Deregulation will take center stage in 2012 legislative session
“No requirement” could be the theme of the legislation that may emerge from this year’s libertarian-tinged legislative session, at least as far as business is concerned.As the New Hampshire Legislature looks past the budget to focus on regulations in the 2012 session, bills will be considered that call for: • No requirement for an employer to offer a lunch break, or to pay someone with a paper check • No requirement for a utility to use solar energy, or to pay for the right to pollute • No requirement for municipalities to provide workforce housing, or for absentee landlords to tell you where they can be reached • No requirement for health care facilities to apply for a state certificate of need if they want to expand • No requirement for the state to follow several federal laws, including the Patient Protection and Affordable Care ActOf course, there are exceptions to the rule, as seen in both the dozens of business-related bills remaining from last session that lawmakers are dealing with this month, as well as the more than 300 new business-related bills that they will tackle this year.There may be more requirements for mortgage companies, for instance. Employers might have to disclose noncompete clauses in their contracts. Nonprofit hospitals might have to pay more property taxes. Retailers might even be required to accept return merchandise.But the general trend will be less regulation, not more. And while most business groups say this is what they want, some have vehemently opposed removing certain regulations that they have been living with for decades.Witness the opposition by beauticians to a bill that would no longer require licensure, forcing even this Legislature to back off on deregulation and ditch House Bill 446 on a vote take during the first week of the session.Or take workforce housing. Under current law, municipalities have to plan to make room for affordable housing, a mandate strongly supported by the Business and Industry Association of New Hampshire, which it sees as allowing employees to afford to live near where they work.Under HB 1282, there would be a workforce housing law, but only if the locality approves of it.The BIA’s other big priority has to do with a rewrite and simplification of the limited liability corporation law (Senate Bill 203), though its sponsor, Majority Leader Sen. Jeb Bradley, R-Wolfeboro, noted wryly that the bill is 56 pages long.The other major thing the BIA is hoping for is a doubling of the research and development tax credit to $2 million in the aggregate.Tax relief?But in a press conference before the session, House Speaker William O’Brien, R-Mont Vernon, warned businesses that it shouldn’t expect much in the way of tax relief, given the state’s looming deficit.Indeed, Rep. Neal Kurk, R-Weare, is sponsoring HB 1641, which would limit the carryforward of certain net operating loss deductions to $10,000 for each new job created.”Business won’t like this,” said Kurk, “but the public will, as it will result in more job opportunities.”There is a little nibbling at the edges when it comes to taxes. Under HB 1221, Rep. Dan McGuire, R-Epsom, would enable businesses to apply the business enterprise tax credit on a quarterly basis, while under HB 1418, Rep. Frank Sapareto, R-Derry, would increase the business tax filing thresholds. And with SB 293, Sen. Andy Sanborn, R-Henniker, would require that the state provide the same interest for tax overpayments that it charges for underpayments.Unable to cut taxes substantially, legislators are still trying to figure ways to cut spending, or at least control it better.Another Sanborn bill (SB 294) would simply take all of the fines and fees that various state agencies use to fund themselves and put them in the general fund. Currently, said Sanborn, the deal is “we won’t ask you for money, so don’t ask what we are doing,” enabling the agencies to “walk off the pasture.” And living off fines is like a “police officer getting to keep the money from all the tickets they write,” he said.Sanborn admitted that the Legislature isn’t about to abolish 3,700 dedicated funds next year, “but we need to look at having that conversation.”Two of the biggest pools of dedicated monies are under scrutiny again this year — the Regional Greenhouse Gas Initiative (RGGI) and the Renewable Portfolio Standards fund.The House tried to repeal RGGI last year, but the repeal could not survive the governor’s veto.That doesn’t mean it isn’t going to happen again this year, in the form of HB 1490. But the measure’s existence enrages Bradley, who opposes RGGI but said that the Senate simply doesn’t have the votes for an override.Last year, the House rejected his compromise measure — to take the program away from the Public Utilities Commission. Another attempt at an outright repeal will face the same fate.”Nobody is going to change their mind,” he said. “This is futile. It is stupid,” said Bradley.Utilities in the spotlightUtilities will be the focus next session for a number of reasons, not just the expected battles over the proposed Northern Pass transmission line.The migration of large customers away from PSNH has raised the whole issue of whether the state should force the utility to unload its generation assets, which might be another bone of contention between the House and Senate.Rep. Frank Holden, R-Lyndeborough, is sponsor of HB 1238, which would require the utility to dump those assets by the end of next year — a position that the chair of the House Committee on Science, Technology and Energy, said he agrees with in principle.But Bradley, who chairs the counterpart committee in the Senate, said divesting PSNH’s assets “doesn’t make any sense. It would create new stranded costs. Large users now have the best of both worlds and can go out on the market, but have the assurance that if gas goes up, PSNH will not be uneconomical.”Meanwhile, FairPoint Communications, which has been complaining about too much regulation, looks like it may get the relief that it seeks in SB 48, a holdover measure from last year that would deregulate the retail side of its business. Another bill, that would allow an alternative regulatory scheme for FairPoint is in the works, and then there is the perennial debate on whether to continue to let municipalities tax telephone poles.Speaking of perennial debates, versions of a right-to-work bill will rear their head again, after a measure was cut down last year by the governor’s veto. That will be the main attraction as far as union opposition is concerned. But there will be some interesting sideshows this year, including an attempt to eliminate the requirement for employers to provide a lunch break.Current state law requires that employers give workers a half-hour break after five hours of work. In case you are wondering, the federal government doesn’t have the same requirement. There is some flexibility in the law, according to the state Department of Labor. A worker can eat while working, if it is “feasible” to do so, and in practice, the Labor Department has not stood over people with a “stopwatch,” said Henry Veilleux, a lobbyist for the New Hampshire Lodging and Restaurant Association.The association, he said, will probably back the bill anyway, erring on the side of deregulation, though restaurants serving lunch have an interest in other businesses giving their potential customers time to eat.Another bill sponsored by Bradley (SB 341) would eliminate the option of employees to be paid in paper. The choice to pay electronically will be the employer’s, not the employee’s.”So many employees are getting paid directly that it is not that big a deal,” Bradley said. “It’s a cost-saving mechanism.”What if those workers don’t have a bank account?”When it is all said and done, we might have to make an allowance for that,” Bradley replied.Target: hospitalsThe biggest health care bills left over from last year are still in play.Both, proposed by Sen. Ray White, R-Bedford, are responses to the Patient Protection and Affordable Care Act.White, an opponent of the act, wanted to come up with a state law to prevent a federal regulatory takeover in case the act survives various legal challenges to its implementation.SB 163, unveiled in a Senate Commerce Committee the first week of the year, would create a “hybrid” health insurance exchange, governed in different aspects by a nonprofit stakeholder board of directors, the Insurance Department and the Department of Human Services.The other, HB 627, would have assured that the state doesn’t exceed any federally mandated benefits — though that might have to be revised, because the federal government’s latest guidance was that it might not provide such a floor, leaving that up to the states.But, said White, whatever the Senate comes up with might be ditched on “the other side of the wall” — the House — which wants nothing to do with the health reform law.”If they don’t see it, it must not exist,” White said.Indeed, Rep. Andrew Manuse, R-Derry, is sponsoring HB 1297, which would prevent state employees from even implementing White’s bill. The measure would forbid state agencies from working to “plan, create, participate in or enable a state exchange.”Then there is HB 1560, proposed by House Majority Leader D.J. Bettencourt, R-Salem, and Senate Finance Committee Chair Chuck Morse, R-Salem, which would allow New Hampshire to enter with other states in seeking to relieve “the federal government of the responsibility for health care policy and return it to the states,” in Bettencourt’s words.The compact’s laws could “supersede” state law — a matter that might be of some interest in constitutional circles.This year, however, the state’s hospitals seem to be the focus of most health care legislation.The New Hampshire Hospital Association is worried about several bills aimed at the certificate of need process. One (HB 1617) would abolish it altogether, and HB 1642 would exempt “destination cancer” hospitals.”It is rumored that a national chain of cancer treatment centers wants to build a facility in the southern tier of the state,” warns the association in its legislative sum up. Even more of a concern to the hospitals is HB 1482, which would limit the nonprofit tax exemption to buildings and hospitals on the hospital main campus. A hearing on that bill is coming up on Jan. 17.The association also opposes HB 1519, which would force hospitals to provide Medicaid outpatient services at outpatient Medicaid rates during all but four hours of each day, and another bill requiring that all providers inform patients in advance and in writing of the charges for services, upon the patient’s request.