MODEL HEALTH PROFESSIONS PRACTICE ACT 201 ARTICLE VI Miscellaneous Section 601 Severability In the event any provision of this Act or the application thereof to any person or circumstance is held invalid, null, or void, such determination does not affect other provisions or applications of this Act which can be given effect without the invalid, null, or void provision or application, and for this purpose, the provisions of this Act are severable. Comment This Section is included for states which have no general saving statute. If a state has such a statute, with a comparable severability clause, Section 601 should be excluded. Section 602 Repealers The laws specified below are repealed except with respect to rights and duties which matured, penalties which were incurred and proceedings which were begun before the effective date of this Act: (List statutes to be repealed.) Section 603 Effective Date This Act shall take effect on the first day after the beginning of the seventh month following the date of its enactment. Section 604 Abatement Proceedings to revoke, suspend, limit a license, or otherwise discipline a licensee shall not abate by reason of the passage of this Act. RELATIONSHIP BETWEEN THE MODEL STATE Since many states have enacted an administrative procedure act and others may recognize the role of due process in effective regulation, this section describes the relationship of such an act to the Model Practice Act discussed in the previous section, as well as the necessary modification to that practice act in the event an administrative procedure act has been adopted. A state administrative procedure act affects not only state professional licensing boards, but also all agencies of the state government in providing a uniformity of procedure, and a guarantee of at least minimal due process to all persons affected by the activities of a state agency. These acts are usually patterned after the Federal Administrative Procedure Act,27 and address the functions of legislation or rule-making, adjudication, and judicial review. These three functions comprise the basic duties of the state professional licensing boards and are relevant in their regulation of health professionals. At least 36 states and the District of Columbia have enacted an administrative procedure act based, in whole or part, on a model act introduced by the National Conference of Commissioners on Uniform State Laws to parallel the Federal Administrative Procedure Act on the state level.28 The Conference introduced its first model act in 1946, one year prior to the enactment of the Federal Administrative Procedure Act and produced new versions in 1961 and 1970 with only minor changes. In view of the efforts of the Conference to develop model administrative procedure acts, it was felt that drafting a new model administrative procedure act was not necessary for the purposes of this report. The advantages of the Model State Administrative Procedure Act are that it provides a uniformity of procedure for all agencies within a state and with the adoption of the act, in part or whole, by 36 states, it gives rise to some procedural uniformity among the majority of states. This contributes to ease of application and interpretation of the provisions of the act. The major criticism of the Model Act is that its applicability is limited only to state agencies and does not reach municipal or other local administrative actions. However, this criticism is irrelevant for the purposes of this report because our interest concerns board activities which are regulated on the state level. Of special interest is Section 14 of the present version of Model State Administrative Procedure Act because it specifically addresses adjudicatory procedures for issues effecting licensure. This Section specifies the due process requirements of hearing and notice where a license grant, denial, or renewal is at issue. However, this Section goes one step beyond the Model Health Professions Practice Act regarding 275 U.S.C. § 551 et seq. (1970). 28Only 19 states and the District of Columbia have enacted administrative procedure acts either in toto or in amended or similar form. HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS, supra note 2. But 17 other states have enacted administrative procedure acts whose provisions meet the criteria set out in Article V of the Model Practice Act. R. HOFFMAN, supra note 15. MODEL HEALTH PROFESSIONS PRACTICE ACT 203 the status of a license pending the first level of adjudication. The Model Health Professions Practice Act does not provide for summary suspension on any grounds prior to a hearing; whereas the Model State Administrative Procedure Act does if the public health, welfare, or safety is endangered. The Model Health Professions Practice Act provides only for the board to obtain an injunction against the unlawful or questionable practice pending the first level of adjudication or hearing, but does not provide for an injunction against all practice by the licensee pending a hearing. MODEL POLICIES, PRACTICES, AND OBJECTIVES FOR REGULATORY BOARDS AND In order to properly implement the Model Practice Act and achieve a properly functioning regulatory environment for professional practices, certain goals should be established, as well as policies and practices to meet these goals. While the boards are the principal actors with reference to such activities, other entities, e.g., the Commission, the Attorney General's office and the respective professional associations in each state, due to their interaction with the boards, have roles in the professional health practice regulatory process. It is critical that the particular observations and topics treated herein be studied thoroughly by appropriate members of each of the groups and agencies, notwithstanding a given topic's explicit identification with a particular group or agency. For example, the policy requirement by a given board for the continuing education of licensed practitioners as a condition of license renewal gives new meaning and importance to the development of health practice standards by the appropriate professional association; this is a reflexive relationship since it certainly holds vice versa. Therefore, the latter example amply demonstrates not only the need for all members of the community to be fully aware of their fellow-members' roles, but also the importance of continuous communication between all members so that the "system" will be properly "lubricated." The Model Practice Act establishes an organ called the "Commission" separate from the boards to relieve the latter from those common functions not requiring the professional expertise which typifies the background and the qualifications of the members of that board (with the possible exception of lay members for the boards and states having same). By establishing a commission to handle these "common functions" other advantages become clear, such as the uniformity of procedure, the economic effects of eliminating duplication, and reduction of board member involvement in litigation. The basic rule to apply to any effort to determine whether a given activity is within the jurisdiction of the respective board's charter, or within the confines of the Commission's charter, is whether the activity warrants a decision of any board, when decision requires the professional expertise of that particular board as a licensing entity, and activity is within the jurisdiction of that particular board, or if the above is not the case, whether the activity falls within the jurisdiction of the Commission. Therefore, it can be stated that the jurisdiction of the respective boards is specific; and the jurisdiction of the Commission is residual. All policies, rules, regulations, and directives which are developed to implement this Act should reflect the application of this primary rule. If any question arises concerning the application of the latter rule, the resolution of that question is clearly within the jurisdiction of the Commission under Article II, Section 207. This does not unreasonably derogate from the powers of the respective boards, since the Commission is composed of the respective board presidents. If a given board feels that the Commission has exceeded its jurisdiction as defined by this Act, then that board is clearly empowered to contest the alleged abuse in the appropriate court of the state under Section 308(11). The basic concept underlying this proposed regulatory environment is that the respective boards allocate the bulk of their time and effort to the deliberation of issues concerning the regulation and admission to practice and discipline of health professionals. As such they should convene and deliberate on a regular basis. Their basic role in disciplinary hearings is that of judge, and not that of prosecutor. It is intended that the Commission bear the direction of all investigations, and that the Attorney General, or his designee, be charged with the responsibility for prosecution. The Commission, alternatively, should rely very heavily upon its Executive Director and the Department of Registration for the execu tion of its duties. Other than its annual meeting, the Commission should convene on a less regular basis than the boards and only when there is a need for it to discharge policy-making, planning, budgeting, and promulgating of rules and regulations duties. This approach allows the respective board presidents to function primarily in their board member roles rather than as members of an administrative board (Commission). Continuing education should be a primary requirement for relicensure. The boards should rely heavily on the standards and recommendations of their respective professional associations; these latter MODEL HEALTH PROFESSIONS PRACTICE ACT 205 entities should regard their role in this matter as seriously as they hold the initial licensure of a practitioner. The maintenance of quality in a profession should have a comparable priority with that of the initial licensing practitioner. The designation of legal staff from the Office of the Attorney General should be on a dedicated specialization basis. Such a practice would tend to induce the other desirable characteristic of designation, i.e., be appropriate for the respective boards to have funds available for legal counsel for special purposes. Each professional association must play an extremely active role in the development of health practice standards if the basic objective of the regulatory environment is to be achieved, i.e., quality health practice. In order for the boards to determine qualification for licensure, they must have the tools by which credentials and skills may be measured-such tools are well-developed health care practice standards. While this topic is related to the continuing education involvement of the professional association, this role is more general in definition and such measures should provide the type of guidance which places the practitioner "on warning" with respect to these practices and/or neglect of practice which may reasonably be expected to subject the practitioner's conduct to review and possible disciplinary action by the board. CONCLUSION The states have become engaged in a number of cooperative programs to improve the effectiveness of state health care licensing, regulating, and disciplinary actions with respect to the Controlled Substances Act of 1970. Although the Model Health Professions Practice Act has been developed for submission to the National Conference of Commissioners on Uniform State Laws, a number of states may wish to undertake more immediate actions. According to the circumstances of each of the several states, they may choose to adopt the basic substance of the Act as it now reads by simply adding, modifying, or deleting the appropriate provision(s), or adopt the basic jurisprudential philosophy underlying the Act and develop a new model act premised on this philosophy. Reprinted from the ADMINISTRATIVE LAW REVIEW, Volume 28, Number 2, A quarterly publication of the Section of Administrative Law, American Bar Association Copyright 1976 American Bar Association |