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 21st Annual Conference of CLEAR

San Antonio, Texas

January 12, 2002

HOW DID WE GET HERE?

Transition from voluntary associations to state regulation

Re-inventing the wheel

Evolution of regulatory systems

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

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.

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?

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.

LICENSURE

Definition: Granting of permission to practice a profession by a governmental body

Characteristics:Invokes police power of the stateGrants a monopolyConsidered a property right; cannot be

removed without due processRestricts practice and titleInvolves a practice actRequirements set by lawRegulates for minimum competency

LICENSURE

Indicators for use:Potential for harm to the public is highPotential for self-protection is lowCivil recourse not sufficientPractitioner exercises independent judgmentPractitioner subject to little oversight

Issues:Often used when other forms of regulation

would be more appropriate

CERTIFICATION (PRIVATE)Definition: Recognition by the private sector of

voluntarily achieved standards

Characteristics:No legal impact on practice rights; may require

separate credential to practiceDoes not restrict title or practice under

administrative lawGenerally not considered a property rightDoes not restrict practice; may not restrict titleNo practice actRequirements set by private bodyOften indicates advanced mastery

CERTIFICATION (PRIVATE)

Indicators for use:Emphasis is on customer choiceCertifying body has public awarenessCivil recourse is sufficient

Issues:Often coupled with licensure to create multi-

tiered practice status

CERTIFICATION (STATE)Definition: State-granted title protection

Characteristics:Invokes police power of stateRestricts title only, not practiceConsidered a property right; may not be

removed without due processNo practice actRequirements set by law, may reflect

private bodyMay regulate for minimum competency or

greater

CERTIFICATION (STATE)

Indicators for use:Emphasis is on customer choice, but some

potential for risk to publicCustomer has some ability to protect selfCivil recourse not sufficient

Issues:Probably unconstitutional (Abramson v.

Gonzalez, 949 F.2d 1567 (11th Cir., 1992)

REGISTRATIONDefinition: Keeping lists of practitioners by a

government agency

Characteristics:Invokes police power of the stateMay restrict practice and titleMay grant a monopolyConsidered a property right; cannot be

removed without due processFew penalties other than removalNo practice actNo requirements for entryRegulates for minimum competency

REGISTRATION

Indicators for use:Some potential for risk to publicCustomer has some ability to protect selfPractitioner works under supervision and/or

in a regulated environment or facilityPractice is task-oriented, little judgment

requiredTasks require minimal training

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.