Could a Virginia health regulatory board require a licensee on probation to tell out-of-state employers about restrictions on the Virginia license?

Plain-English summary

Virginia Attorney General Robert F. McDonnell concluded in 2008 that a health regulatory board could require a licensee on probation to disclose restrictions on the Virginia license to every employer, including employers outside Virginia. The opinion treated employer notification as a permissible condition of the board's authority to restrict licenses, impose discipline, and place practitioners on probation.

The requested facts assumed that the underlying violation did not involve patient care, the professional was properly licensed in another state, and the out-of-state work was not performed under the Virginia license. The AG still found the disclosure condition permissible because the person remained subject to the Virginia board's order as a Virginia licensee.

The opinion drew a boundary around that authority. A Virginia board could enforce its own order and restrict the Virginia license, but it could not impose a sanction through another state's licensing authority or require that state to take reciprocal action. The Virginia discipline could, however, become a basis for the other state to act under its own law.

Currency note

This opinion was issued in 2008. 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.

Background and statutory framework

Delegate Jeffrey M. Frederick asked whether a health regulatory board could require a Virginia licensee, placed on probation for a non-patient-care violation, to inform all employers of the Virginia restrictions regardless of where those employers were located.

Section 54.1-2400 authorized health regulatory boards to establish licensing qualifications, adopt necessary regulations, revoke, suspend, or restrict licenses, and take appropriate disciplinary action. The opinion noted that grounds for discipline could include patient-care failures as well as fraud, deceit, misrepresentation in obtaining a license, or certain criminal convictions.

The AG reasoned that the power to impose severe sanctions also carried the lesser power to set probation terms aimed at correcting deficiencies and assuring continued competence. Section 54.1-2400(10) expressly referred to probation on terms considered appropriate.

What the AG concluded

Health boards could restrict licenses and impose probation. The opinion treated those measures as part of the disciplinary authority granted by § 54.1-2400.

Probation terms could require disclosure to every employer. The AG concluded that an employer-notification condition did not stop at Virginia's border, even when the professional held a separate license elsewhere.

Virginia's board remained limited to the Virginia license. It could discipline a licensee for violating its order, but it could not directly restrict the other state's license or compel another licensing board to act.

Another state could consider the Virginia action under its own law. The opinion cited licensing laws under which discipline elsewhere could support reciprocal or independent action.

Common questions

Did the answer depend on the violation involving patient care?
No. The request specifically assumed a violation unrelated to patient care, and the AG still concluded that the board could impose the disclosure condition.

Could Virginia regulate work performed under another state's license? The opinion did not say Virginia could control the other license. It said the person remained bound by conditions on the Virginia license, including a requirement to notify employers outside Virginia.

Could the Virginia board suspend the professional's out-of-state license? No. The opinion said a Virginia board could restrict only the Virginia license and could not require another state's licensing authority to impose reciprocal discipline.

Why did the AG view employer notification as part of probation authority? The opinion reasoned that boards authorized to revoke, suspend, restrict, and place a licensee on probation could impose lesser, individualized terms reasonably connected to their regulatory responsibilities.

Citations

• Va. Code Ann. § 54.1-2400(7), (9)-(10) (health-board discipline and probation)
• Va. Code Ann. § 54.1-2409(A) (discipline in another jurisdiction)
• Va. Code Ann. §§ 54.1-2915, 54.1-3007 (medicine and nursing discipline)
• Goad v. Va. Bd. of Medicine, 40 Va. App. 621, 580 S.E.2d 494 (2003)
• Barsky v. Bd. of Regents, 347 U.S. 442 (1954)
• Va. Real Estate Bd. v. Clay, 9 Va. App. 152, 384 S.E.2d 622 (1989)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-039-Frederick.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

September 15, 2008

The Honorable Jeffrey M. Frederick
Member, House of Delegates
P. O. Box 58
Woodbridge, Virginia 22194
Dear Delegate Frederick:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia. Issue Presented 1

In the context of state regulatory agency oversight of licensed professionals, you ask whether a health regulatory board may require a Virginia licensee who is on probation for a violation that did not involve patient care to inform all employers, regardless of their location, of the restrictions on his Virginia 2 license. Response It is my opinion that health regulatory boards are authorized to restrict licenses. Further, it is my opinion that implicit within such authority is the right to place a licensee on probation and require that the licensee inform all employers, regardless of their location, of any restrictions on his Virginia license. Applicable Law and Discussion The Commonwealth may “safeguard and protect the public safety, health, morals and general 3 welfare of its people.” The general powers and duties of health regulatory boards, including the imposition of disciplinary sanctions, are consistent with this authority. Section 54.1-2400, provides that health regulatory boards have the authority:

1. To establish the qualifications for … licensure … in accordance with the
   applicable law which are necessary to ensure competence and integrity to engage in the regulated professions.
   ….
2. To promulgate regulations … which are reasonable and necessary to administer
   effectively the regulatory system.…
   1

For purposes of this opinion, I will limit the analysis to persons regulated by boards within the Department of Health Professions. 2 You ask that I assume such person was properly licensed to work in another state and was not acting under a Virginia license in that state. 3 Stickley v. Givens, 176 Va. 548, 557, 11 S.E.2d 631, 636 (1940).

The Honorable Jeffrey M. Frederick
September 15, 2008
Page 2

7. To revoke, suspend, restrict, or refuse to issue or renew a … license …, which
   such board has authority to issue for causes enumerated in applicable law and regulations.
   ….
8. To take appropriate disciplinary action for violations of applicable law and
   regulations. [Emphasis added.]
   Section 54.1-2400 authorizes a health regulatory board to impose particular disciplinary sanctions upon a regulated health professional who violates statutory or regulatory provisions governing a health profession. Typical grounds for discipline include negligence or harm to patients, as well as such nonpatient care issues as fraud, deceit, or misrepresentation in procuring a license and conviction of a felony 4 or crime involving moral turpitude. When a health regulatory board is empowered to refuse to issue a certificate or license to any applicant, reprimand a licensee, place a licensee on probation for such time as it may designate, suspend 5 any license for a stated period of time or indefinitely, or even revoke a license, the authority to impose lesser sanctions, to remediate identified deficiencies with the goal of assuring future continuing 6 competency, is necessary and reasonable in fulfilling the board’s statutory responsibilities. Thus, a health regulatory board may fashion individual disciplinary sanctions, including placement of a health 7 professional on probation upon certain terms and conditions. These conditions may include requiring disclosure of adverse action to out-of-state employers. Conditions need not be restricted to those actions 8 taking place exclusively within the Commonwealth. To do otherwise would foster a climate under which health professionals could move from state to state to avoid disclosure or discovery of adverse action 9 history or make the enforcement of a condition impossible.

4

See, e.g., VA. CODE ANN. § 54.1-2915 (2005) (Board of Medicine), § 54.1-3007 (2005) (Board of Nursing); 18 VA. ADMIN. CODE § 30-20-280 (2007) (Board of Audiology and Speech-Language Pathology), 18 VA. ADMIN. CODE § 90-20-300 (2007) (Board of Nursing). 5 Id. 6 See § 54.1-2400(7), (9)-(10) (2005). 7 See § 54.1-2400(10) (2005) (authorizing special conference committee to place practitioner on probation with terms it deems appropriate); Goad v. Va. Bd. of Medicine, 40 Va. App. 621, 633, 580 S.E.2d 494, 500 (2003) (noting, without comment, that Board had placed Goad on “‘indefinite probation’ until certain specified terms were met” (emphasis added)). The Goad Court made no determination that such action was impermissible. Id.; see also
§ 54.1-110 (2005) (requiring that hearings in contested cases be conducted in accordance with “Administrative Process Act (§ 2.2-4000 et seq.)”); Kabir v. Va. State Bd. of Med., 9 Va. Cir. 217, 217 (1987) (interpreting § 54-316, predecessor to § 54.1-2915, and noting that Board is authorized to place anyone coming before it for suspension or revocation on probation). 8 See § 54.1-2400(7), (9)-(10) (authorizing health regulatory boards to revoke, suspend, or restrict license or multistate license privileges and to take appropriate disciplinary action); Barsky v. Bd. of Regents, 347 U.S. 442, 451 (1954). 9 See § 54.1-2409(A) (Supp. 2008) (requiring mandatory suspension of license, without hearing, of any person licensed by Department of Health Professionals when license to practice same profession or occupation is revoked or suspended in another jurisdiction); see also Ming Kow Hah v. Stackler, 66 Ill. App. 3d 947, 955, 383 N.E.2d 1264, 1269 (1978) (holding that prevention of “state-hopping,” practice of physician disciplined in one state moving to another state to practice unhindered, is rational basis for exercise of state’s police power). An example of such a condition would be the requirement that an impaired health professional abstain from drugs and alcohol. Such a requirement necessarily would apply within and without the Commonwealth.

The Honorable Jeffrey M. Frederick
September 15, 2008
Page 3
Once a health professional is licensed by a Virginia health regulatory board, he is subject to regulation by the board and cannot assert that the standards of conduct pursuant to that license end at the 10 state border. It is important to note that a health regulatory board in Virginia may take adverse action against a licensed health professional for a violation of its order, but it only may restrict the professional’s Virginia license. A board cannot enter a sanction and have it enforced through another state’s licensing authority or require reciprocal action by the other state. However, a sanction or restriction imposed by a Virginia regulatory board may provide a basis for another state to restrict such health professional’s 11 license. Conclusion Accordingly, it is my opinion that health regulatory boards are authorized to restrict licenses. Further, it is my opinion that implicit within such authority is the right to place a licensee on probation and require that the licensee inform all employers, regardless of their location, of any restrictions on his Virginia license. Thank you for letting me be of service to you. Sincerely,

Robert F. McDonnell
6:1354; 1:941/08-039

10

Va. Real Estate Bd. v. Clay, 9 Va. App.152, 158, 384 S.E.2d 622, 626 (1989) (holding that “once an individual is licensed as an agent or broker, that person is subject to regulation by the [Real Estate] Board in any real estate transaction in which he or she participates”). 11 See, e.g., OHIO REV. CODE ANN. § 4753.10 (providing that Board of Speech-language Pathology and Audiology may revoke or suspend license of person disciplined in another state); S.C. CODE ANN. § 40-33-110(A)(4) (providing that suspension, revocation, or other disciplinary action of nurse’s license in another state creates rebuttable presumption that South Carolina license may be similarly acted upon); W. VA. CODE § 30-36-18 (providing that license of acupuncturist may be suspended or revoked when licensee is disciplined by any other state); accord § 54.1-2409(A) (requiring mandatory suspension of license licensee regulated by Department of Health Professionals when license to practice is revoked or suspended in another jurisdiction); § 54.1-2915(A)(5) (2005) (authorizing Board of Medicine to restrict license to practice healing arts based on action of another state);
§ 54.1-3007(7) (2005) (authorizing Board of Nursing to suspend, revoke, or restrict license to practice based on action of another state).