Oregon Advisory Opinions January 01, 1987: OP 8183

Advisory Opinion Text

No. 8183 January 28, 1987 Mr. John J. Ulwelling Executive Secretary Board of Medical Examiners FIRST QUESTION PRESENTED

May the Nurse Practitioners Advisory Council (council) adopt rules or otherwise set standards regulating the qualifications for applicants for prescription privileges?

ANSWER GIVEN

With the exception of establishing criteria for issuing emergency prescription authority, the answer is no. The council does not have authority to promulgate rules relating to the qualifications of nurse practitioner applicants for prescription privileges. The authority to make rules, except rules concerning emergency prescription rights, is vested in the Board of Nursing (BN).

SECOND QUESTION PRESENTED

May the council refuse to grant prescription privileges pending "corrective legislation?"

ANSWER GIVEN

But for the constitutional problem we discuss in the answer to the ninth question presented, we would answer this question "no." Given the constitutional problems associated with the statutes creating the council, however, we conclude that the council should not grant any more prescription writing privileges.

THIRD QUESTION PRESENTED

Would the Attorney General's office defend members of the coun­cil if they were sued for performing their statutory duties?

ANSWER GIVEN Yes, but see Discussion.

FOURTH QUESTION PRESENTED

May the council adopt subdivisions within the formulary it creates that establish different categories of privileges depending upon the scope of practice of the nurse practitioner?

ANSWER GIVEN

No. Neither the council nor the Board of Medical Examiners (BME) can create such subdivisions within the formulary adopted under ORS 678.385(6). However, ORS 678.375(3) requires the BN to list the drugs that the nurse practitioner may prescribe, within the nurse practitioner's scope of practice.

FIFTH QUESTION PRESENTED

May the council limit the drugs listed in the formulary to specific routes of administration?

ANSWER GIVEN

No. The BN, however, may adopt rules, pursuant to ORS 678.380, limiting or restricting a nurse practitioner's scope of prac­tice and defining the scope of that practice. These rules could limit routes of administration for certain drugs in the formulary.

SIXTH QUESTION PRESENTED

May the BME set standards relating to the qualifications of nurse practitioners applying for prescription privileges?

ANSWER GIVEN

No, except for rules concerning emergency prescription priv­ileges. A person issued a certificate of special competency by the BN under ORS 678.375(1) is entitled to apply for prescription privileges under ORS 678.390(1).

SEVENTH QUESTION PRESENTED How should the formulary prepared by the council be adopted?

ANSWER GIVEN

Given the peculiar provisions of the relevant law, we would advise the BME and the council to specify by interagency agreement a process for "joint" adoption of the formulary by rulemaking pro­cedures. However, the need for this process is mooted given our conclusion concerning the improper delegation of authority to the council and our advice that the council cease granting prescription writing privileges.

EIGHTH QUESTION PRESENTED

What functions do the BME and the council perform in granting or denying prescription privileges?

ANSWER GIVEN

The council has the authority to grant or deny applications for prescription privileges by nurse practitioners. ORS 678.390(1) and (3). The council must decide, however, on the basis of existing BN rules, the council/BME formulary and the BME's rule concerning emergency prescription privileges. If the applicant meets the criteria established in those rules, the privilege must be granted. If the appli­cant fails to meet the criteria of such rules, the privilege must be denied.

NINTH QUESTION PRESENTED

May the legislature create an advisory board with licensing and/or policy development functions?

ANSWER GIVEN

Within constitutional limits, the legislature may create public bodies, specify their functions and give them whatever title the legislature chooses. In creating this council, however, the legislature impermissibly delegated its authority to private bodies. The imper­missible delegation effectively invalidates the statutory scheme for providing nurse practitioner prescription privileges.

INTRODUCTION

This opinion considers a number of questions presented by John J. Ulwelling, Executive Secretary of the Board of Medical Examiners, on behalf of that board. The questions concern the respective duties and responsibilities of the Board of Medical Examiners (BME), the Board of Nursing (BN) and the Nurse Practitioners Advisory Council (council) in administering the law authorizing nurse practitioners to prescribe certain drugs and medicine.

In order fully to answer the questions presented, we have analyzed the composition of the council as provided by ORS 678.385. For reasons that we develop more fully below, we conclude that ORS 678.385 is constitutionally defective. Our analysis leads us to conclude that the council should no longer exercise the regulatory functions which the legislature attempted to delegate to it.

In the course of responding to the opinion request, it became obvious that the statutory scheme is legally deficient in other respects and that it has not been implemented in the manner intended by the legislature. Further, the legislative history of the statutory scheme reveals that creation of the council was a legislative compromise designed to accommodate the needs and concerns of various professional and public interests. Because the constitutional defect can easily be remedied by the legislature, we have answered all of the questions presented, even though some are of little immediate concern in light of our conclusion concerning the constitutionality of ORS 678.385.

Before we address the constitutionality of ORS 678.385 (Part III), we summarize the statutory scheme (Part I) and describe the advisory council'srole (Part II). Then we turn to the other specific questions and for their purposes disregard the constitutional defect.

DISCUSSION

I. The Statutory Scheme

The legislature has enacted statutes regulating the prescription writing privileges of nurse practitioners. This regulatory system involves two state professional licensing agencies (the BME and the BN), and the Advisory Council on Nurse Practitioners' Privileges of Writing Prescriptions. Under this statutory framework, for licensed registered nurses who meet BN rules adopted pursuant to ORS 678.380, the BN issues certificates of special competency to practice as nurse practitioners. ORS 678.375(1). Once issued a certificate, a nurse practitioner may apply to the council for the privilege of prescribing certain drugs and medications. ORS 678.390(l)-(3). The specific drugs that a nurse practitioner may prescribe must be those included within the scope of practice as defined by rules of the BN, subject only to ORS 678.385. ORS 678.375(3).

The responsibilities of the BME complement the duties of the BN. The council advises the BME what drugs and medications are to be included in a formulary to be adopted by the BME. ORS 678.385(5) and (6). The BME adopts the formulary listing the general drugs a nurse practitioner is allowed to prescribe. ORS 678.385(e). The council consists of nine members: three physicians, three nurses, and three pharmacists. One physician and one nurse are designated by the BME and the BN respectively from their board members, and two physicians and two certified nurse practitioners are designated respectively by the Oregon Medical Association and the Oregon Nursing Association. The three pharmacist mem­bers, one of whom must be a member of the State Board of Pharmacy, are designated by that board. ORS 678.385(1). The composition of the council is consistent with the legislative finding expressed in ORS 678.385(1) that the nurse practitioner's scope of practice is a "collaboration" of the professions of nursing and medicine.

Thus, the statutes provide for the following sequence of procedural steps: (1) the council recommends to the BME the list of drugs and medicines to be included in a formulary that may be prescribed by a nurse practitioner; (2) the formulary is adopted as a rule by the BME; (3) the BN identifies specific drugs from the formulary for use by nurse practitioners depending upon the specific category of nurse practitioner practice involved; and (4) the council approves or denies applications by nurse practitioners for prescription priv­ileges.

II. Advisory Council Role in Granting Prescription Privileges We believe that an initial discussion of the ninth question presented will clarify the other eight questions asked and set the stage for resolving the issues posed by the interaction of the BME, BN and the council. All of the questions to some extent are concerned with whether the council is truly "advisory" or whether it has been delegated licensing or other responsibility by the legisla­ture. This question arises because of (1) ORS 678.385, which states that the council shall advise the BME what drugs may be included in the formulary that may be prescribed by a nurse practitioner and that the BME shall adopt the council's recommendations; and (2) ORS 678.390, which states the council shall review and may approve the application of a nurse practitioner who seeks the privilege of writing prescriptions for drugs listed in the formulary.

We conclude that the use of the word "advisory" is a misnomer, because the council clearly has been delegated functions that are more than purely advisory in nature.

ORS 678.385(5) and (6) provide:

"(5) On or before January 1, 1980, the advisory council established under subsection (1) of this section shall advise the Board of Medical Examiners for the State of Oregon of the list of drugs and medicines to be included in the formulary that may be prescribed by a nurse practitioner acting under ORS 678.375. Controlled substances listed in schedules III, III N, IV and V for controlled substances shall be part of the formulary that may be prescribed by a nurse practitioner if recommended by the council unless the council finds that a substance on schedule III, III N, IV or V shall be excluded from the formul­ary. The advisory council may revise its recommendations periodically and submit any revised recommendations to the board and the board shall adopt the revised recommendations.

"(6) Pursuant to ORS 183.310 to 183.550, the board shall adopt the formulary described in subsection (5) of this section and may revise the formulary only upon recommendation of the advisory council" (Emphasis added.) Further, an uncodified section of the law which created ORS 678.385 and 678.390 provides:

"(1) On or before January 1, 1980, the Board of Medical Examiners . . . must adopt the rules for prescription writing by certified nurse practitioners recommended by the advisory council under [ORS 678.385 and 678.390] that are consistent with the formulary . . . and applicable to nurse practitioners approved to prescribe drugs under [ORS 678.390]. These rules take effect January 1, 1980.

"(2) Until January 1, 1980, those nurse practitioners practicing under section 5, chapter 309, Oregon Laws 1977, on June 30, 1979, may continue to practice as stated in that section. Or Laws 1979, ch 785, Sec. 2." (Emphasis added.) Whether or not the initial establishment of the formulary involved the council in an advisory role only, revisions to the formulary may be accomplished "only upon recommendation of the advisory council." Further, if the council recommends revisions, the BME is required ("shall") to adopt them. Although this limited role provided for the BME is contrary to the usual expectation of an agency given rulemaking functions, nothing prevents the legislature from so limiting the board's role.

ORS 678.390 provides in part:

"(1) In addition to the duties described in ORS 678.385, the advisory council shall review and may approve the application of a certified nurse practitioner who seeks the privilege of writing prescriptions for drugs described in the formulary. If the application is denied, the nurse practitioner may appeal the denial as from a final order in a contested case under ORS 183.480 to 183.550.

"(2) The application of the nurse practitioner shall be on a form prescribed by the advisory council and shall be accompanied by a nonrefundable applica­tion fee payable to the Board of Medical Examiners Account. This account is continuously appropriated and shall be used only for the administration and enforcement of ORS 414.325, 453.025, 475.005, 616.855, 678.375, 678.385, 678.390, 689.605, 743.128 and 750.055.

"(3) Upon recommendation of the advisory council, the Board of Medical Examiners for the State of Oregon shall grant the privilege of writing prescrip­tions described in the formulary and the nurse practitioner shall pay an initial nonrefundable prescription certificate registration fee to the Board of Medical Examiners Account.

"(4) A certified nurse practitioner may make application to the advisory council for emergency drug dispensing authority if the certified nurse practi­tioner's practice is located in an area of the state where geographic conditions severely limit the ability of the certified nurse practitioner to meet emergency patient needs. Criteria to be used by the advisory council in reviewing the application shall include but not be limited to the proximity in road miles of the nearest community pharmacy, general road conditions and weather condi­tions. Such emergency dispensing shall be from prepackaged drugs, from the formulary authorized under ORS 678.385, prepared by a licensed pharmacist.

H

"(5) The Board of Medical Examiners for the State of Oregon shall renew the privilege of writing and dispensing drugs for a nurse practitioner who reapplies for the privilege and satisfies the requirements of this section and the advisory council. The nonrefundable renewal fee is payable to the Board of Medical Examiners Account.

"(6) The privilege of writing prescriptions and dispensing drugs may be suspended or revoked by the Board of Medical Examiners for the State of Oregon upon proof that the privilege has been abused. The procedure shall be a contested case under ORS 183.310 to 183.550." (Emphasis added.) Again, under the explicit provisions of this law, the council is required to review applications for nurse practitioners who seek prescription writing privileges and the council "may" approve such applications. The council's approval is also needed by those who reapply for such privileges. Denial by the council is appealable from the council to the Oregon Court of Appeals as a contestedcase. If the council approves an application, the BME shall grant the privilege of writing prescriptions. However, the BME, not the council, is given the power to revoke or suspend a privilege which has been "abused."

This unusual relationship of the council to the BME and the BN is verified by the legislative history leading to the creation of the council. III. Unconstitutional Delegation

The council, a governmental body, is comprised of nine persons. Five members are designated by three state agencies: the Board of Medical Exam­iners, the Board of Nursing, and the Board of Pharmacy, including one board member from each of these boards. ORS 678.385(l)(a), (c) and (e). The other four members are designated by two private professional associations: the Oregon Medical Association and the Oregon Nursing Association. ORS 678.385(1 )(b) and (d). The private groups' right to appoint these public officers constitutes an impermissible delegation of governmental power to private parties, which violates the Oregon Constitution. In discussing the "delegation" problem below, we: (A) identify the Oregon constitutional provisions that are implicated in delegating governmental authority to private parties, (B) examine the court's analysis in delegation cases and (C) demonstrate why the statute is unconstitutional.

A. The Provisions of the Oregon Constitution Governing Delegation of Governmental Power to Private Parties The Oregon courts have looked to three provisions in the Oregon Constitu­tion when reviewing for excessive delegation to nongovernmental bodies. In Van Winkle v. Fred Meyer, Inc., 151 Or 455, 49 P2d 1140 (1935) (Van Winkle), the Oregon Supreme Court held that the legislature had improperly delegated to private interested parties its authority to legislate minimum prices. The statute at issue required the governor to approve a price-setting agreement entered into by a majority of the persons who sold and made a product (unless the governor found the agreement inequitable or against the public interest). Once approved, the minimum prices fixed in the market agreement were to become the law of the state. The court held that the legislation violated three provisions of the Oregon Constitution: (1) Article IV, section 1, vesting exclusively in the legislature the power to make and declare laws, subject only to the initiative and referendum powers; (2) Article III, section 1, separating government into three departments, legislative, executive (including administrative) and judicial; and (3) Article I, section 21, requiring that no law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in the constitution. The text of the constitutional provisions is set out in the margins below. Most of the delegation opinions after Van Winkle have examined the legislature's delegation of its law-making powers and have discussed Van Winkle and the constitutional provisions discussed in that opinion. E.g., Hillman v. North. Wasco Co. PUD, 213 Or 264, 323 P2d 664 (1958) (statutes providing that the national electric code, as approved by the American Stan­dards Association, should be the electrical code of Oregon are unconstitutional as unlawful delegation of legislative power) (overruled on other grounds by Maulding u. Clack Co., 278 Or 359,563 P2d 731 (1977)). The issue here involves the delegation of governmental power other than legislative authority. That also was true in Coruallis Lodge No. 1411 v. OLCC, 67 Or App 15, 677 P2d 76 (1984), in which the Court of Appeals invalidated an administrative rule. The court held the rule to be an "invalid delegation of governmental authority to private individuals because it fails to provide procedural safeguards to protect against the unaccountable exercise of governmental power delegated to" the private individuals. 67 Or App at 22. The Court of Appeals did not state which provision of the Oregon Constitution was violated and merely indicated by footnote that the "[p]etitioners base their constitutional challenge on Article I, section 21, Article III, section 1, and Article IV, section 1, of the Oregon Constitution." Id. at 19 n 2. The provisions cited are those the Supreme Court relied on in Van Winkle, supra, 151 Or at 455.

Because most of Oregon's relevant case law examines delegation of legisla­tive authority, and because the exception, Coruallis Lodge No. 1411 u. OLCC, supra, does not identify its constitutional footing, it is difficult to predict precisely which constitutional provision the courts would look to in scrutinizing ORS 678.385. In light of the earlier cases that look to all three provisions, (Article I, section 21, Article III, section 1, and Article IV, section 1), a court examining this statute would probably do the same. However, one provision, Article I, section 21, is particularly apt. It provides that no law shall "be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution." ORS 678.385(1)'s taking effect depends upon the authority of private organizations, the Oregon Medical Association and the Oregon Nursing Association.

B. The Courts' Analysis in Delegation Cases Review of the relevant cases reveals the policy that limits delegation and the analysis the courts use in examining the issue. Delegation of state power to private parties is prohibited in order to preserve the democratic interest in a responsive and accountable government. See Linde, Without "Due Process", 49 Or L Rev 125, 144 (1970). "Accountability of government is the central principle running through the delegation cases." Corvallis Lodge No. 1411 v. OLCC, supra, 67 Or App at 20. Delegation of the appointment power to private occupational groups prevents the accountability necessary to our democratic process.

Although early delegation cases in this jurisdiction focused on "the need for legislative standards" as a "precondition for the delegation of any governmental function," more "recently, the emphasis of the prohibited delegation doctrine has shifted ... to a requirement that any delegation be accompanied by procedural safeguards to protect against arbitrariness." Corvallis Lodge No. 1411 v. OLCC, supra, 67 Or App at 19-20. Hence, "the important consideration is not whether the statute delegating the power expresses standards, but whether the procedure established for the exercise of the power furnishes adequate safeguards to those who are affected by the administrative action." Warren v. Marion County, et al, 222 Or 307, 314, 353 P2d 257 (1960) (emphasis by the court) (citing 1 K. Davis, Administrative Law Treatise Sec.2.10, 2.15, 7.20 (1958)). See, e.g., Medford Firefighters Assn. v. City of Medford, 40 Or App 519, 527, 595 P2d 1268 (1979) (compulsory arbitration statute does not unconstitutionally delegate legislative power to the arbitrator because the arbitrator has no personal interest in the subject of arbitration and the arbitrator's decision is governed by statutory criteria that adequately safeguard the exercise of the arbitrator's power). See also Corvallis Lodge No. 1411 v. OLCC, supra, 67 Or App at 21 (administrative rule is an invalid delegation of governmental authority to private individuals, class A licensees, giving them the power to decide whether class B licensees can serve liquor to nonmembers and failing to provide procedural safeguards to protect against the class A licensees' unaccountable exercise of governmental power).

The case most important to the analysis here is Megdal v. Board of Dental Examiners, 288 Or 293, 307 n 12, 605 P2d 273 (1980). There the Oregon Supreme Court signaled, in dictum, that a statute conferring on private occupational groups the power to appoint persons to an occupational licensing board is impermissible. The court stated, "[m]any statutes provide that occupa­tional associations may recommend persons to the governor for appointment to an occupational licensing board, but since the governor remains free to make other appointments and therefore politically responsible for them, the statutes escape the charge of delegating governmental power to the occupational groups." (Citing statutes.) The clear inference is that where the governor does not remain free to make other appointments, but in fact the occupational associations appoint the members of a public body, there is impermissible delegation. This conclusion is consistent with our early opinion concluding that "all appointive power is vested in the three departments of government and its various instrumentalities and that this power cannot be delegated to non­governmental partisan bodies or organizations/' 28 Op Atty Gen 69 (1957).

C. The Statute's Flaws

Under the principles laid out above, ORS 678.385 is not defensi­ble. Although we can assume the exercise of good faith by the private organiza­tions, the statute is fatally flawed. ORS 678.385 does not contain any safe­guards to ensure that the appointive power is not exercised in a way that serves the purposes of the occupational group, rather than the public interest. There is no legislative or executive standard for channeling or checking the appointing organizations' discretion. No portion of the state government is accountable forthe appointments to the council. This lack of accountability is impermissible and the statute cannot stand in its current form. IV. Advisory Council Authority to Adopt Standards Notwithstanding our conclusion about the impermissible delegation of authority in ORS 678.385, we answer the other questions as if there were no constitutional issue because of potential future legislative revisions.

One question asked is whether the council has the authority to adopt rules or standards for regulating the qualifications of applicants for prescription privileges. The legislature has not vested the council with any rulemaking authority relating to the qualifications of nurse practitioners. Instead, the power to establish the qualifications for nurse practitioner applicants is vested in the BN.

ORS 678.375(3) states:

"A registered nurse, certified as a nurse practitioner, is authorized to prescribe drugs for the use of and administration to other persons if approval has been given under ORS 678.390. The drugs which the nurse practitioner is authorized to prescribe shall be included within the certified nurse practi­tioner's scope of practice as defined by rules of the board [of Nursing] subject to ORS 678.385."

Under ORS 678.380 and 678.375(3), a person who complies with the rules of the BN is qualified to write prescriptions for drugs listed in the council's formulary adopted by the BME and selected by the BN as applicable to the specific scope of practice for the nurse practitioner. Except for emergency prescription privileges, neither the council nor the BME has the authority to set additional qualifications, beyond those established by the BN.

ORS 678.390(4), quoted above, sets out general criteria for the council to use for determining the appropriateness of passing on an application of a nurse practitioner for emergency drug dispensing authority. That provision explicitly states that the council is not limited to the criteria stated. The criteria nevertheless establish policy and the council does not have express rulemaking authority, nor is there express statutory authority for promulgation by any other agency of administrative rules setting additional standards for emergency drug dispensing authority. This gap in the statutory scheme is ripe for a legislative solution.

V. Advisory Council Authority to Place a Moratorium Upon Granting Pre- scription Privileges

The next question asks, assuming that the council does not have the authority to adopt rules or standards regulating the qualifications of applicants for prescription privileges, may the council establish a moratorium upon granting such prescription privileges pending legislative action at the next regular session of the Legislative Assembly? The correct answer to this ques­tion is no. Because of our conclusion about the delegation issue, however, the council must refrain from granting prescription privileges.

The legislature did not grant to the council authority to suspend the operation of its enabling statutes. Accordingly, the council lacks the power to declare a moratorium.

Nonetheless, because we have concluded that the council is unconstitu­tionally constituted, the council is disabled from granting further prescription privileges.

VI. State Tort Claims Coverage for Advisory Council Members The third question asks whether the State of Oregon, through the office of the Attorney General, would defend the council in the event of litigation, when it is performing duties within the scope of its statutory authority. Ordinarily, we would not hesitate to answer this question in the affirmative. Due to the unusual circumstance that the council has operated under a constitutionally defective statute, however, we must divide the answer to this question into two time periods.

We advise that the council and members of the council are entitled to defense and indemnification under the Tort Claims Act against any claim arising out of the acts of the council or members within the scope of their duties prior to the date of this opinion. However, because this opinion informs the council and its members that the law under which the council operates is invalid, this opinion constitutes notice that any further "official" acts of the council or its members would be in excess of any valid statutory authoriza­tion. Therefore, that action would be outside the council's (and the council members') scope of duty and authority, and no longer could be covered as an "official" act under the Tort Claims Act.

ORS 30.285(1) states:

"The governing body of any public body shall defend, save harmless and indemnify any of its officers, employes and agents, whether elective or appoin­tive, against any tort claim or demand, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of duty." (Emphasis added.) A superficial reading of the statute suggests that an individual who undertakes a governmental activity pursuant to an invalid or void statute could not be covered by the foregoing statutory protection because the statute that defines the individual's "performance of duty," due to a constitutional flaw, is a nullity. Because there is no lawful source of the individual's official prerogatives and no lawful establishment of that person's scope of duty, none of the actions taken by that person fall within a statutorily authorized range of conduct.

Other provisions of the Tort Claims Act, however, address the circum­stances of the council and of its members. ORS 30.265(3) (f) states:

"(3) Every public body and its officers, employes and agents acting within the scope of their employment or duties,. . . are immune from liability for:

"(f) Any claim arising out of an act done or omitted under apparent authority of a law,. . . which is unconstitutional, invalid or inapplicable except to the extent that they would have been liable had the law, . . . been constitutional, valid and applicable, unless such act was done or omitted in bad faith or with malice."

The foregoing statute recognizes that employes and officials of the state should not suffer liability for executing or obeying statutes—in many cases, legislative commands—that ultimately are determined by a court to be uncon­stitutional. See Burke v. Children's Services Division, 288 Or 533, 546-47, 607 P2d 141 (1980) (state agency immune under ORS 30.265(3)(f) from tort action based on the unlawful implementation of policy without observing Admin­istrative Procedures Act rulemaking requirements when agency relied in good faith on "internal management directive" exception to rulemaking require­ment); 42 Op Atty Gen 277, 290-91 n 7 (1982) (boundary commission immune under ORS 30.265(3)(f) from tort claim based on levy of taxes under invalid authority).

We recognize that ORS 30.265(3)(f) speaks only in terms of an immu­nity. It does not expressly address the state's provision of defense and indemni­fication to individuals who take action in reasonable reliance on a statute that ultimately is determined to be invalid. However, our duty in construing statutes is to determine and effectuate the intent of the legislature. Whipple v. Howser, 291 Or 475, 479, 632 P2d 782 (1981); ORS 174.020. It would be inconsistent with the policy of the Tort Claims Act to provide an immunity to individuals who take action in behalf of the public in reliance on statutory authority, and yet at the same time deny those persons the mechanism with which to assert that immunity in court. We therefore advise that the council and members of the council enjoy the defense and indemnification offered by the Tort Claims Act for their actions taken in good faith prior to being notified that the statute under which they have operated is constitutionally defective.

This protection, however, does not extend to any "official" action taken by the council or by its members after they have been made aware of the invalidity of their source of statutory authority. Having been advised by this office that the council has no lawful grant of statutory authority, the council no longer may take action "under apparent authority of a law." ORS 30.265(3)(f), supra, (emphasis added). The council and its members now are aware that acts accomplished by the council or by its members are not lawfully author­ized. Therefore, neither the immunity established by ORS 30.265(3)(f) supra, nor the grant of defense and indemnification that applies only to conduct "occurring in the performance of duty," ORS 30.285(1), supra, apply to purportedly "official" acts of the council or members after the issuance of this opinion.

The council is a legislatively created body performing legislatively desig­nated functions. The council has the power to give recommendations that require another agency (BME) to promulgate administrative rules in com­pliance with those recommendations. The council also effectively has authority to license nurse practitioners to write prescriptions. Those powers make the council an "agency, board or commission of the state" and, therefore, a "public body" under ORS 30.260(4) and (5). The council members' duties are official duties and, therefore, members of the council are public officers entitled to coverage under the Tort Claims Act. See 38 Op Atty Gen 871,873-74 (1977); 43 Op Atty Gen 145 (1983). Through this opinion, we have concluded that the statute creating the council is constitutionally defective. Given that conclusion, the council is advised not to engage in any further governmental activities.

VII. Advisory Council Authority to Create Subdivisions Within Formulary The fourth question asks if the council is empowered to establish subdivi­sions within the formulary that create different categories of prescription privileges depending upon the scope of practice of the nurse practitioner. The answer is no.

The council has the power to determine only which drugs and medicines as a general matter may be within the power of nurse practitioners to prescribe. The BN has the specific legislative authority to create different categories of nurse practitioners. Those categories might differentiate between various prescrip­tion writing privileges.

ORS 678.375(3) states in part:

"The drugs which the nurse practitioner is authorized to prescribe shall be included within the certified nurse practitioner's scope of practice as defined by rules of the [B]oard [of Nursing] subject to ORS 678.385." (Emphasis added.) This statutory program contemplates that the BME will adopt by rule pursuant to recommendations of the council a general formulary listing the drugs and medicines which may be prescribed by all nurse practitioners. The BN, by rule, is to select those specific drugs which may be used by a nurse practitioner within such practitioner's specific scope of practice.

VIII. Advisory Council Authority to Limit Routes of Administration The fifth question asks whether the council has the authority to limit the drugs listed in the formulary to specific routes of administration, such as oral, topical or intervenous.

The statutory scheme does not grant to the council authority to limit the drugs in the formulary to specific routes of administration. The BN has that authority. That board may adopt rules that "limit or restrict" a nurse practi­tioner's practice and which define the scope of that practice. ORS 678.380(2) and (3). We believe that the BN's authority to restrict or limit a nurse practitioner's practice encompasses the power to restrict or limit the use of drugs in a nurse practitioner's practice to specific routes of administration.

IX. Board of Medical Examiners' Authority to Set Standards for Qualifica- tions of Nurse Practitioners

The sixth question asks if the BME has authority to set qualification standards for nurse practitioners applying for prescription privileges, such as previous practice experience. The answer to this question is no.

ORS 678.375(1) authorizes the BN to issue certificates of special compe­tency to licensed registered nurses to practice as nurse practitioners if they meet the requirements of ORS 678.380. In turn, ORS 678.380(1) allows the BN to adopt rules relating to nurse practitioners which establish their education, training and qualifications necessary for certification. The BME cannot impose additional qualifications to write prescriptions. It is the council's function to ascertain only whether an applicant qualifies under the standards established by the BN.

X. Advisory Council Duty to Prepare a Formulary The seventh question asks whether the council should adopt the formulary as a rule. This question also asks whether the BME may promulgate the formulary as a rule.

ORS 678.385(5) states:

"On or before January 1, 1980, the advisory council established under subsection (1) of this section shall advise the Board of Medical Examiners for the State of Oregon of the list of drugs and medicines to be included in the formulary that may be prescribed by a nurse practitioner acting under ORS 678.375. Controlled substances listed in schedules III, III N, IV and V for controlled substances shall be part of the formulary that may be prescribed by a nurse practitioner if recommended by the council unless the council finds that a substance on schedule III, III N, IV or V shall be excluded from the formul­ary. The advisory council may revise its recommendations periodically and submit any revised recommendations to the board and the board shall adopt the revised recommendations." (Emphasis added.) ORS 678.385(6) further states:

"Pursuant to ORS 183.310 to 183.550, the board shall adopt the formulary described in subsection (5) of this section and may revise the formulary only upon recommendation of the advisory council." (Emphasis added.) Under this statute the council "recommends" the formulary, and the BME must adopt the proposed formulary by administrative rule following APA procedures. Similarly, the BME must adopt revisions to the formulary pur­suant to the council's "recommendations," and may not otherwise revise the formulary. The BME's rulemaking authority in this context is thus purely ministerial.

The term "recommendation" in ORS 678.385 is a mis­nomer. Recommendations (in the ordinary sense) from one governmental body to another are not themselves subject to rulemaking. Vidicraft Inc. v. Dept. of Economic Development, 69 Or App 113, 684 P2d 24 (1984); Portland Inn v. OTC, 39 Or App 749, 593 P2d 1233 (1979); United Parcel v. Transp. Comm., 27 Or App 147, 555 P2d 778 (1976). An agency "directive" or "standard" that represents action by an agency directed to another agency and that substantially affects the interests of the public, however, is a "rule" subject to the rulemaking procedures of the APA. ORS 183.310(8)(b). Given the limited role delegated to the BME, it is difficult to contend that the actual governmental policy maker in this area is other than the council. However, given the explicit legislative requirement that the BME adopt the formulary by rule and the conspicuous absence of legislative direction for the council to do so, we cannot conclude that the council legally is required to use rulemaking procedures in "recommending" the formulary to the BME. Nevertheless, because of the limited role of the BME, we believe the council should abide by the APA rulemaking procedures in adopting its recommendations for revisions to the formulary. We set out in footnote six our suggestions on how this might be accomplished "jointly" by the council and the BME.

XI. Role of Medical Examiners Regarding Applications by Nurse Practitioners for Prescription Privileges The eighth question asks what power the BME has over granting or denying prescription privileges to a nurse practitioner. We will address this question in three parts: (1) the BME's role in initially granting or denying prescription privileges, and in renewing those privileges; (2) the BME's role in granting emergency drug dispensing authority; and (3) the BME's power to suspend or revoke prescription writing privileges.

A. The BME's role in granting or denying prescription privileges, and in renewing those privileges ORS 678.390 provides in pertinent part:

"(1) In addition to the duties described in ORS 678.385, the advisory council shall review and may approve the application of a certified nurse practitioner who seeks the privilege of writing prescriptions for drugs described in the formulary. If the application is denied, the nurse practitioner may appeal the denial as from a final order in a contested case under ORS 183.480 to 183.550.

"(3) Upon recommendation of the advisory council, the Board of Medical Examiners for the State of Oregon shall grant the privilege of writing prescrip­tions described in the formulary ....

" . . . .

"(5) The Board of Medical Examiners for the State of Oregon shall renew the privilege of writing and dispensing drugs for a nurse practitioner who reapplies for the privilege and satisfies the requirements of this section and the advisory council." (Emphasis added.) This statutory framework gives the council the authority to make the substan­tive decision to approve or deny an application for prescription writing privileges. The decision must be based upon the BN's rules establishing thecriteria for eligibility for prescription writing privileges. See ORS 678.380. If the council approves an application, the BME "shall grant the privilege." ORS 678.390(3). Thus, the BME's role is purely ministerial. Similarly, under ORS 678.390(5), if the council is satisfied that the nurse practitioner's prescription writing privileges should be renewed, the board "shall renew the priv­ilege." Again, the BME has only a ministerial function. Nor does the BME review the council's denial of an application. Upon a denial, the nurse practi­tioner may obtain judicial review in the Court of Appeals as from a final order in a contested case. B. The BME's role in granting emergency drug dispensing authority ORS 678.390(4) establishes the criteria and procedure for the grant of emergency drug dispensing privileges, as follows:

"A certified nurse practitioner may make application to the advisory council for emergency drug dispensing authority if the certified nurse practi­tioner's practice is located in an area of the state where geographic conditions severely limit the ability of the certified nurse practitioner to meet emergency patient needs. Criteria to be used by the advisory council in reviewing the application shall include but not be limited to the proximity in road miles of the nearest community pharmacy, general road conditions and weather condi­tions. Such emergency dispensing shall be from prepackaged drugs, from the formulary authorized under ORS 678.385, prepared by a licensed pharmacist."

This statute grants the council sole authority to grant or deny emergency drug dispensing privileges; the BME has no role in the process.

C. The BME's power to suspend or revoke prescription writing privileges ORS 678.390(6) provides:

"The privilege of writing prescriptions and dispensing drugs may be suspended or revoked by the Board of Medical Examiners for the State of Oregon upon proof that the privilege has been abused. The procedure shall be a contested case under ORS 183.310 to 183.550."

Thus, in contrast to the BME's limited, ministerial role in granting prescription writing privileges, it has exclusive authority to suspend or revoke the priv­ilege. The revocation proceeding is a contested case, at which the issue is whether the privilege "has been abused." Pursuant to its rulemaking authority, see ORS 677.265(1), the BME has defined "abuse" by rule. See OAR 847-60-020.

XII. Recommendations

The unconstitutional delegation problem can be cured easily by the legisla­ture by authorizing the Governor to appoint representatives from a list of recommendations made by the private associations. Persons concerned with the statutes that frame nurse practitioners' powers should also seek to improve the current statutes dealing with rulemaking responsibilities and contested case hearing opportunities. See footnotes six and seven.

We believe that part of the existing confusion regarding the relationship of the council to the BME and their respective roles in granting or denying nurse practitioner prescription privileges may stem from the lack of BN rules defining the nurse practitioner's scope of practice.

ORS 678.380(3) states that the Board of Nursing "may" adopt rules applicable to nurse practitioners "[w]hich establish categories of nurse practi­tioner practice and define the scope of such practice." The legislature appar­ently deemed it preferable to give to the BN the authority, responsibility and discretion for refining and executing generally expressed legislative pol­icy. Coupled with the discretionary authority in ORS 678.380 to make rules is the specific legislative directive in ORS 678.375(3), which states in part, "The drugs which the nurse practitioner is authorized to prescribe shall be included within the certified nurse practitioner's scope of practice as defined by rules of the board subject to ORS 678.385." (Emphasis added.) The BN has specified by rule nine categories of nurse practitioner. OAR 851-30-002. However, although OAR 851-30-003 generally discusses the scope of practice for all nurse practitioners, there is no specific scope of practice for each of the nine categories listed in OAR 851-30-002.

Additionally, the drugs that a specific nurse practitioner is authorized to prescribe have not been selected from the formulary and included in the scope of practice of such practitioner. This lack may exist because the BN has not articulated the scope of practice.

If the BN does not specifically define the scope of practice for each of the nine categories of nurse practitioners and further identify what drugs from the formulary are applicable to each of the nine categories, the council and BME are placed in a difficult position in trying to determine whether a particular nurse practitioner applicant is qualified to prescribe a specific drug. If the delegation problem is remedied, we recommend that the BN define the scope of practice for each of the nine categories of nurse practitioner currently identified in its rules, and that it select which drugs listed in the formulary can be prescribed by each category of nurse practitioner.

Finally, we suggest that the BN, the BME and the council jointly review their respective roles in adopting rules and orders relative to nurse practitioners prescription privileges and recommend to the legislature statutory amendments that better define their roles and avoid unnecessary duplications of actions.

DAVE FROHNMAYER Attorney General DF:DCA:ABS:KGD:WLB:MER:JMM:RDW

Within the context of ORS 678.385(6), the "board" referred to is the Board of Medical Examiners.

In the process of analyzing this legislative scheme, we reviewed the extensive legislative record which eventually led to the enactment of HB 2806 of the 1979 legislative session, which became ORS 678.385 - 678.390. The legislature was advised of the usefulness and expanding numbers of nurse practitioners. Various public and private groups and individuals noted the relatively limited circumstances when these persons were authorized to dispense prescriptions for patients. The legislature heard from members of the medical and nursing communities and their respective licensing boards. To say the least, there was not unanimity in terms of who should oversee an expanding role for nurse practitioners in dispensing prescriptions. Much of the impetus for some action, however, was a recognized need for an expanded role for nurse practitioners, particularly in rural or other under-served health provider areas. After numer­ous meetings and considerable discussion, a "nurse practitioner subcommittee of the House Committee on Human Resources reported on the results of their meetings and their suggestions. On behalf of that subcommittee, Representative Kitzhaber said:

"[T]he problems had been reconciling the nurse practitioners and the Board of Medical Examiners on the issue of jurisdiction. The compromise had been to develop an advisory committee to make the formulary and rules and regulations governing the prescriptive rights of nurse practitioners. The Board of Medical Examiners must comply with the outcome of that committee. Their jurisdiction would be to revoke certification if there is an abuse or violation, and an appeals process for the nurse practitioner involved is included. The Board of Medical Examiners governs only the prescriptive writing aspect of nurse practitioners' practice. The rest remains with the Board of Nursing." Minutes, House Committee on Human Resources (HB 2806), May 3, 1979 at 5-6.

Additionally, the Staff Measure Analysis prepared for the Joint Ways and Means Committee for HB 2806 stated as follows:

"To improve the primary care that NP[s] [nurse practitioners] can provide throughout the state, HB 2806 grants prescriptive writing privileges to NPs in all areas of the state, with the exception of hospitals which may determine hospital pharmacy policy. An advisory council on nurse practitioner prescriptive writing privileges will develop the rules and regulations governing NP prescriptive writing privileges, will write the formulary (list of drugs) from which the NP may prescribe, and will review the application of NPs for prescriptive writing privileges. The advisory council shall consist of 9 members — 1 physician member of the Board of Medical Examiners; 2 physicians appointed by the OMA, 1 of whom practices in a rural area; 1 registered nurse member of the Board of Nursing; 2 NPs appointed by the ONA, one of whom practices in a rural area; 1 pharmacist member of the Board of Pharmacy; 1 pharmacist in hospital practice and 1 pharmacist in community practice. The Board of Medical Examiners must adopt the council's formulary rules and regulations governing NP prescriptive writing privileges. If the council approves the application of a NP for prescriptive writing privileges, the Board of Medical Examiners must grant those privileges. If the council does not approve a NP's application for prescriptive writing privileges, there is an appeals process. If prescriptive writing privileges are abused, the Board of Medical Examiners may discipline the NP by revoking or suspending these privileges. All other jurisdiction over NPs resides with the Board of Nursing." Staff Measure Analysis of HB 2806 B-Engrossed, prepared by Vickie Gates for the Joint Ways and Means Committee, hearing dates May 24 and 31, 1979. (Emphasis in original.) Article I, section 21 provides in pertinent part that no law shall "be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution."

Article IV, section 1, subsection (1) provides: "The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives."

Article III, section 1 provides: "The powers of the Government shall be divided into three seperate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided."

The result in this opinion, declaring that ORS 678.385 excessively delegates governmen­tal appointment power to private entities, is consistent with the decisions of other states. State courts which have dealt with allegedly constitutionally defective appointment statutes have resolved the issue in one of two general ways. Some courts uphold delegation to a private party only if there are reasonably adequate standards to guide the appointing party in the course of making appointments, and if there is a rational relationship between the appointing party and the governmental function to be performed by the appointed person. Clark v. State ex rel Miss. State Med. Ass'n, 381 So2d 1046, 1050-51 (Miss 1980); see 67 CJS Officers Sec. 36 (1978). Other state courts, however, absolutely prohibit such delegation. Rogers u. Medical Ass'n of Georgia, 244 Ga 151, 259 SE2d 85 (1979); Hetherington v. McHale, 458 Pa 479, 329 A2d 250 (1974). These courts view delegation to private parties as intolerable in a representative democracy.

In the case with facts most analogous to the statute at issue, Hetherington v. McHale, supra, the court held unconstitutional a state statute which granted three private organiza­tions the power to appoint 8 of 17 persons to a committee charged with disbursement of public funds. The court stated that the "power to select those who make public decisions is too vital a part of our scheme of government to be delegated to private groups." Id. at 253.

Contrast Samuel v. Frohnmayer, 82 Or App 375, 728 P2d 97 (1986) petition for review pending. There, the plaintiff, a member of a chiropractic peer review committee performing investigations and making recommendations at the Workers' Compensation Department's request, was the defendant in a tort claim arising out of his performance of committee functions. The Attorney General denied him representation, arguing that he was not a state "agent" under ORS 30.285 and, therefore, was not entitled to representation. The Oregon Court of Appeals rejected that contention, and the state has sought review in the Oregon Supreme Court. Unlike the council, the committee at issue in Samuel v. Frohnmayer was stipulated not to be a state agency. Hence, Samuel v. Frohnmayer does not present the question at issue here.

Even though neither ORS 678.385 nor 678.390 require that the council use the APA rulemaking process in recommending its formulary, we recommend that it do so. At least two considerations support our advice that the APA procedure be used. First, as a matter of general administrative law it is the council with its general policy creation role which should be influenced by public comments and concerns over makeup of the formulary. Second, as we note elsewhere, the council has been delegated a form of licensing power relative to determining eligibility of specific applicants for nurse practitioner privileges. Such decision making results in orders (ORS 183.310(5)(a)) and any state agency "authorized by law to make (Footnote continued on next page)

(Footnote continued from previous page) rules or to issue orders" (ORS 183.310(1)) is by the APA's definition of agency subject to the APA rulemaking procedures when making statements on prospective general policy. ORS 183.325 to 183.410.

If the Legislative Assembly chooses to cure the unconstitutional delegation problem, it has various alternatives for clarifying the rulemaking issue. It could expressly place rulemak­ing authority in the hands of the council or the BME. Alternatively, if it wished to preserve the roles of both agencies in the process, it could provide for joint rulemaking. Or it could keep the present scheme, which would permit the council and the BME to enter into an ORS 190.110 interagency agreement designating the council as the BME's agent for giving notice of, holding hearings or giving opportunity for a hearing, and giving consideration to comments and concerns expressed by persons interested in the formulary. Under such an agreement the BME could retain the actual rule adoption function.

ORS 678.390(1) suggests that the applicant may appeal a denial directly to the Court of Appeals without benefit of a hearing being conducted. The privilege to write prescriptions, however, is almost certainly a ''license" within the meaning of ORS 183.310(2)(a)(C). Accordingly, a council denial of the privilege would entitle the applicant to a contested case hearing conducted in accordance with the APA. To the extent that the statute is ambiguous on that point, the legislature is free to amend the statute better to state its intent.