Certified Final Objection No. 50 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 92-071 containing proposed rules of the Director of the Division of Mental Health and Developmental Services (Director) relative to Medicaid-covered community mental health services. The objection response was made by John D. Wallace, Director of Client and Legal Services for the Division, in a letter dated July 2, 1992.
At its meeting on October 16, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-071. 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 Committee objected that He-M 426.19(b) is, pursuant to Committee Rules 401.01(c) and 402.02, respectively, beyond the authority of the Director and contrary to legislative intent by conflicting with RSA 541-A:3.
This rule states that "community mental health services shall be paid at rates set by DMHDS." Rates of reimbursement that are uniformly applicable to a regulated community fall within the definition of a "rule" as set forth in RSA 541-A:1, XIII, and must be adopted through the rulemaking process. It was argued in the response that a recent amendment to RSA 541-A:10 exempted the Division from rulemaking for such rates, but the Committee rejected that argument. The Committee concluded that the exemption given in RSA 541-A:10, III, is an exemption "from the publication requirements of RSA 541-A" as set forth in RSA 541-A:5, I, and nothing more. [Emphasis added.] Thus, in the view of the Committee, the Director still must satisfy all the other requirements of RSA 541-A not related to publication, and this includes going through the full process of drafting, notice, public comment, Committee review, and adoption, pursuant to RSA 541-A:3.