SPECIAL MEETING

TENTATIVE AGENDA

MAY 5, 2003 - 9:00 a.m.

ROOMS 202/204 - LEGISLATIVE OFFICE BUILDING

Senate Members of JLCAR

House Members of JLCAR

 

 

Clifton C. Below, Vice-Chair

Betsey L. Patten, Chair

Iris W. Estabrook

Maurice E. Goulet

Robert B. Flanders

Robert S. Mercer

Theodore L. Gatsas

Kathleen N. Taylor

Sylvia B. Larsen

Janet G. Wall

Lou D'Allesandro (Alt.)

Nelson S. Allan (Alt.)

Robert K. Boyce (Alt.)

MaryAnn N. Blanchard (Alt.)

Burton J. Cohen (Alt.)

Larry A. Emerton, Sr. (Alt.)

Andre Martel (Alt.)

Dennis H. Fields (Alt.)

Jane O'Hearn (Alt.)

Dennis P. Vachon (Alt.)

 

The times and order specified for the agenda and items listed below are only tentative. The Committee may change the order or may change the amount of time allotted for such items.

1. 9:00 am Convene and Review Minutes

 

 

 

Regular Agenda

 

 

 

2. 9:05 am Disc. on Postponing Item OR 2002-182 He-W

6. 10:30 am Disc. on joint resolutions Mhp

3. 9:15 am Disc. on suspension of rules for OR

7. 11:15 am Disc. on practice and procedure rules

2002-111 Wt, and ROR 2002-156 Env-Ws

8. 12:00 pm LUNCH BREAK

4. 10:00 am Disc. on Env-A 1611

9. 1:00 pm Petition Responses

5. 10:15 am Disc. on joint resolution He-P

 

 

Other Business

 

10. 3:00 pm Other

FP - Final Proposal

OR - Preliminary Objection Response

ROR - Revised Objection Response

ER - Emergency Rule

INT - Interim Rule

1. Convene and Review Minutes

JLCAR Deadlines Noted Below:

For OR's and ROR's: Deadline is for sponsoring a joint resolution.

 

REGULAR AGENDA

 

2. Discussion on postponing the following item to the May 19 meeting. It was inadvertently included in the Committee's votes on April 21 to create an agenda for the special meeting.

OR 2002-182

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Public Health Services

NH Rules for the Sanitary Production and Distribution of Food

(JLCAR Deadline June 27, 2003)

(Formerly Item 21-b on 4-21-03 agenda)

 

 

3. DEPARTMENT OF ENVIRONMENTAL SERVICES

 

 

(a) Discussion on whether to suspend Committee rules to reconsider vote on 3-24-03 to approve:

 

 

OR 2002-111

Division of Water

Wetland Bureau

Permitting Plan Requirements

(JLCAR Deadline May 27, 2003 if vote to reconsider is taken)

(Formerly Item 14-e on 4-21-03 agenda)

 

 

(b) ROR 2002-156

Division of Water

Env-Ws 1900 Instream Flow Rules

(JLCAR Deadline July 25, 2003)

 

 

4. Discussion on Rep. Mary Ellen Martin's concerns relative to Env-A 1611 Oxygen-Flexible Reformulated Gasoline. (Formerly Item 22 on 6-20-02 agenda, Item 21 on 7-18-02 agenda, Item 15 on 8-15-02 agenda, Item 17 on 9-19-02 agenda, Item 18 on 10-17-02 and 11-21-02 agendas, Item 15 on 12-19-02 agenda, Item 20 on 1-27-03 agenda, Item 18 on 2-21-03 agenda and 3-24-03 agenda, and Item 17 on 4-21-03 agenda.)

 

5. Discussion on status of joint resolution relative to OR 2000-146 of the Department of Health and Human Services (Former Division of Public Health Services, He-P 801 General Requirements for All Facilities). (Formerly Item 17 on 4-19-02 agenda, Item 13 on 5-22-02 and 5-31-02 agendas, Item 18 on 6-20-02 agenda, Item 17 on 7-18-02 agenda, Item 16 on 8-15-02 agenda, Item 18 on 9-19-02 agenda, Item 19 on 10-17-02 and 11-21-02 agendas, Item 16 on 12-19-02 agenda, Item 21 on 1-27-03 agenda, Item 19 on 2-21-03 agenda and 3-24-03 agenda, and Item 18 on 4-21-03 agenda.)

 

6. Discussion on joint resolution relative to ROR 2001-3 and ROR 2001-4 of the Board of Mental Health Practice (Mhp 103.05 on quorum, and select rules of practice and procedure Mhp 201.04, Mhp 205.02(d), Mhp 206.11(a)(1), Mhp 206.15(e), and Mhp 212.01(b)(3)). (Formerly Item 19 on 4-19-02 agenda, Item 16 on 5-22-02 and 5-31-02 agendas, Item 21 on 6-20-02 agenda, Item 20 on 7-18-02 agenda, Item 19 on 8-15-02 agenda, Item 21 on 9-19-02 agenda, Item 22 on 10-17-02 and 11-21-02 agendas, Item 17 on 12-19-02 agenda, Item 22 on 1-27-03 agenda, Item 20 on 2-21-03 agenda and 3-24-03 agenda, and Item 19 on 4-21-03 agenda.)

 

7. Discussion on Committee staff comments to agency rules of practice and procedure based on Jus 800 model rules. (Formerly Item 10 on 3-15-02 agenda, Item 9 on 4-19-02 agenda, Item 14 on 5-22-02 and 5-31-02 agendas, Item 19 on 6-20-02 agenda, Item 18 on 7-18-02 agenda, Item 17 on 8-15-02 agenda, Item 19 on 9-19-02 agenda, Item 20 on 10-17-02 and 11-21-02 agendas, Item 18 on 12-19-02 agenda, Item 23 on 1-27-03 agenda, Item 21 on 2-21-03 agenda and 3-24-03 agenda, and Item 20 on 4-21-03 agenda.)

 

8. LUNCH BREAK

 

 

 

9. Responses to Petitions

(a) Petition to the Board of Accountancy to amend (1) rules Ac 301.03, Ac 301.05, Ac 303.01 and Ac 303.03 relative to fees, registration, destruction of exams, and prohibition from sitting for the CPA exam, and (2) various rules in Ac 400 relative to renewal of licenses and registration and continuing education. (Petition made November 13, 1998. Final Objections #99 and #100 were also made. Petition denied, but further review projected in 1999. See response letter dated December 2, 1998. Rulemaking was begun to readopt w/amendments Ac 301.02 and Ac 301.03, with notice published December 14, 2001 (NN 2001-166). Conditionally approved by Committee on February 15, 2002, confirmed by Committee legal counsel on February 22, 2002, and effective March 8, 2002 (Document #7659). No other proposals filed. Committee petitioned again on September 19, 2002 on outstanding issues, that is, to amend same rules except Ac 301.03. Petition denied, but rulemaking planned. See response letter dated November 14, 2002. No rulemaking yet. Issues remain for Ac 301.05, Ac 303.01, Ac 303.03, and Ac 400.)

 

(b) Petition to the Board of Professional Engineers to amend rules in chapters Eng 200 through Eng 500 to address outstanding issues from Objection Response 98-082. (Petition made November 20, 1998. Petition denied. See denial letter dated December 11, 1998. Petition made again July 16, 1999 relative to Eng 300 through Eng 500. Petition denied again. See denial letter dated July 26, 1999. However, rulemaking was begun, with notice published September 22, 2000 (NN 2000-160), to adopt Eng 200 based model rules of the Department of Justice and to amend selected rules in Eng 300 and Eng 400 that were not subject to petition. The Committee made a preliminary objection to Final Proposal 2000-160 on January 19, 2001, and the objection response was approved on March 16, 2001. Rules effective March 24, 2001 (Document #7468-A and 7468-B). Committee voted on October 17, 2002 to send history of JLCAR action and agency response to State Building Code Review Board, Joint Board, and House and Senate ED & A Committees, but mailing delayed pending approval of text by JLCAR Chair and Vice-Chair. Final Proposal 2002-109 containing amendments to Eng 302.02 on fees was on JLCAR agenda for November 21, 2002 and was approved. Issues remain for Eng 300-500, except Eng 302.02.)

 

(c) Petition to the Health Services Planning and Review Board to amend rules He-Hea 602.04 and He-Hea 606 relative to uncompensated care and MRI scanners to address outstanding issues from Final Proposal 99-202 (Document #7268, effective May 10, 2000. (Petition made April 21, 2000. Petition denied due to timing, but rulemaking was planned on uncompensated care. See response letter dated June 6, 2000. Petition made again April 19, 2002. Petition granted. See response letter dated May 24, 2002, follow-up letter about delay dated August 26, 2002, and letter dated October 31, 2002 about rulemaking NN 2002-143 & 144 to amend He-Hea 200 and 300 and He-Hea 1600, respectively. See uncompensated care subcommittee list also provided by Board on October 24, 2002 at JLCAR request. Final Proposal 2002-143 received a JLCAR preliminary objection on April 21, 2003. Final Proposal 2002-144 was withdrawn before April 21, 2003. Uncompensated care provisions for all He-Hea rules are in Final Proposal 2002-143. He-Hea 602.04 and He-Hea 606 must still be amended, however, to be consistent.)

 

(d) Petition to the Health Services Planning and Review Board to amend rule He-Hea 1903.09 relative to uncompensated care and ambulatory surgical facilities to address outstanding issues from Final Proposal 99-203 (Document #7269, effective May 20, 2000). (Petition made April 21, 2000. Petition denied due to timing, but rulemaking was planned on uncompensated care. See response letter dated June 6, 2000. Petition made again April 19, 2002. Petition granted. See response letter dated May 24, 2002, follow-up letter about delay dated August 26, 2002, and letter dated October 31, 2002 about rulemaking NN 2002-143 & 144 to amend He-Hea 200 and 300 and He-Hea 1600, respectively. See uncompensated care subcommittee list also provided by Board on October 24, 2002 at JLCAR request. Final Proposal 2002-143 received a JLCAR preliminary objection on April 21, 2003. Final Proposal 2002-144 was withdrawn before April 21, 2003. Uncompensated care provisions for all He-Hea rules are in Final Proposal 2002-143. He-Hea 1903.09 must be amended, however, to be consistent.)

(e) Petition to the Health Services Planning and Review Board to amend rule He-Hea 1602.11 relative to uncompensated care and megavoltage radiation to address outstanding issues from Objection Response 99-166 (Document #7236, effective April 26, 2000, later amended by Document #7385, effective October 25, 2000. (Petition made April 21, 2000. Petition denied due to timing, but rulemaking was planned for uncompensated care. See response letter dated June 6, 2000. Petition made again April 19, 2002. Petition granted. See response letter dated May 24, 2002, follow-up letter about delay dated August 26, 2002, and letter dated October 31, 2002. Rulemaking begun for He-Hea 1600 with notice published in the Rulemaking Register (NN 2002-144) on November 1, 2002. See uncompensated care subcommittee list provided by Board at JLCAR request. Final Proposal 2002-143 received a JLCAR preliminary objection on April 21, 2003. Final Proposal 2002-144 was withdrawn before April 21, 2003. Uncompensated care provisions are in Final Proposal 2002-143. He-Hea 1602.11 must still be amended, however, to be consistent.)

 

(f) Petition to the Department of Health and Human Services to amend rules on foster care licensing He-C 6446.06(b)(10), He-C 6446.07(c), He-C 6446.27(a)(3), and He-C 6446.27(c)(3) to address question of authority to require and examine arrest records of foster parent applicants and household members and deny licenses based upon consideration of those records. See Objection Response 2000-18 (Document #7321, effective July 22, 2000. (Petition made July 21, 2000. Petition denied due to timing. See response letter dated August 22, 2000. Department reported by e-mail on April 30, 2003 that draft rules are being reviewed internally to address these issues and issues in LBA audit of 2000. No proposal on He-C 6446 filed yet, so issues still remain.)

 

(g) Petition to the Department of Safety to amend (1) rules Saf-C 3105.02(c) and 3105.03(b) to address question of authority to require records of arrests and indictments of applicants and licensees for driver education certificates and deny, revoke, or suspend certificates based upon consideration of those records, and (2) rule Saf-C 3120.03 to clarify tractor-trailer license disqualification and hearings, and (3) rule Saf-C 3113.06 to address testimony of Daniel Steele on August 18, 2000 relative to clock hours per day of behind-the-wheel driving instruction. (Petition made August 18, 2000. Petition denied only due to timing, but rulemaking (except for Mr. Steele's concern) was planned within 12 months. See response letter dated September 8, 2000. (A Department letter dated August 22, 2000 had also been sent.) No proposal filed. Petition made again April 19, 2002. Petition denied due to timing and agency staff review of entire Chapter Saf-C 3100. See response letter dated May 23, 2002. No proposal filed yet, so issues still remain.)

 

(h) Petition to the Insurance Department to amend rules Ins 1703.01(a) and Ins 1703.15(a) relative to medical malpractice to address outstanding issues from Revised Objection Response 2000-1. These issues concerned lack of criteria and procedure for extensions of filing assessments for stabilization reserve fund pursuant to RSA 400-A:31 and rules governing hearings held by the Board of the New Hampshire Medical Malpractice Joint Underwriting Association. (Petition made October 20, 2000. Petition denied. See response letter dated November 21, 2000. See also RSA 400-A:31, I amended by 2002, 207:1, effective July 15, 2002, to change filing date from March 1 to March 15. Ins 1703.01(a) must be amended to be consistent with 2002, 207:1, and issue with Ins 1703.15(a) remains.)

 

(i) Petition to the Fish and Game Department to adopt rules of practice and procedure governing rulemaking hearings, rulemaking petitions, petitions for declaratory rulings, and agency explanations of a rule pursuant to RSA 541-A:11, VII. (Petition made October 20, 2000. No response. Petition made again April 19, 2002. Petition granted. See response letter dated May 28, 2002. No proposal filed yet, so issues remain.)

 

(j) Petition to the State Treasurer to amend rules Tre 300 on abandoned property to address outstanding issues remaining from Objection Response 99-207. (Petition made November 17, 2000. Petition granted. See response letter dated December 18, 2000. Although rules Tre 300 in Objection Response 99-207 were adopted and filed (Doc. #7435, effective 1-25-01), proposed amendments to Tre 300 were not thereafter proposed and filed. Notices for Tre 100 and Tre 200 were published in the Rulemaking Register on March 2, 2001 (NN 2001-33 & 34). FPs 2001-33 & 34 were approved by JLCAR on July 20, 2001, but not adopted and filed until November 5, 2001 and November 6, 2001, effective November 7, 2001 (Doc. #7588 and #7589-A & B). Petition made again for Tre 300 on April 19, 2002. Petition denied. See response letter dated May 23, 2001 [sic]. No proposal filed, so issues remain.)

 

(k) Petition to the Department of Transportation to adopt the rules within Tra 307 on motorist service (logo) signing which had expired on January 1, 2000 (Document #5741), and recommendation that the Department initiate interim rulemaking to adopt the expired portions of Tra 307. (Petition made November 17, 2000. No response yet. No proposal filed, so issues remain.)

 

(l) Petition to the Department of Health and Human Services to amend He-A 300 on certification of alcohol and other drug abuse disorder treatment providers to address outstanding issues remaining from Objection Response 2001-30 and Commissioner's request letter of May 18, 2001 to Sen. Below. (Petition made May 18, 2001. No response yet. No proposal filed, so issues remain.)

 

(m) Petition to the Board of Education to amend Ed 1100 on standards for the education of children with disabilities to address outstanding issues remaining from Objection Response 2000-183 (Document #7515, effective July 1, 2001) relative to:

Ed 1109.04(a), to address timeline issues regarding hearings;

Ed 1111.01(a), to include citation to compliance with RSA 186-C on extended school year services;

Ed 1121.07(d), to be more permissive in allowing foster parents to act as surrogate parents;

Ed 1125.05, to address the issue of requiring a due process hearing by LEA in every case of parental refusal to consent to a change or changes to a student's IEP; and

Ed 1133.17(b), to address lack of authority to allow de facto delegation of rulemaking authority to insurance providers by requiring certain facilities to maintain coverage in the amounts recommended by the facilities' insurance providers.

(Petition made May 18, 2001. Petition denied. See response letter dated December 18, 2001. 2002, 205 (SB 354), effective July 1, 2002, amended RSA 186-C to authorize foster parents to act in certain circumstances as educational advocates for foster children with educational disabilities. 2002, 158 (SB 395), effective July 14, 2002, authorizes Commissioner to appoint a surrogate parent in certain circumstances for educational decision-making. All issues except for Ed 1121.07(d) remain, and rulemaking needed to implement 2002, 205.)

 

(n) Petitions to agencies without rules, and selected agencies missing certain rules, to adopt the rules required by RSA 541-A and the agencies' statutes. Petitions made October 19, 2001. In all, 21 petition letters were signed by the JLCAR Chair and Vice-Chair and issued on dates noted below for 14 agencies (by May 22, 2002) without rules and 7 selected by JLCAR from those agencies missing certain rules:

(1) Letters issued November 16, 2001 to the following agencies:

a. Board of Licensing for Alcohol and Other Drug Abuse Professionals (agency without rules);

b. Adjutant General (agency without rules); and

c. Board of Accountancy (agency missing certain rules).

Petition to the Board of Licensing for Alcohol and Other Drug Abuse Professionals was effectively granted in part. See letter dated December 10, 2001. Petition to the Adjutant General was effectively denied. See letter dated December 13, 2001. Petition to the Board of Accountancy was granted but agency requested extension to begin rulemaking. See letter dated December 21, 2001 and related letter of November 14, 2002. See 2002, 248:6, effective May 17, 2002, amending RSA 110-B:8-a to exempt Adjutant General from RSA 541-A. No proposals filed for the two boards, so issues remain.

(2) Letters issued March 15, 2002 to the following agencies missing certain rules:

a. Office of Licensed Allied Health Professionals (Ahp);

b. Board of Acupuncture Licensing (Acp); and

c. Department of Administrative Services (Adm).

Petitions were effectively granted, but rulemaking would be delayed. See response letters dated April 5, 2002, April 11, 2002, and April 15, 2002 from, respectively, the Office of Licensed Allied Health Professionals (OLAHP), the Department of Administrative Services, and the Board of Acupuncture Licensing. Final Proposals 2002-134 & 135 of the Board of Acupuncture Licensing were approved by JLCAR on 3-24-03. SB 227 in the 2003 legislative session proposes to amend RSA 328-F for the OLAHP and RSA's for the Governing Boards, and Board of Podiatry. Rulemaking will be necessary. Original issues remain with Administrative Services.

(3) Letters issued April 19, 2002 to the following agencies missing certain rules:

a. Architectural Barrier-Free Design Committee (Abfd);

b. Department of Agriculture, Markets and Food (Agr); and

c. State Apprenticeship Council (App).

Petitions for Abfd and App granted. Petition for Agr granted in part and denied in part. See response letters from Architectural Barrier-Free Design Committee and the Commissioner of the Department of Labor as Chairman of State Apprenticeship Council, dated May 6, 2002 and May 8, 2002, respectively, and the Department of Agriculture, Markets and Food dated May 16 and May 20, 2002.

Rulemaking for Abfd began with notices published May 31, 2002 (NN 2002-64 & 66). JLCAR approved FP 2002-64, and conditionally approved FP 2002-66, on September 11, 2002. Rules in FP 2002-64 became effective October 2, 2002 (Doc. #7770), and rules in FP 2002-66 became effective October 26, 2002 (Doc. #7783). Issues resolved.

Selective rulemaking undertaken by Agr. See attached.

Rulemaking begun by App with notice published for App 200 on October 12, 2002 (NN 2002-139). FP 2002-139 received a preliminary objection January 27, 2003. OR 2003-139 was approved March 24, 2003. App 200 effective April 1, 2003. (Docs. #7864-A & B). Issues resolved.

(4) Letters issued May 22, 2002 to the following agencies without rules:

a. Ombudsman, Department of Health and Human Services (Omb). Petition granted. See response letter dated June 18, 2002. Rulemaking begun for Omb 400 with notice published in Rulemaking Register (NN 2002-153) on November 8, 2002. No FP yet.

b. Juvenile Parole Board (Juv). No response, but rulemaking began, with notices published in the Rulemaking Register on September 20, 2002 (NN 2002-127 thru 129). FP 2002-127 was approved by JLCAR on November 21, 2002, and FP's 2002-128 & 129 received preliminary objection. Objections Response 2002-129 was approved by JLCAR on December 19, 2002 and Objection Response 2002-128 received a revised objection on December 19, 2002. Revised Objection Response 2002-128 was approved with a recommendation for legislation on January 27, 2003. See letter dated January 30, 2003. No other issues remaining.

c. Board of Licensing of Alcohol and Other Drug Abuse Professionals (Alc). No response, but see response of December 10, 2001 to petition of November 16, 2001. Issues remain.

d. Director, Division of Information Technology, Department of Administrative Services (Info). Petition denied due to timing, but rules being drafted. See response letter dated January 3, 2003. No proposal yet, so issues remain.

e. Site Evaluation Committee (Site). No response, so issues remain.

f. Board of Trustees of University System of New Hampshire (Un). Petition granted. See response letter dated July 1, 2002. Rulemaking begun for Un 811 with notice published in Rulemaking Register (NN 2002-151) on November 8, 2002. It was withdrawn and notice published again on February 21, 2003. No FP yet. No other rulemaking begun than Un 811, so issues remain.

g. Board of Claims (Cla). No response. Issues remain.

h. State Conservation Committee (Cons). Petition granted. See response letter dated May 28, 2002. No proposals yet, so issues remain.

i. Department of Cultural Resources (Cul). No response. Issues remain.

j. Evaluation Committee (Ev). Petition denied due only to timing. See response letter dated August 21, 2002. No proposal yet, so issues remain.

k. Railroad Appeals Board (Rai). Petition still being considered. See response letter dated June 20, 2002. No proposal yet, so issues remain.

l. Board of Podiatry (Pod). Petition granted. See response letter dated May 29, 2002. Rulemaking began for Pod 100, Pod 300-500, and Pod 200 with notices published in the Rulemaking Register (NN 2002-54, 2002-55, and 2002-100, respectively). NN 2002-55 was withdrawn on October 10, 2002. Final Proposal 2002-54 was approved by JLCAR on November 21, 2002, and Final Proposal 2002-100 received a preliminary objection. Objection Response 2002-100 was approved by JLCAR on January 27, 2003. Issues with Pod 300-500 remain. SB 227 in 2003 legislative session amends RSA 315, and further rulemaking may be necessary anyway.

 

(o) Petition to the Board of Mental Health Practice to address the requirement in RSA 330-A:15 regarding a model statement of the patients mental health rights by adopting the model statement as rules. (Petition made December 14, 2001. Petition denied. See response letter dated January 7, 2002. Rulemaking begun again due to resolution of court case, with notice published in the Rulemaking Register on March 21, 2003 (NN 2003-34) and rulemaking hearing scheduled for May 9, 2003. Issues may remain.)

 

(p) Petition to the Pari-Mutuel Commission to repeal emergency rule Pari 324.01 (Document #7706, effective 6-7-02 and expired 12-4-02.) Trainer of Thoroughbred Racing Horse as Absolute Insurer. (Petition made June 20, 2002. Petition denied. See response letter dated July 19, 2002. Note that rulemaking begun for Pari 500-900 with notice published February 7, 2002 (NN 2002-14). Pari 600, 700 & 900 were withdrawn. FP 2002-14 (Pari 500 Administrative Rules Applicable to All Licensee and Pari 800 Greyhound Racing) received a preliminary objection on September 19, 2002. OR 2002-14 was approved with a recommendation for future rulemaking on December 19, 2002. Rules effective January 11, 2003 (Doc. #7820). Issues remain, since there are no rules on horse racing under RSA 284:12 & RSA 284:19 except in Pari 500.)

 

(q) Petition to the Department of Safety to adopt rules relative to special number plates for veterans under RSA 261:87-b. (Petition made July 18, 2002. No written response yet, although JLCAR staff was informed by Department that rulemaking was planned for Saf-C 500 to address the issue. Rulemaking notice for Saf-C 500 was published April 18, 2003 (NN 2003-44). Department has tried to address issue as petitioned. See Saf-C 504.07 and Saf-C 514.63 proposed.)

 

(r) Petition to the Department of Safety to adopt or amend rules in Saf-C 6700 to implement RSA 651-C:2, III, relative to the collection and submission of DNA samples and records. (Petition made August 15, 2002. Petition denied. See denial letter dated September 11, 2002. Note that HB 215 in the 2003 legislative session addresses expungement of records in RSA 651-C:5, I, but that is unrelated to need for rules to implement RSA 651-C:2, III, so issues remain.)

 

OTHER BUSINESS

10. Other