BY BETH MUSGRAVE
[email protected] –

Kentucky Attorney General Andy Beshear is pledging to fight a proposed reorganization and restructuring by Gov. Matt Bevin of nearly 40 medical and professional oversight boards, which control the licensing of more than 100,000 professionals in Kentucky and investigate complaints against them.

Officials with the Kentucky Public Protection Cabinet have told leaders of these boards that Bevin plans to sign an executive order, possibly as early as July 1, that would dramatically change how the boards operate.

The number of members on most boards would be cut to five, according to cabinet documents that were presented to lawmakers or affected professional groups. Also, executive directors appointed by the governor would have authority to veto or overturn licensure and disciplinary decisions and they would have final say on state regulations for those professional groups. In many cases, one director would oversee several boards.

This latest tussle over the governor’s power to dissolve and re-appoint governing boards comes as Beshear announced Tuesday that he filed a lawsuit challenging Bevin’s authority to overhaul several education boards, including the Kentucky Board of Education. Beshear has already sued Bevin for unilaterally remaking the boards of the University of Louisville and the Kentucky Retirement Systems.

Beshear, in an interview last week, said he has similar concerns about the possible restructuring of mental health and medical licensure boards.

The 39 boards include the Kentucky Board of Nursing, the Kentucky State Board of Medical Licensure, the Kentucky Board of Social Work, the Kentucky Board of Pharmacy and boards that oversee dentistry, podiatry, prosthetics, funeral directors, architects and accountants.

The General Assembly created the boards and, in most cases, dictated in legislation how many members should be on each board, the length of a member’s term, and the specific professional backgrounds that should be represented on each board.

“The legislature created independent licensing boards and they protected those boards in a number of ways to preserve their independence,” Beshear said. “Many have the authority to hire their own executive directors.”

Under the proposed changes, executive directors will answer to the executive branch and will not be independent, Beshear said.

“We are going to have a political appointee decide whether or not your doctor can practice medicine,” he said.

Elizabeth Kuhn, a spokeswoman for the Public Protection Cabinet, did not directly respond to questions about Beshear’s criticisms or his contention that Bevin does not have the authority to dissolve and re-organize the professional boards.

State supervision

Cabinet officials have told legislators and others that changes are necessary following a 2015 U.S. Supreme Court decision against a North Carolina dental board that had sent cease and desist orders to anyone who was not a dentist who offered teeth whitening services in that state.

Kentucky’s professional boards now need executive-branch oversight in order to avoid similar anti-trust lawsuits, Kuhn said in a written statement.

“Without necessary state supervision, many of Kentucky’s professional licensing boards are vulnerable to potential anti-trust liability,” Kuhn said. “These 39 boards make crucial decisions for our state’s professionals, and we must eliminate this vulnerability, ensuring that Kentucky can maintain a competitive marketplace for licensed professionals.”

States across the country are restructuring their professional boards in light of the 2015 court decision, Kuhn said.

Many of those states have made changes to comply with the court ruling through the legislative process, but Bevin did not propose any changes during the 2016 or 2017 legislative sessions, Beshear said. Instead, Bevin is relying on a state law that allows a governor to reorganize state government when the legislature is not in session.

In a presentation to the legislature’s Joint Interim Licensing, Occupations and Administrative Regulations Committee in early June, public protection officials told lawmakers that the affected boards will continue to function in the same general manner. The boards will still have executive directors, although one person might oversee a group of boards.

For example, boards that oversee dentistry, optometrists, podiatry, pharmacy, chiropractors and psychologists would be grouped together with one executive director.

Despite assurances from the Bevin administration, groups representing these professions said they are concerned the new structure could delay disciplinary actions and the licensing of professionals. It’s not clear, for example, what will happen to the staffs who work for the boards.

Kuhn did not answer questions about staffing or the control of millions of dollars in fees those boards collect.

In their presentation to lawmakers, public protection officials said merit employees, who are protected from political influence, could be absorbed into the Public Protection Cabinet. But some boards have executive directors who are non-merit appointees who can be terminated at any time.

‘Completely devastating’

A loss of independence is a major concern for several boards, including the Kentucky Board of Social Work, which meets monthly and oversees more than 5,000 professionals. It has three staff members, including an executive director.

Under the proposed changes, the board will share an executive director with six other boards and its membership will be cut from eight to five.

“We are very worried about the restructuring as it has been outlined because the best way to protect our social workers, our profession, and most importantly, our public, is to make sure we are licensed and practicing within the high standards as defined through legislation and our NASW Code of Ethics,” said Brenda Rosen, executive director of the Kentucky chapter of the National Association of Social Workers. “We sincerely understand the goal of providing ‘oversight’ but disagree that it has to be as extensive as it is currently outlined because it is completely devastating our independent Board of Social Work which currently serves over 5,200 licensed social workers.”

Other groups are concerned that the money they collect through licensing and fees will be diverted to other uses. According to Public Protection Cabinet documents, the boards would still set licensing fees and create their own budgets, but it’s not clear who will control the funds — the board or the executive director appointed by the Bevin administration.

“These are funds that are paid by the members for licensing and other fees,” said Sheila Schuster, a longtime health and mental health advocate. “It’s not taxpayer money.”

In their presentation to lawmakers, cabinet officials also said the reorganization would cut costs and create efficiencies.

“The board of social work staff and office expenses are financed through our licensure fees and dues, so the reference to cost savings is concerning to us because it suggests tax dollars are used to fund our board of social work and that is untrue,” Rosen said.

In some instances, the proposed changes would run counter to state laws that require a board’s executive director to be a licensed member of that profession.

For example, the legislature mandated that the Kentucky Board of Nursing, which oversees the licensing, disciplining and continuing education of more than 90,000 nurses, have an executive director who is a licensed nurse. The same is true of the Board of Pharmacy.

Nursing groups, though, have been told the re-organization would not allow an executive director to be a “market participant,” or someone who is licensed by the board. Allowing a licensee to oversee the board could create an anti-trust violation, cabinet officials have said.

The nursing board, which was created by statute, would go from 16 members that represent various areas of nursing — school nursing, long-term care nursing and other specialties — to 13 board members. The new board would not represent different practice areas, according to a letter Public Protection Secretary David Dickerson sent Betsy Johnson, executive director of the Kentucky Association of Health Care Facilities.

Instead, there would be four advanced practice nurses; four registered nurses; two licensed practical nurses, or LPNs; one citizen; and two other spots that any licensed nurse could hold.

Several health care groups have complained, saying membership of the board was set by the General Assembly. For example, Johnson said state law requires the board to have a nurse nominated by her organization, which represents nursing homes and other long-term care facilities.

“We are very concerned,” Johnson said. “The General Assembly recognized that a diverse group of nurses should be on that board. That’s why they passed this statute.”

‘Unprecedented in magnitude’

In a separate action, Bevin signed an executive order May 16 to create a new legal division within the Public Protection Cabinet for lawyers to staff the affected boards. The attorney general’s office has traditionally provided lawyers to professional boards through a contract.

Beshear said he is currently transitioning lawyers in his office that served as legal counsel for professional boards to other jobs.

“The loss of funding to our office will be minimal,” Beshear said.

Beshear said he is more concerned Bevin will have total control over all 39 licensure boards, in addition to 40 boards the governor has already reorganized via executive order. If a board disagrees with its lawyer or executive director, both of whom would be employed by the executive branch, what could it do, he asked.

“What the governor has done is unprecedented in its magnitude,” Beshear said. “Our position and the law says it’s the General Assembly’s job to reorganize these boards. I’m going to do my job and protect the General Assembly’s authority even if the members of the General Assembly won’t.”

Beth Musgrave: 859-231-3205, @HLCityhall