Ac 101.01 Purpose and Scope.

(a) The rules of this title implement the statutory responsibilities of the New Hampshire board of accountancy created by RSA 309-B:2.

(b) These provisions regulate to but are not limited to the licensing of certified public accountants and public accountants and the practice of accountancy in the state of New Hampshire.

PART Ac 102 DEFINITIONS

Ac 102.01 "Board" means the New Hampshire board of accountancy created by RSA 309-B:4.

Ac 102.02 “Certified public accountant” (CPA) means a person holding a current certificate issued under RSA 309-B:5, or a person holding an equivalent accounting license issued in any jurisdiction in the United States.

Ac 102.03 “Chartered accountant” means person holding an accounting license issued in Australia, Canada, or Ireland that is at a level equivalent to a CPA in the United States.

Ac 102.04 “Client” means a person, persons or entity which retains a practicing accountant or the firm of a practicing accountant, which firm is engaged in the practice of public accountancy, for the performance of professional accounting services.

Ac 102.05 “Code of professional conduct” means the “Code of Professional Conduct” of the American Institute of Certified Public Accountants (AICPA), June 1, 2010 edition, including the interpretations.

Ac 102.06 “Contadores Publicos Certificado” means a person holding a current accounting license issued in Mexico that is at a level equivalent to a CPA in the United States.

Ac 102.07 “CPA firm” means “CPA firm” as defined by RSA 309-B:3, IV, namely, “a sole proprietorship, a corporation, a partnership including a limited liability partnership, a limited liability company including a professional limited liability company, or any other legally authorized association issued a license under RSA 309-B:8.”

Ac 102.08 “Financial statement” means a document and related footnotes that purports to represent actual or prospective financial positions at a particular time, or results of operations, cash flow, or changes in financial position for a period of time, in conformity with generally accepted accounting principles or another comprehensive basis of accounting.

Ac 102.09 “Firm” means any business entity, however configured or organized, engaged in the practice of public accountancy. The term includes individuals and shareholders in any legally authorized entity engaged in the practice of public accountancy.

Ac 102.10 “License” means “license” as defined by RSA 309-B:3, VIII, namely, “certificate issued under RSA 309-B:5, a permit issued under RSA 309-B:8 or a registration under RSA 309-B:9; or in each case, a certificate or permit issued under corresponding provisions of prior law.”

Ac 102.11 “Licensee” means “licensee” as defined by RSA 309-B:3, IX, namely, “the holder of a license as defined in RSA 309-B:3, VIII” and includes each CPA and PA.

Ac 102.12 “Permit” means “permit” as defined in RSA 309-B:3, XIII, namely, “a permit to practice as a CPA firm issued under RSA 309-B:8 or corresponding provisions of prior law, or under corresponding provisions of the laws of other states.”

Ac 102.13 “Public accountancy” means the provision of any service, the undertaking of any function, or the exercise of any privilege for which a certificate, registration, or permit is required pursuant to RSA 309-B.

Ac 102.14 “Public accountant (PA)” means a licensee whose registration has been issued pursuant to RSA 309-B:9.

Ac 102.15 “Public accounting experience” means the performance of one or more kinds of services regulated under RSA 309-B and these rules and performed under the supervision of a CPA, Chartered Accountant, Contadores Publicos Certificado, PA or in an entity that holds itself out to the public as a firm as defined in Ac 101.07.

Ac 102.16 “Public accounting firm (PA firm)” means a business entity in which at least a simple majority of the ownership of the firm, in terms of financial interests and voting rights, holds a registration issued under RSA 309-B:9, and is organized as:

(a) A sole proprietor;

(b) A corporation;

(d) A limited liability company, including a professional limited liability company; or

(e) Any other kind of entity authorized or allowed by law.

Ac 102.17 “Semester hour” means the number of hours which a class meets during a single semester, expressed on a per-credit basis, as calculated by the institution offering the course.

PART Ac 103 BOARD ORGANIZATION

Ac 103.01 Members and Officers. Pursuant to RSA 309-B:4, I(a) the board is composed of a total of 7 members who are residents of New Hampshire and have been appointed by the governor with the approval of the council. The membership includes 4 current CPAs, one current public accountant, and 2 public members, all of whom meet the requirements of RSA 309-B:4, I(a).

Ac 103.02 Organization. Every year, the board shall elect or appoint a chairperson, vice-chairperson, and secretary at the first meeting of the board in a calendar year.

Ac 103.03 Meeting Location. Board meetings are held at the place specified in the notice for the particular meeting.

Ac 103.04 Presiding Officer. The board chairperson presides at board meetings. In the absence of the chairperson, the board vice-chairperson presides at meetings. In the absence of both the chairperson and the vice-chairperson, the members present select, by consensus, any other member to act as chairperson for that meeting.

Ac 103.05 Functions of the Board. The duties of the board include:

(a) Adopting rules relative to:

(1) The issuance and renewal of licenses and permits;

(2) Peer reviews;

(3) Disciplinary matters;

(4) Qualifications of applicants;

(5) Establishment of all required fees;

(6) Ethical and professional standards;

(7) Conduct of hearings; and

(8) Any other matters necessary for the proper administration of RSA 309-B;

(b) Actual issuance of licenses and permits to qualified applicants;

(d) All other functions set forth in RSA 309-B.

Ac 103.06 Office Hours, Office Location, Mailing Address and Telephone.

(a) The board’s office is located at the New Hampshire joint board, 57 Regional Drive,
Concord, N.H. and shall be open to the public weekdays, excluding holidays, from 8:00 a.m. to 4:00 p.m.

(b) Correspondence shall be addressed to the board’s executive director at:

New Hampshire Joint Board

57 Regional Drive
Concord, N.H. 03301

PART Ac 104 PUBLIC ACCESS TO INFORMATION

Ac 104.01 Public Access. In accordance with RSA 91-A, any person may examine all public, non-exempt governmental records in the possession of the board, at the offices of the board, between 8:00 a.m. and 4:00 p.m., Monday through Friday.

Ac 104.02 Licensee Access to Information. Any licensee may examine all records of the board with respect to him or herself, except as exempted by law, at the office of the board, between the hours of 8:00 a.m. and 4 p.m. Monday through Friday.

Ac 104.03 Record of Board Actions. Minutes shall be kept of board meetings and of official actions taken by the board. Minutes of board actions which are not confidential under RSA 91-A:3, II or RSA 91-A:5 shall be available for inspection during the board’s ordinary office hours within 5 days from the close the meeting or vote in questions unless the 72 hours availability requirement of RSA 91-A:3, III is applicable.

Ac 104.04 Copies.

(a) At the time and place identified in Ac 103.01, any person examining a document which is a governmental record may request a copy of that document.

(b) The board staff shall make copies of the documents examined and requested under (a) available in accordance with RSA 91-A:4, IV and Ac 104.04.

(c) The fee for copies made by the board staff shall be $.20 per page, payable before such copies are provided to the requestor.

Ac 104.05 Unavailability of Public Records. If the board is unable to make a governmental public record available for immediate inspection and photocopying, then it shall, within 5 business days of request:

(a) Make such record available;

(b) Deny the request in writing with reasons; or

(c) Furnish written acknowledgment of receipt of the request and a statement of the time reasonably necessary to determine whether the request will be granted or denied.

Ac 104.06 List of Licensed Professionals and Exam Candidates.

(a) Any person may request orally, in writing, or electronically that the board provide that person with a complete list of CPAs, PAs, or firms.

(b) The board shall grant the request under (a) if the requestor pays the actual cost of copying and mailing the document.

(1) Bank draft;

(2) Money order;

(3) Certified check;

(4) Business or personal check;

(5) Electronic transfer;

(6) Cash; or

(7) Credit card.

PART Ac 105 MEETINGS, DELIBERATIONS AND DECISIONS

Ac 105.01 Meetings. Regular meetings shall be held at least each month, provided that there is board business to be conducted. Special meetings shall be called by order of the chairperson or secretary. Each member of the board shall be notified in writing of each meeting and such notice shall contain the place, date, time, and subject of the meeting. Notice of meetings shall be posted at the board office and the state house.

Ac 105.02 Quorum. A quorum of the board consists of a majority of the board members then in office, pursuant to RSA 309-B:4, II(b). A vote of the majority of those voting, is necessary for board action on anything requiring a vote of the board.

Ac 105.03 Board Meeting Procedures. The board shall conduct its meetings in the following order:

(a) Interviews/meetings;

(b) Reading of the minutes;

(d) Reading and consideration of applications;

(e) Unfinished business;

(f) New business; and

(g) Adjournment.

Ac 105.04 Procedures. Roberts Rules of Order, 10th edition dated 2000 shall govern the procedures of the board.

Ac 105.05 Tentative Decisions

(a) When necessary to conduct the board’s business in a timely and efficient manner, the board shall instruct its staff or a committee of the board to prepare a draft document, subject to subsequent review and approval by the board. Such instructions shall be known as tentative decisions.

(b) Tentative decisions shall not be final actions, and shall not be binding upon the board. Changes in the form or the substance of a tentative decision shall be made as often as necessary to produce a final document, which satisfactorily sets forth the final result the board intends to reach. The board’s final decision shall be issued only when the necessary majority has voted in favor of the final form of the proposed action, allowing time for printing or servicing the document in question.

PART Ac 106 APPOINTMENT OF COMMITTEES

Ac 106.01 Committees

(a) A committee shall consist of one or more of board members who have been directed by the board to investigate and make recommendations on matters which could be handled by the full board.

(b) When expressly authorized by the board, the authority of a committee shall include:

(1) The retention of voluntary assistance from qualified non-board members; and

(2) The retention of paid advisors or consultants pursuant to RSA 332:G:3.

CHAPTER Ac 200 PRACTICE AND PROCEDURE

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PART Ac 201 PURPOSE AND SCOPE

Ac 201.01 Purpose. The board conducts proceedings for the purpose of acquiring sufficient information to make fair and reasonable decisions on matters within its statutory jurisdiction, including decisions on applications and complaints filed against licensees. The goal of these proceedings is to secure a just, efficient, and accurate resolution.

Ac 201.02 Scope. The rules of this chapter shall apply to all administrative proceedings conducted by the board and shall be in addition to applicable requirements of RSA 541-A.

PART Ac 202 DEFINITIONS

Ac 202.01 Definitions.

(a) “Adjudicative proceeding” means “adjudicative proceeding” as defined in RSA 541-A:1, I, namely, “the procedure to be followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-A:36.”

(b) “Appearance” means a written notification to the board that a party, an intervenor or the representative of a party or intervenor intends to actively participate in an adjudicative proceeding.

(d) “Contested case” means “contested case” as defined in RSA 541-A:1, IV, namely, “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.”

(e) “Declaratory ruling” means, “declaratory ruling” as defined by RSA 541-A:1, V, namely, “a ruling by the board as to the specific applicability of any statutory provision or of any rule or order” of the board.

(f) “Hearing” means the process by which the board receives and considers evidence, argument, or both, by methods appropriate to the circumstances, and includes:

(1) Conducting trial-type evidentiary proceedings;

(2) Directing the filing of exhibits, affidavits, memoranda, briefs, or oral arguments; or

(3) Any combination of these or similar methods.

(g) “Intervenor” means a person without the status of a party but participating in an adjudicative proceeding to the extent permitted by the presiding officer acting pursuant to RSA 541-A:32.

(h) “Motion” means a request to the presiding officer for an order or ruling directing some act to be done in favor of the proponent of the motion, including a statement of justification or reasons for the request.

(i) “Order” means a document issued by the board:

(1) Establishing procedures to be followed in an adjudicative or nonadjudicative proceeding;

(2) Granting or denying a petition or motion;

(3) Requiring a person to do, or to abstain from doing something; or

(4) Determining a person’s rights to a license or other privilege established by RSA 309-B or the rules of the board.

(j) “Party” means “party” as defined by RSA 541-A:1, XII, namely, “each person or agency named or admitted as a party, or properly seeking and entitled as a right to be admitted as a party.” As used in these rules, the term is intended also to include all intervenors, but not witnesses, unless the rule or context clearly indicates otherwise.

(k) “Person” means any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character other than the board.

(l) “Petition” means a written request made outside the context of an adjudicative proceeding and seeking a particular action by the board.

(m) “Presiding officer” means “presiding officer” as defined by RSA 541-A:1, XIV, namely, “that individual to whom the board has delegated the authority to preside over a proceeding, if any; otherwise it shall mean the head of the agency.”

(n) “Probable cause” means that there is an objectively reasonable basis to believe that something is true.

(o) “Proof by preponderance of the evidence” means a demonstration by admissible evidence that a fact or legal conclusion is more probably true than not.

(p) “Public comment hearing” means a proceeding held pursuant to RSA 541-A:11.

(q) “Record” means, in a contested case, the materials set forth in RSA 541-A:31, VI.

(r) “Rulemaking petition” means a petition made pursuant to RSA 541-A:4,I.

PART Ac 203 FILING AND SERVICE OF DOCUMENTS

Ac 203.01 Filing of Documents with the Board.

(a) A document shall be considered filed when it is actually received at the board’s office in Concord and conforms to the requirements of this chapter. A document tendered for filing under this chapter that is patently and facially in violation of the board’s rules shall not be accepted for filing.

(b) All documents filed shall be filed with an original and a copy for each board member who will hear the case. However, only a single copy of correspondence, applications and complaints against licensees shall be filed.

Ac 203.02 Subscription and Veracity of Documents.

(a) All complaints, petitions, motions, and replies filed with the board shall be signed by the proponent of the document or, if the party appears by representative, by the representative.

(b) The applicant’s signature on a document filed with the board shall be certification that:

(1) The applicant has read the document;

(2) The applicant is authorized to file it;

(3) To the best of the applicant’s knowledge, information, and belief, there are good grounds to support it; and

(4) The document has not been filed for purposes of delay or harassment.

(c) A willful violation of (b), above, shall cause the board to issue an order adverse to the party committing the violation.

Ac 203.03 Service of Documents.

(a) Complaints against licensees shall be filed with the board and shall comply with the requirements of Ac 204.02.

(b) All petitions, replies, motions, objections, exhibits, memoranda, or other documents filed in an adjudicative proceeding shall be served by the proponent upon all parties to the proceeding by:

(1) Depositing a copy of the document in the United States Postal Service, first class postage prepaid, addressed to the last address given to the board by the party being served, no later than the day the document is filed with the board; or

(2) Delivering a copy of the document in hand on or before the date it is filed with the board.

(c) Notwithstanding (b) above, petitions for rulemaking and petitions for declaratory rulings shall be filed with the board by the petitioner without service upon other persons and shall comply with the requirements of Ac 214.02.

(d) All notices, orders, decisions, or other documents issued by the board in the course of an adjudicative proceeding shall be served by the board upon all parties to the proceeding by either:

(1) Depositing a copy of the document, first class postage prepaid, in the United States Postal Service, addressed to the last address given to the board by the party being served; or

(2) If a party is not represented, delivering a copy of the document in hand to the party.

(e) When a party authorizes a representative, service shall be upon the representative.

(f) Except for exhibits distributed at a prehearing conference or hearing, every document filed with the board, and required to be served upon the parties to an adjudicative proceeding, shall be accompanied by a certificate of service, signed by the person making service, attesting to the method and date of service, and the persons served.

Ac 203.04 Failure to Comply with Rules.

(a) Failure to comply with the rules of this chapter shall result in:

(1) Refusal of a noncompliant document for filing;

(2) Denial or conditional denial of a noncompliant application, petition, or motion; or

(3) Issuance of an order adverse to noncompliant person.

PART Ac 204 COMPLAINTS, INVESTIGATIONS AND HEARINGS

Ac 204.01 Initiation of Disciplinary Proceedings. The board shall undertake investigations and disciplinary hearings, in response to a written complaint filed in accordance with Ac 204.02 for which probable cause is found by the board or in response to other information that comes to the board’s attention for which probable cause is found by the board.

Ac 204.02 Complaints of Misconduct.

(a) Complaints alleging misconduct by licensees for violations of RSA 309-B:10 or the board’s rules shall be in writing and filed at the board’s offices in Concord, New Hampshire.

(b) A complaint shall contain the following information:

(1) The name, address, home and work telephone number, cellular telephone number, and electronic mail address as applicable of the complainant;

(2) The name address, home and work telephone number, cellular telephone number, and electronic mail address as applicable of the licensee against whom the complaint is directed;

(3) Date, time, place and summary of alleged violation(s);

(4) Name, address, home and work telephone number, cellular telephone number, and electronic mail address as applicable of those having knowledge of the alleged violations;

(5) Specific provision of statute or rule on which the complaint is based; and

(6) Other data pertinent to the complaint.

(c) A complaint that alleges acts of misconduct that occurred more than 4 years before the filing date shall not be accepted unless it also alleges that these acts could not have reasonably been discovered during all or some substantial part of the intervening 4 year period.

(d) A complaint shall be treated as a petition to the board for the commencement of a disciplinary hearing that shall be conducted pursuant to Ac 209.

(e) The licensee shall respond in writing to stated misconduct allegations by addressing each allegation. The licensee shall, within 15 days so respond or submit a written request for more time to respond. Failure to respond or request more time shall result in an order of default, and the board shall then commence and conduct a disciplinary hearing.

(f) The board shall automatically grant one written request for more time to respond to allegations of misconduct pursuant to (e) above. Such extension shall be for the amount of time requested, but shall not exceed 30 days from the date the response was due.

Ac 204.03 Processing of Complaints and Complainant Participation.

(a) Upon receipt of a complaint, the board shall commence an investigation pursuant to Ac 204.04.

(b) The board shall dismiss a complaint at any time for failure to allege misconduct, failure to respond to a request for information, or failure to participate in any investigation or hearing ordered by the board. However, the board shall independently pursue allegations of misconduct alleged against a licensee under its jurisdiction upon receipt of information alleging such misconduct. Such complaint shall also comply with Ac 204.02.

(c) After receiving the investigator’s report, the board shall, with the consent of the licensee and subject to (d) below, enter a settlement agreement that imposes discipline upon the licensee and terminates further disciplinary action in whole or part.

(d) Action under (c) above shall not be taken unless:

(1) The complainant receives notice and an opportunity to submit written comments concerning the proposed settlement or consent decree; and

(2) There are no material facts in dispute between the licensee, the complainant, and intervenor and the proposed discipline would not be greater than foreseen discipline imposed by the board after notice and opportunity for hearing pursuant to Ac 200.

(e) Unless previously settled, a complaint that alleges misconduct, and for which the board finds probable cause, shall be incorporated into a notice of hearing that commences a disciplinary hearing pursuant to Ac 209.02.

(f) When a complaint is the subject of a disciplinary hearing, the notice of hearing shall provide the complainant the opportunity to intervene in the proceeding. A complainant shall have no rights to participate in a disciplinary hearing unless an affirmative election to intervene is made in writing to the board.

Ac 204.04 Investigations.

(a) The board shall conduct such investigations as are necessary to examine allegations of misconduct that come to its attention through complaints or other means.

(b) The board, through its chairperson, shall, pursuant to RSA 309-B:11, I, issue subpoenas in investigations whenever it determines that the investigator needs access to documents, persons, or things that would not otherwise be made available to it in the absence of a subpoena.

(c) The board shall appoint a member of its staff, or one or more of its members, or other knowledgeable person to conduct the investigation. Each board member who participates in an investigation shall not participate in any further actions of the board concerning the subject matter of that investigation.

(d) The type, form, and extent of an investigation shall be determined based upon the following:

(1) The statutory or regulatory authority for the investigation;

(2) Any statutes or rules believed to have been, or about to be, violated;

(3) The identity of the persons, or class of persons, that are subject of the investigation;

(4) The general nature of the conduct being investigated; and

(5) The date by which the investigating officer shall report his or her findings and recommendations to the board.

(e) Investigations shall not commence a disciplinary hearing and shall not constitute a finding of probable cause regarding the alleged misconduct.

(f) When an investigation occurs, an investigator designated by the board shall contact such persons and examine such records and other documents as are reasonably necessary to make a recommendation to the board as to whether there is probable cause to support the allegation(s) of misconduct and commence and conduct disciplinary proceedings.

(g) Investigations, including those based upon allegations in a complaint, shall be conducted on an ex parte basis.

(h) Following the investigation, the investigator shall, pursuant to RSA 309-B:11, II, make a report to the board. Based upon that report the board shall find either probable cause or a lack of probable cause or shall return the report to the investigator for further investigation. If the board finds probable cause, it shall commence and conduct disciplinary proceedings based upon such allegations of misconduct. If the board finds a lack of probable cause, it shall dismiss the complaint.

(j) Investigatory reports and all information gathered by an investigator shall be confidential, provided that:

(1) The investigator’s report shall be made available to the parties in any adjudicative proceeding resulting therefrom; and,

(2) The board shall provide information gathered in disciplinary investigations to:

a. Law enforcement agencies;

b. The accountancy licensing boards or agencies of other jurisdictions;

c. Board investigators or prosecutors;

d. Expert witnesses or assistants retained by board prosecutor or investigators in the same or related disciplinary matters; and

e. Persons to whom the licensee has given a release.

(k) Information gathered during investigations shall not be released to the public until an evidentiary hearing is held or a final settlement or other disposition of such a proceeding is reached, and only to the extent that it is not exempted by any provision of RSA 91-A or is otherwise privileged under law.

PART Ac 205 APPEARANCE BEFORE THE BOARD

Ac 205.01 Representatives.

(a) A natural person appearing before the board may choose to be represented by an individual who:

(1) Is a New Hampshire licensed attorney who has filed a written appearance with the board containing his or her business address and telephone number; or

(2) Is not a New Hampshire attorney, but has filed a written appearance that includes the following:

a. His or her daytime address;

b. His or her daytime telephone number, cellular phone number, or both, if he or she has one or both;

c. His or her electronic email address, if he or she has one;

d. A statement that he or she does not have any criminal convictions that have not been annulled, or, if he or she has any criminal convictions that have not been annulled, a description of all material facts relating to each such conviction;

e. If his or her occupation is regulated by any state or federal entity, a statement that he or she has not been found to have committed misconduct, or if he or she has been found to have committed misconduct, a description of all material facts relating to each finding;

f. A statement identifying each instance in which he or she has represented any other person in any other forum for the 3 years previous to the filing of the appearance;

g. A statement that he or she has never had sanctions imposed upon him or her for his or her conduct in his or her representation, or, if any such sanction has been imposed, a description of all material facts relating to the imposition of every such sanction;

h. A statement as to whether there are any criminal or misconduct proceedings pending against him or her, and if there are, a description of all material facts regarding such charges; and

i. The signatures of the representative and the party to be so represented.

(b) Corporations, partnerships, limited liability companies and other legal entities that are not natural persons shall, pursuant to RSA 309-B:12, III, be represented only by:

(1) An attorney licensed in New Hampshire; or

(2) A duly authorized partner, officer, director, or shareholder member or manager who has filed an appearance as a representative that complies with (a)(2) above.

(d) The representative submitting an appearance pursuant to (a)(2) above shall, pursuant to RSA 311:1, be presumed to be of good character unless the appearance discloses one or more of the following:

(1) He or she has been convicted of any misdemeanor or felony involving dishonesty within the 3 years immediately preceding the filing of the appearance;

(2) He or she has been found to have committed misconduct by an occupational regulatory body of this or any other state or the federal government;

(3) He or she has been sanctioned for his or her actions as a representative in any other forum within the 3 years immediately preceding the filing of the appearance; or

(4) There is any pending criminal or misconduct charges against the representative and such charges relate to honesty.

(e) If an appearance filed pursuant to (a)(2) above discloses any of the circumstances listed in (d) above, the board shall prohibit the person from continuing as a representative in the proceeding and shall notify the person .

(f) The board shall, after providing notice and opportunity for hearing, restrict an individual from acting as a representative before the board when the representative’s behavior obstructs the process.

PART Ac 206 PLEADINGS AND MOTIONS

Ac 206.01 Pleadings.

(a) The only pleadings permitted shall be petitions, other than for rulemaking, and replies to petitions. Complaints, motions, and applications for licensure shall not be considered pleadings.

(b) Petitions shall be in writing and contain:

(1) The name and address of the petitioner;

(2) The name and address of the petitioner's representative, if any;

(3) A concise statement of the facts that warrant the relief requested from the board;

(4) The description of the action that the petitioner wishes the board to take;

(5) A citation to any statutes, rules, orders, or other authority that the petitioner believes entitles him or her to request that the board take the action described in (4) above; and

(6) The petitioner’s signature and the date of signature.

(1) The name and address of the respondent;

(2) The name and address of the representative of the respondent, if any;

(3) A statement admitting or denying each fact alleged in the petition;

(4) A statement admitting or denying the authority identified by the petitioner pursuant to Ac 206.01(b)(5);

(5) A concise statement of any additional or different facts that warrant the board to act in the manner requested by the respondent;

(6) A citation to any statutes, rules, orders or other authority, not identified in the petition, that the respondent believes has a bearing upon the subject matter of the petition;

(7) A description of the action which the respondent wishes the board to take; and

(8) The respondent’s signature and the date of signature.

(d) Replies shall be filed within 20 days from the date of the petition unless otherwise ordered by the board.

(e) Any fact contained in the petition which is not denied in the reply, shall be deemed admitted by the respondent for purposes of the petition. A statement that the respondent lacks sufficient knowledge to admit or deny shall be treated as a denial. The petitioner shall be presumed to deny all allegations in the reply, and no response shall be permitted to the reply.

(f) After receipt of a petition that complies with (b) above and any replies that comply with (c) – (e) above, the board shall review the documents and grant or deny the petition in whole or in part. Such decision shall be based upon the board’s judgment as to whether the petition is consistent with and best implements the purposes of RSA 309-B.

Ac 206.02 Motions and Objections Thereto.

(a) Unless presented during an oral session of a proceeding, all motions and objections shall be in writing.

(b) Each motion shall state clearly and concisely:

(1) The purpose;

(2) The relief sought;

(3) The statutes, rules, orders, or other authority authorizing the relief sought; and

(4) The facts claimed to constitute grounds for the relief.

(1) The defense of the party filing the reply;

(2) The action that the party filing the reply wishes the board to take;

(3) The statutes, rules, orders, or other authority authorizing the action in sought; and

(4) Any facts that are additional to, or different from, the facts stated in the motion or petition.

(d) An objection to a motion shall specifically admit or deny each fact contained in the motion. Failure to deny a fact contained in the motion shall constitute the admission of that fact for the purpose of the objection. In the event a party filing an objection to a motion lacks sufficient information to either admit or deny a fact contained in the motion, the party shall so state, specifically identifying such fact.

(e) Motions shall be decided upon the writings submitted and oral argument, if the board determines that oral argument would assist the board in reaching a decision regarding a petition or motion. Repetitious motions shall not be submitted.

(f) Board decisions on motions shall be made as soon as practicable after the filing of the motion.

PART Ac 207 TIME PERIODS

Ac 207.01 Computation of Time. Any time period specified in an order shall begin with the day following the act, event, or default, and shall include the last day of the period, unless it is Saturday, Sunday, or state legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or state legal holiday. When the period prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and state legal holidays shall be excluded from the computation.

Ac 207.02 Change in Allowed Times. A motion for a change of time shall be granted upon concurrence of all parties.

Ac 207.03 Limitations. A motion to change time shall be filed at least 3 business days prior to the event in question.

PART Ac 208 PRESIDING OFFICER

Ac 208.01 Designation.

(a) Adjudicative proceedings commenced by the board shall be conducted by a presiding officer.

(b) The board shall appoint a board member or members of the board’s staff to serve as presiding officer.

(c) The presiding officer shall serve in a conscientious and truthful manner or shall be removed by the board without notice or hearing.

Ac 208.02 Authority of Presiding Officer.

(a) The presiding officer shall possess all authority with respect to the procedural aspects of adjudicative proceedings that would be possessed by the board itself, including, but not limited to, the power to administer oaths and affirmations, direct the course of the proceedings, and decide procedural and discovery issues. However, subpoenas shall be issued only by the board, pursuant to RSA 309-B:12, III.

(b) The presiding officer shall receive no evidence or oral argument on the merits of the case unless at least 4 board members eligible to hear and decide the case, including the presiding officer if the presiding officer is a board member, are present.

(c) The presiding officer shall, to the extent consistent with the fair and orderly conduct of the proceeding, permit board members who are present during any stage of an adjudicative proceeding to query the witnesses.

(d) The presiding officer shall not accept final offers of settlement or impose consent decrees, but shall assist the participants in reaching proposed settlements. When a settlement has been proposed in writing, the presiding officer shall refer it to the board for decision, but shall not stay the proceeding while the board is deliberating the settlement proposal.

(e) The presiding officer shall not decide motions or enter orders that finally resolve the proceeding or stay the proceeding for more than 30 days. Potentially dispositive motions shall be referred to the board or deferred until the close of the record.

(f) If the presiding officer believes that a default or similar final order should enter against a party, the presiding officer shall issue a written recommendation to the board, with service on each party, and the board shall take appropriate action after allowing the parties 10 days to file objections thereto.

Ac 208.03 Exceptions to Rulings By the Presiding Officer.

(a) There shall be no interlocutory appeal to the board of procedural or discovery orders made by the presiding officer.

(b) After the close of the record, the parties and intervenors shall be provided 10 days to submit written exceptions to rulings of the presiding officer. The board shall rule upon any such exceptions and shall reopen or modify the record, if necessary or appropriate to effect relief.

Ac 208.04 Withdrawal of Presiding Officer.

(a) Upon his or her own initiative or upon the motion of any party, the presiding officer shall withdraw from any adjudicative proceeding for good cause.

(b) Good cause shall exist if the presiding officer:

(1) Has a direct interest in the outcome of the matter, including but not limited to, a financial, business, or family relationship with any party to the proceeding;

(2) Has made statements or engaged in behavior that objectively demonstrates that he or she has prejudged the facts of the case; or

(3) Personally believes that he or she cannot fairly judge the facts of the case.

(c) Mere knowledge of the issues or acquaintance with any party or witness shall not constitute good cause for withdrawal.

PART Ac 209 COMMENCEMENT OF ADJUDICATIVE PROCEEDINGS

Ac 209.01 Scope. This part shall apply to and govern all adjudicative proceedings commenced by the board and shall not apply to rulemaking or declaratory ruling proceedings.

Ac 209.02 Commencement.

(a) The board shall commence an adjudicative proceeding by issuing a notice to each party and to each complainant, if any, at least 15 days before any prehearing conference and at least 30 days before any hearing.

(b) The notice commencing an adjudicative proceeding shall:

(1) Identify the parties to the proceeding as of the date of the order, inform each complainant of their right to intervene, and specify a deadline for the submission of petitions to intervene or statements by complainants that they intend to intervene;

(2) Briefly summarize the subject matter of the proceeding, and identify the issues to be resolved;

(3) Include as an attachment any complaint against the licensee that forms, in whole or in part, the basis of the issues to be resolved;

(4) Specify the statutory authority for the proposed action, and identify any applicable board rules;

(5) Include as an attachment a copy of the board’s rules that govern the proceeding;

(6) Specify the type of procedures to be followed;

(7) Specify the date by which, and the address where, appearances or motions by representatives shall be filed;

(8) Specify the date, time, and location of an initial prehearing conference or dates for an oral hearing;

(9) Identify the presiding officer for the proceeding if other than the chairperson of the board;

(10) Identify any confidentiality requirements applicable to the proceeding;

(11) Indicate that each party has the right to be represented by an attorney but that such representation shall not be at the expense of the board;

(12) Indicate that each party has the right to have the board arrange to have a certified shorthand court reporter present, at the requestor’s expense, provided that such request is submitted at least 10 days prior to the proceeding and that if such an election is not made, then, pursuant to RSA 310-B:12, VII, a stenographic or electronic record will be made and filed with the board; and

(13) Contain such other information as the circumstances of the case may warrant including, but not limited to, orders consolidating or severing issues in the proceeding with other proceedings or orders directing the production of documents.

Ac 209.03 Docketing, Service of Notice, Public Notice.

(a) The board shall assign each adjudicative proceeding a docket number, and serve the hearing notice upon all parties to the proceeding. The hearing notice, including any attachments, shall be served upon the respondent by means of certified mail.

(b) Service of all subsequent orders, decisions and notices issued by the board, including any amendments to the hearing notice, shall be served upon the parties, by first class postal mail.

(c) Orders, notices, and decisions of the board, and motions, memoranda, exhibits, and other documents and data submitted to the board in a docketed case shall be kept in a docket file and made available for public inspection in the board’s office except to the extent that confidentiality has been provided for under any provision of applicable law.

Ac 209.04 Intervention.

(a) Petitions for intervention may be filed any time after the issuance of a notice pursuant to Ac 209.03(a).

(b) A person petitioning for intervention pursuant to (a) above shall include the following in such a petition:

(1) How the petitioner’s rights, duties, privileges, immunities or other substantial interests might be affected by the hearing, or how the petitioner qualifies for intervention under any provision of law;

(2) Why the interests of the parties and the orderly and prompt conduct of the proceeding would not be impaired; and

(3) Any other reasons why the petitioner should be permitted to intervene.

(c) Petitions for intervention shall be granted if the petitioner’s rights, duties, privileges, immunities or other substantial interest might be affected by the hearing or if the petitioner qualifies for intervention under any provision of law.

(d) Orders granting intervention shall be subject to modifications pursuant to RSA 541-A:32.

(e) As provided in Ac 209.02(a), a person filing a complaint that becomes the subject of a disciplinary hearing shall be served with the hearing notice and notified of the right to intervene in the proceeding.

(f) Unless the complainant submits a petition for intervention that is granted or the complainant is called as a witness in the proceeding, the complainant shall have no role in the proceeding.

(g) Once granted leave to intervene and participate in the proceeding, an intervenor shall take the proceeding as they find it and no portion of the proceeding shall be repeated because of the fact of intervention.

Ac 209.05 Rights to Representation.

(a) Any party in an adjudicative proceeding may be represented, subject to complying with the requirements of Ac 205.01 at the earliest date practicable.

(b) Requests to the board to appoint counsel or otherwise arrange for representation shall be denied and the board shall assume no responsibility for expenses of any party.

Ac 209.06 Discovery and Disclosure.

(a) At least 15 days prior to the hearing, licensee who is the subject of a complaint shall, pursuant to RSA 309-B:12, II, have the opportunity examine and copy the report of investigation, if any, and any documentary or testimonial evidence and summaries of anticipated evidence in the board’s possession relating to the subject matter of the complaint.

(b) Upon the written request of any party, the board shall disclose to each party any non-privileged information in the possession of the board and pertinent to the subject matter of the proceeding. Neither the board nor any officer or employee thereof, shall be subject to further discovery.

Ac 209.07 Subpoena.

(a) A subpoena for the attendance of witnesses or the production of evidence in disciplinary proceedings shall, pursuant to RSA 309-B:12, III, be issued only upon the order of the board.

(b) A subpoena shall be issued on the initiative of the board or in response to the motion of a party.

(c) A party who moves for a subpoena shall attach a copy of the proposed subpoena to the motion. The requesting party shall be responsible for the service of the subpoena and payment of any witness fee and mileage expenses that may be required.

(d) The person to whom the subpoena is directed may, within 10 days after service of the subpoena, or before the date specified by the board in the subpoena for compliance therewith, whichever is earlier, file a motion to quash or modify the subpoena.

(e) If the motion to quash or modify the subpoena fails to refute the rationale for the subpoena and the motion is denied, in whole or in part, the person to whom the subpoena is directed shall comply with the subpoena, within the time prescribed in the subpoena, unless the board expressly provides additional time to comply.

(f) A subpoena shall be served by any person who is 18 years of age or older, and in the manner authorized for service of subpoenas in the New Hampshire superior court. The fact of service shall be written on the reverse of the original copy of the subpoena by the person making service and a copy shall be immediately returned to the board by the person making service.

(g) Should any person fail to comply with a subpoena issued pursuant to this section, the board shall either enter an order adverse to the party who fails to comply, or direct the party on whose behalf the subpoena was issued, to seek judicial enforcement of the subpoena.

Ac 209.08 Ex Parte Communications. Once a notice of hearing has been issued in an adjudicative proceeding, no party shall communicate with any member of the board or the presiding officer who will render a decision in the case concerning the merits of the case except upon notice to the other parties and an opportunity for such party or parties to participate. In accordance with the rules of this chapter, no party shall cause another person to make such communications or otherwise engage in conduct prohibited by RSA 541-A:36.

Ac 209.09 Consolidation. Whenever it shall appear to the board, upon motion or its own initiative, that 2 or more proceedings involve substantially similar or substantially related issues, the board shall, as fairness and efficiency permit, consolidate those proceedings for hearing, or decision, or both.

Ac 209.10 Severance. Whenever it shall appear to the board, upon motion or its own initiative, that injury to the substantial rights of a party or undue delay may be thereby avoided, the board shall, as fairness and efficiency permit, sever one or more issues from a proceeding, and dispose of those issues in another proceeding.

Ac 209.11 Waivers. The presiding officer, upon his or her own initiative or upon the motion of any party, shall suspend or waive any requirement or limitation imposed by this chapter upon reasonable notice to affected persons when the proposed waiver or suspension appears to be lawful, and would be more likely to promote the fair, accurate and efficient resolution of issues pending before the board than would adherence to a particular rule or procedure.

PART Ac 210 ADJUDICATIVE PROCEEDING PROCESS

Ac 210.01 Prehearing Conferences.

(a) The board shall, upon its own initiative or upon motion, encourage all parties to attend one or more prehearing conference(s) to aid in the disposition of the proceeding.

(b) The following shall be considered at a prehearing conference:

(1) Opportunities and procedures for settlement;

(2) Opportunities and procedures for simplification of the issues;

(3) Possible amendments to the pleadings;

(4) Possible admissions of facts and of documents to avoid unnecessary proof;

(5) Possible limitations on the number of witnesses;

(6) Possible changes to the standard procedures that would otherwise govern the proceeding;

(7) The distribution of written testimony, if any, and exhibits to the parties;

(8) Possible consolidation of the examination of witnesses by the parties; and

(9) Any other matters that might contribute to the prompt and orderly conduct of the proceedings.

(c) The board shall cause prehearing conferences to be recorded unless all parties wish to discuss possible settlement off the record. Matters decided at a prehearing conference shall be reflected in an appropriate order.

Ac 210.02 Burden of Proof. The party asserting the affirmative of a proposition and each movant shall have the burden of proving the truth of that proposition by a preponderance of the evidence.

Ac 210.03 Methods of Proceeding.

(a) Where there are no disputes as to the material facts involved in the subject matter of the proceeding, offers of settlement shall be entertained.

(b) Where facts material to the subject matter of the proceedings are in dispute, the proceeding shall consist of a trial-type evidentiary hearing with the subsequent submission of memoranda as appropriate.

(c) Oral argument and brief opening and closing statements shall be permitted when requested in a written motion that includes the proposed arguments. Written arguments in the form of legal briefs or memoranda shall be permitted subject to such filing schedules that allow for timely hearing, adequate preparation time for parties’ response.

(d) The board shall schedule a hearing or require the submission of additional evidence at any time, including the ordering of supplemental hearings if the board determines that such are necessary for a full and true disclosure of the facts of the case.

Ac 210.04 Evidence.

(a) Proceedings shall not be conducted under the rules of evidence but, pursuant to RSA 541-A:33, II, the evidentiary privileges recognized by the law of New Hampshire shall apply to proceedings under this chapter.

(b) All data that will reasonably assist the board arrive at the truth shall be admissible, except that irrelevant, immaterial, or unduly repetitious evidence shall be excluded.

(d) If the board takes official notice of a fact, it shall so state, and permit any party the opportunity to show the contrary.

(e) Witnesses appearing before the board shall testify under oath or affirmation administered by the presiding officer.

(f) The board shall cause a tape recording or stenographic record to be made of hearings and prehearing conferences but in a disciplinary hearing the record shall be made by a certified shorthand court reporter at the request and expense of a party. This record shall not be transcribed unless a request is made by a party who agrees to pay the cost of the transcription, or unless the board elects to transcribe the record on its own initiative, in which case any party who requests a copy of the transcript shall pay copying costs, only.

Ac 210.05 Continuances.

(a) Any party to a hearing may make an oral or written motion that a hearing be postponed to a later date or time.

(b) If a continuance is requested pursuant to (a) above, it shall be granted if the presiding officer determines that good cause has been demonstrated. Good cause shall include the unavailability of any party, witness, attorney, or other representative necessary to conduct the hearing, the likelihood that a hearing will not be necessary because the parties have reached a settlement or any other circumstances that demonstrate that a continuance would assist resolving the case fairly.

(c) If the later date, time, and place are known at the time of the hearing that is being postponed, the date, time and place shall be stated on the record. If the later date, time and place are not known at the time of the hearing that is being postponed, the presiding officer shall issue a written scheduling order stating the date, time and place of the postponed hearing as soon as practicable.

Ac 210.06 Inquiry By Board Members. Except as provided by RSA 309-B:12, IV, and subject to the direction of the presiding officer who shall regulate the time and manner of speaking in an orderly fashion, board members present during and participating in an adjudicative proceeding shall question witnesses and make such inquiry of witnesses, as they believe appropriate for a full and true disclosure of the facts of the case.

Ac 210.07 Proposed Findings of Fact and Conclusions of Law. Each party may submit written proposed findings of fact and conclusions of law. The board shall include individual rulings upon each such proposed finding or conclusion as part of its final decision.

PART Ac 211 DECISIONS AND ORDERS

Ac 211.01 Decisions and Orders.

(a) The board shall issue a decision and order based on:

(1) A hearing attended by a quorum of the board; or

(2) A written proposed settlement agreement.

(b) The decision and order shall be in writing and dated.

(c) A board member shall not participate in rendering a decision if he or she has not personally been present to hear all of the testimony in the case, unless the disposition does not depend on the credibility of any witness and the record provides a reasonable basis for evaluating all testimony and other evidence.

(d) If a presiding officer has been delegated the authority to draft a proposed decision and order, the presiding officer shall submit to the board a written proposed decision and order containing:

(1) The disposition proposed by the presiding officer;

(2) A statement of the reasons for the proposed disposition;

(3) Findings of fact and rulings of law necessary to the proposed disposition; and

(4) Any order necessary to effectuate the disposition.

(e) If a proposed disposition submitted pursuant to paragraph (d) is adverse to any party, the board shall:

(1) Serve a copy of it on each party and intervenor; and

(2) Provide an opportunity to file objections and present briefs and oral arguments to the board.

(f) The board shall keep a final decision in its records for at least 5 years following their dates of issuance, unless the director of the division of records management and archives of the department of state sets a different retention period pursuant to rules adopted under RSA 5:40.

PART Ac 212 VOLUNTARY LICENSE SURRENDER

Ac 212.01 Voluntary Surrender by Licensees. A licensee who is the subject of a complaint, investigation, or hearing regarding allegations of misconduct may, as part of a settlement resolving the issues of the complaint or investigation, voluntarily surrender the license by delivering it to the board and stating in writing that:

(a) The surrender is freely rendered;

(b) The licensee is not being subjected to coercion or duress;

(d) The licensee is aware that there is presently pending a complaint or an investigation, the nature of which the licensee shall specifically set forth; and

(e) The licensee acknowledges that the material facts upon which the complaint is predicated are true.

PART Ac 213 RECONSIDERATION AND STAY

Ac 213.01 Motion for Reconsideration.

(a) Within 30 days after service of an adjudicative decision and order of the board, any party may file a motion for reconsideration. No distinction shall be made between the terms “reconsideration” and “rehearing” for purposes of RSA 541:3.

(b) A motion for reconsideration of a proposed board order shall comply with Ac 206.02(a) and (b).

(1) Identify each error or mistake of fact, each error or mistake of law, and each error of reasoning that the movant wishes to have reconsidered;

(2) Set forth fully every ground upon which it is claimed that the decision or order is unlawful or unreasonable;

(3) State concisely the factual findings, reasoning or legal conclusion proposed by the movant; and

(4) Include any argument or memorandum of law the movant wishes to file.

(d) A motion for reconsideration shall be granted if it demonstrates that the board’s decision or order is unlawful or unreasonable, or based upon a mistake of fact or law.

(e) An adjudicative decision and order of the board shall be final 30 days after the date it is served upon the parties pursuant to Ac 203.03(d) if no party files a motion for reconsideration. However, if any party files a motion for reconsideration, the adjudicative decision and order of the board issued subsequent to such motion shall be final on the date it is served upon the parties pursuant to Ac 203.03(d).

(f) Pursuant to RSA 541:6, a final decision may be appealed to the superior court within 30 days.

Ac 213.02 Reconsideration on the Board’s Own Motion.

(a) Within the time frame specified in Ac 213.01(b), the board shall reconsider, revise, reverse or affirm any final action on its own motion.

(b) If reconsideration is based upon the existing record, prior notice shall not be given to the parties. If the board believes further argument or evidence should be considered to eliminate a possible mistake of fact or conclusion of law, an appropriate order providing the parties and intervenors with notice and opportunity to be heard shall be issued before any revision is made in the board’s previous action.

Ac 213.03 Stay of Board Orders.

(a) A stay of board action shall be specifically requested. The mere filing of a motion for reconsideration shall not operate as a stay of any order, but a motion for stay may be combined with a motion for reconsideration.

(b) A motion for stay shall be granted only if it is filed with a motion for reconsideration and within the time period specified by Ac 213.01(b). Such a motion for stay shall be granted if the board determines that the licensee would suffer irreparable harm and the movant demonstrates a likelihood of success with respect to the motion for reconsideration. If granted, a stay shall remain in effect unless and until the board denies the motion for reconsideration.

(c) The board, acting on its own motion, shall stay the effect of any board order to allow submission of additional exhibits or testimony within the time period specified in Ac 213.01(b).

PART Ac 214 RULEMAKING

Ac 214.01 How Adopted. A board rule, or any amendment or repeal thereof, shall be proposed, adopted, and filed in accordance with RSA 541-A:5 through RSA 541-A:16 for 8-year and non-expiring rules, RSA 541-A:18 for emergency rules, and RSA 541-A:19 for interim rules.

Ac 214.02 Petition for Rulemaking.

(a) Any person may request the board to commence a proceeding for the purpose of adopting, amending, or repealing a rule by filing a written petition that contains:

(1) A statement of the petitioner’s request for the proposed rule;

(2) The text of the proposed rule or a statement of the particular results intended by the petitioner’s interest in the subject matter of the proposed rule;

(3) An identification of the particular rule sought to be amended or repealed;

(4) Any data or argument the petitioner believes would be useful to the board in deciding whether to commence a rulemaking proceeding; and

(5) Name, address, signature of petitioner and date of signature.

Ac 214.03 Disposition of Petitions for Rulemaking.

(a) The board shall request additional information or argument from the petitioner for rulemaking or from others if such additional information or argument is required to reach a reasoned decision.

(b) The board shall grant the petition for rulemaking unless the adoption, amendment, or repeal sought would result in:

(1) A rule that is not within the rulemaking authority of the board;

(2) Duplication of a rule or of a statutory provision;

(3) Inconsistency between the existing rules and the statutory mandate of the board;

(4) Inconsistency of administrative rules one with another; or

(5) Excessive burden upon the board in terms of cost or a reduction in efficiency or effectiveness.

(1) By notifying the petitioner that the petition is granted and beginning rulemaking proceedings as required by RSA 541-A:4; or

(2) By notifying the petitioner in writing that the petition is denied and the reasons for its denial.

(d) The denial of a petition for rulemaking shall not entitle the petitioner to a hearing.

Ac 214.04 Requests for Explanation of Adopted Rules. Any interested person may, within 30 days of the final adoption of a rule, request a written explanation of that rule by making a written request to the board including:

(a) The name and address of the individual making the request; or

(b) If the request is that of an organization or other entity, the name and address of such organization or entity and the name and address of the representative authorized by the organization or entity to make the request.

Ac 214.05 Contents of Explanation. The board shall, within 90 days of receiving a request in accordance with Ac 214.04, provide a written response which:

(a) Concisely states the meaning of the rule adopted;

(b) Concisely states the principal reasons for and against the adoption of the rule in its final form; and

PART Ac 215 DECLARATORY RULINGS

Ac 215.01 Petitions.

(a) Any person may request a declaratory ruling from the board on matters within its jurisdiction by filing an original and 11 copies of a petition pursuant to Ac 206.01(b).

(b) Such a petition shall also set forth the following information:

(1) The exact ruling being requested;

(2) The statutory and factual basis for ruling, including any supporting affidavits or memoranda of a law; and

(3) A statement as to how and why the issuance of a ruling on this subject would benefit the petitioner.

Ac 215.02 Action on Petitions.

(a) The petitioner shall provide such further information or participate in such evidentiary or other proceedings as the board shall direct after reviewing the petition and any replies received.

(b) Upon review and consideration, the board shall within 90 days respond to the petition giving its decision in writing.

New Hampshire Joint Board

57 Regional Drive Concord, N.H. 03301

PART Ac 105 MEETINGS, DELIBERATIONS AND DECISIONS

57 Regional Drive
Concord, N.H. 03301