Ethics vs. Legal Jurisdiction
by Melanie Frazek
(This article originally appeared in the February 4, 2003 issue of The ASHA Leader.)
By virtue of our professional status and work orientation, speech-language pathologists and audiologists are subject to, and governed by, several distinct entities. Frequently, however, individuals confuse not only the purpose, but also the rules, codes, and/or laws of one body with another.
Distinctions Between Professional Associations and Legal Regulatory Agencies
One of the first and simplest distinctions to make is the difference between professional associations and legal regulatory agencies.
Professional associations were originally created to bring together individuals united in a common professional purpose and to further professional goals. Membership is voluntary but, as with ASHA, membership also incurs both the obligation and responsibility to abide by the Code of Ethics. Nonmembers holding ASHA's Certificate of Clinical Competence, applicants for membership or certification, and Clinical Fellows are also bound by the Code of Ethics.
When an individual of any one of these aforementioned groups is alleged to have violated the Code, ASHA's Board of Ethics has jurisdiction over the individual to adjudicate the case and determine whether a violation of the Code has indeed occurred and what sanction is appropriate.
On the other hand, each state has an administrative agency responsible for the regulation of licensed professionals within the state (e.g., physicians, nurses, dentists). This includes the regulation of the professions of speech-language pathology and audiology in those states that require a license to practice. A licensure law is legislatively enacted; it is not derived from any authority of the state's professional association. When one obtains the required license to practice in the state, one is legally bound to adhere to the licensure law (also commonly known as a "Practice Act").
Practitioners' Need for Knowledge of State Licensure Laws and Regulations
Granted, most professionals know whether their state of employment requires a license to practice, but it is advisable for practitioners to become familiar with the actual licensure law and the administrative rules that interpret and provide additional information regarding the mandates of the law itself.
A licensee alleged to have violated the state's Practice Act is subject to that state agency's investigation of the allegations and to the discipline that may be imposed as a result thereof. The ramifications of violating a licensure law may include reprimand, censure, suspension, revocation, and/or civil penalties in the way of monetary fines. Suspension and revocation of the license remove the right to practice the profession in the state.
Relationship Between ASHA Code of Ethics and State Regulatory Statutes
Although it appears that ASHA's Code of Ethics and a state's regulatory statute represent two separate jurisdictions, there are at least three caveats to suggest that "somewhere between, the two shall meet." The first occurs when a state reports its discipline of a state licensee to ASHA or vice versa. Upon receiving this information, the receiving entity then proceeds according to its own procedures to determine if there is a violation of its respective code or law.
Secondly, upon reading one's state licensure law and supporting administrative rules, one may find proscriptions that are ethically oriented toward professional conduct.
Third, some state licensure laws actually incorporate by reference the ASHA Code of Ethics, thereby making the licensee subject to the Code (even if the licensee is not a member of ASHA). In this latter case, an alleged violation of ASHA's Code of Ethics subjects the licensee to the investigatory and disciplinary procedures of the state licensing body for that alleged violation.
The jurisdictional scenarios above become somewhat more confounded when SLPs employed in the schools are issued a credential by an educationally related agency. Moreover, individuals frequently interchange the terms "license" and "certificate" when, in fact, each represents a distinct credential issued by a different agency.
Unfortunately as well, there can be the potential "occupational hazard" of the practitioner naively following one state agency's guidelines that may conflict with our professions' specific Practice Act in that state or that may be contrary to our professions' ethical principles.
It is important, therefore, to remain fully informed of the legal and ethical obligations inherent in the retention of one's speech-language pathology and audiology credentials and membership in professional associations. Where there may be a potential conflict in varying regulations, the best rule of thumb is to follow the higher standard. Then no one can question, much less criticize, one's ethics and professional performance.
Melanie Frazek previously served as a member of the ASHA Board of Ethics.