REGULATORY TERMINOLOGY: Could We Make This Any More Confusing

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REGULATORY TERMINOLOGYCould We Make This Any
More Confusing?

• David A. Montgomery
• Nebraska Department of Health and Human Services
  Regulation and Licensure
• Presented at
• The 21st Annual Conference of CLEAR
• San Antonio, Texas
• January 12, 2002

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HOW DID WE GET HERE?

• Transition from voluntary associations to state
  regulation
• Re-inventing the wheel
• Evolution of regulatory systems

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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

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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.

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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 states 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?

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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.

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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

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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

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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

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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

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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

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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 (11th Cir., 1992)

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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

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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

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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.