• Licensing Powers

The third category of information covered the following points concerning procedures:

Individuals conducting the hearings

Responsibility to prosecute violations of professional behavior

Grounds for suspension or revocation of a license

Mandatory or discretionary penalties

Penalties other than suspension or revocation of a license

Subpena power of the board

Right to counsel for the defendant

Responsibility of investigation of charges. Appellate Procedures and Legal Support Services

The final category covered the laws that pertained to:

- The court having jurisdiction for appeals of a board's decisions

The status of the licensee pending appeal The standard of a judicial review at the appellate stage, i.e., sufficiency of the evidence or trial de novo

The legal support and counsel available to the board.

2. SUMMARY OF

RECOMMENDATIONS

Analysis of the statutes for all five health professions showed marked procedural similarities in their statutory schemes. The following is a summary of the recommendations.

(1) Composition

Professional licensing boards should include at least one public member.

(2) Appointment of Members

A more open and competitive appointment process should be instituted. Application and nomination procedures, coupled with professional review criteria and appointment by the State governor, would promote appointments based only upon professional qualifications. The restructuring of the boards to eliminate many of their present routine administrative responsibilities would induce many highly qualified professionals to apply and participate in the board's activities.

(3) Continuing Education Requirements

The boards should be given the power to establish continuing education standards as a prerequisite for renewal of licenses. Requiring educational growth would significantly increase the professional competence level and enhance the delivery of health care services.

(4) Disciplinary Procedures

Boards should not serve multiple roles as investigator, prosecutor, judge, and jury in disciplinary hearings. Either the board should act as the judge, or should, with the aid of counsel, investigate and prosecute the case.

(5) Legal Support

A clear definition of the legal resources available to the boards should be written into the statutes.

(6) Status of License Under Appeal

Restriction upon a licensee's practice while his case is under appeal should be statutorily defined. If boards issue such regulations, court actions involving their interpretation may stay the execution of the board actions.

(7) Basis for Appellate Review

The "sufficiency of evidence rule" should be extended to the statutes of many states, especially those which allow de novo review.

4. PROBLEM SITUATIONS

Most of the data were obtained directly from the State boards and concerned the most recent laws governing the health professions and controlled substances. The following limitations to the legislative survey were noted:

(1) Vague and Inexplicit Statutes

Little can be learned about the operation of the State boards from statutes and regulations. The legislative survey was further constrained by the lack of information on board operations. To overcome this problem the project team integrated this survey data with data from other surveys such as field surveys and questionnaires.

(2) Matters Relating to the Control of Substances of Abuse Not Specified by Statutes

Many items relating to the control of substances of abuse were not specified in the statutes and available regulations. These cases were aggregated under the classification "Not specified by statutes."

(3) Combination of Professions

Because of common treatment of the professions of medicine and osteopathic medicine in the laws of the many States, they were combined in one category for purposes of the review.

(4) Lack of Current Data

Out-of-stock publications and ongoing revisions hampered data collection. Additional research was necessary to obtain the most recent statutes. Comparisions of the published law and revised laws were made to assure that no significant changes had occurred.

5. COMPILATION OF

DATA RESULTS

The legislative data survey shows the direction of current legislation and highlights the general deficiencies of State statutes.

The tables presented herein were compiled by category and profession with the following considerations:

• The five professions represented are: DDS (dentistry), MD/DO (medicine and osteopathic medicine), RN (nursing), RPh (pharmacy), and DVM (veterinary medicine). Because of the common treatment of MD's and DO's in many of the laws, they are treated together in the study.

• Some functions were not specifically treated by the statutes and regulations. These cases have been combined under the classification "Not Specified by Statutes."

The percent (%) value in a row represents the proportion of States and the District of Columbia for which information was available.

• The "S" value in a row indicates the number of States in which a specific condition exists or is specifically mentioned in the statutes. For purposes of this survey, the 50 States and the District of Columbia are referred to as "51 States." • In some instances the "S" (State) entry in a column totals over 51 because of overlaps in functional classifications. Also, the sum of the percentage entries in a column may not equal 100 due to an error in rounding.

(1) Appointment Procedures to Licensing Boards

Table 1 indicates that the most prevalent procedure for appointment to the licensing boards of the various health professions is direct appointment by the governor of the State. As many as 37 percent of the boards in a profession are appointed in this manner.

Next in significance is appointment by the governor from a list of nominees submitted by the relevant professional associations. These appointments are not confirmed by the legislature.

Direct appointment by a professional association is least used. The mechanism by-passes the State executive entirely.

(2) Qualifications of Board Members

A common qualification for board members in each of the professions is a license to practice in that particular profession. Many States require only a license to practice, rather than a license to practice in that particular State.

A specified number of years of experience was a qualification in up to 69% of the statutes governing one profession, as shown in Table 2.

In the medical profession public members sit on boards in 10% of the States. Non-professionals serve as the public and consumer representative in board deliberations. The composition of most boards in indicative of their orientation toward regulating licensees.