Link to Mo. Sup. Ct. Opinion
In 2007, the State Board of Registration for the Healing Arts (the Board) sent a letter to Dr. Kunkel prohibiting his delegation of certain responsibilities to nurses with whom he worked. Dr. Kunkel and other interested parties subsequently filed a petition in circuit court requesting relief from the policy. The trial court granted summary judgment for the Board, dismissing all claims by Dr. Kunkel and the other parties. On appeal, the Supreme Court of Missouri reversed and remanded. The court held that the letter sent to Dr. Kunkel constituted a “rule” and was invalid because the Board failed to follow proper rulemaking procedures as provided by statute. While the Board has the authority to properly promulgate rules on the general subject matter, the court remanded because it is a question of fact to determine if the Board independently possesses this authority. The court’s holding is proper and consistent with statute because the letter to Dr. Kunkel was not limited to the specific facts of his situation. The letter was instead a general statement that all APNs were unqualified to perform certain procedures. To make such general policy statements the Board must instead adhere to the statutorily prescribed rule making procedure.
I. Facts and Holding
Dr. Kunkel is an anesthesiologist in Rolla, Missouri.[2] He frequently delegated certain professional responsibilities to one of his advance practice nurses (APNs), Mr. Snyders.[3] One responsibility that Dr. Kunkel delegated to Mr. Snyders was the use of fluoroscopic procedures, which is an imaging technique that allows users to visualize the location of pain medication injections.[4]
The Board is a state agency with rulemaking authority over all licensed physicians, surgeons, and midwives in the state of Missouri.[5] In late 2007, the Board received letters which raised concerns regarding physicians delegating the responsibility of injecting therapeutic agents under fluoroscopic control to APNs like Mr. Snyders.[6] The Missouri State Medical Association (Medical Association) opposed the allowance of APNs to perform the fluoroscopic procedure, asserting that they were unqualified, and requested the Board to adopt a position prohibiting physicians from delegating such authority.[7] Dr. Kunkel opposed the Medical Association’s request, and argued that APNs were qualified to perform such procedures.[8]
In October 2007, the Board took up the request, and in February 2007 sent a letter to Dr. Kunkel stating that the Board took the position that “[APNs] currently do not have the appropriate training, skill, or experience to perform [the fluoroscopic] injections.”[9] In the letter the Board invited Dr. Kunkel to provide more documentation that shows the APNs had the requisite training.[10] After Dr. Kunkel provided additional documentation, the Board again denied his request.[11]
The decision of the Board was later distributed across the state when the Medical Association published a summary of the letter in its February 2008 monthly newsletter.[12] The newsletter is distributed to the organization’s physician members throughout Missouri.[13]
In April 2009, Dr. Kunkel, Mr. Snyders, and the Missouri Association of Nurse Anesthetists, Inc. (Appellants) filed a petition in the Cole County Circuit Court seeking several forms of relief.[14] The Appellants sought preliminary and permanent injunctions against the enforcement of the “letter rule,” a declaratory judgment that the rule was void, and a retraction of the “letter rule.”[15] The Appellants’ requested relief was based on two claims – that the Board failed to adhere to statutory rulemaking requirements and that the letter exceeded the Board’s authority inasmuch as it defined the scope of practice for nurses.[16] The Board conceded to the trial court that the letter was not a rule (as the Board failed to follow proper rulemaking procedure).[17] The trial court found that the letter did “not constitute a rule as same is defined in [section] 536.010(6),” and granted the Board’s motion for summary judgment.[18] The trial court did not explicitly address whether the Board exceeded its authority.[19]
A claim filed in September 2009 by the Board before the Administrative Hearing Commission (AHC) is now pending against Dr. Kunkel.[20] The claim alleges that Dr. Kunkel improperly delegated professional responsibilities for acts that predate the issuance of the Board’s letter.[21]
The Supreme Court of Missouri determined that declaratory judgment was available for this dispute.[22] The Missouri Administrative Procedure Act (MAPA) establishes authority for courts to render declaratory judgments that challenge the validity of a rule.[23] The court determined, however, that since no rule properly promulgated by statute is at issue, MAPA is inapplicable.[24] Despite MAPA being inapplicable the court stated that Missouri courts “have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”[25]
The court ultimately found that declaratory judgment was appropriate in this matter because: (1) there was a justiciable controversy; (2) Dr. Kunkel and the other plaintiffs had a legally protectable interest at stake; (3) there was controversy ripe for judicial determination; and (4) there was an inadequate remedy at law.[26]
The court found that there was a justiciable controversy because of the genuine disagreement between the parties as to what procedures may be properly delegated to APNs.[27] Additionally the court found that there is a legally protectable interest at stake in that Dr. Kunkel will be at risk to disciplinary proceedings and that all the plaintiffs will be adversely impacted if APNs cannot perform procedures they could previously perform.[28]
The court also found that the controversy was ripe for judicial determination because no further factual development is necessary, as the Board has finished its development of the policy (evidenced by the disciplinary proceeding filed against Dr. Kunkel), and an actual hardship exists for Dr. Kunkel and Mr. Snyders. [29] An actual hardship exists because Dr. Kunkel and Mr. Snyders must choose between complying with the Board’s letter or risk penalties by continuing the delegation of fluoroscopic procedures.[30]
In determining declaratory relief was appropriate, the court lastly determined that there was an inadequate remedy at law.[31] The court stated that while an administrative remedy is available the delay in the administrative proceedings against Dr. Kunkel (nearly a year and a half after the letter was written) caused a significant burden on Dr. Kunkel and Mr. Snyders from practicing their profession.[32] The court held that due to the delay in initiating proceedings against Dr. Kunkel, declaratory judgment is appropriate in this case.[33]
The court then determined the language of the letter was generally applicable to all physicians and APNs because it was not limited to a specific set of facts, but rather had a future effect and potential impact to any physician desiring to delegate the procedure to an APN.[34] The court held that since the letter was a statement of general applicability that interpreted the law and specified policy, it required promulgation as a rule, pursuant to Section 536.020 of the Revised Statutes of Missouri.[35] The letter was written in the manner of a rule, although it was not properly promulgated as such.
Section 536.021.1 of the Revised Statutes of Missouri outlines the necessary procedures to promulgate a rule, requiring that “[n]o rule shall hereafter be proposed, adopted . . . by any state agency unless such agency shall first file with the secretary of state a notice of proposed rulemaking and a subsequent final order of rulemaking . . . .”[36] Section 334.125.2 also states that for any rule to become effective, the Board must submit proposed rules to the joint committee on administrative rules.[37] Since it is undisputed that these procedures were not followed, the court determined the letter void of any legal effect as a rule.[38]
The court next held that the Board did have the legal authority to promulgate rules if statutory requirements are met.[39] Revised Statutes of Missouri section 334 (governing the Board), states that the Board was created for the purpose of “registering, licensing and supervising all physicians and surgeons, and midwives in this state.”[40] The Board further has the power to file complaints against licensed physicians with the AHC, including instances in which it is determined that a licensed physician is “[d]elegating professional responsibilities to a person who is not qualified . . . .”[41] If the AHC finds against the physician, the Board has the authority to discipline the physician.[42]
The Supreme Court of Missouri noted that for collaborative practice arrangements between physicians and nurses, the Board shares authority to promulgate rules with another state agency, the Missouri State Board of Nursing (Board of Nursing).[43] The Board and Board of Nursing must both agree on rules promulgated regarding collaborative practice arrangements.[44] The court determined it was unclear whether in its letter the Board was attempting to regulate the practice of physicians, which it has the authority to do if proper procedures are followed, or to regulate the practice of nursing, which it does not.[45] The court ultimately found that this determination could not be made as a matter of law, and so remanded the issue to the trial court for determination as a matter of fact.[46]
In sum, the court held that the Board’s letter was a rule, due to its general applicability, but was void of legal effect because proper statutory rulemaking procedures were not followed. While the procedures were not adhered to in this case, the court did determine that the Board has authority to promulgate rules on this subject matter. The court, though, decided the determination as to whether the Board has proper authority to promulgate rules in this situation independent of the Board of Nursing cannot be made as a matter of law.
II. Legal Background
The Missouri Administrative Procedure Act (MAPA) establishes authority for courts to render declaratory judgments that challenge the validity of a rule.[47] The Supreme Court of Missouri in Mo. Soybean Ass’n v. Mo. Clean Water Comm’n stated that pursuant to MAPA, “a declaratory judgment under MAPA, therefore, is not available unless the administrative action in question constitutes a rule.”[48] Section 527.050 of the Revised Statutes of Missouri provide for declaratory judgment in other circumstances, and states that Missouri courts “have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”[49] To grant a declaratory judgment, there must be: (1) a justiciable controversy; (2) a plaintiff with a legally protectable interest at stake; (3) a controversy that is ripe for judicial determination; and (4) an inadequate remedy at law.[50]
A justiciable controversy exists if there is a genuine disagreement and substantial controversy between the parties.[51] A plaintiff has a legally protectable interest if they are directly and adversely affected by the action in question.[52]
The Supreme Court of Missouri has found that determining whether a case is ripe for judicial resolution requires a court to evaluate: (1) whether the issues tendered are appropriate for judicial resolution, and (2) the hardship to the parties if judicial relief were to be denied.[53]
In determining if there is an adequate remedy at law, the general rule provides that declaratory relief is not available if the party has failed to exhaust their administrative remedies provided by statute.[54] An adequate remedy is considered unavailable where the agency has failed to commence any proceeding when it is the agency’s duty to do so.[55] When the agency has failed to commence administrative proceedings the threatened party may invoke the court’s jurisdiction to a declaratory judgment.[56]
MAPA defines a rule as “each agency statement of general applicability that implements, interprets, or prescribes, law or policy, or that describes the organization, procedure, or practice requirements of any agency.”[57] The Supreme Court of Missouri has held though that “[n]ot everything that is written or published by an agency constitutes an administrative rule”[58] and that the statement must set a standard of conduct intended to have a general and prospective application.[59] The Supreme Court of Missouri has also noted that “[i]mplicit in the concept of the word ‘rule’ is that the agency declaration has a potential, however slight, of impacting the substantive or procedural rights of some member of the public.”[60]
Revised Statutes of Missouri § 536.021 provides the rulemaking procedures that are necessary for a state agency to properly promulgate a rule.[61] Section 536.021.1 states: “[n]o rule shall hereafter be proposed, adopted, amended or rescinded by any state agency unless such agency shall first file with the secretary of state a notice of proposed rulemaking and a subsequent final order of rulemaking, both of which shall be published in the Missouri Register by the secretary of state as soon as practicable after the filing thereof in that office . . . .” Section 334.125.2 states further requirements for the Board before a rule can become effective.[62] The statute requires that the Board must submit any proposed rule to the joint committee on administrative rules prior to the rule becoming effective.[63] Missouri statutory and case law also provides that “any rule. . . shall be null, void and unenforceable unless made in accordance with the provisions of [section 536.021].”[64] The Supreme Court of Missouri in United Pharmacal Co. of Mo. Inc., v. Mo. Bd. of Pharmacy additionally provided that if a rule is void, it has “no legal force or binding effect.”[65]
Revised Statutes of Missouri § 334.100.2 gives the Board authority to promulgate rules regulating physician activity. The Board was created for the purpose of “registering, licensing, and supervising all physicians and surgeons, and midwives in this state.”[66] Section 334.100 also provides the Board the authority to file complaints with the AHC against licensed physicians for a specified list of causes.[67] Included in the specified list of causes are instances where the Board determines a licensed physician to be “[d]elegating professional responsibilities to a person who is not qualified by training, skill, competency, age experience or licensure to perform such responsibilities . . . .”[68] If the AHC finds that the cause is met, the Board has the authority to discipline the physician.[69]
Revised Statutes of Missouri § 334.1552 further states that it “shall not prevent a licensed physician from referring a patient to or delegating responsibilities to nurses who are licensed and lawfully practicing in accordance with statute.”[70] Revised Statutes of Missouri section 335 governs the practice and licensure of nurses in Missouri. Section 335.016(15) provides the scope of practice for “professional nursing” as: “the performance for compensation of any act which requires substantial specialized education, judgment and skill based on knowledge and application of principles derived from the biological, physical, social and nursing sciences, including, but not limited to: . . . (c) The administration of medications and treatments as prescribed by a person licensed by a state regulatory board to prescribe medications and treatments . . . .”[71]
The Supreme Court of Missouri stated in Semerchief v. Gonzales that a nurse is permitted to assume responsibilities beyond the statutory scope so long as those responsibilities are consistent with his or her “specialized education, judgment and skill based on knowledge and application of principles derived from the biological, physical, social and nursing sciences.”[72]
Rules regarding collaborative arrangements between doctors and nurses that exceed the normal scope of practice for the professional nurses, may, according to Revised Statutes of Missouri § 334.104, be jointly promulgated by the Board and the Board of Nursing.[73] Section 334.104 provides that neither the Board nor the Board of Nursing may independently promulgate rules relating to collaborative practice arrangements.[74]
III. Comment
The court was correct to find that declaratory relief was appropriate in this case. The Board waited almost a year and a half after the letter was written to file complaint with the AHC. This length of time was too long and represented significant burden upon Dr. Kunkel and Mr. Snyders in conducting their professions. While remedies may often be available to some parties after the harm has occurred, in this case it was the Board’s failure to file a complaint within a reasonable amount of time that was the direct cause of the harm (which was substantially aggravated by the delay). It was the Board’s duty to initiate administrative proceedings, and it would not be fair to now reward their needless delay of the available remedy by finding declaratory relief inappropriate.
The general statement that APNs are unqualified is a problem because if the Board wishes to make such general policy decisions it should properly promulgate a rule. Revised Statutes of Missouri section 334 provides only that the Board has the authority to determine if a specific licensed physician is improperly delegating professional responsibilities to an unqualified individual. [75] If the Board believes that APNs are inherently unqualified to perform certain procedures, it is the Board’s prerogative to take the steps, whether independently or with the Board of Nursing, necessary to promulgate such a rule. Unfortunately in this circumstance, whether intentional or not, the Board made a general policy statement that was interpreted as a general rule that APNs are unqualified to perform certain procedures.
The Board can avoid such problems in the future by limiting such response letters to the specific set of facts and circumstances in question and promptly filing complaints with the AHC. It seems the problem arose because the Board was trying to respond to both requests by the Medical Association to adopt a position prohibiting physicians from delegating such authority and Dr. Kunkel’s opposition that APNs were in fact qualified. [76] The Board’s response to Dr. Kunkel should have either been limited to his particular circumstance or not announced as a new general position of the Board.
-Nathan Atkinson
[1] No. SC 91302 (Mo. July 19, 2011) (en banc), available at http://www.courts.mo.gov/file.jsp?id=47567. The West Reporter citation is Mo. Ass’n of Nurse Anesthetists v. State Bd. of Registration for the Healing Arts, 343 S.W.3d 348 (Mo. June 28, 2011) (en banc).
[2] Id. at 3.
[3] Id.
[4] Id.
[5] Id. at 2. The Board’s authority is promulgated in Chapter 334 of the Revised Statutes of Missouri. Id.
[6] Id. at 3.
[7] Id. at 3-4.
[8] Id. at 4.
[9] Id.
[10] Id.
[11] Id. at 5.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 5-6.
[19] Id. at 6.
[20] Id.
[21] Id.
[22] Id. at 6-13.
[23] Mo. Rev. Stat. § 536.050.1 (2000).
[24] Mo. Ass’n of Nurse Anesthetists, Inc., No. SC91302, slip op. at 7.
[25] Id.; Mo. Rev. Stat. § 527.050 (2000)
[26] Mo. Ass’n of Nurse Anesthetists, Inc., No. SC91302, slip op. at 8-13.
[27] Id. at 8.
[28] Id. at 9.
[29] Id. at 10-11.
[30] Id.
[31] Id. at 11-13.
[32] Id. at 12.
[33] Id. at 13.
[34] Id. at 15.
[35] Id. at 16.
[36] Mo. Rev. Stat. § 536.021.1 (Supp. 2010).
[37] Mo. Rev. Stat. § 344.125.2 (2000).
[38] Mo. Ass’n of Nurse Anesthetists, Inc., No. SC91302, slip op. at 16.
[39] Id. at 17-22.
[40] Mo. Rev. Stat. § 334.120.1, (Supp. 2010); Mo. Ass’n of Nurse Anesthetists, Inc., No. SC91302, slip op. at 17.
[41] Mo. Rev. Stat. § 334.100.2(4)(d); Mo. Ass’n of Nurse Anesthetists, Inc., No. SC91302, slip op. at 17-18.
[42] Mo. Rev. Stat. § 334.100.4; Mo. Ass’n of Nurse Anesthetists, Inc., No. SC91302, slip op. at 18.
[43] Mo. Ass’n of Nurse Anesthetists, Inc., No. SC91302, slip op. at 19-21
[44] Id.
[45] Id. at 22.
[46] Id. at 22-23.
[47] Mo. Rev. Stat. § 536.050.1 (2000).
[48] 102 S.W.3d 10, 22 (Mo. 2003) (en banc).
[49] Mo. Rev. Stat § 527.010 (2000).
[50] Mo. Soybean, 102 S.W.3d at 25.
[51] Id.
[52] Kansas City Power & Light Co. v. McBeth, 322 S.W.3d 525, 530 (Mo. 2010) (en banc).
[53] Mo. Soybean, 102 S.W.3d at 27.
[54] Council House Redevelopment Corp. v. Hill, 920 S.W.2d 890, 892 (Mo. 1996) (en banc); Schierding v. Missouri Dental Bd., 705 S.W.2d 484, 487 (Mo. App. 1985).
[55] Farm Bureau Town & Country Ins. Co. of Missouri v. Angoff, 909 S.W.2d 348, 354 (Mo. 1995) (en banc).
[56] Id.
[57] Mo. Rev. Stat § 536.010(6) (2000).
[58] United Pharmacal Co. of Mo. Inc., v. Missouri Bd. of Pharmacy, 159 S.W.3d 361, 365 (Mo. 2005) (en banc).
[59] Mo. Soybean, 103 S.W.3d at 23.
[60] Baugus v. Dir. Of Revenue, 878 S.W.2d 39, 42 (Mo. 1994) (en banc).
[61] Mo. Rev. Stat. § 536.021.1 (Supp. 2010)
[62] Mo. Rev. Stat. § 334.125.2 (Supp. 2010)
[63] Id.
[64] Mo. Rev. Stat. § 536.020.7 (2000); NME Hospitals, Inc. v. Dep’t of Soc. Services, Div. of Med. Services, 850 S.W.2d 71, 74 (Mo. 1993) (en banc).
[65] 159 S.W.3d 361, 365 (Mo. 2005) (quoting R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744, 745 (Mo. 2004) (en banc)).
[66] Mo. Rev. Stat. § 334.120.1 (2000).
[67] Mo. Rev. Stat. § 334.100.2 (2000).
[68] Mo. Rev. Stat. §334.100.2(4)(d) (2000).
[69] Mo. Rev. Stat. § 334.100.4 (2000).
[70] Mo. Rev. Stat. § 334.1552.2 (2000).
[71] Mo. Rev. Stat. § 335.016(15) (2000).
[72] 660 S.W.2d 683, 690 (Mo. 1983) (en banc).
[73] Mo. Rev. Stat. § 334.104 (Supp. 2010).
[74] Id.
[75] Mo. Rev. Stat. § 334.100.2(4)(d) (2000). The Board has the authority to determine a licensed physician to be “[d]elegating professional responsibilities to a person who is not qualified by training, skill, competency, age experience or licensure to perform such responsibilities . . . .” Id.
[76] Id. at 3-4.
