Revision: Feb. 10, 2021, 11:30 a.m.
SB 133-FN - AS INTRODUCED
2021 SESSION
21-0964
05/04
SENATE BILL 133-FN
AN ACT adopting omnibus legislation relative to occupational licensure.
SPONSORS: Sen. Carson, Dist 14
COMMITTEE: Executive Departments and Administration
─────────────────────────────────────────────────────────────────
ANALYSIS
This bill adopts legislation relative to:
I. Licensing places of assembly.
II. Establishing a limited plumbing specialist license.
III. Repealing the emergency medical services personnel licensure interstate compact.
IV. Hearings at the board of nursing.
V. Membership of the professional standards board.
VI. Adopting the Audiology and Speech-Language Pathology Compact and the Occupational Therapy Licensure Compact.
VII. Licensure and regulation of music therapists.
VIII. The authority of the office of professional licensure and certification for administration, rulemaking, and enforcement of investigations, hearings, and appeals.
IX. Skilled professional medical personnel.
X. Temporary licensure of certain licensed nursing assistants.
XI. The revocation of licensure for licensed emergency medical service units and emergency medical service vehicles.
XII. Schools for barbering, cosmetology, and esthetics.
XIII. Telemedicine provided by out of state psychologists.
XIV. Sanitary production and distribution of food.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
21-0964
05/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
AN ACT adopting omnibus legislation relative to occupational licensure.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Sponsorship. This act consists of the following proposed legislation:
Part I: LSR 21-0964, relative to the definition of "licensing agency" for purposes of licensing places of assembly, sponsored by Sen. Carson, Prime/Dist 14.
Part II: LSR 21-1009, establishing a limited plumbing specialist license, sponsored by Sen. Giuda, Prime/Dist 2; Sen. Rosenwald, Dist 13, Sen. Prentiss, Dist 5; Rep. Alliegro, Graf. 7.
Part III: LSR 21-0506, repealing the emergency medical services personnel licensure interstate compact, sponsored by Sen. Rosenwald, Prime/Dist 13, Sen. Cavanaugh, Dist 16; Sen. Carson, Dist 14; Rep. Goley, Hills. 8; Rep. Milz, Rock. 6; Rep. O'Brien, Hills. 36; Rep. S. Pearson, Rock. 6.
Part IV: LSR 21-0207, relative to hearings of the New Hampshire board of nursing, sponsored by Sen. Ward, Prime/Dist 8.
Part V: LSR 21-0838, relative to membership of the professional standards board, sponsored by Sen. Kahn, Prime/Dist 10; Sen. Prentiss, Dist 5.
Part VI: LSR 21-0846, adopting the Audiology and Speech-Language Pathology Compact and the Occupational Therapy Licensure Compact, sponsored by Sen. Sherman, Prime/Dist 24; Sen. Soucy, Dist 18; Sen. Carson, Dist 14; Rep. March, Carr. 8.
Part VII: LSR 21-0859, relative to the licensure and regulation of music therapists, sponsored by Sen. Avard, Prime/Dist 12; Sen. Watters, Dist 4; Sen. Carson, Dist 14; Sen. Reagan, Dist 17; Sen. Kahn, Dist 10; Sen. Sherman, Dist 24; Sen. Prentiss, Dist 5; Sen. Perkins Kwoka, Dist 21; Rep. McGhee, Hills. 27.
Part VIII: LSR 21-0899, relative to the authority of the office of professional licensure and certification for administration, rulemaking, and enforcement of investigations, hearings, and appeals, sponsored by Sen. Reagan, Prime/ Dist 17, Sen. Carson, Dist 14; Sen. French, Dist 7; Sen. Kahn, Dist 10; Sen. Prentiss, Dist 5; Sen. Rosenwald, Dist 13; Sen. Bradley, Dist 3; Sen. D'Allesandro, Dist 20; Sen. Ward, Dist 8; Sen. Soucy, Dist 18; Sen. Giuda, Dist 2; Rep. Spillane, Rock. 2; Rep. McGuire, Merr. 29; Rep. Seaworth, Merr. 20.
Part IX: LSR 21-0928, relative to skilled professional medical personnel, sponsored by Sen. Ward, Prime/Dist 8.
Part X: LSR 21-0973, relative to temporary licensure of certain licensed nursing assistants, sponsored by Sen. Hennessey, Dist 1; Sen. Rosenwald, Dist 13; Rep. Dostie, Coos 1; Rep. Thompson, Coos 1.
Part XI: LSR 21-1011, relative to the revocation of licensure for licensed emergency medical service units and emergency medical service vehicles, sponsored by Sen. Prentiss, Prime/Dist 5; Rep. Merchant, Sull. 4; Rep. Goley, Hills. 8; Rep. McGuire, Merr. 29.
Part XII: LSR 21-1050, relative to schools for barbering, cosmetology, and esthetics, sponsored by Sen. Reagan, Prime/Dist 17; Sen. Rosenwald, Dist 13; Sen. Prentiss, Dist 5; Sen. Carson, Dist 14; Sen. Bradley, Dist 3; Sen. D'Allesandro, Dist 20; Sen. Gannon, Dist 23; Rep. McGuire, Merr. 29; Rep. Roy, Rock. 32; Rep. Harrington, Straf. 3.
Part XIII: LSR 21-0277, relative to telemedicine provided by out of state psychologists, sponsored by Sen. Reagan, Prime/Dist 17; Sen. Carson, Dist 14; Sen. Bradley, Dist 3; Sen. Prentiss, Dist 5; Sen. French, Dist 7; Sen. Giuda, Dist 2; Sen. Hennessey, Dist 1; Sen. D'Allesandro, Dist 20; Rep. Spillane, Rock. 2; Rep. Tudor, Rock. 1.
Part XIV: LSR 21-1049, establishing program rules within the department of health and human services for sanitary production and distribution of food, sponsored by Sen. Giuda, Prime/Dist 2; Sen. Gannon, Dist 23.
2 Legislation Enacted. The general court hereby enacts the following legislation:
PART I
Relative to the definition of "licensing agency" for purposes of licensing places of assembly.
1 Places of Assembly; Definition of Licensing Agency. Amend RSA 155:17, II to read as follows:
II. "Licensing agency" shall mean the chief of the fire department, the firewards or engineers, if any, otherwise the selectmen of the town or the commissioners of village district as the case may be, or the state fire marshal, as he or she deems necessary, in consultation with the local licensing agency, if any.
2 Places of Assembly; License Required. Amend RSA 155:18 to read as follows:
155:18 License Required. No person shall own or operate a place of assembly within this state unless licensed so to do by the licensing agency of the state, city, town, or village district where said place of assembly is located, including assemblies occurring on state waters or ice formed on state waters, in accordance with the regulations herein promulgated. In the application of this act to existing places of assembly the licensing agency may modify such of its provisions as would require structural changes if in his or her opinion adequate safety may be obtained otherwise and provided that a permanent record is kept of such modifications and the reasons therefor.
3 Effective Date. Part I of this act shall take effect 60 days after its passage.
PART II
Establishing a limited plumbing specialist license.
1 New Paragraph; Mechanical Licensing Board; Definitions; Limited Plumbing Specialist. Amend RSA 153:27 by inserting after paragraph XI the following new paragraph:
XI-a. "Limited plumbing specialist" means any person who is licensed to perform limited plumbing services independently according to rules established by the board.
2 Mechanical Licensing Board; Rulemaking. Amend the introductory paragraph of RSA 153:28, I to read as follows:
I. Notwithstanding RSA 21-G:9, the board, with an affirmative vote of at least 4 of the appointed board members, in consultation with the state fire marshal and [with the approval of the commissioner of safety] the executive director of the office of professional licensure and certification, shall adopt rules, pursuant to under RSA 541-A, necessary for the proper implementation of the licensure requirements established in this subdivision, which shall include the following:
3 Mechanical Licensing Board; Rulemaking; Limited Plumbing Specialist. Amend RSA 153:28, I(a)(9) to read as follows:
(9) Limited plumbing specialist.
(10) Apprentice plumber.
4 Mechanical Licensing; Examinations; Licenses. Amend RSA 153:29, II(i) to read as follows:
(i) Limited plumbing specialist.
(j) Apprentice plumber.
5 Effective Date. Part II of this act shall take effect 180 days after its passage.
PART III
Repealing the emergency medical services personnel licensure interstate compact.
1 Repeal. The following are repealed:
I. RSA 153-A:36 and the subdivision heading preceding RSA 153-A:36, relative to the emergency medical services personnel licensure interstate compact.
II. RSA 153-A:20, XXIV, relative to rulemaking by the department of safety regarding implementation of the compact.
2 Effective Date. Part III of this act shall take effect 60 days after its passage.
PART IV
Relative to hearings of the New Hampshire board of nursing.
1 Board of Nursing; Adjudicative Hearings. Amend 326-B:38, VIII to read as follows:
VIII. The board may hold adjudicative hearings concerning allegations of misconduct or other matters within the scope of this chapter. Such hearings shall be public proceedings. Any member of the board [other than the public members], or any other qualified person appointed by the board, shall have authority to preside at such a hearing and to issue oaths or affirmations to witnesses.
2 Effective Date. Part IV of this act shall take effect upon its passage.
PART V
Relative to membership of the professional standards board.
1 State School Organization; Professional Standards Board. Amend RSA 186:60, I(c) to read as follows:
(c) 9 members, 3 representing higher education and 6 representing education administration; and
2 Professional Standards Board. Amend RSA 186:60, III to read as follows:
III. The appointed members of the board shall serve for 3-year terms and may not serve for more than 2 consecutive full terms.
3 Effective Date. Part V of this act shall take effect 60 days after its passage.
PART VI
Adopting the Audiology and Speech-Language Pathology Compact and the Occupational Therapy Licensure Compact.
1 Chapter Heading Amended; Occupational Compacts. Amend the chapter heading of RSA 329-D to read as follows:
[PSYCHOLOGY INTERJURISDICTIONAL COMPACT (PSYPACT)]
OCCUPATIONAL COMPACTS
2 New Sections; .Audiology and Speech-Language Pathology Compact; Occupational Therapy Licensure Compact. Amend RSA 329-D by inserting after section 1 the following new sections:
329-D:2 Interstate Compact Adopted. The state of New Hampshire hereby adopts the provisions of the Audiology and Speech-Language Pathology Compact as follows:
SECTION 1. PURPOSE
The purpose of this Compact is to facilitate interstate practice of audiology and speech-language pathology with the goal of improving public access to audiology and speech-language pathology services. The practice of audiology and speech-language pathology occurs in the state where the patient/client/student is located at the time of the patient/client/student encounter. The Compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure.
This Compact is designed to achieve the following objectives:
1. Increase public access to audiology and speech-language pathology services by providing for the mutual recognition of other member state licenses;
2. Enhance the states’ ability to protect the public’s health and safety;
3. Encourage the cooperation of member states in regulating multistate audiology and speech-language pathology practice;
4. Support spouses of relocating active duty military personnel;
5. Enhance the exchange of licensure, investigative and disciplinary information between member states;
6. Allow a remote state to hold a provider of services with a compact privilege in that state accountable to that state’s practice standards; and
7. Allow for the use of telehealth technology to facilitate increased access to audiology and speech-language pathology services.
326-F:15 Interstate Compact Adopted. The state of New Hampshire hereby adopts the provisions of the Audiology and Speech-Language Pathology Compact as follows:
SECTION 1: PURPOSE
The purpose of this Compact is to facilitate interstate practice of audiology and speech-language pathology with the goal of improving public access to audiology and speech-language pathology services. The practice of audiology and speech-language pathology occurs in the state where the patient/client/student is located at the time of the patient/client/student encounter. The Compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure.
This Compact is designed to achieve the following objectives:
1. Increase public access to audiology and speech-language pathology services by providing for the mutual recognition of other member state licenses;
2. Enhance the states’ ability to protect the public’s health and safety;
3. Encourage the cooperation of member states in regulating multistate audiology and speech-language pathology practice;
4. Support spouses of relocating active duty military personnel;
5. Enhance the exchange of licensure, investigative and disciplinary information between member states;
6. Allow a remote state to hold a provider of services with a compact privilege in that state accountable to that state’s practice standards; and
7. Allow for the use of telehealth technology to facilitate increased access to audiology and speech-language pathology services.
SECTION 2. DEFINITIONS
As used in this Compact, and except as otherwise provided, the following definitions shall apply:
A. “Active duty military” means full-time duty status in the active uniformed service of the United States, including members of the National Guard and Reserve on active duty orders pursuant to 10 U.S.C. Chapters 1209 and 1211.
B. “Adverse action” means any administrative, civil, equitable or criminal action permitted by a state’s laws which is imposed by a licensing board or other authority against an audiologist or speech-language pathologist, including actions against an individual’s license or privilege to practice such as revocation, suspension, probation, monitoring of the licensee, or restriction on the licensee’s practice.
C. “Alternative program” means a non-disciplinary monitoring process approved by an audiology or speech-language pathology licensing board to address impaired practitioners.
D. “Audiologist” means an individual who is licensed by a state to practice audiology.
E. “Audiology” means the care and services provided by a licensed audiologist as set forth in the member state’s statutes and rules.
F. “Audiology and Speech-Language Pathology Compact Commission” or “Commission” means the national administrative body whose membership consists of all states that have enacted the Compact.
G. “Audiology and speech-language pathology licensing board,” “audiology licensing board,” “speech-language pathology licensing board,” or “licensing board” means the agency of a state that is responsible for the licensing and regulation of audiologists and/or speech-language pathologists.
H. “Compact privilege” means the authorization granted by a remote state to allow a licensee from another member state to practice as an audiologist or speech-language pathologist in the remote state under its laws and rules. The practice of audiology or speech-language pathology occurs in the member state where the patient/client/student is located at the time of the patient/client/student encounter.
I. “Current significant investigative information” means investigative information that a licensing board, after an inquiry or investigation that includes notification and an opportunity for the audiologist or speech-language pathologist to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction.
J. “Data system” means a repository of information about licensees, including, but not limited to, continuing education, examination, licensure, investigative, compact privilege and adverse action.
K. “Encumbered license” means a license in which an adverse action restricts the practice of audiology or speech-language pathology by the licensee and said adverse action has been reported to the National Practitioners Data Bank (NPDB).
L. “Executive committee” means a group of directors elected or appointed to act on behalf of, and within the powers granted to them by, the Commission.
M. “Home state” means the member state that is the licensee’s primary state of residence.
N. “Impaired practitioner” means individuals whose professional practice is adversely affected by substance abuse, addiction, or other health-related conditions.
O. “Licensee” means an individual who currently holds an authorization from the state licensing board to practice as an audiologist or speech-language pathologist.
P. “Member state” means a state that has enacted the Compact.
Q. “Privilege to practice” means a legal authorization permitting the practice of audiology or speech-language pathology in a remote state.
R. “Remote state” means a member state other than the home state where a licensee is exercising or seeking to exercise the compact privilege.
S. “Rule” means a regulation, principle or directive promulgated by the Commission that has the force of law.
T. “Single-state license” means an audiology or speech-language pathology license issued by a member state that authorizes practice only within the issuing state and does not include a privilege to practice in any other member state.
U. “Speech-language pathologist” means an individual who is licensed by a state to practice speech-language pathology.
V. “Speech-language pathology means the care and services provided by a licensed speech-language pathologist as set forth in the member state’s statutes and rules.
W. “State” means any state, commonwealth, district or territory of the United States of America that regulates the practice of audiology and speech-language pathology.
X. “State practice laws” means a member state’s laws, rules and regulations that govern the practice of audiology or speech-language pathology, define the scope of audiology or speech-language pathology practice, and create the methods and grounds for imposing discipline.
Y. “Telehealth” means the application of telecommunication technology to deliver audiology or speech-language pathology services at a distance for assessment, intervention and/or consultation.
SECTION 3. STATE PARTICIPATION IN THE COMPACT
A. A license issued to an audiologist or speech-language pathologist by a home state to a resident in that state shall be recognized by each member state as authorizing an audiologist or speech-language pathologist to practice audiology or speech-language pathology, under a privilege to practice, in each member state.
B. A state must implement or utilize procedures for considering the criminal history records of applicants for initial privilege to practice. These procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant’s criminal history record information from the Federal Bureau of Investigation and the agency responsible for retaining that state’s criminal records
1. A member state must fully implement a criminal background check requirement, within a time frame established by rule, by receiving the results of the Federal Bureau of Investigation record search on criminal background checks and use the results in making licensure decisions.
2. Communication between a member state, the Commission and among member states regarding the verification of eligibility for licensure through the Compact shall not include any information received from the Federal Bureau of Investigation relating to a federal criminal records check performed by a member state under Public Law 92-544.
C. Upon application for a privilege to practice, the licensing board in the issuing remote state shall ascertain, through the data system, whether the applicant has ever held, or is the holder of, a license issued by any other state, whether there are any encumbrances on any license or privilege to practice held by the applicant, whether any adverse action has been taken against any license or privilege to practice held by the applicant.
D. Each member state shall require an applicant to obtain or retain a license in the home state and meet the home state’s qualifications for licensure or renewal of licensure, as well as, all other applicable state laws.
E. For an audiologist:
1. Must meet one of the following educational requirements:
a. On or before, Dec. 31, 2007, has graduated with a master’s degree or doctorate in audiology, or equivalent degree regardless of degree name, from a program that is accredited by an accrediting agency recognized by the Council for Higher Education Accreditation, or its successor, or by the United States Department of Education and operated by a college or university accredited by a regional or national accrediting organization recognized by the board; or
b. On or after, Jan. 1, 2008, has graduated with a Doctoral degree in audiology, or equivalent degree, regardless of degree name, from a program that is accredited by an accrediting agency recognized by the Council for Higher Education Accreditation, or its successor, or by the United States Department of Education and operated by a college or university accredited by a regional or national accrediting organization recognized by the board; or
c. Has graduated from an audiology program that is housed in an institution of higher education outside of the United States (a) for which the program and institution have been approved by the authorized accrediting body in the applicable country and (b) the degree program has been verified by an independent credentials review agency to be comparable to a state licensing board-approved program.
2. Has completed a supervised clinical practicum experience from an accredited educational institution or its cooperating programs as required by the commission;
3. Has successfully passed a national examination approved by the Commission;
4. Holds an active, unencumbered license;
5. Has not been convicted or found guilty, and has not entered into an agreed disposition, of a felony related to the practice of audiology, under applicable state or federal criminal law;
6. Has a valid United States Social Security or National Practitioner Identification number.
F. For a speech-language pathologist:
1. Must meet one of the following educational requirements:
a. Has graduated with a master’s degree from a speech-language pathology program that is accredited by an organization recognized by the United States Department of Education and operated by a college or university accredited by a regional or national accrediting organization recognized by the board; or
b. Has graduated from a speech-language pathology program that is housed in an institution of higher education outside of the United States (a) for which the program and institution have been approved by the authorized accrediting body in the applicable country and (b) the degree program has been verified by an independent credentials review agency to be comparable to a state licensing board-approved program.
2. Has completed a supervised clinical practicum experience from an educational institution or its cooperating programs as required by the Commission;
3. Has completed a supervised postgraduate professional experience as required by the Commission
4. Has successfully passed a national examination approved by the Commission;
5. Holds an active, unencumbered license;
6. Has not been convicted or found guilty, and has not entered into an agreed disposition, of a felony related to the practice of speech-language pathology, under applicable state or federal criminal law;
7. Has a valid United States Social Security or National Practitioner Identification number.
G. The privilege to practice is derived from the home state license.
H. An audiologist or speech-language pathologist practicing in a member state must comply with the state practice laws of the state in which the client is located at the time service is provided. The practice of audiology and speech-language pathology shall include all audiology and speech-language pathology practice as defined by the state practice laws of the member state in which the client is located. The practice of audiology and speech-language pathology in a member state under a privilege to practice shall subject an audiologist or speech-language pathologist to the jurisdiction of the licensing board, the courts and the laws of the member state in which the client is located at the time service is provided.
I. Individuals not residing in a member state shall continue to be able to apply for a member state’s single-state license as provided under the laws of each member state. However, the single-state license granted to these individuals shall not be recognized as granting the privilege to practice audiology or speech-language pathology in any other member state. Nothing in this Compact shall affect the requirements established by a member state for the issuance of a single-state license.
J. Member states may charge a fee for granting a compact privilege.
K. Member states must comply with the bylaws and rules and regulations of the Commission.
SECTION 4. COMPACT PRIVILEGE
A. To exercise the compact privilege under the terms and provisions of the Compact, the audiologist or speech-language pathologist shall:
1. Hold an active license in the home state;
2. Have no encumbrance on any state license;
3. Be eligible for a compact privilege in any member state in accordance with Section 3;
4. Have not had any adverse action against any license or compact privilege within the previous 2 years from date of application;
5. Notify the Commission that the licensee is seeking the compact privilege within a remote state(s);
6. Pay any applicable fees, including any state fee, for the compact privilege;
7. Report to the Commission adverse action taken by any non-member state within 30 days from the date the adverse action is taken.
B. For the purposes of the compact privilege, an audiologist or speech-language pathologist shall only hold one home state license at a time.
C. Except as provided in Section 6, if an audiologist or speech-language pathologist changes primary state of residence by moving between two-member states, the audiologist or speech-language pathologist must apply for licensure in the new home state, and the license issued by the prior home state shall be deactivated in accordance with applicable rules adopted by the Commission.
D. The audiologist or speech-language pathologist may apply for licensure in advance of a change in primary state of residence.
E. A license shall not be issued by the new home state until the audiologist or speech-language pathologist provides satisfactory evidence of a change in primary state of residence to the new home state and satisfies all applicable requirements to obtain a license from the new home state.
F. If an audiologist or speech-language pathologist changes primary state of residence by moving from a member state to a non-member state, the license issued by the prior home state shall convert to a single-state license, valid only in the former home state.
G. The compact privilege is valid until the expiration date of the home state license. The licensee must comply with the requirements of Section 4A to maintain the compact privilege in the remote state.
H. A licensee providing audiology or speech-language pathology services in a remote state under the compact privilege shall function within the laws and regulations of the remote state.
I. A licensee providing audiology or speech-language pathology services in a remote state is subject to that state’s regulatory authority. A remote state may, in accordance with due process and that state’s laws, remove a licensee’s compact privilege in the remote state for a specific period of time, impose fines, and/or take any other necessary actions to protect the health and safety of its citizens.
J. If a home state license is encumbered, the licensee shall lose the compact privilege in any remote state until the following occur:
1. The home state license is no longer encumbered; and
2. Two years have elapsed from the date of the adverse action.
K. Once an encumbered license in the home state is restored to good standing, the licensee must meet the requirements of Section 4A to obtain a compact privilege in any remote state.
L. Once the requirements of Section 4J have been met, the licensee must meet the requirements in Section 4A to obtain a compact privilege in a remote state.
SECTION 5. COMPACT PRIVILEGE TO PRACTICE TELEHEALTH
Member states shall recognize the right of an audiologist or speech-language pathologist, licensed by a home state in accordance with Section 3 and under rules promulgated by the Commission, to practice audiology or speech-language pathology in any member state via telehealth under a privilege to practice as provided in the Compact and rules promulgated by the Commission.
SECTION 6. ACTIVE DUTY MILITARY PERSONNEL OR THEIR SPOUSES
Active duty military personnel, or their spouse, shall designate a home state where the individual has a current license in good standing. The individual may retain the home state designation during the period the service member is on active duty. Subsequent to designating a home state, the individual shall only change their home state through application for licensure in the new state.
SECTION 7. ADVERSE ACTIONS
A. In addition to the other powers conferred by state law, a remote state shall have the authority, in accordance with existing state due process law, to:
1. Take adverse action against an audiologist’s or speech-language pathologist’s privilege to practice within that member state.
2. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence. Subpoenas issued by a licensing board in a member state for the attendance and testimony of witnesses or the production of evidence from another member state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state in which the witnesses or evidence are located.
3. Only the home state shall have the power to take adverse action against a audiologist’s or speech-language pathologist’s license issued by the home state.
B. For purposes of taking adverse action, the home state shall give the same priority and effect to reported conduct received from a member state as it would if the conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.
C. The home state shall complete any pending investigations of an audiologist or speech-language pathologist who changes primary state of residence during the course of the investigations. The home state shall also have the authority to take appropriate action(s) and shall promptly report the conclusions of the investigations to the administrator of the data system. The administrator of the coordinated licensure information system shall promptly notify the new home state of any adverse actions.
D. If otherwise permitted by state law, the member state may recover from the affected audiologist or speech-language pathologist the costs of investigations and disposition of cases resulting from any adverse action taken against that audiologist or speech-language pathologist.
E. The member state may take adverse action based on the factual findings of the remote state, provided that the member state follows the member state's own procedures for taking the adverse action.
F. Joint Investigations
1. In addition to the authority granted to a member state by its respective audiology or speech-language pathology practice act or other applicable state law, any member state may participate with other member states in joint investigations of licensees.
2. Member states shall share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the Compact.
G. If adverse action is taken by the home state against an audiologist’s or speech language pathologist’s license, the audiologist’s or speech-language pathologist’s privilege to practice in all other member states shall be deactivated until all encumbrances have been removed from the state license. All home state disciplinary orders that impose adverse action against an audiologist’s or speech language pathologist’s license shall include a statement that the audiologist’s or speech-language pathologist’s privilege to practice is deactivated in all member states during the pendency of the order.
H. If a member state takes adverse action, it shall promptly notify the administrator of the data system. The administrator of the data system shall promptly notify the home state of any adverse actions by remote states.
I. Nothing in this Compact shall override a member state’s decision that participation in an alternative program may be used in lieu of adverse action.
SECTION 8. ESTABLISHMENT OF THE AUDIOLOGY AND SPEECH-LANGUAGE PATHOLOGY COMPACT COMMISSION
A. The Compact member states hereby create and establish a joint public agency known as the Audiology and Speech-Language Pathology Compact Commission:
1. The Commission is an instrumentality of the Compact states.
2. Venue is proper and judicial proceedings by or against the Commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the Commission is located. The Commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.
3. Nothing in this Compact shall be construed to be a waiver of sovereign immunity.
B. Membership, Voting and Meetings
1. Each member state shall have two (2) delegates selected by that member state’s licensing board. The delegates shall be current members of the licensing board. One shall be an audiologist and one shall be a speech-language pathologist.
2. An additional five (5) delegates, who are either a public member or board administrator from a state licensing board, shall be chosen by the Executive Committee from a pool of nominees provided by the Commission at Large.
3. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed.
4. The member state board shall fill any vacancy occurring on the Commission, within 90 days.
5. Each delegate shall be entitled to one (1) vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the Commission.
6. A delegate shall vote in person or by other means as provided in the bylaws. The bylaws may provide for delegates’ participation in meetings by telephone or other means of communication.
7. The Commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.
C. The Commission shall have the following powers and duties:
1. Establish the fiscal year of the Commission;
2. Establish bylaws;
3. Establish a Code of Ethics;
4. Maintain its financial records in accordance with the bylaws;
5. Meet and take actions as are consistent with the provisions of this Compact and the bylaws;
6. Promulgate uniform rules to facilitate and coordinate implementation and administration of this Compact. The rules shall have the force and effect of law and shall be binding in all member states;
7. Bring and prosecute legal proceedings or actions in the name of the Commission, provided that the standing of any state audiology or speech-language pathology licensing board to sue or be sued under applicable law shall not be affected;
8. Purchase and maintain insurance and bonds;
9. Borrow, accept, or contract for services of personnel, including, but not limited to, employees of a member state;
10. Hire employees, elect or appoint officers, fix compensation, define duties, grant individuals appropriate authority to carry out the purposes of the Compact, and to establish the Commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;
11. Accept any and all appropriate donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose of the same; provided that at all times the Commission shall avoid any appearance of impropriety and/or conflict of interest;
12. Lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve or use, any property, real, personal or mixed; provided that at all times the Commission shall avoid any appearance of impropriety;
13. Sell convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property real, personal, or mixed;
14. Establish a budget and make expenditures;
15. Borrow money;
16. Appoint committees, including standing committees composed of members, and other interested persons as may be designated in this Compact and the bylaws;
17. Provide and receive information from, and cooperate with, law enforcement agencies;
18. Establish and elect an Executive Committee; and
19. Perform other functions as may be necessary or appropriate to achieve the purposes of this Compact consistent with the state regulation of audiology and speech-language pathology licensure and practice.
D. The Executive Committee
The Executive Committee shall have the power to act on behalf of the Commission according to the terms of this Compact:
1. The Executive Committee shall be composed of ten (10) members:
a. Seven (7) voting members who are elected by the Commission from the current membership of the Commission;
b. Two (2) ex-officios, consisting of one nonvoting member from a recognized national audiology professional association and one nonvoting member from a recognized national speech-language pathology association; and
c. One (1) ex-officio, nonvoting member from the recognized membership organization of the audiology and speech-language pathology licensing boards.
E. The ex-officio members shall be selected by their respective organizations.
1. The Commission may remove any member of the Executive Committee as provided in bylaws.
2. The Executive Committee shall meet at least annually.
3. The Executive Committee shall have the following duties and responsibilities:
a. Recommend to the entire Commission changes to the rules or bylaws, changes to this Compact legislation, fees paid by Compact member states such as annual dues, and any commission Compact fee charged to licensees for the compact privilege;
b. Ensure Compact administration services are appropriately provided, contractual or otherwise;
c. Prepare and recommend the budget;
d. Maintain financial records on behalf of the Commission;
e. Monitor Compact compliance of member states and provide compliance reports to the Commission;
f. Establish additional committees as necessary; and
g. Other duties as provided in rules or bylaws.
4. Meetings of the Commission
All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in Section 10.
5. The Commission or the Executive Committee or other committees of the Commission may convene in a closed, non-public meeting if the Commission or Executive Committee or other committees of the Commission must discuss:
a. Non-compliance of a member state with its obligations under the
Compact;
b. The employment, compensation, discipline or other matters, practices or procedures related to specific employees or other matters related to the Commission’s internal personnel practices and procedures;
c. Current, threatened, or reasonably anticipated litigation;
d. Negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate;
e. Accusing any person of a crime or formally censuring any person;
f. Disclosure of trade secrets or commercial or financial information that is privileged or confidential;
g. Disclosure of information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
h. Disclosure of investigative records compiled for law enforcement purposes;
i. Disclosure of information related to any investigative reports prepared by or on behalf of or for use of the Commission or other committee charged with responsibility of investigation or determination of compliance issues pursuant to the Compact; or
j. Matters specifically exempted from disclosure by federal or member state statute.
6. If a meeting, or portion of a meeting, is closed pursuant to this provision, the Commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision.
7. The Commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the Commission or order of a court of competent jurisdiction.
8. Financing of the Commission
a. The Commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.
b. The Commission may accept any and all appropriate revenue sources, donations, and grants of money, equipment, supplies, materials, and services.
c. The Commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the Commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Commission, which shall promulgate a rule binding upon all member states.
9. The Commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Commission pledge the credit of any of the member states, except by and with the authority of the member state.
10. The Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the Commission.
F. Qualified Immunity, Defense, and Indemnification
1. The members, officers, executive director, employees and representatives of the Commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties or responsibilities; provided that nothing in this paragraph shall be construed to protect any person from suit and/or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person.
2. The Commission shall defend any member, officer, executive director, employee or representative of the Commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Commission employment, duties, or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities; provided that nothing herein shall be construed to prohibit that person from retaining his or her own counsel; and provided further, that the actual or alleged act, error, or omission did not result from that person’s intentional or willful or wanton misconduct.
3. The Commission shall indemnify and hold harmless any member, officer, executive director, employee, or representative of the Commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of Commission employment, duties, or responsibilities, or that person had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from the intentional or willful or wanton misconduct of that person.
SECTION 9. DATA SYSTEM
A. The Commission shall provide for the development, maintenance, and utilization of a coordinated database and reporting system containing licensure, adverse action, and investigative information on all licensed individuals in member states.
B. Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the data system on all individuals to whom this Compact is applicable as required by the rules of the Commission, including:
1. Identifying information;
2. Licensure data;
3. Adverse actions against a license or compact privilege;
4. Non-confidential information related to alternative program participation;
5. Any denial of application for licensure, and the reason(s) for denial; and
6. Other information that may facilitate the administration of this Compact, as determined by the rules of the Commission.
C. Investigative information pertaining to a licensee in any member state shall only be available to other member states.
D. The Commission shall promptly notify all member states of any adverse action taken against a licensee or an individual applying for a license. Adverse action information pertaining to a licensee in any member state shall be available to any other member state.
E. Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.
F. Any information submitted to the data system that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the data system.
SECTION 10. RULEMAKING
A. The Commission shall exercise its rulemaking powers pursuant to the criteria set forth in this Section and the rules adopted thereunder. Rules and amendments shall become binding as of the date specified in each rule or amendment.
B. If a majority of the legislatures of the member states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the Compact within 4 years of the date of adoption of the rule, the rule shall have no further force and effect in any member state.
C. Rules or amendments to the rules shall be adopted at a regular or special meeting of the Commission.
D. Prior to promulgation and adoption of a final rule or rules by the Commission, and at least thirty (30) days in advance of the meeting at which the rule shall be considered and voted upon, the Commission shall file a Notice of Proposed Rulemaking:
1. On the website of the Commission or other publicly accessible platform; and
2. On the website of each member state audiology or speech-language pathology licensing board or other publicly accessible platform or the publication in which each state would otherwise publish proposed rules.
E. The Notice of Proposed Rulemaking shall include:
1. The proposed time, date, and location of the meeting in which the rule shall be considered and voted upon;
2. The text of the proposed rule or amendment and the reason for the proposed rule;
3. A request for comments on the proposed rule from any interested person; and
4. The manner in which interested persons may submit notice to the Commission of their intention to attend the public hearing and any written comments.
F. Prior to the adoption of a proposed rule, the Commission shall allow persons to submit written data, facts, opinions and arguments, which shall be made available to the public.
G. The Commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by:
1. At least twenty-five (25) persons;
2. A state or federal governmental subdivision or agency; or
3. An association having at least twenty-five (25) members.
H. If a hearing is held on the proposed rule or amendment, the Commission shall publish the place, time, and date of the scheduled public hearing. If the hearing is held via electronic means, the Commission shall publish the mechanism for access to the electronic hearing.
1. All persons wishing to be heard at the hearing shall notify the executive director of the Commission or other designated member in writing of their desire to appear and testify at the hearing not less than five (5) business days before the scheduled date of the hearing.
2. Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.
3. All hearings shall be recorded. A copy of the recording shall be made available on request.
4. Nothing in this section shall be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the Commission at hearings required by this section.
I. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the Commission shall consider all written and oral comments received.
J. If no written notice of intent to attend the public hearing by interested parties is received, the Commission may proceed with promulgation of the proposed rule without a public hearing.
K. The Commission shall, by majority vote of all members, take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.
L. Upon determination that an emergency exists, the Commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing, provided that the usual rulemaking procedures provided in the Compact and in this section shall be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:
1. Meet an imminent threat to public health, safety, or welfare;
2. Prevent a loss of Commission or member state funds; or
3. Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule.
M. The Commission or an authorized committee of the Commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions shall be posted on the website of the Commission. The revision shall be subject to challenge by any person for a period of thirty (30) days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the chair of the Commission prior to the end of the notice period. If no challenge is made, the revision shall take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the Commission.
SECTION 11. OVERSIGHT, DISPUTE RESOLUTION, AND ENFORCEMENT
A. Dispute Resolution
1. Upon request by a member state, the Commission shall attempt to resolve disputes related to the Compact that arise among member states and between member and non-member states.
2. The Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.
B. Enforcement
1. The Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this Compact.
2. By majority vote, the Commission may initiate legal action in the United States District Court for the District of Columbia or the federal district where the Commission has its principal offices against a member state in default to enforce compliance with the provisions of the Compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing member shall be awarded all costs of litigation, including reasonable attorney’s fees.
3. The remedies herein shall not be the exclusive remedies of the Commission. The Commission may pursue any other remedies available under federal or state law.
SECTION 12. DATE OF IMPLEMENTATION OF THE INTERstate COMMISSION FOR AUDIOLOGY AND SPEECH-LANGUAGE PATHOLOGY PRACTICE AND ASSOCIATED RULES, WITHDRAWAL, AND AMENDMENT
A. The Compact shall come into effect on the date on which the Compact statute is enacted into law in the 10th member state. The provisions, which become effective at that time, shall be limited to the powers granted to the Commission relating to assembly and the promulgation of rules. Thereafter, the Commission shall meet and exercise rulemaking powers necessary to the implementation and administration of the Compact.
B. Any state that joins the Compact subsequent to the Commission’s initial adoption of the rules shall be subject to the rules as they exist on the date on which the Compact becomes law in that state. Any rule that has been previously adopted by the Commission shall have the full force and effect of law on the day the Compact becomes law in that state.
C. Any member state may withdraw from this Compact by enacting a statute repealing the same.
1. A member state’s withdrawal shall not take effect until six (6) months after enactment of the repealing statute.
2. Withdrawal shall not affect the continuing requirement of the withdrawing state’s audiology or speech-language pathology licensing board to comply with the investigative and adverse action reporting requirements of this act prior to the effective date of withdrawal.
D. Nothing contained in this Compact shall be construed to invalidate or prevent any audiology or speech-language pathology licensure agreement or other cooperative arrangement between a member state and a non-member state that does not conflict with the provisions of this Compact.
E. This Compact may be amended by the member states. No amendment to this Compact shall become effective and binding upon any member state until it is enacted into the laws of all member states.
SECTION 13. CONSTRUCTION AND SEVERABILITY
This Compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this Compact shall be severable and if any phrase, clause, sentence or provision of this Compact is declared to be contrary to the constitution of any member state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this Compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this Compact shall be held contrary to the constitution of any member state, the Compact shall remain in full force and effect as to the remaining member states and in full force and effect as to the member state affected as to all severable matters.
SECTION 14. BINDING EFFECT OF COMPACT AND OTHER LAWS
A. Nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with the Compact.
B. All laws in a member state in conflict with the Compact are superseded to the extent of the conflict.
C. All lawful actions of the Commission, including all rules and bylaws promulgated by the Commission, are binding upon the member states.
D. All agreements between the Commission and the member states are binding in accordance with their terms.
E. In the event any provision of the Compact exceeds the constitutional limits imposed on the legislature of any member state, the provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.
329-D:3 Occupational Therapy Licensure Compact. The state of New Hampshire hereby adopts the provisions of the Occupational Therapy Licensure Compact as follows:
SECTION 1. PURPOSE
The purpose of this Compact is to facilitate interstate practice of occupational therapy with the goal of improving public access to occupational therapy services. The Practice of occupational therapy occurs in the state where the patient/client is located at the time of the patient/client encounter. The Compact preserves the regulatory authority of states to protect public health and safety through the current system of state licensure.
This Compact is designed to achieve the following objectives:
A. Increase public access to occupational therapy services by providing for the mutual recognition of other member state licenses;
B. Enhance the states’ ability to protect the public’s health and safety;
C. Encourage the cooperation of member states in regulating multi-state occupational therapy practice;
D. Support spouses of relocating military members;
E. Enhance the exchange of licensure, investigative, and disciplinary information between Member states;
F. Allow a remote state to hold a provider of services with a Compact privilege in that state accountable to that state’s practice standards; and
G. Facilitate the use of telehealth technology in order to increase access to occupational therapy services.
SECTION 2. DEFINITIONS
As used in this Compact, and except as otherwise provided, the following definitions shall apply:
A. “Active Duty Military” means full-time duty status in the active uniformed service of the United States, including members of the National Guard and Reserve on active duty orders pursuant to 10 U.S.C. Chapter 1209 and Section 1211.
B. “Adverse action” means any administrative, civil, equitable, or criminal action permitted by a state’s laws which is imposed by a licensing board or other authority against an occupational therapist or occupational therapy assistant, including actions against an individual’s license or Compact privilege such as censure, revocation, suspension, probation, monitoring of the licensee, or restriction on the licensee’s practice.
C. “Alternative Program” means a non-disciplinary monitoring process approved by an occupational therapy licensing board.
D. “Compact privilege” means the authorization, which is equivalent to a license, granted by a remote state to allow a licensee from another member state to practice as an occupational therapist or practice as an occupational therapy assistant in the remote state under its laws and rules. The practice of occupational therapy occurs in the member state where the patient/client is located at the time of the patient/client encounter.
E. “Continuing Competence/Education” means a requirement, as a condition of license renewal, to provide evidence of participation in, and/or completion of, educational and professional activities relevant to practice or area of work.
F. “Current significant investigative information” means investigative information that a licensing board, after an inquiry or investigation that includes notification and an opportunity for the occupational therapist or occupational therapy assistant to respond, if required by state law, has reason to believe is not groundless and, if proved true, would indicate more than a minor infraction.
G. “Data system” means a repository of information about licensees, including but not limited to license status, investigative information, Compact privileges, and adverse actions.
H. “Encumbered license” means a license in which an adverse action restricts the practice of occupational therapy by the licensee or said adverse action has been reported to the National Practitioners Data Bank (NPDB).
I. “Executive Committee” means a group of directors elected or appointed to act on behalf of, and within the powers granted to them by, the Commission.
J. “Home state” means the member state that is the licensee’s Primary state of residence.
K. “Impaired practitioner” means individuals whose professional practice is adversely affected by substance abuse, addiction, or other health-related conditions.
L. “Investigative Information” means information, records, and/or documents received or generated by an occupational therapy licensing board pursuant to an investigation.
M. “Jurisprudence requirement” means the assessment of an individual’s knowledge of the laws and rules governing the practice of occupational therapy in a state.
N. “Licensee” means an individual who currently holds an authorization from the state to practice as an occupational therapist or as an occupational therapy assistant.
O. “Member state” means a state that has enacted the Compact.
P. “Occupational therapist” means an individual who is licensed by a state to practice occupational therapy.
Q. “Occupational therapy assistant” means an individual who is licensed by a state to assist in the practice of occupational therapy.
R. “Occupational therapy,” “occupational therapy practice,” and the “practice of occupational therapy” mean the care and services provided by an occupational therapist or an occupational therapy assistant as set forth in the member state’s statutes and regulations.
S. “Occupational therapy Compact Commission” or “Commission” means the national administrative body whose membership consists of all states that have enacted the Compact.
T. “Occupational therapy licensing board” or “licensing board” means the agency of a state that is authorized to license and regulate occupational therapists and occupational therapy assistants.
U. “Primary state of residence” means the state (also known as the home state) in which an occupational therapist or occupational therapy assistant who is not Active Duty Military declares a primary residence for legal purposes as verified by: driver’s license, federal income tax return, lease, deed, mortgage or voter registration or other verifying documentation as further defined by Commission rules.
V. “Remote state” means a member state other than the home state, where a licensee is exercising or seeking to exercise the Compact privilege.
W. “Rule” means a regulation promulgated by the Commission that has the force of law.
X. “State” means any state, commonwealth, district, or territory of the United States of America that regulates the practice of occupational therapy.
Y. “Single-state license” means an occupational therapist or occupational therapy assistant license issued by a member state that authorizes practice only within the issuing state and does not include a Compact privilege in any other member state.
Z. “Telehealth” means the application of telecommunication technology to deliver occupational therapy services for assessment, intervention and/or consultation.
SECTION 3. STATE PARTICIPATION IN THE COMPACT
A. To participate in the Compact, a member state shall:
1. License occupational therapists and occupational therapy assistants
2. Participate fully in the Commission’s data system, including but not limited to using the Commission’s unique identifier as defined in rules of the Commission;
3. Have a mechanism in place for receiving and investigating complaints about licensees;
4. Notify the Commission, in compliance with the terms of the Compact and rules, of any adverse action or the availability of investigative information regarding a licensee;
5. Implement or utilize procedures for considering the criminal history records of applicants for an initial Compact privilege. These procedures shall include the submission of fingerprints or other biometric-based information by applicants for the purpose of obtaining an applicant’s criminal history record information from the Federal Bureau of Investigation and the agency responsible for retaining that state’s criminal records;
a. A member state shall, within a time frame established by the Commission, require a criminal background check for a licensee seeking/applying for a Compact privilege whose Primary state of residence is that member state, by receiving the results of the Federal Bureau of Investigation criminal record search, and shall use the results in making licensure decisions.
b. Communication between a member state, the Commission and among member states regarding the verification of eligibility for licensure through the Compact shall not include any information received from the Federal Bureau of Investigation relating to a federal criminal records check performed by a member state under Public Law 92-544.
6. Comply with the rules of the Commission;
7. Utilize only a recognized national examination as a requirement for licensure pursuant to the rules of the Commission; and
8. Have Continuing Competence/Education requirements as a condition for license renewal.
B. A member state shall grant the Compact privilege to a licensee holding a valid unencumbered license in another member state in accordance with the terms of the Compact and rules.
C. Member states may charge a fee for granting a Compact privilege.
D. A member state shall provide for the state’s delegate to attend all occupational therapy Compact Commission meetings.
E. Individuals not residing in a member state shall continue to be able to apply for a member state’s Single-state license as provided under the laws of each member state. However, the Single-state license granted to these individuals shall not be recognized as granting the Compact privilege in any other member state.
F. Nothing in this Compact shall affect the requirements established by a member state for the issuance of a Single-state license.
SECTION 4. COMPACT PRIVILEGE
A. To exercise the Compact privilege under the terms and provisions of the Compact, the licensee shall:
1. Hold a license in the home state;
2. Have a valid United States Social Security Number or National Practitioner Identification number;
3. Have no encumbrance on any state license;
4. Be eligible for a Compact privilege in any member state in accordance with Section 4D, F, G, and H;
5. Have paid all fines and completed all requirements resulting from any adverse action against any license or Compact privilege, and two years have elapsed from the date of such completion;
6. Notify the Commission that the licensee is seeking the Compact privilege within a remote state(s);
7. Pay any applicable fees, including any state fee, for the Compact privilege;
8. Complete a criminal background check in accordance with Section 3A(5);
a. The licensee shall be responsible for the payment of any fee associated with the completion of a criminal background check.
9. Meet any jurisprudence requirements established by the remote state(s) in which the licensee is seeking a Compact privilege; and
10. Report to the Commission adverse action taken by any non-member state within 30 days from the date the adverse action is taken.
B. The Compact privilege is valid until the expiration date of the home state license. The licensee must comply with the requirements of Section 4A to maintain the Compact privilege in the remote state.
C. A licensee providing occupational therapy in a remote state under the Compact privilege shall function within the laws and regulations of the remote state.
D. Occupational therapy assistants practicing in a remote state shall be supervised by an occupational therapist licensed or holding a Compact privilege in that remote state.
E. A licensee providing occupational therapy in a remote state is subject to that state’s regulatory authority. A remote state may, in accordance with due process and that state’s laws, remove a licensee’s Compact privilege in the remote state for a specific period of time, impose fines, and/or take any other necessary actions to protect the health and safety of its citizens. The licensee may be ineligible for a Compact privilege in any state until the specific time for removal has passed and all fines are paid.
F. If a home state license is encumbered, the licensee shall lose the Compact privilege in any remote state until the following occur:
1. The home state license is no longer encumbered; and
2. Two years have elapsed from the date on which the home state license is no longer encumbered in accordance with Section 4(F)(1).
G. Once an Encumbered license in the home state is restored to good standing, the licensee must meet the requirements of Section 4A to obtain a Compact privilege in any remote state.
H. If a licensee’s Compact privilege in any remote state is removed, the individual may lose the Compact privilege in any other remote state until the following occur:
1. The specific period of time for which the Compact privilege was removed has ended;
2. All fines have been paid and all conditions have been met;
3. Two years have elapsed from the date of completing requirements for 4(H)(1) and (2); and
4. The Compact privileges are reinstated by the Commission, and the compact data system is updated to reflect reinstatement.
I. If a licensee’s Compact privilege in any remote state is removed due to an erroneous charge, privileges shall be restored through the compact data system.
J. Once the requirements of Section 4H have been met, the license must meet the requirements in Section 4A to obtain a Compact privilege in a remote state.
SECTION 5: OBTAINING A NEW HOME state LICENSE BY VIRTUE OF COMPACT PRIVILEGE
A. An occupational therapist or occupational therapy assistant may hold a home state license, which allows for Compact privileges in member states, in only one member state at a time.
B. If an occupational therapist or occupational therapy assistant changes primary state of residence by moving between two member states:
1. The occupational therapist or occupational therapy assistant shall file an application for obtaining a new home state license by virtue of a Compact privilege, pay all applicable fees, and notify the current and new home state in accordance with applicable rules adopted by the Commission.
2. Upon receipt of an application for obtaining a new home state license by virtue of compact privilege, the new home state shall verify that the occupational therapist or occupational therapy assistant meets the pertinent criteria outlined in Section 4 via the data system, without need for primary source verification except for:
a. An FBI fingerprint based criminal background check if not previously performed or updated pursuant to applicable rules adopted by the Commission in accordance with Public Law 92-544;
b. Other criminal background check as required by the new home state; and
c. Submission of any requisite jurisprudence requirements of the new home state.
3. The former home state shall convert the former home state license into a Compact privilege once the new home state has activated the new home state license in accordance with applicable rules adopted by the Commission.
4. Notwithstanding any other provision of this Compact, if the occupational therapist or occupational therapy assistant cannot meet the criteria in Section 4, the new home state shall apply its requirements for issuing a new Single-state license.
5. The occupational therapist or the occupational therapy assistant shall pay all applicable fees to the new home state in order to be issued a new home state license.
C. If an occupational therapist or occupational therapy assistant changes primary state of residence by moving from a member state to a non-member state, or from a non-member state to a member state, the state criteria shall apply for issuance of a Single-state license in the new state.
D. Nothing in this compact shall interfere with a licensee’s ability to hold a Single-state license in multiple states; however, for the purposes of this compact, a licensee shall have only one home state license.
E. Nothing in this Compact shall affect the requirements established by a member state for the issuance of a Single-state license.
SECTION 6. ACTIVE DUTY MILITARY PERSONNEL OR THEIR SPOUSES
A. Active Duty Military personnel, or their spouses, shall designate a home state where the individual has a current license in good standing. The individual may retain the home state designation during the period the service member is on active duty. Subsequent to designating a home state, the individual shall only change their home state through application for licensure in the new state or through the process described in Section 5.
SECTION 7. ADVERSE ACTIONS
A. A home state shall have exclusive power to impose adverse action against an occupational therapist’s or occupational therapy assistant’s license issued by the home state.
B. In addition to the other powers conferred by state law, a remote state shall have the authority, in accordance with existing state due process law, to:
1. Take adverse action against an occupational therapist’s or occupational therapy assistant’s Compact privilege within that member state.
2. Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses as well as the production of evidence. Subpoenas issued by a licensing board in a member state for the attendance and testimony of witnesses or the production of evidence from another member state shall be enforced in the latter state by any court of competent jurisdiction, according to the practice and procedure of that court applicable to subpoenas issued in proceedings pending before it. The issuing authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state in which the witnesses or evidence are located.
C. For purposes of taking adverse action, the home state shall give the same priority and effect to reported conduct received from a member state as it would if the conduct had occurred within the home state. In so doing, the home state shall apply its own state laws to determine appropriate action.
D. The home state shall complete any pending investigations of an occupational therapist or occupational therapy assistant who changes primary state of residence during the course of the investigations. The home state, where the investigations were initiated, shall also have the authority to take appropriate action(s) and shall promptly report the conclusions of the investigations to the OT Compact Commission data system. The occupational therapy Compact Commission data system administrator shall promptly notify the new home state of any adverse actions.
E. A member state, if otherwise permitted by state law, may recover from the affected occupational therapist or occupational therapy assistant the costs of investigations and disposition of cases resulting from any adverse action taken against that occupational therapist or occupational therapy assistant.
F. A member state may take adverse action based on the factual findings of the remote state, provided that the member state follows its own procedures for taking the adverse action.
G. Joint Investigations
1. In addition to the authority granted to a member state by its respective state occupational therapy laws and regulations or other applicable state law, any member state may participate with other member states in joint investigations of licensees.
2. Member states shall share any investigative, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under the Compact.
H. If an adverse action is taken by the home state against an occupational therapist’s or occupational therapy assistant’s license, the occupational therapist’s or occupational therapy assistant’s Compact privilege in all other member states shall be deactivated until all encumbrances have been removed from the state license. All home state disciplinary orders that impose adverse action against an occupational therapist’s or occupational therapy assistant’s license shall include a statement that the occupational therapist’s or occupational therapy assistant’s Compact privilege is deactivated in all member states during the pendency of the order.
I. If a member state takes adverse action, it shall promptly notify the administrator of the data system. The administrator of the data system shall promptly notify the home state of any adverse actions by remote states.
J. Nothing in this Compact shall override a member state’s decision that participation in an Alternative Program may be used in lieu of adverse action.
SECTION 8. ESTABLISHMENT OF THE OCCUPATIONAL THERAPY COMPACT COMMISSION.
A. The Compact member states hereby create and establish a joint public agency known as the occupational therapy Compact Commission:
1. The Commission is an instrumentality of the Compact states.
2. Venue is proper and judicial proceedings by or against the Commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the Commission is located. The Commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.
3. Nothing in this Compact shall be construed to be a waiver of sovereign immunity.
B. Membership, Voting, and Meetings
1. Each member state shall have and be limited to one (1) delegate selected by that member state’s licensing board.
2. The delegate shall be either:
a. A current member of the licensing board, who is an occupational therapist, occupational therapy assistant, or public member; or
b. An administrator of the licensing board.
3. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed.
4. The member state board shall fill any vacancy occurring in the Commission within 90 days.
5. Each delegate shall be entitled to one (1) vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the Commission. A delegate shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for delegates’ participation in meetings by telephone or other means of communication.
6. The Commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.
7. The Commission shall establish by rule a term of office for delegates.
C. The Commission shall have the following powers and duties:
1. Establish a Code of Ethics for the Commission;
2. Establish the fiscal year of the Commission;
3. Establish bylaws;
4. Maintain its financial records in accordance with the bylaws;
5. Meet and take such actions as are consistent with the provisions of this Compact and the bylaws;
6. Promulgate uniform rules to facilitate and coordinate implementation and administration of this Compact. The rules shall have the force and effect of law and shall be binding in all member states;
7. Bring and prosecute legal proceedings or actions in the name of the Commission, provided that the standing of any state occupational therapy licensing board to sue or be sued under applicable law shall not be affected;
8. Purchase and maintain insurance and bonds;
9. Borrow, accept, or contract for services of personnel, including, but not limited to, employees of a member state;
10. Hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of the Compact, and establish the Commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;
11. Accept any and all appropriate donations and grants of money, equipment, supplies, materials and services, and receive, utilize and dispose of the same; provided that at all times the Commission shall avoid any appearance of impropriety and/or conflict of interest;
12. Lease, purchase, accept appropriate gifts or donations of, or otherwise own, hold, improve or use, any property, real, personal or mixed; provided that at all times the Commission shall avoid any appearance of impropriety;
13. Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property real, personal, or mixed;
14. Establish a budget and make expenditures;
15. Borrow money;
16. Appoint committees, including standing committees composed of members, state regulators, state legislators or their representatives, and consumer representatives, and such other interested persons as may be designated in this Compact and the bylaws;
17. Provide and receive information from, and cooperate with, law enforcement agencies;
18. Establish and elect an Executive Committee; and
19. Perform such other functions as may be necessary or appropriate to achieve the purposes of this Compact consistent with the state regulation of occupational therapy licensure and practice.
D. The Executive Committee. The Executive Committee shall have the power to act on behalf of the Commission according to the terms of this Compact.
1. The Executive Committee shall be composed of nine members:
a. Seven voting members who are elected by the Commission from the current membership of the Commission;
b. One ex-officio, nonvoting member from a recognized national occupational therapy professional association; and
c. One ex-officio, nonvoting member from a recognized national occupational therapy certification organization.
2. The ex-officio members will be selected by their respective organizations.
3. The Commission may remove any member of the Executive Committee as provided in bylaws.
4. The Executive Committee shall meet at least annually.
5. The Executive Committee shall have the following duties and responsibilities:
a. Recommend to the entire Commission changes to the rules or bylaws, changes to this Compact legislation, fees paid by Compact member states such as annual dues, and any Commission Compact fee charged to licensees for the Compact privilege;
b. Ensure Compact administration services are appropriately provided, contractual or otherwise;
c. Prepare and recommend the budget;
d. Maintain financial records on behalf of the Commission;
e. Monitor Compact compliance of member states and provide compliance reports to the Commission;
f. Establish additional committees as necessary; and
g. Perform other duties as provided in rules or bylaws.
E. Meetings of the Commission
1. All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in Section 10.
2. The Commission or the Executive Committee or other committees of the Commission may convene in a closed, non-public meeting if the Commission or Executive Committee or other committees of the Commission must discuss:
a. Non-compliance of a member state with its obligations under the Compact;
b. The employment, compensation, discipline or other matters, practices or procedures related to specific employees or other matters related to the Commission’s internal personnel practices and procedures;
c. Current, threatened, or reasonably anticipated litigation;
d. Negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate;
e. Accusing any person of a crime or formally censuring any person;
f. Disclosure of trade secrets or commercial or financial information that is privileged or confidential;
g. Disclosure of information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
h. Disclosure of investigative records compiled for law enforcement purposes;
i. Disclosure of information related to any investigative reports prepared by or on behalf of or for use of the Commission or other committee charged with responsibility of investigation or determination of compliance issues pursuant to the Compact; or
j. Matters specifically exempted from disclosure by federal or member state statute.
3. If a meeting, or portion of a meeting, is closed pursuant to this provision, the Commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision.
4. The Commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the Commission or order of a court of competent jurisdiction.
F. Financing of the Commission
1. The Commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization, and ongoing activities.
2. The Commission may accept any and all appropriate revenue sources, donations, and grants of money, equipment, supplies, materials, and services.
3. The Commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the Commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved by the Commission each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the Commission, which shall promulgate a rule binding upon all member states.
4. The Commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the Commission pledge the credit of any of the member states, except by and with the authority of the member state.
5. The Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the Commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the Commission.
G. Qualified Immunity, Defense, and Indemnification
1. The members, officers, executive director, employees and representatives of the Commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties or responsibilities; provided that nothing in this paragraph shall be construed to protect any such person from suit and/or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person.
2. The Commission shall defend any member, officer, executive director, employee, or representative of the Commission in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of Commission employment, duties, or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities; provided that nothing herein shall be construed to prohibit that person from retaining his or her own counsel; and provided further, that the actual or alleged act, error, or omission did not result from that person’s intentional or willful or wanton misconduct.
3. The Commission shall indemnify and hold harmless any member, officer, executive director, employee, or representative of the Commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of Commission employment, duties, or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from the intentional or willful or wanton misconduct of that person.
SECTION 9. DATA SYSTEM
A. The Commission shall provide for the development, maintenance, and utilization of a coordinated database and reporting system containing licensure, adverse action, and investigative information on all licensed individuals in member states.
B. A member state shall submit a uniform data set to the data system on all individuals to whom this Compact is applicable (utilizing a unique identifier) as required by the rules of the Commission, including:
1. Identifying information;
2. Licensure data;
3. Adverse actions against a license or Compact privilege;
4. Non-confidential information related to Alternative Program participation;
5. Any denial of application for licensure, and the reason(s) for such denial;
6. Other information that may facilitate the administration of this Compact, as determined by the rules of the Commission; and
7. Current significant investigative information.
C. Current significant investigative information and other investigative information pertaining to a licensee in any member state will only be available to other member states.
D. The Commission shall promptly notify all member states of any adverse action taken against a licensee or an individual applying for a license. adverse action information pertaining to a licensee in any member state will be available to any other member state.
E. Member states contributing information to the data system may designate information that may not be shared with the public without the express permission of the contributing state.
F. Any information submitted to the data system that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the data system.
SECTION 10. RULEMAKING
A. The Commission shall exercise its rulemaking powers pursuant to the criteria set forth in this Section and the rules adopted thereunder. Rules and amendments shall become binding as of the date specified in each rule or amendment.
B. The Commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purposes of the Compact. Notwithstanding the foregoing, in the event the Commission exercises its rulemaking authority in a manner that is beyond the scope of the purposes of the Compact, or the powers granted hereunder, then such an action by the Commission shall be invalid and have no force and effect.
C. If a majority of the legislatures of the member states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the Compact within 4 years of the date of adoption of the rule, then such rule shall have no further force and effect in any member state.
D. Rules or amendments to the rules shall be adopted at a regular or special meeting of the Commission.
E. Prior to promulgation and adoption of a final rule or rules by the Commission, and at least thirty (30) days in advance of the meeting at which the rule will be considered and voted upon, the Commission shall file a notice of proposed rulemaking:
1. On the website of the Commission or other publicly accessible platform; and
2. On the website of each member state occupational therapy licensing board or other publicly accessible platform or the publication in which each state would otherwise publish proposed rules.
F. The notice of proposed rulemaking shall include:
1. The proposed time, date, and location of the meeting in which the rule will be considered and voted upon;
2. The text of the proposed rule or amendment and the reason for the proposed rule;
3. A request for comments on the proposed rule from any interested person; and
4. The manner in which interested persons may submit notice to the Commission of their intention to attend the public hearing and any written comments.
G. Prior to adoption of a proposed rule, the Commission shall allow persons to submit written data, facts, opinions, and arguments, which shall be made available to the public.
H. The Commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by:
1. At least twenty five (25) persons;
2. A state or federal governmental subdivision or agency; or
3. An association or organization having at least twenty five (25) members.
I. If a hearing is held on the proposed rule or amendment, the Commission shall publish the place, time, and date of the scheduled public hearing. If the hearing is held via electronic means, the Commission shall publish the mechanism for access to the electronic hearing.
1. All persons wishing to be heard at the hearing shall notify the executive director of the Commission or other designated member in writing of their desire to appear and testify at the hearing not less than five (5) business days before the scheduled date of the hearing.
2. Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.
3. All hearings will be recorded. A copy of the recording will be made available on request.
4. Nothing in this section shall be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the Commission at hearings required by this section.
J. Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the Commission shall consider all written and oral comments received.
K. If no written notice of intent to attend the public hearing by interested parties is received, the Commission may proceed with promulgation of the proposed rule without a public hearing.
L. The Commission shall, by majority vote of all members, take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.
M. Upon determination that an emergency exists, the Commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing, provided that the usual rulemaking procedures provided in the Compact and in this section shall be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:
1. Meet an imminent threat to public health, safety, or welfare;
2. Prevent a loss of Commission or member state funds;
3. Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule; or
4. Protect public health and safety.
N. The Commission or an authorized committee of the Commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions shall be posted on the website of the Commission. The revision shall be subject to challenge by any person for a period of thirty (30) days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing and delivered to the chair of the Commission prior to the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the Commission.
SECTION 11. OVERSIGHT, DISPUTE RESOLUTION, AND ENFORCEMENT
A. Oversight
1. The executive, legislative, and judicial branches of state government in each member state shall enforce this Compact and take all actions necessary and appropriate to effectuate the Compact’s purposes and intent. The provisions of this Compact and the rules promulgated hereunder shall have standing as statutory law.
2. All courts shall take judicial notice of the Compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this Compact which may affect the powers, responsibilities, or actions of the Commission.
3. The Commission shall be entitled to receive service of process in any such proceeding, and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the Commission shall render a judgment or order void as to the Commission, this Compact, or promulgated rules.
B. Default, Technical Assistance, and Termination
1. If the Commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this Compact or the promulgated rules, the Commission shall:
a. Provide written notice to the defaulting state and other member states of the nature of the default, the proposed means of curing the default and/or any other action to be taken by the Commission; and
b. Provide remedial training and specific technical assistance regarding the default.
2. If a state in default fails to cure the default, the defaulting state may be terminated from the Compact upon an affirmative vote of a majority of the member states, and all rights, privileges and benefits conferred by this Compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.
3. Termination of membership in the Compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the Commission to the governor, the majority and minority leaders of the defaulting state’s legislature, and each of the member states.
4. A state that has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.
5. The Commission shall not bear any costs related to a state that is found to be in default or that has been terminated from the Compact, unless agreed upon in writing between the Commission and the defaulting state.
6. The defaulting state may appeal the action of the Commission by petitioning the U.S. District Court for the District of Columbia or the federal district where the Commission has its principal offices. The prevailing member shall be awarded all costs of such litigation, including reasonable attorney’s fees.
C. Dispute Resolution
1. Upon request by a member state, the Commission shall attempt to resolve disputes related to the Compact that arise among member states and between member and non-member states.
2. The Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.
D. Enforcement
1. The Commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this Compact.
2. By majority vote, the Commission may initiate legal action in the United States District Court for the District of Columbia or the federal district where the Commission has its principal offices against a member state in default to enforce compliance with the provisions of the Compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing member shall be awarded all costs of such litigation, including reasonable attorney’s fees.
3. The remedies herein shall not be the exclusive remedies of the Commission. The Commission may pursue any other remedies available under federal or state law.
SECTION 12. DATE OF IMPLEMENTATION OF THE INTERSTATE COMMISSION FOR OCCUPATIONAL THERAPY PRACTICE AND ASSOCIATED RULES, WITHDRAWAL, AND AMENDMENT
A. The Compact shall come into effect on the date on which the Compact statute is enacted into law in the tenth member state. The provisions, which become effective at that time, shall be limited to the powers granted to the Commission relating to assembly and the promulgation of rules. Thereafter, the Commission shall meet and exercise rulemaking powers necessary to the implementation and administration of the Compact.
B. Any state that joins the Compact subsequent to the Commission’s initial adoption of the rules shall be subject to the rules as they exist on the date on which the Compact becomes law in that state. Any rule that has been previously adopted by the Commission shall have the full force and effect of law on the day the Compact becomes law in that state.
C. Any member state may withdraw from this Compact by enacting a statute repealing the same.
1. A member state’s withdrawal shall not take effect until six (6) months after enactment of the repealing statute.
2. Withdrawal shall not affect the continuing requirement of the withdrawing state’s occupational therapy licensing board to comply with the investigative and adverse action reporting requirements of this act prior to the effective date of withdrawal.
D. Nothing contained in this Compact shall be construed to invalidate or prevent any occupational therapy licensure agreement or other cooperative arrangement between a member state and a non-member state that does not conflict with the provisions of this Compact.
E. This Compact may be amended by the member states. No amendment to this Compact shall become effective and binding upon any member state until it is enacted into the laws of all member states.
SECTION 13. CONSTRUCTION AND SEVERABILITY
This Compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this Compact shall be severable and if any phrase, clause, sentence or provision of this Compact is declared to be contrary to the constitution of any member state or of the United States or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this Compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this Compact shall be held contrary to the constitution of any member state, the Compact shall remain in full force and effect as to the remaining member states and in full force and effect as to the member state affected as to all severable matters.
SECTION 14. BINDING EFFECT OF COMPACT AND OTHER LAWS
A. A licensee providing occupational therapy in a remote state under the Compact privilege shall function within the laws and regulations of the remote state.
B. Nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with the Compact.
C. Any laws in a member state in conflict with the Compact are superseded to the extent of the conflict.
D. Any lawful actions of the Commission, including all rules and bylaws promulgated by the Commission, are binding upon the member states.
E. All agreements between the Commission and the member states are binding in accordance with their terms.
F. In the event any provision of the Compact exceeds the constitutional limits imposed on the legislature of any member state, the provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.
3 Effective Date. Part VI of this act shall take effect July 1, 2021.
PART VII
Relative to the licensure and regulation of music therapists.
1 New Chapter; Music Therapists. Amend RSA by inserting after chapter 326-L the following new chapter:
CHAPTER 326-M
MUSIC THERAPISTS
326-M:1 Definitions. In this chapter and RSA 328-F:
I. "Board" means the music therapists governing board established in RSA 328-F.
II. "Board certified music therapist" means an individual who holds current board certification from the Certification Board for Music Therapists.
III. "Executive director" means the executive director of the office of professional licensure and certification.
IV. "Music therapist" means a person licensed to practice music therapy pursuant to this chapter.
V. "Music therapy" means the clinical and evidence based use of music interventions to accomplish individualized goals for people of all ages and ability levels within a therapeutic relationship by a board certified music therapist. The music therapy interventions may include, music improvisation, receptive music listening, song writing, lyric discussion, music and imagery, singing, music performance, learning through music, music combined with other arts, music-assisted relaxation, music-based patient education, electronic music technology, adapted music intervention and movement to music. The practice of music therapy does not include the screening, diagnosis, or assessment of any physical, mental, or communication disorder. This term may include:
(a) Acceptance of clients referred for music therapy by other health care or educational professionals, family members, or caregivers.
(b) Assessment of clients to determine appropriate music therapy services.
(c) Development and implementation of individualized music therapy treatment plans that identify goals, objectives, and strategies of music therapy that are appropriate for clients.
(d) Use of music therapy techniques such as improvisation, performance, receptive music listening, song writing, lyric discussion, guided imagery with music, learning through music, and movement to music.
(e) Evaluation of a client's response to music therapy techniques and to the client's individualized music therapy treatment plan.
(f) Any necessary modification of the client's individualized music therapy treatment plan.
(g) Any necessary collaboration with the other health care professionals treating a client.
(h) Minimizing of barriers that may restrict a client's ability to receive or fully benefit from music therapy services.
326-M:2 Prohibition on Unlicensed Practice; Professional Identification.
I. No person without a license as a music therapist shall use the title "music therapist" or similar title or practice music therapy.
II. Nothing in this chapter shall be construed to prohibit or restrict the practice, services, or activities of the following:
(a) Any person licensed, certified, or regulated under the laws of this state in another profession or occupation or personnel supervised by a licensed professional in this state performing work, including the use of music, incidental to the practice of his or her licensed, certified, or regulated profession or occupation, if that person does not represent himself or herself as a music therapist; or
(b) Any person whose training and national certification attests to the individual's preparation and ability to practice his or her certified profession or occupation, if that person does not represent himself or herself as a music therapist; or
(c) Any practice of music therapy as an integral part of a program of study for students enrolled in an accredited music therapy program, if the student does not represent himself or herself as a music therapist; or
(d) Any person who practices music therapy under the supervision of a licensed music therapist, if the person does not represent himself or herself as a music therapist.
326-M:3 Licensure of Music Therapists. In addition to requirements under RSA 328-F:
I. The board shall issue a license to an applicant for a music therapy license when such applicant has completed and submitted an application upon a form and in such manner as the executive director prescribes, accompanied by applicable fees, and evidence satisfactory to the board that:
(a) The applicant is in good standing based on a review of the applicant’s music therapy licensure history in other jurisdictions, including a review of any alleged misconduct or neglect in the practice of music therapy on the part of the applicant, and a review of the criminal background check required under RSA 328-F:18-a.
(b) The applicant provides proof of passing the examination for board certification offered by the Certification Board for Music Therapists or any successor organization or provides proof that the applicant is currently a board certified music therapist.
II. The board shall issue a license to an applicant for a music therapist license when such applicant has completed and submitted an application upon a form and in such manner as the executive director prescribes, accompanied by applicable fees, and evidence satisfactory to the board that the applicant is licensed and in good standing as a music therapist in another jurisdiction where the qualifications required are equal to or greater than those required in this chapter at the date of application.
326-M:4 Music Therapists Governing Board; Duties. In addition to the duties of a governing board under RSA 328-F:
I. The board may facilitate the development of materials that the office of professional licensure and certification may utilize to educate the public concerning music therapist licensure, the benefits of music therapy, and utilization of music therapy by individuals and in facilities or institutional settings.
II. The board may act as a facilitator of statewide dissemination of information between music therapists, the American Music Therapy Association or any successor organization, the Certification Board for Music Therapists or any successor organization, and the executive director.
III. The executive director shall seek the advice of the board for issues related to the regulation of music therapists.
2 Allied Health Professionals; Definition; Governing Board. Amend RSA 328-F:2, II to read as follows:
II. “Governing boards” means individual licensing boards of athletic trainers, occupational therapy assistants, occupational therapists, recreational therapists, physical therapists, physical therapist assistants, respiratory care practitioners, speech-language pathologists, [and] genetic counselors, and music therapists.
3 New Paragraph; Allied Health Professionals; Music Therapists. Amend RSA 328-F:2 by inserting after paragraph X the following new paragraph:
XI. “Music therapist” means music therapist as defined in RSA 326-M:1.
4 Governing Board; Establishment. Amend RSA 328-F:3, I to read as follows:
I. There shall be established governing boards of athletic trainers, occupational therapists, recreational therapists, respiratory care practitioners, physical therapists, speech-language pathologists, [and] genetic counselors, and music therapists.
5 New Paragraph; Music Therapists Governing Board; Appointment. Amend RSA 328-F:4 by inserting after paragraph X the following new paragraph:
XI. The music therapists governing board shall consist of 3 licensed music therapists, who have actively engaged in the practice of music therapy in this state for at least 2 years, one member who is a licensed health care provider who is not a music therapist, and one public member. Initial appointment of professional members by the governor and council shall be qualified persons practicing music therapy in this state. All subsequent appointments or reappointments shall require licensure.
6 Renewals; Reference to Music Therapists Added. Amend RSA 328-F:19, I to read as follows:
I. Initial licenses and renewals shall be valid for 2 years, except that timely and complete application for license renewal by eligible applicants shall continue the validity of the licenses being renewed until the governing board has acted on the renewal application. Licenses issued pursuant to RSA 328-A, RSA 326-G, [and] RSA 326-J, and RSA 326-M shall expire in even-numbered years and licenses issued pursuant to RSA 326-C, RSA 326-E, RSA 326-F, and RSA 326-K shall expire in odd-numbered years.
7 Office of Professional Licensure and Certification; New Classified Position; Appropriation.
I. One program assistant II position, labor grade 15, is hereby established as a classified position in the office of professional licensure and certification.
II. The amount necessary to pay for the position established in paragraph I and for the per diem and travel reimbursement as required under RSA 328-F:6 for the music therapy governing board established in this act is hereby appropriated to the executive director of the office of professional licensure and certification. Salaries and necessary expenses shall be a charge against the office of professional licensure and certification fund established in RSA 310-A:1-e.
8 Effective Date. Part VII of this act shall take effect July 1, 2021.
PART VIII
Relative to the authority of the office of professional licensure and certification for administration, rulemaking, and enforcement of investigations, hearings, and appeals.
1 Office of Professional Licensure and Certification; Administration; Rulemaking. Amend RSA 310-A:1-d, II(h)(2) to read as follows:
(2) Such organizational and procedural rules necessary to administer the boards, commissions, and councils in the office of professional licensure and certification, including rules governing the administration of complaints and investigations, hearings, disciplinary proceedings, payment processing procedures, and application procedures; and
2 New Sections; Office of Professional Licensure and Certification; Investigations; Hearings; Penalties; Appeals. Amend RSA 310-A by inserting after section 1-g the following new sections:
310-A:1-h Investigations.
I. Boards, which shall include all boards, councils, and commissions within the office of professional licensure and certification, may authorize an investigation of allegations of misconduct by licensees (a) upon their own initiative or (b) upon written complaint of any person that charges that a person licensed by the board has committed misconduct. In consultation with the board, the office shall assign an investigator, who shall complete the investigation in accordance with rules adopted by the executive director.
II. The following information obtained during investigations shall be held confidential and shall be exempt from the disclosure requirements of RSA 91-A:
(a) Complaints received by the office.
(b) Information and records acquired by the office during the investigation.
(c) Reports and records made by the office as a result of its investigation.
III. For the purpose of carrying out investigations, the executive director is authorized to:
(a) Retain qualified experts.
(b) Conduct inspections of places of business of licensees or certificate holders.
(c) Retain legal counsel when authorized to do so by the attorney general.
(d) Issue subpoenas for persons, relevant documents and relevant things in accordance with the following conditions:
(1) Subpoenas for persons shall not require compliance in less than 48 hours after receipt of service.
(2) Subpoenas for documents and things shall not require compliance in fewer than 15 days after receipt of service.
(3) Service shall be made on licensees and certified individuals by certified mail to the address on file with the office or by hand and shall not entitle them to witness or mileage fees.
(4) Service shall be made on persons who are not licensees or certified individuals in accordance with the procedures and fee schedules of the superior court, and the subpoenas served on them shall be annotated "Fees Guaranteed by the New Hampshire Office of Professional Licensure and Certification.”
IV. The office or the boards, councils, and commissions within the office may disclose information acquired in an investigation to law enforcement or health licensing agencies in this state or any other jurisdiction, or in response to specific statutory requirements or court orders.
V. Allegations of professional misconduct shall be brought within 5 years from the time the office reasonably could have discovered the act, omission or failure complained of, except that conduct which resulted in a criminal conviction or in a disciplinary action by a relevant licensing authority in another jurisdiction may be considered by the board without time limitation in making licensing or disciplinary decisions if the conduct would otherwise be a ground for discipline. The board may also consider licensee conduct without time limitation when the ultimate issue before the board involves a pattern of conduct or the cumulative effect of conduct which becomes apparent as a result of conduct which has occurred within the 5-year limitation period prescribed by this paragraph.
VI. The board may dismiss a complaint if the allegations do not state a claim of professional misconduct.
310-A:1-i Disciplinary Proceedings; Remedial Proceedings.
I. Boards, which shall include all boards, councils, and commissions within the office of professional licensure and certification, are authorized to conduct disciplinary proceedings in accordance with procedural rules adopted by the executive director.
II. For the purpose of carrying out disciplinary proceedings, each board is authorized to issue subpoenas for persons, relevant documents and relevant things in accordance with the following conditions:
(a) Subpoenas for persons shall not require compliance in less than 48 hours after receipt of service.
(b) Subpoenas for documents and things shall not require compliance in fewer than 15 days after receipt of service.
(c) Service shall be made on licensees and certified individuals by certified mail to the address on file with the office or by hand and shall not entitle them to witness or mileage fees.
(d) Service shall be made on persons who are not licensees or certified individuals in accordance with the procedures and fee schedules of the superior court, and the subpoenas served on them shall be annotated "Fees Guaranteed by the New Hampshire Office of Professional Licensure and Certification."
III. At any time before or during disciplinary proceedings, complaints may be dismissed or disposed of, in whole or in part, by written settlement agreement approved by the board and the licensees or certified individuals involved, provided that any complainant shall have the opportunity, before the settlement agreement has been executed, to comment on the terms of the proposed settlement. The board, council, or commission may hold a settlement agreement hearing prior to its approval of the settlement agreement.
IV. Disciplinary proceedings shall be open to the public. Final board actions having the effect of terminating disciplinary proceedings, whether taken before, during or after the completion of the proceedings, shall be set forth in a written record that shall be available to the public after service upon the licensees or certified individuals involved.
V. In carrying out disciplinary or licensing proceedings, each board shall have the authority to:
(a) Hold pre-hearing conferences exempt from the provisions of RSA 91-A.
(b) Appoint a board member or other qualified person as presiding officer.
(c) Administer, and authorize an appointed presiding officer to administer, oaths and affirmations.
VI. Neither the office nor the boards, councils, and commissions shall have an obligation or authority to appoint or pay the fees of attorneys representing licensees, certified individuals, or witnesses during investigations or adjudicatory proceedings.
VII. Boards, councils, and commissions may take non-disciplinary remedial action against any person licensed by it upon finding that the person is afflicted with physical or mental disability, disease, disorder, or condition deemed dangerous to the public health. Upon making an affirmative finding, the board, council, or commission may take non-disciplinary remedial action:
(a) By suspension, limitation, or restriction of a license for a period of time as determined reasonable by the board.
(b) By revocation of license.
(c) By requiring the person to submit to the care, treatment, or observation of a physician, counseling service, health care facility, professional assistance program, or any combination thereof which is acceptable to the board.
310-A:1-j Hearings, Decisions and Appeals.
I. Disciplinary proceedings shall be open to the public, except upon order by the board, council, or commission upon good cause shown. The public docket file for each such proceeding shall be retained in accordance with the retention policy established by the office of professional licensure and certification.
II. Notwithstanding any other provision of law, allegations of misconduct or lack of professional qualifications that are not settled shall be heard by the board, council, or commission, or a panel of the board, council, or commission with a minimum of 3 members appointed by the chair of the board or other designee. Any member of the board, or other person qualified to act as presiding officer and duly designated by the board, shall have the authority to preside at such hearing and to issue oaths or affirmations to witnesses, rule on evidentiary and other procedural matters, and prepare a recommended decision. In the case of a hearing before a panel, the presiding officer shall prepare a recommended decision for the board, council, or commission, which shall determine sanctions.
III. Except as otherwise provided by RSA 541-A:30, the board, council, or commission shall furnish the respondent and the complainant, if any, at least 15 days' written notice of the date, time and place of a hearing. Such notice shall include an itemization of the issues to be heard, and, in the case of a disciplinary hearing, a statement as to whether the action has been initiated by a written complaint or upon the board's own motion, or both. If a written complaint is involved, the notice shall provide the complainant with a reasonable opportunity to intervene as a party.
IV. In disciplinary and licensing proceedings, the presiding officer may hold prehearing conferences that are closed to the public and exempt from the provisions of RSA 91-A until such time as a public evidentiary hearing is convened. In all instances, settlement discussions engaged in by the parties at prehearing conferences may be conducted off the record.
V. The board may dispose of issues or allegations at any time during an investigation or disciplinary proceeding by approving a settlement agreement or issuing a consent order or an order of dismissal for default or failure to state a proper basis for disciplinary action. Disciplinary action taken by the board at any stage of a proceeding, and any dispositive action taken after the issuance of a public hearing notice, shall be reduced to writing and made available to the public. Such decisions shall not be public until they are served upon the parties.
VI. All proceedings for non-disciplinary remedial action shall be exempt from the provisions of RSA 91-A, except that the board may disclose any final remedial action that affects the status of a license, including any non-disciplinary restrictions imposed.
VII. No civil action shall be maintained against the board or any member of the board or its agents or employees, against any organization or its members, or against any other person for or by reason of any statement, report, communication, or testimony to the board or determination by the board in relation to proceedings under this chapter.
310-A:1-k Penalties.
I. Upon making an affirmative finding that a licensee or certificate holder has committed professional misconduct, boards, which shall include all boards, councils, and commissions within the office of professional licensure and certification, may take disciplinary action in any one or more of the following ways:
(a) By reprimand.
(b) By suspension of a license or certificate for a period of time as determined reasonable by the board.
(c) By revocation of license.
(d) By placing the licensee or certificate holder on probationary status. The board may require the person to submit to any of the following:
(1) Regular reporting to the board concerning the matters which are the basis of the probation.
(2) Continuing professional education until a satisfactory degree of skill has been achieved in those areas which are the basis of probation.
(3) Submitting to the care, counseling, or treatment of a physician, counseling service, health care facility, professional assistance program, or any comparable person or facility approved by the board.
(4) Practicing under the direct supervision of another licensee for a period of time specified by the board.
(e) By assessing administrative fines in amounts established by the board which shall not exceed $3,000 per offense, or, in the case of continuing offenses, $300 for each day that the violation continues, whichever is greater.
II. The board may issue a non-disciplinary confidential letter of concern to a licensee advising that while there is insufficient evidence to support disciplinary action, the board believes the licensee or certificate holder should modify or eliminate certain practices, and that continuation of the activities which led to the information being submitted to the board may result in action against the licensee's license. This letter shall not be released to the public or any other licensing authority, except that the letter may be used as evidence in subsequent adjudicatory proceedings by the board.
III. In the case of sanctions for discipline in another jurisdiction, the decision of the other jurisdiction's disciplinary authority may not be collaterally attacked and the board may impose any of the sanctions set forth in this chapter, but shall provide notice and an opportunity to be heard prior to imposing any sections.
IV. In cases involving imminent danger to life or health, a board may order suspension of a license or certification pending hearing for a period of no more than 10 business days, unless the licensee or certified individual agrees in writing to a longer period. In such cases, the board shall comply with RSA 541-A:30.
V. Any person whose license has been suspended or revoked by the board may apply to the board, in writing, to request a hearing for reinstatement. Upon a hearing, the board may issue a new license or modify the suspension or revocation of the license.
VI. For any order issued in resolution of an disciplinary proceeding by the board, where the board has found misconduct sufficient to support disciplinary action, the board may require the licensee or certificate holder who is the subject of such finding to pay the office a sum not to exceed the reasonable cost of investigation and prosecution of the proceeding. This sum shall not exceed $10,000. This sum may be imposed in addition to any otherwise authorized administrative fines levied by the board as part of the penalty. The investigative and prosecution costs shall be assessed by the board and any sums recovered shall be credited to the office’s fund and disbursed by the office for any future investigations of complaints and activities that violate this chapter or rules adopted under this chapter.
VII. When an investigation of a complaint is determined to be unfounded, the board shall dismiss the complaint and explain in writing to the complainant and the licensee or certificate holder its reason for dismissing the complaint. After six years, the board may destroy all information concerning the investigation, retaining only a record noting that an investigation was conducted and that the board determined the complaint to be unfounded. For the purpose of this paragraph, a complaint shall be deemed to be unfounded if it does not fall within the jurisdiction of the board, does not relate to the actions of the licensee or certificate holder, or is determined by the board to be frivolous.
VIII. Whoever, not being licensed or otherwise authorized to practice according to the laws of this state, shall advertise oneself as engaging in a profession licensed or certified by the office of professional licensure and certification, shall engage in activity requiring professional licensure, or in any way hold oneself out as qualified to do so, or call oneself a licensed professional, or whoever does such acts after receiving notice that such person’s license to practice has been suspended or revoked, is engaged in unlawful practice. After hearing and upon making an affirmative finding of unlawful practice, the board, council, or commission may take action in any one of the following ways:
(a) Issue a cease and desist order against any person or entity engaged in unlawful, which shall be enforceable in superior court.
(b) Impose a fine not to exceed the amount of any gain or economic benefit that the person derived from the violation or $10,000 for each offense, whichever amount is greater. Each violation of unlicensed or unlawful practice shall be deemed a separate offense.
(c) The attorney general, board, council, or commission, or prosecuting attorney of any county or municipality where the act to unlawful practice takes place may maintain an action to enjoin any person or entity from continuing to do acts of unlawful practice. The action to enjoin shall not replace any other civil, criminal, or regulatory remedy. An injunction without bond is available to any board, council, or commission.
310-A:1-l Rehearing; Appeals.
I. Any person who has been refused a license or certification by the board, which shall include all boards, councils, and commissions within the office of professional licensure and certification, or has been disciplined by the board shall have the right to petition for a rehearing within 30 days after the original final decision.
II. Appeals from a decision on rehearing shall be by appeal to the supreme court pursuant to RSA 541.
III. No sanction shall be stayed by the board during an appeal.
3 Effective Date. Part VIII of this act shall take effect January 1, 2022.
PART IX
Relative to skilled professional medical personnel.
1 Long Term Care; Eligibility and Service Coverage Authorization. Amend RSA 151-E:3, II to read as follows:
151-E:3 Eligibility and Service Coverage Authorization.
II. Skilled professional medical personnel employed by or designated to act on behalf of the department shall determine clinical eligibility in accordance with the criteria in subparagraph I(a). The clinical eligibility determination shall be based upon an assessment tool, approved by the department, performed by skilled professional medical personnel employed by the department[,] or [by an individual with equivalent training] designated by the department. The department shall train all persons performing the assessment to use the assessment tool. [For the purposes of this section, "skilled professional medical personnel" shall have the same meaning as in 42 C.F.R. section 432.50(d)(1)(ii).] Only skilled professional medical personnel who are registered nurses and currently licensed in accordance with RSA 326-B may render an adverse clinical eligibility determination.
2 New Paragraph; Service Coverage Authorization; Skilled Professional Medical Personnel. Amend RSA 151-E: 3 by inserting after paragraph III the following new paragraph:
III-a. Skilled professional medical personnel shall oversee service coverage prior authorizations for Medicaid home and community-based care waiver services. Only skilled professional medical personnel who are registered nurses and currently licensed in accordance with RSA 326-B may render an adverse service coverage determination.
3 New Paragraph; Definition; Skilled Professional Medical Personnel. Amend RSA 151-E: 3 by inserting after paragraph IV the following new paragraph:
V. In this section "skilled professional medical personnel" shall have the same meaning as in 42 C.F.R. section 432.2, except that the skilled professional medical personnel need not be in an employer-employee relationship with the department. Additionally, the skilled professional medical personnel shall have “professional education and training,” as that term is defined in 42 C.F.R. section 432.50(d)(1)(ii).
4 Effective Date. Part IX of this act shall take effect 60 days after its passage.
PART X
Relative to temporary licensure of certain licensed nursing assistants.
1 Statement of Purpose. The general court acknowledges the critical importance of ensuring the quality, accessibility, and sustainability of Medicaid services provided in nursing homes, and recognizes the critical shortage of licensed nursing assistants throughout the state. The purpose of this act is to strengthen the frontline staffing in nursing homes. The general court finds that during the COVID-19 pandemic federal regulatory and statutory provisions were waived to facilitate the hiring of nurse aides by nursing homes. Under state emergency order, these individuals were allowed to work in nursing homes as temporary health partners following no less than 8 hours of training provided either by a national association or a New Hampshire educational program. As a matter of public policy, the general court finds that these workers were indispensable as facilities struggled with staffing issues, particularly during outbreaks of the COVID-19 virus. Accordingly, this act shall provide the board of nursing with the additional authority to expand the workforce of licensed nursing assistants by recognizing the service of temporary health partners during the COVID-19 pandemic.
2 Special Licensure as a Licensed Nursing Assistant; Applicants Who Served as Temporary Health Partners.
I. Persons who have worked no fewer than 100 hours as temporary health partners in a licensed nursing home by April 1, 2021 have demonstrated, through their work experience during a national and state public health emergency, the competency to transition to status as a licensed nursing assistant.
II. Notwithstanding any provision of law to the contrary, the state-approved training program for licensed nursing assistants shall take into account the training and experience acquired during the COVID-19 pandemic to transition these individuals to placement on the state's licensed nursing assistant registry pursuant to RSA 326-B:26. Such individuals shall be subject to all continuing education requirements under RSA 326-B:31.
III. For purposes of this act:
(a) “COVID-19” means the novel coronavirus first identified in 2019, or SARS-CoV-2.
(b) “Temporary health partner” means anyone authorized to work in a nursing home by Emergency Order 42 issued by the governor on May 11, 2020, and required to complete training of no less than eight hours and work under the supervision of an RN, APRN, or LPN, as is required of LNAs under RSA 326-B:14.
3 Effective Date. Part X of this act shall take effect 60 days after its passage.
PART XI
Relative to the revocation of licensure for licensed emergency medical service units and emergency medical service vehicles.
1 Emergency Medical and Trauma Services; Revocation of License. Amend the introductory paragraph of RSA 153-A:13, I to read as follows:
I. The commissioner [shall] may deny an application for issuance or renewal of a license, or issue a letter of concern, suspend, or revoke a license, when the commissioner finds that the applicant is guilty of any of the following acts or offenses:
2 Effective Date. Part XI of this act shall take effect 60 days after its passage.
PART XII
Relative to schools for barbering, cosmetology, and esthetics.
1 Barbering, Cosmetology, and Esthetics; Definition; School. Amend RSA 313-A:1, XIII to read as follows:
XIII. "School" means a school or other institution, or a dedicated program within such school or institution, conducted for the purpose of teaching cosmetology, manicuring, barbering, or esthetics.
2 Duties of the Board; Schools; Manicuring, Cosmetology, Barbering, Esthetics RSA 313-A:7, II is repealed and reenacted to read as follows:
II. The board may license a school to operate either:
(a) Dedicated programs within secondary schools, the purpose of which is to teach cosmetology, manicuring, barbering, or esthetics; or
(b) Postsecondary programs conducted for the purpose of teaching cosmetology, manicuring, barbering, or esthetics, including postsecondary programs leading to a certificate in manicuring, barbering, cosmetology, or esthetics.
3 Barbering, Cosmetology, Esthetics, Manicuring; Apprenticeship Certificates. Amend RSA 313-A:24 to read as follows:
313-A:24 Apprentice Registration and [Licensure] Certificates.
I. No person shall enter an apprenticeship or enroll in a school under this chapter unless such person has registered with the board as an apprentice and been issued an apprentice [license] certificate. The board shall have sole authority to regulate apprentices and apprenticeship under this chapter. The board shall issue an apprentice [license] certificate to any student receiving instruction within a licensed school or shop to learn barbering, cosmetology, esthetics, or manicuring.
II. A person applying for [a license] an apprentice certificate under this section shall be granted such [license] certificate upon:
(a) Submitting proof sufficient to the board to show that such person is at least 16 years of age;
(b) Paying a fee established by the [board] office of professional licensure and certification; and
(c) Being deemed by the board to be of good professional character.
III. No salon or barbershop shall at any one time have more than one apprentice per licensed professional, except as follows:
(a) Each licensed barber may have up to 2 apprentices for barbering.
(b) Each licensed master barber may have up to 2 apprentices for barbering, or one apprentice master barber and one apprentice barber.
IV. Upon completing the number of hours specified in the board's apprentice rules, an apprentice shall be eligible to apply to the board for licensure.
V. Notwithstanding RSA 161-B:11, VI-a, an applicant for an apprentice certificate shall not be required to provide a social security number as a prerequisite for obtaining a certificate.
4 Effective Date. Part XII of this act shall take effect 60 days after its passage.
PART XIII
Relative to telemedicine provided by out of state psychologists.
1 Psychologists; Electronic Practice of Psychology. RSA 329-B:16 is repealed and reenacted to read as follows:
329-B:16 Electronic Practice of Psychology, Telehealth, Telemedicine.
I. Telepsychology, telehealth, and telemedicine services, as provided by psychologists, include those psychology services that utilize electronic means to engage in visual or virtual presence in contemporaneous time. Such provision of services shall require a New Hampshire tele-pass license for provision of such care to people in New Hampshire. Contacts that are exempt from this requirement are:
(a) Persons exempted by 329-B:28.
(b) Screenings for inclusion in voluntary research projects that have been properly approved by a New Hampshire based institutional review board.
(c) Psychologists licensed by the board, who may provide tele-psychology services to a person within the state of New Hampshire without acquiring a tele-pass psychology license.
II. A doctoral level psychologist who is not licensed in New Hampshire shall be eligible to provide telepsychology services to a person in New Hampshire, providing that the psychologist:
(a) Is licensed in one of the jurisdictions in the United States or Canada;
(b) Is in good standing in all license jurisdictions in the United States and Canada;
(c) Has satisfied conditions determined in rules adopted by the board;
and
(d) Has applied for and obtained a valid New Hampshire tele-pass psychology license with effective dates that cover the dates of care provided.
III. The tele-pass psychology licensee shall agree to conditions including, but not limited to, conditions stipulated by the board that the licensee shall:
(a) Conform to all New Hampshire statutes and rules.
(b) Agree that electronic attendance for appearances shall be deemed adequate for regulatory enforcement purposes and that in-person appearances by the licensee are optional and such associated costs for in-person attendance are the full responsibility of the tele-pass psychology licensee.
(c) Understand that false statements or failure to comply with official requests and official orders shall constitute sufficient cause for revocation of the tele-pass psychology license.
(d) Understand that all conditions of tele-pass psychology license to practice and enforcement shall be pursuant to New Hampshire law.
(e) Grant the New Hampshire board of psychologists and its investigators authority to disclose to law enforcement and related regulatory authorities, at their discretion, information including but not limited to status of application, actions and information pertinent to investigations and enforcement of the laws and rules pertaining to the licensee's conduct.
IV. The board shall adopt rules pursuant to RSA 541-A for:
(a) The application procedure for a New Hampshire tele-pass psychology license;
(b) Additional requirements for a psychologist licensed in another state of Canada to acquire a tele-pass psychology license, including attestations;
(c) Any fees required to apply for or to be issued a tele-pass psychology license;
(d) The standards of care for telemedicine practice of psychology and their enforcement; and
(e) Procedures for the revocation of a tele-pass psychology license.
2 Effective Date. Part XIII of this act shall take effect July 1, 2021.
PART XIV
Establishing program rules with the department of health and human services for sanitary production and distribution of food.
1 Food Service Licensure; Definitions. Amend RSA 143-A:3, IV-a and IV-b to read as follows:
IV-a. "Food processing plant" means a type of food service establishment that is a commercial operation that processes food for human consumption and provides processed food for sale and distribution to other business entities such as other food establishments or direct to consumer at another location. This term includes "cold storage" or "refrigerating warehouse." The term does not include an operation that processes food under the oversight of the department of agriculture in accordance with RSA 426, RSA 427, RSA 428, RSA 429, and RSA 434.
IV-b. "Imminent health hazard" means a significant threat or danger to health that is considered to exist when there is evidence sufficient to show that a product, practice, circumstance, or event creates a situation that requires immediate correction or cessation of operation to prevent injury [or illness] based on the number of potential injuries and the nature, severity, and duration of the anticipated injury.
2 Food Service Licensure; Exemptions; Reference Changed. Amend RSA 143-A:5, VIII to read as follows:
VIII. A farm owned or operated by a federally exempt poultry producer, as defined in RSA 143-A:14, I, and the direct sale of such poultry to the consumer from the producer's farm, at the producer's farm stand, and by the producer at a farmers market, or when sold to a licensed restaurant in accordance with RSA 143-A:14 through RSA [143-A:17] 143-A:16.
3 Food Service Licensure; Soup Kitchens. Amend RSA 143-A:5-a to read as follows:
143-A:5-a Soup Kitchens. [The commissioner may exempt from licensure under this chapter soup kitchens operated for the poor.] Soup kitchens shall be exempt from licensure by the department provided:
I. They do not charge for meals; and
II. They submit to the department a written notice which:
(a) Identifies the name and address of the person operating the soup kitchen.
(b) Identifies the clientele served by the soup kitchen.
(c) Lists the hours the soup kitchen will operate.
(d) Provides a description of the food to be served.
4 Food Service Licensure; Application; Issue; Fee. Amend RSA 143-A:6, I-III to read as follows:
I. Upon receipt of an application in writing from a new food service establishment or retail food store, or a food service establishment or retail food store which has changed ownership, or a food service establishment or retail food store which has had its previous license revoked, the commissioner may issue a provisional license, valid for up to 90 days, if the commissioner determines that the applicant's plan for operation and facilities are sufficient [under rules adopted under RSA 143-A:9]. Notwithstanding RSA 541-A, any individual denied a full license at the end of the 90-day period shall immediately shut down his or her establishment, unless otherwise ordered by a court of competent jurisdiction.
II. Within 45 days of issuance of a provisional license issued under this section or RSA 143-A:8, the commissioner may, if deemed necessary, conduct an inspection. If following such inspection the commissioner determines that the applicant's operation and facilities are sufficient [under rules adopted under RSA 143-A:9], the commissioner shall issue to the applicant a license valid for a time period of one year following the date of issuance of the provisional license. Notwithstanding RSA 541-A, any individual denied a full license at the end of the 90-day period shall immediately shut down his or her establishment, unless otherwise ordered by a court of competent jurisdiction.
III. Upon receipt of an application for renewal of a license from an existing food service establishment or retail food store, the commissioner may, if deemed necessary, conduct an inspection. If the commissioner determines that the applicant's operation and facilities are sufficient [under rules adopted under RSA 143-A:9], the commissioner shall issue to the applicant a new license valid for one year.
5 Food Service Licensure; Revocation. Amend RSA 143-A:7, I to read as follows:
I. If any food service establishment or retail food store licensed under this chapter repeatedly violates [any legally adopted rule of the commissioner, or] any provision of RSA 143 or RSA 143-A, or if the operation of the licensed establishment creates an imminent health hazard, the commissioner may revoke the license. Any revocation of a license shall be executed in compliance with RSA 541-A.
6 Food Service Licensure; Failure to Pay Application Fee. Amend RSA 143-A:9-a, I to read as follows:
I. When a licensee fails to pay the applicable fee required by this chapter, the commissioner of the department of health and human services, after notice and hearing [pursuant to rules adopted under RSA 541-A], may suspend or revoke the license or may issue an appropriate order.
7 Food Service Licensure; Administrative Fines. Amend RSA 143-A:10-a to read as follows:
143-A:10-a Administrative Fines. The commissioner of the department of health and human services, 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 who violates any provision of this chapter [or rules adopted under this chapter]. Rehearings and appeals from a decision of the commissioner shall be in accordance with RSA 541. 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.
8 Food Service Licensure; Homestead Food Products. Amend RSA 143-A:12, I(c) to read as follows:
(c) "Homestead food products" means all food except potentially hazardous food[, and as defined in rule by the commissioner of the department of health and human services through rulemaking under RSA 143-A:13].
9 New Subdivision; Food Service Licensure; Program Rules. Amend RSA 143-A by inserting after section 20 the following new subdivision:
Food Service Licensure; Program Rules
143-A:21 Purpose. The purpose of this subdivision is to implement program rules within the department of health and human services for the sanitary production and distribution of food.
143-A:22 Definitions. In addition to the definitions found in RSA 143-A:3, in this subdivision the following definitions shall apply:
I. “Acid foods” means “acid foods” as defined by 21 C.F.R. 114.3(a), as in effect February 2, 2019, namely, “foods that have a natural pH of 4.6 or below.”
II. “Acidified foods” means “acidified foods” as defined by 21 C.F.R. 114.3(b), as in effect February 2, 2019, namely, “low-acid foods to which acid(s) or acid food(s) are added; these foods include, but are not limited to, beans, cucumbers, cabbage, artichokes, cauliflower, puddings, peppers, tropical fruits, and fish, singly or in any combination. They have a water activity (aw) greater than 0.85 and have a finished equilibrium pH of 4.6 or below. These foods may be called, or may purport to be, ‘pickles’ or ‘pickled’. Carbonated beverages, jams, jellies, preserves, acid foods (including such foods as standardized and non-standardized food dressings and condiment sauces) that contain small amounts of low-acid food(s) and have a resultant finished equilibrium pH that does not significantly differ from that of the predominant acid or acid food, and foods that are stored, distributed, and retailed under refrigeration are excluded from the coverage of this part.”
III. "Applicant” means the owner of a food establishment or an officer of the legal ownership who applies for a license pursuant to this chapter.
IV. “Bed and breakfast” means a type of food service establishment that is a transient lodging facility, which is the owner’s or innkeeper’s personal residence, is occupied by the owner or innkeeper at the time of rental to an in-house guest, and in which breakfast is the only meal served.
V. "Beverage” means “beverage” as defined in RSA 143:9.
VI. “Caterer” means a person or entity which provides meals or food at private functions at off-site locations.
VII. “Certified food protection manager” means the person in charge who has shown proficiency of required information through passing a test that is part of an accredited program or as stated in 2-102.12(A) of the Food Code 2015 edition, as in effect February 2, 2019, and with exceptions found in this chapter.
VIII. “Change of ownership” means any time a controlling interest in a sole proprietorship, joint venture, partnership, corporation, limited liability company, or any other kind of entity is transferred to another sole proprietor, joint venture, partnership, corporation, limited liability company, or any other kind of entity.
IX. “Continental breakfast” means a light breakfast that includes items such as coffee, tea, juices, toasts, breakfast cereals, assorted pastries, and uncut fruit.
X. “Corrective action plan (CAP)” means a plan developed and written by the licensee, which specifies the actions that will be taken to correct identified deficiencies.
XI. “Critical control point” means a point or procedure in a specific food system where loss of control might result in an unacceptable health risk.
XII. “Critical limit” means the maximum or minimum value to which a physical, biological, or chemical parameter must be controlled at a critical control point to minimize the risk that the identified food safety hazard might occur.
XIII. “Exempt homestead food operation” means a homestead food operation whose maximum annual gross sales is less than $20,000 and whose homestead food products are only for sale directly to the consumer from the homestead residence, the owner’s farm stand, at farmers’ markets, or at a retail food store.
XIV. “Food Code” means the U.S. Department of Health and Human Services, Public Health Services, Food and Drug Administration, Food Code, 2015 edition. as in effect February 2, 2019, with exceptions found in this chapter.
XV. “Food establishment” means “food service establishment” as defined in RSA 143-A:3, IV, or “retail food store” as defined in RSA 143-A:3, VII.
XVI. “Foodborne disease outbreak” means the occurrence of 2 or more cases of a similar illness resulting from the ingestion of a common food.
XVII. “Homestead food operation” means “homestead food operation” as defined in RSA 143-A:12, I(a).
XVIII. “Homestead food products” means foods which are not potentially hazardous food and are limited to the following:
(a) Baked items, including, breads, rolls, muffins, cookies, brownies, and cakes.
(b) Double-crusted fruit pies.
(c) Candy and fudge.
(d) Packaged dry products, which include spices and herbs.
(e) Acid foods, including, vinegars and mustards.
(f) Jams and jellies.
XIX. “Immediately endangers public health or safety” means that a condition exists that is an imminent health hazard.
XX. “License” means the document issued by the department or other regulatory agency, which authorizes a license holder to operate a food establishment.
XXI. “License holder” means the entity legally responsible for the operation of a licensed food establishment, including, the owner, the owner’s agent, or other person.
XXII. “Low-acid foods” means “low-acid foods” as defined by 21 C.F.R. 114.3(d), namely, “any foods, other than alcoholic beverages, with a finished equilibrium pH greater than 4.6 and a water activity (aw) greater than 0.85. Tomatoes and tomato products having a finished equilibrium pH less than 4.7 are not classed as low-acid foods.”
XXIII. “Major food allergen” means milk, egg, fish, such as bass, flounder, cod, and including crustacean shellfish such as crab, lobster, or shrimp, tree nuts, such as almonds, pecans, or walnuts, wheat, peanuts, and soybeans, or a food ingredient that contains protein derived from the aforementioned foods.
XXIV. “Mobile food unit” means a food service establishment mounted on wheels or otherwise designed to be immediately movable. This term does not include a food service establishment which is required to meet the wastewater requirements in RSA 143-A:31.
XXV. “Non-exempt homestead food operation” means a homestead food operation whose annual gross sales exceeds $20,000 or who wishes to sell homestead food products, as defined in paragraph XVIII above, to restaurants, over the Internet, by mail order, or to wholesalers, brokers or other food distributors for resale. A non-exempt homestead food operation is a type of food service establishment.
XXVI. “Package” means a quantity or an amount of food that is bottled, canned, cartoned, securely bagged, or securely wrapped.
XXVII. “Person in charge” means the individual present at a food establishment who is responsible for the operation of the establishment at the time of inspection, including the duties described in section 2-103.11 of the Food Code, and who can demonstrate the knowledge required by section 2-102.11 of the Food Code which are pertinent to the risks inherent to that specific food establishment.
XXVIII. “Potentially hazardous food” means “potentially hazardous food” as defined in RSA 143-A:12, I(b). This term includes “time/temperature control for safety (TCS) food.”
XXIX. “Poultry” means “poultry” as defined in RSA 143-A:14, III.
XXX. “Poultry producer” means “poultry producer” as defined in RSA 143-A:14, IV.
XXXI. "Prep and serve" shall mean preparing food by cooking, or handling the food product and placing it on the plate of another to send to the consumer. The term does not include the person who carries or delivers the food to the person consuming.
XXXII. “Priority item” means a provision of the Food Code, marked with a superscript P,P, whose application contributes directly to the elimination, prevention, or reduction to an acceptable level, hazards associated with foodborne illness or injury and there is no other provision that more directly controls the hazard.
XXXIII. "Public water system” means “public water system” as defined in RSA 485:1-a, XV.
XXXIV. “Pushcart” means a type of food service establishment that is a non-self propelled vehicle limited to serving non-time/temperature control for safety foods, packaged time/temperature control for safety foods maintained at proper temperatures, or limited to the preparation and serving of frankfurters.
XXXV. “Rabbit” means “rabbit” as defined in RSA 143-A:14, VI.
XXXVI. “Rabbit producer” means “rabbit producer” as defined in RSA 143-A:14, VII.
XXXVII. “Regulatory authority” means the local, state, or federal enforcement body having jurisdiction over the food establishment.
XXXVIII. “Remodeled” means having undertaken construction, which includes, but is not limited to, adding new seats, a food preparation area, or any construction affecting the kitchen or any other part of a food establishment that requires a plumbing modification.
XXXIX. “Sanitization” means the cumulative heat or chemicals on cleaned food contact surfaces that, when evaluated for efficacy, is sufficient to yield a reduction of 5 logs, which is equal to a 99.999 percent reduction, of representative disease microorganisms of public health importance.
XL. “Servicing area” means an operating base location to which a mobile food unit or transportation vehicle returns regularly for such things as vehicle and equipment cleaning, discharging liquid or solid wastes, refilling water tanks and ice bins, and boarding food.
XLI. “Sewage” means “sewage” as defined in RSA 485-A:2, X, namely, “the water-carried waste products from buildings, public or private, together with such groundwater infiltration and surface water as may be present.”
XLII. “Soup kitchen” means a food service establishment operated by a charitable organization including religious societies and fraternal organizations organized pursuant to RSA 292, RSA 306, and RSA 418, that prepares and serves meals to the public without charge.
XLIII. “Time/temperature control for safety (TCS) food” means a food that requires time/temperature control for safety to limit pathogenic microorganism growth or toxin formation. This term includes “potentially hazardous food.”
XLIV. “Uninspected bison” means “uninspected bison” as defined in 143-A:18.
143-A:23 Incorporation of Select Portions of the 2015 Food Code.
I. All licensees shall comply with the Food Code as defined in RSA 143-A:22, XIV, with the following amendments:
(a) Amend section 3-201.11(A) so that (A) reads as follows: “Food shall be obtained from sources that comply with law” except that the exemption under the Poultry Products Inspection Act at 21 U.S.C. section 464(c)(4) shall not apply in the state of New Hampshire”;
(b) Chapter 8 shall not apply;
(c) Poultry from poultry producers that comply shall be considered to be from an approved source under section 3-201.11(A);
(d) Rabbit from rabbit producers that comply shall be considered to be from an approved source under section 3-201.11(A); and
(e) Uninspected bison meat from producers that comply with RSA 427:16, XII and sold or to be sold as provided in RSA 427:2-a, IV shall be considered to be from an approved source under section 3-201.11(A).
II. Those food establishments applying for licensure or which are licensed as a bed and breakfast shall comply with the Food Code in addition to the requirements in RSA 143-A:52.
III. Those food establishments applying for licensure or which are licensed as food processing plants or non-exempt homestead food operations shall be exempt from the requirements of the Food Code, but shall comply with RSA 143-A:56.
143-A:24 Requirements for Receiving Food Protection Manager Certification Designation.
I. The department shall offer classes every 30 days to interested persons wishing to become certified food protection manager, and shall enhance the ability of those seeking classes for food protection manager certification by granting authority for classes to be operated by New Hampshire technical schools in the high schools in New Hampshire, by the community college and university system, and by the industry itself. The class shall count as a credit for further professional improvement degrees.
II. The following categories shall be exempt from the requirement for a certified food protection manager:
(a) Category A-1, food processing plants which commercially process 100,000 packages of food or more, per year.
(b) Category C-5, food processing plants which commercially process less than 100,000 packages of TCS food per year.
(c) Category C-6, cold storage or refrigerating warehouse.
(d) Category D-4, stores that allow self-service of food, including coffee, hot dogs, or soft drinks and retail vendors including drive thru, drive up or walk up locations having 5 or less persons in the food prep area doing the prep and serve.
(e) Category D-6, servicing areas.
(f) Category E-1, bed and breakfasts having 5 or less persons in the food prep area doing the prep and serve.
(g) Category E-3, lodging facilities serving continental breakfasts and having 5 or less persons in the food prep area doing the prep and serve.
(h) Category F-1, home delivery services of packaged frozen food.
(i) Category F-2, pushcarts and other mobile food units, including those serving packaged food and non-TCS unwrapped foods only and having 5 or less persons in the food prep area doing the prep and serve.
(j) Category F-3, retail food stores with no food preparation areas.
(k) Category F-4, wholesalers/distributors of TCS food.
(l) Category F-5, on-site vending machines, which serve TCS food.
(m) Category F-6, bakeries which do not serve TCS food and have no seats.
(n) Category G-1, bars/lounges without a food preparation area; serving food from a licensed, certified provider.
(o) Category G-2, arena/theater concessions serving non-TCS food.
(p) Category G-3, retail food stores serving pre-packaged ice cream.
(q) Category G-7, sellers of pre-packaged frozen meat or poultry that is processed in a USDA-inspected plant.
(r) Category G-8, food processing plants that manufacturer or package non-TCS food.
III. A food establishment that is in process of initial licensing shall have a certified food protection manager within first 45 days of the initial licensing inspection if it has 5 or more persons in the food prep area doing prep and serve.
IV. If a food establishment’s certified food protection manager ceases his or her employment and renders the food establishment out of compliance with food manager certification requirements, the establishment shall have 90 days to come into compliance.
V. Food establishments having 5 or less persons in the food prep area doing prep and serve shall not be required to have the certified food protection manager present during hours of operation.
VI. A food establishment shall have on file a copy of the certificate of each certified food protection manager for review by inspection staff.
143-A:25 Initial License Application Requirements.
I. Each applicant for a license shall complete and submit to the department an application form entitled “Application for New Annual Food Service License” (FSAPP July 2019), “Application for Annual Food Processing Plant License” (FPAPP July 2019), “Application for Annual Homestead License” (HAPP July 2019), or “Application for Annual Mobile Food Unit License” (MFAPP July 2019), as applicable, signed and dated by the applicant or the person who represents the applicant certifying the following:
“I certify that all information provided in or attached to this application is complete, accurate and up-to-date as of the date specified below. I further certify that there are no willful misrepresentations of the answers to questions herein, and that I have made no omissions with respect to any of my answers to the questions presented. I understand that it is my responsibility to immediately notify the Food Protection Section with regard to any changes, corrections, or updates to the information provided.”
II. In addition to submitting the completed application, pursuant to paragraph I above, an applicant shall also submit the following:
(a) A check, money order, or on-line payment by credit card for the applicable fee submitted with the application.
(b) Water system documentation, except that food establishments applying to be licensed as home delivery services, pushcart and other mobile units, on-site vending machines, retail food stores serving pre-packaged ice cream, and sellers of pre-packaged frozen meat or poultry that is processed in a United States Department of Agriculture (USDA) plant shall not be required to submit such documentation.
(c) Wastewater system documentation, in accordance with industry standards except that food establishments applying to be licensed as a bed and breakfast or a homestead shall not be required to submit such documentation. Documentation shall include a copy of the New Hampshire department of environmental services on site waste water or septic approval.
(d) A copy of the completed floor plan signed and dated by the applicant, or the person who represents the applicant, and approved by the local officials having jurisdiction if required and if not already submitted to the department for review, and which meets the requirements of all New Hampshire building codes unless the applicant is exempt from this requirement.
(e) If the application is for a mobile food unit which uses a servicing area, one of the following:
(1) A copy of the food establishment license, from the appropriate regulatory authority, of the facility being used as a servicing area; or
(2) A separate license application for the facility to be used as a servicing area.
(f) A hazard analysis and critical control point (HACCP) plan.
III. The applicant shall apply online, by mail, or hand deliver the fee and all documents to:
Department of Health and Human Services
Bureau of Finance/Receipts Unit. Food Protection
Food Protection Section
129 Pleasant Street
Concord, NH 03301
(603) 271-4589
IV. Applicants seeking a change in license class, a new license, or a new license due to a change of ownership, shall contact the department’s food protection section to arrange for an inspection of the establishment no later than 30 days from the date of mailing or delivering the fee and application.
143-A:26 Processing of Initial Applications and Issuance of Licenses.
I. Applications shall be processed in accordance with RSA 541-A:29.
II. An application for an initial license shall be complete when the department determines that all items required by RSA 143-A:25 have been received.
III. If an application does not contain all the items required by RSA RSA 143-A:25, the department shall:
(a) Not process that application; and
(b) Notify the applicant by electronic means, if such was included in the application, and in writing within 5 working days of which items are required to be submitted before the application can be processed.
IV. Any licensing fee submitted to the department in the form of a check or money order and returned to the state for any reason shall be processed in accordance with RSA 6:11-a.
V. Licensing fees shall not be transferable to any other application(s).
VI. Following an inspection, conducted pursuant to RSA 143:4 license shall be issued if the department determines that an applicant is in compliance with RSA 143 and this chapter.
VII. If, within 45 days of issuance of a license the department conducts an inspection in determines that an applicant is in compliance with RSA 143 and this chapter, the department shall issue to the applicant a license valid for a time period of one year following the date of issuance of the provisional license.
VIII. All licenses and provisional licenses issued in accordance with this chapter shall be issued for a specific license classification and category.
IX. License holders shall operate in accordance with the class and category of license issued.
X. All licenses and provisional licenses issued in accordance with this chapter shall be non-transferable by person or location.
XI. Licenses shall be posted at all times in an area of the food establishment that is conspicuous to patrons.
143-A:27 License Expirations and Procedures for Renewals.
I. All licenses issued shall be valid for one year following the date of issuance, or one year following the first day of the month after the date of issuance of an initial license, as applicable.
II. Each licensee shall apply to renew his or her license at least 30 days prior to the expiration of the current license.
III. The licensee shall submit a renewal application that includes the following:
(a) The materials required by RSA 143-A:25; and
(b) Any changes to information provided to the department in the initial application.
IV. After due notice of pending expiration by the department, a license shall be renewed if the department determines that the licensee:
(a) Submitted an application containing all the items required by paragraph III above, as applicable, at least 30 days prior to the expiration of the current license and no later than 90 days after expiration where the notice from the department was not received;
(b) Has submitted a CAP that has been accepted by the department and implemented by the licensee if deficiencies were cited at the last licensing inspection;
(c) Is found to be in compliance with RSA 143 and this chapter at a renewal inspection, as applicable; and
(d) Has paid any outstanding fees or fines in full.
V. If a license holder fails to submit a complete application for renewal as required pursuant to paragraphs II and III above after due notice of pending expiration from the department, the food establishment shall cease operation the day after the license expires, and shall not operate until a license is obtained pursuant to this chapter.
VI. Any food establishment wishing to submit an application for a renewal license whose previous license has been expired in excess of 90 days shall apply in accordance with the requirements of an initial license in RSA 143-A:25.
143-A:28 License Classes.
I. For the purpose of licensure, food establishments shall be divided into the following classes:
(a) Class A which shall include:
(1) Category A-1, food processing plants which commercially process 100,000 packages of food or more, per year.
(2) Category A-2, food service establishments with 200 or more indoor seats.
(3)Category A-3, retail food stores with 4 or more food preparation areas;
(b) Class B which shall include:
(1) Category B-1, retail food stores with 2 to 3 food preparation areas.
(2) Category B-2, food service establishments with 100 to 199 indoor seats.
(c) Class C which shall include:
(1) Category C-1, retail food stores with one food preparation area, including an area for cutting cheese or fudge.
(2) Category C-2, caterers serving food off-site.
(3) Category C-3, food service establishments with 25 to 99 indoor seats.
(4) Category C-4, bars or lounges with a food preparation area, excluding areas used for preparing garnish such as limes and lemons.
(5) Category C-5, food processing plants which commercially process less than 100,000 packages of TCS food per year.
(6) Category C-6, cold storage or refrigerating warehouse.
(d) Class D, which shall include:
(1) Category D-1, food service establishments with 0 to 24 indoor seats.
(2) Category D-2, fraternities and sororities, except those where the members prepare all their own food.
(3) Category D-3, mobile food units which cook or prepare food.
(4) Category D-4, retail food stores that allow self-service of food, including coffee, hot dogs, or soft drinks.
(5) Category D-6, servicing areas.
(6) Category D-7, arena or theater concessions serving TCS food.
(e) Class E which shall include:
(1) Category E-1, bed and breakfasts.
(2) Category E-3, lodging facilities serving continental breakfasts.
(f) Class F which shall include:
(1) Category F-1, home delivery services of packaged frozen food.
(2) Category F-2, pushcarts and other mobile food units, including those serving packaged food and non-TCS unwrapped foods only.
(3) Category F-3, retail food stores with no food preparation areas.
(4) Category F-4, wholesalers or distributors of TCS food.
(5) Category F-5, on-site vending machines, which serve TCS food.
(6) Category F-6, bakeries which do not serve TCS food and have no seats.
(g) Class G shall include:
(1) Category G-1, bars or lounges without a food preparation area.
(2) Category G-2, arena or theater concessions serving non-TCS food.
(3) Category G-3, retail food stores serving pre-packaged ice cream.
(4) Category G-4, institutions including state, county, and municipal institutions.
(5) Category G-5, schools, private schools, and schools whose food service is operated by a caterer.
(6) Category G-6, senior meal sites.
(7) Category G-7, sellers of pre-packaged frozen meat or poultry that is processed in a USDA-inspected plant.
(8) Category G-8, food processing plants that manufacturer or package non-TCS food.
(h) Class H, Category H-1, shall include non-exempt homestead food operations.
(i) Class O, Category O-1, shall include municipality-run school cafeterias.
II. When a food establishment operates more than one type of business, the higher class shall determine the class of license, with Class A being the highest.
III. When a food establishment has an additional food processing business, each shall be licensed separately, requiring separate applications and separate fees.
IV. When a hospital or school offers food to the general public in addition to its population, then the license class shall be determined by the number of seats the food service establishment has.
143-A:29 Fees.
I. For each class of license requested, the applicant shall pay the following annual fees:
(a) Class A: $875.
(b) Class B: $450.
(c) Class C: $350.
(d) Class D: $225.
(e) Class E: $175.
(f) Class F: $150.
(g) Class G: $100.
(h) Class H: $150.
(i) Class O: no charge.
II. An applicant or licensee shall pay a fee of $75 for each plan review.
III. All fees shall be non-transferable and non-refundable.
IV. Payment of any fee to the department shall meet the following requirements:
(a) Payment shall be made in the form of check, money order, or on-line payment made payable to the “Treasurer, State of New Hampshire” in the exact amount due.
(b) Money order or certified check shall be required when an applicant or licensee has issued payment to the department by check, and such check was returned for insufficient funds.
(c) Any payment made to the department by check which is returned for insufficient funds, and which an individual, applicant, or licensee has not made good by submitting a money order or certified check within 2 business days of notification by the department, including any penalty assessment allowed by RSA 6:11-a, shall be grounds for denial of the license.
143-A:30 Water System Requirements.
I. Food establishments served by non-community public water systems, as defined by RSA 485:1-a, XV, shall indicate, as part of their application for a license, the Public Water System (PWS) identification number which has been assigned by the New Hampshire department of environmental services (DES).
II. For an application to be approved, the non-community public water system regulated by DES serving the food establishment shall:
(a) Be in compliance with all applicable water quality standards and monitoring and reporting requirements established in administrative rule by DES; or
(b) Be in compliance with the requested actions in a letter of deficiency, or the required actions of an administrative order, issued by DES and established to obtain compliance with the regulations cited in subparagraph II(a) above.
III. Food establishments which are classified as public water systems, as defined by RSA 485:1-a, XV, shall indicate, as part of their application for a license, the PWS identification number which has been assigned by DES.
IV. For an application under paragraph III to be approved, the water system shall:
(a) Be in compliance with all applicable water quality standards and monitoring and reporting requirements established in administrative by DES; or
(b) Be in compliance with the requested actions in a letter of deficiency, or the required actions of an administrative order, issued by the DES and established to obtain compliance with the regulations cited in subparagraph IV(a) above.
V. Food establishments which purchase their water from a community public water systems, as defined by RSA 485:1-a, XV, and therefore do not fall under subparagraph IV(a) above, shall indicate this information on the application.
VI. Food establishments which do not fall under paragraphs I-V, and are instead served by a water source other than a public water system, shall submit with the initial and renewal application the written results of a laboratory analysis of the water intended for use, which tests the level of the following:
(a) Bacteria;
(b) Nitrates; and
(c) Nitrites.
VII. The analyses required by paragraph VI shall be conducted not more than 6 months prior to the date of the application by a laboratory accredited by DES to perform such tests in accordance with standards adopted by DES in administrative rule.
VIII. For an application to be approved, the results of the water analysis shall be as follows:
(a) The bacteria test required pursuant to paragraph VI above shall not exceed the maximum contaminant level (MCL) for drinking water prescribed in administrative rule by DES; and
(b) The nitrate and nitrite tests required pursuant to paragraph VI above shall not exceed the MCL for drinking water prescribed in administrative rule by DES for those 2 contaminants.
143-A:31 Wastewater System Requirements.
I. Food establishments which discharge their wastewater to either public or private wastewater systems which hold either a state surface water discharge permit or a groundwater discharge permit issued by DES, shall indicate this information on the application.
II. Food establishments which do not discharge their wastewater as described in paragraph I above shall submit the following as part of their application:
(a) The applicant demonstrates that the existing use has not changed since July 1, 1967, by providing:
(1) A town property tax record for 1967 or earlier that is authenticated by a current official of the town; or
(2) A sworn, notarized affidavit that the existing use has not increased from the use existing as of July 1, 1967 from an individual unrelated to the applicant who owned the structure served by the private sewage or waste disposal system prior to July 1, 1967 or has personal knowledge of the use of the structure prior to July 1, 1967 in an official capacity such as being a tax assessor or code enforcement officer.; or
(b) A copy of the construction approval and the operation approval for the sewage or waste disposal system that indicates that the system is sufficient in capacity to serve the subject food establishment issued by DES in accordance with RSA 485-A:29 and DES administrative rules.
III. If not stated in subparagraph II(b) above a copy of the sewage or waste disposal system plan specifying use shall be submitted as part of their application.
IV. If there is no increase in the loading of the waste disposal system serving the food establishments in paragraph II above, and the applicant is unable to produce the documentation required, and has obtained approval of the waste disposal system from DES, the department shall waive the requirement in paragraph II with written approval from DES.
V. Any increase in seating capacity in a licensed food establishment which has a private wastewater system shall comply with applicable administrative rules adopted by DES.
143-A:32 Change in Ownership of a Food Establishment.
I. When there is a change of ownership of a food establishment, the new owner shall submit the items required for initial license applicants pursuant to RSA 143-A:25 to the department at least 30 days prior to the change of ownership.
II. Upon receipt and processing of the items required by paragraph I above, and after an inspection conducted in accordance with RSA 143-A:40, which shall also determine compliance with chapters 4, 5, and 6 of the Food Code, the department shall issue a provisional license reflecting the change in ownership.
III. The issuance of a provisional license due to a change in ownership shall void the license of the previous owner on the date the change of ownership occurs.
143-A:33 Change in Name of a Food Establishment.
I. When a license holder intends to change the name of a food establishment, that license holder shall submit a written notice to the department at least 30 days prior to the intended date of change in name. The department shall issue a new license certificate for a $25 fee.
II. The written notice shall include:
(a) The reason for the name change.
(b) The name of the food establishment as it appears on the existing license.
(c) The name of the food establishment as the license holder requests it to appear on the new license.
(d) The date upon which the change in name is intended to occur.
III. Following receipt of the items required by paragraph II above, the commissioner shall issue a revised license reflecting the change in name. The establishment number and expiration date shall remain the same as it was on the immediately preceding license.
143-A:34 Change in Location of a Food Establishment.
I. When there is a change of location of a food establishment, the license holder shall submit the items required for initial license applicants to the department at least 30 days prior to the change of location.
II. Upon receipt and processing of the items required pursuant to paragraph II above, and after an inspection conducted in accordance with all building and health codes adopted by the New Hampshire legislature and the local jurisdiction, the department shall issue a license reflecting the change of location.
III. The issuance of a license due to a change in location shall void the previous license on the date the change of location occurs.
IV. This section shall not apply to mobile food units, pushcarts, or vehicles used to sell retail food.
143-A:35 Change in License Class.
I. A license holder wishing to request an upgrade to a higher-level class of license shall:
(a) Be treated as an applicant for a new license; and
(b) Apply for a new license in accordance with all applicable health and building codes.
II. The issuance of a license due to an upgrade in license class shall void the previous license on the date the upgrade occurs.
III. A license holder wishing to request a downgrade to a lower level class of license shall submit a written request for downgrade to the department.
IV. The written request in paragraph III above shall include:
(a) The reason for requesting a downgrade; and
(b) The date upon which the downgrade is intended to occur.
V. Following receipt of the request under paragraph III above the licensee shall be issued a revised license reflecting the downgrade in class of license. The establishment number and expiration date shall remain the same as it was on the immediately preceding license.
143-A:36 Submission of Plans and Specifications for New and Remodeled Food Establishments.
I. A new applicant or a current license holder undergoing remodeling of a food establishment, except those in cities and towns with building officials having authority over building and health codes, shall submit a “Floor Plan Review Application” (PRAPP 07-01-15), to the department for review and approval, signed and dated by the applicant or the person who represents the applicant certifying the following: “I certify that all information provided in or attached to this application is complete, accurate and up-to-date as of the date specified below. I further certify that there are no willful misrepresentations of the answers to questions herein, and that I have made no omissions with respect to any of my answers to the questions presented. I understand that it is my responsibility to immediately notify the food protection section with regard to any changes, corrections or updates to the information provided.”
II. In addition to submitting a completed application pursuant to paragraph I above, an applicant or license holder shall provide the following with the application:
(a) A proposed menu or list of food and beverages to be offered; and
(b) A copy of the plans and specifications for the food establishment, unless exempt pursuant to paragraph IV below, to include:
(1) Location of all food equipment which clearly identifies the piece of equipment.
(2) Location of food preparation areas.
(3) Location of all refrigeration, which shall be commercial grade refrigeration only.
(4) Location of all sinks.
(5) Location of toilet facilities and restrooms.
III. The application and attachments in paragraphs I and II above shall be submitted at least 45 days prior to:
(a) Constructing a new food establishment;
(b) Converting an existing structure for use as a food establishment;
(c) Remodeling a food establishment; or
(d) Relocating a food establishment when the relocation also involves constructing a new food establishment, converting an existing structure for use as a food establishment, or remodeling a food establishment.
IV. The following shall be exempt from submitting a plan review application:
(a) Pushcarts.
(b) Homesteads.
(c) Retail stores with no food prep area.
(d) On-site vending machines serving TCS food.
(e) Sellers of prepackaged frozen USDA meat or poultry.
(f) Bed and breakfasts.
(g) Cities, towns and incorporated places having building code and health code enforcement and jurisdiction.
V. An applicant or licensee shall pay a fee of $75, submitted with the application, for each plan review application submitted.
VI. The department shall review plans for construction, renovation, or structural alterations of a food establishment for compliance with all applicable sections of RSA 143 and this chapter and notify the applicant or licensee as to whether the plan complies with the requirements set forth therein.
143-A:37 Hazard Analysis and Critical Control Point (HACCP) Plan Requirements.
I. The following applicants or licensees, doing business in a community without building code or health code enforcement as part of its government operation, shall submit to the department a complete hazard analysis and critical control point (HACCP) plan for approval prior to engaging in an activity that requires such a plan:
(a) Food processing plants that produce potentially hazardous food.
(b) Any food establishment engaging in an activity that requires a variance as specified under Food Code subparagraph 3-401.11 (D)(4), section 3-502.11, or ¶section 4-204.110 (B), as in effect February 1, 2019.
(c) Any food establishment engaging in a food preparation or processing method that the department determines requires a variance, based on the submission of plans and specifications, an inspection finding, or a variance request.
(d) Any food establishment engaging in an activity specified under Food Code section 3-502.12.
(e) Any food establishment which is required to have a HACCP plan by law.
II. A complete HACCP plan shall include the following:
(a) A categorization of the types of TCS foods that are specified in the menu.
(b) A flow diagram by specific food or category type identifying critical control points and providing information on the following:
(1) Ingredients, materials, and equipment used in the preparation of that food; and
(2) Formulations or recipes that delineate methods and procedural control measures that address the food safety concerns involved.
(c) Food employee and supervisory training plan that addresses the food safety issues of concern.
(d) A statement of standard operating procedures for the plan under consideration including clearly identifying:
(1) Each critical control point;
(2) The critical limits for each critical control point;
(3) The method and frequency for monitoring and controlling each critical control point by the food employee designated by the person in charge;
(4) The method and frequency for the person in charge to routinely verify that the food employee is following standard operating procedures and monitoring critical control points;
(5) Action to be taken by the person in charge if the critical limits for each critical control point are not met; and
(6) Records to be maintained by the person in charge to demonstrate that the HACCP plan is properly operated and managed.
(e) Additional scientific data or other information, as needed by the department to make its determination pursuant to paragraph III below, supporting the determination that food safety is not compromised by the proposal.
III. The department shall review HACCP plans for compliance with all applicable sections of RSA 143 and this chapter, and notify the applicant or licensee as to whether the plan complies with these requirements.
143-A:38 Variances.
I. Applicants or license holders seeking variances from specific rule or Food Code items shall complete and submit a “Variance Request Form” (VRFORM, 01-01-11) to the:
Department of Health and Human Services
Division of Public Health Services
Food Protection Section
29 Hazen Dr.
Concord, NH 03301
(603) 271-4589
II. The variance request shall include:
(a) Specific reference to the rule or Food Code item for which a variance is being sought.
(b) Full explanation of why a variance is necessary.
(c) Full explanation of alternatives proposed by the applicant or license holder, which shall be equally as protective of public health as the rule or Food Code item from which a variance is sought.
(d) A HACCP plan if required.
III. The commissioner shall approve a request for variance if:
(a) The commissioner concludes that authorizing deviation from strict compliance with the rule or Food Code item from which a variance is sought does not contradict the intent of the rule or Food Code item; and
(b) The alternative proposed by the applicant or license holder ensures that the objective or intent of the rule or Food Code item from which a variance is sought will be accomplished.
IV. If a variance is approved, the license holder’s subsequent compliance with the alternatives approved in the variance shall be considered equivalent to complying with the rule or Food Code item from which a variance was sought.
V. A variance shall be approved until the expiration of the current license or as specified by the department.
VI. No request for a variance concerning the rules of other state agencies which are referred to in this chapter shall be approved by the department.
VII. Nothing in this section shall prohibit a community from seeking the assistance of the department.
143-A:39 Trade Secrets and Confidentiality.
I. The department shall treat as confidential, in accordance with RSA 350-B, information that meets the criteria specified in RSA 350-B for a trade secret and is contained on inspection report forms, in the plans and specifications, and in any HACCP plans submitted.
II. Consumer complaints received regarding illness or sanitation of a food establishment shall have the name, address, and phone number or other identifying information of the individual making the complaint maintained as confidential and such information shall not be released without written permission of the complainant.
143-A:40 Inspections.
I. For the purpose of determining compliance with RSA 143 and this chapter, as authorized by RSA 143:4 and RSA 143-A:6, II, the applicant or licensee shall admit and allow any department representative at any time to enter and inspect the following:
(a) The licensed food establishment, including any mobile food units or vehicles used by the licensee for the transportation or retail sale of food; and
(b) Any records required by this chapter, or pertaining to food and supplies purchased and distributed by the food establishment.
II. At the time of inspection, or upon request, the applicant or licensee shall provide the department with the following:
(a) A list of persons employed; and
(b) Samples of food for bacteriological, chemical, and physical examination.
III. The department shall conduct an inspection to determine full compliance with RSA 143 and this chapter, prior to:
(a) The issuance of a provisional license;
(b) The issuance of a full license:
(c) A change in ownership;
(d) A change in the licensee’s physical location;
(e) An upgrade in the license class;
(f) Occupation of space after construction, renovations, or structural alterations; or
(g) The renewal of a license when the department has determined, in the interest of public health and based on the licensee’s inspection and compliance history, that a renewal inspection is warranted.
IV. In addition to the circumstances outlined in paragraph III, the department shall conduct an inspection:
(a) Whenever the department has reason to believe a condition exists that places the food establishment in non-compliance with RSA 143 or this chapter; and
(b) As necessary to verify compliance with any corrective action plan (CAP) accepted by the department as part of an inspection.
V. The applicant, owner, or person in charge shall be present at time of inspection.
VI. Upon completion of the inspection, the department shall complete a written inspection report in accordance with all relevant statues at the time of inspection.
VII. The inspection report shall contain:
(a) Specific factual observations of deficiencies which violate local or state odes or statute and which require correction; and
(b) For all food establishments except food processing plants, a color designation, described in paragraph IX below, based on the results of the inspection findings.
VIII. The applicant, owner, or person in charge shall acknowledge receipt of the inspection report by signing the inspection report.
IX. Color designations shall be as follows:
(a) Green, if there are no priority item violations identified or if all priority item violations identified are corrected immediately and permanently at the time of the inspection;
(b) Yellow, if there are priority item violations identified and are not corrected immediately and permanently at the time of the inspection; and
(c) Red, if it is determined that an imminent health hazard exists at the time of the inspection, the establishment has a failed corrective action plan or if the food establishment is found to be operating without a current, valid license.
143-A:41 Correction of Deficiencies Identified During an Inspection.
I. All deficiencies identified in the inspection report shall be corrected at the time of inspection, as practicable.
II. For all food establishments except food processing plants and homesteads, if a priority item violation is found during an inspection and cannot be corrected immediately and permanently in the presence of the inspector, the applicant or licensee shall:
(a) Agree to temporarily correct the priority item violation and to permanently correct it in a specified time frame, not to exceed 10 calendar days after the inspection; or
(b) Complete a CAP in the presence of the inspector.
III. For all food establishments except food processing plants and homesteads, if a violation of any codes or statutes is found during an inspection for an initial license or change of ownership license, and it cannot be corrected immediately in the presence of the inspector, the applicant or licensee shall:
(a) Agree to temporarily correct the deficiency and to permanently correct it in a specified time frame, not to exceed 10 calendar days after the inspection; or
(b) Complete a CAP in the presence of the inspector.
IV. For food processing plants and homesteads, if any violation is found during an inspection and cannot be corrected immediately and permanently in the presence of the inspector, the applicant or licensee shall:
(a) Agree to temporarily correct the violation and to permanently correct it in a specified time frame, not to exceed 10 calendar days after the inspection; or
(b) Complete a CAP in the presence of the inspector.
V. All priority foundation items shall be corrected in a timely manner not to exceed 10 days.
VI. All core items shall be corrected in a timely manner, not to exceed 90 days.
143-A:42 Corrective Action Plan.
I. When a deficiency identified in the inspection report cannot be corrected either immediately and permanently in the presence of the inspector or permanently within 10 calendar days after the inspection, the licensee shall complete, date, and sign, at the time of inspection, a corrective action plan form (CAPAPP, 01-01-11) provided by the inspector, including:
(a) How the licensee intends to correct each deficiency.
(b) The date by which each deficiency shall be corrected.
(c) What measures will be put in place to ensure that the deficiency does not recur.
II. The department shall review and accept each CAP that accomplishes:
(a) Achieves compliance with RSA 143 and this chapter;
(b) Addresses all deficiencies and deficient practices as cited in the inspection report;
(c) Prevents a new violation of RSA 143 or this chapter as a result of the implementation of the CAP; and
(d) Specifies the date upon which the deficiencies will be corrected.
III. The department shall verify the implementation of any CAP that has been accepted by:
(a) Reviewing materials submitted by the licensee;
(b) Conducting a follow-up inspection; or
(c) Reviewing compliance during a renewal inspection.
IV. If the department finds the licensee to be out of compliance with the CAP by the specified completion date at the time of the next inspection, the department shall:
(a) Impose applicable fines, in accordance with legislative approval;
(b) Revoke the license in accordance with legislative granted authority; and
(c) Deny the application for a renewal of a license, as applicable.
143-A:43 Enforcement Actions and Notice of Right to Appeal.
I. The department shall impose enforcement actions for violations of RSA 143 and this chapter, including the following:
(a) Imposing fines upon an applicant, licensee, or unlicensed individual;
(b) Denying a license application;
(c) Revoking a license; or
(d) Immediately closing the food establishment.
II. When imposing a fine, denying a license application, or revoking a license, the department shall send to the applicant or licensee a written notice that sets forth:
(a) The action to be taken by the department;
(b) The reasons for the action, including the identification of each deficiency as applicable; and
(c) The right of the applicant or licensee to request a hearing in accordance with RSA 541 prior to the enforcement action becoming final.
III. No ongoing enforcement action shall preclude the imposition of any remedy available to the department under RSA 143, this chapter, or RSA 541-A:30, III.
143-A:44 Administrative Fines.
I. The department shall impose fines as follows:
(a) For providing false or misleading information on or with an application, the fine shall be $1,000.
(b) For failure to operate a food establishment only in the manner in which licensed to do so, the fine shall be $500.
(c) For failure to cooperate during an inspection of a food establishment, including but not limited to failing to allow department representatives or inspectors to inspect food establishment premises, vehicles, and records at all times, the fine shall be $2,000.
(d) For willful or purposeful failure to notify the department by telephone within 24 hours of any fire or other disaster that jeopardizes the safety or sanitation of food provided in food establishments, the fine shall be $250.
(e) For willful or purposeful failure to notify the department at least 30 days prior to a food establishment ownership change, the fine shall be $500.
(f) For willful or purposeful failure to notify the department at least 30 days prior to the change of location of a food establishment, the fine shall be $500.
(g) For willful or purposeful failure to submit a plan for review as required the fine shall be $300.
(h) For failure to discard food as required by Food Code 3-701.11, and in the manner instructed to do so by the department, the fine shall be $500.
(i) For failure to cease operation upon notification by the department to do so, the fine shall be $1,000. Each day that a license holder fails to cease operation shall be considered a separate offense subject to an additional $500 fine.
(j) For failure to cease operation after a license has expired, when an application has been denied, or when a license has been revoked, the fine shall be $1,000. Each day that a license holder fails to cease operation shall be considered a separate offense subject to an additional $500 fine.
(k) For a violation of the same priority item on more than 2 consecutive inspections, the fine shall be $500.
(l) For failure to pay an administrative fine within 30 days of its imposition, or within 30 days of the decision to uphold the imposition of a fine that was appealed, the fine shall be $500. Each day until the expiration of the current license, that a license holder fails to pay such a fine shall be considered a separate offense subject to an additional $500 fine.
(m) For a failure to comply with any CAP that has been accepted by the department, the fine shall be $500.
(n) For operation of a food service establishment without obtaining a food service license, as required by RSA 143-A:4, the fine shall be $1,000. Each day that a food establishment operates without a license shall be considered a separate offense subject to an additional $500 fine.
(o) For failure to submit a HACCP plan for review if required by the department, the fine shall be $500.
(p) For failure to display a valid license, the fine shall be $200.
(q) For willful or purposeful failure of an applicant, owner, or person in charge to be present at the time of inspection and demonstrate the knowledge required by section 2-102.11 of the Food Code as in effect on August 20, 2019 which are pertinent to the risks inherent to the specific food establishment, the fine shall be $250.
(r) For violating a variance approved, the fine shall be $500.
(s) For willful or purposeful failure to submit a timely renewal application, the fine shall be $75.
(t) For failure of an exempt or non-exempt homestead food operation to label products in accordance with state requirements, the fine shall be $250 per product line.
(u) For failure of a poultry producer or a rabbit producer to comply with training requirements, the fine shall be $500.
(v) For failure to cooperate during an outbreak investigation, the fine shall be $500.
(w) For failure to maintain files, for at least 90 days, on the receipt of purchase of uninspected poultry or uninspected rabbits in accordance with RSA 143-A:15, II, the fine shall be $500.
(x) For failure to correctly label a menu relative to the sale of uninspected, poultry or uninspected rabbits, the fine shall be $500.
(y) For failure to comply with the requirements for a certified food protection, the fine shall be $250.
II. Except for violations of subparagraph I(s) above, each day that an individual or licensee continues to be in violation of the provisions of RSA 143 or this chapter, shall constitute a separate violation and shall be fined in accordance with this section.
III. Payment of any imposed fine to the department shall meet the following requirements:
(a) Payment shall be made in the form of check, money order,, or on-line payment made payable to the “Treasurer, State of New Hampshire” in the exact amount due.
(b) Money order, or certified check shall be required when an applicant or licensee has issued payment to the department by check, and such check was returned for insufficient funds.
(c) Any payment made to the department by check which is returned for insufficient funds, and which an individual, applicant, or licensee has not made good by submitting money order or certified check within 2 business days of notification by the department, including any penalty assessment allowed by RSA 6:11-a, shall be grounds for revocation of the license.
143-A:45 Denial or Revocation of a License.
I. The department shall deny an application or revoke a license if:
(a) The operation of the licensed establishment immediately endangers public health or safety;
(b) An applicant or licensee has failed to pay any applicable fee or any administrative fine imposed 2 or any other court or legislative authorized sanction or fee;
(c) An applicant or a licensee has had a check returned to the department for insufficient funds and has not re-submitted the outstanding fee and additional charges in the form of money order or certified check within 2 business days of notification by the department;
(d) After being notified of and given an opportunity to supply missing information, an applicant or licensee fails to submit an application that meets the requirements of this chapter;
(e) An applicant, licensee, or any representative or employee of the applicant or licensee:
(1) Provides false or misleading information to the department;
(2) Prevents or interferes, or fails to cooperate with any inspection or investigation conducted by the department; or
(3) Fails to provide, upon request, information or documents to the department;
(f) There is a deficiency identified in the inspection report and the applicant or licensee does not either correct it or complete a CAP as agreed in writing;
(g) The licensee fails to implement or continue to implement a CAP that has been accepted by the department as agreed in writing;
(h) The licensee is cited 2 or more times under RSA 143 or this chapter for the same priority violation within the last 12 months or the last 5 inspections; or
(i) A food establishment fails to implement an approved HACCP plan as agreed in writing.
II. Reapplication for a license after revocation, pursuant to RSA 143-A:6, I, shall require submission of:
(a) A completed written application for a license to the department.
(b) A corrective action plan.
(c) Written proof that subsequent to the revocation, the person in charge has taken and passed a food safety class that meets the standards set by the New Hampshire legislature.
143-A:46 Request for an Administrative Hearing.
I. An applicant or licensee shall have 10 calendar days after receipt of the notice of an enforcement action to request in writing a hearing to contest the action.
II. If a written request for a hearing is not received pursuant to paragraph I above, the applicant or licensee waives his right to a hearing and the action of the department shall become final.
III. Hearings under this section shall be conducted in accordance with RSA 541-A.
IV. For administrative fines, the fines shall be paid to the department no later than 30 days from the receipt of the notice, unless a hearing has been requested.
143-A:47 Effect of Denial of License Application, Revocation of License, or Expired License.
I. Any applicant who has been denied a license or renewal license shall not operate or shall cease operation of the food establishment for which the license or renewal license was denied within 10 calendar days after receipt of the denial notice, unless a timely appeal is submitted.
II. If a license is revoked by the department, the food establishment shall cease operation of the food establishment within 10 calendar days after receipt of the revocation notice, unless a timely appeal is submitted.
III. If a food establishment is subject to immediate closure as defined in RSA 143:5-a, the food establishment shall immediately cease operation pending reinspection and pursuant to the adjudicative proceedings provisions of RSA 541-A.
IV. If a license expires without a timely application for renewal having been made, the food establishment shall immediately cease operation of the food establishment.
143-A:48 Closure.
I. A licensee shall immediately discontinue operations and notify the department at 603-271-4589, or if at night or during weekends at 603-271-5300, if an imminent health hazard shall exist because of an emergency such as:
(a) Interruption of water service that lasts for 2 or more hours.
(b) Whenever a drinking water sample is found to have E. coli bacteria or exceed the MCL for nitrates.
(c) A failed sewer system or a sewage backup into the food establishment.
(d) Interruption of electrical service for 2 or more hours.
(e) A fire affecting a food establishment.
(f) Flooding in a food establishment.
(g) Chemical exposure in a food establishment.
(h) Any other natural disaster or catastrophic event that could result in contamination of the food supply.
(i) An employee has been found to be infected with a communicable disease determined by the department to be a hazard to the public.
(j) Any other severe unsanitary conditions that threaten to contaminate the food establishment and its food supply.
II. A licensee shall not be required to discontinue operations in an area of the food establishment that is unaffected by the imminent health hazard.
III. If operations are discontinued as specified in paragraph I above, the licensee shall obtain approval from the department before resuming operations.
IV. Considering the nature of the potential hazard involved and the complexity of the corrective action needed, the department may agree to continuing operations in the event of an extended interruption of electrical or water service if:
(a) A written emergency operating plan has been approved;
(b) Immediate corrective action is taken to eliminate, prevent, or control any food safety risk and imminent health hazard associated with the electrical or water service interruption; and
(c) The department is informed upon implementation of the written emergency operating plan.
V. The department shall approve the resumption of operations if the imminent health hazard no longer exists or the licensee has offered a plan to mitigate all threats to health or safety.
VI. The failure to include other violations, practices, circumstances, or events in this section shall not be construed as a determination that other violations, practices, circumstances, or events are not or shall not be considered an imminent health hazard.
VII. The commissioner’s order of an immediate closure of a food establishment shall be in accordance with the provisions of RSA 143:5-a.
143-A:49 Suspected or Confirmed Foodborne Disease.
I. All suspected or confirmed foodborne illness outbreaks possibly occurring from food prepared or offered by a food establishment shall be reported to the department’s bureau of infectious disease control at 603-271-4496, or if at night or during weekends at 603-271-5300 within 24 hours.
II. Pursuant to RSA 141-C:9, II, during a suspected or confirmed foodborne disease outbreak, as determined by the department, all food employees in the implicated food establishment shall submit biological specimens upon department request.
III. During a suspected or confirmed foodborne disease outbreak, as determined by the department, any food employee who has had any of the symptoms within the previous 2 weeks shall be excluded from work until the appropriate biological specimens are tested by an independent lab and found to be negative or as requested by the department under RSA 141-C:9, II, are submitted and found to be negative.
143-A:50 Reporting by the Person in Charge.
I. The person in charge shall notify the department’s bureau of infectious disease control at 603-271-4496, or if at night or during weekends at 603-271-5300, of a food employee, or a person who applies for a job as a food employee, who is diagnosed with, or suspected of having, an illness or condition, including:
(a) Jaundice.
(b) Norovirus.
(c) Hepatitis A virus.
(d) Shigella spp..
(e) Enterohemorrhagic or shiga toxin-producing Escherichia coli.
(f) Salmonella Typhi.
(g) Salmonella nontyphoidal.
(h) Any other communicable disease as indicated by public notice made by the state epidemiologist or by governor emergency order based on a federal declaration of emergency.
II. The person in charge shall report infectious and communicable disease as required by law.
143-A:51 Bed and Breakfast Facilities; Application Requirements. Food service establishments applying for a license as a bed and breakfast facility shall comply with all application requirements applicable to other facilities, except that they shall not be required to submit a plan review application or wastewater items.
143-A:52 Bed and Breakfast Facilities; Basic Requirements. A bed and breakfast facility shall comply with all local and state codes and statutes; provided, however, that the following exceptions to the Food Code shall apply:
I. Commercial equipment shall not be required.
II. The kitchen shall be equipped with either:
(a) A 2-compartment sink; or
(b) A residential model dish machine and a one-compartment sink.
III. A sink used for food preparation shall not be required to be equipped with an indirect wasteline.
IV. A backflow device shall not be required for kitchen sinks provided with a spray hose.
V. Coved base at the juncture of the floor and wall shall not be required;
VI. Only those bathrooms which open directly into the kitchen or into any hallway leading into the kitchen shall be required to have self-closing doors and mechanical ventilation.
VII. The kitchen shall not be required to be separated from any living area or sleeping area by complete partitioning or solid, self-closing doors.
VIII. Laundry facilities shall:
(a) Be allowed in the kitchen; and
(b) Not be used during processing, preparing, serving, or packaging of foods related to the business.
143-A:53 Bed and Breakfast Facilities; Sanitization. Dishes, utensils, and food contact equipment and surfaces shall undergo sanitization as required in Food Code 4-703.11, except that sanitization, if done in the 2 compartment sink, shall occur in the second compartment after the dishes, utensils, and food contact equipment have been rinsed with clean water.
143-A:54 Food Processing Plants; Application Requirements. A food service establishment applying for a license as a food processing plant shall:
I. Comply with all of the application applicable to other facilities.
II. Submit with the application a list of all food products to be produced in the food processing plant.
III. Submit a HACCP plan as part of the application
IV. Submit a copy of a finished product label.
143-A:55 Food Processing Plants; Basic Requirements. Food processing plants shall:
I. Provide an updated list of food products to the department whenever new products are added.
II. If thermally processing and packaging low-acid foods in hermetically sealed containers, comply with applicable federal regulations under the Code of Federal Regulations in 21 C.F.R. 113 and 21 C.F.R. 117 as in effect on February 1, 2019.
III. If processing acidified foods, comply with applicable federal regulations under Code of Federal Regulations in 21 C.F.R. 114 and 21 C.F.R. 117 as in effect on February 1, 2019.
IV. Maintain production records and distribution records of all products produced.
143-A:56 Food Processing Plant Standards.
I. Those food establishments licensed as food processing plants shall be exempt from the requirements of the Food Code and shall instead comply with the requirements in this section.
II. All food shall be from an approved source, as follows:
(a) “Approved source” means a source of food that has been inspected by a federal, state, or local agency that has the authority, responsibility, and the technical ability to evaluate food for safety in protection of public health;
(b) Raw agricultural plant commodities and products under the oversight of New Hampshire department of agriculture under RSA 426, RSA 427, RSA 428, RSA 429, and RSA 434 that do not require inspection shall be considered to be from an approved source; and
(c) Poultry that is exempt from federal inspection under the Poultry Products Inspection Act 21 U.S.C. section 464(c)(4) as in effect on February 1, 2019; shall not be considered to be from an approved source.
III. All food products shall be stored in original containers. If food products are removed from the original container, they shall be stored in labeled and closed containers. Containers shall be of a material that will not cause the food to become adulterated.
IV. All food shall be in sound condition, free from spoilage, filth, or other contamination, and shall be safe for human consumption.
V. All TCS food shall be refrigerated at 41°F or lower, or held at 135°F or higher, to control bacterial growth.
VI. Food storage facilities shall be kept clean and located to protect food from unsanitary conditions or contamination from any source at all times.
VII. The floors, walls, ceilings, utensils, machinery, equipment, and supplies in the food preparation area and all vehicles used in the transportation of food shall be kept thoroughly clean.
VIII. All food contact surfaces shall be kept clean and undergo sanitization as frequently as necessary to protect against the contamination of food.
IX. All food contact surfaces shall be non-toxic, easy to clean, smooth, nonabsorbent, and free of cracks or open seams.
X. All food shall be protected against insects and rodents at all times. Outside doors, windows, and other openings shall be fitted with screens and self-closing doors, if not otherwise protected. No dogs, cats, or other pets shall be allowed in the room where food is prepared or stored.
XI. All garbage and refuse shall be kept in containers and removed from the premises regularly to prevent insects and rodents, offensive odors, or health or fire hazards. Garbage and refuse containers shall be durable, easy to clean, insect- and rodent-resistant, and of material that neither leaks nor absorbs liquid.
XII. Employees shall be free from contagious or communicable diseases, sores, or infected wounds, and shall keep their hair covered and restrained.
XIII. Employees shall keep themselves and their clothing clean. Hands shall be washed as frequently as necessary to maintain good sanitation.
XIV. Employees shall not smoke while handling or preparing food or in food preparation or storage areas.
XV. All establishments shall have an adequate supply of hot and cold potable water under pressure from an approved source.
XVI. All establishments shall have toilet facilities, which do not open directly into food processing areas, equipped with a hand washing lavatory, complete with hot and cold potable water under pressure and hand soap. A supply of sanitary towels or a hand-drying device providing heated air shall be conveniently located near the hand-washing facility.
XVII. Hand sinks shall be conveniently located to all food processing areas.
XVIII. Adequate lighting shall be provided where food is stored, processed, or examined.
XIX. Adequate ventilation shall be provided to eliminate objectionable odors and vapors, including steam, and constructed in such a manner as to avoid possible airborne contamination.
XX. Poisonous or toxic materials shall be stored so they cannot contaminate food, equipment, utensils, linens, and single-service, and single-use articles.
XXI. Food processing plants shall comply with all provisions of the state plumbing code as included as part of the state building code defined in RSA 155-A:1, IV, as amended by the building code review board pursuant to RSA 155-A:10, V.
143-A:57 Food Processing Plants; Labeling of All Packaged Foods. All packaged food shall bear a label showing:
I. The common or usual name of the product.
II. The name and address of the manufacturer’s, packer’s, or distributor’s business which shall:
(a) In the case of an individual, partnership, or association be the name under which the business is conducted.
(b) In the case of a corporation, be the name of the parent corporation; or
(c) Where the food is not processed by the person whose name appears on the label, the name on the label shall be qualified by a phrase which reveals the connection such a person has with the food, including but not limited to, “Manufactured for _____”, “Distributed by _____”, or any other wording which expresses the facts.
III. The ingredients in descending order of predominance by weight.
IV. The net weight, volume, or numerical count in both U.S. customary and metric.
V. A product code which includes date of manufacture, container size, and product lot or batch number to aid in a recall of product in case of a public health hazard.
143-A:58 Food Processing Plants; Recall Procedure.
I. The food processing plant shall develop and maintain on file a written procedure for the recall of their product, including procedures for the notification of the department and consumers and the removal of the product from commerce.
II. Production and distribution records shall be used to enable location of products if a recall is initiated.
III. A food processing plant shall recall any product which the food processing plant or the department knows or has reason to believe might adversely affect the health and safety of the public.
IV. A food processing plant that knows that the standard of quality has been violated or has reason to believe that circumstances exist which might adversely affect the safety of the product shall notify the department within 24 hours of learning of the violation or circumstances.
V. Circumstances in paragraph IV requiring notification shall include, but are not limited to, source contamination, spills, accidents, natural disasters, or breakdowns in treatment processes.
VI. If the department determines that the circumstances present an imminent health hazard and that consumer notification or product recall can significantly minimize the threat to health and safety of the public, the department shall advise the food processing plant to initiate a product recall.
VII. In cases of a product recall, the food processing plant shall disseminate notification of the recall to all wholesale and retail outlets to which the product was distributed.
VIII. If directed by the department, the food processing plant shall issue notification to consumers who might be affected by the recall using such methods, including the media, as will assure timely notification to the consumers.
143-A:59 Exempt Homestead Food Operations Requirements.
I. Pursuant to RSA 143-A:5, VII, homestead food operations selling less than a maximum annual gross sales of $20,000 of food, excluding potentially hazardous food, from the homestead residence, at the owner’s farm stand, at farmers’ markets, or at retail food stores shall be exempt from licensure under this chapter.
II. Only the following food products shall be produced and sold from exempt homestead food operations:
(a) Baked items, including, breads, rolls, muffins, cookies, brownies, and cakes.
(b) Double-crusted fruit pies.
(c) Candy and fudge.
(d) Packaged dry products, which include spices and herbs.
(e) Acid foods, including vinegars and mustards.
(f) Jams and jellies.
III. Exempt homestead food operations shall not produce or sell potentially hazardous foods, including any food which requires refrigeration or processed acidified and low acid canned foods.
IV. All homestead food products made in an exempt homestead food operation shall be sold in packages with individual labels on each package containing the following information:
(a) Name of the homestead food operation.
(b) Address of the homestead food operation.
(c) Phone number of the homestead food operation.
(d) Name of the homestead food product.
(e) All ingredients of the homestead food product in descending order of predominance by weight.
(f) The name of each major food allergen contained in the homestead food product unless it is already part of the common or usual name of the respective ingredient already disclosed in the ingredient statement in subparagraph IV(e) above.
(g) The following statement: “This product is exempt from New Hampshire licensing and inspection” in at least the equivalent of 10 point font and a color that provides a clear contrast to the background.
(h) A product code which identifies the product with a batch number, or a date of manufacture to aid in a recall of the product in case of an imminent health hazard.
V. Exempt homestead food operations shall follow the standards for non-exempt homestead operations in RSA 143-A:65.
143-A:60 Non-exempt Homestead Food Operations; Application Requirements.
I. Non-exempt homestead food operations shall apply for a Class H food service license.
II. Non-exempt homestead food operations applying for a Class H license shall comply with all of the application requirements applicable to other establishments except that:
(a) They shall not be required to submit the plan review application and wastewater items.
(b) They shall submit process review documentation, as applicable; and
(c) They shall also submit the following:
(1) A copy of one finished product label which meets the requirements of RSA 143-A:63; and
(2) A list of all products to be manufactured.
143-A:61 Non-Exempt Homestead Food Operations; Approved Products. Only the following food products shall be produced and sold from a non-exempt homestead food operations:
I. Baked items, including, breads, rolls, muffins, cookies, brownies, and cakes.
II. Double-crusted fruit pies.
III. Candy and fudge.
IV. Packaged dry products, which include spices and herbs.
V. Acid foods, including vinegars and mustards.
VI. Jams and jellies.
143-A:62 Non-Exempt Homestead Food Operations; Prohibited Products. Non-exempt homestead food operations shall not produce or sell potentially hazardous foods, including any food which requires refrigeration or processed acidified and low acid canned foods.
143-A:63 Non-Exempt Homestead Food Operations; Labeling Requirements. All homestead food products made in a non-exempt homestead food operation shall be sold in packages with individual labels on each package containing the following information:
I. Name of the homestead food operation.
II. Address of the homestead food operation.
III. Phone number of the homestead food operation.
IV. Name of the homestead food product.
V. All ingredients of the homestead food product in descending order of predominance by weight.
VI. The net weight, volume, or numerical count in both US customary and metric.
VII. The name of each major food allergen contained in the homestead food product unless it is already part of the common or usual name of the respective ingredient already disclosed in the ingredient statement in paragraph V above.
VIII. The following statement: “This product is made in a residential kitchen licensed by NH DHHS” in at least the equivalent of 10 point font and a color that provides a clear contrast to the background.
IX. A product code which includes date of manufacture, container size and product lot or batch number to aid in a recall of product in the case of an imminent health hazard.
143-A:64 Non-Exempt Homestead Food Operations; Process Review Required.
I. Non-exempt homestead food operations which are licensed and produce permissible homestead food products that do not use recipes approved by the National Center for Home Food Preservation shall comply with the following:
(a) A process review shall be conducted by a food processing authority on each product prior to its being produced by the license holder. If the food processing authority declares in writing that there are no biological concerns with the food after evaluating the scheduled process, the food shall be allowed to be produced.
(b) License holders shall keep records of all pHs on file and available for review by the regulatory authority upon request.
(c) A process review shall be conducted for a product that has been previously tested if the ingredients are altered or the process changes.
(d) License applicants shall submit process review documentation with the license application.
(e) License holders shall keep all process review information on file and available for review by the regulatory authority upon request.
II. A list of food processing authorities described in subparagraph I(a) above and a list of recipes approved by the National Center for Home Food Preservation, or a website link to the same, shall be available on the department’s website.
143-A:65 Non-Exempt Homestead Standards.
I. Non-exempt homestead food operations shall be exempt from the requirements of the Food Code, and shall instead comply with the requirements in this section.
II. Commercial equipment shall not be required.
III. The kitchen shall be equipped with either:
(a) A 2-compartment sink; or
(b) A residential model dishmachine and a one-compartment sink.
IV. A sink used for food preparation shall not be required to be equipped with an indirect wasteline.
V. A backflow device shall not be required for kitchen sinks provided with a spray hose.
VI. Coved base at the juncture of the floor and wall shall not be required.
VII. Only those bathrooms which open directly into the kitchen or into any hallway leading into the kitchen shall be required to have self-closing doors and mechanical ventilation.
VIII. The kitchen shall not be required to be separated from any living area or sleeping area by complete partitioning or solid, self-closing doors.
IX. Laundry facilities shall:
(a) Be allowed in the kitchen; and
(b) Not be used during processing, preparing, serving, or packaging of foods related to the business.
143-A:66 Requirements for Poultry Producers and Rabbit Producers. Poultry producers and rabbit producers who are exempt from food service licensure under RSA 143-A:5, VIII, but who sell to restaurants licensed under this chapter shall:
I. Register with the New Hampshire department of agriculture, markets, and food pursuant to RSA 143-A:16, I(b).
II. Complete an approved education course at a minimum of every 5 years.
III. Maintain production records showing that no more than 20,000 whole poultry or 1,000 rabbits are offered to restaurants within a calendar year.
IV. Label each poultry and rabbit with the following information:
(a) The name of the producer.
(b) The address of the producer.
(c) The date of slaughter of the poultry or rabbit.
(d) Safe handling instructions as stated in the Food Code 2015 edition Section 3-201.11(F), as in effect June 25, 2015, with exceptions found in this chapter.
V. Provide information to the department during an investigation of a foodborne illness outbreak linked to any poultry or rabbits supplied by the producer.
VI. Prior to selling poultry or rabbit to restaurants, poultry and rabbit producers who are exempt and meet the requirements of this section shall obtain documentation from the New Hampshire department of agriculture, markets, and food that shows:
(a) Registration with New Hampshire department of agriculture, markets, and food; and
(b) Completion of the education course.
VII. Documentation obtained in paragraph VI shall be presented to any licensed restaurant to demonstrate that the producer has met the requirements of RSA 143-A:16, RSA 143-A:17
143-A:67 Education Requirements for Poultry Producers and Rabbit Producers Exempt from Food Service Licensure.
I. Producers shall complete department approved training, offered by University of New Hampshire Cooperative Extension or another training program which includes training in required slaughtering, processing, packaging, handling, labeling, transportation practices, and any other specific requirements for producers set forth in RSA 143-A:14-16.
II. Producers shall complete the training required pursuant to paragraph I above every 5 years.
III. A producer shall provide proof of successful completion of the required training to the department of agriculture, markets and food with its registration.
IV. At a minimum, one individual involved in the producer’s operations shall obtain the required training.
V. The producer shall maintain records of the completed training.
143-A:68 Requirements for Restaurants Licensed Under RSA 143-A to Sell Rabbit or Poultry That are Exempt from Inspection Pursuant to RSA 143-A:15.
I. Restaurants shall only offer uninspected poultry or rabbits from poultry producers or rabbit producers that meet the requirements.
II. Restaurants shall maintain receipts of purchase of uninspected poultry or uninspected rabbits for 90 days, which include the following information:
(a) The date of purchase.
(b) The name of the poultry producer or rabbit producer.
(c) The address of the producer.
(d) The phone number of the producer.
III. The restaurant shall label any menu item containing uninspected poultry or uninspected rabbits in font at least 10 point, and in a color that provides clear contrast to the background, and which states the following: “This product has been raised and processed on a New Hampshire farm and is exempt from state and federal inspection.”
143-A:69 Cold Storage; Licensure; Fees.
I. The department may separate grant cold storage licenses to qualified applicants.
II. The fee for a cold storage license shall be $350.
III. All fees paid shall be nontransferable and nonrefundable.
IV. Any instrument returned to the state shall be processed in accordance with RSA 6:11-a.
143-A:70 Cold Storage Licensure; Administrative Fines.
I. Administrative fines shall be imposed in the following amounts for each specified violation listed below:
(a) For willful submission of materially false or fraudulent material on or with an application, $1,000.
(b) For failure to have a valid cold storage warehouse license posted and available for inspection at a cold storage warehouse, $200.
(c) For failure to cooperate during an inspection of a cold storage warehouse, $2,000.
(d) For failure to notify the department by telephone within 24 hours of any fire or other disaster that jeopardizes the safety or sanitation of food, as required $250.
(e) For failure to notify the department at least 30 days prior to a change in cold storage warehouse ownership, as required, $200.
(f) For failure to notify the department at least 30 days prior to a change in the name of an owner or cold storage warehouse, as required, $100.
(g) For failure to comply with state or local codes or requirements when moving the location of a cold storage warehouse, $1,000.
(h) For failure to cease operating an unlicensed cold storage warehouse, in violation of RSA 145:2, when notified by the department to do so, $2,000.
(i) For failure to cease operating after denial or suspension of a cold storage warehouse license, $2,000.
(j) For citation for the same deficiency for more than 2 consecutive inspections, the fine shall be $1,000.
(k) For the first repeat violation of the fine shall be double the amount assessed for the original fine, but shall not exceed $2,000.
(l) For failure to pay an administrative fine within 30 days of its imposition, or the completion of any appeal of the administrative fine, the fine shall be $500.
II. A new administrative fine shall be imposed for each day a violation continues.
10 Repeal. The following are repealed:
I. RSA 143-A:9, relative to general rulemaking authority of the commissioner of the department of health and human services over food service licensure.
II. RSA 143-A:13, relative to rulemaking authority of the commissioner of the department of health and human services over homestead food operations.
III. RSA 143-A:17, relative to rulemaking authority of the commissioner of the department of health and human services over the sale of uninspected poultry and rabbits to restaurants.
11 Effective Date. Part XIV of this act shall take effect upon its passage
21-0964
Revised 2/10/21
SB 133-FN- FISCAL NOTE
AS INTRODUCED
AN ACT adopting omnibus legislation relative to occupational licensure.
PART I Relative to the definition of "licensing agency" for purposes of licensing places of assembly.
This part has no fiscal impact.
PART II Establishing a limited plumbing specialist license.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
|
| ||||
| Estimated Increase / (Decrease) | ||||
STATE: | FY 2021 | FY 2022 | FY 2023 | FY 2024 | |
Appropriation | $0 | $0 | $0 | $0 | |
Revenue | $0 | $95,000 | $95,000 | $190,000 | |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other- Office of Professional Licensure and Certification Fund (RSA 310-A:1-e,I(b))
| ||||
METHODOLOGY:
This part establishes a new limited plumbing specialist license category. The Office of Professional Licensure and Certification estimates there would be 500 such licenses issued annually with a $190.00 license fee comparable to that of a journeyman license. The license would be renewed biennially. The OPLC states there would be an indeterminable cost associated with the administrative processing for such licenses.
It is assumed this section of the bill will be effective July 1, 2021.
AGENCIES CONTACTED:
Office of Professional Licensure and Certification
PART III Repealing the emergency medical services personnel licensure interstate
Compact.
This part has no fiscal impact.
PART IV Relative to hearings of the New Hampshire board of nursing.
This part has no fiscal impact.
PART V Relative to membership of the professional standards board.
This part has no fiscal impact.
PART VI Adopting the Audiology and Speech-Language Pathology Compact and
the Occupational Therapy Licensure Compact.
This part has no fiscal impact.
PART VII Relative to the licensure and regulation of music therapists.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
|
| ||||
| Estimated Increase / (Decrease) | ||||
STATE: | FY 2021 | FY 2022 | FY 2023 | FY 2024 | |
Appropriation | $0 | $65,460 | $68,460 | $71,460 | |
Revenue | $0 | $27,000 | $0 | $22,000 | |
Expenditures | $0 | $65,460 | $68,460 | $71,460 | |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other- Office of Professional Licensure and Certification Fund (RSA 310-A:1-e,I(b)) and Criminal Records Check Fund (RSA 106-B:7, II)
| ||||
METHODOLOGY:
This part of the bill requires the licensure of individuals engaged in music therapy beginning July 1, 2021 and establishes a 5 member governing board within the office of allied health professionals. The bill establishes a new classified position of program assistant II (labor grade 15) to assist the board in its duties. The bill appropriates funds for the salary and benefits of the position and for the per diem and mileage expenses of board members from the Office of Professional Licensure and Certification Fund (OPLC) established in RSA 310-A:1-e.
The OPLC estimates the salary and benefits for the new full-time position to cost $60,000 in FY22, $63,000 in FY23 and $66,000 in FY24.
The OPLC estimates the 5 member board would meet 12 times per year, with expenses for annual per diem and mileage totaling $5,460 per year, as shown below:
5 members x 12 meetings x $50 per diem = $3,000
5 members x 12 meetings x $41 average mileage reimbursement = $2,460
The OPLC estimates that approximately 200 licenses would be granted. Such licenses would be renewed every 2 years and all allied health initial licenses are currently set at $110 payable biennially. This amount would generate $22,000 in license revenue every 2 years ($110 x 200 = $22,000).
The bill prohibits the practice of music therapy without a license but there is no penalty. The addition of this license category also subjects licensees to the allied health criminal records check provision pursuant to RSA 328-F:18-a and performed by the Department of Safety. The $25 fee associated with such checks is payable by the license applicant. Based on the OPLC estimate of 200 applicants, potential initial revenue of $5,000 would be generated for the Criminal Records Check Fund pursuant to RSA 106-B:7, II, with an indeterminable amount thereafter based on an unknown number of new applicants.
AGENCIES CONTACTED:
Office of Professional Licensure and Certification
PART VIII Relative to the authority of the office of professional licensure and
certification for administration, rulemaking, and enforcement of investigations, hearings, and appeals.
This part has no fiscal impact.
PART IX Relative to skilled professional medical personnel.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
|
| |||
| Estimated Increase / (Decrease) | |||
STATE: | FY 2021 | FY 2022 | FY 2023 | FY 2024 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ ] Other | |||
METHODOLOGY:
This section proposes changes to RSA 151-E:3, Long Term Care; Eligibility. Skilled professional medical personnel shall oversee clinical eligibility determinations and service coverage prior authorizations for Medicaid home and community-based care waiver services. Only skilled professional medical personnel who are registered nurses and currently licensed in accordance with RSA 326-B may render an adverse service coverage determination or adverse clinical eligibility determination.
The Department of Health and Human Services states the Department may need to replace supervisors for affected programs with registered nurses, at significantly higher wage rates. The Department may also be unable to fill positions and issue timely decisions, delaying services, and require medically trained staff for determinations that may be denied for non-clinical reasons.
AGENCIES CONTACTED:
Department of Health and Human Services
PART X Relative to temporary licensure of certain licensed nursing assistants.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
| Estimated Increase / (Decrease) | ||||
STATE: | FY 2021 | FY 2022 | FY 2023 | FY 2024 | |
Appropriation | $0 | $0 | $0 | $0 | |
Revenue | $0 | $7,000 | $0 | $7,000 | |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other- Office of Professional Licensure and Certification Fund (RSA 310-A:1-e,I(b))
| ||||
METHODOLOGY:
This part of the bill allows licensure as licensed nursing assistants for individuals who served as temporary health partners for a minimum of 100 hours prior to April 1, 2021. The Office of Professional Licensure and Certification estimates 200 temporary health partners would be eligible for licensure at the current license fee of $35, yielding an estimated biennial revenue of $7,000. The amount of resources needed to create a new licensure category via the licensing portal and processing these applications is indeterminable.
It is assumed this section would be effective July 1, 2021.
AGENCIES CONTACTED:
Office of Professional Licensure and Certification
PART XI Relative to the revocation of licensure for licensed emergency medical
service units and emergency medical service vehicles.
This part has no fiscal impact.
PART XII Relative to schools for barbering, cosmetology, and esthetics.
This part has no fiscal impact.
PART XIII Relative to telemedicine provided by out of state psychologists.
This part has no fiscal impact.
PART XIV Establishing program rules within the department of health and human
services for sanitary production and distribution of food.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
|
| |||
| Estimated Increase / (Decrease) | |||
STATE: | FY 2021 | FY 2022 | FY 2023 | FY 2024 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | Indeterminable | Indeterminable | Indeterminable |
Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ ] Other | |||
METHODOLOGY:
The Department of Health and Human Services assumes the intent of Part XIV is to codify the program rules for the sanitary production and distribution of food into state law. The language contained in Part XIV repeals the rulemaking authority of the Commissioner of the Department of Health and Human Services for the following: food licensure codified in RSA 143-A:9, homestead food operations codified in RSA 143-A:13, and the sale of uninspected poultry and rabbits codified in RSA 143-A:17.
It is the Department’s interpretation that this legislation aims to revert to a previous version of the Food Protection Regulations (NH Code of Administrative Rules, Chapter He-P 2300, Rules for the Sanitary Production and Distribution of Food) that were effective in February 2019, by placing the text of the previously adopted rules into statute. The Department updated its Food Protection Regulations (Chapter He-P 2300) in August of 2019, including incorporating by reference the most recent version of the US Food and Drug Administration’s (FDA) Food Code (2017 Food Code). By codifying the rules that were in place in February of 2019 into statute, the current Certified Food Protection Manager (CFPM) requirement (specified in He-P 2303.02, effective August 20, 2019) would not exist, as this was not a requirement in the previous version of the Food Protection Regulations. The Food Protection Regulations that were effective in February of 2019 referenced the 2009 version of the Food Code. The 2009 version of the Food Code did not include a requirement for a Certified Food Protection Manager.
The proposed legislation also contains a requirement for the Department to offer a training course for interested parties to become a CFPM every 30 days. The Department states it will need to hire at least one new trainer Program Specialist III (LG 23) position to conduct the Certified Food Protection Manager training every 30 days. This position is estimated to include salary and benefits totaling $77,000 in FY 2022, $81,000 in FY 2023 and $85,000 in FY 2024. There is no appropriation in this section for this position.
The Department estimates a cost of $75 per attendee for a textbook and exam. The Department cannot estimate the number of registrations for classes from approximately 8,000 food establishments, or where such training may be offered and space requirements, what software may be needed for registration and certificates of course completion, or accommodations for multiple language or interpreter services. Therefore the total fiscal impact is indeterminable.
AGENCIES CONTACTED:
Department of Health and Human Services