Certified Final Objection No. 146 of the

Joint Legislative Committee on Administrative Rules

At its meeting on December 16, 2010, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2010-70 containing rules Med 100 through 600 of the Board of Medicine (Board) relating to definitions, practice and procedure, licensure of physicians and physician assistants, ethics, and other matters. The objection was based on the annotations to the Final Proposal by Committee staff and public testimony. The Board responded in a letter dated January 5, 2011 containing various amendments to the Final Proposal.

At its meeting on February 18, 2011, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a revised objection to the Objection Response for Final Proposal 2010-70, as requested on behalf of the Board. The revised objection was based on Committee staff’s annotations to certain rules and the Board’s determination that a late renewal application fee was not consistent with a statute. The Board responded in a letter and rules dated March 2, 2011 containing further amendments to the Final Proposal.

At its meeting on March 18, 2011, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2010-70 as amended in the Revised Objection Response. 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:

Med 412.03(d) and Med 413.02(f)

The Committee objected that Med 412.03(d) and Med 413.02(f) are, pursuant to Committee Rules 402.02(b)(2) and 403.01(d), contrary to legislative intent by leading to oral rulemaking in violation of RSA 541-A:22, I and contrary to the public interest by being unclear. In the view of the Committee, the rules do not adequately specify the criteria under which the Board shall take certain actions.

Med 412.03(d) and Med 413.02(f) address the exemption of allegations by the Board’s hearing counsel from the public disclosure provisions under RSA 91-A in the cases, respectively, of voluntary surrender of a license or of a settlement agreement. In the Final Proposal, both rules had contained the sentence that: “The board may disclose such information to law enforcement

Certified Final Objection No. 146 of the

Joint Legislative Committee on Administrative Rules

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or health licensing agencies in this state or any other jurisdiction, or in response to specific statutory requirements or court orders.”

The Committee noted that the rules had paraphrased similar language in RSA 329:18, I where the General Court thereby had granted authority to the Board to decide whether and under what criteria to disclose such information. The Committee had made a revised objection that the use of the word “may” was improper for a rule on agency discretionary decisions and left it unclear under what circumstances the information shall be disclosed.

In response to the revised objection the Board removed the sentence from both rules on the basis that the rule repeated the statute. With the deletion of this language, however, the Committee determined that the underlying problem was not addressed. In the view of the Committee, Med 412.03(d) and Med 413.02(f) remain unclear under what criteria the Board shall continue to disclose information to law enforcement or other agencies. In the view of the Committee, this could result in oral rulemaking, in violation of RSA 541-A:22, I, relative to such criteria, since RSA 329:18, I by itself was not specific.