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AGO 1989 No. 8 - April 21, 1989
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

FEDERAL PREEMPTION ‑- MEDICAL DISCIPLINARY BOARD ‑- MEDICINE, SURGERY, AND OSTEOPATHY ‑- STATE RESERVED POWERS 

1.         Sections 422(b) and 423(c) of Public Law No. 99-660 do not infringe upon rights reserved to the States under the Tenth Amendment of the United States Constitution, because these portions of the Health Care Quality Improvement Act of 1986 carry out a federal purpose, the regulation of interstate commerce. 

2.         Sections 422(b) and 423(c) of Public Law No. 99-660, portions of the Health Care Quality Improvement Act of 1986, do not preempt independent state reporting requirements for health-related professions such as those contained in RCW 18.180.110(2) [18.130.110(2)] and similar statutes.

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                                                                   April 21, 1989 

R. Milton Schayes, M.D.
Chairman
Medical Disciplinary Board
Department of Licensing
Highways-Licenses Bldg.
Olympia, WA 98504 

Cite as:  AGO 1989 No. 8                                                                                                                  

  Dear Doctor Schayes:

             By letter previously acknowledged, you have requested our opinion on the following questions:

             1.         Do sections 422(b) and 423(c) of Public Law No. 99-660 infringe upon rights reserved to the States under the Tenth Amendment of the United States Constitution?

             2.         Do sections 422(b) and 423(c) of Public Law No. 99-660 constitute federal preemption of RCW 18.130.110(2) and any other similar reporting statute adopted by the Washington Legislature?

              [[Orig. Op. Page 2]]

             We answer both questions in the negative for the reasons set forth in our analysis.

                                                                      ANALYSIS

            In 1984, the Washington Legislature enacted chapter 18.130 RCW, the Uniform Disciplinary Act.  Laws of 1984, ch. 279.  The chapter was intended

             to strengthen and consolidate disciplinary procedures for the licensed health and health-related professions and businesses by providing a uniform disciplinary act with standardized procedures for the enforcement of laws the purpose of which is to assure the public of the adequacy of professional competence and conduct in the healing arts.

 RCW 18.130.010.  The disciplinary authorities covered by chapter 18.130 RCW, including the Board of Medical Examiners established in chapter 18.71 RCW and the Medical Disciplinary Board established in chapter 18.72 RCW, are authorized to investigate complaints or reports of unprofessional conduct, to issue statements of charges, to hold hearings, and to issue orders.  RCW 18.130.020(1), .050 [18.130.050], .090 [18.130.090], .160 [18.130.160].  RCW 18.130.110(2) requires the disciplinary authority to report the issuance of statements of charges and final orders to certain designated entities.

             In 1986, the United States Congress enacted Public Law No. 99-660, relating to health programs.  Title IV of Public Law No. 99-660, the Health Care Quality Improvement Act of 1986, was enacted on the basis of congressional findings that "[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State" and that "[t]here is a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance".  Pub. L. No. 99-660, § 402, 100 Stat. 3743, 3784 (codified at 42 U.S.C. § 11101).  Section 422 of the Act addresses reporting of sanctions taken by boards of medical examiners,1/ while  [[Orig. Op. Page 3]] section 423 addresses reporting of certain professional review actions taken by health care entities.  42 U.S.C. §§ 11132, 11133.

             There obviously is some overlap in the coverage of chapter 18.130 RCW and the federal law.  Your questions arise in the context of your effort to integrate the goals and methods of the two laws.  We analyze your questions below.

 Question 1

             Do sections 422(b) and 423(c) of Public Law No. 99-660 infringe upon rights reserved to the States under the Tenth Amendment of the United States Constitution?

             The Tenth Amendment to the United States Constitution provides:  "The powers not delegated to United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

             The Tenth Amendment has chiefly been understood as simply a confirmation of the original understanding that powers not granted to the United States were reserved to the States or to the people.  The amendment has been characterized as a truism that all is retained which is not surrendered.  Fry v. United States, 421 U.S. 542, 547 n.7, 44 L. Ed. 2d 363, 95 S. Ct. 1792 (1975).  TheFry Court stated that the Tenth Amendment expressed "the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system."  Id.

             The chief powers of Congress are listed in article 1, section 8 of the United States Constitution.  This section grants Congress the power, among other things, to levy taxes; to make expenditures for national defense and the general welfare; and to regulate interstate and foreign commerce.  In addition to the powers enumerated, article 1, section 8 also gives Congress the power to make all laws which are necessary and proper for carrying into execution the enumerated powers.

             As demonstrated byFry, before 1976, Tenth Amendment arguments were given brief consideration.  Fry, 421 U.S. at 369.

              [[Orig. Op. Page 4]]

 In 1976, the Tenth Amendment gained force when the United States Supreme Court decided that congressional application of the minimum wage and overtime provisions of the Fair Labor Standards Act to state and local government employees violated constitutional rights of state sovereignty.  National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976).

             UnderUsery, four conditions must have been present to immunize a state activity from federal regulation under the Commerce Clause:  1) the federal statute at issue must have regulated the States as States; 2) the statute must have addressed matters that were indisputably attributes of state sovereignty; 3) state compliance with the federal obligation must have directly impaired the States' ability to structure integral operations in areas of traditional governmental functions; and 4) the relation of state and federal interests must not have been such that the nature of the federal interest justified state submission.  Garcia v. San Antonio Metro Transit Auth., 469 U.S. 528, 537, 83 L. Ed. 2d 1016, 1025, 105 S. Ct. 1004 (1985).  Under this test, the courts were asked to decide the constitutionality of a variety of federal statutes on the basis of whether the statutes regulated traditional governmental functions.  Garcia, 469 U.S. at 538.

             When the Supreme Court was asked to reconsider the Usery test nine years later in Garcia, it noted the inconsistent and unpredictable results in application of the test, particularly the factors of "indisputable attributes of state sovereignty" and "traditional governmental functions".  Garcia, 469 U.S. at 538-48.  In overrulingUsery, the Supreme Court stated that "[s]tate sovereign interests  . . . are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power."  Garcia, 469 U.S. at 552.  In holding that there is nothing in the overtime and minimum wage requirements of the Fair Labor Standards Act that is destructive of state sovereignty, the Court reemphasized the long-settled principle that Congress' authority under the Commerce Clause extends to intrastate economic activities that affect interstate commerce.  Garcia, 469 U.S. at 537.

             Even under theUsery test, the nature of the federal interest was a factor that could justify state submission to federal regulation in spite of the infringement on attributes of state government and traditional state functions.  Garcia, 469 U.S. at 537.  The importance of a regional approach to avoid injury to neighboring States was recognized when the Court of Appeals for the District of Columbia held under theUsery test that certain federal environmental laws did not violate the Tenth Amendment.  United States v. District of Columbia, 654 F.2d 802  [[Orig. Op. Page 5]] (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981).  With the rejection of theUsery factors of "attributes of state sovereignty" and "traditional governmental functions" by the Garcia Court, the federal interest in regulating activities which affect interstate commerce becomes crucial to a determination of constitutionality.

             In the Health Care Quality Improvement Act of 1986, Congress sought to restrict the movement of incompetent physicians between States.  Congress recognized the nationwide interest in restricting "the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance" and reporting results of professional peer review.  42 U.S.C. § 11101.  Congress' reliance on its authority to regulate commerce is unmistakable.  The federal interest in protecting the entire nation from incompetent physicians moving between States to practice makes it imperative that no State block a nationwide information exchange effort.  The interest expressed in the Act is one that requires a nationwide approach to be effective.  Although each State plays an active role in the effort to eliminate incompetent physicians, the federal interest is paramount in assuring that physicians moving between States are not simply avoiding problems in the original State.

             In summary, the Health Care Quality Improvement Act of 1986 addresses the national interest of regulating physicians who have been disciplined in one State and who may seek to practice in another State.  Congress was within its authority granted by article 1, section 8 in addressing this issue, which Congress believed could be addressed effectively only in a nationwide fashion.  We conclude that the Act does not violate the Tenth Amendment.

 Question 2

             Do sections 422(b) and 423(c) of Public Law No. 99-660 constitute federal preemption of RCW 18.130.110(2) and any other similar reporting statute adopted by the Washington Legislature?

             The preemption doctrine derives from the Supremacy Clause of the United States Constitution, which provides that the laws of the United States enacted pursuant to constitutional authority are the supreme law of the land.  U.S. Const. art. 6, cl. 2.  Although Justice Black cautioned that there "can be no one crystal clear distinctly marked formula" for determining whether a state law is preempted by federal law,Hines v. Davidowitz, 312 U.S. 52, 67, 85 L. Ed. 581, 61 S. Ct. 399 (1941), there are touchstones which can be invoked by a court.

             [[Orig. Op. Page 6]]

             The issue is "whether Congress has exercised its power of legislation in such a manner as to exclude the states from asserting concurrent jurisdiction over the same subject matter."  Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1146 (8th Cir. 1971),aff'd, 405 U.S. 1035 (1972).  The traditional tests of preemption have been set forth in the numerous decisions of the United States Supreme Court.  A state's police powers are presumed not to be superseded unless that is the clear and manifest purpose of Congress.  Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 1459, 67 S. Ct. 1146 (1947).  Congressional purpose is most clear when the federal statute at issue explicitly prohibits state regulation in the same field.  Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604, 97 S. Ct. 1305 (1977).  When the federal statute contains no such prohibition, congressional intent to preempt may be implied as determined by three factors:  (1) the intent of Congress as revealed by the statute itself and its legislative history; (2) the pervasiveness of the federal regulatory scheme as authorized and directed by the legislation and as carried into effect by the federal administrative agency; and (3) the nature of the subject matter regulated.  Northern States Power Co. v. Minnesota, 447 F.2d at 1146.

             With regard to intentional preemption by Congress, the Health Care Quality Improvement Act of 1986 contains no explicit prohibition on state regulation in the area of reporting covered by RCW 18.130.110(2).  Therefore, to determine whether the intent to preempt can be implied, we must turn to the statute itself and the legislative history.  Neither of these indicate an intent to preempt the field, and in fact there is an expectation that individual states will have a disciplinary mechanism in place for the reporting of the disciplinary action results within the state.  See 42 U.S.C. § 1132(a)(1); H.R. Rep. No. 903, 99th Cong., 2d Sess. 2, reprinted in 1986 U.S. Code Cong. & Admin.  News 6384.  While the subject matter of reporting of disciplinary proceedings against physicians is an area of national concern, it is not of such a nature as to fall exclusively to federal regulation, particularly when reporting within the state system is anticipated in the federal law.  In addition, the federal law is not so pervasive as to eliminate the necessity of a state disciplinary and reporting system.  In this instance, the intent to preempt cannot be implied.  Detailed consideration in the federal law is not sufficient to infer a clear intent to preempt.  De Canas v. Bica, 424 U.S. 351, 354-55, 359-60, 47 L. Ed. 2d 43, 96 S. Ct. 933 (1976).

             Even if Congress did not intend to preempt all state legislation in a given field, a state law is invalid to the extent that it actually conflicts with federal law as determined by two factors:  (1) where compliance with both federal and state laws is a physical impossibility,Florida Lime & Avocado Growers,!ab[[Orig. Op. Page 7]]Inc. v. Paul, 373 U.S. 132, 142-43, 10 L. Ed. 2d 248, 257, 83 S. Ct. 1210 (1963), or (2) where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,Hines v. Davidowitz, 312 U.S. at 67.  Courts are not to seek out conflicts between state and federal regulation where none clearly exists.  Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 446, 4 L. Ed. 2d 852, 80 S. Ct. 813 (1960).

             With regard to preemption by conflict, the Health Care Quality Improvement Act of 1986 and RCW 18.130.110(2), while covering the same subject matter, do not conflict.  It is not physically impossible to comply with the requirements of RCW 18.130.110(2) while complying with the reporting requirements of the federal law.  RCW 18.130.110(2) lists four types of entities that must receive statements of charges and final orders.  The federal law simply adds the Secretary of Health and Human Services to this list, and further describes the information to be reported.  The state law enhances, rather than frustrates, the accomplishment and execution of the full purposes and objectives of Congress by disseminating the information within the state of Washington.

             In summary, the Health Care Quality Improvement Act of 1986 does not preempt the reporting requirements of RCW 18.130.110(2).  To the extent that any other state reporting statute actually conflicts with the Act it would be preempted, but we are not aware of any conflicting statutes.

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General 

JAMES K. PHARRIS
Sr. Assistant Attorney General

Note:  This opinion was written by Therese Neu Richmond, Assistant Attorney General, who left our office on March 31, 1989.

                                                          ***   FOOTNOTES   ***

 1/Section 431 of the Act defines "Board of Medical Examiners" to include bodies "comparable to such a Board (as determined by the State) with the responsibility for the licensing of physicians . . . ."  42 U.S.C. § 11151(2).  The State Board of Medical Examiners bears the responsibility for the licensing of physicians, while the State Medical Disciplinary Board was established to regulate and discipline licensed health care professionals.  Both the boards are disciplinary authorities under chapter 18.130 RCW, a provision which parallels Public Law No. 99-660.  To the extent that either board carries out activities described in Public Law No. 99-660, they must comply with its requirements.

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