The nature of judicial review determines the extent to which a licensee may have a second opportunity to present his case.

Table 17 indicates that 16 to 27 percent of State courts or boards, when sitting as an appellate body are statutorily limited to judicial review only of the "sufficiency of the evidence." The previous finding of the board or lower court is reviewed only to determine whether the evidence taken as a whole was sufficient to support the findings.

Another 70 percent of the statutes reviewed did not specify whether judicial review of board decision shall be on a de novo or "sufficiency of evidence" basis.

Judicial review is limited to the "sufficiency of evidence" in States following the Uniform State Administrative Procedure Act or an act patterned after the Federal Administrative Procedure Act.

(18) Sources of Legal Counsel

Table 18 indicates the absence of statutorily assigned full-time legal counsel to the boards.

The primary resources for legal counsel are private attorneys or a State attorney general's office.

6. IMPLICATIONS OF

RESULTS/FINDINGS

The following are the major findings of the legislative survey.

(1) Appointment

Most statutes provide for appointments to be made by the governor with confirmation by the legislature or made from a list of names submitted by the State professional association. The professional associations are probably in the best position to recommend qualified candidates to the boards.

However, a professional association often functions, or is perceived to function, as a private lobby. Since associations often exert direct or indirect control over a State licensing board, a possibility for conflict with the public interest exists.

(2) Qualifications

Most professional boards are composed solely of licensed professionals in that or a related field. For example, a hospital administrator may serve on a nursing board. A significant variation and recent trend in some States is the inclusion of nonprofessional or "public" members on boards.

(3) Staff and Investigators

Most statutes permit the boards to hire clerks and investigators. The board's budgets and sources of funds for staff and investigators, however, are not clearly specified.

(4) Terms of Office and Compensation

The term of office for board members averages 5 years for those terms limited by statute. The statutes limit board members to no more than two terms. Their compensation is minimal (reimbursement for actual expenses and a fixed per diem amount ranging from $10 to $50).

(5) Centralization of Activities

Few States have a central agency to control the licensing functions for the various health profession boards. In those States where it exists, this centralized system consolidates many of the various boards' administrative functions (duties not inherent to the particular professions).

Larger States such as New York are more inclined to adopt this system. New York's professional boards are governed by the Board of Regents. The centralized New York system tends to eliminate unequal treatment since all hearings are held by the same department.

In New York, as in California, one investigative

(7) Disciplinary Authority

In most cases, the board, or the administrative body over the board, has the right to conduct hearings. In a number of States, the procedures are indicated by an administrative procedures act.

Where the Uniform Administrative Procedures Act is in effect, the boards must provide the following:

• Proper notice to all parties involved

Opportunity for all parties to respond, present evidence and arguments, and cross-examine on all issues involved

• A proper record of the proceeding

• Recorded or written final order or decision, including findings of fact and conclusions of law

• Review and appeal of board decisions and orders.

In addition, most administrative procedures acts provide for subpena powers. If the board's right to conduct hearings does not specifically include subpena powers, its disciplinary ability may be hampered.

(8) Appellate Procedures and

Legal Support

Under most statutes, the appeal of a hearing board's decision is often a review of the "sufficiency of the evidence" rather than a de novo trial. However, a few States grant de novo trials at the appellate stage.

Perhaps the most important characteristic of the "sufficiency of evidence" rule is that the board conducts the process of fact finding. This role seems appropriate, since it capitalizes on the expertise of the various professional boards and obviates any increased appellate court workload such as would undoubtedly result from a rule providing for de novo proceedings on appeals from board decisions.

The legal support available to the boards, consists only of part-time legal counsel such as:

• A designee from the attorney general's office who devotes time to state licensing boards

• A county or district attorney who would represent the board in that particular county

A private attorney hired to do work for the board as needed.

(9) Disciplinary Actions

While the statutes set up the procedures and standards of disciplinary action, the board has considerable discretion in bringing actions. The number and type of board disciplinary actions brought by a board could not be enumerated.

Insofar as boards are reluctant to exercise their disciplinary authority, state control of drugs may suffer.

(10) Licensure Requirements

Licensure requirements could be a key factor in the regulation of health professionals. The review of a professionals practice or other experiencerelated qualifications cannot guarantee reduced drug leakages; however, if the professional is required to be familiar with the potential for abuse and misuse of drugs, this can help to reduce leakages and drug violations.

(11) Ambiguity in Statutory Provisions

Another problem in the area of discipline by licensing boards is the lack of clarity in statutory provisions, especially those delineating the grounds for revocation and suspension. This category includes such phrases as "unprofessional conduct," "gross immorality," "malpractice or gross misconduct in the practice of the profession," "grossly unethical practice," and "conduct unbecoming a physician."

(12) Legal Problems of Licensing Boards

The most common legal problem facing licensing boards is that they must act in the multiple roles of investigator, prosecutor, judge, jury, and executioner.1 Whether this system provides adequate safeguards against conflict of interest and protects due process, is a moot question.2 One point, is that to ensure the proper functioning of the disciplinary process licensing boards must be adequately staffed and funded. As one spokesman put it:

Our boards are not adequately financed or staffed. Too often the physician's annual registration fees are diverted by the State into the general fund. The board then is at the whimsy of the State for inadequate (sic) funds. State boards are of necessity relatively inexperienced in investigating and developing complaints. They need the aid of competent help. They do not exchange transactions of disciplinary procedures. . 3

7. RECOMMENDATIONS

Recommendations will be limited to the principal areas of this survey; i.e., the boards' composition, powers, procedures, and the legal support.

(1) Outside Representation on the Boards

Professional licensing boards should include at least one public member from the community. Public representation has the following benefits: • A broader background and wider perspective among board members

• An appearance of fairness to the public

• Less reluctance by the board to prosecute violators, since a lay board member would not have the same professional ties with the accused as other board members.

(2) Increased Openness and Competition in the Appointment of Board Members

As indicated in Table 1 (see p. 21), the most prevalent procedure for appointment to licensing boards is appointment by the Governor from a list of nominees submitted by the relevant professional association.

Although a professional association may be best suited to identify qualified board candidates, an association with excessive influence over a board is dangerous. A professional association is a private organization and may have definite selfinterests which may be contrary to the public interest that should be promoted by the board.

Greater fairness and further assurance to the public that board members are appointed on the basis of their professional qualifications would be provided an appointment process which was more open and competitive. Application and nomination procedures, such as those existing in New York, coupled with review and appointment by the governor could reduce both the appearance of and actual conflicts of interest.

(3) Centralization of Common Functions

An increasing number of States have central administrative agencies handle the administrative tasks of the boards and presumably free the members to put their expertise to greater use. Several advantages were seen in those States with a central system. One is a highly specialized and expert investigative unit at the board's disposal.

(4) Providing Power to Establish Continuing Education Requirements

The boards should be given the power to establish continuing education standards as a prerequisite for renewal of licenses. A consistent level of competence in the delivery of health care services would thus be maintained.

Automatic license renewal without an evaluation of the applicant does not further the purposes of regulating health professionals.

(5) Clarification of Roles in Disciplinary Procedures

Greater clarity is needed in the statutory description of board hearing procedures. Many statutes leave the impression that the boards have the dual function of prosecuting the case and deciding it at the hearing level. In the interest of fairness, the board should act either as one party (the prosecutor) in a hearing before an independent examiner or as judge in the hearing where they have not had a prior investigative or prosecutorial role.

(6) Board Disciplinary Procedures

Where boards do not exercise care to assure due process, board actions may be stayed pending appeals and may be overturned in the courts. This problem can be mitigated if the State has an administrative procedures act and the board adopts or is statutorily bound to employ such procedures. If not, the board can adopt or the State can legislate procedures such as those outlined in the model administrative procedures act which has been made a part of the Model Health Professions Practice Act and State Regulatory Policy prepared for this study.

(7) Legal Support for the Board

The various licensing boards should be given as much legal counsel as possible and the statutes should clearly define this support. Often the statutes provide for an individual from the attorney general's office to be counsel for a board. In effect, this might mean one attorney from the attorney general's office can devote 5 to 10 percent of his time to a particular licensing board. In this case, while the statute does not so state, the board is receiving one-tenth or one-twentieth of one attorney's time when far more time may be needed. It is recommended that the boards should be permitted to hire counsel whenever necessary in addition to the support which may be provided by the attorney general's or county attorney's offices. Thus, in the interests of providing the fullest legal support possible, the appropriate statutes should:

• Provide full-time counsel where adequate economic justification and workload exists. While easily the best solution, this may be too costly for many States.

• Provide administrative judges or hearing officers to preside at disciplinary hearings. This may reduce the board's need for legal counsel as a disinterested party will be responsible for the conduct of the hearing, lessening the possibility of irreversible errors.

• Provide individual counsel to each board on a part-time basis. In those States where the demand for services does not justify the appointment of at least one specialist for each health profession board, legal counsel will have responsibility for the affairs of more than one board.

These specifications have been included in the Model Health Professions Practice Act and State Regulatory Policy prepared for this study.

(8) Specifying Status of Licensee's Ability to Practice While Case is Under Appeal

Restriction upon a licensee's practice while a case is under appeal should be statutorily defined. Although boards may issue regulations, these may be subject to interpretation resulting in court action which stays the board actions and allows the licensee to continue his practice and dispense controlled substances for a lengthy period. This is a critical problem. The financial rewards of errant behavior may be great, and the ultimate likelihood of successful prosecution, small. Hence, the practitioner may continue such misbehavior for months or even years while awaiting the outcome of the appeal.

(9) Specify Basis for Appellate Review

The "sufficiency of evidence" rule should be written into the statutes of all States, especially those which allow the de novo review. This will prevent the increased workload in the courts, something very likely to occur with increased disciplinary actions in the area of controlled substances.