MASSACHUSETTS NURSES ASSOCIATION vs. BOARD OF REGISTRATION IN NURSING & another. [Note 1]

GREANEY, C.J. We must decide whether, as claimed by the Massachusetts Nurses Association (MNA), certain regulations of the Board of Registration in Nursing (board) seeking to carry out legislative directives for the continuing education of nurses are invalid. We conclude, as did a judge of the Superior Court, that they are valid and affirm the judgment which so declares.

The material facts have been developed in the context of MNA's motion for summary judgment, Mass.R.Civ.P. 56(a), 365 Mass. 824 (1974), and are undisputed. By St. 1977, c. 884, Section 1, the Legislature amended G. L. c. 112, Section 74, to require the board to promulgate rules and regulations for the continuing education of nurses. [Note 2] Pursuant to the statute, the board, in March, 1980, adopted regulations which delegated the prior approval of all continuing education programs to the MNA and two other nursing organizations. [Note 3] Questions soon arose whether the board's wholesale delegation of its approval power was lawful and whether the delegation involved possible violations of G. L. c. 268A, governing the conduct of public officials and employees. [Note 4] After inquiry, opinions were conveyed

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to the board by the general counsel of the Executive Office of Community Affairs (EOCA) and by the State Ethics Commission disapproving of the board's procedure. [Note 5]

The Advisory Council on Continuing Education, see G. L. c. 112, Section 74C, considered these problems with the original regulations and recommended revised regulations by which approval would not be delegated to organizations. [Note 6] These recommended regulations are, in substance, those under consideration in this appeal. The board made certain changes and then circulated the proposed regulations to interested groups, including the MNA. On August 18, 1981, the board held a public hearing and received testimony on the regulations from individual nurses as well as representatives of hospitals, schools, commercial vendors, and professional nursing organizations. At 244 Code Mass. Regs. Section 5.04 (1981) the board established "Criteria for Qualification of Continuing Education Programs/Offerings," and at Section 5.05 (1981) it established "Responsibility of Individual Licensee." [Note 7] MNA filed a complaint

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in the Superior Court seeking a declaration under G. L. c. 231A that the regulations are invalid. [Note 8] The board's motion to dismiss, alleging that MNA lacked standing to challenge the regulations, was denied. On MNA's motion for summary judgment, the judge concluded that MNA had standing to seek judicial review and entered a judgment in the board's favor declaring that "[t]he regulations of the Board of Registration in Nursing pertaining to the continuing education of nurses, codified at 244 CMR 5.00 et seq. are lawful and in accordance with the requirements of G. L. c. 112, Sections 74 and 74A, and are neither arbitrary nor capricious nor unreasonable."

MNA argues that the board has failed to establish a "procedure for the approval of programs" as directed by the third requirement in G. L. c. 112, Section 74, see note 2, supra. [Note 9] Without such a procedure, MNA concludes that the regulations are invalid on their face. The board contends, on the other hand,

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that it has a procedure for the approval of programs which derives from (1) Section 5.04, which provides detailed substantive guidelines to assist nurses in selecting, and providers in designing and carrying out, appropriate educational programs, (2) Section 5.05(2), which provides for verification on a random basis of continuing education offerings, and (3) a procedure for dealing with complaints concerning the quality of providers' programs. The narrow legal issue before us, [Note 10] therefore, is whether, in light of the standards governing the adoption of regulations by an administrative agency entrusted with enforcing a statute, there is enough in the board's approach to the approval of programs to satisfy the Legislature's directives. [Note 11]

1. By enacting c. 112, Section 74, the Legislature decided, in furtherance of the public welfare, that nurses, as a condition of relicensure, should maintain or improve their health care skills by continuing their education. The Legislature left administration of the statute to the board, not to the courts, and outlined, in furtherance of the general statutory goal, four areas (see note 2, supra) for the board to address by rule or regulation. While the Legislature's identification of these areas limited the board's discretion in some respects, there is -- on the issue which we are concerned with -- nothing in the words of the statute which requires that the board adopt a procedure for conferring prior approval on all continuing education programs. [Note 12] See Boylston Water Dist. v. Tahanto Reg. Sch.

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Dist., 353 Mass. 81, 83-84 (1967); Beeler v. Downey, 387 Mass. 609, 617 (1982). Indeed, the legal concept of "approval" goes beyond the notion of approval in advance and encompasses ratification or confirmation of prior conduct and decisions. See Black's Law Dictionary 94, 1135 (5th ed. 1979). We think the legislative grant, despite the enumeration of specific areas to be covered by regulation, confers on the board a reasonable range of discretion concerning "how to carry out a [relatively] new legislative program with reasonable flexibility and in an orderly [and lawful] manner, giving suitable weight to the personnel and resources available to the agency." [Note 13] See Brooks v. Architectural Barriers Bd., 14 Mass. App. Ct. 584, 588-589 (1982), and cases cited.

Pursuant to the statute, the board, in Sections 5.04 and 5.05: (1) sets forth standards which must be satisfied by an individual nurse to complete satisfactorily the continuing education requirement; (2) requires each nurse to select courses pursuant to a series of very specific guidelines which articulate, among other things, the types of acceptable programs (see Section 5.04[2]), the amount of instruction required (see Section 5.04[1]), and other criteria for the evaluation of programs; (3) delineates for providers in considerable detail what is to be contained in a suitable program; (4) provides for the selective random audit of education programs (Section 5.05[2]); and (5) requires that providers of

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programs retain complete records of any program for a period of four years (Section 5.04[2][g]). Moreover, the board makes itself available to investigate complaints about the quality of programs. The board's regulations appear to be largely designed to encourage the development of programs by new providers since the statute expressly makes provision for programs offered by licensed health care facilities and accredited educational institutions. [Note 14] We suspect that the latter two groups of facilities (and in particular the teaching hospitals and seventy-six schools that have nursing programs), see emphasized language in note 2, supra, provide a large number of programs and courses from which nurses can choose offerings appropriate to their specialties and interests.

The board reasonably could have recognized the inherent difficulty and impracticality in approving in advance the great number of programs made available to nurses. [Note 15] Having in

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mind the board's limited resources, see note 13, supra, the fact that delegation of some or all of the board's authority to approve courses, on court challenge, might be found unlawful, and the likely existence of a considerable number of programs satisfying the regulatory criteria which are presently available through licensed health care facilities and accredited educational institutions, it is reasonable to assume that individual nurses, as consumers of the service of continuing education as well as professionals, are fully capable of employing the board's criteria to select appropriate courses to satisfy continuing education obligations. [Note 16] There is nothing to preclude nurses from consulting with the board's staff prior to registering for a program to ascertain whether the program would satisfy their obligation.

Within this general framework, in the absence of objection to the revised regulations from the Joint Legislative Health Committee, and in view of the advice of the Advisory Council on Continuing Education and the information received at the public hearing, it was within the board's discretion to have determined that a procedure for the systematic random audit of programs would provide reasonable assurances that acceptable programs were being offered. This random audit process puts providers on notice that their continuing education programs may be reviewed. [Note 17] First, the providers are required to

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keep records of course offerings for a four-year period (see Section 5.04[g]), the same time period that nurses are required to keep records of qualifying courses completed (see Section 5.05). Second, as part of the audit process, the board requires that nurses submit appropriate documentation about continuing education courses including, among other things, the name of the school, institution, or organization conducting the course, the location of the course, the title of the course, the dates attended, the hours claimed, and the name (or signature) of any authorizing individual involved (see Section 5.05[2][a] through [f]). Third, the regulations inform providers (as well as nurses) of the necessary criteria for continuing education programs (see Section 5.04). Thus, the board's regulations (those which involve nurses in the initial stages of selecting programs, specify explicit criteria to guide providers as to what courses to offer and nurses as to what courses to take, and provide a retroactive audit procedure), taken as a whole and considered with the ability of nurses and providers to consult with the board in advance about the suitability of programs, fulfil the statutory requirement of a "procedure for the approval of programs."

The board's procedure doubtless could be improved. It may not be as comprehensive as one which would have furnished prior approval to all programs (even if such an approach could be feasibly accomplished), and it may, in the cases of some nurses, be difficult or unfair in its application. Problems in application, however, are outside the purview of the MNA's

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present attack on the facial validity of the regulations. [Note 18] Giving consideration to the heavy burden which must be met by a litigant attacking the validity of regulations, see Rock v. Massachusetts Commn. Against Discrimination, 384 Mass. 198, 206 (1981), the standards governing that question, [Note 19] and the principle that a regulation is not invalid merely because a litigant contends "that the `ultimate efficacy' of achieving the statutory purpose is in question, or that the means to achieve the statutory end is rough, illogical or not the best available," Shell Oil Co. v. Revere, 383 Mass. 682, 687 (1981), we conclude that the board has reasonably complied with the statutory mandate. [Note 20]

2. MNA also makes two challenges to the validity of the regulations on procedural grounds, both of which can be dealt with summarily.

(a) No prejudice has resulted from the board's publication of the revised regulations in the Massachusetts Register prior to their filing with the Joint Legislative Committee on Health Care, since the regulations did not take effect for more than thirty days after their submission to the committee. See Massachusetts State Pharmaceutical Assn. v. Rate Setting Commn., 387 Mass. 122, 129 (1982). The committee was afforded the

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opportunity to review and comment on the regulations, thereby fully discharging the obligation imposed on it by G. L. c. 112, Section 74.

(b) The Advisory Council on Continuing Education made the initial recommendations to the board to revise the regulations pursuant to G. L. c. 112, Section 74C. We see no merit in MNA's argument that, since all the seats on the council were not filled at the time of these recommendations, the regulations are invalid. There is nothing in Section 74C which requires that the council formally approve the regulations and that statute does not require that the board consult with any specific number of council members before adopting regulations.

Judgment affirmed.