Certified Final Objection No. 132 of the

Joint Legislative Committee on Administrative Rules

At its meeting on June 4, 2004, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2004-36 containing proposed rules of the Department of Health and Human Services relative to outpatient hospital emergency department co-payments.

At its meeting on September 1, 2004 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2004-36. 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 bases for the Committee’s final objection:

1. Fiscal Impact

Pursuant to Committee Rule 404.01(a), the Committee objected that He-W 543.12(b) contains a substantial economic impact not recognized in the fiscal impact statement.

He-W 543.12(b), require hospitals to impose a co-payment of $6 on certain Medicaid patients when those patients seek non-emergent care in the hospitals’ emergency departments. He-W 543.12(b) also requires the hospitals to collect the co-payment. The Committee received testimony from the New Hampshire Hospital Association indicating that the average cost of generating a bill for the co-payment is $7, which would result in a net loss on each co-payment billed. The Committee noted that the fiscal impact statement acknowledges the cost of $6 to patients, and it indicates hospitals may incur some cost where patients are unable to make the co-payment, but it does not indicate that hospitals will incur costs even in those instance where the co-payment is paid. Therefore, the Committee determined that the fiscal impact statement is inaccurate and incomplete.

Certified Final Objection No. 132 of the

Joint Legislative Committee on Administrative Rules

Page 2

2. Public Interest

Pursuant to Committee Rule 403.01(f), the Committee objected that He-W 543.12(b)(2)

is contrary to the public interest by being designed to benefit the administrative convenience of the agency to the detriment of the public.

He-W 543.12(b)(2) requires hospitals to collect the $6 co-payment from the patient. After receiving testimony from the Department and the New Hampshire Hospital Association, and discussing the proposal, the Committee determined that, while the proposal will assist the Department to comply with mandated budget cuts, requiring collection of the co-payment will impose a detriment on the hospitals due to the cost involved. Therefore, the Committee entered its objection, as stated above.