N.H. Code Admin. R. Plc 212.04 – Waiver of Requirements

(a) The OPLC shall waive any or all of RSA 21-G:37, II - IV for any RFA, RFB, RFP, or similar invitation if the waiver is necessary to:
1. (1) Prevent the loss of federal or other funds subject to recapture; or
2. (2) Prevent or mitigate an emergency situation as defined in Plc 212.03(a).
(b) The OPLC shall then proceed in compliance with RSA 21-G:37, V.
Source. (See Revision Note #1 at chapter heading for Plc 200) #13427, eff 8-4-22; ss by #13837, eff 12-28-23 (see Revision Note #2 at chapter heading for Plc 200)
Appendix A: Statutes Implemented
Rule
State Statute(s) Implemented
Plc 101
RSA 310:1
Plc 102
RSA 310:2
Plc 103
RSA 310:4, I & II; RSA 310:5; RSA 310:6; RSA 541-A:16, I(a)
Plc 104
RSA 91-A:4; RSA 541-A:16, I(a)
Plc 200 (see below for additional or more specific statutes)
RSA 541-A:16, I(b)
Plc 201
RSA 310:4; RSA 310:9-12; RSA 541-A:16, I(b)
Plc 202
RSA 310:2
Plc 203
RSA 541-A:16, I(b); RSA 310
Plc 203.05
RSA 541-A:16, I(b); RSA 310:10, XIV-XV; RSA 310:11, VII-VIII
Plc 204
RSA 541-A:16, I(b); RSA 310:9
Plc 205
RSA 541-A:16, I(b); RSA 310:10
Plc 205.04, Plc 205.06
RSA 541-A:16, I(b); RSA 310:10
Plc 206
RSA 541-A:16, I(b)(2); RSA 541-A:30, III; RSA 541-A:30-a; RSA 541-A:33; RSA 310:10, RSA 310:11, RSA 310:14
Plc 206.02, Plc 206.03, Plc 206.06, Plc 206.08, Plc 206.09, Plc 206.10, Plc 206.30 – Plc 206.33
RSA 541-A:16, I(b)(2); RSA 541-A:30-a;
Plc 206.07
RSA 541-A:30, III
Plc 206.32
RSA 541-A:16, I(b)(2); RSA 310:10
Plc 207
RSA 541-A:16, I(b)(3)
Plc 208
RSA 541-A:16, I(b); RSA 541-A:4
Plc 209
RSA 541-A:16, I(b); RSA 541-A:4
Plc 210
RSA 541-A:16, I(b); RSA 310
Plc 211
RSA 541-A:16, I(b); RSA 310
Plc 212
RSA 21-G:37
Appendix B: Statutory Definitions
RSA 541-A:1
I. “Adjudicative proceeding” means the procedure to be followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-A:36.
IV. “Contested case” means a proceeding in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after notice and an opportunity for hearing.
VIII. “License” means the whole or part of any agency permit, certificate, approval, registration, charter or similar form of permission required by law.
RSA 21-G:36
III. “Request for application (RFA)” means an invitation to submit an offer to provide identified services to an agency where the amount of funding available and the particulars of how the services are to be provided are defined by the agency and where the selection of qualifying vendors will be according to identified criteria as provided in RSA 21-I:22-a and RSA 21-I:22-b.
IV. “Request for bid (RFB)” means an invitation to submit an offer to provide specified commodities or services to an agency at a price proposed by the bidder where selection is based on the lowest price meeting or exceeding specifications as stated in the bid.
V. “Request for proposal (RFP)” means an invitation to submit a proposal to provide specified goods or services, where the particulars of the goods or services and the price are proposed by the vendor and, for proposals meeting or exceeding specifications, selection is according to identified criteria as provided in RSA 21-I:22-a and RSA 21-I:22-b.
Appendix C: Statutory Provisions
RSA 91-A:2
IV. The provisions of this paragraph allowing for less than a quorum to be physically present for meetings shall apply only to boards, committees, councils, advisory committees and like bodies of state government, not including the general court or either house thereof or any committee of either house, nor the governor and council, the composition of which is permitted by law or regulation to be drawn from individuals who may reside throughout the state of New Hampshire. This paragraph does not apply to boards, committees, councils, advisory committees, or any other components or instrumentalities of county or municipal government. For purposes of this paragraph only the boards, committees, councils, and like bodies to which this paragraph is applicable shall be referred to as "state boards."
(a) A state board covered by this paragraph may vote to allow one or more members to participate in a meeting remotely only when physical attendance at the meeting site is not reasonably practicable. Any reason that such attendance is not reasonably practicable shall be stated in the minutes of the meeting. The authority granted under this paragraph may be revoked, renewed, or modified in the same manner as it is approved.
(b) At least one-third of the total membership of the state board shall be present at the physical location of the meeting. Each member participating electronically or otherwise shall be able to contemporaneously and throughout the meeting see and hear, and be seen and heard by, the other members of the public body attending the meeting and members of the public in attendance at the meeting site. A member participating in a meeting remotely as described in this paragraph is deemed to be present for all purposes, including for determination of a quorum and voting. Each member participating remotely shall identify the persons present in the location from which the member is participating. All votes taken during such a meeting shall be by roll call vote. Members of the public shall be permitted to participate remotely in remotely held state board meetings, including testifying or asking questions as the rules and procedures of the board allow.
(c) No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
(d) In an emergency, when immediate action is imperative and the physical presence requirement is not reasonably practicable within the period of time requiring action, the minimum physical presence required under subparagraph (b) shall not apply. The determination that an emergency exists shall be made by the chair or presiding officer of the state board, and the facts upon which that determination is based shall be included in the minutes of the meeting.
(e) Any meeting held pursuant to the terms of this paragraph shall comply with all other requirements of this chapter relating to public meetings not inconsistent with this paragraph, and shall not circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.
310:10 Disciplinary Proceedings; Non-Disciplinary Remedial Proceedings. –
I. Disciplinary proceedings shall be open to the public in accordance with RSA 91-A. All non-disciplinary remedial proceedings shall be exempt from the provisions of RSA 91-A, except that the board shall disclose any final remedial action that affects the status of a license, including any non-disciplinary restrictions imposed. The 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. Boards shall conduct disciplinary and non-disciplinary remedial proceedings in accordance with procedural rules adopted by the executive director.
III. The office shall employ sufficient administrative prosecutors qualified by reason of education, competence, and relevant experience to serve as hearing counsel in all disciplinary and non-disciplinary proceedings before the boards.
IV. The office shall employ sufficient personnel qualified by reason of education, competence, and relevant experience to serve as presiding officer in all disciplinary or non-disciplinary remedial matters before the boards including disciplinary proceedings, non-disciplinary proceedings, the order of an immediate suspension of a license pursuant to RSA 310:12, IV, and unlicensed practice hearings held pursuant to RSA 310:13. The presiding officer shall have the authority to preside on such matters, to issue oaths or affirmations to witnesses, rule on questions of law and other procedural matters, and issue final orders based on factual findings of the board.
V. In disciplinary and non-disciplinary remedial proceedings, including those held pursuant to this section, RSA 310:12, IV, and RSA 310:13, the presiding officer may issue subpoenas for persons, relevant documents, and relevant materials 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 materials shall not require compliance in fewer than 15 days after receipt of service.
(c) Service shall be made on licensees 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 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."
VI. In carrying out disciplinary or non-disciplinary remedial proceedings, including those held pursuant to RSA 310:10, RSA 310:12, IV, and RSA 310:13, the presiding officer, as defined in RSA 541-A, shall have the authority to hold pre-hearing conferences, which shall be exempt from the provisions of RSA 91-A; to administer oaths and affirmations; and, to render legal opinions and make conclusions of law.
VII. Boards shall be the triers of fact in all disciplinary and non-disciplinary remedial proceedings, and shall determine sanctions, if any.
VIII. At any time before or during disciplinary or non-disciplinary remedial proceedings, complaints may be dismissed or disposed of, in whole or in part:
(a) By written settlement agreement approved by the board, provided that any complainant shall have the opportunity, before the settlement agreement has been approved by a board, to comment on the terms of the proposed settlement; or
(b) Through an order of dismissal for default, for want of jurisdiction, or failure to state a proper basis for disciplinary action.
IX. Disciplinary action taken by the board at any time, and any dispositive action taken after the issuance of a notice of public hearing, shall be reduced to writing and made available to the public. Such decisions shall not be public until they are served upon the parties, in accordance with rules adopted by the executive director.
X. Except as otherwise provided by RSA 541-A:30, the office shall furnish the respondent at least 15 days' written notice of a hearing in accordance with RSA 541-A:31, III. 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.
XI. Neither the office nor the boards shall have an obligation or authority to appoint attorneys or pay the fees of attorneys representing licensees or witnesses during investigations or disciplinary or non-disciplinary remedial proceedings.
XII. No civil action shall be maintained against the office or the board, or any member of the board, office, 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 or office in relation to proceedings under this chapter.
XIII. For matters involving individuals identified in mental health records, testimony by client or patients shall be handled with utmost regard for the privacy and protection of their identity from public disclosure.
(a) A client or patient who is not a complainant shall not be compelled to testify at a hearing.
(b) If a client or patient who is not a complainant testifies at a hearing, the identity of the individual shall be screened from the public view and knowledge, although the respondent and attorneys shall be within the view of the client patient. The board may view the client or patient. The public's access to view or information that would identify the client or patient shall be restricted. The hearing may be closed to the public for the duration of the client or patient's testimony, at the board's discretion.
(c) If a complainant client or patient requests the privacy safeguards in subparagraph (b), the presiding officer may make such accommodations.
XIV. In any proceeding held pursuant to RSA 310 or RSA 541-A, a board may direct that evidence be received solely by a presiding officer who, in addition to exercising the authority given to the presiding officer under RSA 310 and RSA 541-A, shall be charged with making findings of fact, determining appropriate sanctions or action, or denying or accepting settlement agreements.
XV. In instances where a board lacks sufficient members to meet quorum, the executive director, or designee, may initiate proceedings held pursuant to RSA 310 or RSA 541-A and direct that evidence be received solely by the presiding officer who, in addition to exercising the authority given to the presiding officer under RSA 310 and RSA 541-A, shall be charged with making findings of fact, determining appropriate sanctions or action, or denying or accepting settlement agreements.
Source. 2023, 235:8, eff. July 15, 2023. 2024, 364:4, eff. Oct. 22, 2024.
310:11 Licensing Proceedings.
I. Boards shall conduct licensing proceedings in accordance with procedural rules adopted by the executive director.
II. If a license is denied following a licensing proceeding, its final decision shall be issued in accordance with RSA 541-A:35.
III. The office shall employ sufficient personnel qualified by reason of education, competence, and relevant experience to serve as presiding officer in all licensing proceedings before the boards. The presiding officer shall have the authority to preside at such hearing and to issue oaths or affirmations to witnesses, rule on questions of law and other procedural matters, and issue final orders based on factual findings of the board.
IV. Neither the office nor the boards 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.
V. Licensing proceedings shall be open to the public in accordance with RSA 91-A.
VI. The presiding officer, as defined in RSA 541-A, shall have the authority to: hold pre-hearing conferences, which shall be exempt from the provisions of RSA 91-A; administer oaths and affirmations; and render legal opinions and make conclusions of law. The boards shall be the triers of fact.
VII. In any proceeding held pursuant to RSA 310 or RSA 541-A, a board may direct that evidence be received solely by a presiding officer who, in addition to exercising the authority given to the presiding officer under RSA 310 and RSA 541-A, shall be charged with making findings of fact, determining appropriate sanctions or action, or denying or accepting settlement agreements.
VIII. In instances where a board cannot meet quorum, the executive director, or designee, may initiate proceedings held pursuant to RSA 310 or RSA 541-A and direct that evidence be received solely by the presiding officer who, in addition to exercising the authority given to the presiding officer under RSA 310 and RSA 541-A, shall be charged with making findings of fact, determining appropriate sanctions or action, or denying or accepting settlement agreements.
Source: 2023, 235:8, eff. July 15, 2023. 2024, 364:5, eff. Oct. 22, 2024