the evolution of administrative and regulatory laws institute of regulatory excellence january 7-9,...

The Evolution of The Evolution of Administrative and Administrative and Regulatory LawsRegulatory Laws

Institute of Regulatory Institute of Regulatory ExcellenceExcellence

January 7-9, 2008January 7-9, 2008Dusty Johnston Dusty Johnston William F. KnightWilliam F. Knight

Administration/RegulationAdministration/Regulation

When & where did it start?When & where did it start? What exactly is it?What exactly is it? Why?Why?

Administration/RegulationAdministration/Regulation

It’s what we doIt’s what we do FederalFederal StateState CountyCounty MunicipalMunicipal UnincorporatedUnincorporated OverlappingOverlapping

We regulate:We regulate:

ProfessionsProfessions PeoplePeople InstitutionsInstitutions OrganizationsOrganizations OtherOther

RegulationRegulation

How do we do it?How do we do it? Enforcement of professional actsEnforcement of professional acts

Nurses, Physicians, Pharmacists, Dentist, Nurses, Physicians, Pharmacists, Dentist, Lawyers, etcLawyers, etc

Administrative Procedures Act (APA)Administrative Procedures Act (APA) 50 different areas50 different areas One FederalOne Federal

Equal ProtectionEqual Protection Due Process Due Process FOIAFOIA

Why Regulation?Why Regulation?

ProtectionProtection ConsistencyConsistency ContinuityContinuity StandardizationStandardization

U.S. Patriot ActU.S. Patriot Act

Article in New York TimesArticle in New York Times Loss of individual freedomLoss of individual freedom Concerns?Concerns? What would the founders of the U.S. What would the founders of the U.S.

Constitution have thought?Constitution have thought?

New York Times article concluded:New York Times article concluded:

The average American:The average American: didn’t seem to caredidn’t seem to care didn’t read itdidn’t read it didn’t understand which freedoms didn’t understand which freedoms

were being restrictedwere being restricted had NEVER read the U.S. had NEVER read the U.S.

ConstitutionConstitution didn’t know the number of times the didn’t know the number of times the

Constitution had been amended.Constitution had been amended.

New York Times article concludes:New York Times article concludes:(Cont.)(Cont.)

The average American:The average American: didn’t know the number of amendments didn’t know the number of amendments

repealedrepealed didn’t know the significance of the first didn’t know the significance of the first

10 Amendments 10 Amendments

The average lawyer never read it The average lawyer never read it again in its entirety after passing again in its entirety after passing the Bar.the Bar.

Reason given for not reading….Reason given for not reading….

Too longToo long Too complicatedToo complicated Didn’t know where to find a copy Didn’t know where to find a copy Not smart enough to understandNot smart enough to understand

My Response….My Response….

It’s shortIt’s short Easy to readEasy to read You will understand itYou will understand it

Where are we today?Where are we today?

9/119/11 WarWar

AfghanistanAfghanistan IraqIraq

Bombings: Spain, BritainBombings: Spain, Britain Other Middle Eastern issuesOther Middle Eastern issues

Korea – Nuclear WeaponKorea – Nuclear Weapon Terrorism world wideTerrorism world wide U.S. Patriot ActU.S. Patriot Act

My Response….My Response….

I thought it would be good to I thought it would be good to look at Regulatory or look at Regulatory or Administrative Law and see Administrative Law and see how we got here.how we got here.

U.S. Constitution – early historyU.S. Constitution – early history

Foundation of the CountryFoundation of the Country Foundation of our system of justiceFoundation of our system of justice Defines who we are as a country and Defines who we are as a country and

peoplepeople All laws must pass Constitutional All laws must pass Constitutional

mustermuster

July 4, 1776 July 4, 1776 Declaration of IndependenceDeclaration of Independence

13 colonies declare:13 colonies declare: IndependenceIndependence Themselves the United States of Themselves the United States of

America America

Two problems….. Two problems….. Lack of unityLack of unity No US Constitution – yet!!No US Constitution – yet!!

January 1786January 1786

Colonies wereColonies were preparing for a constitutional preparing for a constitutional

conventionconvention drafting the U.S. Constitutiondrafting the U.S. Constitution

Once drafted:Once drafted: States had to ratifyStates had to ratify Delaware was first to ratifyDelaware was first to ratify Rhode Island was 13Rhode Island was 13thth

May 25, 1787May 25, 1787

Done deal!Done deal! We have a constitutionWe have a constitution We have the United States of America We have the United States of America

(13 colonies)(13 colonies) George Washington was elected George Washington was elected

PresidentPresident

U.S. ConstitutionU.S. Constitution

Three Branches of GovernmentThree Branches of Government Legislative Branch – CongressLegislative Branch – Congress Executive Branch – PresidentExecutive Branch – President Judicial Branch – Supreme CourtJudicial Branch – Supreme Court

Separation of Powers DoctrineSeparation of Powers Doctrine Legislative drafts lawsLegislative drafts laws President signs lawsPresident signs laws Court interpret lawsCourt interpret laws

Marbury vs. Madison (1803)Marbury vs. Madison (1803)

SignificantSignificant Established the powers of U.S. Supreme Established the powers of U.S. Supreme

Court Court final word on the U.S. Constitutionfinal word on the U.S. Constitution not found in the Constitutionnot found in the Constitution

Chief Justice (John Marshall)Chief Justice (John Marshall) 11stst Constitutional challenge Constitutional challenge Chief Justice vs. U.S. PresidentChief Justice vs. U.S. President

U.S. ConstitutionU.S. Constitution

7 Articles7 Articles Article 5 - amending the constitutionArticle 5 - amending the constitution

26 Amendments26 Amendments One Amendment repealedOne Amendment repealed

2121stst Amendment repealed the 18 Amendment repealed the 18thth Amendment (Prohibition)Amendment (Prohibition)

Amendments to the ConstitutionAmendments to the Constitution 26 Amendments26 Amendments Very difficultVery difficult Intended to be difficult (no accident)Intended to be difficult (no accident)

Framers Feared – “Knee Jerk” reactionFramers Feared – “Knee Jerk” reaction See 18See 18thth Amendment Amendment

Over 11,000 Attempts to AmendOver 11,000 Attempts to Amend Examples of failed attemptsExamples of failed attempts

ERAERA Flag desecrationFlag desecration AbortionAbortion English as National languageEnglish as National language GunsGuns Marriage (only between man & woman)Marriage (only between man & woman)

Amending the U.S. ConstitutionAmending the U.S. Constitution

Fear of amendingFear of amending Fear of the unknownFear of the unknown

Don’t know how the U.S. Supreme Court Don’t know how the U.S. Supreme Court will interpret (both conservative and will interpret (both conservative and liberal)liberal)

Examples:Examples: 22ndnd Amendment Amendment GunsGuns Do we have a constitutional right or not?Do we have a constitutional right or not?

11stst Ten Amendments Ten Amendments

11stst Amendment Amendment ReligionReligion Political freedom (free exercise clause)Political freedom (free exercise clause) SpeechSpeech PressPress Right to Right to peaceablepeaceable assembly assembly


22ndnd Amendment – Right to Bear Arms Amendment – Right to Bear Arms Supreme Court has only addressed it 7 Supreme Court has only addressed it 7

timestimes Supreme Court has Supreme Court has NEVERNEVER said we have a said we have a

right to bare arms as individualsright to bare arms as individuals State Militias (National Guard)State Militias (National Guard)

Why not more cases on 2Why not more cases on 2ndnd Amendment? Amendment?

FEAR!FEAR!


33rdrd Amendment – Quartering of Amendment – Quartering of SoldiersSoldiers Can’t quarter soldiers in your home in Can’t quarter soldiers in your home in

times of peacetimes of peace Can quarter during warCan quarter during war

44thth Amendment – Search & Seizure Amendment – Search & Seizure 100’s of cases100’s of cases


55thth Amendment – Criminal actions/ double Amendment – Criminal actions/ double jeopardyjeopardy Right not to testifyRight not to testify Cannot be deprived of life, liberty or property Cannot be deprived of life, liberty or property

without due process of the lawwithout due process of the law Due process is not in the Declaration of Due process is not in the Declaration of

IndependenceIndependence Due processDue process

Magna Carta – very limitedMagna Carta – very limited George Mason drafted Virginia Constitution & George Mason drafted Virginia Constitution &

added it to U.S. Constitutionadded it to U.S. Constitution


66thth Amendment – Rights of Accused Amendment – Rights of Accused to:to: Speedy trialSpeedy trial Public trialPublic trial Jury trialJury trial Informed of charges against youInformed of charges against you Subpoena witnessesSubpoena witnesses Right to counselRight to counsel Confront witnessesConfront witnesses


77thth Amendment – Jury trial in civil action Amendment – Jury trial in civil action

88thth Amendment – Punishment/Bail Amendment – Punishment/Bail No excessive bail or finesNo excessive bail or fines No cruel & unusual punishmentNo cruel & unusual punishment Death penalty casesDeath penalty cases

99thth Amendment – Rights retained by Amendment – Rights retained by peoplepeople Rarely usedRarely used


1010thth Amendment – Rights reserved to Amendment – Rights reserved to the Statesthe States AlcoholAlcohol MarriageMarriage


1414thth Amendment Amendment Made 1Made 1stst ten amendments applicable to ten amendments applicable to

the Statesthe States Due process of Law Due process of Law Equal protectionEqual protection

Bill of Rights (first ten amendments)Bill of Rights (first ten amendments)

Administrative & Regulatory LawAdministrative & Regulatory Law

FederalFederal

StateState

As regulators and citizens, we As regulators and citizens, we operate under both systemsoperate under both systems

Federal SystemFederal System

U.S. Constitution U.S. Constitution Federal Criminal LawsFederal Criminal Laws

Criminal CodeCriminal Code Criminal ProceduresCriminal Procedures

Federal Rules of Evidence & ProcedureFederal Rules of Evidence & Procedure Federal Civil LawsFederal Civil Laws

TaxationTaxation BankruptcyBankruptcy ContractsContracts TreatiesTreaties

Federal System Federal System (cont.)(cont.)

Federal Regulatory & Administrative Federal Regulatory & Administrative laws have:laws have: Numerous Federal Commissions, Agencies Numerous Federal Commissions, Agencies

and Boards with regulatory authorityand Boards with regulatory authority Power to regulatePower to regulate

Comes from CongressComes from Congress Did/does Congress have authority to regulate?Did/does Congress have authority to regulate? Authority to delegate power to regulate to Authority to delegate power to regulate to

agency, etcagency, etc

Federal System Federal System (cont.)(cont.)

Examples of Federal Regulatory AgenciesExamples of Federal Regulatory Agencies FDA (Food & Drug Administration)FDA (Food & Drug Administration) OSHA (Occupational Safety & Health Admin)OSHA (Occupational Safety & Health Admin) SEC (Securities and Exchange Commission)SEC (Securities and Exchange Commission) FEC (Federal Election Commission)FEC (Federal Election Commission) EPA (Environmental Protection Agency)EPA (Environmental Protection Agency) FTC (Federal Trade Commission)FTC (Federal Trade Commission) MedicareMedicare Etc.Etc.

Federal SystemFederal System

TreatiesTreaties Limited to Federal government & foreign Limited to Federal government & foreign

governmentgovernment States States

do not have right to enter into treaties with foreign do not have right to enter into treaties with foreign governmentsgovernments

Contracts with other state – compact (requires legislation)Contracts with other state – compact (requires legislation) Examples:Examples:

Nurse Licensure CompactNurse Licensure Compact Driver’s licenseDriver’s license Child supportChild support PensionsPensions EPA – riversEPA – rivers Nuclear WasteNuclear Waste

State SystemState System

Mirrors Federal system in structureMirrors Federal system in structure Three systems of GovernmentThree systems of Government

Legislative, Administrative, JudicialLegislative, Administrative, Judicial Bound byBound by

U.S. & State ConstitutionU.S. & State Constitution U.S. & State LawsU.S. & State Laws U.S. & State RegulationU.S. & State Regulation State Rules & RegulationState Rules & Regulation


State ConstitutionState Constitution Often provides broader rights than Often provides broader rights than

Federal ConstitutionFederal Constitution Often amendedOften amended

Contained in volumes rather than pagesContained in volumes rather than pages VerboseVerbose Knee-jerk reaction (multiple amendments)Knee-jerk reaction (multiple amendments)


State Constitution is modeled on:State Constitution is modeled on: Other State constitutionsOther State constitutions U.S. ConstitutionU.S. Constitution Articles of ConfederationArticles of Confederation British Common LawBritish Common Law Magna CartaMagna Carta


States regulate licensed professions States regulate licensed professions throughthrough Professional Practice ActProfessional Practice Act Administrative Procedures ActAdministrative Procedures Act Freedom of Information Acts (FOIA)Freedom of Information Acts (FOIA) Rules and RegulationsRules and Regulations OtherOther

Consent AgreementsConsent Agreements Agreed ordersAgreed orders Etc.Etc.


Administrative Procedures Act (APA)Administrative Procedures Act (APA) Federal & StateFederal & State

Federal adopted in 1950sFederal adopted in 1950s States lead in the development & adoption States lead in the development & adoption

of APAsof APAs

APAs based on U.S. & State Supreme APAs based on U.S. & State Supreme Court case law, 5Court case law, 5thth & 14 & 14thth Amendment to Amendment to U.S. ConstitutionU.S. Constitution


Administrative Procedures Act Administrative Procedures Act (cont)(cont) Each State has their own APAEach State has their own APA

Similar but no two alikeSimilar but no two alike Can vary considerablyCan vary considerably

Model APAModel APA Some states have adopted some have notSome states have adopted some have not

Arkansas – noArkansas – no Texas - ???Texas - ???


APA: Primary Purpose APA: Primary Purpose Provides minimum due process rightsProvides minimum due process rights

Procedural Procedural SubstantiveSubstantive

Due process is involved when:Due process is involved when: Someone is possibly going to be denied a Someone is possibly going to be denied a

right, opportunity or privilege to engage in a right, opportunity or privilege to engage in a particular conduct or activityparticular conduct or activity


Administrative Procedures Act Created To Administrative Procedures Act Created To Establish Rules and Standards for organizationsEstablish Rules and Standards for organizations Promote fairness and equal treatmentPromote fairness and equal treatment To avoid arbitrary decisions by BoardTo avoid arbitrary decisions by Board Example: Example:

licensure licensure exam exam license limited license limited discipline licensediscipline license

ProbationProbation SuspensionSuspension RevokeRevoke

State SystemsState Systems

APA Guarantees:APA Guarantees: Right to counselRight to counsel Right to public hearingRight to public hearing Right to notice (time, place, date, notice Right to notice (time, place, date, notice

of charges, legal authority & jurisdiction)of charges, legal authority & jurisdiction) Right to confront witnessesRight to confront witnesses Right to “statements” to be used Right to “statements” to be used

against youagainst you Statement of expertsStatement of experts


APA Guarantees (cont.)APA Guarantees (cont.) Evidence against you (books, papers, Evidence against you (books, papers,

documents, photos, recordings, etc.)documents, photos, recordings, etc.) Right to respondRight to respond

Present evidencePresent evidence Present argumentPresent argument

Right to final written decision (Findings Right to final written decision (Findings of Fact and Conclusions of Law)of Fact and Conclusions of Law)

Right to appealRight to appeal Right to interpreterRight to interpreter


Standard of Proof Standard of Proof Beyond a reasonable doubtBeyond a reasonable doubt Preponderance of evidencePreponderance of evidence Something less that the aboveSomething less that the above

Arkansas – substantialArkansas – substantial Texas - ???Texas - ???


Freedom of Information Act (FOIA) Freedom of Information Act (FOIA) StatutoryStatutory Generally contained within APAGenerally contained within APA Both Federal & State FOIABoth Federal & State FOIA

Tremendous variationTremendous variation Arkansas is broad and sweeping – most Arkansas is broad and sweeping – most

everythingeverything Texas Board - ???Texas Board - ???


Freedom of Information Act (FOIA) Freedom of Information Act (FOIA) Can request FOIA informationCan request FOIA information

In personIn person By phoneBy phone WrittenWritten FaxFax EtcEtc

Executive SessionExecutive Session Contained within most FOIAContained within most FOIA 50 states – 50 different executive sessions50 states – 50 different executive sessions Arkansas is very limitedArkansas is very limited Texas ??Texas ??


Licensing Boards - Nursing Licensing Boards - Nursing Statutory authorityStatutory authority Governed by State lawsGoverned by State laws

Practice ActPractice Act Authority expressly grantedAuthority expressly granted

Regulate & police the professionRegulate & police the profession


Licensing Boards - Nursing Licensing Boards - Nursing ResponsibilityResponsibility

Protect the publicProtect the public Uniformity of practiceUniformity of practice Uniformity of educational standardsUniformity of educational standards Initial and continuing professional standardsInitial and continuing professional standards Enforcement of standardsEnforcement of standards Assist practitionersAssist practitioners

ProfessionallyProfessionally EducationEducation Peer AssistancePeer Assistance


Licensing Boards - Nursing Licensing Boards - Nursing MembersMembers

Appointed by governorAppointed by governor ElectedElected

QUESTIONS

the evolution of administrative and regulatory laws institute of regulatory excellence january 7-9,...

Documents

constitution didnt

th slide

us constitution

knight slide

patriot act slide

amendments didnt

constitutional muster

complicated didnt