Certified Final Objection No. 97 of the

Joint Legislative Committee on Administrative Rules

At its meeting on September 19, 1997, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 97-071 of the Board of Registration in Optometry. The Board responded by letter dated October 24, 1997, received by the Office of Legislative Services on October 29, 1997.

At its meeting on February 20, 1998, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 97-071. 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: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.

Opt 502.01(c)

The Committee objected that Opt 502.01(c) in Final Proposal 97-071 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board, pursuant to Committee Rule 402.02(b)(2), contrary to legislative intent, and pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest by not being clear and understandable and capable of uniform enforcement.

This provision provides that "conduct proscribed by these ethical standards, when performed by an unlicensed or unregistered person or entity…shall also be a basis for denying a license of permit application or issuing a restricted license of permit." The Committee determined that the Board has no authority to apply the professional ethical standards of Opt 500 to a person who does not hold a license or permit from this or any other jurisdiction at the time the act complained of was committed.

The Committee also noted that the rule indicates that such conduct "shall also be a basis for" [emphasis added] taking action against the applicant rather than providing that such conduct shall result in such actions being taken. Further, the committee determined that the Board is required, by application of RSA 541-A:3, RSA 541-A:16, I, and RSA 541-A:22, I, to specify the criteria and procedure by which the Board will decide which sanction is most appropriate in any given case. The Committee concluded that absent such rules, each such decision would be made based upon criteria and procedure established outside the process mandated by law, and that such criteria and procedure could not be effective nor enforced against any person for any purpose until they have been through the rulemaking process mandated by RSA 541-A:3, including all applicable filing requirements.