JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES

 

Action Minutes

 

OCTOBER 1, 2009

 

 

Members Present:   Representatives Pilotte, Patten, Schmidt, Gottling, Millham, Taylor*, Boyce*, and Kidder*, and Senators Cilley and Merrill.  (*)  Indicates alternate member.

 

(**)  Part 1, Article 28-a of the N.H. Constitution was not an issue in the Committee’s discussions or decisions in this meeting.

 

1.  The meeting was convened at 9:04 a.m. by Rep. Pilotte as Vice-Chair.

 

     Members present at this time, aside from Rep. Pilotte, were Reps. Patten, Schmidt, Gottling, Millham, Taylor, Boyce, and Kidder.

 

2.  The Committee discussed the minutes of the Committee meeting on September 17, 2009.

 

     Rep. Patten moved that the minutes be approved with the correction to Item #6 on page 3, where “Final Proposal 2009-77” should be changed to “Final Proposal 2009-96”.

 

     At this time, Rep. Pilotte appointed Reps. Boyce, Taylor, and Kidder as alternates, respectively, for Sens. Letourneau, Merrill, and Carson, who were absent.

 

     Rep. Kidder seconded the motion.

 

     Adopted.

 

3.  The Committee discussed whether to postpone action on certain items to another meeting.

 

     Rep. Schmidt moved that the Committee postpone action on the following item to the regular Committee meeting on October 15, 2009:

 

11. DEPARTMENT OF HEALTH AND HUMAN SERVICES

 

 

(b)  FP 2009-94

Former Division of Human Services

Dental Services

(JLCAR Deadline October 19, 2009.)

 

     Rep. Patten seconded.

 

     Adopted.

 

4.  The Committee discussed Final Proposal 2009-103 from the N.H. Retirement System (Participation in the NHRS).  Peter Foley testified for the Retirement System.

 

     Sens. Merrill and Cilley arrived during the discussion of this item.  Rep. Pilotte therefore appointed Rep. Taylor as an alternate for Sen. Fuller Clark, who was absent.

 

     Rep. Schmidt moved that the Committee conditionally approve Final Proposal 2009-103 on condition that Ret 305.02(h) be amended by deleting “after December 31, 2001” and Ret 305.05(c)(7) be amended by replacing “spousal acknowledgment form” with “mandatory acknowledgement form”.

 

     Rep. Patten seconded.

 

     Adopted.

 

5.  The Committee discussed Final Proposal 2009-104 from the N.H. Retirement System (Code of Ethics).  Peter Foley testified for the Retirement System.  State Treasurer Catherine Provencher also testified for the Retirement System.

 

     Richard Welch, representing himself, also testified.

 

     Sen. Cilley moved that the Committee make a preliminary objection to Final Proposal 2009-104 on the grounds (1) that Ret 400 was contrary to the public interest by being unclear by not addressing distribution of the Code of Ethics to System staff, Trustees, and the Investment Committee and (2) as outlined in Committee staff comments to Ret 401.01(b), Ret 401.04(f), Ret 401.04(h), and Ret 401.06(h), (i), and (k).  The Committee also recommended that: (1) Ret 401.01(b) be amended by replacing the words “such that he or she shall studiously and conscientiously avoid” with the words “so as to avoid”; (2) Ret 401.04(f) be amended by deleting the second sentence; (3) Ret 401.04(h) be deleted entirely; (4) Ret 401.06(k) be amended by deleting the words “and the indemnification policy adopted by the board of trustees on January 13, 2009 or such successor policy as is approved by the board of trustees” and end the paragraph with the words “…to the extent permitted by law;”, and (5) Ret 400 be amended to require that Retirement System staff, Trustees, and the Investment Committee receive a copy of the Code of Ethics.

 

     Rep. Patten seconded.

 

     Adopted.

 

6.  After a break, with Reps. Pilotte, Patten, Gottling, Millham, Boyce, and Kidder present, the Committee discussed Final Proposal 2009-105 from the N.H. Retirement System (Filing of NHRS Forms).  Peter Foley testified for the Retirement System.

 

     Rep. Millham moved that the Committee approve Final Proposal 2009-105.

 

     Rep. Patten seconded.

 

     Adopted.

 

     Sen. Cilley returned to the meeting at this time.

 

7.  The Committee discussed Final Proposal 2009-91 from the Insurance Department (Purchasing Alliances).  Leslie Ludtke testified for the Department.  Michael Wilkey also represented the Department.

 

     Rep. Taylor and Rep. Schmidt returned to the meeting during the discussion of this item.

 

     The Department had requested a conditional approval in a letter and amended rule dated September 15, 2009.

 

     Edward P. Carvalho also testified.

 

     Rep. Patten moved that the Committee accept the conditional approval request and conditionally approve Final Proposal 2009-91 based on the request.

 

     Rep. Taylor seconded.

 

     Adopted.

 

8.  The Committee discussed Final Proposal 2009-98 from the Insurance Department (Minimum Standards for Medicare Supplement Policies).  Michael Wilkey testified for the Department.

 

      Rep. Patten moved that the Committee approve Final Proposal 2009-98.

 

     Rep. Taylor seconded.

 

     Adopted.

 

9.  The Committee discussed the proposed electronic filing pilot program procedures in rulemaking which are subject to Committee approval pursuant to Chapter 230:3 of the Laws of 2009 (HB 252), which adopted RSA 541-A:2, IV (g).

 

      Rep. Taylor moved that the Committee approve the pilot program procedures pursuant to RSA 541-A:2, IV (g).

 

     Sen. Cilley seconded.

 

     Adopted.

 

10.  The Committee discussed the response of the Banking Department to the Committee’s preliminary objection on July 16, 2009 to Final Proposal 2009-64 (Collateralization of Public Deposits).  Commissioner Peter Hildreth and Celia Leonard, General Counsel, testified for the Department.

 

      State Treasurer Catherine Provencher also testified.

 

     Rep. Patten moved that the Committee make a final objection to Final Proposal 2009-64 on the ground that Ban 1450.04(b) and Ban 1450.06 are contrary to legislative intent, based on public testimony, for the following reasons:  (1) Ban 1450.06 classifies all the collateral enumerated in Ban 1450.04(b) as low risk, instead of defining and classifying by risk the nature of securities appropriate for collateral for public funds as required by RSA 386:57, II; and (2) the rules violate the overall purpose of RSA 386:57, II which was to provide guidance and clarity to certain local officials regarding the risks associated with different forms of securities deemed appropriate collateral for public funds as evidenced by RSA 29:1, 31:25, 41:29, 48:16, and 197:23-a.

 

     After discussion, the motion was withdrawn.

 

     Pamela Reynolds, representing the N.H. Government Finance Officers Association, and the City of Laconia, then testified.

 

     Rep. Patten restated her motion that the Committee make a final objection.

 

     Rep. Schmidt seconded.

 

        A roll call vote was called.  The vote was as follows:

 

 

Yes

No

Rep. Schmidt

X

 

Rep. Patten

X

 

Rep. Gottling

 

X

Rep. Millham

 

X

Rep. Boyce

X

 

Rep. Taylor

X

 

Rep. Kidder

 

X

Rep. Pilotte

X

 

 

 

 

Sen. Cilley

 

X

Total

5

4

 

        The vote was 5 “yes” and 4 “no”.  Since a minimum of 6 votes is needed for a final objection pursuant to RSA 541-A:13, V(f), the motion was not adopted.

 

     After further discussion, Rep. Patten moved that the Committee vote to sponsor a joint resolution on the ground that the rules Ban 1450.04(b) and Ban 1450.06 are contrary to legislative intent by not complying with RSA 386:57, II, and recommend to the legislature: (1) that the Banking Department be prohibited from adopting rules Ban 1450.04(b) and Ban 1450.06, and (2) that the legislature establish a committee to study the issue of whether Ban 1450.04(b) and Ban 1450.06 fail to comply with the terms of RSA 386:57, II, when all the enumerated collateral is identically classified as low risk collateral, and to clarify the purpose of RSA 386:57, II relative to the degree to which rules must provide guidance and clarity to local officials regarding the risk associated with different forms of securities deemed appropriate for collateral for public funds.

 

     Rep. Schmidt seconded.

 

        A roll call vote was called.  The vote was as follows:

 

 

Yes

No

Rep. Schmidt

X

 

Rep. Patten

X

 

Rep. Gottling

 

X

Rep. Millham

 

X

Rep. Boyce

X

 

Rep. Taylor

X

 

Rep. Kidder

 

X

Rep. Pilotte

X

 

 

 

 

Sen. Cilley

 

X

Total

5

4

 

        The vote was 5 “yes” and 4 “no”.  Since a minimum of 6 votes is needed to vote to sponsor a joint resolution pursuant to RSA 541-A:13, VII(b), the motion was not adopted.

 

     Sen. Cilley then moved that the Committee accept the response and approve the rules but with a recommendation that the Committee send a letter to the policy committees of the House and Senate requesting that the committees consider whether the rules comply with RSA 386:57, II, and that the transcript of the Committee’s discussions on July 16, 2009 and October 1, 2009 be included with the letter.

 

     Rep. Gottling seconded.

 

        A roll call vote was called.  The vote was as follows:

 

 

Yes

No

Rep. Schmidt

 

X

Rep. Patten

 

X

Rep. Gottling

X

 

Rep. Millham

X

 

Rep. Boyce

 

X

Rep. Taylor

 

X

Rep. Kidder

X

 

Rep. Pilotte

X

 

 

 

 

Sen. Cilley

X

 

Total

5

4

 

      The vote was 5 “yes” and 4 “no”.  Since only a majority of votes cast was necessary for such a motion to pass, the motion was adopted.

 

     Sen. Cilley left the meeting at this time.

 

11.  Rep. Patten moved that the Committee postpone action on the following item to the regular Committee meeting on October 15, 2009:

 

13. DEPARTMENT OF HEALTH AND HUMAN SERVICES

 

 

(a)  FP 2009-58

Former Division of Mental Health and Developmental Services

Housing Security Guarantee Program

(JLCAR Deadline October 19, 2009.)

 

 

(c)  FP 2009-101

Former Division of Public Health Services

Educational Health Centers and Adult Day Programs

(JLCAR Deadline October 19, 2009.)

 

 

(d)  FP 2009-114

Former Division of Public Health Services

Rules for Hospitals

(JLCAR Deadline October 19, 2009.)

 

     Rep. Taylor seconded.

 

     Adopted.

 

12.  The Committee discussed Final Proposal 2009-95 from the Department of Health & Human Services (Commissioner, Allocation and Distribution of Incentive Fund Grants).  Roger Desrosiers, Margaret Bishop, and Eileen Mullen testified for the Department.

 

     Rep. Boyce and Rep. Taylor left the meeting during the discussion of this item.

 

     The following persons also testified:

 

            Ellen Ann Robinson, representing Hillsborough County, Dept. of Human Services.

            Betsy Miller, representing the N.H. Association of Counties.

            Jeanne Folton, representing Grafton County I.F. Panel.

 

     Rep. Patten moved that the Committee make a preliminary objection to Final Proposal 2009-95 based on public testimony indicating (1) that the rules are contrary to legislative intent regarding RSA 170-G:4, XVI, and (2) that the rules are contrary to the public interest by establishing a “top-down” system and replacing a county-based system with one based on catchment areas.

 

     Rep. Millham seconded.

 

     Adopted.

 

13.  Rep. Patten moved that the Committee adjourn.

 

      Rep. Gottling seconded.

 

      Adopted.

 

     The Committee adjourned at 2:25 p.m., effectively postponing consideration of the following items to the regular Committee meeting on October 15, 2009:

 

15. Response to Preliminary Objection Made in September 3, 2009 Meeting But Not Yet Received by Committee Staff:

 

 

OR 2009-79

PUBLIC UTILITIES COMMISSION

Utility Pole Attachments

(JLCAR Deadline December 8, 2009.)

 

 

OTHER BUSINESS

 

16. Other