JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES

 

Action Minutes

 

OCTOBER 18, 2007

 

 

Members Present:   Representatives Pilotte, Patten, MacKay, Schmidt, Millham*, and Powers*, and Senators Cilley, DeVries, Letourneau, and Downing.  (*)  Indicates alternate member.

 

(**)  Indicates where Part 1, Article 28-a of the N.H. Constitution was an issue in the Committee’s discussions or decisions in this meeting (See Items #13 and 14.  However, those items were conditionally approved and approved, respectively.)

 

1.  The Committee was convened at 9:09 a.m. by Rep. Pilotte as Chair.

 

     Members present at this time, aside from Rep. Pilotte, were Reps. Patten, MacKay, Millham, and Powers, and Sen. DeVries.

 

     Rep. Pilotte appointed Rep. Powers and Rep. Millham as alternates, respectively, for Rep. Mitchell and Sen. Letourneau, who were absent.

 

2.  The Committee discussed the minutes of the Committee meeting on September 20, 2007.

 

     Rep. Patten moved that the minutes be approved.

 

     Rep. MacKay seconded.

 

     Adopted.

 

     Rep. Schmidt arrived at this time.

 

3.  The Committee discussed the following final proposals and proposed interim rule from the agencies indicated (Consent Agenda – Final Proposals and Proposed Interim Rules):

 

FP 2007-102

REAL ESTATE APPRAISER BOARD

Organizational Rules

 

 

FP 2007-103

REAL ESTATE APPRAISER BOARD

Practice and Procedure Rules (non-expiring)

 

 

FP 2007-111

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Public Health Services

Repeal of He-P 813 Adult Family Care Residences

 

 

FP 2007-123

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Mental Health and Developmental Services

Certification of Residential, Combined Residential and Day Services, or
Self-Directed Day Services Provided in the Family Home

 

 

FP 2007-126

DEPARTMENT OF ENVIRONMENTAL SERVICES

Air Related Programs

Table of Regulated Toxic Air Pollutants

 

 

FP 2007-134

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Human Services

Aid to the Needy Blind

 

 

INT 2007-27

DEPARTMENT OF ENVIRONMENTAL SERVICES

Commissioner

Laboratory Accreditation

 

     Rep. Patten moved that the final proposals and proposed interim rule be approved.

 

     Rep. Powers seconded.

 

     Adopted.

 

4.  The Committee discussed whether to postpone items to another meeting.

 

     No action to postpone was taken.

 

5.  The Committee discussed responses to previous Committee conditional approvals as follows, noting that the response to the conditional approval of Final Proposal 2007-81 had now been received as indicated.

 

 

Conditionally Approved September 20, 2007:

 

      FP 2007-60

 

GOVERNING BOARD OF RECREATIONAL THERAPISTS

Requirements for Licenses

(Response received 10-1-07 and confirmed 10-2-07.)

 

 

      FP 2007-81

 

BOARD FOR THE LICENSING AND REGULATION OF PLUMBERS

Revocation, Suspension and Other Sanctions

(Response received 10-17-07 and confirmed 10-17-07.)

 

 

        No further action was taken.

 

6.  The Committee discussed Final Proposal 2007-125 from the Department of Labor (Payment of Wages and Requirements of Employers).

 

     The Department had submitted a request for conditional approval with an amended rule dated October 16, 2007.

 

     Rep. Patten moved that the Committee conditionally approve Final Proposal 2007-125 as requested, with the understanding that an Incorporation by Reference Statement would be filed for the document cited in Lab 803.04.

 

     Sen. DeVries seconded.

 

     Adopted.

 

     It was also the understanding of the Committee that the Department would file an Incorporation by Reference Statement for the document cited in Lab 803.04 (a)(2) in the conditional approval request.

 

7.  The Committee discussed Final Proposal 2006-173 from the Department of Labor (Workers Compensation Insurance Coverage Requirements and Procedures; Workers Compensation Self-Insurance Requirements; Workers Compensation Claims Procedures and Responsibilities of Parties).  Katherine Barger and Martin Jenkins testified for the Department.

 

     A request for conditional approval was submitted with proposed amendments to selected rules.

 

     Sen. Letourneau arrived during the discussion of this item, and Rep. Powers left.

 

     Rep. Schmidt moved that the Committee conditionally approve Final Proposal 2006-173 as requested by the Department, with further amendments to Lab 405.04(h), by replacing “permitted” with “prudent,” and Lab 405.04(o), by deleting the words “if so ordered by the commissioner.”

 

     Rep. Patten seconded.

 

     Adopted.

 

8.  The Committee discussed Final Proposal 2007-82 from the Board of Natural Scientists (Rules Regarding Fees, Examination Requirements for Wetland Scientist Exams and Re-Examinations).  Louise Lavertu testified for the Board.

 

     Rep. Schmidt moved that the Committee approve Final Proposal 2007-82 with the recommendation that the Board seek legislation to clarify its rulemaking authority regarding fees for examinations.

 

     Rep. Millham seconded.

 

     Adopted.

 

9.  The Committee discussed Final Proposal 2007-133 from the Board of Veterinary Medicine (Fees).  Patricia Duncklee of the Department of Agriculture testified for the Board.

 

10.  The Committee postponed further consideration of Final Proposal 2007-133 to discuss reconsideration of the prior vote on Final Proposal 2007-82 from the Board of Veterinary Medicine.

 

      Sen. Letourneau had arrived during the discussion of Final Proposal 2006-173 from the Department of Labor.  Since Rep. Millham had been appointed as an alternate for Sen. Letourneau, Rep. Millham was no longer qualified to vote.  Since more than a quorum was present for the vote on Final Proposal 2006-173, and Rep. Millham had not made or seconded the motion, the vote did not have to be reconsidered; but the vote on Final Proposal 2007-82 had to be reconsidered because Rep. Millham had seconded the motion.

 

      Rep. Pilotte appointed Rep. Millham as an alternate for Sen. Downing, who was absent.

 

      Rep. Schmidt moved that the Committee reconsider its vote on Final Proposal 2007-82.

 

      Sen. DeVries seconded.

 

      Adopted.

 

      Rep. Schmidt restated his motion that the Committee approve Final Proposal 2007-82 with the recommendation that the Board seek legislation to clarify its rulemaking authority regarding fees for examinations.

 

      Rep. Millham seconded.

 

      Adopted.

 

11.  The Committee resumed the discussion of Final Proposal 2007-133 from the Board of Veterinary Medicine (Fees).  Patricia Duncklee from the Department of Agriculture testified for the Board.

 

      The Board had submitted a request for conditional approval with an amended rule dated October 12, 2007.

 

      Sen. DeVries moved that the Committee conditionally approve Final Proposal 2007-133 as requested.

 

      Rep. Patten seconded.

 

      Adopted.

 

12.  The Committee discussed Final Proposal 2007-127 from the Department of Environmental Services (Air Related Programs, NOx Budget Trading Program).  Gretchen Hamel testified for the Department.

 

      Sen. Cilley arrived during the discussion of this item.

 

      Rep. Patten moved that the Committee approved Final Proposal 2007-127 with the understanding that the substantive comment issue raised by Committee staff in annotations relative to the apparent repeal of Env-A 3207.06 on page 12 and Env-A 3210.04 on page 19 of the final proposal, based on pages 97 and 104 of the Drafting and Procedure Manual for Administrative Rules, would be addressed by the Committee through changes to the Manual and not be subject to staff comment until then.

 

      Rep. Schmidt seconded.

 

      Adopted.

 

**13. After a break, with Reps. Pilotte, Patten, MacKay, and Millham, and Sens. Letourneau and Downing present, the Committee discussed Final Proposal 2007-136 from the Department of Environmental Services (Drinking Water Programs, Small Production Wells for Small Community Water Systems).  Gretchen Hamel and Stephen Roy testified for the Department.

 

         Rep. Pilotte appointed Rep. Millham as an alternate for Rep. Mitchell, who was absent.

 

         The Department had submitted a request for conditional approval in a letter and attached rule dated October 17, 2007.

 

         Gretchen Hamel added a further amendment orally, that the reference to the document “EPA 910 /9-92-029F” in Env-Dw 301.10 (h)(2) in the conditional approval request be changed to “MiC004B”.

 

         Rep. Schmidt returned to the meeting as the discussion on this item began.

 

         Rep. Patten moved that the Committee conditionally approve Final Proposal 2007-136 as requested by the Department, including the oral amendments.

 

         Rep. MacKay seconded.

 

         Adopted.

 

**14. The Committee discussed Final Proposal 2007-137 from the Department of Environmental Services (Drinking Water Programs, Large Production Wells for Community Water Systems).  Gretchen Hamel and Stephen Roy testified for the Department.

 

         Sen. DeVries and Rep. Powers returned to the meeting during the discussion of this item, and Rep. Millham left.

 

         Rep. Pilotte appointed Rep. Powers as an alternate for Rep. Mitchell, who was absent.

 

         Sen. Cilley moved that the Committee approve Final Proposal 2007-137.

 

         Rep. Patten seconded.

 

         Adopted.  Rep. Powers abstained, as he was not present for most of the discussion.

 

15.  The Committee discussed Final Proposal 2007-56 from the Department of Health and Human Services (Commission of Medicaid Covered Services).  Michele Beasley and Timothy McAvoy testified for the Department.

 

         The Department had submitted a conditional approval in a letter and amended rule dated October 9, 2007.

 

         The following persons also testified:

 

            Kathleen McDermott, representing the Chase Home for Children in Portsmouth, N.H.

            Karen Cusano, representing NFI North of Contoocook, N.H.

            Eric Johannessen, representing Odyssey House of Dover, N.H.

 

         Rep. Patten and Sen. Letourneau left during the discussion of this item.

 

         Sen. Cilley moved that the Committee conditionally approve Final Proposal 2007-56 as requested.

 

         Rep. MacKay seconded.

 

         Adopted. 

 

16.  The Committee discussed Final Proposal 2007-135 from the Department of Health and Human Services (Former Division of Human Services, Distribution and Disbursement of Child Support Payments).  Dawn Landry and Gregg Allen testified for the Department.

 

      The Department had requested a conditional approval in a letter and amended rule, including a Final Proposal – Annotated Text, dated October 8, 2007.

 

      Sen. Letourneau returned to the meeting during the discussion of this item.

 

      Rep. MacKay moved that the Committee conditionally approve Final Proposal 2007-135 as requested.

 

      Rep. Powers seconded.

 

      Adopted.

 

17.  The Committee discussed Final Proposal 2007-112 from the Department of Health and Human Services (Division of Elderly and Adult Services, Certification of Adult Family Care Residences).  Michele Beasley testified for the Department.

 

      No action was taken at this time.

 

18.  The Committee discussed Final Proposal 2007-113 from the Department of Health and Human Services (Division of Elderly and Adult Services, Authorization of Adult Family Care Placement Agencies).  Michele Beasley testified for the Department.

 

      No action was taken at this time.

 

19.  The Committee resumed discussion of Final Proposal 2007-112.  Laura Collins and Michele Beasley testified for the Department.

 

      Sen. DeVries moved that the Committee make a preliminary objection to Final Proposal 2007-112 on the grounds as outlined in the annotations to the Final Proposal by Administrative Rules Director Eaton, and with the understanding that, if the objection response is submitted prior to the Committee meeting on November 15, and with enough time for Committee staff review, the response would be placed on the agenda for that meeting.

 

      Rep. MacKay seconded.

 

      Adopted.

 

20.  The Committee resumed discussion on Final Proposal 2007-113.  Laura Collins and Michele Beasley testified for the Department. 

 

      Sen. DeVries moved that the Committee make a preliminary objection to Final Proposal 2007-113 on the grounds as outlined in the annotations to the Final Proposal by Administrative Rules Director Eaton, with the same understanding as with Final Proposal 2007-112.

 

      Rep. MacKay seconded.

 

      Adopted.

 

21.  The Committee discussed Final Proposal 2007-104 from the Real Estate Appraiser Board (Practice and Procedure (8-year provisions); Apprentice Classification, Certificate and License Requirements; Continued Status; Ethics).  Steven Berg, Chairman of the Board, and Richard Nusbaum, contractor to the Board, testified for the Board.

 

      The Board requested a conditional approval in a letter and rule amendments dated October 10, 2007 and submitted additional changes.

 

      Sens. Cilley and Downing left during the discussion of this item.

 

      Rep. Powers moved that the Committee conditionally approve Final Proposal 2007-104 as requested, with the additional changes of rearranging Rab 305.02 (c)(1) d so that the phrase “Until such….is competent” is moved to the end of the sentence, and inserting in Rab 403.02 a reference to the AQB documents specified in Rab 302.01(a) and (b).

 

      Sen. DeVries seconded.

 

      Adopted.

 

22.  Rep. Schmidt moved that the Committee adjourn.

 

      Rep. MacKay seconded.

 

      Adopted.

 

      The Committee adjourned at 12:25 p.m., thereby postponing consideration of the following items to the Committee meeting on November 15, 2007, as it was the consensus of the Committee to cancel the continued meeting scheduled for November 1, 2007.

 

13. Remaining Responses to Preliminary Objections Made in September 6, 2007 Meeting But Not Yet Received by Committee Staff:

 

(a)  OR 2007-21

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Former Division of Mental Health and Developmental Services

Medical Assistance Services Provided by Education Agencies

(JLCAR Deadline December 11, 2007.  Existing interim rules will expire October 22, 2007.)

 

 

14. Remaining Responses to Preliminary Objections Made in September 20, 2007 Meeting But Not Yet Reviewed by Committee Staff:

 

 

(a)  OR 2007-92

BOARD OF ACCOUNTANCY

Procedural Rules (8-year provisions); Certification, Registration and Permit Requirements; Continued Status; Ethics

(JLCAR Deadline December 26, 2007.  Most rules expired July 25, 2007.)

 

 

OTHER BUSINESS

 

15. Other