Administrative Rule Review Report  #AR09-037

Legislative Service Office

24-Jun-09

AGENCY: Board of Medicine.

DATE SUBMITTED: June 24, 2009.

SUBJECT: Chapter 1, License Eligibility, Application and Interviews; Chapter 3, Practice of Medicine; Chapter 4, Disciplinary Complaints Against Physicians; Chapter 5, Licensure of and for the Conduct of Disciplinary Proceedings Against Physician Assistants; and Chapter 6, Miscellaneous.

NATURE OF RULES:                     Legislative and procedural.

STATUTORY AUTHORITY:         W.S. 33-26-202

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:  Apparently complete to date.  Notice of the proposed adoption of new rules was provided by the LSO as required by W.S. 28-9-103(d).  The Agency did receive public comments regarding the proposed rules and did hold a public hearing.  Pursuant to comments received, the Agency revised portions of its proposed rules.  The changes made appear to be nonsubstantive and therefore comport with the "substantial compliance" requirement of the Wyoming Administrative Procedure Act (W.S. 16-3-103(c)).

SUMMARY OF RULES:

Amendments to the Wyoming Medical Practice Act (W.S. 33-26-101 et seq.) became effective on March 12, 2009.  In response to those amendments, the Agency has promulgated necessary rule changes as well as made other amendments.  The rules improve and stream-line the initial licensure of physicians.  Specifically, the rules allow the Agency to license physicians educated outside the U.S. and Canada.  They eliminate the requirement for all applicants to appear for interviews and refine the criteria for when such an interview is required.  The rules expedite the issuance of temporary licenses, define when personal references are necessary and provide for the processing of applications through the Federation Credentials Verification Service.  The rules modify or repeal provisions that previously made applicants with prior disciplinary actions in other jurisdictions ineligible for licensure in Wyoming.  The rules establish a limit on the number of attempts that may be made on the licensure examination, guide the reactivation of lapsed, inactive and emeritus licenses and state when a criminal history record check can be requested.  The rules also expand the types of medical licenses available and define the standards for issuing volunteer and administrative medicine licenses.  The rules clarify that emeritus physicians not receiving remuneration may practice in settings other than nonprofit facilities. The rules clarify the process for Wyoming physicians to bring consulting physicians into Wyoming.  Finally, the new rules adopt or modify provisions to improve Agency operations.  Specifically, they specify late renewal fees, on-line application fees, renewal convenience fees, fees for the purchase of the Agency's list of licensees and photocopy fees.  The rules set the renewal date for all physician licenses as June 30^th and clarify the license renewal grace period.  They add definitions for some terms used in the rules and generally adopt amendments and additions which update or correct terminology and statutory/regulatory references.

FINDINGS:  Except as noted below, the rules appear to be within the scope of statutory authority and legislative intent.

W.S. 33-26-307 allows the Agency to charge fees for its services.  However, pursuant to W.S. 33-1-201, fees must be set so as not to exceed the direct and indirect costs of administering the required regulatory provisions.  LSO notes that the new rules impose various new fees, such as a $40 on-line application convenience fee, a $25 on-line renewal convenience fee and a $100 license renewal grace period surcharge.  The new rules also impose a $500 fee to obtain a copy of the physician mailing list, a $100 fee for the physician assistant mailing list or a $550 fee to obtain both lists.  Although the on-line fees may have some reasonable basis related to the costs of providing the service, it is unlikely that the Agency incurs a $550 expense to provide the physician and physician assistant mailing lists.  All fees in excess of direct and indirect costs violate the mandates of W.S. 33-1-201.   LSO has spoken with the Agency's attorney at the Attorney General's Office and did not obtain any information which would indicate that the fees are necessary to meet the Agency's direct and indirect costs.  At the request of the Attorney General's office, LSO also spoke with the Agency's representative.  The Agency interprets W.S. 33-1-201 to prohibit any agency from charging fees, in the aggregate, which exceed the direct and indirect costs of regulation.  However, the Agency does not believe that any one fee must be limited to compensating the agency for the costs of the regulatory function related to that fee.  The Agency  has traditionally charged a fee of approximately $500 to provide physician and physician assistant mailing lists and has received no complaints.

STAFF RECOMMENDATION:

With regard to the new fees established by the rules, that the Council recommend that the Governor not approve the new fees until satisfied that the fees will not generate funds in excess of regulatory expenses related to that fee.  Also, because the new rules are replacing emergency rules and contain provisions which are immediately necessary for the Agency's operation, that the Council recommend that the Governor consider using, to the extent available, his line-item veto power so as not to reject the rules in their entirety.

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Ian Shaw

Staff Attorney

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Dan Pauli

Director, Legislative Service Office

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