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 2001-5 containing rules of the Board of Mental Health Practice (Board) relative to licensing requirements, ongoing requirements and disciplinary matters. The Board responded by letter dated September 4, 2001.

At its meeting on September 21, 2001, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(e), to enter a revised objection to the objection response to Final Proposal 2001-5. The Board responded by letter dated September 27, 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 2001-5. 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:

The following summarizes the basis for the Committee’s final objection:

The Committee objected that Mhp 303.01 is, pursuant to Committee Rules 401.01(c) and 401.05(a), beyond the authority of the Board, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with a statute.

This section specifies the fees to be imposed by the Board. The Committee noted that the Board’s fee authority is found in RSA 330-A:10, XIX and RSA 330-A:12. The former statute requires the Board to adopt rules relative to "the establishment of all fees required under this chapter." [Emphasis added.] The latter statute specifies the items for which fees are required. It was the opinion of the Committee that the license application review fee, inactive fee, renewal fee for dual license, reinstatement fee, reactivation fee and monthly CEU late fee, specified in Mhp 303.01(a), (d), (e), (g), (h) and (j), respectively, are not encompassed within the fees authorized by RSA 330-A:12. Therefore, the Committee determined that there is no authority for the fees referenced above.

The Committee also determined that Mhp 303.01 is contrary to legislative intent because it conflicts with RSA 541-A:22, III(c) which prohibits agencies from using rules to "require a fee unless specifically authorized by a statute." [Emphasis added.]

The Committee objected that Mhp 402.03(b) and (c) are, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with a statute.

Mhp 402.03(b) and (c) permit the Board to take disciplinary action against licensees based solely on the imposition of disciplinary sanction by the certifying/licensing authority of another jurisdiction. The Committee noted that the rules permit the Board to take such action for any type of discipline imposed by the other jurisdiction. Under RSA 330-A:27, II(h), misconduct sufficient to warrant disciplinary proceedings includes "suspension or revocation of a license or registration, similar to one issued under this chapter, in another jurisdiction and not reinstated." [Emphasis added.] Because the rule would allow imposition of reciprocal discipline in more instances than permitted by the statute, the Committee determined that the rules conflict with RSA 330-A:27, II(h).

The Committee objected that Mhp 402.04(c) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with a statute.

The Committee noted that the rule authorizes, in the case of a continuing violation, a fine of up to $2,000 for each day the violation continues. Pursuant to RSA 330-A:27, III(e), administrative fines assessed by the Board in the case of continuing offenses shall not exceed "$200 for each day up to a total not exceeding $2,000." The Committee determined that the rule conflicts with RSA 330-A:27, II(h) because the rule allows a higher fine per day and does not place a cap on the total fine amount.

The Committee objected that Mhp 405 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by conflicting with a statute.

Mhp 405 specifies how persons whose licenses have been expired for less than 6 months may have their licenses reinstated. The Committee noted that RSA 330-A contains no reference to reinstatement of licenses. The Committee has, in the past, noted that there are a number of occupational licensing boards to which the General Court has granted specific rulemaking authority concerning reinstatement of expired licenses (e.g., Board of Medicine; RSA 329:9, IV). It has consistently been the opinion of the Committee that where the General Court has granted rulemaking authority to undertake a specific action to some agencies, but not to others, it was the intent of the General Court that the latter group of agencies not have the specified authority. Therefore, the Committee determined that the General Court has not granted authority to the Board to permit reinstatement of licenses as a shortcut to becoming re-licensed.

The Committee objected that Mhp 501.02(a) is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, and, pursuant to Committee Rule 402.02(b)(1), contrary to legislative intent by violating a provision of RSA 541-A during the rulemaking process.

The Committee noted that Mhp 501.02(a) incorporates by reference the ethical guidelines of several national associations. The Committee also noted that no specific publication dates or editions were referenced as required by Ch. 4, § 3.14 of the New Hampshire Drafting and Procedure Manual for Administrative Rules (Manual). The Committee determined that failure to comply with the Manual violates RSA 541-A:8.

The Committee observed that no incorporation by reference statements were filed for the documents incorporated by Mhp 501.02(a). Pursuant to RSA 541-A:12, III, such a statement is required "if the agency incorporates into its rules any document prepared by any entity outside the agency." The Committee determined that the failure to file incorporation by reference statements violates RSA 541-A:12, III.