1. REGULATORY TERMINOLOGY: Could We Make This Any More Confusing? David A. Montgomery Nebraska Department of Health and Human Services Regulation and Licensure Presented at The 21 st Annual Conference of CLEAR San Antonio, Texas January 12, 2002

2. HOW DID WE GET HERE?  Transition from voluntary associations to state regulation  Re-inventing the wheel  Evolution of regulatory systems

3. AND WHERE, EXACTLY, ARE WE?  “Registered Pharmacists”, “Registered Nurses”, and “Registered Physical Therapists” are normally Licensed  “Certified Public Accountants” are normally Licensed  Some Licensed professions or occupations may be State Certified

4. An example from Nebraska: 71-6104 Occupational therapist; therapy assistant; licensure required; activities and services not prohibited. No person may represent himself or herself to be a licensed occupational therapist or occupational therapy assistant unless he or she is licensed in accordance with the Occupational Therapy Practice Act. Nothing in such act shall be construed to prevent: (5) An unlicensed person from performing occupational therapy; Source: Laws 1984, LB 761, § 32; Laws 1991, LB 2, § 14.

5. TERMINOLOGY = LEVEL OF REGULATION  What are the functions being performed?  How should practitioners hold themselves out to the public?  Should the customer have a right to choose among competing modalities?  Should the state’s police power be invoked?  What level of risk is involved?  How much oversight and knowledge does the customer have?  Is there a legitimate scope of practice?  How much independence does the practitioner have, both in judgment and in practice circumstances?

6. BASIC TERMS  Regulate –a. To govern or direct according to rule. –b. To bring under the control of law or constituted authority.  Credential –To designate a person as entitled to exercise official power.

7. LICENSURE Definition: Granting of permission to practice a profession by a governmental body Characteristics:  Invokes police power of the state  Grants a monopoly  Considered a property right; cannot be removed without due process  Restricts practice and title  Involves a practice act  Requirements set by law  Regulates for minimum competency

8. LICENSURE Indicators for use:  Potential for harm to the public is high  Potential for self-protection is low  Civil recourse not sufficient  Practitioner exercises independent judgment  Practitioner subject to little oversight Issues:  Often used when other forms of regulation would be more appropriate

9. CERTIFICATION (PRIVATE) Definition: Recognition by the private sector of voluntarily achieved standards Characteristics:  No legal impact on practice rights; may require separate credential to practice  Does not restrict title or practice under administrative law  Generally not considered a property right  Does not restrict practice; may not restrict title  No practice act  Requirements set by private body  Often indicates advanced mastery

10. CERTIFICATION (PRIVATE) Indicators for use:  Emphasis is on customer choice  Certifying body has public awareness  Civil recourse is sufficient Issues:  Often coupled with licensure to create multi- tiered practice status

11. CERTIFICATION (STATE) Definition: State-granted title protection Characteristics:  Invokes police power of state  Restricts title only, not practice  Considered a property right; may not be removed without due process  No practice act  Requirements set by law, may reflect private body  May regulate for minimum competency or greater

12. CERTIFICATION (STATE) Indicators for use:  Emphasis is on customer choice, but some potential for risk to public  Customer has some ability to protect self  Civil recourse not sufficient Issues:  Probably unconstitutional (Abramson v. Gonzalez, 949 F.2d 1567 (11 th Cir., 1992)

13. REGISTRATION Definition: Keeping lists of practitioners by a government agency Characteristics:  Invokes police power of the state  May restrict practice and title  May grant a monopoly  Considered a property right; cannot be removed without due process  Few penalties other than removal  No practice act  No requirements for entry  Regulates for minimum competency

14. REGISTRATION Indicators for use:  Some potential for risk to public  Customer has some ability to protect self  Practitioner works under supervision and/or in a regulated environment or facility  Practice is task-oriented, little judgment required  Tasks require minimal training

15. For further elucidation: Schmitt, Kara and Shimberg, Benjamin; Demystifying Occupational and Professional Regulation; Lexington, KY, Council on Licensure, Enforcement, and Regulation, 1996. Schoon, Craig G. and Smith, I. Leon, eds.; The Licensure and Certification Mission; New York, NY, Professional Examination Service, 2000. Young, S. David; The Rule of Experts: Occupational Licensing in America; Washington, D.C., The Cato Institute, 1987.