Certified Final Objection No. 140 of the

 

Joint Legislative Committee on Administrative Rules

 

            At its meeting on June 15, 2007, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 2007-61 containing rule He-W 530 of the Department of Health and Human Services (Department) relative to service limits, co-payments, and non-covered services.  The Department responded pursuant to RSA 541-A:13, V(c) with a cover letter and amended rule from the Commissioner dated June 28, 2007. 

 

At its meeting on June 29, 2007, the Committee voted, pursuant to RSA 541-A:13, V(f), to enter a final objection to Final Proposal 2007-61.   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(f), 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:

 

            He-W 530.01(f)

 

            The Committee objected that He-W 530.01(f), is, pursuant to Committee Rule 403.01(c), contrary to the public interest by using broad language when a more specific requirement is needed.

 

He-W 530.01(f) contains a definition of the term “medically necessary.”  Based on the public testimony of Michelle Winchester of the Institute for Health, Law & Ethics, and Dan Koslofsky of New Hampshire Legal Assistance, the Committee entered a preliminary objection that He-W 530.01(f) was contrary to the public interest. 

 

            In its objection response, the Department amended the definition to refer to prevention of the worsening of existing conditions.  After receiving testimony and discussing the proposed rule, the Committee determined that the amendment did not substantially change the definition of “medically necessary” from that of the final proposal.  Therefore, the Committee entered a final objection for the reason stated above, that is He-W 530.01(f) uses broad language when a more specific requirement is needed.

 

 

Certified Final Objection No. 140 of the

 

Joint Legislative Committee on Administrative Rules

 

Page 2

 

 

            He-W 530.07(d)(10)

 

            The Committee objected that He-W 530.01(d)(10), pursuant to Committee Rule 404.01(a)(1), has a substantial economic impact not recognized in the fiscal impact statement.

 

            He-W 530.01(d)(10) requires the inclusion, in requests for authorization, of “a statement of the anticipated medical outcome, and either the estimated cost of such outcome or a description of medical services that might be required as the result of such outcome, if the requested additional services are not provided.” 

 

The Committee determined that He-W 530.01(d)(10) imposes new requirements that may result in additional costs to the citizens affected, particularly doctors.  Because the costs were not referenced in the fiscal impact statement, the Committee objected as noted above.