OAG 93-28

March 23, 1993

Vic Hellard, Jr.

Director, Legislative Research Commission

State Capitol

Frankfort, KY 40601

Dear Mr. Hellard:

This is in response to your recent letter in which you requested an opinion:

. . . as to whether any state or federal constitutional provision would be violated by a statutory requirement that, as a condition of licensure to practice medicine in this Commonwealth, a physician agrees to accept as a patient any individual who is within the class of those persons covered by a state created megapool for health care services.

In regard to federal constitutional issues, the placement of qualifications by a state on the ability to practice an otherwise legitimate profession is governed by the Due Process and Equal Protection Clauses of the 14th Amendment to the U.S. Constitution. The United States Supreme Court in Schware v. Board of Bar Examiners of the State of New Mexico, 352 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), held that:

A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the 14th Amendment. [Citation omitted.] A State can require high standards of qualifications, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law.

353 U.S. at 239, 77 S.Ct. at 756. (Emphasis added.)

While this decision may be somewhat dated, the principle of law quoted still holds true today. Therefore, while states are authorized to regulate certain professions practiced within their borders such regulation, in order to satisfy federal constitutional restrictions, must have a rational relationship to a legitimate state end.

This same standard of review has been adopted in Kentucky but is based upon Articles 1(5) and 2 of the Kentucky Constitution. Article 1(5) protects an individual's right to acquire and protect his property, which in this case is the right to practice a profession, and Article 2 prohibits the exercise of arbitrary power. A recent case in this area is McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977), in which the Kentucky Supreme Court held that state statutes which compelled physicians and hospitals to carry malpractice insurance and be members of a state-operated patients' compensation fund were unconstitutional. The Act provided that any physician who failed to obtain such insurance and become a member of the fund was required to show cause why his license should not be suspended. In striking down this requirement, the court determined that there was a lack of justification in the record of the case to find that the intrusion into the natural right of any individual to pursue a legitimate profession was rationally related to the legitimate end of the state to protect its citizens from unsatisfied malpractice claims.

Therefore, in order for the insurance requirement contained in your letter to withstand state and federal constitutional scrutiny, there must be some proof that the requirement has a rational relationship to some legitimate state end such as protecting the public from incompetent physicians or some other equally viable purpose. In pursuit of the legitimate state end of protecting the public from incompetent physicians, the General Assembly has established various requirement sin KRS 311.571 that individuals must satisfy in order to become licensed to practice medicine in this state. In comparing the requirements listed in KRS 311.571 to the one proposed in your letter, it appears to us that an amendment to KRS 311.571 or any other provision in KRS Chapter 311 requiring a physician to treat any individual covered by a certain type of insurance is not rationally related to the legitimate state end of that chapter which is to protect the pubic from improperly trained or educated physicians. However, such a requirement contained in another portion of the KRS may withstand constitutional scrutiny if a court could be convinced that the requirement is rationally related to some legitimate state end.

Yours truly,



Richard C. Carroll

Assistant Attorney General

(502) 564-7600