Certified Final Objection No. 85 of the
Joint Legislative Committee on Administrative Rules
At its meeting on December 20, 1996, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, V(a), to enter a preliminary objection to Final Proposal 96-139 containing proposed rules Med 1100 of the Board of Medicine (Board) relative to athletic trainers. The Board responded by letter dated January 8, 1997, received by the Office of Legislative Services on the same date.
At its meeting on March 21, 1997, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-139. 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 bases for the Committee’s final objection:
The Committee objected that Med 1102.06 is contrary to legislative intent, pursuant to Committee Rule 402.02(a), by being inconsistent with RSA 326-G:11, III.
This rule deals with applications for reinstatement of certification for athletic trainers. RSA 326-G:11, III, provides that "any individual who fails to renew his certification may apply to the board for reinstatement within one calendar year after the expiration of the certificate." Thus, reinstatement is available for no more than one year following the expiration of certification. However, Med 1102.06 provides that "a person certified by the board, who voluntarily allows their [sic] certification to lapse shall be eligible to apply for reinstatement of certification." The rule sets no outside time limit for such reinstatement, and it appeared to the Committee that the Board intends to accept and allow applications for reinstatement of certification even in instances in which the certification expired more than one calendar year before the submission of such application. This conclusion is supported by the fact that, in its objection response, the Board deleted the phrase "or who neglects to renew certification within one year after expiration" after the word "lapse."
The Committee objected that Med 1107.01 is beyond the authority of the Board, pursuant to Committee Rule 401.01(c), and contrary to legislative intent, pursuant to Committee Rule 402.02(a), by being inconsistent with RSA 326-G:7, IV and RSA 541-A:22, III(c).
This section provides a table of fees for applications for certification, the renewal applications, and reinstatement applications. In RSA 326-G there are but two references to fees that may be charged by the Board: RSA 326-G:7, IV, which refers to the establishment of "all fees under this chapter;" and RSA 326-G:9, II, which refers to fees for temporary certification. No other provision of RSA 326-G confers fee authority upon the Board. The Committee noted that the only fee for which there is specific statutory authority, that is, for temporary certification, has not been set by the Board. Therefore, the Committee decided that the three fees included in this rule are without authority. Pursuant to RSA 541-A:22, III(c), agencies cannot "require fees unless specifically authorized by a statute enforced or administered" by the agency. As there is no specific authorization, the Committee concluded that the Board cannot require such fees.