March 15, 1999
To: Professional State Board Members
From: Johanna Duncan-Poitier
Subject: Professional Practice Guidelines
I write to clarify the purpose and use of practice guidelines developed by Professional State Boards. Practice guidelines provide guidance regarding the implementation of Rules of the New York State Board of Regents to practitioners for the promotion of good practice. Because of questions recently posed about the meaning and use of these guidelines, the following is a more detailed description of the purpose, benefits and limitations of this important tool.
In accordance with Section 6504 of Title VIII of the Education Law:
"Admission to the practice of the professions and regulation of such practice shall be supervised by the board of regents and administered by the education department, assisted by a state board for each profession."
The Board of Regents' supervision and the State Education Department's administration of professional regulation is guided by the Education Law, Regents Rules and Commissioner's Regulations. To meet their responsibility to assist in regulating the practice of the professions, several professional State Boards have developed practice guidelines to assist licensed professionals in understanding how to apply the law and accompanying rules and regulations in their daily practice. They are intended to provide licensees with guidance to promote good practice and prevent incidents of professional misconduct.1
1It should also be understood that it is not the intent of the guidelines to establish a standard for the evaluation of issues in civil liability lawsuits involving claims of negligence or malpractice. The intent is to provide a frame of reference to be used with other appropriate considerations for assessment of issues relating to professional misconduct and unprofessional conduct as defined by statute, Regents Rule or Commissioner's Regulations.
Practice guidelines can benefit licensees and consumers by broadening their understanding of statutory and regulatory language that defines professional practice, including professional misconduct and unprofessional conduct. They inform practitioners of the Office of the Professions' and State Board's perspective of what constitutes good practice in their profession. In the discipline process, practice guidelines can serve as one of many resources that may be referred to by a board member in consultations, early involvement meetings, and informal settlement conferences, all of which seek resolution of complaints. When combined with the board member's education, experience, and prior activity in the profession and the disciplinary process, they can inform a board member's recommendation when consulted upon a complaint.
Practice guidelines, however, are not a substitute for or have the authority of Education Law, Regents Rules, or Commissioner's Regulations. They do not have the force of the law. Therefore, while the guidelines may be a resource in assessing conduct that underlies a violation, they may not be used as the basis for a charge of professional misconduct. Specifically, a professional cannot be charged with professional misconduct based upon a violation of or failure to comply with guidelines. A licensee can only be charged with professional misconduct if there is a violation of the Education Law or Regents Rules. Nor can conformance with guidelines be deemed to immunize a professional from potential charges of misconduct. Those determinations are to be made on a case by case basis by the Professional Conduct Officer in accordance with Section 6510 of the Education Law.
In formal disciplinary hearings, a guideline may not be used in deliberations unless the Administrative Officer determines that it is admissible. Unless guidelines have been legally admitted into evidence upon a motion to be decided by the administrative officer, a panel should not refer to guidelines because a determination should be based solely on the evidence of individual conduct in an individual case. We realize that a panel member may have discussed and contributed to the development of practice guidelines. That is part of the board member's perspective, formed by his or her professional background, education, experience, research, and discussions. When a board member serves on a hearing panel, due process requires that board member to disregard whatever knowledge or insight was developed during the development of the guidelines unless they have been admitted into evidence, as noted above.
A guideline cannot be part of the hearing record or considered as evidence of the respondent's guilt, unless it has been admitted into evidence. In analyzing and interpreting the evidence presented in the hearing record, panel members should not substitute any guideline for evidence or proof of any charge.
As an articulation of good practice, guidelines are a very important tool for the State Education Department in meeting its critical mission of promoting good practice. I appreciate the thoughtfulness and dedication all of the State Professional Board Members bring to matters of professional licensure, practice, and discipline. Your role in the disciplinary process in describing and interpreting what is good practice are essential in assisting the Regents and the Department in matters of practice. If you have any questions in this matter, please contact Doug Lentivech in the Office of Professional Responsibility at 518-486-1765 or e-mail at dlentivech@nysed.gov.
Again, my appreciation to you for the time, dedication, and professional expertise you devote to regulation.
cc:
Frank Muñoz
Fred Burgess
Douglas Lentivech
Executive Secretaries, State Boards and Professional Assistance Committee