              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sandra S. Cary,                         :
                   Petitioner           :
                                        :    No. 2581 C.D. 2015
            v.                          :
                                        :    Argued: November 16, 2016
Bureau of Professional and              :
Occupational Affairs,                   :
State Board of Medicine,                :
                   Respondent           :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION BY
JUDGE McCULLOUGH                                          FILED: January 31, 2017


            Sandra S. Cary (Cary) petitions this Court for review of the November
18, 2015 order of the Bureau of Professional and Occupational Affairs, State Board
of Medicine (Board),       which   adopted    a hearing     examiner’s   adjudication
recommending that the Board deny Cary’s application for licensure as a behavior
specialist, and rejected her exceptions to the hearing examiner’s adjudication. The
sole reason the Board denied Cary’s application for licensure was because the
educational institution at which she received her Master’s Degree in Counseling
Psychology, Emmanuel Baptist University, a now-defunct entity, did not appear to be
accredited by either of the two institutional organizations that the Board informally
designated as acceptable accrediting bodies. Upon review, we reverse the Board’s
order and remand to the Board with direction to grant Cary a license.


                              Statutory and Regulatory Background
                   By way of background, in 2008, the General Assembly adopted
amendments to the Insurance Company Law of 1921 (Insurance Law),1 addressing
insurance coverage for the diagnosis and treatment of individuals under the age of
twenty-one who are or may be on the autism spectrum. In this legislation, sometimes
called “Act 62,”2 the General Assembly – apparently for the first time in the
Commonwealth’s history – imposed licensure requirements for a “behavior
specialist.”3 Among other things, these requirements mandate that an applicant
seeking a license demonstrate that he or she “[h]as received a master’s or higher
degree from a board-approved, accredited college or university, including a major




         1
             Act of May 17, 1921, P.L. 682, as amended, 40 P.S. §§341-1007.15.

         2
             Section 635.2 of the Insurance Law, added by the Act of July 9, 2008, P.L. 885, 40 P.S.
§764h.

         3
             Section 635.2(f)(4) of the Insurance Law defines “behavior specialist” as:

                   [A]n individual who designs, implements or evaluates a behavior
                   modification intervention component of a treatment plan, including
                   those based on applied behavioral analysis, to produce socially
                   significant improvements in human behavior or to prevent loss of
                   attained skill or function, through skill acquisition and the reduction
                   of problematic behavior.

40 P.S. §764h(f)(4).




                                                     2
course of study in . . . counseling psychology[.]” Section 635.2(g)(2)(ii) of the
Insurance Law, 40 P.S. §764h(g)(2)(ii) (emphasis added).4
                Pursuant to section 635.2(g)(1) of the Insurance Law, the General
Assembly expressly authorized the Board to “promulgate regulations providing for
the licensure or certification of behavior specialists.” 40 P.S. §764h(g)(1). Relevant
for our purposes, the Board exercised this authority by promulgating the regulation at


       4
           The educational requirements are as follows:

                (2) An applicant applying for a license or certificate as a behavior
                specialist shall submit a written application on forms provided by the
                State Board of Medicine evidencing and insuring to the satisfaction of
                the board that the applicant:

                (i) Is of good moral character.

                (ii) Has received a master’s or higher degree from a board-approved,
                accredited college or university, including a major course of study in
                school, clinical or counseling psychology, special education, social
                work, speech therapy, occupational therapy or another related field.

                (iii) Has at least one year of experience involving functional behavior
                assessments, including the development and implementation of
                behavioral supports or treatment plans.

                (iv) Has completed at least one thousand (1,000) hours in direct
                clinical experience with individuals with behavioral challenges or at
                least one thousand (1,000) hours’ experience in a related field with
                individuals with autism spectrum disorders.

                (v) Has completed relevant training programs, including professional
                ethics, autism-specific training, assessments training, instructional
                strategies and best practices, crisis intervention, comorbidity and
                medications, family collaboration and addressing specific skill
                deficits training.

Section 635.2(g)(2) of the Insurance Law, 40 P.S. §764h(g)(2).



                                                  3
49 Pa. Code §18.524(a), which tracks the pertinent statutory language and provides
that “[a]n applicant for licensure as a behavior specialist shall satisfy the Board that
the applicant . . . has received a master’s or higher degree from a Board-approved,
accredited college or university[.]” Id. (emphasis added).
              The Board, however, did not promulgate any regulation with respect to
what exactly is an “approved” or “accredited” college or university or how one is
determined to belong in this class. Instead, through an informal statement of policy
contained in the Board’s letters denying applications, the Board stated that it only
recognizes the Council for Higher Education Accreditation (CHEA) and the United
States Department of Education (USDE) as accrediting entities for the purpose of
determining whether an applicant’s degree was obtained from a “Board-approved,
accredited” university. (Reproduced Record (R.R.) at 165a.) Notably, there is no
“grandfather clause” in the Insurance Law or the Board’s regulations that would
permit experienced individuals who have practiced as a behavioral specialist to obtain
a license based upon that experience.5


                               Facts and Procedural History
              On March 27, 2013, Cary filed an application for a behavior specialist
license with the Board, which provisionally denied the application. The matter was
then assigned to a hearing examiner who convened an evidentiary hearing. After

       5
         See Document Prepared by the Department of Public Welfare (DPW), with input from the
Board, regarding frequently asked questions by applicants for a behavior specialist license, created
May 23, 2014, and located at http://164.156.7.185/parecovery/documents/BSC-ASD_FAQ.pdf;
Gray v. Bureau of Professional & Occupational Affairs, (Pa. Cmwlth., No. 1691 C.D. 2014, filed
July 10, 2015) (unpublished), slip op. at 6 (observing that there is no “grandfather clause” in the
Insurance Law for the licensure of behavior specialists).




                                                 4
evaluating the evidence of record, the hearing examiner made the following findings
of fact:

            2.   [Cary] holds a Bachelor of Science Degree in
            Counseling from the Carolina Christian University.

            3.   [Cary] holds a Master of Science Degree in
            Counseling Psychology awarded by Emmanuel Baptist
            University on September 4, 1990.

            4.   Emmanuel Baptist University was part of Emmanuel
            School of Religion.

                                   *     *      *

            6.    After review of [Cary’s] application for licensure as a
            behavior specialist and related documents, the Board denied
            her application for licensure as a behavior specialist in the
            Commonwealth of Pennsylvania by letter dated October 21,
            2013.

            7.    [Cary] was notified that the reason for the denial of
            her application for licensure was that she did not meet the
            educational requirements mandated by Act 62, which
            requires that [an] [a]pplicant shall have attained a master’s
            degree or higher from a Board-approved, accredited college
            or university.

                                   *     *      *

            9.     Board regulations require that an applicant for
            licensure as a behavior specialist in Pennsylvania shall
            satisfy the Board that the applicant has received a master’s
            or higher degree from a Board-approved, accredited college
            or university.

            10. The [Insurance Law] requires that an applicant
            applying for a behavior specialist license in Pennsylvania
            shall submit evidence that the applicant has received a
            master’s or higher degree from a Board-approved,
            accredited college or university.


                                         5
11. The Board recognizes the [CHEA] or [USDE] as
accrediting bodies for graduate education.

12. [Cary’s] non-certified transcripts from Emmanuel
Baptist University . . . indicate accreditation by Southern
Association of Christian Schools, The American
Association of Theological Institutions, and American
Accrediting Educational Association of Christian Schools.

13. In reviewing [Cary’s] application for licensure, the
Board determined that in receiving her Master’s of Science
Degree in Counseling Psychology from Emmanuel Baptist
University, [Cary] did not meet the Board’s requirement
that she receive a master’s or higher degree from a Board-
approved, accredited college or university . . . .

14. Emmanuel Baptist University . . . is closed and no
longer in existence.

15. [Cary] cannot now prove that Emmanuel Baptist
University was a Board-approved accredited university at
the time [she] received her Master’s of Science Degree in
Counseling Psychology in 1990.

16. [Cary] completed all other requirements for licensure,
including online course work mandated by the Board.

                       *     *      *

18. [Cary] was employed by Behavioral Dynamics from
2005 until 2013 as a behavioral specialist consultant,
mobile therapist, strength based therapist, community
liaison and training coordinator.

19. As part of her job functions as a behavioral specialist
consultant and mobile therapist with Behavioral Dynamics,
[Cary] worked with autistic children and has particular
expertise in that area through both experience and raising an
autistic child.




                             6
             20. [Cary] excelled at her job as a behavioral specialist
             consultant [and was terminated from her position with
             Behavioral Dynamics after she was denied a license].
(Findings of Fact (F.F) at Nos. 2-4, 6-7, 9-16, 18-20) (citations to record omitted).
             From these facts, the hearing examiner determined that Cary failed to
sustain her burden of proving that she obtained a master’s degree from a Board-
approved university. (Conclusions of Law at Nos. 1-7.) The hearing examiner
explained:

             The criteria for licensure as a behavior specialist include
             having received a Master’s or higher degree from a Board-
             approved, accredited college or university. While [Cary]
             did receive a master’s degree in one of the fields specified
             in the [Insurance Law] and the Board’s licensure
             regulations, [she] could not provide documentation that
             Emmanuel Baptist University was a Board-approved,
             accredited university. The Board recognizes [CHEA] or the
             [USDE] as accrediting bodies for graduate education.
             [Cary’s] non–certified transcripts from Emmanuel Baptist
             University . . . indicate accreditation by Southern
             Association of Christian Schools, The American
             Association of Theological Institutions, and American
             Accrediting Educational Association of Christian Schools.

             In reviewing [Cary’s] application for licensure, the Board
             determined that . . . [Cary] did not meet the Board’s
             educational requirement that she receive a master’s or
             higher degree from a Board-approved, accredited college or
             university. Emmanuel Baptist University is closed and no
             longer in existence, and [Cary] cannot now prove that
             Emmanuel Baptist University was a Board-approved
             accredited university at the time [she] received her Master
             of Science Degree in Counseling Psychology in 1990.
             [Cary] was unable to contact the school or its parent school,
             Emmanuel School of Religion, to obtain the necessary
             information.

             Although the Board has not questioned [Cary’s] experience,
             the Board is unable to grant [her] licensure when she has


                                           7
            not met the educational requirements set forth in the
            [Insurance Law] and the Board’s regulations . . . . The
            Board cannot ignore the legislature’s mandate to
            accommodate [Cary] in this unfortunate instance.
(Hearing Examiner’s decision at 9-10.)
            Cary filed exceptions to the hearing examiner’s recommended decision
with the Board. By order dated November 18, 2015, the Board dismissed Cary’s
exceptions and adopted the hearing examiner’s proposed adjudication and order
denying Cary a behavior specialist license.


                                     Discussion
            Before this Court, Cary points to the facts that she:        received her
master’s degree from Emmanuel Baptist University over twenty-five years ago, in
1990, and the university is now defunct; has no ability to obtain information from any
source regarding the university’s accreditations; was terminated from her position as
a behavioral specialist with Behavioral Dynamics because she could not obtain a
license; and has thereafter suffered a dramatic decrease in her yearly income. Cary
also emphasizes that she has met all the other requirements for licensure and
highlights testimony from her employer and co-workers evidencing that her job
performance as a behavior specialist was exemplary.
            Grounded in this factual basis, Cary contends that Section 635.2(g)(2)(ii)
of the Insurance Law, the regulation at 49 Pa. Code §18.524(a), and the Board’s
policy of approving only CHEA and the USDE violates her substantive due process
rights because these legal measures are arbitrary and lack a rational relationship to a
legitimate governmental purpose. Cary further posits that the Board’s decision and
application of the Insurance Law and its regulations had the retroactive effect of
impairing her employment contract in violation of the constitution.


                                          8
             In addition, Cary asserts that the Board’s recognition of CHEA and the
USDE in a denial letter is a statement of policy, attempting to be a regulation with the
force of law, and is a legal nullity because the policy was never promulgated in
accordance with statutory requirements. Cary maintains that, consequently, “the
Board could have considered the accrediting bodies of Emmanuel Baptist and
approved them to grant her [a] license” and that “[t]he Board arbitrarily and
capriciously declined to consider any other accrediting bodies.”                (Cary’s
Supplemental Brief at 4.) Cary also avers that because the statement of policy is
void, the Board could not deny her a license “based on her inability to prove her
master’s degree was from a college or university accredited only by the CHEA or
USDE.” Id.
             Upon review, we agree with Cary that the Board acted arbitrarily and
capriciously in denying her application for a behavior specialist license.
             This Court’s scope of review of Board decisions is limited to
determining whether the Board committed constitutional violations, and/or errors of
law, or whether any necessary findings of fact are unsupported by substantial
evidence. Bethea-Tumani v. Bureau of Professional and Occupational Affairs, State
Board of Nursing, 993 A.2d 921, 925 (Pa. Cmwlth. 2010). To determine whether an
agency’s decisions are “in accordance with the law,” appellate review of the agency’s
conclusions is designed “to ensure that they are adequately supported by competent
factual findings, are free from arbitrary or capricious decision making, and, to the
extent relevant, represent a proper exercise of the agency’s discretion.” Fraternal
Order of Police, Conference of Pennsylvania Liquor Control Board Lodges v.
Pennsylvania Labor Relations Board, 735 A.2d 96, 99 (Pa. 1999).




                                           9
               Our precedent states as a rule that administrative action is “arbitrary and
capricious where it is unsupportable on any rational basis because there is no
evidence upon which the action may be logically based.”                      Lynch v. Urban
Redevelopment Authority of Pittsburgh, 496 A.2d 1331, 1335 (Pa. Cmwlth. 1985).
The United States Supreme Court has summarized the concept of arbitrary and
capricious as follows:

               The scope of review under the arbitrary and capricious
               standard is narrow and a court is not to substitute its
               judgment for that of the agency. Nevertheless, the agency
               must examine the relevant data and articulate a satisfactory
               explanation for its action including a rational connection
               between the facts found and the choice made. In reviewing
               that explanation, we must consider whether the decision
               was based on a consideration of the relevant factors and
               whether there has been a clear error of judgment . . . .

               The reviewing court should not attempt itself to make up for
               [an agency’s] deficiencies; we may not supply a reasoned
               basis for the agency’s action that the agency itself has not
               given.
Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile
Insurance Co., 463 U.S. 29, 43 (1983) (citation and internal quotation marks
omitted).
               As an illustrative example, in Adams County Interfaith Housing Corp. v.
Prevailing Wage Appeals Board, 981 A.2d 352 (Pa. Cmwlth. 2009) (en banc), the
Secretary of Labor and Industry declined to implement a wage rate classification for
residential construction under the Pennsylvania Prevailing Wage Act (Act). 6 After
noting that “the Secretary offered no reasoning whatsoever for refusing to
promulgate” such a classification, id. at 358, this Court observed that the Secretary

      6
          Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§165-1-165-17.



                                               10
decided that residential construction does not need to be included within or
determined as a wage rate classification. We concluded: “Although the Secretary
has the discretion to make such determination, as discussed earlier, that determination
must have some rational basis. The Secretary offered no rational basis for his refusal,
which therefore constitutes arbitrary and capricious action.” Id. (citation omitted).
              State ex rel. Westercamp v. State Board of Chiropractic Examiners, 352
P.2d 995 (Mont. 1960), provides guidance.         In that case, the applicants sought
licenses to practice chiropractic in Montana but the state board denied the licenses
because the applicants’ school had not been approved by the board. Pursuant to a
statute vesting the board with the duty to approve acceptable chiropractic colleges,
the board passed a code approving the schools that were accredited by the National
Chiropractic Association (N.C.A). Notably, the board did not conduct any personal
inspection of any of the schools it approved and its approval was based on
information received from the N.C.A. On appeal, the applicants argued, among other
things, that the board’s action in refusing to approve the applicants’ school and
reliance upon the N.C.A. “was so arbitrary that it amounted to no exercise of
discretion at all[.]” Id. at 997.
              On appeal, the Supreme Court of Montana agreed with the applicants.
In doing so, the court noted that the board no made no investigation of the merits of
the school, but relied solely on the recommendation of the N.C.A, whose own
regulations precluded consideration of the applicants’ school because the school was
not structured as a non-profit organization. The court held:

              We need not decide whether this sole reliance [on the
              N.C.A.] by the Board is an invalid delegation of power.
              But it is such a manifest abuse of discretion as to amount to
              a failure to act at all. We are not prepared to say that
              consideration cannot properly be given to recommendations


                                           11
             of an association of practitioners which fairly represent the
             profession and which strive to promote the highest
             standards of professional educational preparation. In this
             case, however, where no facts were before the Board for
             approval purposes save the fact of non-approval by the
             N.C.A. [and the N.C.A.’s] regulations preclude
             consideration in the first instance because of the corporate
             structure of the school, the Board has failed to perform its
             duty as prescribed by law.
Id. at 999 (citation omitted). Accordingly, the court in Westercamp granted the
applicants a writ of mandamus mandating that the board grant the applicants a license
upon condition that the applicants successfully complete an examination.
             Our decision in Whymeyer v. Department of State, Bureau of
Professional and Occupational Affairs, State Registration Board for Professional
Engineers, Land Surveyors and Geologists, 997 A.2d 1254 (Pa. Cmwlth. 2010), is
also instructive. There, a state licensing board denied the applicant the opportunity to
take an engineering examination because the applicant’s undergraduate degree was
not from a board-approved engineering school. The statute and regulation at issue in
Whymeyer required that an applicant graduate from “an approved engineering
curriculum” and a subsection to a regulation defined “engineering curriculum” to
mean “[a] curriculum of 4 or more years approved by a National accrediting
association recognized by the Board which leads to a baccalaureate degree . . . .” Id.
at 1258 (emphasis in original). The Board, ostensibly by means of an informal policy
statement, used accreditation from the Accreditation Board in Engineering and
Technology (ABET) to determine whether an applicant has graduated from an
approved engineering curriculum, and the applicant’s school was not accredited by
this organization. During the hearing, the applicant established that his school was
accredited by another institutional body and attempted to demonstrate that the school
from which he graduated was worthy of accreditation from the ABET.


                                          12
             In addressing the applicant’s constitutional challenge to the regulation on
vagueness grounds, this Court noted that the statute and regulation vested the Board
with discretion and authority to determine on a case-by-case basis whether a
university should be “board-approved.” We then concluded:

             Clearly, to the extent that the Board does not rely
             exclusively on ABET accreditation but exercises its
             independent judgment regarding an engineering program
             that lacks ABET approval, the regulation . . . is not void as
             applied.

             Here, however, the Board did not exercise its independent
             statutory authority to evaluate the [u]niversity’s electrical
             engineering program, but specifically declined to do so,
             relying exclusively on the lack of ABET accreditation.
             Accordingly, we find that the regulation was
             unconstitutionally applied in this case, and so reverse the
             order of the Board. In addition, we remand this matter to
             the Board with directions to permit [the applicant], upon
             application, to sit for the fundamentals of engineering
             examination.
Id. at 1260 (citations omitted).
             In this case, Section 635.2(g)(1) of the Insurance Law is remarkably
similar to the governing statutes in Westercamp and Whymeyer and grant the Board
the authority to determine, independently and on its own initiative, the educational
merits of any particular school. While the board in Westercamp was precluded by its
own code from engaging in such an assessment, and the board in Whymeyer decided
not to undertake such an inquiry, the critical fact is that the boards in both of those
cases possessed the statutory power to approve schools in a manner that they deemed
fit, but relied exclusively on a designated institutional body to determine which
schools will be accredited. The gist of the situation is no different here.   Although
Emmanuel Baptist University is no longer in existence, the school was accredited by


                                          13
Southern Association of Christian Schools, The American Association of Theological
Institutions, and American Accrediting Educational Association of Christian Schools.
As such, the Board could have examined these accreditations, along with Cary’s
course work, and performed some kind of comparative analysis to determine if
Emmanuel Baptist University was an “accredited college or university” or should be
“board-approved.” 40 P.S. §764h(2)(ii). However, the Board did not conduct or
undertake this task, and if the Board exercised any discretion in denying Cary’s
application for a license, it was when the Board chose CHEA and the USDE as the
accrediting entities.
             And herein lies the heart of the problem; that is, the manner and way in
which the Board recognized CHEA and the USDE. In its brief, the Board admits that
it “has never formally promulgated regulations defining ‘Board-approved, accredited
college or university’” and claims that “its recognition of [CHEA] and the [USDE] is
a statement of policy rather than a binding norm with the effect of law.” (Board’s
Supplemental Brief at 3).
             Our Supreme Court has explained the distinction between a statement of
policy and a regulation, which is also known as a binding norm, as follows:

             An administrative agency has available two methods for
             formulating policy that will have the force of law. An
             agency may establish binding policy through rulemaking
             procedures by which it promulgates substantive rules, or
             through adjudications which constitute binding precedents.
             A general statement of policy is the outcome of neither a
             rulemaking nor an adjudication; it is neither a rule nor a
             precedent but is merely an announcement to the public of
             the policy which the agency hopes to implement in future
             rulemakings or adjudications. A general statement of
             policy, like a press release, presages an upcoming
             rulemaking or announces the course which the agency
             intends to follow in future adjudications.


                                         14
                                   *      *      *

            The critical distinction between a substantive rule and a
            general statement of policy is the different practical effect
            that these two types of pronouncements have in subsequent
            administrative proceedings . . . . A properly adopted
            substantive rule establishes a standard of conduct which has
            the force of law . . . . The underlying policy embodied in the
            rule is not generally subject to challenge before the agency.

            A general statement of policy, on the other hand, does not
            establish a ‘binding norm.’ [It is not finally determinative
            of the issues or rights to which it is addressed. The agency
            cannot apply or rely upon a general statement of policy as
            law because a general statement of policy only announces
            what the agency seeks to establish as policy.]
Pennsylvania Human Relations Commission v. Norristown Area School District, 473
374 A.2d 671, 679 (Pa. 1977) (citations and footnotes omitted).
            This Court has further elaborated:

            The process by which regulations are issued provides an
            important safeguard for potentially affected parties against
            the unwise or improper exercise of discretionary
            administrative power. This process, which includes public
            notice of a proposed rule, making a request for written
            comments by any interested party, giving due consideration
            to such comments, and holding hearings as appropriate,
            affords the affected parties a democratic process for
            participation in the formulation of standards which govern
            their conduct and increases the likelihood of administrative
            responsiveness to their needs and concerns. Moreover, it
            gives the administrative agency facts and information
            relevant to the proposed rule, as well as opens up the
            agency to alternatives, detrimental effects, criticism and
            advice, thereby contributing to the soundness of the
            proposed regulation.      Not only is sound regulation
            promoted by this process, but it increases the likelihood of
            administrative responsiveness to the needs and concerns of
            those affected, because it promotes acquiescence in the


                                         15
              result, even when the objections of those affected remain
              the same as to substance.

              Statements of policy, however, need not be subject to notice
              and comment because, presumably, they only provide
              guidance by which administrative agency personnel carry
              out their power delegated to them by the General Assembly.
              Statements of policy are generally considered less
              structured and significant and, for those reasons, effect the
              agency belief that a policy is not sufficiently developed to
              be issued as a regulation.

                                         *      *       *

              [A] regulation is not defined substantively by what it is, but
              rather procedurally — by how it is issued . . . . It would
              appear that under the Commonwealth Documents Law
              [CDL7], the only difference between a regulation and
              statement of policy is how the agency pronouncement is
              issued. A statement of policy is transformed into a
              regulation by undergoing notice and comment pursuant to
              [the CDL and other formal requirements for promulgation.]

Department of Environmental Resources v. Rushton Mining Co., 591 A.2d 1168,
1171-72 (Pa. Cmwlth. 1991).
              We also set forth the detailed procedure for promulgating a regulation as
follows:

              The basic procedures by which an agency promulgates a
              regulation are set forth in the [CDL]. In essence, these
              procedures require an agency to give notice to the public of
              its proposed rule-making and an opportunity for the public
              to comment. However, this is only the beginning. The
              agency must also obtain the approval of the Attorney

       7
           Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602, and 45 Pa.C.S. §§ 501-
907, which, collectively, are known as the “Commonwealth Documents Law.” This was the official
short title of the 1968 enactment. See Section 101 of the Act of July 31, 1968, P.L. 769.




                                                16
             General and the General Counsel of a proposed regulation's
             form and legality. Sections 204(b) and 301(10) of the
             Commonwealth Attorneys Act, Act of October 15, 1980,
             P.L. 950, 71 P.S. §§732-204(b) and 732-301(10). Finally,
             an agency's regulation must also undergo legislative
             scrutiny in accordance with the Regulatory Review Act,
             [Act of June 25, 1982, P.L. 633, as amended, 71 P.S.
             §§745.1-745.12.] . . . . Section 5 of the Regulatory Review
             Act requires the agency to submit its proposed regulation to
             the appropriate committees of the Senate and House of
             Representatives; undergo public notice and a comment
             period; and obtain approval of the Independent Regulatory
             Review Commission. 71 P.S. §745.5.
Borough of Bedford v. Department of Environmental Protection, 972 A.2d 53, 62 &
n.12 (Pa. Cmwlth. 2009) (en banc).
             Regardless of the label an agency attaches to that which it devises, “[a]
determination as to whether a particular statement of policy is an unpromulgated
regulation is a question of law.” Eastwood Nursing and Rehabilitation Center v.
Department of Public Welfare, 910 A.2d 134, 140 (Pa. Cmwlth. 2006). Instantly, the
so-called statement of policy has all the characteristics of a binding norm or
substantive regulation, with the purported force of law. Importantly, the statement of
policy is not applied in a discretionary manner; instead, it was crafted by the Board to
be used as the legal guidepost to determine unconditionally, and in all instances,
whether the educational accreditation requirements for licensure are met. See Giant
Food Stores v. Department of Health, 713 A.2d 180, 182 (Pa. Cmwlth. 1998)
(concluding that a handbook was a regulation, rather than a statement of policy,
where the agency denied an applicant store recertification “based solely on its failure
to strictly satisfy the ‘selection and limitation’ criteria in the Handbook” and the
“Handbook [did] not give any discretion at all to the [agency] to recertify a store that
does not absolutely meet all of the selection and limitation criteria.”).       Despite
possessing the hallmarks of a traditional regulation, the Board’s statement of policy

                                          17
was never enacted pursuant to procedures in the CDL, which must be followed in
order to properly promulgate a regulation.
            Therefore, because the statement of policy was never promulgated as a
regulation, the statement of policy is void as a matter of law, is not entitled to any
form of administrative deference or presumption of reasonableness, and cannot be
used as the means by which to deny Cary a license.           See Northwestern Youth
Services, Inc. v. Department of Public Welfare, 1 A.3d 988, 992 (Pa. Cmwlth. 2010)
(“If an agency fails to properly promulgate a regulation in accordance with the CDL,
we will declare the pronouncement a nullity.”); Woods Services, Inc. v. Department
of Public Welfare, 803 A.2d 260, 264-66 (Pa. Cmwlth. 2002) (concluding that agency
could not deny an applicant a license based upon the agency’s “preference for small
facilities over larger ones” where the agency’s preference was never promulgated as a
regulation); cf. Eastwood Nursing and Rehabilitation Center, 910 A.2d at 141-42 (“It
is well settled law that an agency’s substantive regulations, when properly enacted
under the [CDL] have the force and effect of law and enjoy a general presumption of
reasonableness.”).
            Without a valid regulation formally adopting CHEA and the USDE as
accrediting agencies, it was absolutely imperative for the Board to articulate a
legitimate rationale accounting for why it chose CHEA and the USDE as the only
accrediting bodies. The Board also should have set forth a reason as to why CHEA
and/or the USDE are more suitable than the Southern Association of Christian
Schools, The American Association of Theological Institutions, and American
Accrediting Educational Association of Christian Schools, or, at the very least,
provided a statement justifying why the entities in the latter category were not chosen
as accrediting bodies. However, as in Adams County Interfaith Housing Corp., the



                                          18
Board “offered no reasoning whatsoever” or a “rational basis” for its choices in these
regards and has not sufficiently defended it exercise of discretion. 981 A.2d at 358.
Indeed, here, the Board did not even proffer an explanation as to how or in what
manner it picked CHEA and the USDE or how or in what manner CHEA and the
USDE pick institutions for accreditation. While it is certainly conceivable that the
Board made an informed decision and had legitimate reasons to choose these entities,
it is equally plausible, without evidence or argumentation to prove otherwise, that the
Board’s choice was not so based and was instead arbitrary. Absent substantiation in
the record, there is no basis upon which to determine how CHEA and/or the USDE
accredit schools, whether it be reliable and non-discriminatory or not. As such, this
Court is unable to discern from the record how the Board exercised its discretion in
selecting CHEA and the USDE, and the Board has failed to shed any meaningful
light with respect to the particulars of its decision.
             To survive judicial scrutiny, the Board “must examine the relevant data
and articulate a satisfactory explanation for its action,” and this Court “may not
supply a reasoned basis for the [Board’s] action that the [Board] itself has not given.”
Motor Vehicle Manufacturers Association, 463 U.S. at 43.          Therefore, absent a
satisfactory explanation as to why the Board decided that only CHEA and the USDE
would be accrediting bodies, this Court is constrained to conclude that the Board’s
order denying Cary a license was based on an arbitrary and capricious exercise of
discretionary power.


                                       Conclusion
             With the exception of proving that she obtained her master’s degree
from a Board-approved school, the Board determined Cary has satisfied all the
requirements necessary to obtain a behavioral specialist license. (F.F. at 15-16.)

                                             19
Having concluded on the current record that the Board acted arbitrarily and
capriciously when it determined that Cary did not meet the educational requirements
for licensure, because it did not promulgate any regulation and did not provide any
legitimate rationale for choosing CHEA and the USDE as the accrediting bodies, the
Board cannot use this as a basis upon which to deny Cary a license. Accordingly, we
reverse the Board’s order and remand to the Board with instruction to issue Cary a
behavioral specialist license.8          Because this Court’s conclusion rests on non-

       8
          The Dissent would remand to the Board to engage in some type of independent inquiry
regarding the merits of Emmanuel Baptist University as an institution and Cary’s course of
study. In advancing this proposal, the Dissent fails to appreciate the fact that the General Assembly
delegated the task of determining what is a “board-approved, accredited” school to the Board itself.
Our role as the judiciary is not to order the Board to engage a specific mode of analysis to determine
what is a “board-approved, accredited” school. Moreover, as a practical matter, without any
presently known or stated criteria to now determine what is a “board-approved, accredited school,”
it is most likely that if this Court were to remand to the Board to take another look at Cary’s
application, the Board’s second decision would be even more arbitrary.

         Nonetheless, the dispositive fact is that in implementing its licensing regime, the Board
decided to rely exclusively on accreditation by CHEA and the USDE, which, as the Dissent appears
to agree, constituted an arbitrary and capricious exercise of administrative power and an unlawful
basis upon which to deny Cary a license. In Whymeyer, where this Court concluded that the Board
denied the applicant the right to take a certification test on the unlawful basis that the applicant’s
school was not accredited by the ABET in accordance with an informal requirement of the Board,
we reversed the Board and remanded to the Board with express direction to permit the applicant to
take the test. The relief the Majority grants Cary is no different than that granted by this Court to
the testing applicant in Whymeyer.

        Contrary to the Dissent’s pronouncement, there is nothing in the Majority opinion that can
reasonably be construed as “a tacit approval of Emmanuel Baptist University,” (Dissent op. at 2),
and we fail to see how or from what language the Dissent draws such a conclusion. Our decision is
based upon the Board’s arbitrary and capricious exercise of power which thereby resulted in an
unlawful denial of Cary’s license. Following our decision, the Board is free to implement a new
policy or promulgate a regulation for future licensing cases. In allowing the Board to decide for
itself how it wants to determine in the future what is a “board-approved, accredited” school, we
believe that our course of action is prudent and respectful of the Board’s statutory delegation of
legislative power.



                                                 20
constitutional grounds, we decline to entertain any of the constitutional issues that
Cary raises. See In re Fiori, 673 A.2d 905, 909 (Pa. 1996) (“[C]ourts should avoid
constitutional issues when the issue at hand may be decided upon other grounds.”).




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge



Judge Wojcik dissents.




                                         21
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sandra S. Cary,                           :
                   Petitioner             :
                                          :    No. 2581 C.D. 2015
             v.                           :
                                          :
Bureau of Professional and                :
Occupational Affairs,                     :
State Board of Medicine,                  :
                   Respondent             :


                                      ORDER


             AND NOW, this 31st day of January, 2017, the November 18, 2015
order of the Bureau of Professional and Occupational Affairs, State Board of
Medicine (Board), is hereby reversed. The case is remanded to this Board with
instruction to issue Sandra S. Cary a behavioral specialist license.
             Jurisdiction relinquished.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sandra S. Cary,                                    :
                                 Petitioner        :
                                                   :
              v.                                   :    No. 2581 C.D. 2015
                                                   :    Argued: November 16, 2016
Bureau of Professional and                         :
Occupational Affairs, State Board                  :
of Medicine,                                       :
                         Respondent                :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge

DISSENTING OPINION
BY JUDGE BROBSON                                        FILED: January 31, 2017

              I agree with the majority’s analysis, but not its remedy. Specifically, I
would vacate the Bureau of Professional and Occupational Affairs, State Board of
Medicine’s (Board) decision, because the Board arbitrarily looked for
accreditations from two accrediting bodies in order to determine whether an
educational        institution     could      be       approved   by   the   Board   under
Section 635.2(g)(2)(ii) of The Insurance Company Law of 1921 (Insurance Law).1
The majority does not strike this provision from the law. The General Assembly’s
intent in this provision of the law, however, is very clear. One cannot obtain a

      1
        Act of May 17, 1921, P.L. 682, added by the Act of July 9, 2008, P.L. 885, 40 P.S.
§ 764h(g)(2)(ii).
license as a behavioral health specialist without a graduate degree from a
“Board-approved, accredited college or university.” So long as this law remains
on the books, it would be unlawful for the Board to issue a license to an applicant
unless and until the institution that issued the applicant’s advanced degree is both
“accredited” and “Board-approved.”
            The majority opinion reverses the Board’s decision, appropriately
taking the Board to task for failing to engage in a fulsome and appropriate
evaluation of Emmanuel Baptist University as an institution and Cary’s course of
study there, when determining whether the Board should approve the institution
and accept Cary’s degree. (Maj. Op. at 14.) Rather than remanding to the Board
to conduct this analysis, the majority essentially excuses the Board from doing that
which the General Assembly required by directing that the Board on remand
simply issue the license. Today, there is still no proper adjudication by the Board
as to whether Emmanuel Baptist University was, at the time it issued Cary’s
degree, an institution that the Board can or should approve. This Court should not
direct an executive branch agency to issue a license to anyone who does not satisfy
the statutory standards established by the General Assembly, unless, of course, the
Court declares the relevant standard unlawful and unenforceable. Because the
majority’s remedy in this matter amounts to a tacit approval of Emmanuel Baptist
University under Section 635.2(g)(2)(ii) of the Insurance Law without any
supporting record evidence, factual findings, or legal analysis, I must respectfully
dissent.

                                P. KEVIN BROBSON, Judge

Judge Wojcik joins in this dissenting opinion.



                                      PKB-2
