Joint Legislative Committee on Administrative Rules
Final Objection No. 118
At its meeting on July 20, 2001, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A: 13, IV, to enter a preliminary objection to Final Proposal 2001-3 of the Board of Mental Health Practice (Board) relative to its organization. The Board responded by letter dated September 4, 2001.
At its meeting on September 21, 2001, the Committee voted, pursuant to RSA 541-A:13, V(e), to enter a revised objection to Final Proposal 2001-3. The Board responded by letter dated October 11, 2001.
At its meeting on December 14, 2001, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2001-3. 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 in the rule is filed with the director under subparagraph V(f), the burden of proof 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 following summarizes the basis for the Committee’s final objection:
The Committee objected that Mhp 103.05 is, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with RSA 91-A.
The rule provides, in pertinent part, that "except as otherwise provided by law, a quorum shall not be required to conduct a hearing or receive information…" The Committee determined that this statement is not consistent with RSA 91-A. Specifically, in the Committee’s view, pursuant to RSA 91-A:2, I, the Board must actually convene a quorum to transact any of the functions that affect any or all citizens of the state, as stated in RSA 91-A:1-a, I. The Committee concluded that any fewer than a quorum simply cannot act as the Board and cannot transact the functions of the Board.