1996: Plenty of Conflict, But No Bloodshed


Editor, Professional Licensing Report

Before civilized society, serious disagreements used to be settled largely on the battlefield. Now we can channel our differences into outlets like administrative hearings, lawsuits, budgeting, lobbying, campaigning, influence peddling, and other activities that--for the most part--don't involve bloodshed. In the 1996 licensing arena, there were plenty of skirmishes, some major conflicts, a few decisive routs and victories, and manifold threats of continued warfare. Here are a few of the year's highlights.

Disclosure. Plans to disseminate disciplinary actions via the Internet are on hold, but Massachusetts broke new ground in passing its discipline disclosure law with physician support. By November, staff members at the Massachusetts medical board were swamped with calls from consumers who wanted to know if their doctors had had any disciplinary action or malpractice settlements against them. Meanwhile, an irate Florida resident made waves by doing his own court research on malpractice cases and releasing them to members of his group, the Association for Responsible Medicine. But the most startling development occurred in Wisconsin, where officials were ordered to disclose a licensee's test scores to the public; the court said the public interest in disclosure outweighed confidentiality concerns.

Advertising. The Federal Trade Commission continued its case against the California Dental Association's advertising limits. Courts seemed to be of several minds. A federal court struck down a ban on solicitation of legal clients within 30 days of criminal arrests or disasters, while the Illinois Supreme Court ruled that a law barring doctors from soliciting patients did not violate the First Amendment. But the American Trial Lawyers Association said it was considering its own 30-day ban on soliciting clients.

Testing. The courts continued to press boards to accommodate disabled candidates. A plan to add a test for spoken English to the pharmacy exam for foreign graduates in Rhode Island was spiked when the American Civil Liberties Union testified against it, but the National Association of Boards of Pharmacy plans to add the test nationally starting in 2000. Twenty brokers or brokerage employees were fined up to $50,000 and permanently barred from the securities industry after hiring impostors to take their licensing exams. The South Carolina nursing board revoked approval of a nursing program whose pass rate, though climbing, was still 5% below average.

Public membership. In the state's first sunset review, the California legislature rejected a recommendation to place a majority of public members on the accountancy board and privatize many of its functions. But public members brought new visibility to the osteopathic board in Maine, when they convinced the majority to sanction a physician for sexually molesting adolescent patients during examinations.

Administration. A national group of legislators considered adopting a model privatization bill as Virginia decided to privatize its accountancy board, and the Oregon legislature ordered a study of privatization along with other regulatory options. But in New Jersey, one union convinced a court that the state could not exempt contractors in a privatization scheme from complying with the licensing law. There were many critical audits of licensing agencies. A study by the North Dakota legislature revealed that some boards had up to a million dollars in reserve and one had made a questionable and unauthorized investment, but a proposal to consolidate the boards went down in flames.

Scope of practice. Antagonism escalated between architects and engineers as engineers claimed the right to design buildings for human habitation and architects insisted they didn't have it. In Idaho, a court ruled against optometrists in their bid to perform laser surgery to correct nearsightedness, while pharmacists continued efforts to provide more patient care. The California physician assistants board held a hearing in which foreign medical graduates argued for the right to sit for the PA exam, but PAs maintained the foreign doctors lacked the right education.

Discipline. Undercover investigations and stings were prominent in 1996. In California, a female patient was wired while undergoing hypnosis by a psychologist's aide; investigators rushed in when they suspected from the sounds that the patient was being raped, but a court threw out several of the charges saying there wasn't enough evidence of duress. Florida and Hawaii investigators posed as homeowners to nab several unlicensed contractors. And in New York, the state hired undercover Chinese-speaking investigators in a probe leading to the arrest of several fake physicians in the Chinese community. It was also a year in which the counsel to the West Virigina medical board said discipline proceedings are getting so dangerous that armed deputies have to attend.

Disciplinary leniency drew fire. The National Law Journal reported that disbarment is rarely permanent, and a Kentucky newspaper criticized the state for accepting lawyers disbarred in other states.

Federal action. The Federal Trade Commission filed its first case alleging a violation of the 18-year-old Eyeglass Rule which requires optometrists to release prescriptions. The National Practitioner Data Bank said it would add all other categories of health care practitioners to its database, starting with podiatrists.

Accreditation. The Massachusetts School of Law continued its challenge of the American Bar Association's accreditation process in the courts; the case was dismissed by one judge, but the Department of Justice filed a brief siding with the school on appeal. The latest incarnation of an umbrella group for accreditors, the Council for Higher Education Accreditation was born, but engineers said it gives too much control to university administrators and refused to join.

Prospects for Peace. Even more intense conflicts lie ahead. In 1996 we saw the concrete effects of new technologies: the first disciplinary database on the Internet (Medi-Net), the first test scores via modem, congressional debate on a bill to liberate telemedicine from state practice restrictions, and the first national ID numbers for attorneys. In the coming year, privatization, disclosure, and reciprocity as technology and corporate consolidation continue to dissolve the boundaries among the states as well as the professions. We're only seeing the beginning of licensure's transformation.