Could Kentucky make a physician's license depend on accepting patients in a state health care pool?

Plain-English summary

Vic Hellard, Jr., Director of the Legislative Research Commission, asked whether Kentucky could require physicians, as a condition of their licenses, to accept patients covered by a proposed state health care megapool. The AG said occupational restrictions needed a rational connection to a legitimate state end. In the AG's view, adding the acceptance condition to the physician licensing provisions of KRS 311.571 or the rest of KRS Chapter 311 appeared unrelated to that chapter's purpose of protecting the public from improperly trained or educated physicians. The opinion did not decide that every possible version of the requirement was unconstitutional: a provision elsewhere in the statutes might survive if a court found the needed connection to a legitimate state end.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Physicians and proposed license conditions

The proposed condition would have required a physician to agree to accept anyone in the class covered by the state-created pool. The AG distinguished that patient acceptance obligation from the qualifications then listed in the medical licensing chapter, which the opinion understood as guarding against inadequate medical training or education.

Legislators considering health care coverage

The opinion treated the proposed placement of the requirement in the licensing chapter as constitutionally vulnerable under its rational-relationship analysis. It expressly left room for a differently placed statute if a court could be convinced of its rational relationship to a legitimate state end. The opinion did not evaluate a specific alternative statute.

Common questions

Could Kentucky require doctors to accept patients in a state health care pool to keep their licenses?

The AG said in 1993 that inserting the proposed condition into the physician licensing chapter appeared unrelated to that chapter's purpose of protecting patients from physicians without proper training or education.

Did the opinion rule out every patient acceptance requirement?

No. It said a requirement elsewhere in Kentucky's statutes might withstand constitutional review if a court found it rationally related to a legitimate state end.

What constitutional test did the AG apply?

The opinion said a state restriction on practicing a profession needed a rational relationship to a legitimate state end. It cited federal due process and equal protection principles and Kentucky constitutional protections against arbitrary power.

Background and statutory framework

The request concerned a proposed health care megapool, not an enacted requirement identified in the opinion. The AG cited Schware for the connection between professional qualifications and fitness to practice, and McGuffey for Kentucky's rejection of a physician insurance and compensation-fund requirement on the record in that case. It then compared the proposed patient acceptance condition with KRS 311.571's physician licensing requirements.

Citations and references

• KRS 311.571 and KRS Chapter 311: physician licensing provisions discussed by the AG.
• Schware v. Board of Bar Examiners of the State of New Mexico, 352 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957): federal professional qualification principle.
• McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977): Kentucky decision concerning malpractice insurance and a patient compensation fund.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG93-028.htm

Original opinion text

OAG 93-28

March 23, 1993

Vic Hellard, Jr.

Director, Legislative Research Commission

State Capitol

Frankfort, KY 40601

Dear Mr. Hellard:

This is in response to your recent letter in which you requested an opinion:

. . . as to whether any state or federal constitutional provision would be violated by a statutory requirement that, as a condition of licensure to practice medicine in this Commonwealth, a physician agrees to accept as a patient any individual who is within the class of those persons covered by a state created megapool for health care services.

In regard to federal constitutional issues, the placement of qualifications by a state on the ability to practice an otherwise legitimate profession is governed by the Due Process and Equal Protection Clauses of the 14th Amendment to the U.S. Constitution. The United States Supreme Court in Schware v. Board of Bar Examiners of the State of New Mexico, 352 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), held that:

A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the 14th Amendment. [Citation omitted.] A State can require high standards of qualifications, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law.

353 U.S. at 239, 77 S.Ct. at 756. (Emphasis added.)

While this decision may be somewhat dated, the principle of law quoted still holds true today. Therefore, while states are authorized to regulate certain professions practiced within their borders such regulation, in order to satisfy federal constitutional restrictions, must have a rational relationship to a legitimate state end.

This same standard of review has been adopted in Kentucky but is based upon Articles 1(5) and 2 of the Kentucky Constitution. Article 1(5) protects an individual's right to acquire and protect his property, which in this case is the right to practice a profession, and Article 2 prohibits the exercise of arbitrary power. A recent case in this area is McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977), in which the Kentucky Supreme Court held that state statutes which compelled physicians and hospitals to carry malpractice insurance and be members of a state-operated patients' compensation fund were unconstitutional. The Act provided that any physician who failed to obtain such insurance and become a member of the fund was required to show cause why his license should not be suspended. In striking down this requirement, the court determined that there was a lack of justification in the record of the case to find that the intrusion into the natural right of any individual to pursue a legitimate profession was rationally related to the legitimate end of the state to protect its citizens from unsatisfied malpractice claims.

Therefore, in order for the insurance requirement contained in your letter to withstand state and federal constitutional scrutiny, there must be some proof that the requirement has a rational relationship to some legitimate state end such as protecting the public from incompetent physicians or some other equally viable purpose. In pursuit of the legitimate state end of protecting the public from incompetent physicians, the General Assembly has established various requirement sin KRS 311.571 that individuals must satisfy in order to become licensed to practice medicine in this state. In comparing the requirements listed in KRS 311.571 to the one proposed in your letter, it appears to us that an amendment to KRS 311.571 or any other provision in KRS Chapter 311 requiring a physician to treat any individual covered by a certain type of insurance is not rationally related to the legitimate state end of that chapter which is to protect the pubic from improperly trained or educated physicians. However, such a requirement contained in another portion of the KRS may withstand constitutional scrutiny if a court could be convinced that the requirement is rationally related to some legitimate state end.

Yours truly,

CHRIS GORMAN

ATTORNEY GENERAL

Richard C. Carroll

Assistant Attorney General

(502) 564-7600

RCC:reb