Certified Final Objection No. 74 of the

Joint Legislative Committee on Administrative Rules

At its meeting on August 18, 1995, the Joint Legislative Committee on Administrative Rules voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 95-056 containing proposed rules of the Board of Dental Examiners (Board). The Board responded by letter dated September 28, 1995, and received by the Office of Legislative Services on that same day.

At its meeting on October 20, 1995, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 95-056. 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:13, VI:

After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. 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 for the Committee's final objection:

1. Den 301.03(c)

The Committee objected that Den 301.03(c) is beyond the authority of the Board pursuant to Committee Rule 401.01(c); contrary to legislative intent pursuant to Committee Rule 402.02 by conflicting with RSA 541-A:3, 1994, 412:52, and RSA 541-A:22, III(b); and contrary to the public interest pursuant to Committee Rules 403.01(d) and 403.02(c) by not being clear and understandable and capable of uniform enforcement.

At its meeting on April 19, 1991, the Committee entered a final objection to Den 301.06, relative to temporary licensure. In a subsequent rulemaking proceeding, the Board renumbered the text of that rule as Den 301.03. On April 29, 1994, the Committee entered a final objection to Den 301.03 using the bases for objection described above. As indicated above, on October 20, 1995, the Committee voted to enter a final objection for the third time to a provision in that section. The Committee used the same bases for objection for all three final objections.

Den 301.03 governs the issuance of a temporary license to dentists and dental hygienists for special purposes. Paragraph (a) allows temporary licensure for the purpose of participating in a "professional education program using dental, clinical procedures." Paragraph (b) allows temporary licensure for participation in a "research project having a clinical dental component." Paragraph (c) provides that the Board shall be "the sole judge" in the decision of whether to issue a temporary license or to license through a national clinical performance test or an endorsement certification application process. Criteria and procedure for this discretionary decision are not provided.

Pursuant to RSA 541-A:22, III(b), an agency is prohibited from requiring licenses unless the agency's enabling statute uses one of the specific terms listed in RSA 541-A:l, VI. The Committee has interpreted this provision as prohibiting an agency from creating, in violation of the agency's enabling statute, categories of licensure for limited purposes or for a different duration than set by statute.

The Committee noted that the Board has, pursuant to RSA 317-A:4, I(a), the power to license dentists and hygienists, and that all persons who practice as dentists or dental hygienists are required to obtain such licenses from the Board. The Committee also noted that the licenses required for dentists and dental hygienists are unrestricted, allowing holders to practice their professions without needing further permission from the Board. The Committee determined that the two categories of licensure are separate. as RSA 317-A:13, II, addresses license renewal as a dentist separately from license renewal as a dental hygienist, and the statute provides for separate fees for such renewals. It is also specifically stated separately in RSA 317-A:13, II that licenses in both categories must be renewed on a biennial basis on or before April 1 in even-numbered years.

As no other provision in RSA 317-A addresses the length of the licensure periods, the Committee determined that legislative intent is that the period of licensure for both categories is two years. The Committee also determined that no other provision in RSA 317-A specifically permits the Board to issue licenses valid for a period of time other than two years.

Finally, the Committee noted that agencies pursuant to 1994, 412:52 must comply with the Uniform System of Numbering and Drafting as contained in the New Hampshire Rulemaking Manual. Under Ls-A 402.10 and Ls-A 402.19 of this system, the Board is required to provide the procedure and criteria to be used by it in making its discretionary decisions. Absent procedure and criteria being specified by rule for temporary licensure, the Committee determined that the Board would have to engage in oral rulemaking in violation of RSA 541-A:3 every time it disposes of an application for temporary licensure, and that uniform enforcement could not be ensured.