Certified Final Objection No. 47 of the

Joint Legislative Committee on Administrative Rules

At its meeting on June 19, 1992, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 92-058 containing proposed amendments to rules of the Board of Registration in Medicine (Board). The Board responded to the preliminary objection by letter dated July 8, 1992.

At its meeting on October 9, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-058. 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:

Med 704.04(e), (f), (g)

The Committee objected that Med 704.04 (e), (f), and (g) are, pursuant to Committee Rule 401.01(c), beyond the authority of the Board as discussed below.

Med 704.04 (e), (f), (g) set fees for occupational therapists and occupational therapy assistants relative to "verification of license", "replacement pocketcard", and "replacement certificate". Pursuant to RSA 541-A:12, III(c), an agency shall not by rule require fees "unless specifically authorized by a statute enforced or administered by an agency." RSA 326-C:9 requires the Board to adopt rules relative to fees "for initial and endorsement licenses, license renewal applications, and standardized examinations." RSA 326-C:11, II requires the Board to adopt rules relative to the "amount of license application fees or other fees required under this chapter", but the fees in Med 704.04(e), (f), and (g) are not required under this chapter. The Committee concluded that there was no specific authorization in RSA 329-C for these fees.