WILLIAM RAY PRICE, JR., Chief Justice.
The Missouri Association of Nurse Anesthetists, Inc. ("MANA"), Glen Kunkel, M.D., and Kevin Snyders, CRNA
The trial court's judgment is reversed, and the case is remanded.
The Board, a state "agency,"
Dr. Kunkel is an anesthesiologist, duly licensed to practice medicine pursuant to chapter 334. He practices in Rolla, Missouri with two APNs,
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
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.
(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:
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.
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
The first element of a declaratory judgment action clearly is met. A genuine disagreement and substantial controversy exists between the parties as to whether physicians may appropriately delegate the procedure to APNs and, in turn, whether APNs may perform the procedure.
Whether a plaintiff has a legally protectable interest is an issue of standing. See Kansas City Power & Light Co., 322 S.W.3d at 530; Battlefield Fire Prot. Dist. v. City of Springfield, 941 S.W.2d 491, 492 (Mo. banc 1997) ("When seeking declaratory or injunctive relief, the criterion for standing is whether the plaintiff has a legally protectable interest at stake."). "A legally protectable interest exists if the plaintiff is directly and adversely affected by the action in question or if the plaintiff's interest is conferred by statute." Kansas City Power & Light Co., 322 S.W.3d at 530.
Dr. Kunkel, undoubtedly, is directly and adversely impacted by the Board's statements. As a licensee of the Board, he is subject to its authority. Failure to adhere to the standards set by the Board's letter risks initiation of disciplinary proceedings against Dr. Kunkel, thereby jeopardizing his license to practice medicine. This point is confirmed by the subsequent initiation of disciplinary action against Dr. Kunkel.
Mr. Snyders, as an APN who regularly performs the procedure, also has a legally protectable interest at stake. While APNs are not subject to the Board's authority, APNs such as Mr. Snyders are adversely impacted by the Board's letter because, if doctors cannot delegate the procedure to them, APNs cannot perform certain procedures they previously have been allowed to perform.
Likewise, MANA has "associational standing" to bring the action on behalf of its members. "An entity has associational standing if: 1) its members would otherwise have standing to bring suit in their own right; 2) the interests it seeks to protect are germane to the organization's purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Missouri Bankers Ass'n v. Dir. of Missouri Div. of Credit Unions, 126 S.W.3d 360, 363 (Mo. banc 2003). MANA seeks to protect its members' right to engage in their profession and participate in a collaborative practice between APNs and physicians. The final requirement is met because the relief requested— invalidation of the Board's statements—"is prospective only, and no request was made for money damages or some other relief that is specific to individual members." Id. at 363.
"[T]he ripeness doctrine allows a court `to apply a pragmatic test to determine whether the agency action is sufficiently binding and sufficiently clear in scope and implications to be susceptible to judicial evaluation....'" Missouri Soybean, 102 S.W.3d at 25 (quoting KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 15.1, at 306 (3d
Regarding the fitness of the issue for judicial resolution, the letter expresses the Board's opinion that APNs do not have the appropriate training, skill or experience to perform fluoroscopic injections. The record clearly demonstrates that the Board has finished development of its policy, as evidenced by its attempt to enforce its position through a disciplinary proceeding filed against Dr. Kunkel. No further factual development is required for judicial resolution.
As to the second factor, several states have addressed hardship as it relates to threatened agency action. See Alternate Fuels, Inc. v. Dir. of Illinois E.P.A., 215 Ill.2d 219, 294 Ill.Dec. 32, 830 N.E.2d 444, 451-52 (2004); Lorillard Tobacco Co. v. Roth, 99 N.Y.2d 316, 756 N.Y.S.2d 108, 786 N.E.2d 7, 10 n. 3 (2003). Those cases recognize the need for judicial resolution when plaintiffs are faced with the dilemma physicians now face: comply or "take a potentially more costly alternative of risking serious penalties by continuing and waiting for the ax of Agency prosecution to fall...." Alternate Fuels, 294 Ill.Dec. 32, 830 N.E.2d at 452; see also State ex rel. Glendinning Companies of Connecticut, Inc. v. Letz, 591 S.W.2d 92, 98 (Mo.App. 1979). APNs, in turn, cannot perform the procedure if physicians are unable to delegate it to them. Appellants' hardship is imminent and certain and, accordingly, the issue is ripe for review. See Glendinning, 591 S.W.2d at 98 ("It is just such uncertainty as this that the declaratory judgment provision ... is designed to settle."); Alternate Fuels, 294 Ill.Dec. 32, 830 N.E.2d at 451-52; Lorillard, 756 N.Y.S.2d 108, 786 N.E.2d at 10 n. 3.
In the context of this action, inadequacy touches on two concepts: the adequacy of some other judicial remedy and the adequacy of an administrative remedy. The former is not in contention. However, the adequacy of an administrative remedy is disputed by the Board.
As a general rule, declaratory relief is unavailable if the party who seeks it has failed to exhaust all available administrative remedies provided by statute. Council House Redevelopment Corp. v. Hill, 920 S.W.2d 890, 892 (Mo. banc 1996); Schierding v. Missouri Dental Bd., 705 S.W.2d 484, 487 (Mo.App.1985). Courts have recognized that an adequate remedy is not available, and an exception to the exhaustion of administrative remedies doctrine arises, "where the applicable administrative procedure must be commenced by the agency and the agency has failed to commence any proceeding. A party threatened by agency action may invoke the court's jurisdiction to grant declaratory judgment against the agency." Farm Bureau Town & Country Ins. Co. of Missouri v. Angoff, 909 S.W.2d 348, 354 (Mo. banc 1995); See also Group Health Plan, 787 S.W.2d at 749 (Mo.App.1990) (holding that exhaustion of remedies was not required when plaintiffs were threatened by an agency with application of a statute). The Court in Farm Bureau, however, held that the exception would not apply when the commencement of the threatened administrative procedure began approximately 30 days from the filing of the declaratory judgment action. Farm Bureau, 909 S.W.2d at 354.
APNs, though sufficiently impacted by the Board's letter, are not subject to the authority of the Board and, therefore, have
Here the Board waited nearly four and a half months after this action was filed to initiate an administrative proceeding against Dr. Kunkel and nearly a year and a half after it issued its letter. Physicians should not be foreclosed from declaratory judgment for that span of time and forced to practice their profession at the mercy of the Board, thereby jeopardizing their license to practice. Compare Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. banc 1983) (where declaratory action was permitted for threatened action) with Schierding, 705 S.W.2d 484 (where declaratory action filed subsequent to initiation of the commission proceeding, declaratory relief is inappropriate); See also Glendinning, 591 S.W.2d 92 (holding declaratory relief was available to plaintiffs for threatened application of regulation after agency action was filed, but hearing had not been held); Alternate Fuels, 294 Ill.Dec. 32, 830 N.E.2d at 452 (though discussed under ripeness, court recognized the compelling need to hear the declaratory judgment action in the face of agency's threat of enforcement); Lorillard, 756 N.Y.S.2d 108, 786 N.E.2d at 10 n. 3 (again, though discussed under ripeness, the court recognized a need to hear the declaratory judgment action). Because of the Board's delay in initiating proceedings against Dr. Kunkel well after Appellants filed this action, declaratory judgment is appropriate.
Appellate review of a trial court's grant of summary judgment is de novo. Southers v. City of Farmington, 263 S.W.3d 603, 608 (Mo. banc 2008). "For summary judgment to be entered in its favor, the movant has the burden of proving that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law." Turner, 318 S.W.3d at 664; Rule 74.04.
The parties to this action do not contest the trial court's determination that there are no genuine issues of material fact in this case. Rather, the issue on appeal is whether the trial court erred in determining the Board was entitled to summary judgment as a matter of law. See generally Purcell v. Cape Girardeau County Comm'n, 322 S.W.3d 522, 524 (Mo. banc 2010).
"Whether an agency decision should be promulgated as a rule is a determination that is guided by section 536.010(6)...." Dep't of Soc. Services, Div. of Med. Services v. Little Hills Healthcare, L.L.C., 236 S.W.3d 637, 641 (Mo. banc 2007). Section 536.010(6) of the act provides that the term "rule" means "each agency statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency [subject to certain exceptions]." (Emphasis added).
Section 536.021.1, RSMo Supp.2004, outlines the rulemaking procedures necessary to properly promulgate a rule:
Additionally, section 334.125.2 dictates that, for a rule to become effective, the Board must submit any proposed rules to the joint committee on administrative rules, pursuant to section 536.024, RSMo Supp.2005.
While section 536.010(6) specifies the nature of a "rule," sections 536.021 and 334.125 prescribe the procedures that must be followed for an agency's statement to carry the force and effect of law as a "rule." Section 536.021.7, RSMo Supp. 2006, provides that "... any rule ... shall be null, void and unenforceable unless made in accordance with the provisions of [section 536.021]."
The Board's letter states "[APNs] currently do not have the appropriate training, skill or experience to perform these injections [in accordance with the requirements of chapter 334]." Whatever the Board's intent, its letter was written with language that is generally applicable to all physicians and APNs. The letter's language was not confined to a specific set of facts, but instead has a future effect and potential impact on any physician wishing to delegate the procedure to an APN and, in turn, on any APN wishing to engage in the procedure. See Little Hills Healthcare, L.L.C., 236 S.W.3d at 642 ("Any agency announcement of policy or interpretation of law that has future effect and acts on unnamed and unspecified facts is a `rule.'").
"[C]hanges in statewide policy are rules within the meaning of the Administrative Procedure Act." NME Hospitals, 850 S.W.2d at 75. The Board's letter is a statement of general applicability that interpreted the law and prescribed policy. It required promulgation, pursuant to section 536.021, to have any force and effect of law as a "rule." See Id. at 74 ("Failure to follow rulemaking procedures renders void purported changes in statewide policy."). There is no dispute that the Board failed to comply with the rulemaking procedures prescribed by sections 536.021 and 334.125. The letter is void and of no legal effect as a "rule."
The letter is "merely an expression of the [B]oard's interpretation of law without any force and legal effect." United Pharmacal, 159 S.W.3d at 365. While the trial court was correct that the letter is not a "rule," summary judgment was improperly
It is Appellants who are entitled to a declaratory judgment that the Board's letter is void and of no effect as a "rule." As such, Appellants also are entitled to an injunction prohibiting the Board from enforcing its letter as a "rule."
Appellant's second point on appeal claims, regardless of whether the Board's letter is a rule or not, that the trial court erred in granting summary judgment for the Board because the Board was without authority to make policies, interpretations or determinations that define the scope of practice for APNs in light of Sermchief. 660 S.W.2d 683. Appellants' petition does not seek a declaration that APNs may lawfully perform the procedure, but instead seeks invalidation and retraction of the letter based solely on the assertion that the Board lacked any authority to make a determination that defined the scope of practice for APNs.
The authority of the Board is set out in the provisions of chapter 334. The Board was created for the express purpose of "registering, licensing and supervising all physicians and surgeons, and midwives in this state." Section 334.120.1. Section 334.100.2, RSMo Supp.2010, grants the Board authority to file complaints with the commission against a licensed physician. A list of causes for such complaints is outlined in section 334.100.2, including instances in which the Board determines a licensed physician to be "[d]elegating professional responsibilities to a person who is not qualified by training, skill, competency, age, experience or licensure to perform such responsibilities; ...." Section 334.100.2(4)(d). Upon a finding by the commission that the cause is met, the Board may discipline the accused physician.
Section 334.155.2, however, sets forth that the provisions of chapter 334 do not apply to "nurses licensed and lawfully practicing their profession within the provisions of chapter 335." Furthermore, that section explicitly states that "[t]he provisions of [chapter 334] shall not prevent a licensed physician from referring a patient to or delegating responsibilities to" nurses licensed and lawfully practicing
Chapter 335 governs the practice and licensure of nurses in Missouri. The Missouri State Board of Nursing (the "Board of Nursing") is charged with enforcing chapter 335. See section 335.036, RSMo Supp.2006. Section 335.016(15), RSMo Supp.2008, defines the scope of practice for "professional nursing" as:
This Court has explained that the qualifying phrase "including, but not limited to" evidences intent by the legislature "to avoid statutory constraints on the evolution of new functions for nurses delivering health services." Sermchief, 660 S.W.2d at 690. "Under [section 335.016(15)], a nurse may be permitted to assume responsibilities heretofore not considered to be within the field of professional nursing so long as those responsibilities are consistent with her or his `specialized education, judgment and skill based on knowledge and application of principles derived from the biological, physical, social and nursing sciences.'" Id.
The interplay of chapters 334 and 335 is highlighted further by section 334.104, RSMo Supp.2009, which permits physicians to enter into "collaborative practice arrangements" with registered professional nurses.
Id. The Board and the Board of Nursing, in accordance with their respective governing chapters, "may jointly promulgate rules regulating the use of collaborative practice arrangements," with such rules only taking effect after they have been approved by a majority vote of a quorum of each board.
Appellants contend that Sermchief sets forth the proposition that any action by the Board limiting the practice of nursing exceeds the Board's authority. In Sermchief, the Board threatened the appellant nurses with an action for the unauthorized practice of medicine. Sermchief, 660 S.W.2d at 688. The nurses responded by filing for injunctive relief and a declaratory judgment that the nurses' practices were authorized under chapter 335 and, therefore, the provisions of chapter 334 were not applicable to them. Id. The Court noted the "thin and elusive line that separates the practice of medicine and the practice of professional nursing in modern day delivery of health services," holding that the practices complained of by the Board were authorized by chapter 335 and, accordingly, "[did] not constitute the unlawful practice of medicine for the reason that [section] 334.155 makes the provisions of Chapter 334 inapplicable to `nurses licensed and lawfully practicing their profession within the provisions of Chapter 335.'" Id. at 688-90.
Here, Appellants do not seek a declaration that the procedure is authorized under chapter 335 and the Board does not threaten action against nurses. The Board's letter is a statement regarding a procedure that the Board believes cannot be delegated by physicians to APNs. The Board has the authority, pursuant to section 334.100.2(4)(d), to file a proceeding with the commission against a physician for delegation of "professional responsibilities to a person who is not qualified...." To this extent, Appellants reliance upon Sermchief is misplaced.
However, the Board's letter is premised on a conclusion that "[APNs] currently do not have the appropriate training, skill, or experience to perform these injections." It is unclear whether the Board is attempting to regulate the practice of physicians, which it is empowered to do, or to regulate the practice of nursing, which it is not.
The parties have submitted this issue to the Court as a matter of law. The record is bereft of evidence as to the contents of the collaborative practice arrangement under which any physician and APN were practicing or whether their practice violated regulations jointly promulgated by the Board and the Board of Nursing, pursuant to section 334.102.3. Neither does the record
The judgment is reversed, and the case is remanded.
All concur.
