Certified Final Objection No. 101 of the
Joint Legislative Committee on Administrative Rules
At its meeting on October 16, 1998, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 98-099 of the Board of Medicine (Board) relative to defining the practice of medicine. The Boards responded by letter dated November 6, 1998, received by the Office of Legislative Services on November 12, 1998, but did not amend the final proposal in response to the objection.
At its meeting on November 20, 1998, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 98-099. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:
After a final objection by the committee to a provision of a rule is
filed with the director under subparagraph V(d), the burden of proof
thereafter shall be on the agency in any action for judicial review or
for enforcement of the provision to establish that the part objected to is
within the authority delegated to the agency, is consistent with the
intent of the legislature, is in the public interest, or does not have a
substantial economic impact not recognized in the fiscal impact
statement. If the agency fails to meet its burden of proof, the court
shall declare the whole or portion of the rule objected to invalid. The
failure of the committee to object to a rule shall not be an implied
legislative authorization of its substantive or procedural lawfulness.
The bases for the Committee’s final objection are summarized as follows:
1. Authority and Legislative Intent
The Committee objected that rule Med 102.04 in Final Proposal 98-099 is, pursuant to Committee Rule 401.02, beyond the Board’s authority under RSA 329:1 and RSA 329:2 and contrary to legislative intent, pursuant to Committee Rule 402.02(a), to the extent that the rule expands the scope of practice of medicine under RSA 329:1 in violation of RSA 541-A:22, III(g), as set forth below.
Rule Med 102.04 in Final Proposal 98-099 states (with additions from the existing rule indicated in bold italics, and deletions by bracket and strike-through):
Med 102.04 "Practice of Medicine" means the practice of medicine or surgery as defined in RSA 329:1, including [
procedures which require the use of lasers] decisions and recommendations regarding the medical necessity or advisability for particular types of care or procedures for specific patients, provided, however, that activities which may lawfully be performed by health care professionals licensed under other New Hampshire statutes shall not be considered as the practice of medicine.
Board members testified before the Committee on October 16, 1998 that in their view these "decisions and recommendations" as described in the rule are the practice of medicine, and the person making them needs to be a New Hampshire-licensed physician.
The practice of medicine is described or defined in RSA 329:1 in part as follows:
Any person shall be regarded as practicing medicine under the meaning of this chapter who shall diagnose, treat, perform surgery, or prescribe any treatment of medicine for any disease or human ailment.
The Committee determined that the duties of the Board under RSA 329:2, II are limited to regulating the practice of medicine in New Hampshire. The Committee determined that to be within the Board’s authority, any amendment to the rule definition of "practice of medicine", by using the term "including", may only clarify what the practice of medicine in New Hampshire already means under RSA 329:1. The "decisions and recommendations" concerning "medical necessity or advisability" in Med 102.04 have to come within the statutory reach of diagnosing, treating, performing surgery, or prescribing any treatment of medicine for any disease or human ailment in New Hampshire.
RSA 541-A:22, III(g) prohibits an agency by rule to "expand or limit a statutory definition affecting the scope of who may practice a profession."
The Committee determined from evidence in the October 16, 1998 Committee meeting that RSA 329:1 has not been enforced by the Board in the past to include such "decisions and recommendations on medical necessity or advisability" for the purposes of determining insurance coverage but only for purposes of treatment, whether the decisions or recommendations were made by health maintenance organizations (HMO’s) or traditional indemnity insurers. In the Committee’s view a long-standing and consistent policy on enforcement by an agency of its governing statute carries weight in interpreting the intent of the statute.
Med 102.04 as written does not distinguish between treatment and coverage in the purpose of the decision or recommendation on medical necessity or advisability. The Committee concluded that the rule would under those circumstances expand the scope of the profession of practicing medicine beyond RSA 329:1 in violation of RSA 541-A:22, III(g), by requiring persons to obtain a license to practice medicine to perform the same acts for which in the past the Board had not required a license.
The Committee noted that, although the rule may have been prompted by concerns over managed care companies, the rule would encompass all persons who make decisions or recommendations regarding medical necessity or advisability as described in the rule, including traditional indemnity insurers, unless otherwise excepted by law, such as the case of professional consultations by out-of-state physicians under RSA 329:21.
Therefore, the Committee concluded that Med 102.04 is beyond the Board’s authority under RSA 329:1 and RSA 329:2 and contrary to legislative intent to the extent that the rule expands the scope of practice of medicine under RSA 329:1 in violation of RSA 541-A:22, III(g).
2. Legislative Intent and Matters More Appropriate to Statute
The Committee objected that Med 102.04 is contrary to legislative intent, pursuant to Committee Rule 402.03, by being a matter more appropriately addressed by statute because the rule is beyond the agency’s authority and in conflict with RSA 541-A:22, III(g) and RSA 329:1 and RSA 329:2.
For the reasons noted above relative to authority and legislative intent, the Committee determined that legislation appeared needed for the Board to have authority to change the definition of "practice of medicine" in the broad manner chosen by the Board.
Therefore, the Committee concluded that Med 102.04 for this reason is a matter more appropriate to legislation, and that Med 102.04 is contrary to legislative intent on this ground.
3. Public Interest
The Committee objected that Med 102.04 is contrary to the public interest, pursuant to Committee Rules 403.01(d) and 403.02(c), respectively, by not being clear and understandable and therefore not capable of uniform enforcement, as set forth below.
As noted above, it is not clear to the Committee how far Med 102.04 with its broad language extends. In the Committee’s view this language would, however inadvertently, extend the rule beyond the Board’s jurisdiction. The Committee determined that "decisions and recommendations" as to medical necessity or advisability for a specific patient might involve many people, and it is unclear to the Committee to what extent people will now be regulated by the Board for practicing medicine. In the Committee’s view the terms "medical necessity or advisability" are also general in nature.
It is also unclear to the Committee to what degree other NH-licensed health care professionals may lawfully make decisions on medical necessity or advisability under their own statutes and therefore, as Med 102.04 states, "not be considered the practice of medicine" and not be subject to the rule.
Therefore, the Committee determined that Med 102.04 is contrary to the public interest by being not clear and understandable and therefore not capable of uniform enforcement.
4. Fiscal Impact Statement
The Committee objected, pursuant to Committee Rule 404.01(a)(1), that Med 102.04 has a substantial economic impact not recognized in the fiscal impact statement (FIS) because the statement does not completely and correctly state the costs and benefits to the citizens of the state of Med 102.04.
The FIS was filed by the Board and published as part of the rulemaking notice in the New Hampshire Rulemaking Register on June 12, 1998 for Initial Proposal 98-099, which included proposed rule Med 102.04 and proposed rule Med 101.01 relative to purpose and scope of the Board’s rules. The FIS states that, "These are organizational rules and as such have no inherent fiscal impact." The stated impact on citizens and independently owned businesses is "None".
Both proposed rules were amended by the Board in response to public comment during the rulemaking process. The amended FIS filed with Final Proposal 98-099 on September 18, 1998 states that, "The Board of Medicine indicates that while some changes were made to the rules, there is no change to the above fiscal impact statement as a result of the rulemaking process."
However, there appeared to the Committee to be several potential costs from Med 102.04 in Final Proposal 98-099 due to the changes from the existing rule. In the Committee’s view, health insurers would now have to hire N. H. licensed doctors to make decisions or recommendations for N. H. patients if formerly they used other personnel, because the decisions and recommendations would now be the "practice of medicine’ in New Hampshire requiring N. H. licensed doctors.
The Committee also determined that doctors employed by insurers who currently make these decisions or recommendations would have to obtain a N. H. license if they are to continue in their jobs. In the Committee’s view the medical malpractice premiums may increase for those doctors.
The Committee noted that public testimony on October 16, 1998 alleged that premiums for health coverage would increase.
Therefore, although the Committee did not identify specific potential costs from Med 102.04, the Committee determined that Med 102.04 would have a substantial economic impact not recognized in the FIS because the FIS in the Committee’s view does not completely and correctly state the costs and benefits to the citizens of the state.