Did already-licensed Maryland nursing home administrators have to get a college degree to renew their licenses after the 1990 law?

Plain-English summary

Maryland's Board of Examiners of Nursing Home Administrators adopted licensing regulations in December 1986 that phased in tougher education rules: applicants first needed a high school diploma plus 60 college credits, and starting in December 1988 a baccalaureate degree. The regulation expressly "grandfathered" people who already held valid licenses, and the board extended the same treatment to those licensed during the two-year phase-in, since forcing a working administrator to finish a four-year degree in under two years would have been absurd.

In 1990 the General Assembly took the education standards out of the board's hands and wrote them into statute, Chapter 656, codified at HO §8-302(d). The statutory standards mirrored the board's rules, including the degree requirement, but the statute contained no grandfather clause. Read literally, that meant administrators licensed without a degree could not show they were "otherwise entitled to be licensed" at their two-year renewal, and would be forced out of the profession. The only statutory waiver covered out-of-state licensees, and the Attorney General found it extremely unlikely the legislature meant to treat out-of-state applicants better than Maryland's own licensees.

The opinion refused to read a grandfather clause into the statute, but it also refused to attribute so harsh a result to a legislature that never considered the problem. The practical solution came from SG §10-404: when a licensee files a timely renewal application, the license does not expire until the agency takes final action. So the board was advised to hold the renewal applications of grandfathered licensees without final action, keeping their licenses alive, and to put the issue before the General Assembly. If the legislature enacted a grandfather provision, the board should approve the applications; if it declined, the licensees would have to meet the new requirements. An editor's note in the published volume records that the suggested legislation was enacted the following year as Chapter 17 (House Bill 318) of the Laws of Maryland 1991.

Currency note

This opinion was issued in 1990. 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.

Common questions

Did working nursing home administrators without a degree lose their Maryland licenses in 1990?
No. The Attorney General advised the board to hold their timely renewal applications without final action, and under SG §10-404 a license stays effective until the agency takes final action on a timely renewal. The gap was closed by legislation in 1991.

Why didn't the AG just read a grandfather clause into the new statute?
Because the statute did not contain one, and the opinion said treating it as if it did would push statutory construction past its limit. Agencies cannot grant exceptions to statutory requirements, and a regulation at variance with a statute is invalid. The abeyance approach avoided both rewriting the statute and punishing licensees for a gap the legislature never considered.

What made the AG think the legislature didn't intend to oust existing licensees?
The 1990 law's purpose was simply to move the board's own standards into statute, with no sign of dissatisfaction with how the board had exercised its discretion. A literal reading would have produced impossible situations, like a licensee needing to complete two years of college coursework by a renewal date that fell on the statute's effective date, and Maryland courts avoid unreasonable or absurd readings.

Who was covered by the regulatory grandfathering in the first place?
Two groups: people holding valid licenses when the regulations took effect in December 1986, whom Regulation .06C expressly exempted from the degree requirement, and people licensed between December 1986 and December 1988 under the diploma-plus-60-credits rule, whom the board treated the same way to avoid an absurd result.

Background and statutory framework

The board's 1986 regulations, COMAR 10.33.01.06, set out eight licensure prerequisites. Regulation .06B required a high school diploma plus 60 college credit hours; Regulation .06C upgraded that to a baccalaureate degree two years after adoption, while providing that the upgrade "[did] not apply to persons who are in possession of a valid nursing home administrator's license on the effective date of [the] regulations." Renewal ran through HO §8-311(c), which conditions renewal on the licensee being otherwise entitled to be licensed; the express regulatory exemption let grandfathered licensees meet that test. The board's reading of its own regulation drew deference under Commission on Human Relations v. Bethlehem Steel Corporation, Dorsey v. Beals, and Messitte v. Colonial Mortgage Service Co. Assoc., Inc., the standard Maryland deference cases.

Chapter 656 (House Bill 1157) of the Laws of Maryland 1990 replaced the board's delegated standard-setting authority in HO §8-302(d) with statutory education, training, and experience requirements matching the board's rules, effective July 1, 1990. Its only waiver, HO §8-302(e), covered individuals licensed at least one year in another state before January 1, 1990. The opinion applied Harford County v. Edgewater and Morris v. Prince George's County on avoiding unreasonable results and reading statutes in context, and cited Kaczorowski v. City of Baltimore for declining to give effect to an unintended omission that produces an illogical or absurd result. The holding-in-abeyance remedy rested on §10-404 of the State Government Article and followed the approach of 67 Opinions of the Attorney General 393 (1982), which had suggested similar interim relief for improperly licensed vehicle salesmen.

Citations and references

Statutes and regulations:

• HO §8-302(d) (statutory education, training, and experience requirements, enacted by Chapter 656 (House Bill 1157) of the Laws of Maryland 1990) and HO §8-302(e) (out-of-state waiver)
• HO §8-311(a) and HO §8-311(c) (two-year license renewal)
• COMAR 10.33.01.06, including Regulations .06B and .06C (the phased education requirements and grandfather provision), adopted at 13:25 Md. Reg. 2660 (December 5, 1986)
• §10-404 of the State Government Article (license remains effective pending final action on a timely renewal)

Cases:

• Commission on Human Relations v. Bethlehem Steel Corporation, 295 Md. 586, 593, 457 A.2d 1146 (1983); Dorsey v. Beals, 288 Md. 161, 176, 416 A.2d 739, 747 (1980); Messitte v. Colonial Mortgage Service Co. Assoc., Inc., 287 Md. 289, 293, 411 A.2d 1051, 1053 (1980) (deference to an agency's interpretation of its own regulation)
• Harford County v. Edgewater, 316 Md. 389, 397, 558 A.2d 1219 (1989); Morris v. Prince George's County, 319 Md. 597, 603-04, 573 A.2d 1346 (1990); Taxiera v. Malkus, 320 Md. 471, 480, 578 A.2d 761 (1990); Kaczorowski v. City of Baltimore, 309 Md. 505, 517, 525 A.2d 628 (1987) (statutory construction)

Related AG opinion: 67 Opinions of the Attorney General 393, 408 (1982)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 282-290 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HEALTH OCCUPATIONS

Nursing Home Administrators — Statutory Construction — Renewal Applications of Licensees "Grandfathered" Under Regulation Should Be Held in Abeyance Pending Legislative Clarification of Education Requirement Added to Statute

December 12, 1990

Mr. Howard E. White
Executive Secretary
Board of Examiners of Nursing
Home Administrators

 You have requested our opinion on whether a newly enacted statute, incorporating education and experience requirements for licensure of nursing home administrators, is to be applied to persons currently holding valid licenses when they seek to renew those licenses.

 For the reasons stated below, we conclude that these newly enacted requirements, set out in §8-302(d) of the Health Occupations Article ("HO" Article), were likely not intended to apply to a person seeking to renew a current nursing home administrator license if the person was properly licensed under then-applicable requirements and seeks a renewal of that license. Inexplicably, however, neither the statute itself nor its legislative history addresses the status of these "grandfathered" licensees.

 Under the circumstances, we advise the Board of Examiners of Nursing Home Administrators to hold, without taking final action, renewal applications from this category of licensees. Under §10-404 of the State Government Article, the old licenses would remain effective. Then the issue should be presented to the General Assembly. If, as we expect, the General Assembly authorizes these licensees to renew their licenses without meeting the new requirements, the Board should then approve otherwise sufficient applications. If the General Assembly declines to enact a statutory "grandfather" provision, the Board should then deny these applications.

I

Regulatory Background

On December 15, 1986, the Board of Examiners of Nursing Home Administrators adopted a set of regulations governing the activities of the Board and its licensees. See 13:25 Md. Reg. 2660 (December 5, 1986), codified at COMAR 10.33.01. Included among those regulations was COMAR 10.33.01.06, titled "Minimum Requirements for Licensure of Nursing Home Administrators."

That regulation contained eight prerequisites, A through H, that a prospective licensee was required to meet prior to being licensed. Regulations .06B, C, D, and F set forth education, training, and experience requirements. Regulation .06B required applicants to have a high school diploma or its equivalent, plus 60 hours of college studies.1 Regulation .06C stated that the educational prerequisites outlined in Regulation .06B would be upgraded two years from the date of adoption of the regulations to require successful completion of a baccalaureate degree. Thus, persons applying for licensure prior to December 15, 1988 would need to meet the requirements of Regulation .06B; persons applying after that date would need to have completed a college degree program pursuant to Regulation .06C.2

By the terms of the regulation imposing the baccalaureate degree requirement, the prospective upgrade in educational prerequisites announced in Regulation .06C "[did] not apply to persons who are in possession of a valid nursing home administrator's license on the effective date of [the] regulations," December 15, 1986. Regulation .06C thus intended to exempt or "grandfather" then-valid licensees from having to meet the upgraded standards.

 Further, the "grandfathering" effect of the regulation was perpetuated for those licensees by virtue of the statute's license renewal provisions. HO §8-311(c) then provided (and still provides) that a nursing home administrator licensee may renew the license for a two-year term, if, in addition to paying the renewal fee, submitting a renewal application, and completing continuing education requirements, the licensee "[o]therwise is entitled to be licensed"—that is, if the licensee meets the current requirements for licensure. When the new baccalaureate degree requirement became effective in December 1988, the grandfathering provision of Regulation 10.33.01.06C permitted licensees as of December 1986 to renew by continuing to exempt them from the new requirement. Because of the express exemption in Regulation .06C, each of these licensees could meet the test that he or she "[o]therwise is entitled to be licensed."

 For persons who applied between December 15, 1986, the effective date of the regulations, and December 15, 1988, the effective date of the baccalaureate degree requirement, the Board looked to Regulation .06B (high school diploma plus 60 college credits) as the source of the educational requirements for initial licensure. It further determined that the waiver provisions outlined in Regulation .06C ought to apply to this group of applicants upon renewal of their licenses. This group would not be required to meet the baccalaureate degree requirement even though their renewal occurred subsequent to December 15, 1988, and even though they were not licensed two years earlier, on the effective date of the regulations.

 Although the waiver provision in Regulation .06C did not, by its precise terms, apply to this group, the failure to "grandfather" them as well would have created an absurd result. Had the pre-December 1988 licensees not been grandfathered in along with the pre-December 1986 licensees, the Board would have been in the position of requiring persons who became licensed by possessing a high school diploma plus 60 hours of college credit to have completed their college degree (another two years of credits) within a two-year period or less after their original licensure, while at the same time functioning as nursing home administrators. Certainly, the Board's upgrade in its educational requirement was not meant to create an impossible situation or to unfairly burden, at renewal time, those licensees who obtained licensure when the baccalaureate degree requirement had not yet taken effect.

The Board's interpretation of COMAR 10.33.01.06C is entitled to deference. Commission on Human Relations v. Bethlehem Steel Corporation, 295 Md. 586, 593, 457 A.2d 1146 (1983); Dorsey v. Beals, 288 Md. 161, 176, 416 A.2d 739, 747 (1980); Messitte v. Colonial Mortgage Service Co. Assoc., Inc., 287 Md. 289, 293, 411 A.2d 1051, 1053 (1980). The Board is best able to discern its intent in proposing the regulation, which was designed to serve the specific needs of the agency. Bethlehem Steel, 295 Md. at 593. And its intent was clear: in adopting new regulations with the stated purpose of upgrading educational requirements, the Board was looking to a prospective upgrade, with no intent to disturb those already licensed under less stringent requirements.

II

Statutory Enactment of Licensing Requirements

Prior to 1990, HO §8-302(d) simply delegated to the Board the power to set certain licensure requirements: "The applicant shall meet the education, training, and experience standards set by the Board." The regulations discussed in Part I above were adopted by the Board under this grant of authority.

In Chapter 656 (House Bill 1157) of the Laws of Maryland 1990, the General Assembly withdrew this delegation of authority. Instead, the General Assembly itself has established the requisite levels of education, training, and experience.3 These standards mirror those previously adopted by the Board in COMAR 10.33.01.07.06.

 The statutory educational requirement is a baccalaureate degree, just as the Board required in Regulation .06C. Unfortunately, Chapter 656 contains no language comparable to the grandfather provision in the regulation. The only waiver provision in the statute authorizes the Board to waive the education requirements "for an individual who, prior to January 1, 1990, was licensed as a nursing home administrator for at least 1 year in another state." HO §8-302(e).

 This omission has created concern among the group grandfathered under the regulation about their ability to obtain renewal of their licenses. The license of a nursing home administrator must be renewed every two years. HO §8-311(a). Under HO §8-311(c)(1), a licensed nursing home administrator may renew the license only if the licensee "[o]therwise is entitled to be licensed." The new statutory requirements for licensure include possession of at least a baccalaureate degree, with no exceptions stated for current Maryland licensees. A literal application of the statute would mean that administrators without a baccalaureate degree who were licensed prior to December 1988 under the regulatory "grandfather" provision would not be eligible to renew their licenses.

 For example, suppose someone with 60 college credits obtained a license on July 1, 1988, six months prior to the effective date of the regulatory requirement of a baccalaureate degree. Chapter 656 was signed into law on May 29, 1990, to be effective July 1, 1990. That licensee patently could not act to acquire another 60 college credits by the renewal date of the license (in this example, the very same day Chapter 656 became effective).

Given so harsh a result, we are extremely reluctant to attribute this objective to the General Assembly, especially since the General Assembly appears not to have considered the problem of the now-grandfathered licensees. "Results that are unreasonable, illogical, or that are at odds with the legislative purpose should be avoided." Harford County v. Edgewater, 316 Md. 389, 397, 558 A.2d 1219 (1989).

 In attempting "to seek out the legislative purpose, the general aim or policy, the ends to be accomplished, the evils to be redressed by a particular enactment ..., we are not limited to study of the statutory language .... [W]e are always free to look at the context within which statutory language appears." Morris v. Prince George's County, 319 Md. 597, 603-04, 573 A.2d 1346 (1990). See also Taxiera v. Malkus, 320 Md. 471, 480, 578 A.2d 761 (1990).

 The underlying legislative purpose of Chapter 656 was to "set in statute the education requirements for nursing home administrators rather than leaving the requirements to the discretion of the Board." Bill Analysis of House Bill 1157. However, there is no hint of dissatisfaction with the way in which the Board had exercised its discretion in the past. Indeed, the requirements of the newly enacted HO §8-302(d) do not differ from or conflict with the Board's regulatory requirements. Each requires that license applicants must (1) have a baccalaureate degree in health care administration or its equivalent and (2) have completed an administrator-in-training program or its equivalent.

That Chapter 656 is silent on the question of renewal applicants who were qualified under the Board's previous, less exacting educational and experience requirements does not imply a legislative intent to oust those licensees from the profession when, upon the expiration of their current licenses, they have not met (and, in many instances, could not possibly meet) the upgraded education requirements. See Kaczorowski v. City of Baltimore, 309 Md. 505, 517, 525 A.2d 628 (1987) (unintended omission of language not to be given effect if result is "illogical or absurd" and not in furtherance of legislative purpose).

 To be sure, newly enacted HO §8-302(e) expressly grants the Board the discretion to waive the education requirement for out-of-state applicants licensed as nursing home administrators for at least one year prior to January 1, 1990 in another state. But it is extremely unlikely that the General Assembly intended to grant more favorable treatment to out-of-state applicants than in-state licensees. Thus, the fact that no similar discretion to waive educational requirements was provided for similarly situated Maryland licensees implies, if anything, the General Assembly's assumption that Maryland licensees had no need for such a waiver, because they were "grandfathered" in by virtue of COMAR 10.33.01.06C.4

 At the same time, we would be pushing the principle of Kaczorowski to an extreme if, absent supporting legislative history, we were to treat the statute as if it contained a grandfather clause when in fact it does not. Nor do we wish to convey the impression that administrative agencies generally may grant exceptions to statutory requirements. To the contrary, agency regulations at variance with a statute, whether long in existence or newly enacted, are invalid. If we thought that the General Assembly meant to apply the baccalaureate degree requirement to all licensees, we would view the grandfather provision in COMAR 10.33.01.06C as a nullity.

 But under these circumstances, where we strongly suspect that the General Assembly did not intend so draconian a result, we seek to achieve an equitable result pending legislative clarification. We can do so by relying on §10-404 of the State Government Article ("SG" Article), which provides that if a licensee files a timely application for renewal, "the license does not expire until... the unit takes final action on the application ...." In our view, the Board would act well within its discretion if it withheld final action on the renewal applications of now-grandfathered licensees until the General Assembly can resolve the problem. See 67 Opinions of the Attorney General 393, 408 (1982).5 SG §10-404 would keep the old licenses effective, so the licensees would not be harmed in the interim. If, as we assume, the General Assembly will resolve the problem by enacting a grandfather clause, the Board would then approve the applications. If, on the other hand, the General Assembly declines to enact such a provision once the problem is pointed out to it, the inescapable inference would be that the now-grandfathered licensees would have to meet the new educational requirements.

III

Conclusion

 In summary, it is our opinion that the Board of Examiners of Nursing Home Administrators should hold in abeyance, pending legislative clarification of HO §8-302(d), an application for the renewal of a license properly issued under the Board's regulations when the licensee does not meet the new statutory requirements.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Jack Schwartz
                                          Chief Counsel
                                            Opinions & Advice

                                          Jane Pilliod
                                          Assistant Attorney General

Editor's Note:

Legislation of the kind suggested in this opinion was enacted in Chapter 17 (House Bill 318) of the Laws of Maryland 1991.

1
Prior to the effective date of COMAR 10.33.01.06B, license applicants had only been required to have a high school diploma.

2
Regulation .06D required that an applicant who did not have a baccalaureate or master's degree in health care administration had to complete a 100-hour course of study in health care administration. Regulation .06F required completion of an administrator-in-training program or its equivalent. The remaining sections of COMAR 10.33.01.06 (Regulations .06A, .06E, .06G, and .06H) merely reiterated age, examination, and character requirements set forth in the statute.

3
HO §8-302(d) now provides that each applicant must:

      (1) (i) Have a baccalaureate or masters degree in health care administration from an accredited college or university; or
           (ii) 1. Have a baccalaureate or masters degree in a field other than health care administration from an accredited college or university; and
                2. Have satisfactorily completed a minimum of 100 hours in a course of study in health care administration, or its equivalent, approved by the Board; and
           (iii) 1. Have completed an administrator-in-training program approved by the Board; or
                2. Have completed 1 year of full-time nursing home administration in a nursing home.

4
COMAR 10.33.01.06C provides that completion of a baccalaureate degree as a prerequisite to licensure will take effect "at any time after two years from the date of adoption of these regulations." The newly enacted HO §8-302(d) requires possession of a baccalaureate degree without reference to any "grace period," but because its effective date (July 1, 1990) is more than two years after the effective date of the COMAR provisions, its lack of a grace period is entirely consistent with COMAR 10.33.01.06C.

5
That opinion suggested a similar approach to certain improperly licensed vehicle salesmen, when the particular circumstances "would [make it] inequitable to require them to immediately cease doing business without at least some opportunity to seek legislative relief." 67 Opinions of the Attorney General at 408.