HB668 (2005) Detail

Relative to appeals of decisions by boards, commissions, and agencies regulating professional occupations.


HB 668-FN – AS INTRODUCED

2005 SESSION

05-0445

10/04

HOUSE BILL 668-FN

AN ACT relative to appeals of decisions by boards, commissions, and agencies regulating professional occupations.

SPONSORS: Rep. O'Neil, Rock 15; Rep. R. Wheeler, Hills 7; Sen. Clegg, Dist 14; Sen. Foster, Dist 13

COMMITTEE: Executive Departments and Administration

ANALYSIS

This bill establishes a uniform procedure for appeals of decisions of boards, commissions, and agencies regulating professional occupations, and establishes an optional intermediate appeal of final decisions of a board, commission, or agency for such occupations.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

05-0445

10/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

AN ACT relative to appeals of decisions by boards, commissions, and agencies regulating professional occupations.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Subparagraph; Department of Justice; Bureau of Civil Law; Administrative Hearings Assignments. Amend RSA 21-M:11, II by inserting after subparagraph (c) the following new subparagraph:

(d) Assigning administrative hearings officers for appeals under RSA 541:5-a.

2 New Section; Nursing Home Administrators; Appeals. Amend RSA 151-A by inserting after section 16 the following new section:

151-A:17 Appeals. Decisions of the board may be appealed to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

3 Emergency Care Providers. Amend RSA 153-A:22 to read as follows:

153-A:22 Administrative Fines. The commissioner, after notice and hearing, pursuant to rules adopted under RSA 541-A, may impose an administrative fine not to exceed $2,000 for each offense upon any person or entity licensed under this chapter who violates any provision of this chapter or rules adopted under this chapter. Rehearings and appeals from a decision of the director shall be in accordance with RSA 541. The court shall not stay any disciplinary sanction imposed by the director pending appeal, if the director has determined that the sanction is required for the public safety and welfare. Any administrative fine imposed under this section shall not preclude the imposition of further penalties or administrative actions under this chapter. The commissioner shall adopt rules in accordance with RSA 541-A relative to administrative fines which shall be scaled to reflect the scope and severity of the violation. The sums obtained from the levying of administrative fines under this chapter shall be forwarded to the state treasurer to be deposited into the general fund.

4 Accountants; Appeal Procedure Changed. Amend RSA 309-B:12, X to read as follows:

X. Any person or firm adversely affected by any order of the board entered after a hearing under this section may appeal [such order by filing a written petition with the superior court in the county in which the respondent resides or, if not a resident of this state, in the county in which the respondent has a place of business or resident agent. An appeal shall not suspend the order of the board unless the court orders otherwise. The record of the hearing of the board’s action shall be presented to the superior court for its review pursuant to the procedures and standards of RSA 541. The superior court may affirm, reverse, or modify the board’s order or may order a trial de novo. A trial de novo shall be pursuant to the board’s rules and the rules of e114

evidence shall not apply] to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

5 New Section; Chiropractors; Appeals. Amend RSA 316-A by inserting after section 25 the following new section:

316-A:25-a Appeals. Decisions of the board may be appealed to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

6 Electricians Board; Appeals. RSA 319-C:12-b is repealed and reenacted to read as follows:

319-C:12-b Appeals. Decisions of the board may be appealed to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

7 Board of Nursing; Appeals. Amend RSA 326-B:14 to read as follows:

326-B:14 Right of Appeal. Any person who has been refused a license by the board or has been disciplined by the board for any reason other than failure to pass the licensing examination shall have the right to [petition for a rehearing by the board within 30 days after the original decision; then, within 30 days after the decision on the petition for a rehearing, said person may appeal by petition to the superior court. No sanction imposed by the board shall be stayed during appeal] appeal to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

8 New Section; Dietitians; Appeals. Amend RSA 326-H by inserting after section 19 the following new section:

326-H:20 Appeals. Decisions of the board may be appealed to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

9 New Section; Optometrists; Appeals. Amend RSA 327 by inserting after section 34 the following new section:

327:35 Appeals. Decisions of the board may be appealed to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

10 New Section; Marital Mediators; Appeals. Amend RSA 328-C by inserting after section 13 the following new section:

328-C:14 Appeals. Decisions of the board may be appealed to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

11 Physician Assistants; Appeals. Amend RSA 328-D:8 to read as follows:

328-D:8 Appeals. Disciplinary action taken by the board under RSA 328-D:7 may be appealed to the supreme court under RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

12 New Section; Naturopaths; Appeals. Amend RSA 328-E by inserting after section 14 the following new section:

328-E:14-a Appeals. Decisions of the board may be appealed to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

13 New Section; Allied Health Professionals; Appeal. Amend RSA 328-F by inserting after section 24 the following new section:

328-F:24-a Appeals. Decisions of the governing boards may be appealed to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by a governing board pending appeal, if the governing board has determined that the sanction is required for the public safety and welfare.

14 Plumbers Board; Appeals. RSA 329-A:12-a is repealed and reenacted to read as follows:

329-A:12-a Appeals. Decisions of the board may be appealed to the supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

15 Real Estate Brokers. Amend RSA 331-A:28, III to read as follows:

III. The action of the commission in revoking, suspending or denying a license or levying a fine, shall be subject to appeal to the [superior court at the instance of the licensee within 30 days after the filing of the commission’s decision. An appeal shall suspend the commission’s decision. The record of the hearing of the action of the commission shall be presented to the superior court for review and the superior court shall give the review under this chapter priority on the court calendar. The superior court may confirm, reverse or modify the commission’s decision, or order a trial de novo without a jury as justice may require] supreme court pursuant to RSA 541. The court shall not stay any disciplinary sanction imposed by the board pending appeal, if the board has determined that the sanction is required for the public safety and welfare.

16 New Section; Intermediate Appeal Procedure. Amend RSA 541 by inserting after section 5 the following new section:

541:5-a Intermediate Appeal Procedure; Occupational Boards, Commissions, and Agencies. Prior to proceeding with an appeal to the supreme court under RSA 541:6, a person regulated by an occupational regulatory board, commission, or agency of the state may petition for an intermediate appeal to an administrative hearings officer.

I. Upon the filing of a petition, the chief of the civil bureau of the department of justice shall assign a hearing officer for such appeal. The petition shall state briefly the nature of the proceeding before the regulatory board or commission, and shall set forth the order or decision complained of, and the grounds upon which the same is claimed to be unlawful or unreasonable.

II. The administrative hearing officer for the matter may order that appropriate notice be given to the persons who were parties to the proceeding before the board or commission, or who may be ordered joined.

III. The burden of proof before the administrative officer shall be upon the party seeking to set aside any order or decision of the board or commission to show that the same is clearly unreasonable or unlawful, and the order or decision appealed from shall not be set aside or vacated for errors of law or fact, unless the administrative hearings officer is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.

IV. The attorney general shall adopt rules under RSA 541-A governing the requirements and procedures for intermediate appeals under this section. Notwithstanding RSA 541-A:17, the rules adopted under this section shall not expire.

V. Intermediate appeals governed by the procedures in this section shall be available to persons aggrieved by decisions or orders of occupational regulatory boards, commissions, and agencies of the state, except for hawkers and peddlers under RSA 320, itinerant vendors under RSA 321, carnival amusement operators under RSA 321-A, junk dealers under RSA 322, lightning rod dealers, under RSA 323, attorneys under RSA 311, and court reporters under RSA 331-B.

17 Appeals to Supreme Court. Amend RSA 541:6 to read as follows:

541:6 Appeal. Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the decision on such rehearing, or within 30 days after a decision on an intermediate appeal under RSA 541:5-a, the applicant may appeal by petition to the supreme court.

18 Repeal. The following are repealed:

I. RSA 155-A:11-a, relative to appeals to the state building code review board.

II. RSA 332-G:5, relative to appeals of decisions of the electricians board and plumbers board.

19 Effective Date. This act shall take effect January 1, 2006.

LBAO

05-0445

2/1/05

HB 668-FN - FISCAL NOTE

AN ACT relative to appeals of decisions by boards, commissions, and agencies regulating professional occupations.

    FISCAL IMPACT:

    The Department of Justice indicates state expenditures will increase by $53,485 in FY 2006, $110,383 in FY 2007, $113,850 in FY 2008 and $117,442 in FY 2009. The Judicial Branch indicates state expenditures will decrease by an indeterminable amount in FY 2006 and each year thereafter. There will be no fiscal impact on state, county and local revenue or county and local expenditures.

    METHODOLOGY:

    The Department of Justice (DOJ) states this bill eliminates an intermediate appeal of various licensing boards to the Superior Court and allows direct appeals to the Supreme Court pursuant to RSA 541. This bill also allows, but does not require, an aggrieved party to pursue an intermediate appeal to an administrative hearings officer assigned by the Chief of the Civil Bureau of the Department. There are approximately 30-40 Boards that could potentially utilize this process. This would likely require additional resources equivalent to one full-time attorney and half (.5) of a support staff’s time. The attorney, who would have to be independent of the Attorney General’s Office, must be experienced in the area of administrative law and thus, the salary or hourly rate would have to reflect such experience.

                      FY 2006 FY 2007 FY 2008 FY 2009

    Full-Time Attorney

    (est. grow by 3%/year) $65,000 $66,950 $68,959 $71,027

    Benefit Rate Est. for DOJ 40% 40% 40% 40%

    Total Salary & Benefit

    for Full-Time Attorney $91,000 $93,730 $96,542 $99,438

    Support Staff Salary $22,815 $ 23,790 $24,726 $25,720

    Benefit Rate Est. for DOJ 40% 40% 40% 40%

    Total Salary & Benefit

    for Full-Time Support Staff $31,941 $33,306 $34,616 $36,008

    At 50% time 50% 50% 50% 50%

    Cost of Support Staff $15,971 $16,653 $17,308 $18,004

                      LBAO

                      05-0445

                      2/1/05

    Annual Estimated Fiscal

    Impact - State Expenditures $106,971 $110,383 $113,850 $117,442

    Law shall take effect on

    January 1, 2006 50%

    Estimated Fiscal Impact –

    State Expenditures in FY 2006 $ 53,485

    The Judicial Branch states this bill deals with appeals from various boards, commissions, and agencies regulating professional occupations. Currently, appeals regarding these occupations vary from none in statute, to the building code review board, to the superior court, and to the supreme court. Three now go to the superior court – accountants, nurses, and real estate brokers. Under this bill, all would go to the supreme court under RSA 541:6, however, inserted before a supreme court appeal is an optional intermediate appeal procedure to an administrative hearing officer under the Attorney General’s Office. Previously, all of these cases could eventually have gone to the supreme court, for even where there is no right of appeal, the court has held that a litigant may appeal an administrative determination to the supreme court by petition for writ of certiorari. The Judicial Branch states that this bill provides the possibility of cost savings in two areas. First, the superior court would no longer have appeals from accountants, nurses, and real estate brokers. There are very few of these so savings would be minimal. Second, the optional intermediate appeal procedure may reduce the number of RSA 541 appeals to the supreme court regarding these occupations, however, to the extent there have been, the number could be reduced by the intermediate appeal procedure provided in this bill. In sum, the potential exists for some savings from this bill in an undetermined, but minimal amount.