Certified Final Objection No. 147 of the

Joint Legislative Committee on Administrative Rules

At its meeting on January 20, 2012, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2011-163 containing He-W 531.05(b)-(g) of the Department of Health and Human Services (Department) relative to physician services. The Department responded pursuant to RSA 541-A:13, V(c) with a cover letter and amended rule from the Commissioner dated February 9, 2012.

At its meeting on February 17, 2012, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2011-163. 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:

He-W 531.05(b)-(g)

The Committee objected that He-W 531.05(b)-(g) is, pursuant to Committee Rule 402.02(b)(2), contrary to legislative intent by leading to oral rulemaking in violation of RSA

541-A:22, I.

He-W 531.05(b)-(g) specify surgical procedures that will be considered as covered physician services under the NH Title XIX program for Physician Services. The rules also incorporate by reference the clinical policy bulletins used to establish coverage criteria for each surgical procedure. These bulletins are included in the rules as website links. The existing rules contain dates for the policy bulletins originally found on the website links, but the Final Proposal removed the dates.

While it is permissible, under RSA 541-A:12, to incorporate by reference Internet content, the Committee noted that the intent of the Department by deleting the dates was to apply the latest criteria contained in the bulletins on the website instead of the criteria adopted in the existing rules as of a date certain. The Committee determined that this would result in modification of the criteria in the rules outside of the RSA 541-A rulemaking process (i.e. oral rulemaking) in violation of RSA 541-A:22, I, which requires 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 RSA 541-A.