At its meeting on February 14, 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 96-199 containing proposed substantive rules of the Board of Examiners of Psychology and Mental Health Practice (Board). The Board responded by letter dated March 24, 1997, received by the Office of Legislative Services on March 25, 1997.

At its meeting on July 18, 1997, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to Final Proposal 96-199. The final objection has been filed with the Acting 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:

Due to the number of bases for objection, some of the rules to which a final objection has been filed have not been identified in this text. Such unidentified rules, and the bases for final objection, are specified in the annotations to the rules made by the Committee's staff. Copies of the rules can be obtained from the Office of Legislative Services, Division of Administrative Rules, Room 219 in the State House Annex, 25 Capitol Street, Concord, New Hampshire 03301.

The following summarizes some of the more significant issues and the bases upon which the Committee objected:

1. Uniform System of Drafting and Numbering

The Committee objected that Psy 200 through Psy 500 are, 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 and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by violating 1994, 412:52 as discussed below.

Pursuant to 1994, 412:52, agencies are required to comply with Ls-A 400 of the Uniform System of Numbering and Drafting (developed by the Director of Legislative Services) as contained in the New Hampshire Rulemaking Manual. The Committee had made a preliminary objection that the rules were contrary to legislative intent by the violation of 1994, 412:52 and contrary to the public interest by not being clear and understandable and capable of uniform enforcement. The Committee recommended that the rules be amended generally, in accordance with Committee staff’s annotations so that, for example, the rules: be numbered and formatted properly; use "may" and "shall" properly; do not contain parenthetical provisions; use proper introductory language for lists of requirements or prohibitions; provide proper criteria and procedure for discretionary decision-making by the Board; define words or phrases in a manner consistent with everyday meanings and in the format required; draft provisions that are clear and understandable and do not need further interpretation; use consistent terminology; use headings only for sections, and not subdivisions of sections; and file all required incorporation by reference statements.

2. Psy 201.04

The Committee objected that Psy 204.03(b) is, 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, respectively, and, pursuant to Committee Rule 402.02(a), contrary to legislative intent by allowing requirements to be set outside the process mandated by RSA 541-A:3.

This provision governs the waiver and suspension of the Board’s procedural rules in Psy 200. The rule states that "the board, upon its own motion or petition of any interested person, shall suspend or waive any requirement of limitation imposed by this chapter upon reasonable notice to affected persons and a finding that good cause exists for the proposed action."

The Committee first noted that the Board must indicate the criteria to be applied by the Board in determining whether it will initiate a waiver or suspension, but that the Board failed to do so. The Committee then indicated that the Board lacks authority to waive or suspend any and every provision of Psy 200, since many of the rules restate statutory requirements. The Committee also determined that it was unclear what was meant by or included in the term "good cause" and that the rules should so specify. Further, in the Committee’s view, the rule is unclear as to what result would obtain in the case of a determination that good causes exists, but that others would be prejudiced substantially by the granting of a waiver. The Committee concluded that such determinations would require the Board to apply criteria and a procedure not specified in the rules, leading to requirements being set outside the RSA 541-A:3 process.

3. Psy 204.03(b)

The Committee objected that Psy 204.03(b) is, pursuant to Committee Rules 402.02(a), contrary to legislative intent by conflicting with RSA 541-A:1, V, and RSA 541-A:3, I and II, and is, pursuant to Committee Rule 403.01(f), contrary to the public interest by being designed to benefit the administrative convenience of the agency to the detriment of the public.

This section governs the service of documents in proceedings before the Board. Paragraph (b) refers to service of rulemaking and declaratory rulings petitions. In pertinent part it provides that "when the relief sought by a petition for rulemaking or a petition for declaratory ruling would clearly and directly affect the interests of a person or group of persons, the board shall, by order, require service upon the affected person or persons."

The Committee noted that the process by which rules are proposed and adopted is specified by RSA 541-A:3. Paragraph I of that statute indicates that if an agency decides to go forward with a rulemaking proceeding, the agency itself bears the burden of providing notice to the public at large. Moreover, if the agency regulates occupational licensees, paragraph II requires that the agency must provide notice to such occupational licensees over and above what is otherwise required under paragraph I. The Committee determined that by requiring the petitioner to provide notice conflicted with the agency notice requirements of RSA 541-A:3, I and II.

The term "declaratory ruling" is defined by RSA 541-A:1, V, which states that the term means "an agency ruling as to the specific applicability of any statutory provision or an any rule or order of the agency." In the Committee’s view, that such rulings are "specifically applicable" means that the ruling binds only those who are parties to the proceeding, which are the petitioner and the agency. Therefore, in the Committee’s view, such proceedings cannot affect clearly and directly anyone else.

4. Psy 206.08(a) and (b)

The Committee objected that Psy 206.08(a) and (b) are, pursuant to Committee Rules 402.02(a), contrary to legislative intent by conflicting with RSA 330-A:15-a, IV.

This section governs the issuance of subpoenas in adjudicative proceedings before the Board. Paragraph (a) provides that subpoenas "shall be issued upon order of the board or pursuant to authority delegated by the board to its staff or to a committee by specific resolution or order, or by rule." Pursuant to RSA 330-A:15-a, IV, the Board has subpoena power. That provision states specifically that "the board may … issue subpoenas for witnesses and for documents and things only in a formal investigation or an adjudicatory hearing." The Committee noted that the statute refers to the Board as the entity that can issue subpoenas, that subpoenas can be issued only in limited circumstances, and that the statute does not provide that the Board can delegate this authority. Therefore, the Committee concluded that
RSA 330-A:15-a, IV, requires that subpoenas be issued by the Board, only.

Paragraph (b) provides that if a party’s request for the issuance of a subpoena is granted, "the requesting party shall be responsible for the service of the subpoena and payment of any applicable witness and mileage expenses." Pursuant to RSA 330-A:15-a, IV(b), "the board may serve a subpoena on any certificate holder by certified mail, but shall serve a subpoena on any certificate holder in accordance with the procedures and fee schedules used in superior court." The Committee noted that the statute referred to the Board as the entity that effectuates service, and that the statute did not identify any other entity or person as being responsible for such service. Therefore, the Committee concluded that such responsibility fell on the Board, alone, and could not be delegated.

5. Psy 206.09(b)

The Committee objected that Psy 206.09(b) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest to the extent that the rules are not clear and understandable and capable of uniform enforcement, respectively, and contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with RSA 541-A:33, II, and allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively.

Paragraph (b) governs evidence at hearings before the Board, and provides that, "All data which will reasonably assist the board arrive at the truth shall be admissible, but data which is irrelevant; or immaterial, repetitious or cumulative; or needlessly insulting, hostile or scandalous may be excluded."

The Committee determined that paragraph (b) clearly conflicts with RSA 541-A:33, II, which allows the presiding officer at a hearing to exclude evidence that is privileged or that is "irrelevant, immaterial or unduly repetitious." The presiding officer, pursuant to that statute, has no statutory authority to exclude evidence for any other reason. The Committee wished to make it clear that it does not believe that agencies must endure verbal abuse from participants at hearings, but that such abuse can be handled appropriately under the provisions of RSA 541-A:18, II. In the view of the Committee, evidence which is "cumulative, needlessly insulting, hostile or scandalous" would generally fall into one of the four statutory bases for excluding the evidence. For example, the use of profane language might very well be "insulting, hostile or scandalous," as well as irrelevant and immaterial and therefore excludable. However, it is possible, as in a complaint for harassment, that the use of such language might form the basis of the hearing, and the Committee concluded that under such circumstances the language should not be excludable. Unfortunately, application of this rule could result in its exclusion.

The Committee also determined that the use of "may" in the last sentence made the rule unclear. The rule does not indicate how it is that the presiding officer will determine whether or not to exclude such evidence, or how this discretion will be exercised in a uniform way.

6. Psy 206.09(c)

The Committee objected that Psy 206.09(c) is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest to the extent that the rules are not clear and understandable and capable of uniform enforcement, respectively, and contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with RSA 541-A:33, I, and allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively.

Paragraph (c) requires that, "Evidence shall be submitted in written form unless a party demonstrates that oral testimony is necessary to avoid substantial prejudice or assure the full and fair disclosure of the facts, or the board otherwise directs oral testimony." Pursuant to RSA 541-A:33, I, "all testimony of parties and witnesses shall be made under oath or affirmation administered by the presiding officer." The Committee determined that this provision, coupled with paragraphs II and IV, indicates that live testimony at the hearing is the general rule, with written testimony being the exception. In the Committee’s view, the rule reverses the statutory preference and provides that written testimony will generally be required and live testimony will be the exception. The Committee also determined that the use of " the board may direct," without specifying why it would do so, made the rule unclear.

7. Psy 206.11

The Committee objected that Psy 206.11 is, pursuant to Committee Rules 403.01(d) and 403.02(c), contrary to the public interest to the extent that the rules are not clear and understandable and capable of uniform enforcement, respectively, and contrary to legislative intent, pursuant to Committee Rules 402.02(a) and 402.02(b)(2), by conflicting with RSA 541-A:33, I, II and IV, and allowing requirements to be set outside the process mandated by RSA 541-A:3, respectively.

This section indicates the various styles of hearings available, and indicates the circumstances under which each would be most appropriate. There are three such styles of hearings, but only one of them requires or even allows immediate cross-examination of witnesses in a trial-type hearing. Pursuant to RSA 541-A:33, I, all testimony must be adduced after the presiding officer administers an oath or affirmation. Paragraph II sets forth the requirements for submission of evidence, including expressing a strong preference for live testimony. Paragraph IV provides a guarantee to the parties of the right to cross-examine witnesses. The Committee determined that, taken together, these provisions result in a requirement that a trial-type evidentiary hearing is what is required. The Committee concluded that no party could be denied such a hearing, if that is what the party demanded.

8. Psy 207.04

The Committee objected that Psy 207.04 is, pursuant to Committee Rule 402.04, contrary to legislative intent by implementing statutory provisions that are consistent with the New Hampshire and Federal Constitutions in a manner which is inconsistent with such Constitutions.

This section governs situations in which the presiding officer in a hearing before the Board drafts proposed decisions for the Board’s review and issuance. This process is authorized specifically by RSA 541-A:34 and has been looked upon generally favorably by the New Hampshire Supreme Court. However, in the Committee’s view the Court spoke clearly and decisively regarding at least one situation in which the use of the process would violate a party’s due process rights under both the state and federal constitutions. In Petition of Ruediger Grimm, Ph.D., 138 NH 32 (1993), the Court determined that in situations in which the credibility of witnesses is critical to the outcome, due process demands that all who act as triers of fact must be in attendance to assess the credibility of such witnesses.

However, the rules do not take the requirements of the Court’s holding in Grimm into account, and, in the Committee’s view, one reading Psy 207.04 could conclude that the Board intended to apply this provision even in the situation outlined in that case. The Committee noted that the agency involved in the Grimm case was this very Board. The Committee noted further that the Committee encouraged the Board to amend its rule to account for the holding in Grimm, but the Board has declined to do so. Therefore, the Committee determined that the rule is contrary to legislative intent by implementing a statutory provision that is constitutional but in a manner that violates due process.

9. Psy 401.06

The Committee objected that Psy 401.06 is, pursuant to Committee Rule 401.01(c), beyond the authority of the Board.

This governs the granting of "inactive status" to those who hold certificates from the Board. Pursuant to paragraph (a), those who are granted inactive status by the Board are entitled to a 50% reduction in certificate fees. The Committee noted that various provisions of RSA 330-A identify the different types of certificates that can be issued by the Board. The Committee noted, too, that RSA 330-A does not specifically authorize inactive status, and concluded that without such specific statutory authorization, the Board had no authority to create such status.