INTRODUCTION TO REGULATORY GOVERNANCE · Welcome Welcome to the Board Member Training – Introduction to Regulatory Governance program, provided by the Council on Licensure, Enforcement

BOARD MEMBER TRAINING PROGRAM

INTRODUCTION TO REGULATORY GOVERNANCE INSTRUCTOR GUIDE

Lexington, Kentucky 2017

The Council on Licensure, Enforcement & Regulation

Volume 1

The Council on Licensure, Enforcement and Regulation

108 Windhaven Drive, Suite A, Nicholasville, Kentucky 40356

Phone: 859-269-1289 | www.clearhq.org | E-mail: [email protected]

All rights reserved. Inquiries for use of any material should be directed to:

Executive Director, The Council on Licensure, Enforcement and Regulation

This manual is not to be reproduced in any form.

Copyright © 2017 The Council on Licensure, Enforcement and Regulation (CLEAR). All Rights Reserved.

http://www.clearhq.org/

mailto:[email protected]

Welcome

Welcome to the Board Member Training – Introduction to Regulatory Governance program, provided by the Council on Licensure, Enforcement and Regulation (CLEAR). We hope you enjoy this course, and look forward to being of service to you and your organization for your future regulatory educational needs. Please take a moment to read through the following information regarding our organization, and what we can offer you as a student, and/or member of our organization.

Background CLEAR was conceived over 30 years ago as a resource for any entity or individual involved in the licensure, non-voluntary certification or registration of the hundreds of regulated occupations and professions. Since its inception, CLEAR's membership has included representatives of all governmental sectors, the private sector, and many others with an interest in this field. A neutral forum to encourage and provide for the sharing of best practices, CLEAR serves and supports the international regulatory community and its vital contribution to public protection. CLEAR's hallmark is its inclusiveness. Since it does not lobby or adopt positions on debatable matters, CLEAR offers neutral ground to those holding diverse viewpoints. This holistic approach serves its members well, and permits unusual responsiveness to a necessarily varied and changing constituency.

Programs CLEAR promotes regulatory excellence through conferences, educational programs, networking opportunities, publications, and research services for those involved with, or affected by, professional and occupational regulation. There are four core areas of substantive inquiry that CLEAR supports through its annual conference and other venues: compliance and discipline; testing and examination issues; entry to practice issues; and administration, legislation and policy.

Education and Training In addition to this program, CLEAR also offers a Board Member Training – Advanced Concepts course, an Executive Leadership Training program, and basic and specialized Investigator and Inspector Training programs.

Mission Statement

CLEAR is an association of individuals, agencies and

organizations that comprise the international community of

professional and occupational regulation.

CLEAR is a dynamic forum for improving the quality and

understanding of regulation in order to enhance public

protection. Through conferences, services and publications, CLEAR provides the resources for ongoing and thorough communication of international licensure and regulation issues among all those interested in the field. CLEAR's purpose is to bring together the professional regulatory community for:

• The exchange of information

• Education and training

• A central information clearinghouse

• The identification of best practices CLEAR meets its mission through:

• Conferences and training

• Publications

• Answering inquiries

• Consulting

• Providing Networking Opportunities

Participant Guide Table of Contents This table will tell you where participants can find session, and lesson headings in their version of the printed course materials

Chapter 1: Foundations of Regulatory Governance 1

Introduction to Regulation 5

10 Instruments of Regulation 7

Factors and Trends Influencing Regulation 11

Session Review 14

Chapter 2: Roles and Responsibilities of a Board Member 21

Board Member Responsibility 25

Code of Conduct 29

Sharing Information 31

Building Good Relationships 33

Evaluation 34

Session Review 36

Chapter 3: Administrative Rulemaking 43

Purpose of Rules 47

Making Good Rules 48

The Board’s Role in the Rulemaking Process 52

Session Review 54

Chapter 4: Professional Discipline 61

The Enforcement Process 65

Receiving and Sharing Information 69

Disciplinary Sanctions 70

Practitioner Misconduct 71

Session Review 73

Chapter 5: Assessing Competence 79

Components of Competence 83

Determining Competence at Point of Entry 85

Determining Continued Competence 87

Session Review 91

Appendix 97

Board Self-Assessment Checklist 99

Parliamentary Procedure: Based on Robert’s Rules of Order 101

Questions to Ask Regarding… 107

Glossary 121

Instructor Guide Table of Contents This table will tell you where you can find session, and lesson headings in your version of the printed course materials

Chapter 1: Foundations of Regulatory Governance 1

Session Introduction 2

Introduction to Regulation 5

10 Instruments of Regulation 14

Factors and Trends Influencing Regulation 28

Session Review 36

Chapter 2: Roles and Responsibilities of a Board Member 45


Board Member Responsibility 49

Code of Conduct 62

Sharing Information 72

Building Good Relationships 77

Evaluation 81

Session Review 85

Chapter 3: Administrative Rulemaking 93


Purpose of Rules 97

Making Good Rules 102

The Board’s Role in the Rulemaking Process 114

Session Review 117

Chapter 4: Professional Discipline 127


The Enforcement Process 132

Receiving and Sharing Information 145

Disciplinary Sanctions 148

Practitioner Misconduct 152

Session Review 156

Chapter 5: Assessing Competence 167


Components of Competence 171

Determining Competence at Point of Entry 177

Determining Continued Competence 187

Session Review 196

Appendix 205

Board Self-Assessment Checklist 207

Parliamentary Procedure: Based on Robert’s Rules of Order 209

Questions to Ask Regarding… 215

Glossary 223

Foundations of Occupational and Professional Regulation

Instructor NameAgency


Council on Licensure, Enforcement and Regulation

Board Member TrainingIntroduction to Regulatory Governance

Display slide.

Say “Welcome to the Foundations of Occupational and Professional Regulation session of the CLEAR Learning Board Member Training – Introduction to Regulatory Governance course.”

Introduce yourself, including a brief overview of your credentials and history with CLEAR.

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Session Introduction

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Explain that we will first review the session learning objectives and session structure.

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Learning Objectives

Upon completion of the session, you will be able to:

Define key terms as they relate to regulatorsUnderstand the history of and rationale for regulation and how it affects the way we regulate todayExamine the authority and business of regulatory bodiesAnalyze trends in regulation

Display slide.

Explain the learning objectives on the screen.

Ask if there are any questions.

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Session Map


Introduction to RegulationIntroduction to Regulation

10 Instruments of Regulation10 Instruments of Regulation

Factors and Trends Influencing RegulationFactors and Trends Influencing Regulation

Session ReviewSession Review

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Explain that this session is divided into four lessons. These lessons are:

1. Introduction to Regulation2. 10 Instruments of Regulation3. Factors and Trends Influencing Regulation4. Session Review


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Introduction to Regulation

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Explain that this section provides a brief overview of:

• History of Occupational and Professional Regulation• Rationale for Regulation• Pros and Cons of Regulation• Authority of Regulatory Organization

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History of Occupational and Professional Regulation

10th Century• Worker’s

Guilds

1639• VA regulates

medical professionals

1770s• NJ passes 1st

comprehensive medical practice act

1797• Law Society of

Upper Canada founded

1900• Attorneys,

Dentists, Pharmacists, Physicians and Teachers regulated

1900-1960• Additional 20

occupations and professions regulated

Today• Over 3,000

occupations and professions regulated

Display slide.

Explain Occupational and professional regulation has a long history. Modern day regulation has its roots in workers' guilds that can be traced back to the tenth century in England.

The first modern effort to regulate occupations and professions in the United States occurred in Virginia in 1639. This initial regulatory effort grew out of the concern for excessive fees charged by the medical profession, not concerns for patient safety.

During the next century, concerns for public safety began to be addressed. In the 1770’s the first comprehensive medical practice act was passed in New Jersey, placing the regulation of medicine in the hands of lay, or public, members. In Ontario, The Law Society of Upper Canada was founded in 1797 to regulate the practice of the legal profession in Ontario. Over the next hundred years state regulatory activity began in earnest, with a developing relationship between organized medicine and education.

By 1900, a majority of jurisdictions were regulating attorneys, dentists, pharmacists, physicians and teachers. Between 1900 and 1960, most states and provinces also regulated an additional twenty occupations and professions including accountants, nurses, real estate brokers, barbers, hairdressers, chiropractors and funeral directors.

Today, over three thousand occupations and professions are regulated by one or more of the states or provinces, although it is interesting to note that only a few dozen professions are regulated by all the jurisdictions. In addition, some jurisdictions today have as many as 40 individual regulatory authorities that regulate policy, determine standards, and approve

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applications for their own professions.

Professional and Occupational regulation is also growing in other countries. “In Europe, we are witnessing the growing phenomenon of transnational regulation of professional services. One of the major objectives of the European Union (EU) since its inception has been the harmonization of national regulations affecting the provision of goods and services in order to facilitate the free movement of products and labor in the European market. The professions and the services they cover are increasingly covered by regulations which define a common basis of competence for licensing as well as sometimes common standards of practice.”

Evetts, J. (1Paper presented at the Joint Sessions of Professions and Knowledge, Economy and Society Networks, Madison Wisconsin, 8-11 July 1999.

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Terminology for Regulators – Regulatory Bodies

BoardCollegeCommissionAgencyDepartmentCourtsTribunals

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Explain Words and Phrases have Common Meaning. Our intent is to recognize differences and similarities, raise your awareness, and promote the application of the meaning of the law whatever the location

While the primary mandate of all regulatory orgs is a common one- to serve and protect the public interest, names and terminologies across regulatory orgs and across jurisdictions vary

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Terminology for Regulators - Locations

StateCommonwealthProvinceJurisdictionDistrictTerritory

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Explain Even what jurisdictions are called varies! With international reaches expanding through congresses, meetings, and other collaborative initiatives, it is always a challenge to get terminology right for all audiences. These are some of the terms used

Instructor Note the map displayed on this slide is color coded by the names of the regions used by each country. This graphic is meant to bring home the concept that different jurisdictions may call themselves something different; however, they are all talking about the boundaries within which they are responsible for regulation.

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Terminology for Regulators - Recognition

Licensure CertificationRegistrationAnd so on…

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Explain Similarly, who we regulate, and what we provide as evidence of registration with us can be different too. Some regulated professionals are called licensees, registrants or even members, and they may be have licenses, certificates, registrations to show. But as our portability/labor mobility provisions become more active, its important to understand whether a credential or certificate from one jurisdiction meets the entry requirements in your own.

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Rationale for Regulation

Regulation is only justified as a way to protect the public from harm

Criteria for

Regulation

Unqualified practice poses

risk to consumer

Unqualified practice poses

risk to consumer

Risks likely to occur

Risks likely to occur

Public unable to judge

qualifications

Public unable to judge

qualifications

Benefits to public

outweigh potential harm of regulation

Benefits to public

outweigh potential harm of regulation

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Explain Regulation is only justified as a way to protect the public from harm. Professional and occupational regulation exists to protect the public. Regulation is needed when there is substantial risk of harm to consumers if the service is performed improperly. It is a jurisdiction's exercise of its right to protect the health, safety and welfare of its citizens. The generally accepted criteria for regulating a profession include:

• Unqualified practice poses a serious risk to a consumer’s life, health, safety or economic well-being;

• Such risks are likely to occur; • The public cannot accurately judge a practitioner’s qualifications; and • Benefits to the public clearly outweigh potential harmful effects of regulation (such as a

decrease in the supply of practitioners).

Failure to meet these criteria, in general, indicates that regulation is not justified, or that some alternative form of regulation such as registration or certification may be appropriate.

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Pros and Cons of Regulation

Pros Raise standards Ensure quality of service Set codes and standards of

professional behavior Ensure professionals remain

competent Prevent fraudulent and

ethical behavior

Cons Restricts entry into a

profession Increases costs of service Lack of consistency in

continued competence measurements

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Explain Proponents of regulation argue that its purpose is to raise standards of practice, ensure quality service, and establish accepted codes of ethical behavior. In the last several decades there has been a growing awareness of regulation's concomitant responsibility to promote continuing professional education and competence, and to enforce regulatory laws against fraudulent, incompetent and unethical behavior. As regulators we can never ensure one of our registrants won’t commit fraud, or cause harm; however, we can commit to ensuring if and when they do, we are able to act swiftly and appropriately.

Critics of regulation argue that it restricts entry into the profession, decreases competition and innovation, and results in higher costs of services to consumers. Furthermore, while regulation and entry-level training requirements may promote a minimum level of competency at the time of initial regulation, the critics would say regulatory authorities have done little to ensure that practitioners maintain competency, and have not aggressively stripped incompetent and fraudulent practitioners of their registration. The area of ensuring competence is one of the most significant substantive issues that regulatory board members may be asked to confront.

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Authority of Regulatory Organizations

Rulemaking authorityAuthority to regulate all practitioners in the jurisdictionAuthority to take disciplinary action Authority to implement and monitor continuing professional education

Display slide.

Explain Regulatory authorities are influential in creating and changing workforce policies, particularly as they relate to these points on this slide. (took other notes out as they just reiterated word for word what's on the slide)

Regulators are tasked with setting and establishing rules/standards/expectations and then enforcing these. While regulators have commonly set standards setting out requirements at entry into a profession or occupation, it is now a common expectation that these be expanded to include a form of standard for continuing education and competency accompanied by an assessment or monitoring process.

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10 Instruments of Regulation

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Explain that across jurisdictions there are some common instruments of regulation. In this lesson we will discuss the ten main instruments of regulation and how they effect you as a regulator.

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Licensing / Registration

Licensing / RegistrationLicensing / Registration

Registration RenewalRegistration Renewal

Register of Regulated Professionals


Scope of Practice / Title Protection


StandardsStandards

Continuing Competence & Education


Complaints, Investigations, Resolution


DisciplineDiscipline

Public Information & Support


Support & Education to Registrants / LicenseesSupport & Education to Registrants / Licensees

Ensure only qualified people practiceIdentify competencies required of newly registered practitionersAssess competence through assessmentsEnsure required level of competence maintained to continue practiceLicensed for Life

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Explain The public expects that as regulators, we license safe and competent practitioners-professionals who are qualified to practice in their field. Best regulatory practices today around the world include identifying ‘competencies’ required of newly registered professionals/practitioners in a field, and assessing these through competency based assessments, both at entry and to ensure the required level of competence is also being maintained throughout licensure ( the old adage ”Licensed for Life” no longer applies)

Instructor Note Animation used on this slide is to highlight the “Licensed for Life” no longer exists line. This bullet point will not display until you are ready to talk about it, and choose to display it.

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Registration Renewal







StandardsStandards









Annual or PeriodicCollect fees and information to support regulatory workAllows regulatory body to:Plan programs and servicesCommunicate with licenseesDevelop policies

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Explain Regulatory authorities typically have an annual process requiring its licensees to pay annual registration fees and to provide or update information about where they practice and live and other data about their professional practice. Information about professional practice enables agencies to plan programs and services, communicate with licensees and develop policies.

Regulatory authorities have an obligation to ensure that they have sufficient resources to carry out its statutory obligation to regulate a profession in the interest of the public.

Instructor Note: Whether registration fees are paid annually or according to different schedules, and whether they are paid directly to the regulator, or to government/the state, the re-registration/license renewal process presents an opportunity for the regulator to gather and update important information about its registrants; and, to reflect on, and then communicate out, the value proposition that accompanies your work.

To explain, fees do generally go to support the work of the regulatory body, but there is value to that work for the registrants/profession as well. For some professions, this means title and/or scope of practice definition/protection; engagement, by being part of a profession, in the professional community with a role, through meeting the CE requirements of the regulator, to be part of the collective raising of the bar across the profession.

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StandardsStandards









Reliable list of practitioners who are qualified to practicePublic notice of any disciplinary actions and limits/conditions on ability to practiceMust be easily understood, relevant, and meaningful to laypeople Inconsistencies cause confusion and erode trust

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Explain The public relies on regulators to keep and maintain an up to date register that is easy to find and search. The information provided on the registers however, needs to be in a form that is easily understood, relevant and meaningful.

Public registers are used to advise the public and employers if a professional is subject to any limitation or condition on the professional practice and if s/he has been disciplined by the regulatory authority. Inconsistencies across jurisdictions, and also across professional regulators in the same jurisdiction, as to what information can or cannot be publicly included on registers is concern and again, can cause confusion but also erode confidence and trust.

Tools: The Register of licensees is typically maintained in electronic format by the regulatory authority and access to the information is now more often through the internet. Regulatory authorities may also give Register information to people by phone and in writing.

At times, legislation will prescribe what information must be on the public register and how access to the information is to be provided. Legislation may also be explicit about what information is to remain confidential. Regulatory authorities may be able to expand the information available to the public beyond what is prescribed in legislation.

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StandardsStandards









Purpose to ensure public not misled about who is qualified to practiceRegulatory authorities rely on:ComplaintsReportsPro-active scanning of ads and publications for servicesTitle protection by law enforcement vs regulatory body

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Explain The purpose of protection of Title and/or Scope of Practice is to ensure that the public is not misled about who is qualified to provide professional services. In many jurisdictions, unless you are regulated, you would not be permitted by law to use a title assigned to a profession, or practice with the permitted scope of practice.

Tools: Regulatory authorities can rely on complaints or reports about people inappropriately using a protected title or be pro-active in scanning advertisements and other publications. The first approach depends more on having an informed public and professionals who are willing make complaints if they suspect unauthorized use of a protected title.

The second approach is enabled by the use of electronic search engines making it cost-effective. Protecting scope of practice typically involves regulatory authorities responding to complaints or concerns about people knowingly or unknowingly performing unauthorized activities that encroach on a profession’s protected scope of practice.

Instructor Note There is an increasing trend of enforcement of title protection becoming the jurisdiction of law enforcement agencies, rather than the regulatory body. Reference the NC dental board decision and how it relates to regulating auxiliary fields related to the occupation or profession regulated by the board.

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Standards







StandardsStandards









Regulatory Authorities establish and update different types of standardsCompetency standardsStandards of qualificationEthical standardsStandards of conductPractice standardsAnd use various instruments to enforce those standards

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Explain The purpose of creating, and implementing standards is to ensure clarity of what is required of professionals so that the regulatory authority can monitor and enforce the expected behavior or conduct

The public and the profession look to the regulator to establish and then enforce standards. Standards of practice, conduct, ethical behavior, etc. When establishing standards that will affect how a profession can/will work, the regulator must ensure that such standards are valid and grounded in the profession, through consultation and profession participation. Case law in Canada has shown that prosecuting a professional for failing to maintain a standard of the profession, will be overturned where members of the profession, as experts in practice, demonstrate that the standard in question is either not being done by the profession, or cannot be done (for good reason).

Tools: Regulatory authorities establish and update different types of standards:

• Competency standards• Standards of qualification• Ethical standards• Standards of conduct• Practice standards

Various instruments are used depending on the jurisdiction. Some of the instruments are:

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• Codes of Ethics• Codes of Conduct• Professional Misconduct Regulations or By-laws• Practice Standards

It is important for regulatory authorities to update standards as needed to reflect changing public needs or values, changing bodies of professional knowledge and technologies and changing environmental/professional dynamics.

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Continuing Competence and Education







StandardsStandards








Support & Education to Registrants / Licensees

Ensure maintenance of knowledge and skill for public protectionIncorporate different competencies licensees are expected to maintainCan take the form ofContinuing education creditsProfessional development activitiesPractice reviews/auditsRecertification tests

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Explain The purpose of continuing competency/continuing education is to ensure licensees maintain necessary knowledge and skills to practice the profession safely, competently and ethically within a changing environment.

Tools: Regulatory authorities must establish and update standards and requirements for continuing competency and enforce compliance with these. Continuing competency standards may incorporate different sets of competencies that licensees are expected to maintain throughout their professional career, for instance, as a generalist or a specialist or in advanced areas of practice. Continuing competence requirements may be in a variety of forms including: continuing education credits, professional development activities based on self and/or peer assessments, practice reviews/audits, and recertification tests.

The public expects that we as regulators ensure safe and competent professionals throughout the time they are on our registers. Many would be disconcerted to discover that mandatory CPD/quality assurance programs for regulated professionals are not required in many jurisdictions. Even where they are required, the actual requirements can vary widely, which can erode public confidence.

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Complaints, Investigations and Resolution







StandardsStandards









Ensures public has redress when they feel aprofessional hasn’t behaved appropriately or hasnot provided competent serviceStandard tools used to handle complaints are:Information gatheringInvestigationsComplainant and licensee submissionsComplaints committees and panel deliberationWriting of formal decisions and reasonsAlternative Dispute Resolution (ADR) mechanism

Display slide.

Explain The purpose of complaints, investigations, and resolutions are to ensure the public has redress when they feel a professional has not behaved appropriately or has not provided competent service

When something goes wrong, the public wants and expects redress and looks to us as regulators to provide such. Boards should be considering what the public journey looks like, from the time a complaint is first lodged, to the time it is resolved or decided. The perceptions as to how that journey went can have a huge impact on how we are perceived as regulators (credible, effective?).

Best practice: consider conducting surveys of complainants after they have gone through your process.

Tools: Regulatory authority processes and decision making powers related to complaints and how they are investigated are often set out in legislation. The standard tools used to handle complaints are:

• Information gathering• Investigations• Complainant and licensee submissions• Complaints committees and panel deliberation• Writing of formal decisions and reasons

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• Alternative Dispute Resolution (ADR) mechanism

Some regulatory authorities are permitted to assist the complainant and licensee to resolve matters through an alternative dispute resolution (ADR) mechanism. Regulatory authorities have the responsibility to ensure that administrative policies and procedures enable effective, fair, and timely investigations and decision making and that sufficient resources support the handling of complaints.

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Discipline







StandardsStandards









Ensure fair and objective hearing and judgment for allegations of:Professional misconductIncompetenceIncapacityMust adhere to legal parameters of your jurisdictionMust be fair, transparent, open, consistent, and free of real or perceived conflicts

Display slide.

Explain the purpose of discipline, and incompetence and incapacity proceedings is to ensure a fair and objective hearing and judgment, for:

• Allegations of professional misconduct (serious breach of a standard of conduct or standard of practice)

• Incompetence (not competent to practice) and,• Incapacity (unfit to practice)

A hearing process will also be used for determining penalty for convictions of professional misconduct or determining other corrective actions.

In different jurisdictions, disciplinary processes differ. In Canada, registrants are commonly disciplined in front of a panel of peers in practice who are joined by one or more public lay appointees. In some states, they are disciplined in front of an administrative law judge. But as a board, you want to make sure your processes, leading up to, and during the disciplinary proceedings embrace principles of fairness, objectivity, transparency, openness, consistency AND that attention is paid to avoid real or perceived conflicts- of interest and role.

Tools: Discipline, incompetence and incapacity proceedings are quasi-judicial in nature and typically follow a strict process that often mirrors the process found in a court of law. Rules of proceeding, rules of evidence and latitude in decision making are usually set out in legislation and guided by common law. A regulatory authority may have complementary administrative rules. Before a regulatory authority holds a formal discipline, incompetence

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or incapacity hearing, concerns about the conduct of a licensee are subject to a screening process, usually through a complaints proceeding. The formal allegations of professional misconduct, incompetence and being unfit to practice are usually formulated as part of the screening process.

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Public Information and Support







StandardsStandards









Helps the public understand what to expect from registered professionals and access functions of regulatory authorityCan the public get in touch with your board?Is your webpage user friendly?Are your phone numbers easily found?Can a live person be reached?

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Explain The purpose of public information and support is to help the public understandwhat to expect from registered professionals, and to access the functions of the regulatory authority. Public information is also needed to hold regulatory authorities accountable for their public protection mandate.

As board members, you need to consider this and ask, how easy is it for the public to find us? To access us and needed information? To get a live person if they need help? You should also consider, how do we/can we/should we be reporting out beyond the annual report, which tends to be full of statistics. One word of caution: carefully consider and evaluate how public outreach is conducted to avoid perception that you are promoting the profession!

Tools: Optimal regulatory schemes depend on an informed public able to raise concerns/complaints about the services they receive from professionals, and provide input into the development of administrative rules that affect them as a consumer. Regulatory authorities have a responsibility to promote their role, contact information, and how concerns or complaints are addressed.

Regulatory authorities should also provide the public with information about professional standards and their administrative rules and proceedings. Members of the public may also need special guidance and support to articulate/record a complaint or concern, and make other submissions or testimonies to the regulatory authority.

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Support and Education to Registrants/Licensees







StandardsStandards









Licensees cannot comply with standards they either don’t know about, or don’t understandRegulators can use the following to provide education and support to licensees:InformationInterpretationsGuidance and advice

Display slide.

Explain as regulators we have the right to set and enforce standards and requirements; however, we also have a responsibility to inform our registrants of our expectations, particularly where new or different requirements are approved/implemented.

Some of us shy away from a role in providing information and education to registrants for fear of appearing too supportive, in an advocacy sense. But some best practices include practice advisory staff/dedicated lines to provide advice/support in a safe manner; publishing case studies highlighting learnings/opportunities for better practice in newsletters or journals; holding informational district meetings or webinars at no cost to registrants.

Tools: Information, interpretations, guidance and advice will go far to increase licensee compliance with their professional obligations. As laws, rules, and other standards change, licensees often need assistance to interpret them for their professional practice environment. This is also true for changing professional environments that challenge interpretation of old rules and standards.

Regulatory authorities can use a variety of tools such as written and electronic educational materials, workshops and in person or electronic seminars (webcasts). It is also beneficial for regulatory authorities to offer the services of in-house experts to guide licensees through difficult or confusing situations.

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Factors and Trends Influencing Regulation

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Explain that we will now examine the key factors and trends that have, and currently are influencing regulation on a global scale.

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Legislative Oversight

SunriseSunsetPerformance auditsLegislative or evaluation auditsOmbudsmenFair practice commissionersThird party appeal and review of decisions by regulatory authorities

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Explain Sunrise is a process under which an occupation or profession wishing to be regulated must propose the components of the legislation, along with cost and benefit estimates of the proposed regulation. The profession must then convince the legislators that consumers will be unduly harmed if the proposed legislation is not adopted.

Interestingly, professions rather than consumer groups usually seek regulation, although one rationale for this is that the practitioners understand the harm associated with professional practice better than do consumers. At least 14 states and several Canadian provinces adopted sunrise legislation, although, as with sunset, the activity became more widespread through changes in legislative review processes in many states.

Sunset is the automatic termination of regulatory boards and agencies unless legislative action is taken to reinstate them. Originally proposed by Colorado in 1976, 36 states adopted sunset legislation. The most common outcomes of sunset reviews were not terminations of regulatory authorities as predicted, but administrative and structural changes. By 1990, six states had repealed their sunset laws and another six had suspended the process (Brinegar and Schmitt, The Book of the States 1992-1993).

What is more common at this time is the statutory inclusion of sunset provisions in new laws as well as the periodic examination of regulatory authorities through performance audits, also known as legislative or evaluation audits. In some states, the process is carried out through the state auditor's office, while in others; a branch of the legislative research agency conducts the reviews.

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In other jurisdictions such as Canada, government can review or audit specific regulatory programs or functions. Other mechanisms for oversight include ombudsmen, fair practice commissioners, and third party appeal and review of decisions made by regulatory authorities (e.g. registration, complaints).

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Voluntarily Credentialed Professions

Reduced requests for regulation placed before legislaturesPrivate credentialing standards later accepted by governments for purpose of regulationIncreasing trend of professional certification in lieu of registration

Display slide.

Explain A proliferation of voluntarily credentialed groups has reduced the number of requests for regulation placed before legislatures, although the allied health, environmental and financial professions are making progress with uniform registration.

Some of these emerging professions have first built a group of individuals meeting their private credentialing standards and then successfully worked to have those standards accepted by governments for purposes of regulation.

More recently, there has been an increasing trend towards the utilization of professional certification in lieu of registration.

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Centralized Agencies

Grouping of regulatory authorities into broad functional areas to eliminate duplication of duties handled by each authorityTrend stopped in the early 1990s, but not before 35 states had central regulatory authorities

Display slide.

Explain Another factor was a move to reorganize state governments by grouping regulatory authorities into broad functional areas under umbrella agencies thus eliminating administrative duties previously handled by each regulatory authority. The trend toward centralization virtually stopped almost a decade ago; however, by 1994 35 states already had central regulatory authorities that performed or coordinated administrative functions for a group of boards.

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Consumer Movement

Began in 1970sRegulatory authorities traditionally comprised of professional membersNow, routinely have one or more public or consumer membersRelated trend is the addition of board members who are specialists or auxiliaries in the regulated profession

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Explain Another important factor was the consumer movement that began in the 1970’s. Issues once thought to be strictly in the purview of the professions now are considered to be public policy questions. For example regulatory authorities were traditionally comprised exclusively of members of the regulated professions, but routinely now have one or more public or consumer members. This reflects a concern that regulation only by members of the professions may not produce the best public policy.

A related trend includes the addition of board members who are specialists or auxiliaries in the profession regulated by the regulatory authority, such as adding a dental hygienist to the board of dentistry.

Instructor Note: North Carolina Board of Dental Examiners (NCBDE) v. Federal Trade Commission (FTC) is an example of a regulatory body attempting to regulate practice of auxiliary services by non-regulated persons. In this case, the NCBDE attempted to stop non-regulated persons from offering teeth whitening services at a cheaper rate than regulated dentists. The NCBDE sent cease and desist letters to persons offering teeth whitening services without a license and the FTC ruled that they were in violation of anti-trust law.

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SAFE Systems of State Regulation

Standardized where appropriate

Accountable to the public

Flexible to support optimal access to safe and competent workforce

Effective and efficient in protecting and promoting the public’s health, safety, and welfare

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Explain The Pew Health Professions Commission Taskforce on Health Care Workforce Regulation explored many issues related to health care workforce regulation and developed an overall vision for a system of state regulation that is "SAFE":

• Standardized where appropriate; • Accountable to the public; • Flexible to support optimal access to a safe and competent health care workforce; and • Effective and efficient in protecting and promoting the public’s health, safety, and welfare.

Ask what does this mean to you as a regulator? What about to practitioners? Or the public?

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Internationalization of Professions and Occupations

Traditional models of regulation are bound to a jurisdictionIncreased economic globalization and mobility of the workforce demand:Increased harmonization of regulatory standardsReciprocity agreements across borders

Display slide.

Explain Traditional models of occupational and professional regulation in North America have been bound to various state, local and provincial jurisdictions. However, increased economic globalization and the demand for increased mobility of the workforce have called for increased harmonization of professional and occupational standards as well as demands on regulators for mutual recognition of credentials.

Trade and mobility agreements have arisen worldwide. For example: the Agreement on Internal Trade/Labour Mobility in Canada and the European Union trade agreement in Europe; other reciprocity agreements among jurisdictions and within professions. These challenge us as regulators, and professions/occupations, to let go of the traditional requirements that some hold dear, and focus instead on the competencies required to practice or work in a profession.

Ask can applicants still demonstrate competency if they have not gone to a formerly approved school, or where their degree/certificate/credential is called something else?

Advise If our focus is on competency, and outcomes, the answer is, most likely yes.

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Session Review

Display slide.

Say “We have completely reviewed all topics within the Foundations of Occupational and Professional Regulation session of the Board Member Training – Introduction to Regulatory Governance course. We will now review the key concepts of this session.”

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Session Review

Regulatory entities exist to:Ensure the competence of professionalsEnforce standards of practice and behaviorProtect the public from harmBoard members should be familiar with all of the tools and resources available that help ensure public protection

Display slide.

Review the points made on the slide.

Explain While the approaches to regulating professions and occupations may vary by jurisdiction, the common rationale for doing so must be the protection of the public. Debates will continue about the effects and effectiveness of regulation, but there is a broad acceptance of the need for regulatory authorities to ensure competence of professionals, and enforce standards of practice and behavior on the part of those they license.

Regulatory authorities are entrusted with a range of instruments to carry out their tasks, from standard setting to licensing qualified professionals, from ensuring continuing competence to employing effective enforcement processes. Board members governing regulation of professions and occupations need to be familiar with all of these tools, need to be aware of what is being done/happening elsewhere, in other jurisdictions, within same and in other professions.

We need to ask probing questions to determine how all of the available tools are being employed now, and how effective they are at protecting the public your registrants/licensees serve.

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Learning Objectives Review

You should now be able to:

Define key terms as they relate to regulatorsUnderstand the history of and rationale for regulation and how it affects the way we regulate todayExamine the authority and business of regulatory bodiesAnalyze trends in regulation

Display slide.

Review the learning objectives.

Ask if there are any questions regarding the objectives displayed.

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Practical Exercise

Display slide.

Explain the Scenario

Imagine you are chair of a government committee charged with determining whether a profession not currently regulated in your jurisdiction should be brought under regulation. What information do you need to make this decision? How will you go about acquiring that information?

Review the points of consideration for the scenario:

Remember that the only justification for regulation is to protect the public. Therefore you must seek out information that will help you determine whether regulating this particular profession would be in the public interest.

If your jurisdiction has a formal sunrise process, that will be your first recourse.

If there is no sunrise process, you will need to have answers to questions such as:

• Is there a substantial risk of harm to the public if the profession is practiced improperly? • Is the harm physical/emotional, economic, social, or of another nature?• Is there evidence that harm has actually occurred?• To what extent can the public evaluate the qualifications of a practitioner?• What harmful effects could arise from the imposition of regulation; e.g., limitations on

access to practitioners, increased costs, etc.

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• Is the potential benefit of protection sufficient to offset and potential negative effects?• To what extent is this profession regulated in other jurisdictions or through private,

voluntary certification?• To what extent is the practice of the profession restricted to places that are themselves

regulated or to supervision by other regulated professionals?• What will be the fiscal impact to government of regulating the profession?• How will costs be borne?• (There are many other possible responses. The key is that the Board engages in the

process of thinking through what kind of evidence can be marshaled to affirm or deny the contention that regulation of the profession is in the public interest).

Instructor Note: Try to draw the class into a discussion about the points listed above, rather than lecture to them. You may choose to break the class into groups, or continue as a class depending on class size. Advise the group(s) to answer the questions provided in their workbooks. Once complete, you may review the answers as a class if the exercise was completed in small groups.

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Answer Key

Participants are instructed to answer these questions in groups. Once complete, review the answers as a

class. Use this answer key to direct the discussion.

1. The only justification for exercising the police power of the state to require licensure of a

profession or occupation is:

a. to protect the public from harm

b. to maintain control over prices

c. to promote the profession

d. to enhance public revenues without further burdening taxpayers

2. Sunrise is a process:

a. that is usually initiated by consumer groups

b. that is no longer considered a valid public protection mechanism

c. that places the burden for justification of licensure on the profession

d. similar to sunshine laws, permitting public access to certain records

3. The consumer movement begun in the 1970s has resulted in:

a. public or consumer members routinely serving on boards

b. tighter control of public policy by the regulated profession

c. more efficient accountants and lower taxes

d. clearer delineation of scopes of practice among similar professions

4. The generally accepted criteria for determining when the regulation of a profession or

occupation is in the public interest include:

a. the profession can be harmed by the public

b. unqualified practice poses a serious consumer risk

c. keeping the number of practitioners low

d. the public cannot make intelligent choices without direction

5. Regulatory agencies and boards have an increasing Interest in evaluating credentials of

internationally trained professionals because of

a. the decrease in international mobility of professionals

b. the increase in international mobility of professionals

c. mandates from the World Trade Organization

d. the inadequacy of professional education programs outside of North America

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6. Continuing competency requirements:

a. must include continuing education requirements

b. exclude continuing education requirements

c. are the same as continuing education requirements

d. may include continuing education requirements

7. Certification by a private or voluntary organization:

a. has fallen into disuse as governments have become more active in regulating

professions and occupations

b. proved to be an effective public protection mechanism in the nineteenth century

c. can be an effective alternative to mandatory regulation in some instances

d. was ruled unconstitutional by the Second District of the U.S. Court of Appeals in 1995

8. When a regulated person is accused of misconduct, the regulatory authority is always

responsible for:

a. pursuing possible disciplinary action against the individual through administrative

processes

b. bringing the individual into the court system for proper adjudication

c. immediately removing such persons from practice until a court date can be set

d. initiating an investigation of the allegation within 90 days of the date on which the

complaint was received

9. Studies of the regulatory system for professionals have concluded that:

a. public funding should supplant licensing fees

b. centralized regulatory authorities are generally more efficient than autonomous boards

in regulating professions

c. regulation of the work force has little impact on the cost of services

d. the current regulatory system is complex, often irrational, and lacks uniformity

10. Why does a power imbalance exist between the consuming public and the professional?

a. restrictions on the ability to advertise have created an information gap regarding

professional qualifications among the consuming public

b. the client has need of expertise and knowledge available only from the professional

c. third party payers severely restrict the right of the consuming public to choose a

professional freely

d. many members of the public lack direct Internet access

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Display slide.

Ask if there are any final questions before completing the session.

Questions

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Roles and Responsibilities of a Board Member



Display slide.

Say “Welcome to the Roles and Responsibilities of a Board Member session of the CLEAR Learning Board Member Training – Introduction to Regulatory Governance course.”

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Display slide.


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Learning Objectives


Identify the roles and responsibilities of individual board members, and the board as a wholeRecognize the roles of staff and how staff and board members interactSummarize a code of conduct for board members and staffIdentify and avoid conflicts of interestEvaluate board performance

Display slide.



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Session Map

Roles and Responsibilities of a Board Member

Board Member ResponsibilityBoard Member Responsibility

Code of ConductCode of Conduct

Sharing InformationSharing Information

Building Good RelationshipsBuilding Good Relationships

EvaluationEvaluation


Display slide.

Explain that this session is divided into six lessons. These lessons are:

1. Board Member Responsibility2. Code of Conduct3. Sharing Information4. Building Good Relationships5. Evaluation6. Session Review


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Board Member Responsibilities

Display slide.

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A Regulatory Body is a Public Organization

Entrusted to professionsPrivilegeInstrument of governmentPrivilege can be taken away

Display slide.

Explain There are three key elements to the roles and responsibilities of a board and its members. The first is that regulatory bodies are public organizations. It is important, to consider that we’re in public organizations entrusted to professions. Often regulatory organizations are viewed as professional organizations working within the realm of the occupation.

However, when you consider a regulatory organization’s true role, it is an organization for public protection that has been entrusted to a profession. It’s a privilege, it is an instrument of government and it can be taken away.

Advise Recently, in some jurisdictions there have been challenges in this regard and there are often sunset provisions that come in to play, calling into question whether or not a regulatory organization should continue to exist and what its obligations should continue to be.

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Protecting the Public Interest

Mandated to protect the publicEntry to practiceProfessional conductContinuing competency and quality assuranceLinked to reputation

Display slide.

Explain Another key element in this conversation is protecting the public interest. As an instrument of government, we are mandated to protect the public. It is our sole mission to ensure that only those who are qualified and capable, practice the professions and occupations we regulate. To that end, we have responsibilities to:

• Entry to practice – ensuring that only those with the right qualifications, experience, and skill sets are legally allowed to practice

• Professional conduct during investigations, review and discipline – ensuring that if someone has an active license, who shouldn’t, that we conduct ourselves professionally and within the scope of our duties.

• Continuing Competency and quality assurance – ensuring that while legally practicing, our licensees maintain the standards required of them through continued competency initiatives

Linked to Reputation

Protecting the public interest is very much linked to the concept of reputation. In the event that we stray from our mandate, it becomes very hard to recover.

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Adding Value

Setting strategic directionConcentrating on:Organizational well-beingFinancial healthQuality of your workAsking probing questionsAdherence to, and adoption of regulationsEnabling a high performing CEO to assist and partner with the board

Display slide.

Explain that the third key element to the roles and responsibilities of a board member is to add value. During your time on the board, make sure that your actions add value, and work towards furthering the goals and objectives of the board. Some of the main ways that you can add value as a board member is through:

• Setting strategic direction• Concentrating on:

• Organizational well being• Financial health• Quality

• Asking probing questions• Adherence to, and adoption of regulations• Ensuring the organization has a high-performing CEO, and enabling that CEO to assist and

partner with the board to complete its objectives

Instructor Note The role described here as “CEO” can look different among various organizations. Time allowing, ask participants what the CEO role looks like in their organization.

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Asking Probing Questions

Keep questions within boundaries of board mandateAsk what and why questions, versus how questions

Display slide.

Explain As mentioned on the previous slide, one of the key responsibilities of an engaged regulator is asking probing questions. Regardless of how challenging this might be for staff, this is exactly what governors should be doing.

However, you must ensure those questions stay within the boundaries of your role as a governor. A how question is operational in focus, and falls under the prevue of your executive director and staff. Asking what and why questions related to the work of the board is really a key behavior of an engaged governor.

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Duties of a Board Member

Duty of Care

Duty of Care

Duty of Loyalty

Duty of Obedience

Display slide.

Explain Responsibilities can also be bucketed into three primary areas known as the duties of care, loyalty and obedience.

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Duty of Care

Accountable to act with due diligence towards:Activities mandated by enabling legislationFinancial mattersEvaluations

Display slide.

Explain a duty of care refers to accountability as a board, and as a board member. We’re accountable to act with due diligence towards:• The things that are mandated by our enabling legislation• Financial matters• The evaluations that will let us know that we’re on target related to our outcomes and

goals

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Duty of Loyalty

Alignment with the best interests of the organizationDo you have the public’s best interests in mind?Loyalty addresses conflicts of interest and speaking with one voice

Display slide.

Explain the duty of loyalty means that you align yourself with the best interests of the organization.

Ask• Do you have the public interest in mind? • Can and do you set your personal interests aside when you carry out your board member

duties?

Explain Loyalty addresses such things as conflicts of interest and the ability of a board to speak in one voice, striving to achieve its vision.

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Duty of Obedience

To the rules and unity of commandAre you obeying the rules as a board member?Rules have many formsBylawsRules of orderGovernance policiesCodes of conduct

Display slide.

Explain the duty of obedience refers to obedience to the rules and unity of command.

Ask Are you obeying the rules as a board member?

Explain The rules may come in various forms:

• Bylaws• Rules of order• Governance policies • Codes of conduct

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Board Member Fidelity

Other Board Members and Staff

Other Board Members and Staff

Licensees and

Applicants

Licensees and

ApplicantsGeneral Public

General Public

Display slide.

Explain a board member has a responsibility to several groups in addressing the public’s need for safe and competent practice of their regulated profession or occupation.

As a board member, you owe fidelity to the following three groups:

• The general public• Licensees and Applicants• Other board members and staff

Advise There is no ranking, or order of importance for these three constituencies. As a board member, if you neglect your fiduciary duties to any one of these three constituencies, you have failed in your mission and mandate.

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General Public

Mandates from governmentExpectationsQualified, competent membersFairness and transparencyKnowledge

Display slide.

Ask Who is a board member responsible to?

Advise There is a book called The Imperfect Board Member, written by Jim Brown. It is an excellent resource to discuss who board members are really responsible to in their various activities.

Explain As a regulator, the principle population that we’re responsible to is the public, through government. The general public can best be described as our primary stakeholders. Often, we can confuse our licensees or registrants as our primary stakeholders, as they are the primary source of our funding; however, as a regulator, you and your board are an instrument of government. As an instrument of government, the public is our primary stakeholder, to whom we are most responsible.

Ask What does the public expect?

Instructor Note: Below are the answers we are searching for, to help you guide the discussion.

• Qualified and competent members/licensees• Fairness in their dealings with us• Transparency• To understand what we’re about • To obtain knowledge from us in terms of our role as we interface with them

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Licensees and Applicants

EngagementFiduciary dutyFairness, transparencyEducation and information

Display slide.

Ask What about the licensee or even the potential licensee? What is the board member’s responsibility to them?

Advise What’s really important about the board’s relationship with licensees, is their engagement with the board.

We also have a fiduciary responsibility to the individual registrant. This group pays the fees the board requires for them to be authorized practitioners, and we must ensure that we’re accountable for those funds received and that they are used wisely.

We’re also responsible for fairness and transparency; licensees expect fair, objective and impartial dealings with the regulatory agency. Finally, they expect information education and information to be provided that assists an individual in understanding their activity with us.

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Board and Staff

Listen and participateComplete assigned workMaintain working relationshipsAsk questions

Display slide.

Explain We also are looking at responsibilities of a board member to the other members of the board and the staff.

Ask What might those responsibilities look like?

Advise While specifics vary from jurisdiction to jurisdiction, some common responsibilities include:

• To listen, to participate• To do the work we say we’re going to do• To foster strong, healthy working relationships • To ask questions in order to help make good decisions

Board members do not directly manage, or dictate to junior staff. That is the role of the CEO or Executive Director of your staff. The board should only dictate to the most senior staff member regarding mandates for staff. This is the main reason why it is so important to have a high-performing CEO, a CEO that can manage their staff in alignment with the board’s mandate and mission.

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Code of Conduct

Display slide.

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Code of Conduct Common Themes

Be knowledgeable

Be knowledgeable

Respect confidentiality

Declare conflict(s) of

interestAsk questions (respectfully)Ask questions (respectfully)

ListenListen Be objectiveBe objective Attend Speak with one voice

Stay out of operationsStay out of operations

Accept nothing less

Accept nothing less

Display slide.

Explain In good times, codes of conduct are in place and don’t require frequent reference; however, in difficult times, they offer a group the ability to identify how they deviated from the standard or the culture.

The common themes among most codes of conduct require you to:• Be knowledgeable, you need to read your material and you need to prepare effectively

for meetings• Respect confidentiality• Declare conflict of interest or a bias in a particular matter• Ask questions while being respectful• Listen to others• Be objective in terms of considering the decisions before you• Attend - While this should be obvious, sometimes it becomes an issue. Board service is

about commitment and involvement. • Speak with one voice.• Stay out of operations – Reference the previous discussion about sticking with why and

what questions. If you start getting into how questions, you’ve moved into the operation side

• Accept nothing less - meaning is if you’ve got a code of conduct and you’re setting a culture, you will accept nothing less from one another and keep each other honest in that regard

Instructor Note: The following slides will highlight some of the key behaviors related to

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respecting your code of conduct.

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Conflicts of Interest

PersonalRelationships with potential contractorsRelationship with person/organization before adjudication panelFinancialPecuniary interest in a matter

Display slide.

Ask Who here has experienced, or had to declare a conflict of interest? Has anyone had experience with an undeclared conflict of interest that was later brought to light?

Instructor Note Some common scenarios of a conflict of interest in regulatory organizations include:• A partnership or a working relationship with an individual who is applying for an open

contract with the board or college• You are an academic representative on a board sitting on the entry practice panel, and

one of your students or advisees comes under question• Someone you work with comes through the discipline process while you sit on or oversee

disciplinary hearings• A board member has a financial interest in an issue the board is considering

Explain Conflicts of interest, though rare, do arise and some professions with a smaller pool of practitioners may seem them arise more frequently. When they do arise, it is essential that they be handled and managed appropriately. Most jurisdictions have conflict of interest standards set into law

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Speak with One Voice

Put the interest of the organization firstNot a constituency-based organizationMajority speaksAchieve consensus where possibleAccept decisions made by the board

Display slide.

Explain One of the main concepts of this course is speaking with one voice. This can be a challenge when you may not agree with the majority, or if a decision is against your own personal interests. However, in your role as a regulatory body member, must put the interests of your organization first, even before your own. Thus ensuring that all decisions focus on maintaining your mandate, as opposed to one particular constituency.

There may be heated debates and dissention relating to certain board discussions, but once the decision of the board has been made, it must be carried out consistently by each board member. Board members must accept that a respectful debate has been had, the decision has been made and they are not at liberty to publicly question or go against the decision.

Instructor Note Expect, and allow a lot of discussion regarding this topic.

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Bad Faith Decisions

Not commonInsurance, indemnification often protects board for decisions madeNo protection for board member where:Undeclared conflictBreach of confidentialityReputation management

Display slide.

Explain In the event of a bad faith decision, it is best to have a discussion with your fellow board members outside of the meetings and in a round-table format.

Ask What are the kinds of issues that can lead to a decision is in bad faith?

Advise Bad faith decisions are not common for regulatory organizations. Regulatory bodies are creatures of statute, and often, not always, legislation will indemnify that most of the decisions made by a regulator are made in good faith. Insurance assists with this and the court tends to uphold decisions by a regulatory body based on their statutory elements and the nature of why they were created.

However, the FTC vs NC Dental Board decision is an obvious example of decisions made in bad faith and loss of protection. It’s not just personal conflict of interest but groupthink conflict of interest and also not following the rules, that can get a board into trouble.

Explain Rulings and reviews never come out in favor of the board if there is any evidence that is related to undeclared conflicts of interest or a confidentiality breach. Board members must be made aware of the kinds of concerns that an organization would see if someone didn’t declare a conflict of interest and what that would mean for the organization’s reputation. Each member must understand, in a practical way, what decisions in bad faith mean to an organization entrusted with the public interest.

Best practices advise that procedures dealing with confidentiality and conflicts of interest

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are included in your code(s) of conduct. We also recommend that a code of conduct include the sanctions and consequences for a board member’s failure to disclose conflicts of interest. All of these will help you avoid decisions in bad faith and maintain the reputation of the organization.

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Best Practices Regarding Conflicts of Interest

Know the policyDeclare conflictSeek advice from Chair, CEO or Committee ChairLeave the room; include departure in minutesTrain board members to encourage declaration

Display slide.

Explain The main concern for board members is to know the policy for proper handling of a conflict of interest. One of the best strategies for dealing with potential conflicts involve knowing the plan, working with the plan, and keeping the plan at the forefront.

Conflict of interest policies generally state that individuals need to begin by declaring their potential conflict. They can seek advice, privately, from the President or Chair of the board, perhaps from the CEO, or chair of a committee. When they make their declaration they are providing no information, they simply are declaring, and any specifics about the relationship will only be discussed in those private circumstances.

Once declared, best practices state that the individual should leave the room. Some organizations have determined that as long as the individual takes no part in the discussion, they can remain at the table; however, it still creates a presence in the discussion that would be best to avoid entirely. If someone leaves, note in the minutes that they leave the room for your own accountability purposes.

It is best to have alignment on the content of the policy related to conflicts of interest, to educate board members about it and, finally, to enforce it. The other question is how to get people to declare their conflict, which is about honesty. It also comes back to ongoing orientation and the importance of consistency.

Instructor Note again reiterate that jurisdictions may have processes set forth in their legal codes to address conflicts of interest and the appropriate way to handle them when they

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arise.

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Handling a Disruptive Member

Name itName it Manage it

Manage it

Censure it

Censure it

Move on

Move on

Display slide.

Ask Who here has had to deal with a disruptive board member? What do you think qualifies as disruptive behavior? How did you handle it?

Explain It is difficult to call another board member out on behaviors that are unbecoming or non-productive. However, with the best interests of the board in mind, a disruptive member can not be ignored. The best way to manage a disruptive board member is to:• Name it

• Identify what is happening• Be honest• Maintain a respectful attitude and tone of voice

• Manage it • Get to the heart of the matter• Try to determine what is causing the board member to be disruptive, and work

towards a resolution• Censure it

• If a board member becomes disruptive, and will not respond to attempts to correct their behavior the board may be required to sanction them

• Do so within the scope of your policies and procedures• Respect respect respect! Never respond to disruptive behavior in kind

• Move on• Once it is done, it’s done. Don’t bring it up again, or use it against the member

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Sharing Information

Display slide.

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Public Information

LawsDecisions taken under statuteGovernance (by choice)Exception to public informationIn camera meetingsExecutive session meetings

Display slide.

Explain Almost everything you do as a board member, is part of the public record. Obviously laws, the decisions we take under statute, and governance are all a part of public record. While laws vary around this by jurisdiction, most meetings are open to the public. Increasing pressure for transparency in public organizations is moving the trend towards public meetings in this direction.

There is decreasing opportunity for issues to go in camera or executive session meetings because of the desire for increased public accountability. Generally, there are two reasons to take a matter into an executive session. First, staff decisions and very sensitive discipline issues or discussions, if they reach the board level. Second, legal opinions can be given in camera. Keep in mind, that even these two traditional exceptions, are limited compared to in the past. Even the private nature complaint information is coming under scrutiny and there is a push to make this information public as well.

Explain In camera is the Latin phrase meaning in chambers or private meeting. When a session is labeled in camera, or an executive session, it means that the public is excluded from the meeting and not privy to the information discussed during that session. Some jurisdictions may have legal definitions of what qualifies for an in camera session.

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Benefits of an Informed Public

Increased public confidenceIncreased public trustEnables members of public to exercise rightsEnsures quality of serviceIncreased knowledge of inner workings of regulation

Display slide.

Ask What are the benefits of an informed public? What are the benefits of transparency and providing information to the public?

Advise An informed public leads to increasing the public confidence and increasing their trust which is invaluable for regulatory authorities. An informed public increases the enablement of members of the public to exercise their rights and ensure quality of service. It also results in increased knowledge of the role of regulatory organizations, their accountability, and how regulatory organizations strive for excellence.

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Benefits of an Informed Profession

Knowledge of the rules of regulationIntegration of standards into practiceDecreased confusion between regulatory and professional organizationsIncreased engagement in policy making

Display slide.

Explain In terms of the benefits of informed profession, the benefits become a little more tangible.

An informed profession leads to • Knowledge of the rules of regulation• Integration of standards into practice• Decreased confusion between regulatory and professional organizations• Increased engagement in policy making

Advise The North American regulatory model is one that relies on the profession to be engaged in self-regulation and an informed profession, generally, can become increasingly engaged in rules, decisions, and development of activities within the regulatory community.

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Communication Tools

Choice of media is dependent on:AudienceIssueStrategyBudgetStrive for informed and engaged public, members, and board members

Display slide.

Explain This is not a communications presentation and it is really too big to be covered here fully, but communication is audience dependent, it’s issue dependent, and it’s strategy dependent. There are multiple vehicles for communication and they are all attached to dollars and resources. Whether it is our annual report, our website, a newsletter or brochure, the media, or face to face communication, communication vehicles are constantly evolving.

The evolution of communication methods is incredibly obvious when you consider the advances in social media, Twitter and “app” based devices like smartphone and tablets. Organizations are even using the computer realm Second Life to advance knowledge to consumers about health care, so keeping up with all of the various options available to you is important.

Really thinking hard on the right communication tools to create the informed and engaged component about which we just spoke is a key function and responsibility. You do not necessarily have to come up with the specific tools to be used but talking about communication as a whole is critically important at the board level.

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Building Good Relationships

Display slide.

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Building and Maintaining Strong Relationships

Strong stakeholder relationships lead to an influential governing voiceIdentify stakeholders and their strategic fit within the organizationInternal – board members, staff, licenseesExternal – government, consumers, academia, other professionsAttend to the relationship with your stakeholders

Display slide.

Explain building and maintaining strong relationships with other stakeholders. These stakeholders might be patients, potential consumers, government, academia and even other professions so ultimately this is about having a governing voice that has influence. As a board member and governor, attending to the stakeholder relationship and thinking hard about the strategic fit of each stakeholder is key to becoming an influential policy maker.

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High Performing Organizations



One BoardOne

Board

One CEOOne CEO

One VisionOne

Vision

One VoiceOne

Voice

Display slide.

Explain One of the key factors of high performing organizations is alignment. High performing organizations have great alignment: everyone gets where the organization is headed, they understand the mandate, they know what the outcomes are, and there are some tactics against those outcomes.

Alignment can often be described as follows. A high performing organization will have one aligned board. They will have one CEO; they are not involved in hiring, firing and employment of staff, they work through the one staff person and leave the operational details to that CEO. They will have one vision, and they will have one voice. The operative word I know that you can see here is the word ONE and again it comes back to alignment and being clear about where one is headed.

Instructor Note The CEO model is one model. Boards within many umbrella agencies do not have hire/fire authority over any staff members.

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One Staff Person

Board hires CEOCEO hires staffStaff works under CEO direction

Display slide.

Explain The concept of one CEO or staff person can be a challenge for boards. It is often dependent upon the organizational model and sometimes the models drag governing boards into areas that they, perhaps, wouldn’t fall into otherwise. At times, the model can be the problem, not necessarily the people.

For example committee models, where you have regulatory organizations that have a variety of committees, take things one layer lower than board decision making and increase the involvement directly with individual staff. It can create confusion in terms of to whom the staff members report and may muddle the ideal structure of the board selecting the CEO and the CEO being responsible for the direction of any additional staff members. An example might be where a committee chair decides that there might be some really interesting research in a particular area not entirely related to the mandate of the committee so they decide to ask the staff person assigned to their committee to pursue that research.

That really isn’t the purview of that particular chair. That chair’s role is to facilitate the work of the committee on behalf of the board. The staff person is to assist in that direction given by the board but any unrelated activity should be under the direction of the CEO. What’s really important for board members to remember is that they hire a CEO and that CEO is the main staff person who is accountable to them.

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Evaluation

Display slide.

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Evaluating Board Performance

Meeting evaluationAnnual evaluationSelf evaluationPeer evaluation

Display slide.

Explain If you are focused on governance excellence then you need to strive for continual improvement; and if you are a regulatory organization with a mandate to look at continuous improvement of a profession, it becomes even more important to reflect that behavior internally as well.

Across the spectrum of governing organizations, a wide range of options are being discussed related to meeting evaluation. Two common options are annual board evaluation and self-evaluation. Although, certainly, literature would say we’re generally not very good at it, self-evaluation is one component. Peer evaluation is another but it presents its own challenges. Many organizations are moving to peer evaluation and it seems to be more comfortable and familiar to those in the younger generations. Peer evaluation, particularly related to chairs, can be an excellent tool to aid in the continual improvement and advancement a governance discussion.

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Measuring and Reporting

Defining indicators of successLinked to public reportingIdentify gaps and opportunities for improvement

Display slide.

Explain Regulatory organizations are in the very beginnings of what we’ll call the art and science of performance measurement. This includes looking at what would be the indicators of our success, what are the indicators that would tell the public that we’re meeting our mandate, and what are the indicators that would explain to the government that we’re responsible and accountable for our role that’s been vested in us. Some organizations utilize something similar to a balanced score card, others use other mechanisms, but whatever it is that we’re measuring at a board level, needs to be linked with the concept of public reporting.

We need to answer the following questions for ourselves and communicate the responses to our stakeholders:

• What do those indicators tell us? • What are the good things? • What are the tough things? • Where are the gaps? • Where are we headed? • How do we start to be transparent about the good, the bad, the areas that need for

improvement?

This reporting can strengthen our integrity by indicating that we’re honest and we’re making some strides but we also have areas for improvement. These are the kinds of conversations that build confidence in our role amongst those very stakeholders that we talked about

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before: amongst our owners, the public, amongst licensees, and amongst the varied stakeholders that we’re engaged with.

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Session Review

Display slide.

Say “We have completely reviewed all topics within the Roles and Responsibilities of a Board Member session of the Board Member Training – Introduction to Regulatory Governance course. We will now review the key concepts of this session.”

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Session Review

Responsible to manyGovernance, not operationsPartners in leadershipBuild public trust

Display slide.

Review

• We are responsible to many people and a wide range of stakeholders.• Boards are about governance, they are not about operations. They are about the “what”

and the “why,” not the how. • It’s a partnered leadership.

• It’s a partnership with the CEO and the board as well as partners in leadership across the profession.

• This partnership must also include all the various groups that help us to accomplish the kind of regulatory influence that’s important in today’s society.

• Finally, we’re about building public trust around the mandate that has been given through statute.

• These are all really important roles that each board member must understand in order for a regulatory organization to function at its greatest capacity.

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Identify the roles and responsibilities of individual board members, and the board as a wholeRecognize the roles of staff and how staff and board members interactSummarize a code of conduct for board members and staffIdentify and avoid conflicts of interestEvaluate board performance

Display slide.



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Practical Exercise

Display slide.


Peter is an engineer and is pleased to have the opportunity to serve his profession and sit as a member of his local regulatory board. He is enthusiastic about his profession and wants to contribute. He reads all of his board materials before a meeting and contributes fully to the debate and decision making. The last meeting, however, was very challenging.

A particularly difficult matter was raised for decision. Peter had reviewed the background material before the meeting and felt this matter was particularly important to the profession. Peter believed the proposed recommendation should not be supported. Peter called three of his board colleagues before the meeting to discuss his position. During the meeting, Peter spoke vigorously against the motion but in the end the recommendation was passed.

Peter could not believe the Board could not see the problems with their decision, and he is now concerned that his reputation is at stake with his engineering colleagues. He has decided to send out a flyer to help them understand the challenges with this issue, his opinions, and the debate at the Board. He is planning to encourage engineers to write to the Board and suggest they overturn their previous decision.


• What do you view as the key issues for this Board member in relation to governance?

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• How might you manage your concerns if faced with a similar circumstance?• How do you maintain a level of awareness that at the Board table, an individual is a

member of the Board and owes their duty to that role?

Areas for consideration also include:

• the Board’s rules of order• the Board’s code of conduct• the Board’s policy on conflict of interest• the Board’s policies on speaking representing the organization externally• the public interest focus of regulation rather than the profession’s interest• how to develop communication strategies with colleagues post board meetings• how to use the organization’s communication strategies to ensure clarity of decisions

within the profession• how to balance personal passion and enthusiasm with the role of a board member


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Answer Key



1. Governing in the public interest is the primary focus of a regulatory board.

a. True

b. False

2. Conflicts of interest of a board member are:

a. Rare

b. Hard to identify and require advice from the chair

c. Important to declare

d. Likely to occur and require a consistent process to manage them

3. Duties of a board member include:

a. Loyalty

b. Punctuality

c. Obedience

d. Both a and c

4. An effective board member:

a. Recognizes that the goal of the Board is the protection of the profession

b. Knows how to work without following the rules of order

c. Is able to work with a group to make decisions

d. Can miss up to three board meetings a year

5. What characteristics to agencies value in board members?

a. A reluctance to ask questions about resources

b. Assertiveness

c. Fairness and common sense

d. Commitment to attendance and board management

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6. The board members may release information to the public only if:

a. It feels the public has a right to know

b. The press has made specific requests

c. The information has become part of the public record

d. The licensees request the release of the information

7. Duty of care requires a board member to:

a. Understand the organization’s core activities

b. Know how to read financial reports

c. Ask questions at meetings

d. All of the above

8. The Chair of the Board is responsible for the conduct of meetings and of each member of the

board.

a. True

b. False

9. Dissenting options are healthy and occur in decision making debate. Board members should

publicly share their opposing views when asked.

a. True

b. False

10. The evaluation of board function should:

a. Be anonymous

b. Occur at every meeting

c. Only be reviewed by the Chair

d. Be in writing

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Display slide.


Questions

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Administrative Rulemaking



Display slide.

Say “Welcome to the Administrative Rulemaking session of the CLEAR Learning Board Member Training – Introduction to Regulatory Governance course.”

Introduce yourself, including a brief overview of your credentials and history with CLEAR.

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Display slide.

Explain This module has been designed to give an overview of the rulemaking process as it applies to the role of a regulatory Board/Council member. The content will cover rules and their various purposes, common processes and policies for writing good rules, and the role of a board member in the rulemaking process.

It is important to frame this discussion through the source of authority by which regulators are granted this rulemaking power. Given the increasingly complex nature of society, legislatures cannot be expected to enact laws which address every issue of detail in a particular policy area. For that reason, regulatory agencies are often given the power to adopt rules in order to implement the details of that policy.

The extent of such delegated legislative authority – for that is what administrative rulemaking power is – will vary from jurisdiction to jurisdiction and board members must ensure they are familiar with the detailed requirements which apply to their own agency. However, some fundamental principles are of general application.

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Learning Objectives


Define the steps of rulemakingApply the best practices identified in this module in your own administrative rulemakingDiscuss the board’s role in oversight and decision making

Display slide.



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Session Map

Administrative Rulemaking

Purpose of RulesPurpose of Rules

Making Good RulesMaking Good Rules

The Board’s Role in the Rulemaking ProcessThe Board’s Role in the Rulemaking Process


Display slide.


1. Purpose of Rules2. Making Good Rules3. The Board’s Role in the Rulemaking Process4. Session Review


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Purpose of Rules

Display slide.

Explain That we will now discuss the purpose of rules and how we use them as regulatory authorities.

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What is a Rule?

Prescribes, implements, or interpretsDefines procedures and practicesStatement of general application

Display slide.

Explain A rule generally prescribes, implements or interprets law or policy; or defines the organization or the procedure and practice requirements of a governmental agency. Rules are often described as being of “general applicability and future effect”, in the sense that they apply to a population or category of people as a whole (e.g. all licensees) and do not apply retrospectively.

Instructor Note take a moment to identify some basic terminology that is interchangeable, but different based on jurisdiction. i.e.: rules and regulations.

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What does a Rule do?

Establishes requirementsSets standardsEstablishes rates or feesProvides proceduresImplements the lawGuidance for complianceDescribes requirements for organization structure

Display slide.

Explain A rule:

• Establishes a requirement• Sets a standard• Establishes a fee or rate• Provides a set procedure for interactions with the regulatory authority• Tells how a law will be implemented• Gives guidance for compliance with a law• Describes the requirements for the structure of an organization

The rule making powers of regulatory agencies will often depend upon the regulatory model adopted in their jurisdiction. Some individual regulatory agencies are responsible for developing their own substantive rules. In jurisdictions where a centralized body has oversight of individual regulatory agencies, the centralized body may be the rulemaking authority or the task may be divided between that body and the individual agencies. It is important for board members to be clear about the scope and extent of their organization's rule making power .

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Types of Rules

Procedural

Substantive

Interpretive

Display slide.

Explain There are three main types of rules made by a regulatory authority. These types are:

• Procedural• Sets regulatory authority’s procedures and establishes rules of practice before it

• Substantive• Sets the law, and provide details and standards as may be directed by government

• Interpretive• Interpret legal standards or phrases

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When is a Rule Needed?

When is a Rule

Needed?

When is a Rule

Needed?

Required by Statute

Response to Conditions

Public Benefit

Uniformity

Clarification

Display slide.

Explain Rules are necessary when:• a statute requires that the regulatory authority adopt a certain rule• a rule is needed in response to a problem, changing environments, technology bodies of

knowledge or similar issues• the public would benefit from a regulatory intervention• uniform procedures and standards need to be established to avoid challenges of

arbitrariness • clarification is needed, for example, a definition of unprofessional conduct.

However, there is a difference between clarification and change. If a statute is clear, detailed and provides guidelines, a rule may not be necessary, and the agency may not have authority to adopt a rule.

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Making Good Rules

Display slide.

Explain that in this lesson we discuss information that will help you make good rules as a member of a regulatory body.

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Writing Good Rules

Identify needReview enabling legislationConsiderPublic interestWho is affectedCosts and benefitsConsultationsOptions to accomplish goalDefensible and/or enforceableDrafting Manual

Display slide.

Explain All regulatory authorities should have clear procedures for the development of rules. Often, the law will impose specific procedural requirements on regulatory agencies and other bodies exercising rule making powers, for example, requiring compliance with that jurisdiction's Administrative Procedure Act. Regulatory agencies must comply with all applicable statutory procedures, in order to ensure that rules are validly made.

It is important to approach rule writing by first understanding the issues at stake and what is to be achieved by any new or amended rules. The role of the regulatory authority is to frame the issues, to research and gather relevant information, to conduct appropriate consultations and to present appropriate options or drafts of the rule. The regulatory authority should ensure that the rule-making process is rigorous, principled and in keeping with its authority and mandated responsibility.

Rule writing is often a complex and time consuming process and it is advisable to seek the advice of legal counsel early in the process. The process of writing a good rule typically follows these steps:

• Identify what is to be accomplished by the rule;• Re-read the enabling legislation and identify all express or implied rulemaking powers;• Consider the following questions:

• How is the rule in the interest of the public? (e.g. is the rule necessary to prevent or correct a real threat to the public?)

• Who will be affected by the rule and how?

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• What are the costs and benefits or the rule?• Who needs to be consulted and have they been given sufficient opportunity to

provide input? • What are the various options to accomplish the goal of this rule?• Is the rule defensible and/or enforceable?

Select tentative titles for rules, table of contents, and an outline for logical organization. Review your jurisdiction's drafting manual (if any) for proper procedures, organization and style.

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Drafting Considerations

UnderstandableMultiple interpretationsClear standardsClear definitionsNo vague languageEnforcement

Display slide.

Explain The list below are the instruments used to fulfill the considerations provided on this slide.

• Grammar• Clarity of writing and interpretation• Appropriate use of “shall” and “may”• Avoiding use of jargon, abbreviations and un-defined terms• Contain acceptable criteria and clear, enforceable language• Avoid loopholes

Often, jurisdictions will employ regulations attorneys to ensure that drafting standards are maintained.

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Avoid Problem Areas

Repeat or change statuteImproperly delegate or referenceUse unclear standardsUse ambiguous languageUnnecessarily burden

Display slide.

Explain that the problem areas listed on the slide are to be avoided in order to create clear rules that are enforceable.

Do not draft rules that:• Repeat statutory provisions or purport to change the language of a statute• Improperly delegate authority• Fail to set clear and objective standards• Contain unclear or ambiguous language• Put a burden on the regulatory authority rather than the licensee or the public

Advise there are instances where it is appropriate to add burden to the authority. This is why we stress the word unnecessarily in the last bullet point. Regulatory authorities are not expected to avoid all burdens placed on themselves by regulation, simply those that are unnecessary or harmful to the agency’s mandate.

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Adopting Rules

Notice of Intent

Notice of Intent

Public Comment

Public Comment ConsiderationConsideration PublicationPublication

Display slide.

Explain Proper procedures for adopting rules vary between jurisdictions but often include:

• Written public notice of the intention to make a rule and publication of the proposed rule itself

• Opportunity for public comment/hearing• Consideration of comments• Publication of the final rule

Instructor Note stress that there are steps that come before issuing a notice of intent to adopting a rule, which include deliberation of the issues laid out on the Writing Good Rulesslide of this presentation. However, for the purpose of this topic we will assume that the deliberation, and any other steps prior to issuing a notice of intent, have already been completed.

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Notice of Intent

Substance of ruleStatute that provides authorityStatute to which rule relatesText of the ruleRequest for commentsStatement of fiscal impact to agency and/or public

Notice of Intent

Notice of Intent

Public Comment

Public Comment

ConsiderationConsideration

PublicationPublication

Display slide.

Explain The notice of intent general contains the following:• Statement of the substance of the proposed rule• Statement of the statute that provides authority• Statement of the statute to which the rule relates• The text of the rule or information about where it can be found• Request for comments, deadline and method for submission• Statement of the fiscal impact to the agency and/or the public

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Public Comment

Public and StakeholdersRegulatory body must consider commentsForm of commentHearing Agency regulation drafting standards

Notice of Intent

Notice of Intent

Public Comment

Public Comment



Display slide.

Explain

• Public and Stakeholder Comment• Give reasonable opportunity to submit research, comments, data• Regulatory agency must consider the comments• May include written comments and/or public forum/hearing• Use of agency regulation drafting standards• May only be used as rules if they have gone through the proper rulemaking procedures

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Consideration

Views presented at hearings or in comments may drive changes to a proposed ruleOptionsAdopt as proposedWithdrawMinor changesMajor changes

Notice of Intent

Notice of Intent

Public Comment

Public Comment



Display slide.

Explain After consideration of the views presented in comments or at a hearing, if a regulatory authority is considering making major changes to its original proposals then, in some jurisdictions, it may be required to treat the revised proposals as a new rule and to repeat the entire consultation process.

Regulatory agencies should not regard stakeholder engagement as a burden. It is often a valuable and time saving exercise, especially where rulemaking may be contentious. Even where doing so is not mandatory (and provided that it is legally permissible), regulatory agencies will often find it beneficial to undertake some form of voluntary stakeholder engagement.

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Publication

Once the process is complete you will have a finalized, published rule.

Notice of Intent

Notice of Intent

Public Comment

Public Comment



Display slide.

Read statement on slide.

Explain make sure that the rule is published everywhere it needs to be published, in order to get the information about the rule to everyone who needs that information.

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Emergency Rulemaking

Special circumstancesDoesn’t require standard processMust adhere to emergency standardsGenerally limited in scope to respond to specific situation

Display slide.

Explain Emergency Rulemaking• Special circumstances where rules can be established, in an emergency, without going

through regular processes • Must adhere to the emergency standards and generally will have limited scope to

respond only to the specific situation

In many jurisdictions, a licensing emergency does not constitute an emergency for the purpose of adopting emergency legislation. This is important because emergency regulations often don’t include the public comment, or notice period, which is a big deal in this arena.

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Sunset Provisions

May impact rulemaking authorityMust be familiar with provisionsPlan rulemaking accordingly

Display slide.

Explain Sunset provisions may have an impact on the rulemaking authority, so board members must be familiar with the provisions and plan rulemaking activities accordingly

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The Board’s Role in the Rulemaking Process

Display slide.

Explain we will now briefly discuss the board’s role in the rulemaking process.

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Authority

No inherent powerStatutory authorityRequirementsConsistent with statute and policyRespects rightsNot arbitrary or capriciousRulemaking procedures

Display slide.

Explain Rulemaking powers

• Rulemaking authority is not inherent; it must be delegated by specific legislation• The level and scope of authority depends upon the jurisdiction and the specific elements

of the statute• The statute will indicate whether the rulemaking authority is mandatory or discretionary:• “shall” or “must” indicate the authority is mandatory• “may” indicates that the organization has the discretion as to whether or not to enact

rules

Rules must be:• within the statutory rulemaking authority of the agency;• consistent with the statute providing the rule making power and the legislative policy

which it implements;• consistent with constitutional rights;• not arbitrary or capricious;• adopted in compliance with applicable statutory rulemaking procedures

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Oversight and Decision-Making

Identify or confirm the needProvide resources for a sound processApprove rule in principleConsider inputFocus on purposeDecide

Display slide.

Explain While these components have been included in the preceding slides at the various stages of rulemaking and development, it is important to collect and consider them as the core elements on which Board Members must provide effective oversight. Ultimately, you will be responsible for the effect the rule has on the public and the profession; focusing your attention on these core elements in your process will help to ensure you have the appropriate foundation for your rulemaking decisions.

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Session Review

Display slide.

Say “We have completely reviewed all topics within the Administrative Rulemaking session of the Board Member Training – Introduction to Regulatory Governance course. We will now review the key concepts of this session.”

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Session Review

Clear and simply stated rulesComply with notice requirementsMake sure all interested parties have opportunity to obtain a copy of the rule

Display slide.


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Session Review

Provide adequate notice of hearingKeep a record of the comments or testimony and official responsesRemember: Board members are responsible for ensuring that rules are fair and in the public interest

Display slide.


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Define the steps of rulemakingApply the best practices identified in this module in your own administrative rulemakingDiscuss the board’s role in oversight and decision making

Display slide.



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Practical Exercise

Display slide.


The executive officer of the regulatory authority reports to the Board a trend towards licensees going into private practice where they have traditionally worked for corporations. With this, there has been an increase in the number of calls from licensees asking for guidance on how they can advertise their professional services. Also, there have been a few complaints from members of the public about being directly contacted by one of your licensees to solicit their business. This seems to present a need for a regulatory response in the form of rulemaking. You might consider how the Board can be assured that an appropriate process is used for the following types of actions and decisions:


• Defining the issues and objectives for the rule(s) and the need for a rule from the perspectives of public protection

• Determining the type of rule(s) that might be appropriate• Verifying the legal authority to make the rule(s) and any jurisdictional considerations such

as government policies or related statutes (in this case, there may be some statutes or legal precedents around advertising and competition in the market place)

• Generating and considering options and their potential impact• Approving the policies that are to be drafted as rules• Consulting with licensees, the public and other parties• Approving the rule(s)

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• Educating licensees, the public and other parties about the rule(s)

Rules are made to achieve specified objectives linked to a public interest. In making some rules, regulatory authorities may be faced with competing public interests and be called on to determine what is fair and necessary and what is overly restrictive. You can expect for instance that in developing rules about advertising professional services, there will be different values and opinions about the fairness of restricting how professionals can advertise where their competitors are not restricted. Process and the rigor of the decision making are all important.


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Answer Key



1. There are three kinds of rules:

a. Laws, policies, and codes

b. Procedural, substantive, and interpretive

c. Professional, ethical, and conduct

d. Practical, theoretical, and legal

2. The role of the Board in rulemaking does not include:

a. Oversight of the rulemaking process

b. Preparing an analysis of consultation input

c. Ensuring clarity of language

d. Decision making in the interest of the public

3. Rulemaking ultimately begins with:

a. Legal authority to make the rule

b. Request from the profession

c. Public complaints

d. An issue or problem to be resolved

4. Regulatory authorities can avoid problems in rulemaking by:

a. Drafting rules that are clear and unambiguous

b. Drafting rules that repeat statutes

c. Basing rules on common sense

d. Basing rules on public input

5. Notice of the regulatory authority’s official publication of the proposed rule should contain:

a. A statement of the proposed rule’s substance and the issues it addresses

b. The names of the board members who approved the proposed rule

c. The date the proposed rule will come into force

d. List of all participants for the consultation about the proposed rule

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6. Under what condition may a professional association standard become a rule?

a. The association standard is evidence-based

b. The association considered the public’s interest in establishing the standard

c. Proper rulemaking procedures are used to adopt the association standard as a rule

d. Majority of professional registrants vote for the rule

7. Rulemaking procedures are designed to ensure:

a. That rules are legally binding once they are made

b. That board members don’t have to be familiar with enabling statutes

c. That the public will become familiar with an agency’s practices

d. That the elected officials are satisfied with the rules

8. Rules must be:

a. Written in highly legalistic language

b. Communicated to all licensees 45 days before coming into force

c. Reasonably related to the enabling statutory language and purpose of the law

d. Written without consideration of whether the rule’s benefits outweigh the costs

9. Under emergency rulemaking:

a. The public must be notified before the emergency rule is imposed

b. The rule must be temporary and effected only if there is a danger to public health

c. The board needs a two thirds majority to pass the rule

d. Minor agency housekeeping problems should be resolved

10. When reviewing rules, as a board member, you should:

a. Ensure that the rules repeat the statutes

b. Ensure that sufficient board operating latitude is provided through terms such as “if

necessary,” “when appropriate,” and “proper.”

c. Review the rule for clarity, potential loopholes and approaches for handling

disciplinary issues

d. Ignore all minority views from the consultation

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Display slide.


Questions

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Display slide.

Professional Discipline



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Display slide.



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Display slide.



Learning Objectives


Understand the difference between disciplinary issues and fitness to practice issuesDefine the enforcement procedures in place for professional disciplineIdentify the options available to board members regarding professional discipline

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Display slide.



Learning Objectives


Understand the need for a strong enforcement processIdentify and consider the unintentional consequences of professional discipline on the practitionerDescribe processes for dealing with practitioner incapacityDiscuss issues of openness and transparency in professional discipline and fitness to practice

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Display slide.

Explain that this session is divided into six lessons. These lessons are:

• The Enforcement Process• Elements of a Strong Enforcement Process• Receiving and Sharing Information• Disciplinary Sanctions• Practitioner Misconduct• Session Review


Session Map

Professional Discipline and Fitness to Practice

The Enforcement ProcessThe Enforcement Process

Receiving and Sharing InformationReceiving and Sharing Information

Disciplinary SanctionsDisciplinary Sanctions

Practitioner MisconductPractitioner Misconduct


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The Enforcement Process

Display slide.

Explain in this lesson we will review the enforcement process, and characteristics of a strong enforcement process.

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Introduction

Public access and perceptionBoard’s responsibilitiesUnderstand board policies and procedures

Display slide.

Explain The operation of disciplinary processes is often the most visible role that regulators undertake. How complaints are handled, particularly those from consumers, has a significant impact on the public’s perception of the regulatory process and public confidence in the profession concerned. When concerns are raised about a regulated practitioner’s conduct, competence or fitness to practise, regulatory agencies must ensure that they apply fair, transparent and timely processes in addressing those concerns.

Disciplinary activity often accounts for the largest share of a regulator’s budget and Board members need to ensure that there are sufficient reserves available to enable this important part of their regulatory mandate to be delivered. They also need to ensure that those directly involved in administering the disciplinary process receive appropriate training and have access to legal counsel.

The exact nature of the processes used by regulatory agencies does vary and it is important that Board members are aware of and comply with the specific requirements which apply in their jurisdiction. However, those processes are typically based upon quasi-judicial procedures which share many broad similarities

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The Enforcement Process

Intake

Assessment

Investigation

Review

Resolution

Final Orders

Compliance

Display slide.

Explain The regulatory enforcement process can be regarded as consisting of seven steps, as follows:

1. Intake2. Assessment3. Investigation4. Review5. Resolution6. Final Orders7. Compliance

In this lesson we will review the components of each of these steps, and their importance to you as a board member, your practitioners, and the public.

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Intake

Complaint received and acknowledgedThis is often the only contact public has with regulatory agency

Notification sent to practitionerFile set upFile status tracking mechanisms

Intake

Assessment

Investigation

Review

Resolution

Final Orders

Compliance

Display slide.

Explain Receiving and acknowledging complaints; setting up files and initiating complaint tracking. This is often the only point at which a consumer makes contact with a regulatory agency and the handling of telephone calls and correspondence at this stage has a real impact on the public’s perception of the regulator.

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Assessment

Initial screening of complaintDetermine jurisdictionAssess risk to public and interim measuresAssess issues for possible alternative resolution mechanisms

Intake

Assessment

Investigation

Review

Resolution

Final Orders

Compliance

Display slide.

Explain Screening complaints; applying the agency’s ‘standard of acceptance’; determining jurisdiction and the form of response that is appropriate for the complaint. In cases where an immediate public risk is perceived the regulator may have statutory powers to impose some form of immediate suspension of registration

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Investigation

Assign complaint to investigator or investigative teamEvidence gatheringInterviewsIdentify, obtain, and review relevant documentationInvestigation report

Intake

Assessment

Investigation

Review

Resolution

Final Orders

Compliance

Display slide.

Explain Assigning an individual or team to gather evidence and produce an investigation report. In some jurisdictions this work is undertaken by Board members or prosecutors rather than by investigators.

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Review

Determine the disposition of the complaintInvestigation/screening committeeComplaints without merit are closedComplaints with merit move forward

Intake

Assessment

Investigation

Review

Resolution

Final Orders

Compliance

Display slide.

Explain Determining the disposition of investigated complaints. At this stage a decision will be taken on prosecutorial viability or some other measure of whether there is ‘case to answer’. Complaints without merit will be closed and a level of action will be determined for those which merit further consideration.

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Resolution

Confidential / Informal ResolutionsBefore the screening committeeWritten/oral cautionsIrrevocable undertakingRemediation

Intake

Assessment

Investigation

Review

Resolution

Final Orders

Compliance

Display slide.

Explain Hearing or otherwise deciding the case. This may be some form of informal process (such as a stipulated agreement or undertaking) or may involve formal resolution at a hearing before the Board, a tribunal or administrative law judge.

Instructor Note: This topic is continued on the next slide.

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Resolution

Public / Formal ResolutionsConsent orders / agreed statements of factContested hearingsDiscipline hearing before a committee or panelSimilar to a trial

Intake

Assessment

Investigation

Review

Resolution

Final Orders

Compliance

Display slide.

Explain Hearing or otherwise deciding the case. This may involve formal resolution at a hearings before the Board, a tribunal or administrative law judge.

Instructor Note: This topic is continued from the previous slide.

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Final Orders

The Discipline Panel adjudicates by:Determining the facts based on the evidenceMaking findingsOrdering sanctionsProducing written decisionsDecisions and orders can be appealed

Intake

Assessment

Investigation

Review

Resolution

Final Orders

Compliance

Display slide.

Explain Disposing of the case, including imposing an appropriate sanction. The resolution process will establish facts based upon the evidence, apply the relevant law and, depending upon the legislative language, reach conclusions as to ‘liability’ or ‘guilt’. The person or body that conducted the hearing will often also make the final order. However, in some jurisdictions the findings in the case may be referred back to the Board or a committee which then makes the final order (either as to guilt and sanction or only on sanction).

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Compliance

The board must monitor compliance with sanctionsSanction orders may include consequences of non-compliance

Intake

Assessment

Investigation

Review

Resolution

Final Orders

Compliance

Display slide.

Explain Following up on final orders to ensure that they are being obeyed. Ensuring a high degree of compliance is an important part of maintaining public confidence in the regulatory process.

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A Strong Enforcement Process:

Is well-publishedIs based on a well-organized, open, and transparent processOperates in a timely mannerAvoids appearances of institutional biasDefines misconduct, incompetence, and other offences clearlyMaintains internal consistency

Display slide.

Explain Characteristics of a Strong Enforcement Process

There are six common elements to a strong enforcement process. Boards should:

Publicize their existence and role in handling consumer complaints. Options include:

• Toll-free complaint lines• Consumer-friendly websites• Distribution of information brochures• Posting ‘how to complain’ notices in all registered practitioners' premises• Advertising• Speeches and other stakeholder outreach by board members• Coordination of publicity and information with consumer groups

Develop well-organized complaint handling processes

With clear guidelines on how to log complaints, who receives notification of the complaint, and within what period of time.

Set appropriate timescales

For notices, the review of investigations and other key steps in the complaint handling process and adhere to them. Timescales and deadlines should be set out in legislation or

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clear policy statements.

Observe due process

By separating the investigation, prosecution and decision-making processes. Where Board members participate directly in the disciplinary process they should not be involved in more than one of these three steps.

Specify the basis on which disciplinary action may be taken

Such as misconduct or unethical behavior. So far as possible, the basis on which action can be taken and any definitions of the terms used should be set out in the regulatory agency’s governing legislation or regulations.

Consider how to maintain consistency in relation to charges and sanctions

So that the principle of fairness is observed. Set guidelines which enable consistent charging and sanction decisions to be made and which also allow for deviation where there are aggravating or mitigating circumstances that make it appropriate and can be explained.

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Receiving and Sharing Information

Display slide.

Explain This lesson will cover the requirements and best practices of sharing and receiving information across and within jurisdictions, and agencies.

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Seek to Receive Information

Disciplinary action which:Significantly limits a practitioner’s scope of practice or practice privilegesLeads to suspension or expulsion from an organizationConcerns about practitioner’s:Competence or ability to perform professional servicesUnethical behaviorViolation of professional standardsPossible chemical abuse

Display slide.

Explain Sharing information with other regulators, professional associations, insurers and the employers or users of the services provided by registered practitioners is a valuable public protection safeguard.

In many jurisdictions the sharing of information is a legal requirement but even in those where it is not, Boards should seek to ensure that they receive information from others about:

• any disciplinary action which significantly limits a practitioner’s scope of practice, practice privileges or leads to their suspension or expulsion from an organization;

• concerns about the practitioners’ competence or ability to perform professional services, unethical behavior, violation of professional standards or possible chemical abuse

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Things a Board Should Consider

Requiring insurers to report settlements against registered practitioners over a specified amountRequiring practitioners to inform board of concerns about another practitionerEnsuring notice of any sanctions imposed are circulated to relevant regulatory agencies in other jurisdictions

Display slide.

Explain Where they have the power to do so, Boards should also consider:• Requiring insurers to report all settlements involving a registered practitioner which

exceed a specified sum;• Requiring all registered practitioners to inform them of concerns about other registered

practitioners;• Ensuring that notice of any sanctions they impose are circulated to relevant regulatory

agencies in other jurisdictions.

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Disciplinary Sanctions

Display slide.

Explain in this lesson we will discuss the principles and objectives of disciplinary sanctions, aggravating and mitigating circumstances pertaining to disciplinary sanctions, and the types of disciplinary sanctions available to regulatory authorities.

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Principles and Objectives

Protect the publicMaintain confidence in the boardDeterrenceGeneralSpecificRehabilitation

Display slide.

Explain the key principles and objectives of any board as it pertains to disciplinary sanctions are:

• Protect the public• Maintain confidence in the board• Deterrence

• General• Specific

• Rehabilitation

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Aggravating and Mitigating Circumstances

Seriousness of the conductPrior discipline historySingle event vs. pattern of conductHarm to specific individualsMisleading the board/agencyCooperation with the investigationInsight / Remorse

Display slide.

Explain that there are aggravating and mitigating circumstances to take into consideration when determining the type and severity of disciplinary sanctions.

Discuss how the circumstances displayed on this slide could affect the type and severity of sanctions you would consider as a board member of a regulatory authority.

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Types of Disciplinary Sanctions

Revocation of registrationSuspension from practiceProbation or other form of restriction of practiceDenial of reinstatement or renewalRestitution order

Mandatory substance abuse testing or submission to mental or physical evaluation Censure and reprimand or a cautionAdministrative fine or monetary penalty

Display slide.

Explain The disciplinary sanctions available to boards vary significantly from jurisdiction to jurisdiction and often a board’s governing legislation only provides a limited number of options. The sanctions which may be available include:

• Revocation of registration;• Suspension from practice for a fixed period or until specified conditions are met;• Probation or some other form of restriction on practice, which may include, limitations

on practice, supervision requirements or satisfactory completion of remedial activity;• Denial of reinstatement or renewal of registration;• Restitution order, requiring the refund of fees and costs to a consumer;• Mandatory substance testing or submission to some other form of mental or physical

evaluation;• Censure and reprimand or a caution;• Administrative fine or monetary penalty.

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Practitioner Misconduct

Display slide.

Explain in this lesson we will discuss the implications of professional misconduct, and mental, physical, and chemical impairment or practitioners.

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Practitioner Misconduct

Physical harm or abuse of a clientFailure to maintain accurate recordsFailure to maintain standards of practiceCode of conduct violationsFraud or falsifying of recordsImproper advertisingPractice while intoxicated or mentally impaired

Display slide.

Explain that practitioner misconduct is one of the most common forms of violations that regulatory boards face and may include the examples provided on this slide.

Ask if any of the attendees have had experience with complaints of any of the examples provided. Ask if they have examples of other types of practitioner misconduct.

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Mental, Physical or Chemical Impairments

Mental and physical impairments:Can affect a professional’s ability to practice properlyEvaluations of licensee’s state to ensure board has all needed information

Chemical impairment is one of the most common disciplinary issuesUse, misuse, abuse, dependencyRecognizing where someone is in the continuum can help determine degree of harm to public

Display slide.

Explain Practitioners may be referred to a Board on grounds of mental or physical impairment, which may be affecting their ability to practice competently and putting clients at risk. It is important that, where the Board has the power to do so, the practitioner is required to undergo appropriate mental and/or physical evaluations to ensure that the Board has complete information on which to make a decision.

Chemical Impairment

The process of substance impairment typically progresses along a continuum from use, to misuse, to abuse, to dependency. Each of these stages indicates an increased degree of dependence. Legitimate drug use can also lead to misuse or abuse, but does not inevitably result in dependence. Regulatory authorities frequently hear cases at points along the continuum from misuse through dependence and will rarely have jurisdiction over the legitimate use of legal substances. For that reason a regulatory authority should take particular care in determining whether a practitioner’s drug use is for legitimate reasons and whether it affect their ability to perform professional duties.

The complexity of impairment is such that clients may at times be at different kinds of risk from a practitioner in the "misuse and abuse" portion of the continuum, whose behaviour may be more erratic than those who are dependent but who may have built up tolerance and react more predictably to the drugs they are using. In all cases clients are at risk and intervention may be needed in order to protect the public. As those recovering from chemical dependence are prone to relapse, close monitoring of practitioners at this stage is

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also advisable as a public safety measure.

Page 155 of 232

Display slide.

Say “We have completely reviewed all topics within the Professional Discipline session of the Board Member Training – Introduction to Regulatory Governance course. We will now review the key concepts of this session.”

Session Review

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Display slide.


Explain Board members must ensure that their organization has fair, transparent and timely processes for addressing professional discipline issues. Formal processes for investigation, information management, hearings and sanctions must be established and followed. For those directly involved in the discipline process adequate training is critical and an understanding of the types of practitioner misconduct will also assist them in their deliberations.

Session Review

Employ fair, transparent, and timely processesProvide for informal resolution options where appropriateGive specific training for board members involved in discipline proceedings

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Display slide.





Understand the difference between disciplinary issues and fitness to practice issuesDefine the enforcement procedures in place for professional disciplineIdentify the options available to board members regarding professional discipline

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Display slide.





Understand the need for a strong enforcement processIdentify and consider the unintentional consequences of professional discipline on the practitionerDescribe processes for dealing with practitioner incapacityDiscuss issues of openness and transparency in professional discipline and fitness to practice

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Practical Exercise

Display slide.


During a narcotics record audit, it is found that a nurse has been diverting medications from patients for more than a year; using a number of techniques to obtain and hoard medications for personal use, including marking narcotics as "wasted," and also forging other nurses' signatures on narcotic sign-off sheets. When confronted by the employer, the nurse claims to have had serious injury last year, and pain killers were prescribed by a doctor.

The doctor refuses to continue the prescription and this person claims that without drugs, the pain is too severe to provide proper patient care. Even on pain medication, the nurse’s performance has otherwise been stellar, with no patient issues. Though the nurse has agreed to enter a drug treatment program, to protect itself, the hospital has reported this incident to your Board.

What if any action should be taken by the Board? What variables must be considered? Since the nurse has already agreed to treatment, is this still a board problem?


The answers to these questions will lie with the specific process and remedies that are instituted by the Board and jurisdiction in question (and in this particular incidence, an examination of any laws that might be in effect).

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• Is the process in accordance with the “legislation” governing the regulation of the profession?

• Is the incident related to practitioner conduct or fitness to practice?• Is a fair, transparent and timely process followed?


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Answer Key



1. What is the second step in the seven-step enforcement process following receipt and

acknowledgement of a complain and setting up a file to initiate complaint tracking?

a. Investigation

b. Assessment

c. Compliance

d. Review

2. Which of the following is not a characteristic of a strong enforcement process?

a. To ensure the privacy of the practitioner, a regulatory authority will assure that the

enforcement process is kept absolutely secret from the public

b. Appropriate time periods are provided for notice and investigation

c. Observing due process by separating investigations, prosecution and hearings and final

decision making

d. Specific reasons for which the Board may take disciplinary actions are clearly

documented

3. Which of the following statements is true regarding chemical impairment?

a. all drug use will eventually lead to dependence.

b. regulatory authorities are not permitted by law to direct the licensee toward treatment

as a part of action to be taken against the certificate of registration.

c. regulatory authorities have jurisdiction over the use of legal substances for legitimate

reasons

d. the typical progression of chemical impairment is use to misuse, to abuse and finally

dependency

4. Which of the following disciplinary sanctions is NOT available to regulatory authorities?

a. administrative fine

b. prison terms

c. injunction

d. suspension

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5. With regard to disciplinary sanctions, what is the term for the mildest form of administrative

action?

a. probation

b. restricted license

c. censure

d. denial of renewal

6. An investigation conducted by which of the following would NOT be considered a normal

procedure:

a. board members

b. assistant attorneys general

c. investigators working for multi-boards by geographic districts

d. peer groups

7. Board members should participate in how many of the areas of due process?

a. none, these steps should be assigned to staff

b. one, they should not be allowed to serve in more than one capacity to avoid influence

of the process

c. two, this will enable some continuity between each of the steps

d. all four, to ensure every board member has an equal opportunity to provide input in the

entire process

8. Which of the following is/are appropriate vehicle(s) for boards to explain and publicize the

disciplinary process and their role in handling consumer complaints:

a. “toll-free” complaint lines

b. public service television and radio shows

c. notices about where and how to file complaints posted in all licensed professionals'

offices

d. all of the above

9. Which of the following is NOT considered part of a strong enforcement process:

a. a strong relationship with the local police department

b. an organized complaint handling process with clear guidelines

c. established time periods for notice and investigation review

d. a description of the specific reasons for which a board may take disciplinary actions

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10. Regarding disciplinary actions, the materials noted that many statutes still include only a limited

number of options. Which of the following is/are included in that short list:

a. suspension

b. revocation

c. probation

d. all of the above

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Display slide.


Questions

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Page 166 of 232

Assessing Competence



Display slide.

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Display slide.



Page 168 of 232

Display slide.



Learning Objectives


Define competenceExplain the relationship between competence and regulationIdentify the essential competencies to regulationDetermine competence for licensees at point of entry, and the need/method for continuing competency

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Display slide.


• Components of Competence• Determining Competence at Point of Entry• Determining Continuing Competence• Session Review


Session Map

Assessing Competence

Components of CompetenceComponents of Competence

Determining Competence at Point of EntryDetermining Competence at Point of Entry

Determining Continued CompetenceDetermining Continued Competence


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Display slide.

Explain in this brief lesson we will introduce the components of competence.

Components of Competence

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What is Competence?

KnowledgeSkills / AbilityAttitudeJudgment

Display slide.

Explain There are many definitions of competence; common elements among these definitions include knowledge, skills or ability, attitude and judgement.

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Relevance of Competence to Regulation

Assures public safetyMaintains profession’s reputationPeer capabilityEstablishes practice standardsPoint of entryOngoingEnsures quality

Display slide.

Explain Regulators are responsible for ensuring professionals are competent to enter the profession and once registered that they remain competent throughout their professional careers.

The public as a whole needs to feel confident that the professional possesses the knowledge, skills, attitude and judgement to practice the profession both safely and effectively therefore increasing the likelihood that quality services are being delivered.

The profession as a whole wants to know their peers are competent to practice the profession. Incompetent professionals may harm clients and as a result impact the credibility of the profession in the eyes of the public.

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Essential Competencies

Foundation of standards of practiceSet day-to-day expectations for practiceFoundation for continuing professional development

Display slide.

Explain At the point of entry into a profession a professional should possess the basic knowledge and skills, a professional attitude and good judgment skills. These essential competencies set the day to day expectations for baseline practice in any practice setting across roles, both assumed and required. Often essential competencies are the foundation of the standards of practice for the profession. The standards are the expectations as set by the regulator and/or agreed to by the profession as a whole.

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Static or Dynamic Concept

Standards of practiceEvolve over timeChange due to technology, advancements in field, etc.Meeting standards is not “best practice” it is baseline competenceRole of regulator in ensuring continuing competence is essential

Display slide.

Explain The fact that a professional can demonstrate this minimum competency at point of entry does not mean the individual will remain competent in the future. Ongoing competency requires a professional to engage in various activities which support continued professional development and the building of expertise in the profession. Given this, standards of practice are not static. They evolve over time as practice continues to change as do the expectations of the public, the profession and the regulator. Professionals must always meet the standards of practice of the profession. These are not the expectations for “best practice” but rather the baseline expectations of the professional. When a professional enters the profession, it is assumed that he or she has demonstrated competency. However, as practice evolves and standards shift, the role of the regulator in ensuring continuing competence is essential.

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When do we Assess Competence?

Point of EntryCompetency checki.e.: ComplaintCompetency continuanceQuality assurance

Display slide.

Explain points provided on slide.

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Determining Competence at Point of Entry

Display slide.

Explain That competency can be broken into two segments, point of entry, and continued competence. In this section we will discuss point of entry competency issues.

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Considerations at Point of Entry

Academic qualifications and credentialingEntrance examsWork experience and training, language assessmentsSuitability to practiceMutual recognition agreementsPrior learning assessments

Display slide.

Explain The evaluation of competence can include many different elements. There will be a review of the academic qualifications and perhaps a credentialing process or entrance exams.

The regulator may conduct a review of a candidate’s work experience and training in the same jurisdiction or perhaps even in another jurisdiction. Sometimes this can be addressed through a prior learning assessment also known as PLAR. In some cases a language assessment may be required to ensure the professional can deliver services in at least one of the official languages.

Some regulators also require an assessment of the candidate’s suitability to practice the profession with honesty and integrity. Often this information is obtained through reference checks, criminal record checks or letters of “good standing” which may be issued by another regulator where the candidate has practiced.

Many jurisdictions are involved in mutual recognition agreements with other jurisdictions. These agreements facilitate the movement of professionals across borders.

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Academic Qualifications and Credentialing

Movement towards harmonization of competency standards and entrance requirementsReciprocity and mutual recognition agreementsProgram content vs qualificationDifference in practice contextSubstantial equivalence

Display slide.

Explain In the current environment regulators need to be aware of the movement towards harmonization of competency standards and entrance requirements driven by economic and political pressures. The increased desire to create reciprocity and mutual recognition agreements that will facilitate professionals’ movement nationally and internationally will continue to grow.

Many jurisdictions have also noted an increase in applications from internationally educated applicants. These individuals need to demonstrate competency equivalence to the professionals in the local jurisdiction in which they are applying for registration. To facilitate their integration into the local system, they will likely need to understand how to apply their knowledge, skills and professional judgment in a different professional and cultural context.

It is commonplace for a regulator to set an academic credential standard as the entry point to the profession. Regulators usually adopt the accepted jurisdictional standard as one requirement for licensure. Where diversity of the credential standard exists (e.g. Baccalaureate and Masters and perhaps PhD level preparation) a regulator is responsible for determining which level(s) of education best serve to reach the competencies required for safe practice. Regulators also often look to accrediting or certifying agencies to assist with setting the education standard for registration / licensure. In the case of internationally educated applicants, a review of the course curriculum is required to determine if the applicant meets the accepted standard, especially where the regulator is not familiar with the program, where the profession is not regulated and/or where there is a difference of credentials and/or titles. (e.g. diploma in one country may mean a degree in another).

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Historically, assessments of this nature were focused on hours of education / practical experience. In recent years there has been a shift from this approach to one focussed more on outcomes, for example, documentation of positive results using the accepted practice standards.

As the discussion pertaining to assessing competence is continuing to evolve, many regulators are starting to explore the concept of substantial difference. Placing the onus is on the regulator to demonstrate why a candidate may not be eligible to practice a profession, as opposed to requiring the candidate to demonstrate they should be eligible.

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Evolution of Entrance Exams

Paper and Pen Based Testing

Computer and Online Testing

Virtual Environments

Demonstration of practical skills

Display slide.

Explain One of the key components of assessing competence at the point of entry is the entrance exam. Licensure examinations are designed to evaluate a candidate’s competence at an entrance level. These are “high stakes” examinations as they are usually one of the last steps to determine whether or not an individual will be able to practice their profession in a given jurisdiction.

Traditionally, these examinations have been administered in paper and pen format. Recent advances in technology have led to the increasing use of computer testing, virtual testing environments and the demonstration of practical skills in simulated practice environments.

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Entry to Practice Requirements Must Be:

Fair Objective

Impartial Transparent

Display slide.

Explain When looking at your own organization’s entry to practice requirements, it is important to ensure that the agency’s process is fair, objective, impartial and transparent. Doing anything less leaves the agency open to scrutiny, legal action and the erosion of credibility.

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The Entrance Exam Must Be:

ReliableDefensibleSecureAccessibleFree of cultural bias

Display slide.

Explain The importance of and the development and use of entrance exams should not be overlooked. There are many different testing professionals who can assist in ensuring that the exams that are used are reliable, valid and defensible if they are challenged, perhaps by an unsuccessful candidate. Exams are expensive to develop and maintaining the integrity of the exam is critical. As such, organizations invest considerable time and resources to ensure their exams are secure and that opportunities for exam breaches and/or cheating are kept to a minimum if not eliminated.

Organizations may choose to purchase an examination from a recognized testing service or create the examination themselves. Regardless of the source the regulator must be confident that the examination fairly evaluates the required competencies at an entrance level for the purpose of ensuring the health, safety and welfare of the public. The regulator must also be prepared to speak to the integrity of the exam should it ever be challenged in a court of law. Regulators must also be thoughtful in terms of the content of the exam and ensuring that there are no unintentional barriers based on cultural bias or language level. Regulators must be able to demonstrate, if challenged, the relevance of required qualifications and assessment processes including specific examinations. This will include the way in which the examinations are administered. Careful attention needs to be paid to the methodology of delivery, validity, reliability, scoring methods, or other relevant characteristics.

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Components of the Test Development Process

Job analysisTest specificationsTest developmentPassing standardTest administrationPost-test analysis

Display slide.

Explain In some jurisdictions, test development and administration may be outsourced to a national, state, or provincial organization. In other jurisdictions, the board may be more involved. Regardless of the set up, the board is responsible for oversight of all components of the test development process:

• Job Analysis• Establishes the tasks required for the job and the frequency, criticality or potential

for harm if the activities are performed incorrectly.• Test Specifications

• The tasks, knowledge, skills or abilities (KSAs) required of a minimally competent applicant

• Established from the job analysis • Used to create the test specifications or blueprint for the examination

• Test Development• After selection of examination format, item writers receive appropriate training

and create the content of the examination• These items must then go through rigorous review and editing by Subject Matter

Experts (SMEs) and must be referenced to available, published material.• Passing Standard

• The passing or “cut score” can be successfully established through a number of different procedures.

• It is critical that the passing score is not a random or arbitrary number; nor should it be based on a quota

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• Testing companies can assist the regulator in utilizing sophisticated methods to arrive at a fair and defensible passing standard

• Test Administration• Standardized instructions must be developed and adhered to for every

examination administration whether using single or multiple test sites• Key elements will include:

• Well trained monitors/proctors• Identification of candidates• Assigned seating for candidates• Verification of number of examinations • Secure storage pre and post exam.

• Slightly different rules will be required if the examination is computer delivered or if delivery is of a practical examination.

• Post-Test Analysis• A statistical analysis should be performed of both the individual items and the

examination as a whole.

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Denying Entry into the Profession

Be transparentFollow the provisions of the law, policy, etc.Advise applicant of appeal rights, if anyBe able to demonstrate why entry is being deniedRole of precedentsSeek legal advice where necessary

Display slide.

Discuss talking points provided on slide.

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Determining Continued Competence

Display slide.

Explain Maintenance of professional competence is crucial for the protection of the public. There are a number of different activities, tools and resources available to ensure that professionals maintain the necessary knowledge, skills, abilities and judgment to practice the profession safely and competently within a constantly changing environment.

The challenges for the regulator include:• Determining the relevant and most effective ways to establish the requirements • Determining how a program should be evaluated to determine its effectiveness in

ensuring the continuing competence of professionals

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Ongoing Competency Assessments

Personal initiative /

self-assessment

Personal initiative /

self-assessment

Voluntary programs / supports

Voluntary programs / supports

Mandated programsMandated programs

Display slide.

Explain Regulators may establish criteria for continuing competence or quality assurance programs, and can require the professionals to participate at their own expense and time. Such programs have various levels of sophistication and delivery modes. Sometimes the professional is responsible for their own professional development. Occasionally there may be voluntary programs that are affiliated with the regulator, or outside programs recognized by the regulator that the professional may take part in. As the discussions pertaining to continuing competence evolve over time, more regulators are looking towards mandated continuing competence programs.

Traditionally, most efforts to assure continuing competence have been limited to the tracking of continuing education units. This is essentially an extension of the emphasis on knowledge-based assessments administered through qualifying exams. Programs vary widely in the amount of continuing education required, the types of education allowed, the quality requirements of the activities, and the approach to practice review.

In recent years regulators have started to become much more creative in their use of tools and resources to support ongoing professional development.

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Tools of Continuing Competence

Self assessmentsContinuing educationProfessional portfolioPeer assessmentsPractice review / auditsRecertification

Display slide.

Explain While continuing education is perhaps the most widespread means of assessing continuing competence, it is a relatively poor indicator of practitioner competence. Most studies related to the impact of continuing education as a means of assuring continuing competence suggest little correlation between completing continuing education and maintaining competence. The reasons cited for the shortcomings of continuing education include a lack of:• Competency assessment in the activities

• Accomplishment is measured in time rather than retention of knowledge• Relevance

• Practitioners are able to take continuing education whether or not it is of demonstrated value to professional learning needs

• Accountability• Most models rely on self reports from the practitioner, and practitioners

sometimes continue to practice even when failing to complete requirements.

Many programs have implemented checks and balances to better track initiatives supporting the maintenance of competence. These are classified as those that:• Introduce higher standards of accomplishment in the educational activities themselves,

such as requiring rigorous assessments of learning outcomes;• Require practitioners to perform reflective exercises to optimize their continuing

education experience;• Enforce periodic re-examination of the qualifying exam; and• Introduce alternative assessments, such as peer assessment, periodic re-examination,

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simulation exercises, on-site job performance assessments, interviews, practice audits or re-certification.

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Key Considerations

Multi disciplinary practice environmentsUniversal vs. specific standards for a professionPrinciple driven or prescribed

Display slide.

Explain Regulators need to be cognizant about the shifts to multi-disciplinary practice settings and shared scopes of practice. For example, if there is a doctor, nurse and physical therapist working in a hospital, would it be reasonable for them to all have the same or similar record keeping standards?

As regulation continues to evolve, so does the profession’s expectation regarding their professional autonomy. Years ago, regulators were very detailed in terms of defining how things were to be done. Recent years have seen regulators moving towards standards and expectations that are principle-based, which provides the professional with some personal flexibility in terms of how they will meet the standard.

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Use of Standards of Practice

RulesUnwritten rules or common understandingsMinimum expectationsEvolve over time

Display slide.

Explain In an ongoing process regulators establish, review and update a variety of standards including competency standards, standards for qualification, ethical standards, standards of conduct and practice standards. Although these may vary among jurisdictions, the documents created are generally known as Codes of Ethics, Codes of Conduct, Professional Misconduct Regulations/Rules, By-Laws, Standards of Practice, and Conflict of Interest Rules.

As public needs or values change it is important for regulators to update their standards to reflect these changes. There may be changes to bodies of professional knowledge, technologies and environmental dynamics and standards need to evolve in light of these changes. Both the public and the professionals are best served when regulators implement a rigorous process for the development of a standard, including broad consultation and validation.

It is not sufficient to simply create these standards. There must be ongoing education of the professionals governed to assist them in meeting their professional obligations. In addition, the public must be made aware of what to expect from regulated professionals and also what recourse they have if the professional’s conduct does not meet the standards.

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Continuous Quality Improvement Initiatives

Ensure professional knowledge remains current Ensure professional engages in relevant educationEnsure ongoing mechanisms for evaluation

Display slide.

Explain The goal of continuing competence activities is to ensure that the professional remains current in their knowledge, skills, attitudes, and judgement. The regulator must find creative ways to ensure the profession as a whole remains engaged in professional development. In order to support these initiatives in an ongoing way, regulators need to ensure that there are mechanisms in place for ongoing evaluation which will address the efficiency and effectiveness of the initiatives.

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Embracing Technology

Nothing stays the sameTensions between generationsElectronic recordsTelepracticeInternational differences

Display slide.

Explain Regulators must continue to leverage technology and recognize the impact that technology has and will continue to have on the lives of the professionals that they regulate and the public they serve. For example, advances in technology have allowed for innovations in the areas of electronic records and telepractice. More than ever regulators must ensure that the methods and modes of delivery of such initiatives remain accessible to professionals of all generations.

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The Complaints Process

Public’s redress for inappropriate conduct or incompetencePractice behaviors assessed against standardsChange effected viaSupportRemediationPunishment

Display slide.

Explain It is important to acknowledge that sometimes a member of the public may initiate a competency check through the complaints and discipline process. In filing a formal complaint with the regulator, the regulator may be required to make focused inquiries into the competence or conduct of its professionals.

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Session Review

Display slide.

Say “We have completely reviewed all topics within the Assessing Competence session of the Board Member Training – Introduction to Regulatory Governance course. We will now review the key concepts of this session.”

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Session Review

Ensure entry criteria is defensible and valid

Ensure entry criteria is defensible and valid

Ensure universal application of policies

and procedures

Ensure universal application of policies

and procedures

Seek legal advice and document deviations

from policy

Seek legal advice and document deviations

from policy

Know your organization’s policies on conflict of interest,

bias and confidentiality

Know your organization’s policies on conflict of interest,

bias and confidentiality

Display slide.

Explain Regarding competence, a board member has a responsibility to:

• Ensure the criteria set by your organization related to entering the profession is defensible and valid

• Ensure you have policies and procedures that are universally applied• Where deviating from the norm, seek legal advice and document, document, document• Know your organization’s policies and practices related to conflict of interest, bias and

confidentiality

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Session Review

Stay current on case law, learn from

experience of others

Stay current on case law, learn from

experience of othersWhen you are not sure,

ask questionsWhen you are not sure,

ask questions

Have tests/exams reviewed by testing

experts

Have tests/exams reviewed by testing

experts

Seek out research regarding most

effective continuing competency assessments

Seek out research regarding most

effective continuing competency assessments

Display slide.

Explain Regarding competence, a board member has a responsibility to:

• Keep abreast of current case law and learn from the experiences of others• When you are not sure, ask questions• Ensure that your tests / exams have been reviewed by testing experts• Be aware of research regarding the most effective forms of continuing competency

assessment

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Learning Objectives

You should now able to:

Define competenceExplain the relationship between competence and regulationIdentify the essential competencies to regulationDetermine competence for licensees at point of entry, and the need/method for continuing competency

Display slide.



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Practical Exercise

Display slide.


You hold the chief Staff position on a regulatory board that has just begun the process of developing requirements for mandatory continuing education. Your board chair is a consultant to a very large publishing/education company that specializes in offering online continuing education courses for the profession that your board regulates. At the recent board meetings, this individual has been strongly pushing to have the company for which he/she consults be recognized as the only approved CE provider in your state, and has encouraged the board to adopt a policy to that effect.


The answers to these questions will lie with the specific process and remedies that are instituted by the Board and jurisdiction in question (and in this particular incidence, an examination of any laws that might be in effect).

• What are the implications of allowing the chair to continue his/her actions?• Would it be appropriate to give the chair a personal call to suggest that in attempting to

get the board to approve CE programs only from his/her company, that the board risks a serious charge of “conflict of interest”?

• Would there be value in having legal counsel talk with the chair and have him/her recuse himself/herself from making further recommendations to eliminate a direct confrontation; thus reducing the real risk of personal embarrassment for the other board

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members, you and the chair should a heated argument develop at a public meeting?• If you and/or legal counsel speak with this individual but he/she continues to push for

his/her company, what actions should be considered next?


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Answer Key



1. Which of the following is not a responsibility of regulatory authorities?

a. Establishing competency standards for entry to practice level

b. Maintenance of professional competency by practitioners

c. Ensuring there are an adequate number of practitioners to protect economic growth

and development

d. Determining appropriate conduct of practitioners

2. When are licensure examinations normally used to evaluate practitioner competence?

a. Entry to practice

b. Apprentice

c. Intermediate

d. Mastery

3. The first step in the five-step process that regulatory authorities use in the development of

licensure examinations is known by what name?

a. Test development

b. Test specifications

c. Job analysis

d. Passing score

4. What is the word used to describe the mutual exchange of privilege or recognition of licenses

that helps facilitate movement (nationally and internationally) of professionals?

a. Reciprocity

b. Free trade

c. Laissez-faire

d. Capitalism

5. Regulatory authorities protect public interest by ensuring a practitioner:

a. Is qualified to practice at entrance

b. Continues to be competent

c. Conducts himself/herself professionally

d. All of the above

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6. Which of the following is not normally considered by a regulatory authority when determining

competence?

a. Years of education completed

b. Years and types of experience

c. School grade-point average

d. Level of mastery required for practice

7. Which of the following is not considered as part of a mandatory continuing education program

review by a regulatory authority?

a. quality of the instructors

b. cost of the program

c. content and educational level of the material

d. instructor/participant ratio

8. Which of the following may impact the reliability of the results of examinations used for

licensure?

a. Number of questions on the test

b. Clarity and accuracy of the test items

c. Number of candidates who take the test

d. All of the above

9. Which of the following issues is the LEAST critical need to be addressed regarding mandatory

continuing education (MCE)?

a. Determining number of continuing education hours required

b. That MCE programs offered address the needs of teaching adults

c. That there is a demonstrated link of MCE to continued competence

d. That every MCE program be made available on the web

10. In general, which of the following statements is true concerning the trend by jurisdiction

regarding continued competency:

a. mandatory continuing education is being eliminated

b. licensure “re-examination” is becoming mandatory

c. mandatory continuing education is being expanded

d. schools are now being allowed to re-license practitioners

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Display slide.


Questions

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APPENDIX

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Board Self-Assessment Checklist Is your board protecting, promoting, and responding to the public interest? Here's a checklist of some important indicators that can help you answer.

Is there a need for regulation?

• When did regulation of the profession or occupation begin? Why? Does the need

still exist?

• Are the rules and regulations promulgated by the board consistent with the statute?

• Is the implementation--guidelines, procedures, etc. -- consistent with the rules

and regulations?

Does my board promote and protect the public interest?

• Are there contacts with consumer groups?

• Are there mechanisms to provide consumer input into decision-making?

• Are due process protections provided to applicants, licensees, and the public?

• Is my board making itself known to, and open to, the public? Do any non-board

members attend meetings? Who are they?

• How are board meetings, activities, and decisions publicized?

• Is there an annual report? What is it like? Is it something the average citizen could

read and understand? Does the report summarize board activities in a way that would

permit the reader to judge how well the board is doing its job, or where it is placing its

emphasis?

• Are there minutes of all meetings? How are they circulated or made available outside

the board? When are they circulated?

Is the board involved in consumer education?

• Are consumers informed of their rights?

• Are consumers informed of where they can go for help when their rights have been violated?

Does my board provide protection against deceptive practices, negligence, and incompetence?

• Are consumers informed of the types of deceptive practices that can occur?

• Are records of complaints kept to indicate patterns of abuse?

• What actions does my board take to discipline licensees, e.g., ordering work

redone, revoking licenses?

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Does my board engage in practices that limit competition?

• Does the licensing process restrict entry into the profession or occupation?

• Is there a ban on advertising which may prohibit sellers of service from competing?

• Are minimum or suggested fee schedules established?

• Are there any other unnecessary or unjustified restrictions?

How effective are the program functions of any board?

• Are these functions desirable or necessary (testing, licensing, complaint handling, holding hearings, rulemaking)?

• Is the board working to maintain high standards within the licensed occupation?

• Is the board able to show what it has done about complaints received from the public?

Is my board operating efficiently?

• Is the interaction and sharing of responsibilities between the board and the appropriate agencies optimally divided and carried out?

• Are activities of the board itself being run in the most efficient manner?

• Do meetings start on time?

• Do members consistently get to meetings on time?

• Do members consistently attend, and notify the chairman when they are not coming or will be late?

• What is an operating quorum?

• Are minutes of the previous meeting mailed promptly, or if the board meets weekly, are they duplicated for quick perusal?

• Is much time spent in routine administrative items that should be taken care of by staff?

• Is correspondence summarized, or read word for word?

• Are responses to applicant letters (including the standard reply explaining the procedure

for licensing) helpful, relevant, and written in simple language that really gives the

needed information and guidance?

• Do meetings operate on an agenda, and do all members know what the agenda is?

• Do people leave before the meeting is over?

• Do meetings run too long? Could there be time limits set for items?

• Is the board meeting at a time most convenient for the members?

• Could the meeting time be changed?

• Does the board need to meet more often? Less often?

Credit This checklist was originally developed for Effective Consumer Representation: An Orientation

Manual for Board Members published by the Consumer Council of Maryland. As presented

here, it was adapted from the Orientation Manual for Members of Boards, Commissions and

Committees published by the California Dept. of Consumer Affairs.

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Parliamentary Procedure

Based on Robert’s Rules of Order

A Note to the Presiding Officer

The rules of parliamentary procedure are meant to help, not hinder. Applied with common sense, they

should not frustrate the meeting or entangle it in red tape. Retain control at all times, give clear

explanations, and keep things as simple as possible. Good advice from the chair as to the wording of

motions and the best way to proceed will avoid needless complications. When in doubt, your rule

should be: Respect the wishes of the majority, protect the minority and do what seems fair and

equitable.

Responsibilities of the Chair

1. Recognize board members entitled to speak or propose motions. Note: some motions may be

made while another member has the floor. Speaker must state the purpose of the interruption

so the chair can rule on its validity.

2. Restate motions after they have been seconded, then open discussion.

3. Close discussion and put motions to vote. Votes on undebatable motions should be called

immediately. If any member objects to closing discussion on a debatable motion, a 2/3 vote is

required to order to close a debate. Restate the motion exactly as it was made or amended

before calling for a vote.

4. Announce the result of a vote immediately. A tie vote defeats a motion requiring a majority of

those voting. The chair may vote to make or break a tie.

5. Avoid entering into any controversy or interfering with legitimate motions.

6. Maintain order and proper procedure, making necessary rulings promptly and clearly.

7. Expedite board business in every way compatible with the rights of board members. You can

allow brief remarks on undebatable motions, advise board members how to take action (proper

motion or form of motion), or order proposed routing action without a formal vote ("If there is

no objection, the minutes will stand approved as read. Hearing no objection so ordered").

8. Protect the board from frivolous motions whose purpose is to obstruct the board's business.

You can refuse to entertain such motions. Never adopt such a course, however, merely to

expedite business.

9. Guard the board's time by having them vote to adopt an agenda at the beginning of the

meeting. Follow the agenda faithfully. Do not permit unauthorized interruptions by spectators.

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Principles of Parliamentary Law

1. Parliamentary procedure requires that all board members have equal rights; there be mutual

respect among board members; and the rights of the minority to initiate motions, debate, and have

their votes counted be protected, while at the same time the will of the majority governs.

2. Only one item may be under consideration at a time.

3. The majority vote decides the questions.

4. Any question which limits board members' rights of discussion or changes the agreed order of

business requires a 2/3 vote of the members present.

5. Any matter once decided cannot be brought up again at the same meeting, except by a motion to

reconsider (see Section 2 for procedure).

6. The simplest, clearest and most expeditious way is considered proper, as long as it does not violate

the rights of board members.

Proposing and Disposing of a Motion

1. Gain floor by being recognized by chair.

2. State motion: "I move that. .."

3. Motion is seconded by any member without gaining floor.

4. Chair states motion (if proper) and opens it for discussion (if debatable).

5. During discussion the motion may be amended or disposed of by postponement (to a time certain

or indefinitely), referral to a committee, or tabling.

6. The chair puts the motion to a vote when there is no further discussion.

7. The chair announces the outcome of the vote.

Motions

Motion to Take from Table

• Not debatable

• Requires second majority vote not amendable

• Purpose: to bring up for consideration an issue that has been laid on the table

• Effect of adoption: puts motion before board again in exactly the same condition as when laid on

table

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Motion to Reconsider

• Debatable


• Purpose: to set aside a previous vote and reconsider the question for adoption or rejection

• Restrictions:

o Used only if vote cannot be reversed with more simple procedures

o Motion must be made by member who voted on the prevailing side

o May not be made later than the next meeting after the vote to which it applies

o If action has already been taken, vote cannot be reversed

o Motion may be made when another member has the floor, but its consideration is the same

for a main motion

• Effect of Motion: stops any action authorized by the original vote

• Effect of Adoption: sets aside original vote, puts matter back to where it was just before the vote

was taken

Main Motion

• Debatable

• Requires second majority vote amendable

• Purpose: to bring an issue up for consideration or action

• Effect of Adoption: action authorized

Motion to Postpone Indefinitely

• Debatable


• Purpose: to kill main motion without a formal vote; trial vote to test strength

Motion to Amend a Motion

• Debatable, unless motion to which it applies is not debatable


• Purpose: to put motion in most acceptable form before voting on it, by striking out or inserting

words or substituting one paragraph or motion for another

• Restrictions:

o An amendment to a pending amendment may be proposed, but not an amendment to the

third degree

o No idea already inserted by an amendment may be changed by a later amendment

o Any germane amendment is in order as long as it is not identical in effect to a no vote on the

main motion

• Effect of adoption: Changes the wording of the pending motion

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Motion to Refer to a Committee

• Debatable


• Purpose: to have a matter studied by a committee

• Form: motion may include membership of committee and instructions to it, and may be amended

with respect to these matters

• Effect of adoption: Disposes of motion until committee reports back or is discharged by the board

Motion to Postpone Definitely

• Debatable


• Purpose: to put off action on a motion until a later time

• Form: motion must specify time at which matter will be taken up again and may be amended in this

regard

• Effect of adoption: disposes of matter until time set

Motion to Limit Debate or Extend Limits

• Not debatable

• Requires second 2/3 vote amendable

• Purpose: to regulate length of time a question may be discussed or length of time allotted to each

speaker

• Form: motion states limits and may be amended in this regard

Motion on Previous Question

• Not debatable

• Requires second 2/3 vote not amendable

• Purpose: to have discussion ended immediately and a vote taken

• Form: may specify only the immediately pending question, of all pending questions.

• Effect of adoption: Chair must immediately put question to a vote and allow no further discussion.

Note: This motion should not be confused with the call for the "question" which is only a suggestion that

the board members are ready to vote, and may not be used to deprive any board member of the right to

continue the discussion if desired.

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Motion to Lay on the Table

• Not debatable


• Purpose: to set a matter aside temporarily.

o May be moved even after the previous question has been ordered

• Effect of adoption: Matter on table may be brought up again, but not later than the next meeting,

by adoption of a main motion to take it off the table

Motion Relating to Voting

• Not debatable


• Purpose: to provide for manner of voting (i.e., by ballot, voice, show of hands) order in which

questions will be voted upon, appointment of tellers, etc.

Question of Order

• Not debatable

• No second, decision of chair not amendable

• Purpose: to ask that a rule that is being violated by observed

• Form: floor is gained, even while another is talking, by stating, "Chairperson, I rise to a point of

order"

o Chair asks member to state point, then rules whether point is well taken

o If point accepted: Chair makes ruling

o If not accepted: Chair overrules point of order

Division of Board

• Not debatable

• No second no vote necessary not amendable

• Purpose: to secure a recount of a vote by a more accurate method than originally

• Form: board member, without recognition, says, "I call for a division”

• Effect of motion: Chair must retake vote by show of hands or written vote which can be counted

Appeal Chair’s Decision

• Debatable, only if pending question is debatable


• Purpose: to overrule a decision made by the chair

• Form: "Chairperson, I appeal from the decision of the chair."

• Restrictions: must be made as soon as the decision is announced.

o Can be laid on the table, which takes the pending question with it

• Effect of adoption: if less than majority sustain chair, decision is reserved

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Motion to Recess

• Not debatable


• Purpose: to provide a short interruption of the meeting

• Amendable: As to length of recess

• Restrictions: treated as a main motion if no other matter pending or if proposed recess is not to be

taken immediately

Motion to Adjourn

• Not debatable

• Requires second majority not amendable

• Purpose: To end the meeting immediately

• Restrictions: treated as a main motion if qualified in any way

• Effect of adoption: Chair must adjourn meeting immediately, although necessary announcements

may be made and a motion to fix a time for the next meeting may be entertained

Motion to Fix Time for Next Meeting

• Not debatable


• Purpose: to set time for next meeting (either regular or special)

• Restrictions: treated as main motion if no other question pending, or if provision has already been

made for another meeting on this day or the next

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Questions to Ask Regarding…

Test Preparation Yes/No Questions

1. Has a job/task analysis been conducted?

2. Does the job/task analysis include specific or detailed activities required for the profession?

3. Are test specifications/objectives developed which reflect the results of the job/task analysis?

4. Is a logical weighting of the various specifications provided?

5. Do the selected test formats reflect the results of the job/task?

6. If an Oral Examination is to be included:

• Is it necessary?

• Does it provide additional information not available from written format?

• Are the criteria for judging responses sufficient to reduce judgment bias?

• Does more than one person evaluate the candidate's responses?

• Does each evaluator make an independent rating?

• Has the candidate's anonymity been maintained?

• Are the evaluators unassociated with training programs?

• Are the evaluators unfamiliar/unrelated to candidates?

• Are the orals taped to document comments, if necessary?

7. If Essay Questions are to be used:

• Are they necessary?

• Do they provide additional information not available from a multiple-choice format?

• Are there detailed criteria for evaluating and assigning points?

• Are at least two independent evaluations made?

• Are essays turned in anonymously (ID number used but no name!)?

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8. If a Practical Examination is to be included:

• Is the behavior being measured something that could not be tested for by use of a

written test?

• Are the evaluators trained thoroughly prior to the examinations?

• Are detailed criteria established for evaluating the performance and awarding points?

• Are there two independent evaluations made for each candidate?

• Has the candidate's anonymity been maintained?

9. Are candidates adequately informed prior to the examination as to what will be expected of

them (candidate brochure)?

10. Are candidates informed of the scoring procedures which will be used?

11. Are passing scores determined logically (avoid using a non-referenced approach)?

12. Are individual items representative of what a person needs to know to be a minimally

competent licensee?

13. Are the items reflective of the goal to protect the health, safety, and welfare of the public?

14. Do the items include all levels of the taxonomy and not just recall of facts?

15. Is the examination reflective of the Board’s laws and rules?

16. Does the test as a whole measure what it was intended to measure (content validity)?

17. Does the test as a whole adequately sample the knowledge, skills and abilities essential for a

minimally competent licensee?

18. Is an item bank developed?

19. If an item bank exists, has it been reviewed and updated within the last year?

20. Has the examination been revised since the last administration?

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Test Construction Yes/No Questions

1. Are the first few items relatively easy to encourage the candidate’s confidence?

2. Have a sufficient number of items been developed for each specification (2/4 times the number

of items required for each specification)?

3. Are the items coded as to the specification being tested?

4. Is each item referenced to available published material?

5. Is there an accurate sampling of the minimal knowledge, skills and abilities required for the

profession?

6. Are items relevant to the level and experience of the candidates?

7. Are items realistic and practical?

8. Do items appropriately measure the knowledge, skills and abilities most candidates should be

expected to possess?

9. Is the language appropriate for the educational level of the candidates?

10. Do the items measure “real life” knowledge, skills and abilities and not just academic training?

11. Are test items worded clearly, without ambiguity?

12. Are items capable of standing independent of other items in the examination?

13. Does the item contain the central problem from which a person can form a tentative item?

14. Can the item stand alone?

15. Are any clues to the correct options eliminated from the item?

16. Is the item longer than any given option (usually this should be true)?

17. Have negative questions been used sparingly?

18. Has excess verbiage been eliminated?

19. Are key words in the item underlined and capitalized (NOT, MOST, BEST)?

20. Have specific words (always, all, never) been avoided?

21. Has the exact language of textbooks been avoided?

22. Have trick statements which are mainly true except for an inconspicuous word been avoided?

23. Are double negatives omitted from the item?

24. Have unfamiliar, figurative, literary language or complex sentences been avoided?

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25. In multiple choice items, are all options plausible?

26. Are words which may have different meanings to different persons (some, often) been

eliminated?

27. If there are only two or three plausible options, have ridiculous ones been deleted (if only two

reasonable alternatives exist, don’t try for four)?

28. Are all options about the same length?

29. Are options arranged in a reasonable order?

30. Are patterns of responses avoided?

31. Is there an approximately even distribution of options being correct (if four choices, each should

be correct about 25% of the time)?

32. Are options parallel in form and content?

33. Are options grammatically correct?

34. Have repetitious words been included in the item and not in each option?

35. Are options consistent with the structure of the item (singular v. plural, male v. female)?

36. Have overlapping options been eliminated (A is less than 104; B is less than 110; if B is correct,

so is A)?

37. Is there only one correct option?

38. Has the option all of the above been used sparingly (if used ,it should not be correct all of the

time)?

39. If none of the above is used, is it the correct option at least some of the time?

40. If true-false is included, is there really only one correct option?

41. Has proofreading eliminated grammatical, punctuation and typographical errors?

42. Has the Board reviewed and approved all of the test items?

43. Have rare, exotic, or textbook bases been avoided unless essential to the examination?

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Test Administration Yes/No Questions

1. Has a candidate brochure, which elaborates upon all components of the examination and the

procedures employed been developed?

2. Are admission cards/letters/notices sent to the candidates in sufficient time prior to the

administration?

3. Are rosters of candidates scheduled for each site prepared?

4. Are candidates required to bring proof of identity or other admission requirements, and have

the candidates been informed of such requirements?

5. Have emergency procedures been developed and communicated to all testing personnel?

6. Have supplies needed for the administration been prepared and delivered to the site(s)?

7. Have seating cards/labels been prepared and placed on the tables prior to the administration (if

appropriate)?

8. Have procedures been developed and communicated to all testing personnel regarding

procedures to follow for handling problems at the test sites (late candidates, test booklet

misprinting, cheating)?

9. Has an appropriate site been selected and does it include the following?

• Adequate lighting/heating/cooling

• Adequate writing surfaces/seating

• Adequate restroom facilities

• Concession area/lobby

• Adequate parking for staff and candidates

• Assurance from site staff of no interference unless in an emergency

• Handicapped accommodations

• Freedom from outside noise

• Clock in the room which is visible to candidates

10. Is the room large enough to handle all candidates without crowding?

11. When possible, are sites selected based on candidates’ geographical locations?

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12. Is there a sufficient number of monitors given the number of candidates (i.e.: one monitor for

every 30-35 candidates)?

13. Do monitors thoroughly understand their responsibilities?

14. Have detailed instructions for examination procedures and candidate directions been

developed?

15. Are both the printed and verbal directions clear, concise, and specific?

16. Are instructions appropriate for the type of candidate being tested?

17. Are directions standard for each administration?

18. If needed, have sample items/answer sheets been provided to assist candidates in

understanding what is expected of them?

19. Is there sufficient time available for candidates to complete the examination without being

under a lot of pressure?

20. Are examination booklets and answer sheets distributed to candidates in a secure manner?

21. Are tests kept secure before, during, and after the examination?

22. Are the number of exams/answer sheets verified before and after the administration?

23. During the administration, is a seating chart prepared showing attendees and absentees?

24. Do administrators document any unusual events which occurred during the administration?

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Post-Test Analysis Yes/No Questions

1. Was an item analysis performed?

2. Are the incorrect foils being chosen equally (that is, at least some percentage of candidates are

selecting each foil)?

3. Is the item difficulty at a reasonable level (neither too easy nor too difficult)?

4. If the difficulty is either very high or very low, is the item still important to retain?

5. Are problems, such as miss-keyed answers, corrected prior to the final scoring?

6. Is the result of the item analysis used to improve the overall quality of the examination?

7. Are item analysis results maintained for future references?

8. Have “questionable” items been removed or revised prior to the next administration?

9. If items have been eliminated, have all examinations been re-scored?

10. Have letters explaining deficiencies been sent out to failing candidates?

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Glossary of General Terminology Used in Professional and Occupational Regulation

This document provides definitions for words and phrases commonly used in the field of professional

and occupational regulation. By design it is limited in scope to broad definitions, and aims to assist

meaningful conversations between international regulators. This project was initiated by the

International Relations Committee of the Council on Licensure, Enforcement and Regulation (CLEAR),

whose members include regulators from the United States, Canada, Mexico, and the United Kingdom.

Additional resources and further information about CLEAR can be located at http://www.clearhq.org/

Accreditation

A formal process by which an authorized body assesses and recognizes an organization, a program, a group, or an individual as complying with requirements, such as standards or criteria.1

Adjudication

A judgment or legal process by a court or authorized body, based on evidence presented that decides a controversy. It also relates to the legal process by which a court or authorized body determines an issue or resolves a dispute.

Administrative agency

A government entity or an entity created by statute that administers a legal framework which governs the implementation and delivery of a public program.

Administrative code

All of the rules and regulations made by administrative agencies of the jurisdiction, brought together in one unit.

Administrative law

The statutes, rules, regulations, orders and decisions that determine how regulatory bodies operate procedurally and the scope of their substantive authority.

Administrative Law Judge (also Administrative Law Counsel/Hearing Panel/Tribunal)

The individual(s) delegated the authority to make a final decision regarding administrative proceedings.

Administrative Procedures Acts (APA)

A body of law that places restrictions on the activities of administrative agencies as well as codifies procedures to be used during the investigation and hearing processes.

Administrative rule or regulation

A prescriptive statement issued by an administrative agency, or a specific body within that agency, that sets standards and directs conduct, generally with the force of law.

1 Joint Commission on Accreditation of Healthcare Organizations (JCAHO) Lexicon, 1999

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http://www.clearhq.org/

Advocate (see Prosecutor)

Allegation/Complaint

The assertion, claim or declaration that an act, event or result has or has not occurred.

Annotated laws and code

All of the laws brought together in one unit, with comments and explanatory notes added to each statutory section.

Appeal

To request a review of the order or decision of a lower court or administrative agency.

Applicant (see also Candidate)

A person applying for licensing/ registration/certification and the right to practice a specific profession or occupation.

Articleship (see Internship)

Board (see Regulatory board)

Bylaws (see Rule)

Candidate

An applicant for licensure, certification or registration, or the person taking an examination.

Certificant (also Licensee and Member)

A person who has been awarded certification and the right to practice a specific profession.

Certification

The procedure and action by which a duly authorized body evaluates and recognizes (certifies) an individual, institution, or educational program as meeting predetermined requirements, such as standards.2

Certification body

The body or agency awarding certification.

College (see Regulatory Board)

Competence

Demonstrated ability to apply knowledge or skills, and where relevant, demonstrated personal attributes as defined in the certification requirements.3

Complaint (see Allegation)

Compliance

The state of conforming to the guidelines on which accreditation was based.

2 Joint Commission on Accreditation of Healthcare Organizations (JCAHO) Lexicon, 1999 3 International Organization for Standardization (ISO)/ International Electrotechnical Commission (IEC) 17024.

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Conditional registration (see Probation/restriction)

Conditions and limitations (see Summary suspension)

Conditions of practice (see Probation/restriction)

Conflict of interests

A situation in which someone in a position of trust, such as an employee, has competing professional or personal interests. Such competing interests can make it difficult to fulfill his or her duties impartially.

Consent order

A formal agreement between parties, made under the sanction of the court or regulatory body, that some action (such as ceasing an activity, correcting a practice, or paying a fine) will be taken to resolve a complaint.

Consumer member (also, Lay member, Public appointee, or Public member)

A member of the public on a regulatory body who represents the interests of those who are actual or possible purchasers, lessees, or recipients of consumer goods, services, realty, credit. An individual who may seek assistance or benefit from the profession being regulated.

Continuing competence

A periodic demonstration using portfolios, examinations, products, or other similar measures that a licensee, registrant or certificant has remained competent.

Continuing education

Educational and other learning opportunities beyond the formal education required for initial entry into a profession, to assist practitioners to maintain or increase competence, to become aware of new developments, and to provide responsible, quality services.

Credentialing

The voluntary or required process of assessing and validating the qualifications of a practitioner to provide services.4 It equally applies to programs, facilities or products that have met established standards. Also, the administrative process of issuing specified credentials for purposes of authorizing practice of a profession.

Defense attorney/Defense lawyer/ Defense solicitor or Defense counsel

The individual who represents the respondent (usually the registrant, licensee or certificant facing disciplinary action) in a contested matter.

Disciplinary proceedings

The legal process through which the regulatory body and the respondent present evidence and legal arguments to a panel of adjudicators so that the panel can issue a ruling and/or judgment with respect to the issues submitted before it.

4 Joint Commission on Accreditation of Healthcare Organizations (JCAHO) Lexicon, 1999

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Discovery/disclosure

The disclosure of information obtained in an investigation to the licensee, to assist the defense’s preparation for a contested case.

Due process (also Principles of natural justice, Duty of fairness, Fundamental justice)

The rules and principles established through the legal system to enforce and protect the rights of the individual.

Duty of fairness (see Due process)

Endorsement/Mutual Recognition

The recognition by a jurisdiction of an individual’s license from another jurisdiction, when the qualifications and standards required by the original licensing jurisdiction are equivalent to or higher than those of the new jurisdiction. The licensee is relieved of the full burden of obtaining a license in the new jurisdiction.

Evaluation

Assessment of an individual’s fulfillment of minimum requirements for certification, licensure or registration.

Evidence

Information that may be used in a proceeding to establish or disprove any contested factual matter.

Felony

A crime of a grave or more serious nature than those designated as misdemeanors. Felonies are usually punishable by imprisonment or fines.

Fitness to Practice Proceedings

Proceedings to determine if a certificant/member/licensee/registrant is incapacitated, i.e. suffering from a physical or mental condition or disorder such that the member is unfit to continue to carry out his or her professional responsibilities

Fraudulent credentials

Documents that were not issued by a legitimate or official source or were altered.

Fundamental justice (see Due process)

Hearing

A legal proceeding in which the parties to a dispute present evidence and make legal submissions to the adjudicator(s) so that they can make findings of fact and issue a judgment with respect to the issues submitted for determination.

Hearing panel (see Administrative Law Judge)

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Incompetence

A lack of knowledge, skill or judgment or disregard for the welfare of clients or other individuals of a nature or extent that demonstrates that the member is unfit to continue to carry out his or her professional responsibilities without corrective action.

Indemnification

The act of securing a party who acts for the benefit or at the request of another party against future hurt, loss, or damage; the second party promises to compensate the first in such an event.

Inquiry (see Investigation)

Intake

The point at which a complaint enters a formal process to resolve a matter or investigate a certificant/licensee/ registrant or member.

Interim certificate/Interim license

Certificate or license for an initial period of time pending completion of additional requirement e.g. successfully writing an examination. Professional practice under an interim certificate/license may be subject to conditions.

Interim suspension/terms

Suspension of a certificant/member/registrant pending outcome of a disciplinary or fitness to practice proceeding. Interim suspensions are made when there is a serious concern of client safety and risk of harm.

Internship (also Articleship, Practicum)

Supervised practical experience in preparation for a profession or occupation.

Interrogation

The questioning of an individual believed to possess information or knowledge of interest in an investigation, but who is reluctant to cooperate.

Interview

The questioning of an individual believed to possess information or knowledge of interest in an investigation.

Investigation (also Inquiry)

A thorough and systematic examination of a matter or issue in order to determine what occurred.

Jurisdiction

The legal right by which an adjudicative body exercises its authority to receive evidence, apply the law, control its processes, make decisions and declare judgments. The geographic area covered by this authority.

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Law

The rules, standards and principles enacted by a political authority and interpreted by the courts which guide a defined jurisdiction.

Lay member (see Consumer member)

Legislative oversight

The periodic review of governmental agencies by a legislative committee or a division in charge of the agency.

License/Registration

The recognition of competence to practice a given occupation or profession conveyed to an individual or entity by a regulatory body. Individuals must complete various requirements prior to registration and becoming eligible to receive a license and are held accountable for practicing in accordance with established standards of safety and effectiveness.

Licensee (see Certificant)

Licensing of establishments/organizations

The recognition by a regulatory body for an entity to operate an establishment by conforming to specified standards. The entity in charge of the establishment assumes responsibility for all who are employed there.

Member (see Certificant)

Methods of resolution

The proceedings or avenues available to a regulatory body in an attempt to resolve a disputed matter. (Examples include: Consent Order, Voluntary Surrender, Settlement or Negotiated Agreement, Administrative Hearing).

Misdemeanor

Offenses of lesser severity than a felony.

Mobility

Movement of workers within and between countries.

Monitoring compliance

Oversight carried out by accreditation bodies in order to ensure continuing compliance with accreditation standards.

Mutual recognition (see Endorsement)

Notice to attend and produce records (see Subpoena)

Out of compliance

Failure of an accredited organization to meet agreed accreditation standards.

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Petition

A formal request for action from an individual, group or regulatory body.

Practicum (see Internship)

Practitioner

A person who practices a specific occupation or profession.

Presenting officer (see Prosecutor)

Principles of natural justice (see Due process)

Probable cause/grounds (also Reasonable grounds, Reasonable and probable grounds and Reasonable suspicion)

Reasonable grounds for a belief in the existence of more evidence for, rather than against, the facts asserted in a complaint proceeding.

Probation/Restriction (also Conditional registration, Conditions of practice, and Terms, conditions or limitations attached to a certificate or registration or practice)

An order that allows an individual to begin or continue to practice subject to certain conditions or stipulations.

Proclaim (see Promulgate)

Professional misconduct (see Violation)

Promulgate (also Proclaim)

To issue and publicize the terms of a law; used especially with reference to rules and regulations. To put a law into effect by formal declaration.

Prosecutor (also Advocate, Solicitor, Counsel for the regulator, Presenting officer)

The attorney/counsel representing the government or regulatory body in a contested matter.

Public appointee/member (see Consumer member)

Public comment

Comments concerning an issue that are gathered by holding hearings and/or inviting written public response.

Quasi-judicial

"Like a court"; the kind of activity in which a regulatory body acts like a court, making judgments on a contested matter and issuing decisions that affect the rights and obligations of the parties.

Quorum

The number of members of a body that must be present in order to conduct official business.

Reasonable grounds/Reasonable and probable grounds/Reasonable suspicion (see Probable cause/grounds)

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Recertification (or Revalidation)

The requirement for periodic re-evaluation or reporting of activities designed to provide assurance that the knowledge and skills of the practitioner are current. Generally more stringent than renewal requirements.

Reciprocity

An agreement between jurisdictions allowing practitioners from either jurisdiction to be recognized by the other without having to demonstrate any degree of competence. Licensure may or may not be required by the other jurisdiction.

Register

An official list of licensees/members/ registrants maintained by the regulatory body. Registers contain specific categories of information about licensees/members/ registrants.

Registrant

A person or entity that has been placed on a register and is accountable for meeting registration standards.

Registration (see License)

Regulation (see Rule)

Regulatory board/college

A governmental or publicly-mandated body that has the authority to make and carry out statutory rules.

Renewal

Requirement for periodic contact between licensees/registrants and the regulatory body to maintain the license or certification. Usually requires updating contact information and payment of a fee and may include demonstration of continuing competence.

Reprimand

To reprove severely or to censure formally.

Restitution

The act of making good, or of giving the equivalent for any loss, damage, or injury.

Restriction (see Stipulation)

Revocation

Removing the registration or license; to prohibit the practice of a profession or use of a designation.

Rule (also Regulation/Bylaws)

A statement that defines how a law will be implemented; it has the force of law. It is written by an administrative agency and adopted in accordance with the prescribed process.

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Sanction

A penalty imposed in a disciplinary process.

Solicitor (see Defense attorney, or Prosecutor)

Standard of proof

The degree of evidence (for example preponderance of evidence, clear and convincing, balance of probabilities) required to demonstrate that a specific act occurred.

Statute

A law that governs conduct within its scope. A bill passed by the legislature becomes a statute.

Statutory authority

The boundaries of a regulatory body’s lawful responsibility as defined by the statute that created it.

Statutory requirements

Requirements of or related to statutes.

Stipulation (also Restriction)

A condition, requirement, or item of an agreement.

Subpoena (also Summons, Notice to attend and produce records, Witness summons)

Literally, "under penalty." It is a legally enforceable writ commanding the appearance of a witness or production of documents at a judicial, quasi-judicial or administrative proceeding; the witness may be subjected to penalties if he/she fails to attend or to produce documents, if so directed.

Summary action

A sanction taken by a jurisdiction based on the outcome of another jurisdiction’s disciplinary proceedings.

Summary suspension (see also Interim suspension/terms)

An emergency action by a regulatory body to immediately and temporarily revoke the right to practice prior to the completion of a hearing. Most jurisdictions require the expeditious commencement of a hearing.

Summons (see Subpoena)

Sunrise

A process by which an occupation or profession wishing to receive certification or licensure must propose the components of the legislation, along with cost and benefit estimates of the proposed regulation. The profession must then convince legislators that consumers will be unduly harmed if the proposed legislation is not adopted.

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Sunset

Term commonly used in the United States to denote laws requiring the legislature, after a periodic review, to re-authorize a board's existence; otherwise, it terminates (hence, the sun sets).

Suspension

A temporary stop or delay, an interruption or cessation of an individual’s ability to practice that is imposed by the regulator.

Telepractice

A technique whereby services are provided via electronic means.

Terms, conditions, or limitations attached to a certificate, or registration or practice (see Probation/restriction)

Tribunal (see Administrative Law Judge/Administrative Law Counsel)

Unfair or deceptive practice

Any practice used by merchants or trades people that misleads or cheats consumers.

Violation (also Professional misconduct)

To break a law, rule or regulation intentionally or unintentionally.

Witness

An individual who provides information regarding a specific situation that is being investigated or adjudicated.

Witness summons (see Subpoena)

Work product (of attorneys)

A legal term relating to the information that is provided by an attorney in the course of the attorney-client relationship. This information is usually privileged and protected against discovery in a contested case.

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