Judges: WINSTON BRYANT, Attorney General
Filed Date: 6/1/1992
Status: Precedential
Modified Date: 7/5/2016
Ms. Patti F. Martin, Chair Board of Examiners in Speech Pathology and Audiology P.O. Box 250345 Little Rock, AR 72225-0345
Dear Ms. Martin:
This is in response to your request for an opinion on several questions involving the Licensure Act of Speech Pathologists and Audiologists ("the Act"), which is codified at A.C.A. §§
1. Whether para-educators, assistants or aides1 to speech pathologists and audiologists can provide services to the public or practice speech pathology and audiology as defined under A.C.A.
17-97-103 (as amended by Act 1171 of 1991)2 without a valid license issued by the Board under A.C.A.17-97-301 et seq.?
I assume that the individuals in question do not fall under any of the exemptions set forth in §
The question of whether one who provides assistance to a speech pathologist or audiologist is practicing or representing himself as a speech pathologist or audiologist involves a factual inquiry beyond the scope of an Attorney General opinion. You have also asked me to assume, however, that the "para-educators, assistants or aides" include those who provide services that fall under the definition of speech pathology or audiology. A review of §§
. . . An individual who practices speech pathology and who presents himself to the public by any title or description of services incorporating the words `Speech Pathologist,' `Speech Therapist,' `Speech Correctionist,' `Speech Clinician,' `Language Pathologist,' `Language Therapist,' `Legopedist,' `Communicologist,' `Voice Therapist,' `Voice Pathologist,' or any similar title or description or service [A.C.A. §
17-97-103 (3) [emphasis added];
and:
. . . an individual who practices audiology and who presents himself to the public by any title or description of services incorporating the words `Audiologist,' `Hearing Clinician,' `Hearing Therapist,' or any similar title or description of services [A.C.A §
17-97-103 (5) (emphasis added)].
While §
It thus becomes apparent that your first question cannot be answered with a simple "yes" or "no." Rather, consideration must be given to the actual services provided, as well as the title or description of services employed by these persons. The title is, of course, not dispositive, if the description of services falls within that contemplated under §
2. If the answer to the first question is `no,' what action, if any, can the Board take against an unlicensed para-educator assistant or aide to a speech pathologist or audiologist?
As noted above, I cannot provide a "yes" or "no" answer to your first question, due to the factual nature of the inquiry. If, however, it is determined that regardless of the person's title as "para-educator, assistant or aide," the services provided and the description of service mandate licensure, the question arises whether the Board has the authority to enjoin the unauthorized activity. The Act does not specifically authorize the grant of an injunction to prevent illegal practice as a speech pathologist or audiologist.3 Courts in other jurisdictions have adopted various approaches to the issue of an administrative board's injunctive powers in the absence of a clear grant of statutory authority. A good discussion of decisions in this area is found in 43A C.J.S. Injunctions §§ 133-135 (1978). As noted therein, it has been stated broadly that a court does not have jurisdiction to grant an injunction at the suit of public authorities except by virtue of express statutory authority or to abate a public nuisance. Id. at 253. It is noted that under some authorities, in the absence of special injunctive authority, the mere violation of a statute regulating a profession as, for instance, practicing without the required license, is not alone ground for an injunction. Id. at 259. It is pointed out, however, that notwithstanding this view, other decisions hold that injunction is a proper remedy to prevent acts of an unlicensed practitioner which are injurious to the public health and which constitute a public nuisance. Id. It has also been held that where there is another adequate remedy available, such as criminal penalties, and the statute does not provide for injunctive relief, an injunction to prevent the violation of a statute will be denied. Id. at 251.
This latter approach is reflected in the Arkansas Supreme Court's decision in Arkansas State Board of Architects v. Clark,
`The fact that appellee's conduct was of a character to constitute a nuisance is not within itself sufficient to authorize the use of an extraordinary process of injunction for the abatement thereof.'
Id. at 554, citing Smith v. Hamm,
The court went on to apply a general rule found in AmericanJurisprudence, stating:
While appellant . . . makes it clear that it is not relying on an injury to the property rights of an individual but on the ground of an injury to the public safety and welfare, yet we see no reason why it should not also be required to clearly show facts and circumstances which would entitle it to injunctive relief. [Emphasis added.]
Id.
It may be concluded from this case that the absence of statutory injunctive authority is not necessarily determinative. The court in Clark did, however, require a strong showing in order to obtain injunctive relief where the acts complained of are punishable as crimes. The court noted in a subsequent case that the party seeking an injunction ". . . carried a heavy burden of proof" in this regard. Ark. State Board of Pharmacy v.Troilett,
In order to obtain relief by injunction against the commission of acts of a criminal character, `the court will require that the complainant clearly show such facts and circumstances in the particular case as will justify the court in granting the relief desired.'
Troilett,
While it is therefore my opinion that the Board is not necessarily foreclosed from seeking an injunction against an unlicensed practitioner, such action will involve a "heavy burden of proof." Any decision with regard to whether such action should be pursued must of necessity be made on a case by case basis.
3. Whether para-educators, assistants, or aides to speech pathologists and audiologists can provide services to the public or practice speech pathology or audiology as defined under A.C.A.
17-97-103 (as amended by Act 1171 of 1991) in any of the following occupational settings without having a license from the board:
a. Public Schools;
b. Private, non-profit corporations licensed by Developmental Disability Services of the Department of Human Services;c. State or federal government employees without valid and current credentials as a speech or hearing therapist from the Department of Education (A.C.A.
17-94-104 );d. State or federal government employees with a valid current credential as a speech or hearing therapist issued by the Department of Education;
e. Persons employed as speech pathologists or audiologists by the state or federal government.
A review of A.C.A. §
4. Whether the Board has authority under A.C.A.17-97-101 et seq., to create (by rule or regulation) a separate category of licensure for para-educators, assistants, or aides to speech pathologists or audiologists if they do not meet the eligibility requirements as outlined under A.C.A.17-97-302 , and the rules and regulations of the Board?
It is my opinion that the answer to this question is "no." It is well-established that an administrative agency may determine the particular facts and circumstances upon which operation of a legislative enactment is conditioned. See Hogue v. HousingAuthority of North Little Rock,
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:cyh