Can a Maryland licensing board refuse to let someone take a professional licensing exam just because they live out of state?

Plain-English summary

The Board of Examiners of Nursing Home Administrators asked the Attorney General whether it could turn away an out-of-state resident who wanted to sit for the Board's licensing examination. The governing statute, §8-305(a) of the Health Occupations Article, said an applicant "who otherwise qualifies for a license is entitled to be examined," and the list of qualifications in §8-302, good moral character, minimum age, and the Board's education, training, and experience standards, said nothing about where the applicant lived.

The Attorney General concluded that the Board could not add a residency requirement on its own, because an administrative agency's authority comes entirely from the statute that created it, and Maryland residency was not among the qualifications the General Assembly had written into the licensing law. The opinion noted that the Board could still set reasonable, uniformly applied deadlines and other requirements for proving an applicant met the education, training, and experience standards, just not a blanket bar based on residency alone.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland's nursing home administrator board legally require applicants to live in Maryland before letting them sit for the licensing exam?
No, according to this opinion. The Board's authority came entirely from Health Occupations §8-305(a) and §8-302, and residency was not listed among the qualifications the statute required, so the Board could not add one on its own.

What qualifications could the Board require of an applicant for the nursing home administrator exam?
The opinion identified only what the statute listed: good moral character, being at least 18 years old, and meeting the Board's education, training, and experience standards. An applicant who met those requirements was, in the opinion's words, "entitled to" take the exam regardless of state of residence.

Did this mean the Board had no control over how applicants proved they qualified?
No. The opinion said the Board could still impose reasonable, uniformly applied deadlines and documentation requirements for proving an applicant met the education, training, and experience standards; it just could not use residency itself as a gatekeeping qualification.

Background and statutory framework

Health Occupations §8-305(a) gave an applicant for a nursing home administrator license the "right to examination" once the applicant "otherwise qualifie[d]" under the statute. The opinion quoted the General Revisor's Note explaining that this standard "Right to examination" language appeared throughout the Health Occupations Article specifically to prevent a licensing board from arbitrarily denying an otherwise qualified applicant the chance to take a required exam.

Section 8-302 of the same article listed the actual qualifications: good moral character, a minimum age of 18, and meeting the Board's education, training, and experience standards, plus passing the examination itself. The opinion relied on Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394 (1979), for the basic administrative-law principle that agencies "are arms of the legislature and derive all their authority from the legislative branch," meaning the Board's actions had to stay consistent with what the statute actually authorized. Because residency appeared nowhere in §8-302's list of qualifications, the opinion concluded the Board could not read one into the statute, though it preserved the Board's ability to set reasonable and uniform procedural requirements, such as deadlines under COMAR 10.33.01.07A, for documenting that an applicant met the qualifications the statute did require.

Citations

Statutes:

• §8-305(a) of the Health Occupations Article ("Right to examination" for applicants who otherwise qualify)
• §8-302 of the Health Occupations Article (qualifications: good moral character, minimum age, education/training/experience standards, examination)
• COMAR 10.33.01.07A (Board deadlines and documentation requirements)

Cases:

• Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394 (1979)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HEALTH OCCUPATIONS

Nursing Home Administrators—Licensing Requirements—Residency—The Board of Examiners of Nursing Home Administrators Lacks the Statutory Authority to Refuse an Application for Examination Solely on the Basis that the Applicant is not a Resident of Maryland.

December 13, 1985

Ms. Elizabeth R. Baird, Chairperson
Board of Examiners of Nursing Home Administrators

The Board of Examiners of Nursing Home Administrators has requested our opinion concerning the Board's authority to deny the request of an out-of-State resident to sit for the Board's licensing examination. For the reasons stated below, we conclude that the Board lacks the statutory authority to refuse an application for examination solely on the basis that the applicant is not a resident of Maryland.

I
Discussion

We begin with the fundamental premise that "[a]dministrative agencies . . . are arms of the legislature and derive all their authority from the legislative branch." Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394 (1979). Hence, the actions of an administrative agency must be consistent with the statute that grants it the authority to act.

Under §8-305(a) of the Health Occupations Article ("HO" Article, "[a]n applicant [for licensing as a nursing home administrator] who otherwise qualifies for a license is entitled to be examined as provided in this section." This subsection is captioned "Right to examination."

The General Revisor's Note explains the purpose of this and parallel provisions in the Health Occupations Article:

"In the 'Examinations' section of each title of this article, except Title 1, there is included a standard subsection captioned 'Right to examination'. That subsection is included to provide expressly that an applicant who otherwise qualifies is entitled to the opportunity to take any required examination. Stated from the other perspective, the subsection states that a health occupation board may not arbitrarily deny an otherwise qualified applicant an opportunity to take the examination."

An applicant for licensing as a nursing home administrator "shall be an individual who meets the requirements" of HO §8-302:

"(b) The applicant shall be of good moral character.
(c) The applicant shall be at least 18 years old.
(d) The applicant shall meet the education, training, and experience standards set by the Board.
(e) Except as otherwise provided in this title, the applicant shall pass an examination given by the Board under this subtitle."

Residency is not a qualification.

Therefore, any applicant who is of good moral character, is at least 18 years old, and meets the education, training, and experience standards set by the Board "is entitled to" take the examination, whether or not the applicant resides in this State. The Board may not impose a qualification that goes beyond the statute and that is inconsistent with the right to an examination expressly created by the statute.

This construction does not preclude the Board from imposing deadlines and other requirements for the submission of proof that an applicant fully meets the education, training, and experience requirements set by the Board. See COMAR 10.33.01.07A and B. However, any such requirements must be reasonable and uniform for all applicants.

II
Conclusion

In summary, it is our opinion that the Board of Examiners of Nursing Home Administrators lacks the statutory authority to refuse an application for examination solely on the basis that the applicant is not a resident of Maryland. In light of this conclusion, we need not consider the extent to which such a refusal raises other legal problems.

Stephen H. Sachs, Attorney General
Alice D. Ike, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice