October 23, 1996
David C. Pillsbury Chairman State of North Carolina Board of Examiners for Speech and Language Pathologists and Audiologists
P. O. Box 16885 Greensboro, NC 27416-0885
Re: Advisory Opinion; Authority of State Board of Education and Board of Examiners for Speech and Language Pathologists and Audiologists to License Teachers of Speech-Language Impaired Students; Chapter 90, Article 22
Dear Mr. Pillsbury:
On October 1, 1996, you wrote the Attorney General to inquire whether the State Board of Education (State Board) had authority to issue licenses to qualified persons employed in the public schools as teachers of speech-language impaired students. In your letter you opine that only the North Carolina Board of Examiners for Speech and Language Pathologists and Audiologists (NCBESLPA) has the exclusive authority to issue "licenses" to speech-language pathologists and that the State Board’s decision to issue licenses is illegal. As you are aware, the relative authority of the State Board and the NCBESLPA to regulate the qualifications of persons employed to teach speech-language impaired students in the public schools is currently being litigated in North Carolina Board of Examiners for Speech and Language Pathologists and Audiologists v. North Carolina State Board of Education, et al., 122 N.C. App. 15, 468 S.E.2d 826 (N.C. App. March 19, 1996), appeal docketed, No. 177A96 (N.C. April 22, 1996), disc. rev. allowed, ___ N.C. ___, 472 S.E.2d 16 (N.C. June 12, 1996). However, the State Board’s authority to issue a credential called a "license" to persons who are qualified to teach speechlanguage impaired students in the public schools is not an issue in that case. Therefore, we will provide you with our opinion on the issues raised in your letter.
First, we disagree with your assertion that NCBESLPA has the "exclusive authority" to license persons who practice in the area of speech-language disabilities. Pursuant to the Constitution, the State Board has plenary constitutional authority over persons employed in the public schools subject only to laws enacted by the General Assembly. N.C. Const. Art. IX, § 5. Consistent with the State Board’s authority over public school employees, persons practicing speech pathology in the public schools are exempt from the jurisdiction of the NCBESLPA. This exemption is implicit in the General Assembly’s decision to limit the NCBESLPA’s regulatory authority to "persons offering speech and language pathology and audiology services to the public." N.C. Gen. Stat. § 90-292 (emphasis added). This limitation on the NCBESLPA’s jurisdiction is also expressly stated in N.C. Gen. Stat. § 90-294(c)(4) which provides:
- (c)
- The provisions of this Article do not apply to:
- (4)
- A person who holds a valid and current credential as a speech and language pathologist or
* * * audiologist issued by the North Carolina Department of Public Instruction or who is employed by the North Carolina Schools for the Deaf and Blind, if such person practices speech and language pathology or audiology in a salaried position solely within the confines or under the jurisdiction of the Department of Public Instruction or the Department of Human Resources respectively.
N.C. Gen. Stat. § 90-294(c)(4) (emphasis added).
In light of the State Board’s plenary constitutional authority and the express limitations on the NCBESLPA’s statutory authority, it is our opinion that the State Board has the authority to issue credentials to persons to teach speech-language impaired students in the public schools even if they do not hold a license from NCBESLPA.
Second, we disagree with your assertion that the State Board does not have the authority to call the credential it issues to a person qualified to teach speech-language impaired students a "license." Black’s Law Dictionary defines a "license" as a "certificate or the document itself which gives permission." The North Carolina Administrative Procedures Act (APA), N.C. Gen. Stat. § 150B et seq., defines a "license" as any certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in any activity, except licenses issued under Chapter 20 and Subchapter I of Chapter 105 of the General Statutes and occupational licenses.
N.C. Gen. Stat. § 150B-2(3).
Correspondingly, the APA defines "occupational license" as any certificate, permit, or other evidence, by whatever name called, of a right or privilege to engage in a profession, occupation, or field of endeavor that is issued by an occupational licensing agency. N.C. Gen. Stat. § 150B2(4a).
Finally, the APA defines "occupational licensing agency" as any board, commission, committee or other agency of the State of North Carolina which is established for the primary purpose of regulating the entry of persons into, and/or the conduct of persons within a particular profession, occupation or field of endeavor, and which is authorized to issue and revoke licenses. "Occupational licensing agency" does not include State agencies or departments which may as only a part of their regular function issue permits or licenses. N.C. Gen. Stat. § 150B2(4a)(Emphasis added).
In light of these definitions, it is clear that whatever the name NCBESLPA or the State Board might give to the credentials they issue, the law considers those credentials to be "licenses." Insofar as the law considers the credentials that the State Board issues to teachers to be "licenses," it naturally follows that the State Board may call the credentials it issues "licenses."
In reaching this conclusion, we expressly reject your assertion that the term "license" necessarily "denotes full professional qualification and general right to practice in all settings." The "right" or "privilege" granted by a "license" is always limited to the jurisdiction of the granting authority. The "license" which the State Board issues to teachers of speech-language impaired students is limited to the practice of speech and language pathology or audiology in a salaried position solely within the confines or under the jurisdiction of the Department of Public Instruction. N.C. Gen. Stat. § 90-294(c)(4). A person holding a license from the State Board to serve speech-language impaired students in the public schools cannot offer speech-language
pathology services to the general public without a license from the NCBESLPA. Correspondingly, the "license" which the NCBESLPA issues to speech-language pathologists is limited to persons offering speech and language pathology and audiology "services to the public." N.C. Gen. Stat. § 90-292. Local boards of education cannot employ persons who hold licenses from NCBESLPA to serve speech-language impaired students in the public schools unless they hold or are qualified to hold a valid license from the State Board. N.C. Gen. Stat. § 115C-295. Thus, neither the State Board’s "license" nor NCBESLPA’s "license" denotes a "general right to practice in all settings" because neither the State Board nor NCBESLPA has general jurisdiction over all settings in which instruction of persons with speech-language impairments may occur. To the contrary, each license is specifically limited to practice within the jurisdiction of the agency or board that issues the license.
Your letter also notes several cases in which individuals have either been confused by the difference between the licenses issued by the State Board and the NCBESLPA or have taken advantage of dual licensure to evade the discipline of one or the other licensing body. While these cases are regrettable, they serve only to prove that the NCBESLPA and the State Board should work closely together to assure that their licensees and the public are aware of the limitations on their respective practices and should strive to coordinate their disciplinary actions to assure the public safety.
Edwin M. Speas, Jr. Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General