Certified Final Objection No. 137 of the


Joint Legislative Committee on Administrative Rules


            At its meeting on February 17, 2006, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2005-117 containing rule He-C 6422.08 the Department of Health and Human Services (Department) relative to maximum reimbursement for residential child care rate setting.  The Department responded pursuant to RSA 541-A:13, V(c) with a cover letter from the Commissioner dated March 31, 2006. 


At its meeting on April 21, 2006 the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2005-117.   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(f), 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 following summarizes the basis for the Committee’s final objection:


Contrary to Legislative Intent


Pursuant to RSA 541-A:13, IV(b), the Committee objected that Final Proposal 2005-117 is contrary to legislative intent, pursuant to Committee Rule 402.02(a), by conflicting with RSA 170-G:4.


The Department proposed to adopt a new rule He-C 6422.08 and renumber the existing He-C 6422.08 as He-C 6422.09.  The proposed He-C 6422.08 provides that the rates established pursuant to He-C 6422 for residential child care facilities are contingent upon the availability and continued appropriation of funds for this purpose, and the Department’s Division for Children, Youth, and Families (DCYF) is not liable for payments in excess of the appropriated funds.  If sufficient funds are not appropriated for the DCYF to pay the facilities at the rates calculated pursuant to He-C 6422, the available funds shall be apportioned.  This shall be done by using the individual rate multiplied by the ratio of the apportioned funds for this purpose to the total amount necessary to fully fund all of the residential child care facilities rates as calculated pursuant to He-C 6422.


The Committee determined that He-C 6422.08 is contrary to legislative intent as provided in RSA 170-G:4, which contains the powers and duties of the Department relative to services for children, youth, and families, including establishing rates for services for residential child care facilities under RSA 170-G:4, XVII.  The objection was based on written and oral public


Certified Final Objection No. 137 of the


Joint Legislative Committee on Administrative Rules


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testimony considered by the Committee on February 17 and April 21, 2006.  Copies of written testimony and transcripts of the Committee meetings may be obtained from the Office of Legislative Services.