Joint Legislative Committee on Administrative Rules
Final Objection No. 119
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 2001-4 of the Board of Mental Health Practice (Board) relative to its practice and procedure. 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 2001-4. 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 2001-4. 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:
1. Mhp 201.04
The Committee objected that Mhp 201.04 is, pursuant to Committee Rules 402.02(a) and (b), contrary to legislative intent by conflicting with RSA 541-A and, pursuant to Committee Rule 403.01(d), contrary to the public interest by not being clear and understandable.
The rule governs waiver of procedural rules or orders. Specifically, the rule provides, in pertinent part, that "a motion for waiver or suspension of a procedural rule or order shall establish good cause for granting the requested relief."
The Committee determined that the rule is unclear as to what the Board will consider to constitute "good cause." The Committee noted that the Board provided no criteria or procedure for making such determinations, and it would have to interpret the rule each time the rule was applied, which could lead to the rule not being applied uniformly. In the Committee’s view, such interpretations and their application would amount to requirements being set outside the process mandated for the adoption of rules, in violation of RSA 541-A:3.
The Committee also noted that RSA 541-A:8 requires each agency, including the Board, to comply with the New Hampshire Drafting and Procedure Manual for Administrative Rules (Manual). The requirements for drafting discretionary decision-making provisions are stated in Ch. 4, §3.8 of the Manual, and the Committee concluded that Mhp 201.04 does not conform to those requirements.
Further, the Committee noted that RSA 541-A:16, I(b) requires each agency, including the Board, to adopt as rules all formal and informal procedures available. The Committee concluded that the procedure for requesting and considering such motions for waiver falls within the scope of RSA 541-A:16, I(b), and that failure to have such rules is not consistent with legislative intent.
Finally, the Committee noted that RSA 541-A:22, I, provides that "no agency rule is valid or effective against any person or party, nor may it be enforced by the state for any purpose, until it has been filed as required by this chapter." In the Committee’s view, this provision is a bar to any agency applying or enforcing something that satisfies the definition of a rule under RSA 541-A:1, XV, but has not been adopted pursuant to the process mandated by RSA 541-A. As the criteria and procedure to be applied to determining whether a request for a waiver or suspension have not been adopted as rules, the Committee concluded that application of Mhp 201.04 conflicts with RSA 541-A:22, I.
2. Mhp 205.02(d)
The Committee objected that Mhp 205.02(d) is, pursuant to Committee Rule 401.03, beyond the authority of the Board under RSA 330-A:28, I and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with that statute and RSA 91-A.
The provision governs complaints alleging misconduct by licensees and states in its entirety that "a complaint shall be a confidential document subject to public disclosure only as provided by Mhp 210.04(f)." The Committee noted that RSA 330-A:28, I exempts "investigations and materials gathered in such investigations" from the public disclosure provisions of RSA 91-A. However, the Committee determined that the exemption does not apply to complaints because, in the view of the Committee, complaints are not things "gathered in such investigations" but actually precede investigations.
The Committee noted that the general rule under RSA 91-A is that documents are subject to disclosure unless there is specific authority for withholding the document. The Committee took into consideration that RSA 330-A:28, I, expressed a clear intent that, from a certain point in the investigatory process, information be exempt from disclosure. However, as stated above, the Committee concluded that the exemption did not include the complaint, and that the Board cited no other specific authority that either mandated or allowed the complaint to be withheld. Thus, the Committee further concluded that the Board lacked authority under RSA 330-A:28, I to so provide by rule.
3. Mhp 206.11(a)(1)
The Committee objected that Mhp 206.11(a)(1) is, pursuant to Committee Rules 401.01(c) and 401.04, beyond the authority of the Board by violating the New Hampshire Constitution, pursuant to Committee Rule 402.04, contrary to legislative intent by violating the New Hampshire Constitution and, pursuant to Committee Rule 403.01(d), contrary to the public interest by not being clear and understandable.
These provisions govern methods of proceeding when agreed upon by the parties to an adjudicative proceeding. Specifically, the rule states in pertinent part:
(a) If the parties agree it [sic] shall proceed as follows:
The Committee noted that the Board is the successor to the Board of Examiners of Psychologists, one of the parties in Petition of Ruediger Grimm, Ph.D., 138 N.H. 42 (1993). In that case the New Hampshire Supreme Court held that in any case in which "the disposition turns on the credibility of the witnesses’ testimony" due process requires those who are deciding the case "to be in attendance for all of the parties’ testimony, plus any other testimony on the issue of credibility, in order to effectively assess the issue of credibility." Thus, the Committee determined that Mhp 206.11(a)(1) is inconsistent with the holding in Grimm, as the rule requires that the parties must agree to the process that the Court held is mandated by due process under the New Hampshire Constitution. The Committee also concluded that the Board has no authority, and it is contrary to legislative intent for the Board to adopt a rule, that is inconsistent with the Constitution.
The Committee also noted that Mhp 206.11(b) provides that if the parties do not agree on a method of proceeding, for the matter, then the matter "shall proceed to an adjudicatory hearing." In the view of the Committee, this created confusion as to what was intended by Mhp 206.11(a)(1), because if the parties did not agree to that type of proceeding, it still would be the process to be followed.
4. Mhp 206.15(e)
The Committee objected that Mhp 206.15(e) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board under RSA 330-A:27, II(h) and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with that statute.
The provision states in its entirety, "when the board receives notice that a licensee has been subjected to disciplinary action by the licensing authority of another jurisdiction, the board shall
issue an order directing the licensee to demonstrate why reciprocal discipline should not be imposed in New Hampshire."
The Committee noted that RSA 330-A:27, II(h) authorizes reciprocal discipline in very narrow circumstances, only. Specifically, the statute allows reciprocal discipline only in the instance in which another jurisdiction suspends or revokes a license or registration similar to one issued by the Board under RSA 330-A, and then does not reinstate such license or registration.
The Committee observed that the rule departs from the statute in two ways. First, the rule provides that any disciplinary action, and not just suspension or revocation, will trigger the reciprocal discipline process in New Hampshire. Second, the Board will not wait for the other jurisdiction’s decision as to whether it will reinstate the suspended or revoked license or registration. The Committee concluded that the Board could seek to impose sanctions in the first instance under other authority in RSA 330-A, but that it only possessed authority to impose reciprocal discipline under the specific circumstances set forth in RSA 330-A:27, II(h).
5. Mhp 212.01(b)(3)
The Committee objected that Mhp 212.01(b)(3) is, pursuant to Committee Rule 403.01(d), contrary to the public interest by not being clear and understandable.
The section governs petitions for declaratory rulings. Mhp 212.01(b)(3) requires that each petition contain, among other statements and information, "a statement as to how and why the issuance of a ruling on this subject would benefit the petitioner and the public at large."
The term "declaratory ruling" is defined by RSA 541-A:1, V, as "an agency ruling as to the specific applicability of any statutory provision or of any rule or order of the agency." The Committee noted that the definition refers to "specific applicability" whereas the definition of "rule" pursuant to RSA 541-A:1, XV refers to "general applicability."
In the Committee’s view, since declaratory rulings are statements of specific applicability, they are binding only upon the petitioner and the agency. Thus, the Committee concluded that the requirement that the petitioner indicate how the public at large will benefit from the issuance of the ruling was irrelevant. Similarly, the Committee concluded that if it were possible that the public at large would be affected, the ruling would be a statement of general applicability, and therefore a rule that would be required to be adopted through the process set forth in RSA 541-A:3. Finally, the Committee concluded that the benefit to the petitioner would always be that the petitioner would receive a formal statement as to whether a particular statute, rule or order applied to him or her, and that it was unclear what other benefit the Board expected the petitioner to describe.