The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5519 July 2, 1979 CHIROPRACTIC, BOARD OF: Withdrawal of approval of college of chiropractic Until the Board of Chiropractic adopts rules pursuant to 1978 PA 368, the Board may not withdraw approval of a college of chiropractic based upon informal guidelines. Hon. Thomas J. Anderson State Representative The Capitol Lansing, Michigan 48909 You have requested an opinion regarding the legality of recent action of the Board of Chiropractic, hereinafter Board, in refusing to accept for examination and licensure graduates from Sherman College of Straight Chiropractic, hereinafter Sherman College. The minutes of the April 24, 1979 meeting of the Board reveal a resolution was passed to accept for examination and licensure 'only graduates from the schools approved by the Council on Chiropractic Education and those from schools that the Board has inspected and approved.' Sherman College is not approved by the Council on Chiropractic Education nor has it been inspected by the Board. However, graduates from Sherman College have been accepted by the Board for examination and licensure since 1976. The Board is established pursuant to the Public Health Code, 1978 PA 368, as amended, MCLA 333.1101 et seq; MSA 14.15(1101) et seq, and is vested with authority to evaluate the qualifications of, and grant licenses to, persons who meet the necessary standards for licensure as a chiropractor in Michigan. With regard to the educational qualifications of an applicant, 1978 PA 368, supra, Sec. 16174, provides in pertinent part: 'An individual licensed or registered under this article shall: ' (c) Have a specific education or experience in the health profession or in a subfield or specialty field of a health profession, or training equivalent, or both, as prescribed by this article or rules of a board necessary to promote safe and competent practice and informed consumer choice.' The precise nature of that 'education or experience' is not set forth in 1978 PA 368, supra. Responsibility to implement specific requirements is vested in the Board pursuant to 1978 PA 368, supra, Sec. 16145(3)(a), which provides as follows: 'A board shall promulgate rules: '(a) To specify requirements for licenses and registrations, renewals, time and place of examinations, subjects of examinations, and required grades.' With specific regard to the approval of educational programs, 1978 PA 368, supra, Secs. 16148(1) and (2) in pertinent part provide: '(1) Except as provided in section 17060, (1) only a board may promulgate rules to establish standards for the education and training of individuals to be licensed or registered, or whose licenses or registrations are to be renewed, for the purposes of determining whether graduates of a training program have the knowledge and skills requisite for practice of a health profession or use of a title. '(2) Except as provided in section 17060, only a board may accredit training programs in hospitals, schools, colleges, universities, and institutions offering training programs meeting educational standards and may deny or withdraw accreditation of training programs for failure to meet established standards. An institution which has its program accreditation withdrawn shall have an opportunity for a hearing.' Under this section, the Board has authority to accredit educational programs, deny accreditation, and withdraw its accreditation. It may only do so pursuant to established standards promulgated as rules under the Administrative Procedures Act of 1969, 1969 PA 306, as amended, MCLA 24.201 et seq; MSA 3.560(101) et seq. In the event the Board withdraws its accreditation from an educational institution for failure to meet standards established through the rule-making process, the affected institution must be given the opportunity for a hearing. To date, the Board has not promulgated rules to implement the aforesaid sections of 1978 PA 368, supra. The Board's failure to promulgate rules implementing the accreditation provisions of 1978 PA 368, supra, does not entirely prohibit the Board from imposing qualifications on applicants for examination and licensure. 1978 PA 368, supra Sec. 25201, in pertinent part, provides: '(1) Where a section of this code authorizes or directs the promulgation of rules, including rules fixing fees, but rules dealing with the subject matter do not exist when the section takes effect, a statutory provision covering the matter, which is repealed by this code, shall nevertheless continue in effect until rules covering the matter take effect or for 3 years, whichever is sooner. '(2) Rules in effect on the effective date of this code shall continue to the extent that they do not conflict with this code, and shall be considered as rules promulgated under this code.' Before 1978 PA 368, supra, went into effect on September 30, 1978, the educational criteria for licensure of chiropractors was governed by 1933 PA 145, as amended; MCLA 338.151 et seq; MSA 14.591 et seq. No rules concerning educational requirements were promulgated under that act. Therefore, educational qualifications are presently governed by the applicable provisions of 1933 PA 145, supra, Sec. 3, which shall 'continue in effect until rules covering the matter take effect or for 3 years, whichever is sooner,' as provided in 1978 PA 368, Sec. 25201, supra. The applicable provision is 1933 PA 145, Sec. 3, supra, as last amended by 1978 PA 340, which states in pertinent part: '(2) An applicant shall show to the satisfaction of the board that the applicant: ' (b) Is a graduate of a recognized school or college of chiropractic which does not permit correspondence or night courses requiring for graduation a course of study of not less than 4,000 45 minute class hours.' Under this statute, the Board has no authority to withdraw recognition from an approved school for reasons other than those specifically stated in the statute. It is equally clear that the Board has not acted under the provisions of 1978 PA 368, supra, to withdraw accreditation according to standards established by rule under 1978 PA 368, Sec. 16148(1), supra, after an evidentiary hearing under 1978 PA 368, Sec. 16148(2), supra. The matter at hand is not unlike that in Baker v State Board of Dentistry, 63 Mich App 729, 732-733; 235 NW2d 157, 158 (1975), in which the Dental Board sought to discipline a licensee on the basis of an unpublished informal guideline. The court first observed that the Board had not complied with 1969 PA 306, supra, with regard to promulgation, publication and public access to the informal guidelines being applied in the instant case. In vacating the Board's action, the court stated: 'This case is perilously close to the interdiction in Osius v City of St Clair Shores, 344 Mich 693; 75 NW2d 25 (1956), that grants of legislative authority to boards cannot be left to the undefined caprice or choice of a board . . . '. . . We suggest to the Board of Dentistry that if it contemplates suspension or other disciplinary actions under the statute, that it spell out clearly, in properly promulgated rules, the guidelines it proposes to use to grant or withhold approval of the bi-location practice.' Cf. Mallchock v Liquor Control Comm, 72 Mich App 341; 249 NW2d 415 (1976); State Board of Dentistry v Blumer, 78 Mich App 679; 261 NW2d 186 (1977). The mandatory provisions of 1978 PA 368, Sec. 16145(3)(a), supra, make it clear that the Board may not proceed in this area by use of informal guidelines. Until rules are promulgated, the only educational grounds upon which applicants may be denied opportunity for examination and licensure are those stated in 1933 PA 145, Sec. 3, supra, in effect until the Board adopts rules or September 30, 1981, whichever is sooner. It is my opinion, therefore, that the Board's action denying graduates of Sherman College the opportunity for examination and licensure in Michigan is invalid. Frank J. Kelley Attorney General (1)