Nolan v. Michigan Dept. of Licensing & Regulation

• Court: Court of Appeal of Michigan
• Writing for the Court: GRIBBS
• Citation: Nolan v. Michigan Dept. of Licensing & Regulation, 391 N.W.2d 424, 151 Mich.App. 641 (Mich. App. 1986)
• Decision Date: 15 August 1986
• Docket Number: Docket No. 80662
• Parties: Donald E. NOLAN, Petitioner-Appellant, v. MICHIGAN DEPARTMENT OF LICENSING & REGULATION, Task Force on Physician's Assistants, Respondent-Appellee.

Page 424

391 N.W.2d 424

151 Mich.App. 641

Donald E. NOLAN, Petitioner-Appellant, v. MICHIGAN DEPARTMENT OF LICENSING & REGULATION, Task Force on Physician's Assistants, Respondent-Appellee.

Docket No. 80662.

Court of Appeals of Michigan.

Submitted Jan. 14, 1986.

Decided May 19, 1986.

Released for Publication Aug. 15, 1986.

McGinty, Brown, Jakubiak, Frankland & Hitch by Thomas M. Hitch, East Lansing, for petitioner-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Thomas L. Sparks, Asst. Atty. Gen., for respondent-appellee.

Before GRIBBS, P.J., and HOLBROOK and ROUMELL, ^* JJ.

GRIBBS, Presiding Judge.

On February 1, 1983, respondent-appellee, the Task Force on Physician's Assistants (Task Force), issued an opinion and order denying petitioner-appellant, Donald E. Nolan's, application for licensure to practice and use the title of physician's assistant. Appellant filed a petition for review in Ingham County Circuit Court and, on September 10, 1984, that court denied the petition for review and affirmed the Task Force's decision. Appellant appeals as of right. We affirm.

On appeal, appellant raises three issues. The first, which is a question of first impression is whether the Task Force exceeded its rule-making authority under the Public Health Code, M.C.L. Sec. 333.1101 et seq.; M.S.A. Sec. 14.15(1101)et seq., when it provided, in 1980 AACS, R 338.6304, that an applicant for a physician's assistant license must meet certain educational, training and clinical experience requirements. The second issue is also one which has never been considered by this Court. Appellant argues that the Task Force has the authority to issue a limited license to him and that it erred when it concluded that it did not have such authority and refused to grant a limited license to him based on his experience in industrial clinics. Appellant's third argument is that the refusal of the Task Force to grant him a physician's assistant license constituted a denial of due process of law.

Except for a two-year period when he was in the armed forces, appellant has worked continuously as a physician's assistant since 1950. He received a physician's assistant license under the former Physician's Assistants Act, 1976 P.A. 420, in 1977. The only requirement under the former act was that the individual be employed as a physician's assistant at that time. Similarly, the Public Health Code provided for an interim license if an individual was employed as a physician's assistant on December 29, 1977, M.C.L. Sec. 333.17072(2); M.S.A. Sec. 14.15(17072)(2). Appellant was granted an interim license to be effective until the Task Force formally issued or denied a license pursuant to the Code and the rules promulgated by the Task Force. The rules became effective in December of 1979. Appellant filed a timely application for a noninterim license. The application was found to be insufficient and after a hearing the Task Force denied appellant licensure to practice as a physician's assistant. In its opinion the Task Force stated in part:

"At the onset, it should be pointed out that the applicant's experience is not at question. The Task Force finds the clinical experience requirements to be met.

"Clinical training is an area at issue. The Task Force has consistently interpreted the clinical training portion of the requirement to be a structured experience with blocks of time spent in each to allow maximal exposure to that particular area at one time. If, in this case, Dr. Weisman were to swear and affirm that he provided such specific 'rotations' the Task Force would accept this as meeting the requirement of clinical training.

"By the applicant's own testimony, however, the education requirements have not been met."

Appellant argues that Rule 304 of the Department of Licensing and Regulation, Task Force on Physician's Assistants, 1980 AACS, R 338.6304, is inconsistent with Sec. 17062 of the Public Health Code, M.C.L. Sec. 333.17062; M.S.A. Sec. 14.15(17062), because it requires an applicant for a physician's assistant license to have education, training, and experience. In his view, the statute only requires an applicant for licensure to have education or training or experience.

Rule 304 provides as follows:

"(1) The task force shall accept an applicant as having met the education, training, or experience requirement of sections 17062 and 17060(1)(b) of the act if the applicant can provide sufficient information to enable the task force to evaluate and determine that the applicant has acquired all of the following:

"(a) Course work of 1 semester of anatomy, 1 semester of physiology, 2 semesters of clinical medicine, 1 semester of pharmacology, 2 semesters of physical diagnosis, 1 semester of biochemistry, 1 semester of clinical pathology, and 1 semester of anatomic pathology.

"(b) Clinical training of 1 year, including primary care, pediatrics, surgery, obstetrics and gynecology, psychiatry, internal medicine, and emergency medicine.

"(c) Four years of clinical experience, which includes the following activities:

"(i) Identification of the level of the health of the patients and the information necessary for evaluation of the health of the patients by the eliciting of medical and psycho-social histories and the performing of physical examinations, as pertinent, the ordering or performing of diagnostic tests, or both, and the recording and transmitting of findings.

"(ii) Analysis of all information available to formulate a management plan by differentiating between normal and abnormal findings, developing diagnostic impressions based on data obtained, ordering more definitive tests, and establishing preliminary diagnosis of common primary care problems with physician guidance.

"(iii) Development and formulation of a health management plan by conferring with the supervising physicians and patient, and conferring with patient's family, other professionals, and using community resources, as appropriate.

"(iv) Implementation and monitoring of a health management plan by applying established therapeutic practices to the patient's problems and performing general preventive, screening, and prenatal care.

"(v) Referral of patients with problems beyond the individual's competency to appropriate sources of care.

"(2) The clinical experience may be gained as either part of a formal educational program or in a practical setting not related to an educational program. The clinical experience shall have occurred within the 5 years immediately prior to the application." (Emphasis added.)

When an agency is empowered to make rules, we use a three-part test to determine the validity of the rules it promulgates. The rules must be within the matter covered by the enabling statute, they must comply with the underlying legislative intent, and they must not be arbitrary or capricious, Luttrell v. Dep't of Corrections, 421 Mich. 93, 100, 365 N.W.2d 74 (1984), reh. den. 422 Mich. 1201 (1985).

Appellant does not argue that he has, in fact, met the requirements of the rule or that the rule is not within the enabling statute. Rather, it is his contention that the rule either violates the Legislature's intent as expressed in M.C.L. Sec. 333.17062; M.S.A. Sec. 14.15(17062), or that it is arbitrary and capricious, at least as applied to him. We disagree.

Appellant's argument rests on the language of M.C.L. Sec. 333.17062; M.S.A. Sec. 14.15(17062), which provides:

"An applicant for licensure as a physician's assistant shall meet the requirements of section 16174(a), (b), and (d) [MCL 333.16174(a), (b), (d) ] and be a graduate of a program approved by the task force or be a licensed, certified, registered, approved, or other legally recognized physician's assistant in another state with qualifications substantially equivalent to those established by the task force; or have the education, training, or experience prescribed by this part or the rules of the task force as determined by an examination or evaluation authorized by the task force, as provided in section 17060(1)(b) [MCL 333.17060(1)(b) ]." (Emphasis added.)

M.C.L. Sec. 333.17060(1)(b); M.S.A. Sec. 14.15(17060)(1)(b), provides:

"The task force shall:

* * *

"Promulgate rules to establish the requirements for the education, training, or experience of physician's assistants for licensure in this state. The requirements shall take into account nationally recognized standards for education, training, and experience and the desired utilization of physician's assistants." (Emphasis added.)

Appellant focuses on the use of the word "or" in the emphasized clause of M.C.L. Sec. 333.17062; M.S.A. Sec. 14.15(17062), and argues that the Task Force contravened the intent of the Legislature when it gave a conjunctive, rather than disjunctive, meaning to that term.

The primary rule in interpreting a statute is to ascertain and give effect to the Legislature's intent. All other rules of construction serve as guides to assist the courts in determining that intent with a greater degree of certainty, Farrell v. Automobile Club of Michigan, 148 Mich.App. 165, 383 N.W.2d 623 (1986). Where the use of the conjunction "and" or the disjunctive "or" creates an ambiguity in the statute, the language of the statute must be construed to give effect to the Legislature's intent, and the words of the statute must be construed in light of the general purpose sought to be accomplished by the Legislature, In the Matter of Kreft, 148 Mich.App. 682, 688, 384 N.W.2d 843 (1986).

In ascertaining legislative intent, we look first to the language of the statute, Oxford Twp. v. DSS, 120 Mich.App. 103, 108, 327 N.W.2d 409 (1982). The popular use of "or" and "and" is so loose and so frequently inaccurate that it has infected statutory enactments. While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more...