Obeying the Unwritten Rules
Walker v. North Carolina State Board of Dental Examiners and Its Meaning for Professional Licensees in North Carolina
North Carolina currently has fifty-five occupational licensing agencies. These agencies regulate professions including law, medicine, engineering, surveying, therapy, and real estate. Generally, the agencies regulate their particular professions by enforcing rules of ethics and practice. Their rules are found in the law that created the agencies as well as regulations that the agencies have authority to promulgate.
Unfortunately, for licensees, the meaning of these rules is not always clear. For example, many “Practice Acts,” the laws establishing the licensing agencies, prohibit “immoral conduct,” “unprofessional conduct” and “negligence.” A licensee who commits such acts can be subject to discipline by his or her licensing board, regardless of whether the act results in any harm. The problem for many licensees is trying to understand what constitutes immoral, unprofessional, or negligent conduct, warranting discipline.
The recent decisions in Walker v. North Carolina State Board of Dental Examiners highlight this problem. In Walker, the licensing board imposed disciplinary action against its licensee for failing to document reasons supporting her prescription of pain medication for each patient. After the board issued its disciplinary decision, the licensee appealed on grounds that the board never adopted a rule requiring her to justify pain medication prescriptions in her notes and could not discipline her without such a rule.
On appeal, the Court of Appeals affirmed the licensing board’s imposition of discipline. While they agreed that licensing boards could not typically enforce new rules governing their licensees’ practice without going through their rule-making process, the Court concluded that discipline was still proper because the board had determined that a failure to document reasons for pain medication prescriptions constituted negligence in the practice of dentistry. Because of the special deference afforded to agencies to define the standard of care for their profession, the Court of Appeals affirmed the licensing board’s discipline.
Tips for Licensees
Cases like Walker illustrate the complex and, often, vague legal environment in which licensed professionals practice their profession. To avoid potential disciplinary issues, licensees should take two steps to avoid breaking their profession’s unwritten rules. First, they should proactively review their practices and procedures on a routine basis. Industry and professional concerns change over time. Licensed professionals need to make routine reviews to ensure that they and their employees are operating with up-to-date policies and procedures that address the current concerns of their licensing boards. The maxim of no harm, no foul does not apply in the discipline context. Second, licensees should also engage legal counsel to assist them in their review and implementation of their policies and procedures. Our attorneys use their years of experience helping licensees before various licensing boards to identify potential areas of concern and make recommendations appropriate compliance recommendations.
If you are a licensee concerned about your compliance with your licensing board’s unwritten rules, contact our attorneys for a consultation and review of your policies and procedures. We are invested in your success.