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NABP Legal Briefs: Board Educated on Education
Originally published in the September 2010 NABP Newsletter
By Dale J. Atkinson, JD
The boards of pharmacy are created and empowered to enforce the practice acts in the interest of public protection. Enforcement of the act often leads to decisions whereby applicants either may or may not be granted a license to practice the profession. Reasons for licensure denial may be varied, but in all cases should be premised upon noncompliance with applicable statutes and/or regulations. At the same time, boards of pharmacy choose to rely upon outside entities for determinations which are beyond the scope of knowledge and which are also generally designed to promote uniformity. Obvious examples include a uniform licensure examination and an “accredited” educational program. Consider the following.
In Pennsylvania, an applicant for licensure as a professional engineer must satisfactorily complete the Fundamentals of Engineering Examination and become certified as an engineer-in-training. Engineers-in-training subsequently establish experience satisfactorily to the State Registration Board for Professional Engineers, Land Surveyors and Geologists in order to ultimately qualify to sit for the principles and practice of engineering examination.
Applicants seeking to be certified as an engineer-in-training must show satisfactory evidence of graduation from a “board approved engineering curriculum of four years or more.” Specifically, the board defines engineering curriculum as “[a] curriculum of 4 or more years approved by a National accrediting association recognized by the board which leads to a baccalaureate degree.” The board uses the Accreditation Board for Engineering and Technology (ABET) to determine whether an applicant has graduated from an approved engineering curriculum.
A particular applicant who graduated from the University of Scranton applied for and was denied recognition as a certified engineer-in-training. The board denial was based upon the fact that the engineering program at the university was not accredited by the ABET. However, the university itself was accredited by the Middle States Commission on Higher Education, which accredits four year colleges and universities in the region. The board action occurred after a hearing in which the applicant and two professors from the university testified. In short, both professors endorsed the applicant and testified as to the quality of the engineering program. Also, the testimony addressed the fact that the engineering program had twice in the 1980s been denied ABET accreditation, in the opinion of the witness, based upon the small size of the program and the number of full-time faculty devoted to the program. Regarding reapplication for current accreditation, the witnesses surmised that the costs of seeking recognition were prohibitive.
The applicant revealed during his testimony that only after graduation and while he was seeking employment did he learn about the process of licensure and the need to successfully complete the examinations. Indeed, he testified that he did not know the program was not ABET accredited until the board provisionally denied him permission to sit for the Fundamentals of Engineering Examination. The board determined that the applicant did not meet the educational requirements to sit for the exam and denied his application. The board decision noted its deferral to ABET and the fact that the board declined to undertake an independent evaluation of the engineering program. The applicant appealed the matter to the Commonwealth Court.
On appeal, the applicant argued that the board abdicated its responsibilities to approve engineering programs by delegating such authority to the ABET; that the board erred in refusing to independently evaluate the program; and that the regulation at issue was unconstitutionally vague because it did not provide reasonable notice that ABET accreditation was necessary for a program to be considered an “approved engineering curriculum” under the statute.
The court addressed the third issue first and outlined the statutes and regulations related to the process to become a licensed engineer. Addressing the law, the applicant argued that nothing in the statute or regulations provided impacted parties with notice that ABET accreditation was required to eventually become licensed. ABET is not referenced in either the statute or regulations, but a “national accrediting association” is referenced in the regulations. The applicant argued that the Middle States Commission on Higher Education is, indeed, a national accrediting association, which has accredited the university.
The board argued that to succeed on a vagueness argument, the applicant must show that the statute or regulation in question must “trap the innocent by failing to give a person of ordinary intelligence reasonable opportunity to know what it provides so that he may act accordingly” or “results in arbitrary or discriminatory enforcement in the absence of explicit guidelines for its application.” Using the common knowledge of the engineering population, the board argued that the ABET is the only national accrediting organization for engineering programs and that engineering students would be aware of and able to identify such if they inquired, thus defeating the argument that the law was vague. The board also distinguished between institutional accreditation and programmatic accreditation.
The court disagreed and noted that the board missed the point. It held:
The danger of ambiguity in this particular regulation is not to professional engineers (and we doubt that even professional engineers are knowledgeable about accreditation processes, unless they are in academia). It is the prospective student deciding which college or university to attend who could be fatally misled in his choice. While someone with the expertise of the Board might understand the distinction it draws, we do not believe a person of ordinary intelligence should be expected to do so. We agree with [applicant] that such a person, particularly a high school graduate choosing which university to attend, could reasonably believe that a four year degree from an accredited university satisfied the standard set forth in the regulation.
The court continued finding that the regulation is not “void on its face.” To the extent that the board does not rely “exclusively” on ABET accreditation, but exercised independent judgment regarding an engineering program that lacks ABET recognition, the regulation may not be void or unconstitutional as applied. However, in the current case, the board did not exercise its independent statutory authority to evaluate the university’s engineering program. The board declined to evaluate the program and did, in fact, rely exclusively on the lack of ABET accreditation. Thus, the board unconstitutionally applied the regulation in this case and the court reversed and remanded that matter ordering the board to allow the applicant to sit for the fundamentals of engineering exam.
Based upon the disposition of the matter, the court did not address the remaining issues advocated by the applicant.
The art of drafting regulations, as well as their application by regulatory boards, can present interesting and complex legal issues. Boards of pharmacy are encouraged to seek legal advice on the promulgation and application of regulations. This is especially relevant where boards rely upon outside entities as part of the licensure process. Based upon its analyses, the court did not address the issue of delegation of authority and NABP member boards are encouraged to consult with the Model State Pharmacy Act and Model Rules of the National Association of Boards of Pharmacy.
Whymeyer v Bureau of Professional and Occupational Affairs, State Registration Board for Professional Engineers, Land Surveyors, and Geologists, 2010 WL 2487579 (Comm. Ct. PA 2010)
