Federation of Associations of Regulatory Boards

Report to the FCLB Membership
Donna M. Liewer, FCLB Executive Director &
FCLB Appointee to the FARB Board of Directors

April 7, 2001
San Antonio, Texas

It has been my pleasure to serve as the Federation's representative on the FARB Board of Directors since July 1995.

As our own organization has grown in its service to the chiropractic regulatory community, so has FARB expanded its support and programs for the broader, inter-disciplinary regulatory community. It has been a rare and valuable opportunity for chiropractic to have a strong and involved presence in this developing organization. We hold one of 13 seats on FARB's Board of Directors.

Highlights of this past year:

1. Dale Atkinson is approaching his first anniversary as FARB Executive Director - the FARB Board of Directors is exceptionally pleased with the positive growth in the organization.
   
   
2. The Directors approved a new logo for FARB which was designed by an artist with the Architects' Registration Board. The key colors are red and black.
   
   
3. The proposed on-line registration program under consideration has been temporarily shelved as FARB was unable to come to satisfactory terms with the targeted vendor.
   
   
4. Improved communications is the primary emphasis with an enhanced website and server under development. Additional mailing and e-mail addresses are being collected.
   
   
5. The Leadership Forum will be held July 18 - 22, 2001 in Colorado Springs, Colorado.
   
   
6. The Attorney Certification Course will be held November 1-4, 2001 near Sanibel Island, Florida.
   
   
7. The Federation of State Boards of Physical Therapy was welcomed back as a Full Member of FARB. The International Conference of Funeral Service Examining Boards was accepted recently and their representative Mack Smith was in attendance at this meeting. Potential new members include the National Association of Boards of Pharmacy and the Federation of Podiatric Medical Boards.
   
   
8. The current FARB officers were re-elected for a second term. President - Mike Bourdrez (architects); Vice President - Donna DeAngelis (Social Work); and Secretary / Treasurer Linda Dejmek (Optometry).

Annual Forum

An unusually high turnout (143) with many first time registrants was the result of a desirable location and quality topics on the program. Confidentiality and privacy provision both pre and post- licensure were the key issues.

Program Highlights:

1. Keynote address by Kentucky Social Work Board President, Rodney Crownover - an entertaining and engaging speaker on conflict of interest issues and information gathering/release.
   
   
2. FARB's Model Application was further refined - each field and the precise wording is supported by both case law and extensive board/administrative experience by a broad cross- section of licensed professions. We plan to host a breakout session on this topic in San Antonio. Sharing this document is one of the most helpful contributions we may be able to make to our member boards this year.
   
   
3. "Our" own Mike Moran, J.D., former executive director for the Ohio Board of Chiropractic Examiners, was one of the most knowledgeable and popular presenters. His program efforts included -
   
   
   1. Leading one of the breakout workgroup sessions on the Model Application
   2. Understanding privacy and confidentiality provisions
   3. Sharing information between regulatory agencies
   4. Handling the incarcerated licensee
   5. Serving on the Attorney Roundtable "Stump the Attorneys"
      
      
4. Another exceptional presenter on confidentiality issues was Mike Mone , J.D., R.Ph., former assistant attorney general to the Florida Board of Chiropractic and currently executive director of the Kentucky Board of Pharmacy. Confidentiality is a much more complex subject than it initially appeared and substantial related FCLB programming could easily be constructed around this overall topic in the future.
   
   
5. As always, Dale Atkinson and his law partner, Julia Works were highly organized and well- prepared presenters. Recent developments in "e-practice and e-regulation" were eye-openers as were the case law trends in recent regulatory cases. Nursing board on-staff attorney, Vickie Sheets, provided an exceptionally tight overview of present and upcoming legislative efforts in Washington, D.C.

Some take-home lessons:

1. Applications for initial and renewal licensure must be precisely worded to empower boards to withstand legal challenges. The FARB Model Application which we will present in San Antonio will be a substantial contribution to our members. Boards can compare their current applications against the Model to find out where potential vulnerability may lie.
   
   
2. The regulatory trend is definitely toward requiring criminal background checks in licensed and certified professions. I learned a lot about the process, most notable: some people do not have discernable fingerprints; the time for FBI processing can vary between two and five months; US states should identify an access terminal to the NCIC database where name and social security number checks can be run in about five minutes; and the quality of the data is highly varied depending on the reporting agencies. Arrests, charges, and convictions may be included. I also learned that checking the motor vehicle database can be an important source to identify potential substance abusers.
   
   
3. If a criminal history is identified, there are some general standards boards use in determining whether or not to license or re-license the applicant. These include:
   
   
   1. Age at the time the offense was committed
   2. Nature of the offense
   3. Circumstances surrounding the offense
   4. Character of the offender (previous and current)
   5. Whether or not the offender may still present a danger to society
   6. Length of time since the offense
   7. Subsequent work history
   8. Voluntary efforts to provide restitution to the victim
   9. Satisfying current with required CE if applicable
   10. Remorse (although a NY case was presented where the courts ruled remorse is NOT a requirement for reinstatement)

It is recommended to develop a standard packet for these cases and have regular predetermined procedures to process the application, including running criminal background checks. It was also suggested that all these criteria be specifically and formally adopted in the board rules and regulations.

The potentially horrible situation was described where a special waiver could be granted by a board to a person with a criminal background, only to have the licensee commit a heinous crime later. Appropriate license restrictions are the best way to reduce the likelihood of this scenario and the obvious media as well as tragic victim consequences.

An interesting question was raised regarding whether or not the original complainant or victim should be notified after reinstatement hearings. The general conclusion was "no" as the board's responsibility is to determine the status of rehabilitation.

Complaints

1. When in the process, and how much information is released, is highly controversial. The general consensus is that some ad judicatory process should have taken place. One court case was cited where the board delayed responding to another jurisdiction's request for information about license status (initiated by the licensee) until the first board had completed its pending disciplinary case to the point where this information could be attached to the record. The court ruled that the board's absolute immunity for its judicial role did not extend to its administrative/ministerial duties and opened the door for the licensee to sue board members personally for the delay he experienced in his application for licensure to the second jurisdiction.
   
   
2. We need to view our application forms and processes for reinstatement as being in a constant mode of development, continuously modified by case law and societal/regulatory changes.
   
   
3. A requirement of "Good Moral Character" should always be included as a pre- requisite for licensure and renewal, but a good definition seems to be elusive. Some boards have taken a modified approach of describing what it does not include (race, sex, religious beliefs, sexual preference, etc.) The courts have generally upheld the boards' expertise in determining good moral character.
   
   
4. Should chiropractic colleges help the boards determine whether the applicant is of sufficient good moral character to practice? Federal privacy laws (FERPA) need to be considered and an applicant waiver obtained if this avenue is pursued.
   
   
5. If an application in process is not completed within a year, some boards recommend that it be automatically deemed "abandoned" (preferable to denied and the possible applicant request for a hearing).
   
   
6. Never allow a licensee to surrender a license without a stipulated agreement (can have a standard boiler plate surrender agreement) that includes the basic legal elements - findings of fact, conclusions of law, an admission of offense if you can, and declaration about length of time until applicant can reapply and the reportability of the surrender to the various databases.
   
   
7. People are increasing their reliance on on-line services and we need to continue to develop our FCLB infrastructure to support it. Some 68% of Americans (up from current 44%) are expected to be on-line by 2005. Regulatory applications of on-line options include:
   
   
   1. Public info
   2. News/publications/files
   3. Practice examinations
   4. CE processing
   5. License renewal procession
   6. Immediate record verification
   7. License transfers
   8. Disciplinary actions
   9. Discussion groups
   10. Training of boards/staff
   11. Scheduling/calendaring
   12. Registrations - electronic forms
   13. Surveys and research
   14. File sharing and storage

Check With Individual Legal Counsel, But ...

1. E-mail correspondence with licensees should be retained in a retrievable format as it would be considered part of the board's official (and perhaps public) records.
   
   
2. Information you have to create in order to comply with a request for release of public records may not be considered as public information.
   
   
3. Continually evaluate what is collected and why. Determine in advance the criteria for exemptions to records release. Make clear the difference between on-site inspection and removable copies. Watch deadlines for required administrative response to requests.
   
   
4. Some information which may not be considered public include:
   
   
   1. Social security number
   2. Mother's maiden name (may be part of a security check in a password protected database system)
   3. Place of birth
   4. Home address and phone number
   5. Marital status
   6. Complaints
   7. Investigative reports
   8. License number

   The application itself and other information such as exam scores may be public.
   
   

5. Be careful that the meetings for the exam preparation itself are not subject to open meetings laws.
   
   
6. One excellent suggestion was to establish a third category for cases in addition to "open" and "closed" – called "inactive". This is an appropriate place to keep reports which may not be sufficient to warrant current prosecution but might later reveal important patterns of conduct. This would not be public.
   
   
7. Identifying in advance information which should be "redacted" (blacked out) or "admitted under seal". These may include:
   
   
   1. patient records
   2. identities of minor victims or victims of sexual crimes
   3. social security number
      
      
8. Every board should have regular presentations by the attorney general's office on the public records laws.
   
   
9. Information discovered in routine compliance inspections may vary in protection from public disclosure from information which is gathered in an investigation.
   
   
10. Interesting issues regarding jurisdiction:
    
    
    1. Jurisdiction
       1. Subject matter – over the professional
       2. Personal – has the individual had sufficient minimal contact to believe you could regulate him/her?
          
          
    2. Does advertising in your state or province establish sufficient expectation on the part of the licensee that they are under your jurisdiction?
       
       
11. REINSTATEMENT – Should there be an ethics or professional conduct exam available? Architects have one which I'll try to learn more about.
    
    
12. Should lapsed licenses be posted (not as disciplinary but rather general information) on websites or on databases of licensees? Consensus = yes.
    
    
13. Should full text of disciplinary orders be posted on board websites? Mixed yes and no.
    
    
14. Should denial of initial license (for cause, not failure to pass exam) be reported to FCLB (and similar) databases? Yes.
    
    
15. FCLB should develop a sample final order for boards to use that covers the essential legal components, including reportability of the board action to the various databases.
    
    
16. PROSECUTING UNLICENSED PRACTICE – Often seen by attorney general's and district attorney's offices as "victimless" and "low priority" crimes. One answer may be for the board to pay for a special prosecuting attorney to work under the attorney general or district attorney (Ohio does this). These cases can be hard to understand and prosecute without special expertise.

    Having three options in the law was recommended:
    
    

    1. Criminal – recommend unlicensed practice be listed as a more serious felony.
    2. Civil – allows for cease and desist orders
    3. Administrative Procedures Act
       
       
17. One remedy for non-payment of fines was suggested to work into the legal options a partnership with the jurisdiction's tax bureau to take any tax refunds. One disappointing court ruling required that a revoked licensee re-apply to the board for licensure before the board could collect the fines they had imposed.

Overall, it was a great experience and I look forward to continuing to learn more about regulatory law.

Donna Liewer