Illustrated Daily; 3149; Licensing Boards In New Mexico: Reorganizing the System

You You The Illustrated Daily, Managing Editor Hal Roads. Good evening.

Even the experts debate their numbers, but there are literally scores of boards and commissions which license and regulate the variety of professions and occupations which are practiced in the state of New Mexico. For a period of time recently, one of those boards, the board of Barber examiners, was very much in the news. As Governor Tony Anaya attempted to change both its administrative leadership and eventually, it's very composition. Anaya was not the first New Mexico governor for whom control of state boards and commissions has been a significant interest in 1977 at the time of executive branch reorganization in New Mexico, then Governor Jerry Apidaca exempted such boards and commission from his reorganization plans altogether. According to Apidaca administration insiders, the reason was quite simple. Don't borrow political trouble if you can help it. Welcome July 1st, many of those boards and commissions will be reorganized. In the final days of its 1983 session, New Mexico's legislature vested that authority

in the office of New Mexico governor. Since that time, Mr. Harvey Frueman has been designated by Governor Anaya to undertake that task. Mr. Frueman is the interim superintendent of what is being called, the New Mexico Department of Regulation and Licensing. Mr. Frueman is with us this evening, he is in the studios of the state librarian Santa Faye. Good evening Mr. Frueman. Good evening Mr. Rhodes, how are you, sir? Just fine thank you. Mr. Frueman, why is it the head of this new department which you, you, are called superintendent rather than secretary as is the case with other cabinet posts in this administration? The word superintendent is not a magic word. It was just one that was chosen to differentiate it, differentiate this department head from other department heads which do comprise what is officially called the cabinet. All right, otherwise you will be very much a member of the cabinet when this new department comes into being.

Yes, sir Governor Anaya has assured me that this department will be treated as it was a cabinet level. Well as I understand it, your appointment to this position does not require confirmation by the state senate. How did that come to pass since other cabinet secretaries are required to be confirmed? Perhaps it was from my observing the experience of Alex McCury in his cabinet selection and appointment by the senate, but there really isn't any reason for that that I'm aware of. It was just thought that since it would not be a cabinet department that there would be no need for a senate confirmation hearing. It is not then technically a cabinet department, is that what you're telling me? That's correct sir. All right, the new department comes into being in any event in just three weeks as nearly as I can tell. First of all how many boards and commissions are we talking about here which regulate and

license occupations in the state of New Mexico and how is it that they get all collapsed into this single new department? I'm not certain of the entire number that we would be eventually looking at. There are approximately, well there are several hundred boards and commissions that we know of. Of those perhaps a third of them regulate and license some occupation or profession. We are not looking at all of those initially. The ones that which we are looking at are those which are not attached to any specific department or agency. All right, most of the boards and commissions which do license and regulate a profession or an industry as the case might be do so under established statutory authority. Does the legislation create in your new department supersede those existing statutory authorizations or does the responsibility for regulating and supervising and licensing these professions

and occupations and the like continue irrespective of your new department? The way we view the new act, it does appear to us that ultimately the governor could assume all function and control of the professional and occupational licensing if he so desired. Now we haven't reached the point of in our examination of making determination which boards and commissions should be brought within a new department. And even if we had chosen or decided on which boards or commissions should be within the department, how much authority should be taken from the boards and commissions? It's possible that a board and commission or a commission could be left with just advisory authority or perhaps ultimately even being dissolved altogether. There's that much latitude within the executive authority given to the governor that it surprises

us but we're willing to work with it and work with the boards and ultimately try to find out what would be best in the long run. What do you mean it surprises you? Well it surprises me because as you have mentioned it's been a project or it's been an idea within this state for quite a number of years. However it appears that this past legislative session it was an idea whose time has come and an idea that was adopted by both the legislature and the governor and quite easily and quite readily and with open arms. Well let me see if I understand you. You say you are really not certain yourself right now how to read out certain provisions of the legislation creating your new department. Am I right about that? So we have an exam in all of the statutes and regulations under which all professional occupations are licensed or are regulated I should say.

And unless there is something specific in those statutes which would preempt or preclude the governor from assimilating these departments or boards by executive order then ultimately or the ultimate authority is in the new legislation. Well let me see if I can return some of you mentioned a moment ago. You say it may well be that there is inherent in the legislation creating your department. The power, the authority for a governor to convert these boards and commissions from their present licensing and regulatory function and converting them instead to something called advisory boards and commissions. What is the distinction you are playing with here? The distinction would be in taking the word advisory in that it just means what it says. Giving advice to the department, to the superintendent, to the governor as to the various provisions under which the various professions should be licensed, should be regulated.

So it is conceivable then that these boards and commissions in turn would advise the governor of the state of New Mexico who in turn as you read this legislation would license and regulate the professions and the occupations that practice here in New Mexico. Yes sir, that is a very real possibility given the literal reading of the statute. All right sir thank you very much. Well the whole issue of a single department of regulation and licensing involves the politics of licensing reorganization which in turn can be terribly awesome. Beverly Garcia knows something about that. She was a member of former governor Jerry Ampedaka's executive branch reorganization team and she too is with us this evening in Santa Fe. Good evening Ms. Garcia. Good evening. Ms. Garcia, just to get a little perspective here if we might, Governor Ampedaka's reorganization team originally contemplated creating, as I recall, something was going to be called, a single board of licensure.

The team decided not to do so and I'm curious why. Originally, a concept of creating a commerce and consumer affairs department was recommended by Governor Ampedaka's reorganization staff to him and his sub cabinet. That concept was decided against for several reasons because it was felt that it was number one, two sensitive and area to approach along with a general reorganization project and would detract from that project. It would require drastic change in the legislative language to treat those boards in such a way that they would be left with the autonomy that they needed to regulate their various professions. Another reason was that the boards, many of them, had long been self-supporting and we felt that there would be a great controversy to be encountered with the various boards because they had enjoyed that autonomy for so many years and had been self-supporting, even though their budgets were approved through DFA. One of the major reasons was that it was felt that there was a general lack of expertise

among the bureaucracy for them to efficiently or effectively regulate the diverse professions that were involved in such an undertaking. So as an alternative to that concept, what Governor Ampedaka did approve at that time was a piece of legislation to create an office of professional and occupational licensing which really just created sort of a clearinghouse that would be situated in Santa Fe to establish a permanent address for a lot of boards that didn't enjoy permanent into offices so that the general public would have a one single place to contact because some of these boards are so small that they have no permanent staff. In fact, as I recall, 13 out of the 24 professional licensing boards at that time were without any form of staff or permanent offices. There was a public convenience or a public need of that sort that was intended to be met. But even that kind of a bill which would have left the boards with all their policy making

authority and left them completely autonomous was voted down in committee and even that one bill creating just that kind of an office was killed at the committee level. And once that took place, Governor Ampedaka decided not to pursue it any further than that. But at any time, any thought in the reorganization process of the Opadaka administration including the work with the legislature which took place as that reorganization was some bills were submitted to the legislature, any thought given to creating a single Department of Regulation and Licensing of the sort Governor and I are now planning to undertake. No, no. There wasn't. There was a conscious decision made not to create such a department. And that was for the reasons you just enumerated basically. All right. Firstly, all states license and regulate the various professions, occupations, industries and the like which operate within their political boundaries. You engage in a considerable amount of research during the reorganization process in 1977.

Yes, sir. Before that. What did you discover about the way other states go about transacting this kind of business? Well, we found that in some states that a kind of a clearing house, similar to that that was proposed during the reorganization project, a clearing house had been created in several states. I don't recall it was either in Colorado or Montana where they had such a clearing house. And what these clearing houses were intended to do was address three basic purposes. One was to provide some kind of an organizational unit where power abuses could be averted or protected against. And the second one was to establish some convenience for the public to be able to contact a single place in the event they wanted to register consumer complaints with the like. And then the third reason for which they were established in some of the states was to promote just a general public trust so that there could be some kind of a review authority,

especially in grievance matters that were brought before certain professional boards, so that the public's perception could be one of trust in that profession. So that position of trust could be enhanced. So as to make certain that the professions, the occupations, what have you, are being practiced in the public interest as I understand it. Right. Right. And that restricted qualifications for entry into a profession weren't being abused and just simply invoked to restrict competition amongst the profession. All right. You mentioned at the moment ago when we first began our part of this conversation, something that is almost a truism and that is the politics of licensing and regulating boards can be awesome. It's almost axiomatic that there's a lot of danger there. Someone once said proceed, it is one of those proceeds at your own risk situations. Why is that? Well, first of all, they're just kind of a natural hesitancy to any kind of change among people.

Now, when you have people who work so hard, they train for a given occupation, I mean, their interest is in their livelihood as it is with all of us. And you just have a real strong special interest there and they want to safeguard, I think, that interest and they don't want the bureaucracy or government generally delving into what they consider their private affairs or one that's protective of their occupation. And I think that's the initial thing that gives rise to that kind of concern or mistrust if you will to this kind of a proposal. And what you're doing is just taking on, I mean, a built-in self-interest group. A lot of built-in self-interest groups is really what you're seeing, I believe, right? All right. Thank you very much. Well, it is safe to say that not everyone is pleased with the changing licensing and regulating arrangements in the state of New Mexico. Dr. Robert Derbyscher has been a member of the Board of Medical Examiners in New Mexico now for over three decades. His term expired this past December 31st, but he continues to serve on that board, depending his replacement.

Good evening, Dr. Derbyscher. Good evening. Dr. Derbyscher speaking as a private citizen and one who has served on the Board of Medical Examiners in New Mexico for a very long period of time, why do you object to the prepared proposed reorganization of these various boards and commissions into a single department? Because I think the Board of Medical Examiners has been functioning as it should, I think that we've been primarily interested in the welfare of the public and after all, that is the main function of every board. We, if you'll excuse me for seeing the praises of the boards and giving you a little account of our accomplishments, we have led the country in disciplinary actions and our board. We've consistently led the whole country in disciplinary actions, I mean as far as percentage of doctors is concerned. For instance, in 1982, we took disciplinary action against 0.7% of the doctors in New Mexico. And one of our other states, which I do not choose to mention, were the Dr. population

of 25,000 in contrast to our 2400 in New Mexico, they took 0.007% actions. I think that we've been carrying out our functions, we've been safeguarding the public to the best of our ability, and also we have pioneered in other fields. We were the first state to implement and pass a continuing education law requiring doctors to have certain number of hours of continuing education to maintain their licenses and good standing. We were one of the first states to pass the so-called impaired physicians act, and by the way we have Governor Apidocca to thank for that, because this went along with the malpractice crisis. We also, I happen to have been president of the Federation of State Medical Board of the United States at the time, and we were able to establish a standard licensing examination throughout the whole country.

I'm proud to say that New Mexico is one of the first six states to adopt this examination, and now all 50 states recognize it, and in addition, Saskatchewan and Manitoba do. Well, let me ask you, is it axiomatic, in your opinion, that this fine record to which you refer would necessarily not be built upon under any new administrative arrangement? Oh, I'm afraid it will be. Absolutely. I see all of our good work going down the drain. Why is that? Well, because we have a good staff in our office. It's small, I know, but we have experts, staff members. One of them has been with us for 11 years, another for five years, another for two years, and we think that we have a good operation, and how would it be improved by putting it under somebody who knows nothing about the technicalities of medical licensure? Let me flip it over. Why would it necessarily not be maintained at the very least? Why would it be like that? Well, I'm fearful of this law.

I'm completely bewildered by this law. It's inconsistent, and excuse me for playing lawyer for a minute, but it's inconsistent. Are you licensed to practice law? No, sir, just to practice medicine, and my legal advisor advised me not to practice law on this program. And you just all know that. But this is the way I see it. The inconsistencies of the Medical Practice Act says that they board a medical examinational administer this act. And in the new law, it says that the administrator, the superintendent, will administer the act. The New Mexico Board Medical Examiner has rule-making powers. The rule-making powers now go to the licensing department. Well, pardon me, let me ask you, what is wrong with that arrangement? Because I think that we have something good as it is, and I hate to see it go, and we've spent a long time building up this reputation that we have all over the country. Are you fearful that those who would serve in the office are superintendent and potentially

in the office of governor would not administer those standards as carefully as you do? I think it's an invitation to politicize the whole licensing process as far as medicine is concerned. I'm just talking about medicine now, not law. But I think it could easily politicize the whole process, the superintendent, with all respect of Mr. Fruman, who is a distinguished member of the New Mexico Bar Association, with all respect to him. His department could change the standards. We maintain high standards for licensure in New Mexico. In fact, some people think the standards have been too high. I don't think so myself. Well, let me ask you this. The department could change the standards, could change the passing grades, could do anything they wanted to. All right, Mr. Fruman, I want to get back to you on that. Dr. Derbyshire has raised what is doubtless one of the most controversial points in this

new legislation, namely the possibility that governors and superintendents of your new department could indeed abuse their authority, politicize the process, and perhaps even subvert the standards, which the regulation and licensing of these occupations are designed to uphold. That's a concern which the governor and I both share. And it's not the only concern. Many of the questions of intent of what will happen, how will the medical profession, as well as other professions, be ultimately regulated, if, and I wish to emphasize the word if they are brought into the new department, are valid. The intentions are not to undermine anything that has been constructively created thus far with regard to the regulation and licensing of professions. And what is the intention, Mr. Fruman? The intent, I think, is very clearly expressed in the law and that is to perform an economy

in the administration and supervision of the licensing professions, and not just of the professions, Mr. Rhodes, excuse me, but also to ensure that the public is insured of a place where it can bring its concerns. All right. We've heard that argument, a good deal, Dr. Derbyshire, as you know, that it is wasteful, inefficient, and costly to fund and staff so many diverse boards and organizations of that sort, when a single administrative superstructure could be created and reduced costs. I can't see that it would reduce costs. Now, maybe Mr. Fruman has been into research, done more research on this than I have. We start out with a $200,000 appropriation, and then the department will take over, take all of our money, all of our equipment, and I can't see that it will save anybody anything. And they will build up a huge bureaucracy to administer this thing.

And how can one person be familiar with all the boards? I'm particularly medicine, the technical boards. Well, Mr. Fruman, let me ask you, you said the moment ago, if, and you said I want to stress, if, a board of medical examiners and some others are brought into this new department, then we will talk about that, apparently, when the time comes. Is there any doubt about whether some of these major boards and commissions will be drawn into the department? Well, of course there is, because the governor has been given the authority to do so. But before he does make the decision as to which boards and commissions to bring in within a new department, a very extremely thorough evaluation of the entire parameters of the operations of each of these boards must be performed, and we've started that. And I've discussed Dr. Derbyshire's concerns with him previous to this, both by correspondence and in person.

And the question that I have is, when he asks, or I should say, when the medical association asks to be exempt from the new department, my question is, what exactly are they asking to be exempt from? And that is what we have to establish at the first hand. What is that, Dr. Derbyshire, what are you asking to be exempt from? We're being asked to be exempted from this department, from the Department of Licensing, and to continue just as we've been doing. Their safeguards are built into our law, and for instance the Uniform Licensing Act doesn't let us do anything we want to, and the public is assured, the medical public is assured of due process, and all the safeguards are built in. Furthermore, I'd like to say that New Mexico, since I have been a Secretary of Treasury, well in the last five years, we've licensed an average of 300 doctors a year. So you can't say that we're keeping doctors out. We license anybody who's qualified, but they have to be qualified.

All right. The moment ago, Beverly Garcia mentioned a point that I think is important that we deal with. That those who govern the state must be able, in turn, to assure those they govern. That the board's organizations and administrative operations under their supervision are properly supervised and are operating in the public interest. Do you deny that a governor of the state of New Mexico must, in turn, be able to say that about all boards and commissions, including the Board of Medical Times? That they should. All right. Along with administratively collapsing them into a single department, so that he indeed can say, I have a Secretary, they're superintendent who is responsible for that, I hold him accountable or her accountable, if they don't do their job there out, and we'll get somebody else in there. Well, you should be able to do that. But what my point is that the Board of Medical Examiners is functioning well, I can think of other boards. I can't tell about all of them, but we've had very close contact with the Board of Nursing.

I think they're doing an excellent job. I don't know why they should be included under this, also, the Board of Pharmacy. We've worked very closely with them, particularly in law enforcement. We got to call before the show from a member of the Board of Medical Examiners who said that it was important that you are not speaking for the Board as a whole, I guess you would accept that proposition, wouldn't you? Well, I don't know. I don't think the Board of Medical Examiners is enthusiastic about this. We've talked about it enough, but if he doesn't want me to talk for the Board, I don't know who it was. I speak for myself. That's what I thought you were doing. Mr. Truman, Dr. Derbyshire's raised an interesting point. First of all, do you buy the proposition that the Board of Medical Examiners has done this business well? And secondly, is it your feeling that those organizations which have done their business well should stay outside the department? Is that what the department's all about? Is it to bring those which have not performed satisfactorily in the line? As far as I know, the Board has done an excellent job, whether that can be improved by its present composition or improved by a change in the composition, that's, of course, the unknown.

And I imagine would remain unknown regardless of which way, which direction the composition of the Board went eventually. All right. Beverly Garcia, is this one of the reasons that you folks in the Opadaka reorganization team decided not to deal with this problem? It's kind of controversy, is this one of the things you tried to avoid in reorganization in 1977? Well, one could say that that was one of the reasons, because it would have detracted from the overall major reorganization program of the bona fide state agencies that didn't exist, which the... You would have to put them together over the dead body of a lot of other things. I understand. I'm afraid we're at a time, Ms. Garcia. Thank you very much. Mr. Truman. Thank you. Dr. Derbyshire's nice having you with you. Thank you very much. I'm afraid our time is up. Please join us tomorrow for a non-location visit with the director of the Los Alamos National Laboratory, Donald Kerr.

In the meantime, thanks for joining us. I'm Hal Rhodes. Thank you very much. Thank you very much. Thank you, folks. It was very nice of you. You're Santa Fe. Can you hear me? They can't hear me, I'm sure. Folks in Santa Fe, Mr. Truman, Ms. Garcia, thank you very much.

Thank you very much. Thank you. Talk to you later. Thank you very much.