestor to submit the request in writing, with supporting information as
specified in (d), above, within 3 working days of the date of the oral
request. If other participants in the
proceeding wish to respond to the request, the response(s) shall be filed no
later than 7 calendar days after the request is filed.
(h)
If a request for waiver is made orally at an oral public hearing on
proposed rules and the time period(s) specified in (g), above, fall after the
deadline specified for the submittal of written comments, the regulatory
authority shall extend the deadline as provided in RSA 541-A:11, III.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 211.02 Decisions
on Waiver Requests.
(a) The presiding
officer or regulatory authority, as applicable, shall rule upon a waiver
request after full consideration of all factors relevant to the request.
(b) A regulatory authority shall waive a rule
upon its own motion by providing affected persons with notice and an
opportunity to be heard, and after issuing an order that finds that good cause
has been shown.
(c) For the purposes of this section, good cause
shall be determined
with reference to the rule for which the waiver is sought.
(d) If good cause is
not specifically defined in the rule for which a waiver is sought, good cause
shall be deemed to exist if:
(1) Compliance with the rule
cannot be achieved due to circumstances beyond the control of the person
requesting the waiver and waiving the rule will not materially prejudice any
other person;
(2) Compliance with the rule
would cause operational or economic consequences, or both, to the person
requesting the waiver that outweigh any disadvantage caused to any other
person(s) by granting the waiver; or
(3) Compliance with the rule
would otherwise be counterproductive to the purpose of the proceeding in which
the waiver is sought, given the specific circumstances of the proceeding and
the reason(s) for the waiver request.
(e) If the executive
director determines that the technical expertise of an advisory board or
advisory committee is needed to respond to a petition for a waiver, the
executive director shall consult with the advisory board or advisory committee.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART Plc 212 WAIVER OF PROCUREMENT PROVISIONS
Statutory Authority: RSA 21-G:37, V
Plc
212.01 Purpose. The purpose of this part is to establish the circumstances constituting an emergency or
loss of funding for purposes of waiving the requirements of RSA 21-G:37, I - IV,
as contemplated by RSA 21-G:37, V.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
212.02 Applicability. Unless otherwise specified, Plc 212 shall
apply to the procurement of goods and services by a regulatory authority using
a request for bid (RFB), request for application (RFA), request for proposal
(RFP), or similar invitation.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
212.03 Definitions.
(a) “Emergency situation” means a natural,
technological, or human made situation, condition, or set of circumstances,
that has caused or is determined by the regulatory authority to be likely to
threaten public health or safety and:
(1) Impedes or diminishes the regulatory
authority’s ability to provide materials or services necessary to protect
public health or safety from the effects of such situation, condition, or set
of circumstances;
(2) Inhibits or interrupts the continuity of
services provided by the regulatory authority; or
(3) Prevents the regulatory authority from
complying with any state or federal statute, rule, or regulation.
(b) “Request for application (RFA)” means
“request for application” as defined in RSA 21-G:36, III, as reprinted in
Appendix B.
(c) “Request for bid (RFB)” means “request for
bid” as defined in RSA 21-G:36, IV, as reprinted in Appendix B.
(d) “Request for proposal (RFP)” means “request
for proposal” as defined in RSA 21-G:36, V, as reprinted in Appendix B.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc
212.04 Waiver of Requirements.
(a) The regulatory authority shall waive any or
all of RSA 21-G:37, II - IV for any RFA, RFB, RFP, or similar invitation if the
waiver is necessary to:
(1)
Prevent the loss of federal or other funds subject to recapture; or
(2)
Prevent or mitigate an emergency situation as defined in Plc
212.03(a).
(b) The regulatory authority shall post the
information required by RSA 21-G:37, II and III as soon as practicable after
the emergency situation that gave rise to the need for the waiver has been
mitigated.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
PART
Plc 213 DISCIPLINARY PROCEEDINGS;
LICENSE CONDITIONS
Plc 213.01 Definitions. For purposes of this part, the following
definitions shall apply:
(a)
“Applicant” means a person who has applied for a license to
practice in New Hampshire, prior to a final decision being made on the
application;
(b)
“Chronic non-complier” means a person who:
(1) Has committed, within 3 years of the date of
application or of the violation(s) for which a disciplinary proceeding has been
initiated, as applicable:
a. More than 2 violations that remain
uncorrected after a regulatory authority has notified the respondent, in
writing, of the violations and the need to correct them, which demonstrates
that the respondent is unable or unwilling to comply with applicable
requirements; or
b. More than 3 violations that are corrected by
the respondent after a regulatory authority has notified the respondent, in
writing, of the violations and the need to correct them, but recur with a
frequency that demonstrates that the respondent is unable or unwilling to
maintain compliance with applicable requirements; or
(2) Has been the subject, within 3 years of the
date of the application or of the violation(s) for which a disciplinary
proceeding or show cause hearing on an application has been initiated, as
applicable, of 2 or more administrative or civil enforcement actions or one
criminal enforcement action that have not been overturned on appeal for
violations of any applicable law pertaining to any of the respondent’s
activities; and
(c)
“Regulatory authority” means, unless specifically limited to New
Hampshire:
(1) “Regulatory authority” as defined in Plc 202;
and
(2) Any comparable authority in any other
jurisdiction in which a licensee is authorized to practice.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 213.02 Grounds for Denying an Initial License
Application. In addition to such
grounds for denying an initial license application as are identified in the
rules that are specific to the license for which an application was filed, the
following shall constitute good cause to deny a license application:
(a)
The applicant owes any fees to a regulatory authority, unless the fees
are being paid in accordance with a payment schedule and the applicant is
current with all payments;
(b)
The applicant owes any administrative fines to a regulatory authority,
unless the fines are being paid in accordance with a payment schedule and the
applicant is current with all payments;
(c)
The applicant has failed to comply with any order issued by a regulatory
authority, unless the applicant is complying in accordance with a compliance
schedule and is current with all items;
(d)
The applicant owes any civil or criminal penalties imposed as a result
of a judicial action taken to enforce any statute or rule implemented by a
regulatory authority, unless the penalties are being paid in accordance with a
payment schedule and the applicant is current with all payments;
(e)
The applicant has failed to comply with any civil or criminal
restoration or restitution order imposed as a result of a judicial action taken
to enforce any statute or rule implemented by a regulatory authority, unless
the applicant is complying in accordance with a compliance schedule and is
current with all items; or
(f)
The applicant is a chronic non-complier.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 213.03 Grounds for Suspension, Revocation, or
Refusal to Renew. In addition to
such grounds for suspending, revoking, or refusing to renew a license as are
identified in the rules that are specific to the license at issue, the
following shall constitute good cause to suspend, revoke, or refuse to renew a
license:
(a)
The licensee owes any fees to a regulatory authority, unless the fees
are being paid in accordance with a payment schedule and the license holder is
current with all payments;
(b)
The licensee owes any administrative fines to a regulatory authority,
unless the fines are being paid in accordance with a payment schedule and the
license holder is current with all payments;
(c)
The licensee has failed to comply with any order issued by a regulatory
authority, unless the license holder is complying in accordance with a compliance
schedule and is current with all items;
(d)
The licensee owes any civil or criminal penalties imposed as a result of
a judicial action taken to enforce any statute or rule implemented by a
regulatory authority, unless the penalties are being paid in accordance with a
payment schedule and the license holder is current with all payments;
(e)
The licensee has failed to comply with any civil or criminal restoration
or restitution order imposed as a result of a judicial action taken to enforce
any statute or rule implemented by a regulatory authority, unless the license
holder is complying in accordance with a compliance schedule and is current
with all items; or
(f)
The licensee is a chronic non-complier.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 213.04 Burden of Persuasion.
(a)
This section shall apply to:
(1) Any proceeding to determine whether to impose
sanctions, including suspension, revocation, refusal to renew, and imposition
of administrative fines, based on conduct for which a licensee has been
disciplined in another jurisdiction; and
(2) Any proceeding to determine whether to deny a
license application based on conduct that resulted in another jurisdiction
denying a license to an applicant.
(b)
In a proceeding that is subject to this section, the licensee or
applicant, as applicable, shall bear the burden of persuasion by a
preponderance of the evidence that the individual’s conduct in another jurisdiction
does not constitute grounds to impose sanctions or deny licensure, as
applicable, in New Hampshire.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 213.05 Determination to Deny a License
Application or to Suspend, Revoke, or Refuse to Renew a License.
(a)
The determination of whether to deny a license application or to
suspend, revoke, or refuse to renew a license shall be made in accordance with
the procedural rules specific to the type of license at issue.
(b)
If the respondent has not already had the opportunity to contest,
through an adjudicative proceeding, the prior violation(s) on which the New
Hampshire regulatory authority proposes to base a decision to deny a license
application or to suspend, revoke, or refuse to renew a license, the respondent
shall have the opportunity to contest or otherwise explain such prior
violation(s) through an adjudicative proceeding prior to a final decision being
made.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
Plc 213.06 License Conditions.
(a)
The New Hampshire regulatory authority shall include conditions in a
license whenever it determines that such conditions are necessary to:
(1) Provide greater assurance that the licensee
will comply with applicable law; or
(2) Minimize the potential for harm to public
health, safety, or welfare from any violations of applicable requirements.
(b)
Any conditions so added shall relate directly to the activity for which
the license is issued and shall be no more than reasonably necessary to achieve
the criteria in (a), above.
(c)
The determination of whether such conditions are reasonably necessary
shall be made based on:
(1) The nature and scope of the license being
issued; and
(2) The compliance history of the applicant,
including whether the applicant is a chronic non-complier.
(d)
The licensee may appeal any conditions included in a license pursuant to
this section in accordance with existing appeal routes established under
applicable law.
Source. (See Revision
Note at chapter heading for Plc 200) #13427, eff 8-4-22
APPENDIX
|
Rule |
Specific State Statute the Rule Implements |
|
|
|
|
|
|
Plc 101 |
RSA 310 |
|
|
Plc 102 |
RSA 310; RSA 541-A:16, I(a) |
|
|
Plc 103 |
RSA 310; RSA 91-A:4 |
|
|
|
|
|
|
Plc 200 (see below for additional
or more specific statutes) |
RSA 541-A:16, I(b) |
|
|
Plc 204 |
RSA 310-A:1-d, II(h)(2); RSA 310-A:1-j
|
|
|
Plc 206 |
RSA 541-A:16, I(b)(2); RSA 541-A:30-a;
RSA 541-A:33 |
|
|
Plc 206.07 |
RSA 541-A:30, III |
|
|
Plc 206.14 |
RSA 541-A:32 |
|
|
Plc 206.19 |
RSA 310-A:1-k, II |
|
|
Plc 207 |
RSA 541-A:16, I(b)(3) |
|
|
Plc 208 |
RSA 541-A:16, I(c) |
|
|
Plc 209 |
RSA 541-A:11, VII |
|
|
Plc 210 |
RSA 541-A:16, I(d) |
|
|
Plc 211 |
RSA 541-A:22, IV |
|
|
Plc 212 |
RSA 21-G:37, V |
|
|
Plc 213 |
RSA 310-A:1-d, II(d) |
|
|
|
|
|
Appendix
B: Statutory Definitions
RSA 541-A:1
I. “Adjudicative proceeding” means the
procedure to be followed in contested cases, as set forth in RSA 541-A:31
through RSA 541-A:36.
IV. “Contested case” means a proceeding in
which the legal rights, duties, or privileges of a party are required by law to
be determined by an agency after notice and an opportunity for hearing.
VIII. “License” means the whole or part of
any agency permit, certificate, approval, registration, charter or similar form
of permission required by law.
RSA
21-G:36
III. “Request for application (RFA)” means
an invitation to submit an offer to provide identified services to an agency
where the amount of funding available and the particulars of how the services
are to be provided are defined by the agency and where the selection of
qualifying vendors will be according to identified criteria as provided in RSA
21-I:22-a and RSA 21-I:22-b.
IV. “Request for bid (RFB)” means an
invitation to submit an offer to provide specified commodities or services to
an agency at a price proposed by the bidder where selection is based on the
lowest price meeting or exceeding specifications as stated in the bid.
V. “Request for proposal (RFP)” means an
invitation to submit a proposal to provide specified goods or services, where
the particulars of the goods or services and the price are proposed by the
vendor and, for proposals meeting or exceeding specifications, selection is
according to identified criteria as provided in RSA 21-I:22-a and RSA
21-I:22-b.
Appendix C:
Statutory Provisions
310-A:1-j
Investigations.
…
VI. Allegations of
professional misconduct shall be brought within 5 years from the time the
office reasonably could have discovered the act, omission or failure complained
of, except that conduct which resulted in a criminal conviction or in a
disciplinary action by a relevant licensing authority in another jurisdiction
may be considered by the board without time limitation in making licensing or
disciplinary decisions if the conduct would otherwise be a ground for
discipline. The board may also consider
licensee conduct without time limitation when the ultimate issue before the
board involves a pattern of conduct or the cumulative effect of conduct which
becomes apparent as a result of conduct which has occurred within the 5-year
limitation period prescribed by this paragraph.
310-A:1-k Disciplinary Proceedings; Remedial
Proceedings.
…
VII. Boards, councils, and
commissions may take non-disciplinary remedial action against any person
licensed by it upon finding that the person is afflicted with physical or mental
disability, disease, disorder, or condition deemed dangerous to the public
health. Upon making an affirmative
finding after notice and an opportunity for a hearing, the board, council, or
commission may take non-disciplinary remedial action:
(a)
By suspension, limitation, or restriction of a license for a period of
time as determined reasonable by the board.
(b)
By revocation of license.
(c)
By requiring the person to submit to the care, treatment, or observation
of a physician, counseling service, health care facility, professional
assistance program, or any combination thereof which is acceptable to the
board.
310-A:1-l Hearings, Decisions and Appeals. –
…
II. Notwithstanding any other provision of
law, allegations of misconduct or lack of professional qualifications that are
not settled shall be heard by the board, council, or commission, or a panel of
the board, council, or commission with a minimum of 3 members appointed by the
chair of the board or other designee. Any member of the board, or other person
qualified to act as presiding officer and duly designated by the board, shall
have the authority to preside at such hearing and to issue oaths or affirmations
to witnesses, rule on evidentiary and other procedural matters, and prepare a
recommended decision. In the case of a hearing before a panel, the presiding
officer shall prepare a recommended decision for the board, council, or
commission, which shall determine sanctions.
541-A:4
Petition for Adoption of Rules. –
I. Any interested person may petition an
agency to adopt, amend, or repeal a rule. Within 30 days of receiving the
petition, or 30 days after the next scheduled meeting of a board, commission,
or group receiving the petition, the agency shall determine whether to grant or
deny the petition and notify the petitioner. If the agency decides to deny the
petition, the agency shall notify the petitioner of its decision in writing and
shall state its reasons for denial. If the agency grants the petition, it shall
notify the petitioner and commence the rulemaking proceeding by requesting a
fiscal impact statement pursuant to RSA 541-A:5 within 120 days of receipt of
the petition and continuing the proceeding as specified in RSA 541-A:3.