Certified Final Objection No. 53 of the
Joint Legislative Committee on Administrative Rules
At its meeting on September 18, 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 92-124 containing proposed rules of the Division of Public Health Services (Division) relative to residential care home facilities. The Division responded to the preliminary objection by letter dated October 15, 1992.
At its meeting on December 18, 1992, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 92-124. 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 to rules in the final proposal based upon the annotations made by Committee staff, except those annotations preceded by an asterisk and the annotation to He-P 804.09 relative to RSA 151:9, VIII(a), which were not included as bases for objection. The Committee also based its objection upon the testimony submitted at the Committee meeting on September 18, 1992 relative to these rules. Copies of the rules with Committee Attorney's annotations as well as copies of the written and oral testimony upon which the objection was based can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 114, Stte House, at the normal copying rate of $0.20 per page.
1. The Committee objected that He-P 804.03 is, pursuant to Committee Rule 401.04, beyond the authority of the Division by setting a requirement in such a way as to violate the New Hampshire and United States' Constitutions. The basis for such objection is set forth in the annotations to the rule.
2. The Committee objected that He-P 804.02 and He-P 804.09 were, pursuant to Committee Rule 402.02(a), contrary to legislative intent by ocnflicting with the statutes indicated in the annotations.
3. The Committee objected that the following rules were, pursuant to Committee Rule 402.02(b)(2), contrary to legislative intent by conflicting with RSA 541-A:3:
4. The Committee objected that the following rules were, pursuant to Committee Rule 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement: