Opinion of the Justices

• Decision Date: 16 January 1978
• Docket Number: No. 7958,7958
• Citation: 381 A.2d 1204,118 N.H. 7
• Parties: OPINION OF THE JUSTICES.
• Court: New Hampshire Supreme Court

Page 1204

381 A.2d 1204

118 N.H. 7

OPINION OF THE JUSTICES.

No. 7958.

Supreme Court of New Hampshire.

Jan. 16, 1978.

George B. Roberts, J., speaker of the house of representatives, by Michael R. LaFontaine, Concord, Michael F. Sullivan, and Frederick J. Griffin, filed memorandum of law.

David H. Souter, Atty. Gen., and Anne E. Cagwin, Concord, filed memorandum listing constitutional and statutory references.

Request of Governor and Council

The following resolution was adopted by the Governor and Council on November 30, 1977, and filed with the supreme court on December 1, 1977:

"WHEREAS, the Congress of the United States on January 4, 1975 enacted Part C of Subchapter XIII of the Public Health Service Act, 42 U.S.C. § 300 m et seq., entitled State Health Planning and Development and provided therein at 42 U.S.C. 300 m-4, for the grant of federal funds to State health planning and development agencies which have been designated in accordance with the act;

"WHEREAS, the Act provides at 42 U.S.C. § 300 m(a) that the 'secretary shall enter into and renew agreements (described in subsection (b) of this section) for the designation of a State health planning and development agency . . .' and at subsection b(1) provides that a 'designation agreement under subsection (a) . . . is an agreement with the Governor of a State for the designation of an agency (selected by the Governor) of the government of that State as the State health planning and development agency . . . to administer the State administrative program . . . and carry out the State's health planning and development functions . . .'

"WHEREAS, by Laws 1977, Chapter 600 of the New Hampshire Legislature enacted the Budget Act for fiscal years 1978-79, footnote 62 of which reads as follows:

'Office of Health Planning and Development. Amend RSA 126-A by inserting after Section 57 the following new subdivision:

'126-A:58 Office Established Office of Health Planning. There is hereby established an Office of Health Planning and Development under the Commissioner. Said Office shall consist of a Director and such technical staff as are required to carry out the functions of Public Law 93-641 and amendment thereto.

'126-A:59 Office to Implement and Coordinate the National Health Planning and Resources Development Act of 1974 (Public Law 93-641). The Governor shall designate the Department of Health and Welfare to administer the provisions of Titles XV and XVI of the United States Public Health Service Act, as amended, and as it relates to the Office of Health Planning and Development. The Director is hereby authorized to receive and expend federal funds under said Act in accordance with State administrative procedures.

'126-A:60 Director. There shall be a Director of the office who shall be a classified State employee. The Director shall have professional training in a health management discipline, with a minimum of 5 years experience in health care administration at patient care level or any equivalent combination of 7 years professional education and experience in health care management.'

"WHEREAS, the State agency presently performing the functions prescribed in 42 U.S.C. § 300 k-n, pursuant to an agreement between the Governor and the Secretary is the Office of Health Planning and Development;

"WHEREAS, the Governor does not desire to select the Department of Health and Welfare as the agency to include and supervise the Office of Health Planning and Development, which would have the effect of selecting the Department of Health and Welfare to carry out the State's health planning and development functions under 42 U.S.C. § 300 m(a);

"WHEREAS, it is a matter of great importance to provide legal authority, for the expenditure of funds necessary to carry on the functions of the designated agency, under which the Governor and Council may approve warrants pursuant to Article 56, Part II of the New Hampshire Constitution; and

"WHEREAS, the action of the Legislature in directing the Governor to select the Department of Health and Welfare as the designated agency presents a solemn occasion on which important questions of law arise in that such action may be an unconstitutional exercise of legislative power under Article 37, Part I of the New Hampshire Constitution and Article VI of the United States Constitution;

"NOW, THEREFORE, BE IT RESOLVED, that the Justices of the Supreme Court of New Hampshire be respectfully requested to give their opinions under Article 74, Part II of the New Hampshire Constitution on the following questions of law:

"(1) Does the New Hampshire Constitution, Part I, Article 37, preclude the Legislature from requiring the Governor to make a particular designation of an agency to include the Office of Health Planning and Development pursuant to 42 U.S.C. § 300 m(b)(1)?

"(2) If the answer to question 1 is in the negative, does the Supremacy Clause of the Constitution of the United States, Article VI, or 42 U.S.C. § 300 m(b)(1), read with the Supremacy Clause, preclude the Legislature from requiring the Governor to make a particular designation of an agency to include the Office of Health Planning and Development pursuant to 42 U.S.C. § 300 m(b) (1)?

"(3) If the answer to either question 1 or question 2 is in the affirmative, has the Legislature, by attempting to require the Governor in the manner described above precluded acceptance of the federal funds to underwrite the operation of the Office of Health Planning and Development except upon the Governor's designation of the Department of Health and Welfare to include that Office?

"AND BE IT FURTHER RESOLVED that the Secretary of State be, and hereby is directed to deliver ten copies of this Resolution to the Clerk of the Supreme Court of New Hampshire."

The following answers were returned:

To His Excellency the Governor and the Honorable Council:

The undersigned, justices of the supreme court, return the following reply to the questions presented in your resolution adopted November 30, 1977, and filed in this court on December 1, 1977.

Pursuant to article 74, part II of the New Hampshire Constitution you inquire:

"(1) Does the New Hampshire Constitution, Part I, Article 37, preclude the Legislature from requiring the Governor to make a particular designation of an agency to include the Office of Health Planning and Development pursuant to 42 U.S.C. § 300 m(b)(1)?

(2) If the answer to question 1 is in the negative, does the Supremacy Clause of the Constitution of the United States, Article VI, or 42 U.S.C. § 300 m(b) (1), read with the Supremacy Clause, preclude the Legislature from requiring the Governor to make a particular designation of an agency to include the Office of Health Planning and Development pursuant to 42 U.S.C. § 300 m(b)(1)?

(3) If the answer to either question 1 or question 2 is in the affirmative, has the Legislature, by attempting to require the Governor in the manner described above precluded acceptance of the federal funds to underwrite the operation of the Office of Health Planning and Development except upon the Governor's designation of the Department of Health and Welfare to include that Office?"

The dispute is over the question whether the legislature has the authority to direct the manner in which federal funds available to the State for health planning and development are to be expended in this State for those purposes, and whether section 62 of the recently enacted appropriations act, ch. 600, 1977 N.H.Laws (hereinafter Budget Act), is in conflict with the supremacy clause of the Constitution of the United States. Your inquiry relates to your duty to approve warrants for the expenditures of funds pursuant to article 56, part II of the New Hampshire Constitution.

I

Background. The National Health Planning and Resources Development Act of 1974, Pub.L. No. 93-641, 88 Stat. 2225 (codified at 42 U.S.C.A. § 300k et seq. (Supp.1977)), took effect on January 4, 1975. That act restructured the delivery of health services in the States by consolidating a multitude of preexisting federal programs dealing with planning, resource allocation and regulation in the health care field into a unified system. Section 1521 of the act, 42 U.S.C.A. § 300m (Supp.1977), requires each participating State to establish a State health planning and development agency as one of the principal vehicles by which health planning and regulation is executed. The creation of this agency in conformity with the federal act is a precondition for the continued eligibility of State and local agencies and health care facilities within the State for a variety of federal assistance programs including medicare and medicaid reimbursements. 42 U.S.C.A. § 300m(d) (Supp.1977).

The memorandum of the Speaker of the House relates the following executive branch action:

In July 1976, New Hampshire Executive Order 76-12 designated the Office of the Governor as the State Health Planning and Development Agency and created within that office the office of health planning and development "to discharge the responsibilities assigned to the Executive Department under this Order." In August 1976, the Governor submitted to the Secretary of Health, Education and Welfare the State's "Application for Conditional Designation of its State Health Planning and Development Agency." In October 1976, the Governor entered into a conditional Designation Agreement with the Secretary of Health, Education and Welfare under which the Office of Health Planning and Development was authorized to discharge the functions of the State agency under section 1523 of the federal act, 42 U.S.C.A. § 300m-2 (Supp.1977).

In April 1977, Executive Order 76-12 was rescinded by Executive Order 77-2 which designated the office of the commissioner of the department of health and welfare as the State Health Planning and Development Agency and which created within that office the office of health planning and development "to discharge the...