112 [81 O p. Att’y LICENSES H EA LTH O CCUPATIONS

) S TATUTORY C ONSTRUCTION

) C ERTIFICATION P ROCEDURE FOR E MERGENCY M EDICAL S ERVIC ES P ROVID ERS IS G ENERALLY T ANTAMOU NT TO L ICENSING R EGIME
June 12, 1996

Rober t R. Bass , M. D., FACEP Executiv e Director Maryland Inst itut

e for Emergency Medica l S

ervi ce s S ys te ms You have request ed our opini on whether the term “li cense,” as used in propose d legis lati on to authorize andregulat e the practi ce of emergency me dical ser vices pr oviders , would be equi valent to the cur ren t term “ce rtify.” Our opin ion is as foll ows: The current regulatory regi me for emergency me dical se rvices prov iders, alth oug h usin g t he term “certif y ,” is gener ally tantamount to a lice nsing re gime. Accordingly, with one exception, the use o f the term “licen se” in new legislatio n w ould not si gnify any s ubstant ive change. The one excepti on is that st atutor y “lic en sure” of Emergency Medical Technicians-Ambulance, Emergency Medical Technici ans-Basi c, and First Responders would cont ain a prohibiti on o n unauthori zed pra ctice not fou nd i n cu rren t law

.

I Background There are five catego ries of eme rg ency medical ser vices providers within t

he regulatory pur

view of the Maryl and Inst itut e of Emergency Medical Servi ces Syste ms (“MIEM SS”) and the Board of Phys ician Qu ality Assuran ce (the “B oard”):Gen. 112] 113

1 EMT-As and EMT-Bs are essentially the same level. EMT-B is the national

standar d, established by the Nationa l Hi ghway Saf

ety Administration, for the basic level of emergency medica l servi ces. How ever , EMT-B does have a somewhat more expansive scope of practice. An EMT-B mayassist in administ

ering me dication

and oper ate anAutomatic External Defibrillator, a shocking device used

in the event of a cardiac incident. EMT-B has been adopted by Maryland with some modifications and is currently in the pilot phase. It will eventually replace the EMT-A category. 1. FirstResponders, who are regulatedsolely by MIEMSS; 2. Emergency Med ical Technicians

)Ambulance ( “EMTAs”), who are r egul ated sol ely b y MIEMSS; 3. Emergency M edica l Tec hnicia ns )Basic (“E MT -Bs”), who are a lso regul ated

sol ely b y MIEMSS; 1 4. Ca rdiac Rescue Tech nicians (“CRTs” ), who are regu late d by the Board i n conjunct ion with MIEMSS; and 5. Emergency Med ical Technicians

)Par amedi cs ( “EMTPs” or paramedics ”), who are a lso reg ulated by th e Bo ard in conjun ction wit h M IEM SS

. These various titles r epresent a progres sionin knowledge andskills : from First

Responder, which i s a program designed for l aw enfo rcem ent, fir e department, and oth er pu blic safe ty pers onn el, who, with li mited equipm ent, may be called on t o provide initi al assess ment a nd in tervention; t hrough EMT-P, which involves the delegat ed practi ce of medici ne, i ncluding inva sive procedures like end otra che al int uba tion and card iac d efib rillatio n. The divis ion of t

he authority to r egulat e emergency medical servi ces providers p arallels a traditional division of the pro viders into two grou ps, B asic L ife Su ppo rt and A dvan ced L ife Su ppo rt. MIEMSS alon e h as re gul ated Ba sic L ife S upp ort p erso nne l. See §13-1D-10(5) of

the Educati on Articl e, Maryland Code (authorizing the Executive Dir ector of MIEM SS to “[c] oordinat e the training of all perso nnel in t he Emergency Medical Servi ces Syste m and develop the neces sary st anda rds f or their certificat ion”). Because Advance Life Support

involves acti viti es that

fallwithin t

he pract ice of medicine, the Board has regulated these providers.114 [81 O p. Att’y The Board and M IE MSS are cont emplating l egisl ation t hat wo uld transfe r the au thority to regu late EM T-P s and CR Ts to MIEMSS, thereby co nsolidating the reg ulation of e mer gency medical servic es pro viders in on e State agency. Suchdepartmenta l legis lati on was intr oduced as House Bill1052 in the 1996 l egisl ative sessi on, but the bi ll was wit hdrawn prior

to it s heari ng. Your questi on is whether

the pro pose d legisla tion, w hich w e sha ll as sume to be subs tantive ly the sa me as H ouse Bill 10 52, w ould bring about a cha nge in the stat

us of the se provi ders i f the l egisl ation were t o authori ze M IEM SS to “l i ce ns e” t he m, i ns t ea d o f “ ce rti fy i ng ” t he m, as u nde r the cur ren t pra ctice

.

II Th e C ha ra ct er i st i cs of a “ Li ce ns i ng ” R eg ul at or y R eg i me “Hi st or i ca l l y, t he re ha s b ee n n o c on si st en t us ag e o f t he t erms lice nsure, certi fication or re gistration in the M arylan d C ode o r in ca se law genera lly. ” Letter from Assist ant Attor

ney General Kathr

yn M. Row e to Sena tor Barbara A. H offma n (M arch 7, 198 9). Attempting to endthis potenti al sour ce of confusi on, the Department of Legislative Ref

erence has sought in recent years to est ablish co nsiste nt usage. For

example, a model dr afting guide fr om 1988 stat es that

the te rm “licens e” is “t he only term to be used to den ote th e privile ge o r righ t to p racti ce th at a S tate b oar d iss ues .” Department of Le gisla tive R efer enc e, Model Guide for Drafting GovernmentalUnits and Lic ensing Provi sions 14 (Staff D raft 1988). Likewise, the GeneralRev isor’s N ote to the Busines s Occupations Articl e, writt en in 1989, uses the term “li cense” t o mean “an authori zati on to practice a par ticul ar occupat ion that a person who is not lice nsed in that

occupati on may not practi ce.” Chapte r 3 of the Laws of Maryland 1989 at 833. An elaborationof thi s meaning of “l icensur e” was setout in an August 12, 1985 advice l ette r written by Assis tant Attorney Genera l Rob ert Zarnoch . Mr. Zarnoch observe d that “ a true l icensing sc he me will ord inarily re gulate som eone ’s right to practic e a ce rtain business or profe ssion, define w hat consti tutes such practice, establishan agen cy to m onitor it and p rovid e deta iled an d spe cific gro und s for acq uisitio n an d lo ss o f suc h a lic ens e.”Gen. 112] 115 A more recentadvice l ette r summarized the key charact eris tics of a lice nsing sche me as follo ws:

(1) deline ationof the qual ifi cati ons for entering the prof

ession; (2) p rovisi on for rev iew o f th e applic ant’s qualif

icat ions by a St ate agency; (3) pr ohibit ion against those w ithout the speci fic cr edenti al practic ing th e profe ssion; (4) identi ficat ion of the scop e o f practi ce of the profess ion; [ and] (5) establ ishm ent of disci plinar y standar ds for tho se w ho p ractic e t he profess ion. Advice letter from Ass istant A ttorney Ge neral J ack S chw artz to Sen ator Pau la C . Ho lling er (Ja nua ry 2 3, 19 96)

. By contras t, t

he term “certif

icat ion” has come to be used t o deno te a less er degree of regul a tion, lacki ng some of the key charact eris tics of li censing. “[T]he t erms ‘cert ifi cati on’ and ‘certifi ed’ are us ed to indicate an off icia l recognition of

a person as a qualif ied prac titioner

and an accompanying grant of the exclusi ve privi lege or rig ht to m ake certa in re pre sen tatio ns.” Gener al Revisor’ s Note to t

he Business Regul ation Article

. In a recent

case, Reisc h v. Sta te , 107 Md. App. 464, 668 A.2d 970 (1995), the C ourt of Sp ecial A ppea ls likewis e drew a distincti on between a certif

icat e in le ad abatement and a lice nse iss ued to a profe ssiona l, such as a p lum ber, ele ctrician, o r archite ct, wh o is requir ed to meetcertain st andards of competence or exp erience as a prereq uisite to engagi ng in that profess ion. 107 M d. at 473-74. Pursuant to regu lation, lea d pain t abate me nt w orke rs are re quired to take a course approved by the Maryland Depart ment of the Env ironm ent, cons isting o f at least six hours, once every five years. The instruct or iss ues the ce rti ficat e afte r the completion of t he course. A list

of stude nts complet ing the c ourse i s pr ovid ed to the Department of the Environment, which thenmakes the inf ormation116 [81 O p. Att’y availa ble to the pub lic. There are no provisions for d isciplinary standards, decert ifi cati on, or any r eview of appl icant s by the agenc y. Nevertheless, desp ite this growing bod y of m aterial se eking to de note substantive diff

erences through use of the terms “ lice nse” an d “ce rtifica tion ,” ne it

he r o f t he se te rms ha s i ntri ns ic si gni fi ca nc e. As Ms. Rowe pointed out i n her 1989 advic e lett er to Senator Hoffman, “t he d egree of r egulat ion is determined by t he provis ions of t

he stat ute, not by the t erminology chos en.” For example, i n that l ette r Ms. Rowe concluded that , al though the Maryl and Youth Camp A ct used the term “certifica tion,” in substanc e it was a l icensing stat ute. Similar ly, the 1996 advice l ette r to Senat or Hollinger dete rmined that, althou gh th e regu lato ry reg ime for resp iratory care practitioners is labele d “ce rtification,” it has all th e esse ntial e lem ents of a “lic ensing” s tatut e.

III

The Characteristi cs of the “Cert ifi cation” Regulatory Regime for Em ergency Medical Servic es Providers In this part of

th e o pi ni on, we shallassess whether the current regulatory regime for

“cert ifi ed” emergency medical s ervice s providers is subs tantive ly similar to a l icensing regime. I f so, then legis lati on to “li cense” these provi ders would not effect a sub stantiv e change. A. EMT-Ps and

CRTs 1. Qualifications. COMAR 10.32.08. 03 deline at es the qu alification s for all applic ants to EMT-P traini ng progr ams ; COM AR 10.32.08.05 deline ates the qual ifi cati ons for EMT-P certi fication. Si milarly, COMAR 10.32.06. 02 deline ates t he qualific ations for ap plican ts to CRT training progr ams; COM AR 10.32 .06 .05 del ineat es the qua lifica tion s for CR T c ertific ation

.Gen. 112] 117

2 The term

“practice medicine” includes“treating ... any physical

... ailment ... [b]y appliance, ... drug, ... or treatment.” HO §14-101(k)(2). 2. Review o f applications. COMAR 10. 32. 08. 05( C) provides that t he Board is t o act upon th e EM T-P applic ant’s su bm ission a nd ap prov e that a pplica tion if the certi fication requ irem ents ha ve be en met . C OMAR 10.3 2.06 .05( C) p rov ides the s am e fo r CR Ts. 3. Unauthorized practi ce. Under §§1 4-30 1 and 14-6 01 o f the H ealt h Occupat ions (“ HO”) Articl e, no one may practi ce med icine w it hout a li cense is sued by the Board, except as otherwise provided f or in t he Maryland Medical Practi ce Ac t. Essen tially , H O § §14-303 and 14-305 pr ovide excepti ons for

CRTs and

EMT-Ps. Th ey ma y perfor m limited activit ies, subje ct to the autho rity of the Board, that would otherwise be consider ed the pra ctic e of medicine and there fore coul d only be perfor med by a lic ensed physici an. 2 In other words, a nonphysi cian who is not

certi fied as requir ed by HO § §14-303 and 14-305 and who does what a CRT or EM T-P does would be practi cing medici ne without a l icense. 4. Scope of practi ce. The sco pe of

pra ct ic e fo r bo th CRTs and EMT-Ps is del imited in both the MedicalPracti ce Act an d i mpl eme nt in g r eg ul at io ns . H O §14-303 provides th at , s ubj ect to th e auth or it

y of th e Board , aCRT may perfor

m all phases of cardi opulmonary resus ci tati on, adm iniste r drugs or intrav enou s soluti ons as direct ed by a li censed physi cian, and obtain bl ood for l aborator y analysi s. HO §14-305 prov ides tha t, subject to the a uthori ty of t

he Board, an EMT-P may per fo rm a ll phases of card iopu lmo nary resusc itation, all phases of pr ehospit al life supp ort, administ erdrugs and i ntravenous solut ions as directe d by a lice n sed physician, and obtain blood for laborat ory analysis. Additional ly, MIEM SS and the Board have issued e xtensi ve medical proto cols that all CRT s and E MT -Ps are requ ired to foll ow. Acting beyond this authori zed scope of pr acti ce is a gr ound for di scipl ine. CO M AR 10.3 2.08 .12 a nd 1 0.31 .06.0 2.118 [81 O p. Att’y 5. Disciplinary standards. HO §14-303(c) provides for the discipline of CRTs. HO §14- 305(e) provides for the discipline of EMT -Ps. Additionally, the grounds for disciplinary action and the proced ures to be follow ed are setout in s ubstant ial de tailin the regul ation s for eac h pr ogr am . B. Fir st Res pond er s, EMT-As

, a nd EMT-

Bs 1. Qualifications. MIEMSS has speci fied det aile d qualif icat ions for

certi fication in the EMT-A, EM T-B, and Fir st Responder programs in t esti ng and certi ficat ion pol icies for e ach gro up o f pro vid ers. 2. Review o f applications. The EMT -A, EMT-B, and First Responder tes ting an d certificatio n policie s prov ide tha t applic ants m ust sub mit v erificatio n of their successf ul completion of

a MIEM SS-approvedcourse pr ior to being test ed for cer

tif icat ion. MIEMSS adm inis ters the te st and issues the certif

icat ion upon a det erminati on that t he appli cant has passed. 3. Unauthorized practi ce. An EMT-A i s de fi nedatCO M AR 10.32.08.01B(5) as “an indivi dual who has been test ed and cert ifi ed by MIEM SS to provide basic life suppo rt.” As we und erstan d it, basic life sup port

) encompassing such acti ons as c ardiopulm onary resu scitation, airw a y ma nage me nt, and controlof bleeding )has not beenconsider ed by the Board to be the pract ice of medic ine. Therefore , the lack of certi fication has no effect on anyone’s prerogative to perform these actions. 4. Scope of practi ce. The EM T-A, EM T-B, and First Res pon der sk ills are set o ut in course object ives , progr am standards, and protocol s iss ued by MIEMSS. The MIEMSS t esti ng and cert ifi cati on polici es for e ach of those programs state that EMT-A s, EMT -Bs, and First Respo nders may only practi ce th e ski ll s taught in a MIEMSSapprovedcourse. The polici es furt her provi de that

the perf ormanceGen. 112] 119

3 We note that, as a matter of practice, the Board has histor

ically re serve d the term “license” for the physicians that it regulates. Other health professionals regulated

by the Board, such as acupuncturists, have been “certified” or “registered.” In 1994 a separate Acupunct ure Board was created

to “license” acu

puncturi sts who we

re prev iously “registered” by the Boa

rd. HO Tit

le 1A, the Marylan d Acupunc

ture Act

. There was no substant ive change between the registration regime a nd the licensing regime. of any medical act

not speci fied by MIEMSS is grounds for decert ifi cati on. 5. Disciplinary standards. T he te st ing and c ertif

ic at ionpol ic ie s f

or EMT-As , EMT -Bs , and First Responde rs provi de for the discipl ine of each of those levels of provi ders and se t out sp ecific grounds for decert ifi cati on as well as t he procedure s to be f

ollowed. C. Conclusion In our vi ew, the cur

rent“cert ifi cati on” regime for CRTs and EMT-Ps contai ns every es sen tial c haract eris tic of a “li censing” re gi me an d s erve s t

he same functi on: to pr ovide minimum standards forthe training and ap prov al o f thes e provider s and to pr otect the pub lic from unquali fiedemergency medical s ervice s provider s. The proposedlegis lati on also cont ains t he same essenti al charact eris tics of a lic ensing r egime. If

, as a r esult

of legi slat ion, t

hes e p roviders hold a “li cense,” inst ead of a cer tif icat e, they will have no great er (orlesser) a utho rity to function than t hey do today. The boundaries of th ei r a ct iv itie s, as we ll as the degree of State autho rity, are determ ined by the provi sions of the st atute and implementing regulations a nd po licies, not the terminolog y chose n. How ever, given current

draft ing practi ce, “l icensur e” is undoubt edly the bette r term to describe the current status of CRTs and EM T-Ps. 3 The same is largely true of EMT-A s, EMT -Bs, and First Responders, with one not able exception: Unli ke the cur rent sit uation, th ose wit

hout t he requis it e backg round and MIEMSS approval would be prohibi ted, underthe propos ed legi slat ion, f rom120 [81 O p. Att’y

4 Under Hous e Bil l 1052, with some exceptions, unlicensed individuals would have been prohibited from providing “out-of-hospital emergency services.” prov iding s ervice s with in the scope of practice of these provi ders. 4 Thus, under the proposed legi slat ion, “ lice nsure” i s indeed t he bett er term to describe the regulator y r egime for EMT-As, EMT -Bs, and FirstRes pon ders; but in this i nstance “licensure” si gnifies a broadening of the re gul at ory r eg ime fr om tha t unde r c urre ntlaw ) not the t erm itse lf, but the unde rlyi ng substanc e.

IV Conclusion In sum ma ry, it is our o pin i on that t he current

stat utory and regulatory regime for

the authorization and regulation of emergency medical servic es pro viders , althou gh u sing th e term “certify ,” is in all substantive res pects a l icensing regime (exce pt for the omissi on of an unauthorized practice provisi on relating to EMT-A s, EMT -Bs, and First R espo nder s). Ac cord ingly, w ith that o ne excepti on, proposedlegis lati on wou ld effect no substantive change i n the autho rity or regul ation of emergency medical s ervice prov iders if, in accordance with curr ent draf ting pr acti ce, t

he term “license ” were use d. J. Joseph C urran, Jr. AttorneyGeneral Jack Sch wa rtz Chief Counsel Opinions and Advic e

Editor’ s Note: Legislationsimilar to t hat dis cussed i n Par t I ab ove was enacted as Chapter 201 of t he Laws of Maryland 1997.