Certified Final Objection No. 67 of the

Joint Legislative Committee on Administrative Rules

At its meeting on May 20, 1994, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:3-e, to enter a preliminary objection to Final Proposal 94-022 containing proposed rules of the Board of Registration in Medicine (Board) relative to fees. The Board responded by letter dated June 16, 1994.

At its special meeting on October 11, 1994, the Committee voted, pursuant to RSA 541-A:3-e, V(c), to enter a final objection to Final Proposal 94-022. 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.

Fees, Authority, and Violation of RSA 541-A:12, III(c)

The Committee objected that, pursuant to RSA 541-A:3-e, IV(a) and (b), and Committee rules 401.01(c) and 402.02(a), the rules listed below are beyond the authority of the Board of Registration in Medicine, and are contrary to legislative intent. The rules are as follows:

Med 305.02(a)

Med 306.06(c), (d), (e), and (f)

Med 805.01, Table 800.1, "Application Fee" and "Late Fee"

Med 704.04(d)

Med 1006.01(e)

Pursuant to RSA 541-A:12, III(c), agencies are prohibited from imposing fee requirements "unless specifically authorized by a statute enforced or administered by" the agency. The statutory authority cited by the Board in its final proposal and its objection response provided authority for many of the individual fees contained in the rules. However, the Board could not provide specific authority for nine of the fees, and the Committee also could not find any such authority. Thus, the Committee concluded that the imposition of such fees is beyond the Board's authority, and violates the statute cited above.

The fees contained in Med 306.06(c) through (f) are beyond the Board's authority and violate legislative intent for additional reasons. These provisions are for different kinds of temporary licenses that are issued for different purposes, have different durations, and are set at different dollar amounts. The Committee determined that, although the Board is authorized to issue temporary licenses, the Board does not have authority to create categories of temporary licensure and the attendant dissimilarities; the creation of categories of licensure and their attributes is the prerogative of the General Court. The Committee also determined that RSA 329:9, VII, authorizes the Board to impose fees that are required under RSA 329. The Committee concluded that the categories of temporary licensure have not been established by the General Court and included in RSA 329, and that no provision of RSA 329 requires the associated fees. Therefore, the Committee concluded that the imposition of the four fees also violates RSA 329:9, VII.