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PIANH 2012 legislative wrap-up

By Matthew F. Guilbault, Esq

After months of work, the 2011-12 legislative has come to a close. The House and Senate now must take final action on all remaining bills, and both bodies are hedging their bets by resurrecting key bills killed by the other side.

As for insurance-related legislation, a number of bills continue to receive attention. They are:

Health insurance exchange. H.B.1297 clarifies the implementation of certain provisions of the Patient Protection and Affordable Care Act; prohibits the state from planning, creating or participating in a state health-care exchange; and establishes guidelines for interaction with a federally facilitated exchange created for the state. This bill was signed by Gov. John Lynch on June 18, 2012, as Chapter 231 of the Laws of 2012, and becomes effective immediately and Paragraph II of Section 3 shall take effective as provided in Section 4.

Insurance mandates. A major initiative to reform insurance mandates (H.B.309) includes: making insurance coverage for certified midwives optional; requiring utilization review for coverage for children’s early intervention therapy services, diagnosis and treatment of pervasive developmental disorder or autism, and hearing aids; clarifying the coverage for hearing aids; clarifying the group coverage for obesity and morbid obesity; and establishing a committee to study current New Hampshire insurance mandates. The bill passed the House with amendments and as of March 21, 2012, remained in the Senate Health and Human Services Committee.

Technical changes. S.B.221 makes technical changes to life, accident and health insurance. The bill was signed by Gov. John Lynch on May 29, 2012, as Chapter 99 of the Laws of 2012, and becomes effective July 28, 2012.

Landowner liability. H.B. 1551 allows for great legal protections for landowners who allow the public to use their land for hunting, fishing, hiking and other recreational activities. The bill protects people who own, lease or manage land open for public use from lawsuits by someone injured on their property. The bill does not exempt a landowner’s liability for a malicious act or if the owner charges to use the property. The bill was signed by Gov. John Lynch on June 13, 2012, as Chapter 214 of the Laws of 2012, and becomes effective June 13, 2012.

Exempt forms. H.B.1622 would exempt forms adopted by the insurance commissioner from rulemaking requirements. This bill was signed by Gov. John Lynch on May 29, 2012, as Chapter 93 of the Laws of 2012, and becomes effective July 28, 2012.

Limited liability companies. S.B.203 would revise laws governing limited liability companies. The bill amends the New Hampshire limited liability company act (originally enacted in 1993 and then significantly amended in 1997) to retain most of the provisions of the current act, but adds numerous important features to make it significantly more user-friendly for small businesses.

At the same time, the revised act fully preserves, and in fact increases, its usefulness for larger businesses. The new features include: a new overall structure that will make it substantially easier for LLC members and managers and their attorneys to find provisions relevant to their concerns;

  • new provisions comprehensively defining the fiduciary duties of members and managers;
  • revisions of numerous provisions of the current act to eliminate possible ambiguities;
  • maximum use of plain English and the elimination of numerous legalisms in the current act; and
  • definitions of several key technical terms, such as “allocation,” “distribution,” “dissociation,” and “dissolution,” the meanings of which are not self-evident and are not defined in the current act.

This bill also contains a number of new provisions that will increase the flexibility of the act and enhance the ability of both small and large New Hampshire businesses to tailor their LLCs to meet members’ and managers’ needs and interests. These provisions include validating oral and implied operating agreements of LLCs that lack written agreements. This bill was signed by Gov. John Lynch on June 18, 2012, as Chapter 232 of the Laws of 2012. Sections 1-11 take effect Jan. 1, 2013, Section 14 on Dec. 1, 2012, and the remainder upon signature.

Producer issues
Certificates of insurance. S.B.222 would enact several provisions as they relate to receipt of premium payments by agents (Sections 1-5) and certificates of insurance (Sections 6-8). Most notably, the bill would define in statute the fee that may be charged for issuing a certificate: “A fee shall be reasonable if it accurately reflects the actual effort and cost to the producer required to prepare and issue the certificate.” The bill clarifies provisions of Chapter 137 of the Laws of 2011, which created a new chapter in state Insurance Law, Chapter 400-C, to define certificates of insurance and prohibit anyone from issuing or requesting one unless a form is filed and approved by the New Hampshire insurance commissioner (current list of approved forms). It also prohibited any person from altering or modifying an approved certificate of insurance form. The 2011 statute also directed the New Hampshire Insurance Department to promulgate regulations setting forth a “reasonable fee” to be charged by a producer for issuing a certificate. The department drafted Ins 4801.05, which in the opinion of many producers went far beyond what was prudent and necessary. This bill was signed by Gov. John Lynch on May 29, 2012, as Chapter 100 of the Laws of 2012, and is effective July 28, 2012.

Employer disclosure requirements. H.B.1270 would require an employer to disclose any noncompete and nonpiracy agreements that are part of an employment agreement to the employee or potential employee prior to making an offer of employment or an offer of change in job classification. Any employment contract that is not in compliance with this section will be deemed void and unenforceable. According to the HR State Council of New Hampshire, this law is intended to compel employers to disclose these types of agreements to applicants before they get too far along in the recruitment or hiring process. The intent of this law is to ensure that when new employees sign these agreements, they do so voluntarily and not under duress. The bill was signed by Gov. John Lynch on May 15, 2012, as Chapter 70 of the Laws of 2012, and becomes effective July 14, 2012.

Workers’ compensation
Independent contractors. H.B.420 makes statutory changes relative to the definition of an employee, and according to the Department of Labor, will have no impact on state, county and local revenues or expenditures. The proposal would amend New Hampshire’s definition of employee and clarify the criteria for exempting workers from employee status.

Previously, contractors were required to meet all 12 criteria in a 12-prong test identified in the state’s workers’ compensation and unemployment compensation laws to be considered an independent contractor. The 12-point rules have been in effect since Jan. 1, 2008.

The bill was sought because classifying an individual as an independent contractor has been fraught with risk because misclassification by employers can lead to fines, workers’ compensation violations, unemployment compensation and tax fines. Complicating things further, no less than three New Hampshire agencies (the Department of Labor, Commission for Human Rights and Employment Security) use different tests to determine an individual’s employment status. The selection of the appropriate test depends on the purpose for the determination and on which administrative agency the matter is pending.

The bill would amend multiple sections of law to establish that if the person holds himself or herself out to be in business for himself or herself or is registered with the state as a business and the person has continuing or recurring business liabilities or obligations, he or she shall be considered an independent contractor. The bill was signed by Gov. John Lynch on June 7, 2012, as Chapter 139 of the Laws of 2012, and becomes effective Aug. 6, 2012. 4/13


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