Certified Final Objection No. 28 of the

Joint Legislative Committee on Administrative Rules

At its meeting on July 19, 1991, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, IV, to enter a preliminary objection to Final Proposal 91-077 of the Department of Health and Human Services (Department) containing rules relative to child day care licensing. The Department responded by letter dated August 16, 1991.

At its regular meeting on October 18, 1991, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 91-077. 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:3-e, VI:

After a committee objection is filed with the director under paragraph V(c), to the extent that the objection covers a rule or portion of a rule, the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the rule to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, and is in the public interest. 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 upon which the final objection has been entered:

He-C 4002.05(g)

The Committee objected that He-C 4002.05(g) violates Committee Rules 403.01(d), 403.02(c), 402.02 and 401.01(c) as it is contrary to the public interest by not being clear and understandable and capable of uniform enforcement, contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3, and beyond the authority of the Department.

This section in the rules deals with waivers of requirements set by the rules. The paragraph states that "the decision of the Department to approve or deny a waiver shall be final." From this statement the Committee concluded that there can be no appeal from a decision relative to granting waivers, both within and outside the Department.

The Committee determined that the Department does not have authority to specify what issues may be appealed to the courts; that authority rests with the legislature and the courts. The Committee also concluded that RSA 170-E:13, II, granting a statutory right of appeal of the denial of a license or permit, applies to a denial of a waiver at least to the extent that the request for a waiver is part of an original or renewal application for a license or permit. Additionally, the Committee also determined that due process requires that such discretionary actions be subject to review, or the Department would be able to exercise discretion not subject to any check or balance. It was noted by the Committee that due process requirements were included in RSA 541-A:16 through RSA 541-A:20 to protect against unreviewed discretionary authority and apply in contested cases. Pursuant to RSA 541-A:1, III, a contested case arises whenever a person's rights, duties or privileges are determined by an agency. The Committee concluded that the granting of a waiver is actually the granting of a privilege not to comply with requirements that must otherwise be met, and that a denial of such a privilege triggers the due process requirements of RSA 541-A.