Mo. Ass'n of Nurse Anesthetists Inc. v. State Bd. of Registration For the Healing Arts

• Decision Date: 28 June 2011
• Docket Number: No. SC 91302.,SC 91302.
• Citation: 343 S.W.3d 348
• Parties: MISSOURI ASSOCIATION OF NURSE ANESTHETISTS, INC., Glenn Kunkel, M.D., and Kevin Snyders, CRNA, Appellants,v.STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent.
• Court: Missouri Supreme Court

343 S.W.3d 348

MISSOURI ASSOCIATION OF NURSE ANESTHETISTS, INC., Glenn Kunkel, M.D., and Kevin Snyders, CRNA, Appellants,

v.STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Respondent.

No. SC 91302.

Supreme Court of Missouri, En Banc.

June 28, 2011.

Thomas W. Rynard, James B. Deutsch, Blitz, Bardgett & Deutsch LC, Jefferson City, for Kunkel, Snyders and the Nurse Anesthetist Association.Patricia J. Churchill, Edwin R. Frownfelter, Attorney General's Office, Jefferson City, for the Board.Richard M. AuBuchon, Jefferson City, for Missouri Chamber of Commerce & Industry Inc., which filed a brief as a friend of the Court.Marshall V. Wilson, Michael G. Berry, Berry Wilson LLC, Jefferson City, for American Association of Nurse Anesthetists, which filed a brief as a friend of the Court.WILLIAM RAY PRICE, JR., Chief Justice.I. Introduction

The Missouri Association of Nurse Anesthetists, Inc. (“MANA”), Glen Kunkel, M.D., and Kevin Snyders, CRNA ¹, (referred

to collectively as “Appellants”), appeal the Cole County circuit court's grant of summary judgment in favor of the State Board of Registration for the Healing Arts (“the Board”). Appellants assert three points on appeal, contending that the trial court erred in granting the Board's motion for summary judgment and that they were, in turn, entitled to relief because: (1) the Board's letter failed to adhere to the public rulemaking requirements of section 334.125.2 ² and the Missouri Administrative Procedure Act (“the act”); (2) the Board's letter exceeded the authority of the Board in so much as it defined the scope of practice for nurses; and (3) Appellants possessed standing to maintain an action against the Board.

The trial court's judgment is reversed, and the case is remanded.

II. Facts and Procedural History

The Board, a state “agency,” ³ is charged with the enforcement, implementation and administration of chapter 334, giving it authority over all licensed physicians, surgeons and midwives in the state of Missouri, including Dr. Kunkel. See section 334.120, RSMo Supp.2007; section 334.155; section 334.125.⁴

Dr. Kunkel is an anesthesiologist, duly licensed to practice medicine pursuant to chapter 334. He practices in Rolla, Missouri with two APNs,⁵ one of whom, Mr. Snyders, is also a CRNA. Dr. Kunkel frequently delegates certain professional responsibilities to Mr. Snyders, including the use of fluoroscopic procedures.⁶

MANA is a not-for-profit corporation whose members, such as Mr. Snyders, consist of CRNAs across the state of Missouri. MANA's purpose, among many others, is to facilitate cooperation between CRNAs and the medical profession and to promote standards and policies in the furtherance of the economic security of CRNAs.

In late 2007, the Board received a series of letters regarding the propriety of instances in which a physician delegates certain pain management procedures to APNs, namely the responsibility of injecting therapeutic agents under fluoroscopic control (the “procedure”). The Missouri State Medical Association (“the association”) asserted that APNs were unqualified to perform the procedure and requested that the Board adopt a position prohibiting physicians from delegating the procedure to APNs. Dr. Kunkel and a colleague opposed the association's request, arguing that APNs, in fact, were qualified.

The association's request was taken up by the Board at its October 25, 2007, meeting. Rather than render a position at that time, the Board directed one of its members and its legal counsel to investigate the matter. At the Board's next conference call, the Board passed a motion to notify the doctors and the association of its position.⁷ Accordingly, on or about February 7, 2008, a letter was sent to the association and Dr. Kunkel stating, in pertinent part:

After researching the current statute[s], rules, and regulations governing the practice of medicine and the practice of nursing it was the Board's decision to advise you that Chapter 334 RSMo authorizes a physician to delegate professional responsibilities to a person who is qualified by training, skill, competency, age, experience, or licensure to perform such responsibilities. Based on the information provided to the Board, it was their opinion that [APNs] currently do not have the appropriate training, skill or experience to perform these injections.

If you disagree with the Board's interpretation please provide us with documentation that shows that advance practice nurses have the appropriate training, skill and experience to perform these injections.

(emphasis added). The Board did not follow any of the rulemaking procedures required under the act or section 334.125.2 to formally promulgate the position taken in its letter as a rule.

The association published a summary of the letter in the February 2008 issue of its monthly newsletter, Progress Notes. The newsletter is distributed to the association's physician members throughout Missouri. Dr. Kunkel, conversely, accepted the Board's invitation to provide additional documentation and requested that the Board amend its position. The Board was not persuaded and denied his request.

On April 22, 2009, Appellants filed a petition in the Cole County circuit court seeking multiple forms of relief. Appellants' petition sought a preliminary and permanent injunction prohibiting the Board from enforcing its “letter rule,” a declaratory judgment that the alleged rule was void and of no effect, and, finally, an order directing the Board to disseminate a retraction of its “letter rule.” The relief requested was rooted in two separate claims by Appellants: (1) the Board's letter failed to adhere to the public rulemaking requirements of section 334.125.2 and the act; and (2) the Board's letter exceeded the authority of the Board in so much as it defined the scope of practice for nurses.

The Board's answer to Appellants' petition admitted “the quoted statement is not a rule, it was not filed with the Secretary of State or the Joint Committee on Administrative rules, nor published.” Thereafter, the Board filed a motion for summary judgment redoubling its assertion that its letter was not a rule:

The letter at question in this case is merely an expression of the Board's position and is without force and effect. It is a non-binding statement issued by the Board in response to correspondence it had received on the issue and does not have the force or effect of law. The Board does not seek to, and cannot seek to, take any action against a physician, [APN], or any other individual or entity, based on a contention that their actions are proscribed by the letter in question.

On March 22, 2010, the trial court granted the Board's motion for summary judgment and, in so doing, held that the statements contained in the Board's letter did “not constitute a rule as same is defined in [section] 536.010(6).” Though the trial court's judgment did not specifically address whether the Board exceeded its authority, the judgment effectively denied the claim by stating that “[a]ny other pending claims for relief, inconsistent with the above, are deemed denied.” Appellants timely filed a notice of appeal and, following opinion by the court of appeals, this Court granted transfer December 21, 2010. Mo. Const. art. V, sec. 10.

On September 4, 2009, the Board filed a complaint against Dr. Kunkel. The claim is now pending before the Administrative Hearing Commission (“the commission”) and is scheduled for final hearing on October 17, 2011. State Board of Registration for the Healing Arts v. Glenn A. Kunkel, M.D., Case No. 09–1259 HA. The Board alleges that Dr. Kunkel improperly delegated professional responsibilities in violation of chapter 334. Id. Dr. Kunkel is not charged under the statements contained in the Board's letter, which are the subject of this case. Id. Rather, he is charged for acts that predate the issuance of the Board's letter, in violation of chapter 334. Id.

III. Declaratory Judgment

At the outset, this Court must examine whether declaratory judgment is available for this dispute. Under section 536.050, RSMo Supp.2005, Missouri courts are granted the power to render declaratory judgments respecting the validity of rules. However, this Court has held that the provisions of section 536.050 only apply if a plaintiff can “plead and establish specific facts that a promulgated rule was the basis of the [agency's] action.” United Pharmacal Co. of Missouri Inc. v. Missouri Bd. of Pharmacy, 159 S.W.3d 361, 367 (Mo. banc 2005). Here, it is undisputed that the Board made no attempt to promulgate the statements contained in its letter. Because there is no promulgated rule at issue here, or at least a rule that purports to have been promulgated, section 536.050 is not applicable.

However, Missouri's declaratory judgment act provides that Missouri courts “have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Section 527.010. “Moreover, the declaratory judgment statutes are ‘to be liberally construed,’ [section] 527.120, and administered to ‘terminate the controversy or remove an uncertainty.’ [section] 527.050. Rule 87 reinforces the provisions of the declaratory judgment statutes, providing that ‘anyone may obtain such relief in any instance in which it will terminate a controversy or remove an uncertainty.’ Rule 87.02(d).” Kansas City Power & Light Co. v. McBeth, 322 S.W.3d 525, 530 (Mo. banc 2010); see also Group Health Plan, Inc. v. State Bd. of Registration for the Healing Arts, 787 S.W.2d 745, 749 (Mo.App.1990) (In the context of a declaratory judgment action, “[c]ertainly, if jurisdiction lies to consider the threatened application of rules, it lies to consider the threatened application of statutes.”).

“To grant a declaratory judgment, the court must be presented with: (1) a justiciable controversy that presents a real, substantial, presently-existing controversy admitting...