OAG 77-381 | KOGC

Request By:

Lowell V. Thompson, Jr., Esq.
401 Kentucky Home Life Building
Louisville, Kentucky 40202

Opinion

Opinion By: Robert F. Stephens, Esq., Attorney General; Mark F. Armstrong, Esq., Assistant Attorney General

We are in receipt of your letter in which you ask our opinion of whether the Kentucky Board of Dentistry may lawfully require applicants for a license to practice dentistry to demonstrate a designated standard of proficiency by successfully completing a number of sections of the clinical examination. The facts giving rise to this question are set forth in your letter and are as follows:

The Kentucky Board of Dentistry (hereinafter, "Board") has adopted for its use in testing applicants 1 for a license 2 to practice dentistry a clinical examination 3 prepared by the Southern Regional Testing Association (hereinafter, "Association"). The Board requires applicants to correctly complete 75% of each of the examination's four sections to be eligible for licensure. This latter requirement conflicts with 201 KAR 8:220(2) 4 which provides that applicants need to successfully complete only three of the four sections of the clinical examination adopted by the Board.

The question thus presented is whether the Board may require applicants to pass all four sections of the clinical examination in light of its regulation which requires successful completion of only three of the four sections of the examination. In its simplest form the issue is whether the Board must comply with its own regulation.

Initially we observe that under KRS 313.220(1), the Board has authority to adopt regulations and to ". . . select the subjects and the standards of proficiency and percentages for examinations. . ." Under these circumstances, the Board's adoption of the Association's clinical examination and the adoption of the requirement in its regulation, 201 KAR 8:220, that applicants pass three of its four sections are valid actions. 5 As such, the regulation has full effect of law, Rietz v. Williams, Ky., 458 S.W.2d 613, 617 (1970).

A valid regulation binds those to whom it is directed, cf. Reeves v. Finley's Model Dairy, 314 Ky. 380, 235 S.W.2d 995 (1951). Although the appellate courts of Kentucky have not decided the precise issue of whether a regulation binds the agency which adopts it, we are of the opinion that an administrative agency is bound to observe its own regulations.

In J.B. Blanton Company v. Lowe, Ky., 415 S.W.2d 376 (1967), the issue was the correct interpretation of a zoning regulation. In upholding the zoning board's interpretation of the regulation, the Court said that it would give great weight to the contemporaneous construction which the administrative agency places upon its regulation. In support of its rule, the Court cited 2 Am.Jur. 2d Administrative Law § 307 which reads in part:

"An administrative construction of the agency's own regulation is controlling in determining their meaning unless plainly erroneous or inconsistent with regulation. " (emphasis supplied) .

We conclude that the Lowe case, supra, and the authority quoted above, clearly indicates the court would hold administrative agencies bound by their own regulations. Our conclusion in this regard is supported by secondary authorities:

"While an administrative agency may amend or rescind its rules and regulations . . . , so long as a rule or regulation remains in force and without change the agency is as much bound by such rule as the public to whom it was directed. 19

Further support for our conclusion is derived from the plain wording of the statute itself, cf. Gateway Const. Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962), which empowers the Board to issue regulations, "[The Board] may make regulations for its own conduct and procedure. . ." KRS 313.220(1) (emphasis supplied) . Powers delegated to administrative agencies must be exercised according to the terms of the enabling statute, cf. Louisville & Jefferson County Plan. & Z. Com'n v. Ogden, 307 Ky. 362, 210 S.W.2d 771, 773 (1948). It would be a strained argument to hold the Board has power to regulate itself and also the power to disregard its own regulation thereon.

It may also be observed that the courts stress an administrative agency cannot add to or subtract from its statutory authority, Johnson v. Correll, Ky., 332 S.W.2d 843 (1960). This principle should also apply to its regulations which, as noted above, have the force of law. Had the Board orally informed applicants that only two of the four sections need to be successfully passed, the applicants could not take advantage of the oral statement because the State is not subject to equitable estoppel, 2 Am. Jur. 2d Administrative Law § 189. If the Board cannot subtract from its regulation to benefit an applicant, it follows that the Board cannot add thereto to the detriment of an applicant.

While we are of the opinion that the Board must strictly adhere to 201 KAR 8:220(2) in its determination of what constitutes successful completion of the clinical examination, we would be remiss in our duty if we failed to add this caveat. The consequence of our opinion is that applicants who take the Association's clinical examination are successful if they pass three of its four sections as provided in the regulation, 201 KAR 8:220(2). While the Board has discretion to select the examination which applicants will take, cf. Lincoln Nat. Bank v. County Dept. Commission, 294 Ky. 642, 172 S.W.2d 463, 470 (1943), the examination must "test in a satisfactory manner the qualifications of the applicant to practice dentistry. " KRS 313.050. It may be that successful completion of only three of the four sections of the Association's clinical examination will not satisfactorily test the applicant's qualifications. 6 If this is true, the regulation is invalid, cf. Lovern v. Brown, 390 S.W.2d 448 (1965). There is some authority that the Board can declare its regulation invalid, 7 Harrison's San. v. Commonwealth, Dept. of Health, Ky., 417 S.W.2d 137 (1967). If the Board thus acted, it is possible that an applicant could be required to pass all four sections of the Association's clinical examination. 8 This procedure raises several legal issues which we do not discuss now because the validity of the examination has not been questioned in this fashion.

SUMMARY: If the passage of three of the four parts of the Association's clinical examination is a satisfactory test as defined by KRS 313.050, we are of the opinion that the Board must adhere to the requirements of successful completion as set forth in 201 KAR 8:220(2). The rule of this opinion is limited to and extends no further than the statement of it in this SUMMARY.

Footnotes

Footnotes

1 KRS 313.040

"Examinations shall be clinical and written and of such a character as to test in a satisfactory manner the qualification's of the applicant to practice dentistry. "

"(1) Clinical examination: The requirements of the clinical examination shall be within the discretion of the board as to subject matter, but these requirements shall be agreed upon one (1) year prior to the examination, and must remain within the subjects contained in the regular curriculum of accredited dental schools.

(2) Successful completion of the clinical examination conducted by the Kentucky Board of Dentistry requires that a candidate receive an average of not less than seventy-five percent (75%) on each of three (3) of the four (4) sections of the examination administered. In addition to the aforementioned, an overall average of the four (4) sections of the clinical examination shall be not less than seventy-five percent (75%).

(3) A candidate may be dismissed during the course of the examination for gross malperformance as defined in the instructions to applicants. This dismissal requires the approval of two-thirds (2/3) of the board members present and administering the examination."

2 KRS 313.020

"Examinations shall be clinical and written and of such a character as to test in a satisfactory manner the qualification's of the applicant to practice dentistry. "

3 KRS 313.050:

"Examinations shall be clinical and written and of such a character as to test in a satisfactory manner the qualification's of the applicant to practice dentistry. "

4 201 KAR 8:220 provides:

5 Administrative agencies are presumed to act within the limits of their authority, Preston v. Clements, 313 Ky. 479, 232 S.W.2d 85, 88 (1950).

19 Columbia Broadcasting System v. United States, 316 US 407, 86 Led 1563, 62 S. Ct. 1194 (licensing agency); Farmers Co-op Co. v. Commissioner (CA8) 288 F.2d 315; American Broadcasting Co. v. Federal Communications Com. 85 App DC 343, 179 F.2d 437; Coleman v. Gary, 220 Ind 446, 44 NE2d 101." 2 Am. Jur. 2d Administrative Law § 309, at 138 (some footnotes omitted).

6 We offer no opinion on whether the Association's examination is satisfactory.

7 "Presumably an agency could find its own regulation invalid or invalid as applied to a particular litigant, . . ." Harrison's San v. Commonwealth, supra, at 138.

8 KRS 313.100

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