U.S. Air Force to Evaluate State Occupational Licensing Policies for Future Basing Decisions

In February, the United States Air Force released new criteria-based framework for its basing decision evaluation process that assesses state occupational licensing policies for supporting military families. The initiative by the Air Force is part of a larger trend by state policy makers and the departments of the military to facilitate interstate migration by military families and lower barriers to employment caused by occupational licensing.

The economic effects of licensure, such as increased cost for services and lower employment levels, are consequences of the protections they offer to public health and safety. The Air Force evaluation framework widens the impact overly burdensome licensure laws may have on a state’s economy and workforce by influencing the selection process for military installations. The economic activity generated directly by the operation of military installations and indirectly by the activities of servicemembers in the community contributes billions of dollars annually to state economies.

For the departments of the military, the availability of licensure portability options is an important factor for both military operational readiness and the longevity of service careers. A survey by the U.S. Chamber of Commerce Foundation found that 43% of service members with spouses consider the availability of equal career opportunities for both spouses to be a very important factor in their decision to continue military service. Further, a Blue Star Families survey showed that 36% of military spouses consider the inability to reliably earn two incomes to be one of their family’s top five stressors.

Military spouses are disproportionately affected by licensure policies due to frequent service-related interstate relocations and the types of careers they choose when compared their civilian counterparts. For example, on average 14.5% of military spouses/military families annually relocate to another state, compared to approximately 1.1% for the general population. Additionally, 34% of military spouses participating in the labor force are required to possess an occupational license, compared to approximately 25% for the entire labor force.

Military spouses are therefore more commonly burdened with navigating different state licensing regulations and reciprocity provisions which can require extra training hours, additional exams or higher educational attainment. This process can ultimately lead to delays for the military spouse to find gain employment.

The evaluation framework developed by the Air Force seeks to account for the state licensing state laws, executive orders, state supreme court and bar association rulings that accommodate military families during interstate relocations. States which provide substantial support have the opportunity to receive higher consideration by the Air Force during the basing selection process.

In particular, the evaluation criteria includes an assessment of a state’s:

  • Participation in interstate compacts

  • Military specific portability options including temporary licensure, expedited licensure and licensure by endorsements provisions

  • Policy specific language such as “substantially equivalent requirements”, instructions that licensing boards/departments “may accept” or “shall accept” licensure qualifications and requirements beyond proof of a home license (ex. background materials)

Almost every state has some sort of licensure portability policy specific for military members, veterans and their spouses, however, there is considerable variation in the allowances provided, the specific population group targeted and the occupations affected.

The Department of Labor maintains a database of these policies which categorizes each state based on the level of licensure recognition provided. The Department’s analysis of these policies shows that:

  • 15 states mandate the recognition of military spouse licenses
  • 24 states mandate the recognition of military spouse licenses if the home state has equivalent training standards
  • 6 states provide some discretion for the licensing authority’s ability to recognize military spouse licenses
  • 4 states have a licensure recognition process but which excludes many professions


Despite the extensive steps states have already taken, many continue to be proactive in implementing new and revised policies that provide additional support to military families, including those which relate to the criteria in the Air Force evaluation framework.

In September of 2019 a Texas law went into effect that allows military spouses to temporarily use their out of state license for three years at no additional cost. Spouses must be in good standing in the original state and the licensing requirements must be equivalent to Texas regulations.

In April of 2020, Missouri passed several bills that allow military spouses to file an application for an occupational license if they already hold a license from a state with similar or higher requirements. If the conditions are met, spouses will be issued a license within 30 days. The law covers all license issuing entities and the occupations they oversee.

States and professions have also increasingly turned to occupational licensure interstate compacts to mitigate challenges faced by workers as they navigate various state licensing requirements, rules, regulations and fee structures. Since January of 2017, 40 states have enacted 93 separate occupational licensure compact bills and a total of 42 states have enacted at least one occupational licensure compact. These compacts create reciprocal professional licensing practices between states while still ensuring the quality and safety of services and safeguarding state sovereignty. The uniformity they offer makes relocation or out of state work less burdensome for workers who would otherwise need to go through the full licensing process.

While states have been proactive improving their licensure policies, the federal government has also recently provided additional supports for military families.  The 2018 National Defense Authorization act allows each branch of the military to reimburse spouses for the licensure costs resulting from a service related-relocation to another state. Eligible spouses can be reimbursed up to $1,000 per move to cover related expenses such as exam costs and registration fees.

Given the economic impact of basing decisions and licensure policies, the introduction of the Air Force’s evaluative framework provides further motivation for states to consider ways to support military families negatively affected by overly burdensome licensure policies. As states evaluate their current policies, the framework also serves as a guide for the specific actions that can be made to improve employment outcomes during service related relocations.

Occupational Licensing – State COVID-19 Responses

  • The COVID-19 crisis has resulted in shortages of qualified, licensed health care and other related professions that are needed to support state and local responses.
  • States have been enacting measures to modify existing licensing regulations that remove barriers that may prevent an individual to assist in response efforts.
  • Many states have been granting temporary licensure for out-of-state professionals or those that are otherwise retired, still in training, or have lapsed licenses.
  • Certain health care practitioners in some states are being granted expanded scopes of practice.
  • Other states are removing barriers to allow for greater use of telemedicine services.
  • States are also waiving or suspending certain requirements related to the maintenance or attainment of licenses where they might require physical travel, interactions or might otherwise be difficult to achieve during the crisis.

Addressing the Problem

Occupational licensing serves as a way for states to help ensure the protection of public health and safety where there exists the potential for physical, emotional or financial harm. Each state maintains the authority to structure the scope of practice, education and other training requirements necessary for an individual to be granted the right to practice a certain profession. However, given the independent of licensing regulations between states, licensure portability can be particularly difficult to achieve without other supporting policy provisions. Further, achieving and maintain licensure can require significant time and financial investments and thereby decrease the current availability of practitioners.

This issue has been compounded by the recent increased demand in health care related occupations, which are commonly licensed. Increasing the supply of an already spread thin workforce has been one of the primary challenges states are facing. Unlike other disasters which may be more localized, COVID-19 is affecting every state. Even though the severity of cases may vary across the country, states may not be able to safely send health care workers harder hit states in case their own situation may worsen.

How Are States Impacted?

The occupational licensing policy responses by states are centered on how states can meet their health care demands now and relieve regulatory burdens or requirements impacted by COVID-19. Therefore, many of the policy actions involve temporarily waiving, suspending, or modifying licensing requirements or granting temporary licenses during state declarations of emergency.

Action in the States

States have been primarily taking occupational licensing related action through executive orders. Many legislatures have either adjourned or been suspended due to the crisis, however, some had the opportunity to also pass supporting legislation. Other state responses have come from existing provisions and procedures in place such as through the Emergency Management Assistance Compact which provides a process for states to request and allow out-of-state licensed workers.

Below is a sample of state actions related to occupational licensing:

Maryland

  • Executive Order – Allows any person who holds a valid, unexpired license as a health care practitioner that is issued by another state to engage in the activities authorized under that license at a health care facility in Maryland.
  • Executive Order – Allows any inactive practitioner, at a health care facility in Maryland, to engage in activities that would have been authorized under his/her inactive license without first reinstating his/her inactive license
  • Executive Order – Extends expiration date of all licenses, registrations, and other authorizations for 30 days

New York

  • Executive Order – Allows unlicensed non-nursing staff to perform basic nursing tasks including swabs/tests

  • Executive Order – Allows physicians and nurse practitioners to issue non-patient-specific regimens to those authorized by law or exec. order to conduct swabs/tests; allows nurses to order tests.

  • Executive Order – Allows nurses, physicians assistants, physicians, respiratory therapists, and midwives licensed in other states to practice in the state without penalties.

  • Executive Order – Allows physician assistants, specialist assistants, nurse practitioners, professional nurses and practical nurses to exceed their normal practice scope and to operate without a supervising physician

  • Executive Order – Allows nursing/medical students to volunteer at medical centers without any formal arrangement (and to collect educational credit for it); also allows grads of foreign med schools with one year of postgrad training to provide patient care

  • Executive Order – Allowing pharmacists/pharmacy technicians to practice remotely

South Dakota

  • Executive Order – Triggers provisions relating to the Emergency Management Assistance Compact; grants full recognition to emergency licenses of practitioners from compact states.

Utah

  • Executive Order – Declaration of emergency triggers statutory provision allowing licensed out-of-state medical professionals and retired Utah professionals to acquire temporary emergency licenses in Utah; application fees are also waived.

Vermont

  • H.742 –Creates fast tracks for out-of-state licensed healthcare and mental health professionals, retired healthcare and mental health professionals, and new graduates to join or return to the Vermont workforce.

West Virginia

  • Executive Order – Suspends expiration dates of medical licenses; suspends requirements that boards of certification/registration conduct investigations within a certain timeframe.
  • Executive Order – Allows licensed out-of-state nurses and doctors to practice in in the state (including telemedicine) without any further certification; suspends continuing education requirements; allows retired physicians to return to practice without having to re-certify.
  • Executive Order – Eases requirements for issuance of temporary permits for medical students to practice respiratory care; waives medical license renewal fees for respiratory care practitioners

Expected Outcomes

The COVID-19 state actions related to occupational licensing aim to increase the supply of qualified health care practitioners by removing certain barriers created by regulation. States are also taking action to ensure licensure requirements by non-health or other COVID-19 related response occupations are not adversely impacted by stay at home orders, travel restrictions or other interruptions to normal operations relative to the license.

Wisconsin Considering Sunrise Legislation

Legislation recently introduced in Wisconsin could change the way the state studies proposed occupational licensing regulations. Sponsored by Senator Chris Kapenga and Representative Rob Hutton, Senate Bill 541 calls for the establishment of a sunrise review process that would formally require certain information to be collected and analyzed during the legislative process.

Specifically, SB 541 proposes that the sunrise reviews evaluate the following:

  • The risk to public health, safety, and welfare;
  • Public benefit gained from the requirement for the license;
  • The least restrictive regulation available that will effectively protect the public;
  • Licensure requirements for that occupation in other states;
  • Number of individuals or businesses that would be affected by the requirement.

The legislation serves as another example of how states are taking steps to refine their occupational licensing policy processes. While it is well known by states that occupational licensure can serve as an effective means to protect public health and safety and ensure consumer confidence in a profession, there is wide discretion that can be taken during the policy making process. This can include decisions regarding the form of licensure to implement and its related requirements. With these decisions, there are many factors a state can take in to account, including relevant data on instances of harm, existing protections, other states’ licensing practices, and employment numbers and trends.

Sunrise reviews are a type of policy tool designed to address these questions. The reviews are conducted when there is a proposal to either create new or substantially change occupational licensing regulations. While some of the information typically included in a sunrise review could be identified during the legislative process, some states see these reviews as a way to ensure consistency in the information collected and studied. Further, the reviews can be used as a formal way to consider a proposal against a state’s defined criteria for licensing.

Arizona, Colorado, Georgia, Florida, Hawai’i, Maine, Minnesota, Nebraska, Ohio, Vermont, Virginia, Washington and West Virginia are the states currently with active sunrise review provisions. Though these states may prescribe different processes and requirements for the sunset reviews, there are common elements to their design including descriptions of the review’s contents and the timeline and process for completion,.

With SB 541, Wisconsin is considering becoming one of these states. At a recent public hearing hosted by the Wisconsin Senate Committee on Public Benefits, Licensure, and State-Federal Relations, Sen. Kapenga, who also chairs the committee, and Rep. Hutton presented the bill.

“If somebody comes forward from a profession and wants to create a new type of license, we want to make sure we go through a standard process to identify the lowest form of licensure that would still address public safety risks,” said Sen. Kapenga on the bill.

Numerous other organizations were present at the hearing to provide comment – including The Council of State Governments, which profiled the different state sunrise review structures.

With the Wisconsin legislature convening throughout the year, further deliberations on the proposed bill will serve as additional examples of how states are considering processes like sunrise reviews.

Consortium States Present Occupational Licensure Reform Successes at Washington D.C. Briefing

On November 13th, The Council of State Governments, the National Conference of State Legislatures, the National Governor’s Association, and representatives from the states participating in the Occupational Licensing Policy Learning Consortium were on hand to share some of the successes stemming from the multi-year, Department of Labor funded project. The event saw over 60 individuals in attendance, representing a variety of public and nonprofit policy organizations

Utah Representative Norm Thurston discussed some of the state’s accomplishments during the project, including a very active 2019 legislative session. Rep. Thurston specifically highlighted SB 227 (2017), which provides automatic recognition of occupational licenses held by military spouses, and HB 226 (2019), which authorizes the use of competency-based licensing.  

Wisconsin Representative Robert Brooks also presented at the morning briefing to share news on his state’s occupational licensing reform momentum. Included in the highlights were Wisconsin’s recent major reduction in licensing fees that were in part a result from a recent study on the state’s occupational licensing regulations.

Gauri Rege, a researcher from the American Institutes for Research (AIR), introduced the recently completed case studies on the original 11 consortium states, which include Arkansas, Colorado, Connecticut, Delaware, Indiana, Illinois, Kentucky, Maryland, Nevada, Utah, and Wisconsin. AIR authored the studies which examine policy actions from each consortium state through stakeholder interviews and qualitative analyses of the policy process.

With occupational licensure remaining a major focus for states heading into 2020, the policy accomplishments of the consortium states serve as beneficial examples of how both state peer learning and intra-state engagement can help propel continued policy momentum.

Nevada Reviews Legislative Success and Licensing Reform at In-State Consortium Meeting

Nevada hosted its 2019 Occupational Licensing Policy and Practice Learning Consortium In-State meeting on Sept. 6 in Las Vegas. The state’s Occupational Licensing Consortium Core Team of legislators, executive branch employees and regulatory board members convened to review this year’s progress and plan for future success. The Nevada officials were joined by representatives from The Council of State Governments, the National Conference of State Legislatures and the National Governor’s association to provide technical assistance and facilitation.

The Nevada Core Team reviewed notes from the second annual meeting of the Multi-State Learning Consortium in Clearwater, Fla. that took place in December 2018 and then reviewed relevant bills that passed in the 2019 legislative session. According to a legislative update released on June 19, 2019 by the Nevada Legislative Counsel Bureau’s Research Division1, the legislature enacted 33 bills concerning occupational and professional licensing. Four bills concerned general matters affecting the majority of Nevada’s occupational and professional regulatory boards. Seventeen Bills were passed relating to the “healing arts,” including Oriental medicine, physical therapy, optometry and pharmacy. Twelve bills were enacted that relate to contractors, environmental health specialists, cosmetologists, teachers and other regulated professions.

According to the legislative update, “This session, regulators and legislators discussed the current landscape of licensing requirements and committed to improving their understanding of where Nevada’s laws may create unnecessary barriers to economic opportunity.” To quickly asses the general function of the state’s licensing boards, the legislature passed Senate Concurrent Resolution 6 directing the existing Sunset Subcommittee of the Legislative Commission to conduct an interim study concerning professional and occupational licensing boards.2

Several bills were passed that focus on disproportionately affected populations, including immigrants with work authorization, veterans and military spouses, and individuals with criminal records.

  • AB275 prohibits a regulatory body from denying licensure of applicants based solely on their immigration or citizenship status as long as they are authorized to work in the U.S. and allows an applicant for a professional or occupational license who does not have a social security number to provide an individual taxpayer identification number.3
  • AB319 authorizes a person to petition a professional or occupational licensing board for a determination of whether the person’s criminal history will disqualify them from obtaining a license, requires a professional or occupational licensing board to implement a process for such a petition, and authorizes a regulatory body to post requirements for obtaining a license and a list of crimes that would disqualify a person for a license on its website. Additionally, the bill requires licensing boards to include certain information concerning the determinations of qualification or disqualification in their quarterly reports to the Legislative Counsel Bureau.4
  • SB100 requires expedited processing of applications for a license to teach for spouses of certain members of the military and requires school districts to consider a veteran’s Joint Services Transcript or a similar document to satisfy qualifications for certain jobs. The bill also permits members of the military and their spouses to obtain a license to teach through the alternative route to licensure program under certain circumstances, including if they obtained a teaching license in another state through an equivalent alternative route.5

Additional bills were passed that focus on occupations specifically targeted by Nevada’s Core Team.

State Contractors Board

  • AB25 changes various provisions governing contractors. The bill authorizes the State Contractors’ Board to delegate authority to hold certain hearings to a hearing officer or panel. It expands the period that a license applicant must have received certain experience before applying for a license. It repeals requirements that certain financial information must be reported to renew a residential construction contractor’s license, increases the period that a license may be inactive from five years to eight years and authorizes licensees on active duty in the military to apply to have their contractor’s license reinstated under certain circumstances.6
  • AB26 Revises provisions governing payments from the Recovery Fund by the State Contractors’ Board. The bill increases the amount of money that the State Contractors’ Board or its designee may pay out of the Recovery Fund to an injured person for certain claims against a residential contractor and increases the maximum amount of money that can be recovered from a claim against a single contractor. The act also revises the information that a residential contractor must include in certain written statements relating to the Recovery Fund.7
  • AB27 revises provisions for cease and desist orders issued by the State Contractors’ Board for acting as a contractor or submitting a bid on a job without a license. The act includes certain actions that the Board is required or authorized to take after issuing a cease and desist order, authorizes a person who is issued a cease and desist order to contest it within a certain period and describes the circumstances under which the order shall be deemed a final order of the Board.8

Nevada Physical Therapy Board

  • SB186 requires the Nevada Physical Therapy Board and the Board of Athletic Trainers to adopt regulations establishing the qualifications a physical therapist or an athletic trainer, as applicable, must obtain before he or she is authorized to perform dry needling.9

State Board of Cosmetology

  • SB208 revises the education and service requirements for hair designers and estheticians, removes the service of electrolysis from the definition of “cosmetologist” and revises the procedures for the issuing and activating a license for a cosmetological establishment. Specifically, this bill reduces the amount of training required to take the cosmetology exam from 1,200 hours to 1,000 for certain applicants and reduces the amount of service required as a hair designer’s apprentice from 2,400 hours to 2,000 hours.10

In addition to the legislative success Nevada has enjoyed, the state’s Department of Employment, Training and Rehabilitation partnered with the Governor’s Office of Workforce Innovation on a $449,999 US Department of Labor grant. According to an Office of Workforce Innovation report11, the grant will be used to compare licensed occupations with the most in-demand occupations in the state, reexamine the state’s occupational licensure and focus its efforts to better serve dislocated workers, transitioning service members and veterans by identifying existing policies that create unnecessary barriers to the labor market.

Executive Director Cathy Dinauer of the Nevada State Board of Nursing presented on current efforts to address the shortage of nurses in the state. The lack of certified nursing assistants, or CNAs, is exacerbated by a lack of qualified instructors, a high failure rate among students (particularly in high school programs) and the prohibitive cost of education. In response, the Office of Workforce Innovation and the Department of Employment Training and Rehabilitation awarded a grant to the Nevada System of Higher Education and the Nevada Action Coalition/Nevada Nursing and Workforce Center to create NVHOPE. NVHOPE’s purpose is to train registered nurses to become CNA instructors and to train unemployed/underemployed individuals to become CNAs at the College of Southern Nevada and Great Basin College. Three CNA trainers have graduated the program, with hopes to educate a total of 50. Until this year, there were no training programs in Nevada for licensed practical nurses, or LPNs, but the College of Southern Nevada received approval in January 2019 to open an LPN program. The Nevada Department of Education made progress in their project to start an LPN program in high schools when the State Board of Nursing approved their LPN standards in January 2019. Nevada is not currently part of the Enhanced Nursing Licensure Compact (eNLC), and a bill that proposed joining the compact failed to garner a sponsor in the 2019 legislative session.

Nancy Mathias, The Nevada Contractors Board Licensing Administrator, gave the next update. The Board eliminated the requirement for businesses to undergo a financial review for licensing because the reviews were not found to have meaningful results or add to public protection. Additionally, the costs of the financial reviews were burdensome, especially for small companies. The Board is also taking steps to recognize master’s degrees and military experience for licensing purposes. According to the Contractors Board website, when a veteran applies for a contractor’s license the Board will assign a specialized staff member “trained to evaluate transferrable Military training and experience from all branches of the Military that meet minimum licensure requirements, in addition to evaluating college transcripts to help verify acceptable educational credit and experience.”12 Dedicated staff members are also available to assist military spouses to expedite the licensing process.

In a general discussion, the Nevada Core Team expressed continuing interest in license reciprocity to help alleviate shortages of key workers, including teachers and nurses. Stakeholders discussed additional ways to improve the licensing process for military spouses to lower their unemployment rate and fill vacancies in in-demand occupations. The team will continue to help persons with a criminal background reenter the workforce to lower recidivism. The team ended the day by planning for the third annual meeting of the Multi-State Learning Consortium in Park City, Utah, that took place Sept. 11-13.

As states across the country reassess professional licensing, Consortium states lead in licensing reform and legislative progress. The Nevada Core Team is committed to ongoing improvement of Nevada’s licensing environment and maintaining momentum after the Consortium grant ends.

Sources

  1. Nevada Legislative Counsel Bureau Research Division. (June 19, 2019) Update to the Occupational Licensing Policy and Practice Learning Consortium Nevada Core Team
  2. NV SCR6. Retrieved from https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6849/Overview
  3. NV AB275. Retrieved from https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6498/Overview
  4. NV AB319. Retrieved from https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6580/Overview
  5. NV SB100. Retrieved from https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6088/Overview
  6. NV AB25. Retrieved from https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/5925/Overview
  7. NV AB26. Retrieved from https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/5926/Overview
  8. NV AB27. Retrieved from https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/5927/Overview
  9. NV SB186. Retrieved from https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6314/Overview
  10. NV SB208. Retrieved from https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6352/Overview
  11. Office of Workforce Innovation. (June 2018) January – June 2018 Semiannual Report to the Interim Finance Committee.
  12. Nevada State Contractor’s Board. (Oct 2019) Programs for Members of the Military, Military Spouses, and Veterans. http://www.nscb.nv.gov/vap.html

Virginia Becomes First State to Fully Digitize Professional Licensing

On Sept. 3, 2019, Virginia became the first state to fully digitize its professional licensing and credentialing system. Many professions take advantage of current technology to offer digital copies of licenses and certifications, but before September, no state offered universal electronic licensing. Through a partnership between the Virginia Department of Professional and Occupational Regulation and the free online credentialing service, Merit, all licensed professionals in Virginia will be able to receive a digital copy of their license. According to the 2018-2020 Virginia appropriations bill, electronic licenses now satisfy any statute or regulation that requires credentials to be posted, displayed or produced.

Virginia Gov. Ralph Northam announced the partnership stating, “Electronic credentials will help cut red tape and modernize what is currently an antiquated system. The innovative use of technology by a state agency to streamline and enhance its services to Virginia’s citizens, consumers, workers and industry is one of the reasons why our Commonwealth is the best place for business.”

Starting immediately, the Department of Professional and Occupational Regulation will issue digital licenses and invite licensed professionals to create an online account with Merit. Once professionals create an account, they will always have access to a digital copy of their most recent licenses and certifications using Merit’s website or mobile app. Professionals will also be electronically notified when licenses must be renewed. Digital licenses will be issued in addition to physical licenses, and professionals will still receive mail and physical licenses from the department.

Digital credentials are now available to all 310,000 licensed professionals in over 40 professions serviced by the Department of Professional and Occupational Regulation. These benefits come at no cost to licensees or to the state, and no funds were set aside in the 2018–2020 appropriations bill for this service.

The Home Builders Association of Virginia represents more than 83,000 licensed members and supports the partnership.

“This partnership is the beginnings of an infrastructure that will help ensure that people with the right skills find the right jobs,” said CEO M. Craig Toalson. “This new system will make licensing easier for everyone involved and will allow workers to spend less time navigating a complex paperwork process and more time focusing on the careers that they love.”

This announcement comes less than two years after Virginia Regulatory Reduction Pilot Program (HB 883) was signed into law by Gov. Northam. The program aims to reduce 25% of regulations and regulatory requirements in the Department of Professional and Occupational Regulation by July 1, 2021.

Wisconsin Reduces Licensing Fees for Nearly 75% of Licensed Occupations

Occupational licensure is one of the most overarching labor market issues facing low-income workers. The proportion of the labor force required to obtain a license exceeds that of both minimum wage earners and union members.1,2,3 The costs of licensing, such as exams, training courses, continuing education, and application and renewal fees, can present significant barriers to work, particularly for those for whom money is the tightest: Americans who are low-income, unemployed, and/or dislocated workers.  

On July 1, a new occupational licensing fee structure went into effect in Wisconsin that brought down licensing fees for 127 licensed occupations and professions—approximately 75% of all occupations and professions licensed by the Wisconsin Department of Safety and Professional Services (DSPS). An estimated 361,000 individuals who apply for or renew a Wisconsin license during the next biennium will pay a reduced fee as a result, promoting new economic activity and making it easier for low-income individuals to climb the economic ladder. Initial application fees were reduced by an average of $26.78, and renewal fees saw an average reduction of $57.42. This is approximately a 32.5% reduction in the average total fees associated with obtaining a license in Wisconsin.4

The change stems from Wisconsin Statute § 440.03(9)(a), which requires DSPS to conduct a licensing fee study every two years.5 Moreover, under chapters 440 and 480 of Wisconsin statutes, licensing fees charged to occupations and businesses under the department’s authority must be at cost.6,7 That is, licensing fees must not exceed the approximate administrative and enforcement costs of regulating those occupations and professions. According to DSPS, the new fees are projected to provide sufficient revenue to cover existing operating expenses and afford the department the ability to maintain staffing levels that will ensure customer service remains a top priority. 

Fee changes of this magnitude have not occurred in Wisconsin since the 2009-2011 biennium. This most recent fee study was the first to utilize new data on the costs associated with administering occupational licenses that is more accurate and detailed than what was previously available. As a result, the department was able to make more precise estimates of operating costs and thus usher in the first major overhaul of licensing fees in a decade.  

“Thanks to technology integration and advancements, the department can better manage resources needed to regulate professional licenses and credentials while passing on those savings to our customers,” said DSPS Secretary Dawn B. Crim. “Lowering financial barriers for people who enter these professions for the first time as well as making the renewal process more affordable promotes economic growth and stability while protecting the citizens of Wisconsin who rely on these professional services.”

Wisconsin is one of 16 states chosen to participate in the National Occupational Licensing Learning Consortium, which is a multi-year program coordinated in part by The Council of State Governments that explores ways to reduce unnecessary barriers to labor market entry and streamline licensing processes. The other states selected are Arkansas, Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Kentucky, Maryland, Nevada, New Hampshire, North Dakota, Oklahoma, Utah and Vermont.

Sources

  1. U.S. Bureau of Labor Statistics. (2018). Data on certificates and licensing. Retrieved from https://www.bls.gov/cps/cpsaat49.pdf
  2. U.S. Bureau of Labor Statistics. (2019). Characteristics of minimum wage workers, 2018. Retrieved from https://www.bls.gov/opub/reports/minimum-wage/2018/pdf/home.pdf
  3. U.S. Bureau of Labor Statistics. (2019). Union Members – 2018. Retrieved from https://www.bls.gov/news.release/pdf/union2.pdf
  4. Carpenter, D. M., Knepper, L., Sweetland, K., & McDonald, J. (2017). License to Work: A National Study of Burdens from Occupational Licensing 2nd Edition. Arlington, VA: Institute for Justice. Retrieved from http://ij.org/wp-content/themes/ijorg/images/ltw2/License_to_Work_2nd_Edition.pdf
  5. Wis. Stat. § 440.03. Retrieved from http://docs.legis.wisconsin.gov/statutes/statutes/440/I/03/9/a
  6. Wis. Stat. § 440. Retrieved from https://docs.legis.wisconsin.gov/statutes/statutes/440
  7. Wis. Stat. § 480. Retrieved from https://docs.legis.wisconsin.gov/statutes/statutes/480

Should Licensing Reformers Still Be Talking About African Hair Braiding?

If you’ve studied the issue of occupational licensing reform for any length of time, you’ve undoubtedly heard about African hair braiders. The issue of state government regulating the hair braiding industry is a compelling one. Why would a state subject a hair braider to obtain a full cosmetology license, endure hundreds of hours of unnecessary coursework and pay thousands of dollars before they can legally work? Furthermore, the courses required to obtain the required license do not even directly apply to hair braiding but are more focused on general cosmetology issues like handling chemicals and cutting hair.

Major political figures on both sides of the isle have spoken about this argument including former Vice-President Joe Biden who said, “If you are a hair braider, you braid people’s hair, you have to get a license to do something like 400 hours of training in another state.”

The personal anecdotes are even more compelling. This is a trade extends back thousands of years and has been passed down through generations of family traditions. Why then would a state feel it necessary to interject and force braiders to go back to school and get a license that is not even applicable to their trade?

If you have been to a meeting on occupational licensing reform or researched the topic online for more than a few minutes, you will no doubt have seen African hair braiding brought up as a reason we should overhaul state occupational regulation. Reformers point to the personal anecdotes, and the burdensome licensing requirements for cosmetologists being unjustly applied to braiders.

The only problem is states have, for the most part, already addressed this issue. In 2019 only 7 states still require a full cosmetologists license for African hair braiders. In 2014 that number was 24 states. In the past 5 years, 17 states have either removed the licensing requirement for hair braiders or created a specialty license with significantly reduced amount of training required.

Hawaii, Idaho, Massachusetts, Montana, New Mexico, Wisconsin, and Wyoming are the only states that continue to require a full cosmetology license for their African hair braiders. 28 states completely exempt hair braiding from licensure: Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska, New Hampshire, North Dakota, Oklahoma, Rhode Island, South Dakota, Texas, Utah, Vermont, Virginia, Washington and West Virginia. The remaining states have a specialty license for hair braiding with significantly reduced number of training hours required.

Hair braiding is continuously used as an example to convince policymakers that state occupational licensing is a broken system that needs fixing. However, policymakers should also be made aware that the majority of states have fixed the issues regarding barriers into this occupation.

Sensationalists claims are often touted which grab attention but studying the issue will lead you to the conclusion that state government largely did its job. Lawmakers realized that requiring a cosmetology license for hair braiders is not good regulation and did something to fix the issue.  Yet the incessant rhetoric from reform groups will have you believing that every state still punishes hair braiders in this way.

Comparing one occupation to another is never apples to apples. Each industry has unique challenges and responsibilities to the public. Hair braiders and dentists are two entirely different professions. Arguments which lump all of state licensing into one single system run the risk of pushing reform where reform is not needed and would be harmful to public safety. Comparing dramatically different professions misses the larger point about what the aim of licenses is and whom they are designed to protect.

Let’s move past the stories hair braiders who were shut down and fined by the state cosmetology board. States learned from their mistakes and fixed the issue. Let’s have more informed, industry-specific conversations about occupational licensing that don’t paint regulation as a broken system because of a few anecdotes.  

Pennsylvania Joins Arizona in Universal License Recognition

Often a licensed professional wishing to enter into a new state finds difficulty obtaining the license needed to practice their profession. The delay in obtaining their professional license could mean a lack of income, lost employment opportunities or even a decision to not move into the state.

On July 1, 2019, Gov.  Tom Wolf signed HB 1172 which makes Pennsylvania the second state to recognize out-of-state licenses.  The bill mandates boards and commissions in the Pennsylvania Bureau of Professional and Occupational Affairs provide licensure by endorsement for out-of-state applicants if the applicant meets certain criteria.

Pennsylvania has 29 boards and commissions that license 255 occupations. The boards that are subject to this legislation are listed below:

Accountancy

Nursing

Architects

Nursing Home Administrators

Auctioneer Examiners

Occupational Therapy

Barber Examiners

Optometry

Certified Real Estate  Appraisers

Osteopathic Medicine

Chiropractic

Pharmacy

Cosmetology

Physical Therapy

Crane Operators

Podiatry

Dentistry

Psychology

Engineers, Land          Surveyors, Geologists

Real Estate Commission

Funeral Directors

Social Workers, Marriage & Family               Therapists, Professional Counselors

Landscape Architects

Speech-Language Pathology & Audiology

Massage Therapy

Vehicle Manufacturers, Dealers &                 Salespersons

Medicine

Veterinary Medicine

 

“This new law will reduce barriers for new Pennsylvanians to work here and shows this is a land of opportunity,” said Gov. Wolf. “Portability is especially helpful for members of the military and their spouses who frequently move between states in service of the country and often have difficulty quickly getting a license to work in their profession.

The out-of-state applicant must:

  • Hold a licensure from another state with substantial equivalent requirements (determined by the board)
  • Demonstrate competency through experience or continuing education for at least two of the past 5 years
  • Has not committed a crime that would prevent him from being granted a license in Pennsylvania
  • Has not been disciplined by the state in which he was originally licensed
  • Pays Pennsylvania licensing fee

The bill’s “substantially similar” requirement is worth noting. This is a key difference between Pennsylvania and Arizona’s definition of universal recognition. Arizona does not require substantially similar requirements while Pennsylvania does. This still allows for the boards to determine whether or not the out of state applicant has the training, experience, education similar to what applicants in Pennsylvania are required to do. This isn’t an issue in professions where variance among state licensing requirements is negligible. However, this provision still gives the boards discretion to deny an applicant from a state with perceived “lesser” requirements.   

The bill does give the board authority to grant a provisional endorsement license while an applicant completes requirements specific to Pennsylvania. If there is a Pennsylvania specific licensing exam or an additional licensing requirement that is particular to the scope of practice in Pennsylvania, a board may grant a provisional license so the practitioner can get to work while completing that additional requirement.

The bill also clarifies that this provision does not interfere with existing reciprocity agreements or interstate occupational licensing compacts. If you participate in an interstate compact, you are still subject to the universal requirements listed out in the compact.

Prior to HB 1172, many professionals licensed out-of-state had to complete Pennsylvania’s entire licensing process rather than just state specific requirements. The arduous, time-consuming process caused workers moving to Pennsylvania to potentially lose income and career opportunities, and reduced the pool of talented workers for businesses.

“I will continue working with the General Assembly to remove barriers to work for qualified Pennsylvanians and to ensure that we are welcoming to new Pennsylvanians wishing to practice their licensed profession,” said Gov. Wolf.

Understanding Arizona’s Universal Occupational Licensing Recognition Bill

In his 2019 State of the State address, Arizona Gov. Doug Ducey, former CSG Toll Fellow, urged the Legislature to pass legislation granting universal recognition for occupational licenses, saying “workers don’t lose their skills simply because they move to Arizona.” HB 2569 which was signed into law by Gov. Ducey in April, makes Arizona the first state in the country that allows an individual licensed in another state to receive a comparable license upon moving to Arizona if they meet certain criteria.

What the law does

Arizona’s new universal licensing recognition law makes it easier for people who are already licensed in another state to get licensed at the same level in Arizona. Under the new law, Arizona’s licensing boards will recognize out-of-state occupational licenses for people who have been licensed in their profession for at least one year, are in good standing in all states where they are licensed, pay applicable Arizona fees, and meet all residency, testing, and background check requirements. Applicants interested in receiving their Arizona license under the new law should contact the appropriate Arizona licensing board for an application.

What the law does not do

The new law does not recognize other states’ occupational licenses automatically. For example, workers licensed in other states who move to Arizona still must apply for a license through the appropriate Arizona licensing board before working. However, under the new law, workers will not be required to duplicate training and other requirements that often delay or prevent them from getting to work. In some instances, the applicant may be required to take a state specific Arizona licensing exam if the state board requires it. 

How does this law affect interstate compacts? 

Arizona HB 2569 does not affect the way reciprocity works for states and professions who have enacted interstate compacts. Due to the contractual nature of the agreement, an interstate compact supercedes all existing and new state law that conflicts with it. Arizona has currently enacted 4 of the 5 occupational licensing interstate compacts which means that practitioners in nursing, physical therapy, medicine, and psychology looking to relocate to Arizona will undergo the same process as if they were moving to any other active compact state.  

How does this bill protect public health and safety? 

Arizona’s new universal licensing law ensures protections for public health and safety. In order to qualify for a license under the new law, an applicant must be in standing in all states where they are licensed and not have any past or pending investigations or complaints. Arizona licensing boards will be required to verify that an individual is in good standing in all states where they are licensed. Individuals seeking to work in occupations that require a background check, such as nurses and behavioral health professionals, will still need to complete those background checks. A person may be prevented from receiving a license in Arizona if they have disqualifying criminal background. In addition, professionals receiving licenses under the new law can only become licensed in practice within areas they have been trained and certified to practice in their original state.

HB 2569 is an expansion of an existing reciprocity statute that allows military members and spouses to easily transfer their occupational license or certification into Arizona. The bill’s sponsor, Rep. Warren Petersen, points to this measure as proof that licensure reciprocity can work, at least on a small scale. Many states already have license recognition for military spouses, but Arizona is the first state to include all out of state applicants looking to relocate to Arizona.

Gov. Ducey said, “Just because someone moves from Illinois does not mean that they lose their skill when they get to Arizona. Why should someone have to suffer the burden of thousands of dollars, weeks or months of recertification to learn a skill that they already have?” Occupational licesing reform has been a priority during Gov. Ducey’s time in office. During the 2017 legislative session, he signed an Executive Order which required state licensing boards to provide justification for licensing requirements that the Governor’s office deemed excessive. Gov. Ducey also signed the “Right to Earn a Living Act” which restricted state boards from creating any new licenses that can not be justified by health and safety concerns.  

The bill faced some criticism from regulators and concerned practitioners who assert that another state’s licensing standards may not be as stringent as they need to be to ensure health and safety protection. Arizona Rep. Pamela Powers Hannley opposed the bill, saying “We don’t really know what the standards are in other states. Why should we dumb down our standards just to deregulate?” Other legislators are supportive of the concept but worry about the practice. Rep. Amish Shah balks at the use of the term “reciprocity,” seeing HB 2569 as a one-way street into Arizona without compromise from other states.

Professional advocacy groups such as the National Board for Certified Counselors have voiced concerns that granting a license even if the previous state has much lower licensing requirements effectively lowers standards for occupational licensure in Arizona, though most of these groups are generally supportive of increased licensure portability.

Bill sponsor Rep. Warren Peterson said,  “If you hold an occupational license in another state and move to Arizona, we want to get you to work right away. HB 2569 gets government out of the way and lets qualified professionals get right to work.” Petersen views this bill as an opportunity to “get government out of the way and let [workers] get to work.” Petersen told CSG his desire is for “Arizona to be the best place in America to do business, the most welcoming state to people who want to move somewhere…where they are valued for their talent and work ethic and desire to contribute and produce, rather than arbitrary red tape.”

Utah Passes Legislation Allowing Competency-Based Occupational Licensing Requirements

Traditional occupational licensing standards typically require that applicants achieve a certain number of hours of training, education and/or experience and pass a cumulative examination before a license is granted by a state. However, the time-based requirements that states implement can vary widely. For example, aspiring barbers can be required to complete between 1,000 and 2,100 hours of training, depending on the state, before they are eligible for a license. This variance in standards demonstrates the discretion states can take in setting regulations that seek to balance public protection with economic opportunity. While licensing is a means to safeguard public health and safety, overly burdensome regulations can exacerbate the economic costs of licensing such as lower economic outputs and fewer jobs.

Seeking to reduce the regulatory burden on workers, the state of Utah established an alternative to time-based licensing requirements by passing House Bill 226, which grants its Division of Occupational and Professional Licensing the ability to implement competency-based requirements.

Rep. Norm Thurston, the sponsor of HB226, explained that competency-based requirements “involve a person learning skills at their own pace where they are subjected to competency-based examinations along the way to prove that they have attained those skills.”

In other words, competency-based requirements allow an individual to demonstrate their achievement of a certain skill as they obtain it. Instead of an individual having to fulfill the minimum number of hours and take a cumulative examination to receive a license, they can demonstrate competency throughout their training and education. With an individual being allowed to progress at their own pace, inefficiencies and redundancies in the licensing process are lessened and thus, the economic costs of licensing standards are reduced.

Thurston said that the legislation will primarily help individuals who may experience difficulties through the traditional system.

“It advantages two types of people,” he said. “First it helps anyone who can learn the skills quicker, maybe because of prior experience, greater aptitude or better instructors. It also benefits those who struggle in the traditional testing model such as people with test anxiety or individuals with disabilities.”  

The bill provides the director of Utah’s Division of Occupational and Professional Licensing the discretion to implement competency-based requirements for licensure where it is determined that it is “at least as effective as a time-based licensing requirement at demonstrating proficiency and protecting the health and safety of the public.”

Thurston said he imagines the model being used in partnership with traditional training programs through community colleges, apprenticeships programs and specialty schools, which may already be implementing this type of model but could benefit from pairing it with licensing standards.

Thurston further envisions that competency-based requirements could be used to create a licensure continuum where individuals are able receive credentials to perform certain services as they continue their education and training.

“For example, a cosmetologist may be able to pass the competency examinations to cut hair but maybe is not ready to use chemicals or color hair,” he said. “This model could allow the cosmetologist to start working and earn income as they are still learning other skills to receive further certifications.”

As states look to improve time to licensure and reduce its economic effects, competency-based requirements serve as an innovative alternative to the traditional licensing process.

CSG Launches New Occupational Licensing Website

With the number of jobs requiring an occupational license at an all-time high, The Council of State Governments (CSG), the National Conference of State Legislatures (NCSL), and the National Governors Association (NGA) have come together to assist states in improving their understanding of occupational licensure issues and enhancing licensure portability.

Currently, the number of jobs requiring an occupational license is nearly one in four. While state licensing is important for developing a trained workforce and protecting public safety, disparities in requirements between states makes it harder for people to enter these fields, and at times can prevent individuals from continuing their careers after moving across state lines. These disparities often affect certain populations more than others, such as military spouses and families, unemployed and dislocated workers, immigrants with work authorization, and people with criminal records.

To address these issues, CSG, NCSL and NGA work directly with state officials to review existing licensing requirements and ensure that criteria do not create unnecessary barriers to individuals wanting to enter the labor market. Consortium states also compare their own legislation with that of other states to improve reciprocity provisions and portability for selected occupations.

During the first phase of this project, the 11 states in the consortium—Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin—have been working to improve their states’ policies and have benefitted from multi-state team meetings, state-specific technical assistance, in-state learning consortium meetings, and support from all three national organizations for state action plan development and implementation.

As part of this ongoing project, the occupational licensure team at CSG launched a new website that pulls together CSG’s expertise on the issue as well as news and current events such as seminars, passed legislation, and working initiatives.

The new website will serve as a resource for policymakers who want to learn more about licensure portability and connect them with tools that they can use in their own states. State officials will be able to access the project database, developed in partnership with NCSL, which provides extensive information on licensing requirements for 34 professions across all 50 states and the District of Columbia. In addition to the database, the site will provide information on the Occupational Licensing Policy Learning Consortium and project reports on the current state of licensure, suggested best practices, and disproportionately affected populations.

The website also contains resources regarding interstate compacts. CSG’s National Center for Interstate Compacts (NCIC) is the nation’s only information clearinghouse and technical assistance expert on interstate compact development. Increasingly, states are turning toward compacts to solve licensure portability issues. A compact creates a legally binding relationship between compact participants so that licensed practitioners can practice in multiple states.

As the project continues, participating states will continue to benefit from this network of professionals, fellow policymakers, and researchers as they work to strengthen the workforce of licensed professionals in their states.

States Grapple with Professional Wrestling Regulations

On April 23, Louisiana’s House Commerce Committee approved House Bill 405, a measure that would deregulate professional wrestling and remove oversight authority from the state’s Boxing and Wrestling Commission.[1] The commission remains unanimously opposed to HB 405, citing their role in protecting the “health and safety of both the participants and the folks in the audience.”[2]

Louisiana is far from the first state to take a step toward deregulating sports entertainment, and this committee hearing is indicative of a larger, nationwide conversation. In 1997, New Jersey Gov. Christine Todd Whitman, flanked by popular pro wrestler The Undertaker, signed into law a bill that recognized professional wrestling as “entertainment, not a sport”[3] and removed the state’s regulatory authority over the profession.

Even as far back as 1988, the Texas Sunset Advisory Commission recommended the deregulation of professional wrestling, citing a “built-in incentive for contestants to stay healthy…given the promoters’ interest in keeping wrestlers healthy enough to maintain the road show.”[4]

Lobbying efforts, led by World Wrestling Entertainment, Inc., have focused on eliminating oversight by state athletic commissions. Former WWE Executive Vice President (and former Trump administration official) Linda McMahon has often compared their profession to the Harlem Globetrotters – top-tier athletes who entertain fans at a show with a predetermined outcome.[5]

Eleven states currently do not regulate professional wrestling specifically, and many other states, acknowledging material differences between professional wrestling and boxing/MMA, have moved regulation from under an athletic board to under various insurance or licensing boards.[6]

Professional wrestling regulations vary state-to-state, but many elements are common: state occupational licensure contingent upon fees and a positive physical examination, media fees, on-site EMT and medical staff, and inspector clearance of facilities and props.[7] Given the interstate nature of professional wrestling, competitors typically work in multiple states in a single week, forcing them to apply, pay and pass requisite examinations in each state with a licensure requirement.

The current debates around regulating professional wrestling center around two main questions: “Is professional wrestling a sport?” and “Does the state have a role in protecting the health and safety of the competitors?” States have differing combinations of answers to these questions, which creates a patchwork of rules and regulations that these national companies must navigate.

The example of professional wrestling indicates that occupational licensing affects even niche professions. Pro wrestling is not unlike EMTs or nursing in its need for interstate licensure mobility. With such similar requisites for licensure, states seeking to reap the economic benefits of professional wrestling programming could benefit from an interstate compact around licensing of professional wrestlers and promoters.


[1] https://legiscan.com/LA/text/HB405/2019

[2] https://twitter.com/brynstole/status/1120708636140032000

[3] https://www.wrestlinginc.com/news/2019/01/regulating-professional-wrestling-650331/

[4] https://www.upi.com/Archives/1988/08/16/Professional-wrestling-should-be-deregulated-in-Texas-because-it/3635587707200/

[5] https://www.documentcloud.org/documents/5736691-Linda-McMahon-PA-Deregulation-Testimony-06-11-1987.html

[6] https://www.wrestlinginc.com/news/2019/01/regulating-professional-wrestling-650331/

[7] https://www.wrestlinginc.com/news/2019/01/regulating-professional-wrestling-650331/

New Kentucky Law Streamlines Occupational Licensing for Military-Affiliated Professionals

On March 26, Kentucky Gov. Matt Bevin signed HB 323, which will improve occupational licensure portability for veterans, military spouses, and National Guard and Reserve members.1 The bill will require administrative bodies that issue occupational licenses and other regulatory authorizations to endorse and license any applicant that is a member of the National Guard or Reserves, a veteran, or the spouse of a veteran or military member, provided he or she possesses or recently possessed an equivalent license in another state.

The out-of-state license will not be considered for recognition if the license has been expired for more than two years; the license has been revoked for disciplinary reasons or is otherwise not in good standing; or if the applicant demonstrates a substantive deficiency in training, education or experience that could pose a health or safety risk to the public.

While well-intentioned, occupational licensure has been linked to some unfavorable economic effects, such as increased unemployment, higher prices and muted geographic mobility.2,3,4 With over 25 percent of U.S. workers possessing a license, the ubiquity of occupational licensing can exacerbate the difficulty job seekers with military affiliation already have in securing employment.5

According to the U.S. Department of Labor, various military occupations offer training and experience in skills that are applicable to at least 962 disparate civilian occupations.6 Nevertheless, veterans routinely cite obtaining employment as one of the most challenging aspects of transitioning to civilian life.7 Occupational licensing regulations can magnify this difficulty when states fail to recognize out-of-state licenses and disallow applicants to use military experience and training in lieu of civilian credentials to fulfill licensing requirements. 

Spouses of military service members are particularly disadvantaged by licensing due to their propensity to work in tightly regulated industries (e.g., education, nursing and child care) and their frequent relocation across state lines.8 Specifically, military spouses are ten times more likely to have moved across state lines in the past year relative to their civilian counterparts.8 Because licensing procedures are largely determined by boards at the state level and can vary considerably, military spouses seeking to maintain licensure throughout geographic relocation can face substantial encumbrances.

The Kentucky bill should help alleviate some of these issues faced by veterans, military members and their spouses. By requiring licensing boards to endorse out-of-state licenses for military-affiliated applicants, the monetary and time costs of licensure are markedly reduced, potentially providing more employment opportunities for veterans, military members and especially their spouses.

Other states have taken similar legislative action to try to remove barriers to work for military-affiliated individuals seeking licensure. Alabama HB 388 (2018), which was signed last year, requires licensing boards to endorse military spouses licensed in another state with equally or more rigorous licensing standards.9 The bill also contains a provision that creates a temporary license for applicants from states with less stringent licensing requirements.

Vermont H 906 (2018) went into effect last year and sought to reduce the amount of redundant retraining members of the military must undergo to be eligible for a license.10 To that end, the bill credits members of the military with civilian experience and training for comparable military credentials.

As states continue to reassess their occupational licensing framework for unsound and overly burdensome provisions, a focus on reducing inefficient barriers and fostering license portability for veterans and military families is an important component that can ensure both efficient labor market utilization and public safety.

Sources

  1. Kentucky General Assembly. HB 323: AN ACT relating to reciprocal occupational licensure for members of the United States military, reserves, National Guard, veterans, and their spouses. 2019. Retrieved from https://apps.legislature.ky.gov/recorddocuments/bill/19RS/hb323/orig_bill.pdf
  2. Blair, P. Q., & Chung, B. W. (2018). How Much of Barrier to Entry is Occupational Licensing? (No. w25262). National Bureau of Economic Research.
  3. Kleiner, M. M., Marier, A., Park, K. W., & Wing, C. (2016). Relaxing occupational licensing requirements: Analyzing wages and prices for a medical service. The Journal of Law and Economics, 59(2), 261-291.
  4. Johnson, J. E., & Kleiner, M. M. (2017). Is Occupational Licensing a Barrier to Interstate Migration? (No. w24107). National Bureau of Economic Research.
  5. U.S. Bureau of Labor Statistics. (2018). Data on certificates and licensing. Retrieved from https://www.bls.gov/cps/cpsaat49.pdf
  6. U.S. Department of Labor. 2014. PILOT STUDY Translating Military Skills to Civilian Employment. Retrieved from https://wdr.doleta.gov/research/FullText_Documents/Pilot_Study_Translating_Military_Skills_to_Civilian_Employment_Acc.pdf
  7. Iraq and Afghanistan Veterans of America (2019). 2019 Member Survey. Retrieved from https://cultureondemand.com/iava-2019/
  8. U.S. Department of the Treasury and U.S. Department of Defense. 2012. Supporting Our Military Families: Best Practices for Streamlining Occupational Licensing across State Lines. Retrieved from http://archive.defense.gov/home/pdf/Occupational_Licensing_and_Military_Spouses_Report_vFINAL.PDF
  9. The Alabama Legislature. HB 388: Military Family Jobs Opportunity Act. 2018. Retrieved from http://alisondb.legislature.state.al.us/ALISON/SearchableInstruments/2018RS/PrintFiles/HB388-int.pdf
  10. Vermont General Assembly. H.906 (Act 119): An act relating to professional licensing for service members and veterans. 2018. Retrieved from https://legislature.vermont.gov/Documents/2018/Docs/ACTS/ACT119/ACT119%20As%20Enacted.pdf

Florida Gov. Ron DeSantis Holds Occupational Licensure “Deregathon” in Orlando

Seeking to survey Florida’s occupational licensing regulations for unreasonably onerous provisions, Florida Gov. Ron DeSantis recently held a one-day “Florida Deregathon” workshop at Valencia College in Orlando.

Seventeen of Florida’s 23 licensing boards had representatives in attendance to respond to the challenge posed by DeSantis in his invitation letter to the event: “Our expectation is that each board arrives prepared to roll-up its sleeves, discuss, debate, identify and recommend substantive regulations that can be targeted for immediate elimination,” wrote the governor. “We know that small business is the engine that drives Florida’s economic success. And yet unreasonable and needless regulations create a drag on our economic growth, stifle competition and keep hard working Floridians out of the labor pool.”1

The regulatory intent of occupational licensure is to safeguard the public from incompetent practitioners and foster information symmetry between consumers and producers. However, occupational licensure has faced contempt from both politicians and theoretical economists over the years, contending that it needlessly inhibits economic activity by stifling market entry into occupations, driving up prices, and discouraging geographic relocation for work.

Indeed, the data suggests this phenomenon is realized in the real world. A recent National Bureau of Economic Research working paper found that occupational licensure reduces labor supply by an average of 17 to 27 percent.2 The result of this is forgone wages and tax revenue. This indicates that, provided adequate public protection is maintained, shrewd occupational licensing reform could bring these unrealized benefits to fruition, increasing the welfare of society.  

While the Florida board members were not expected to hold any official votes at the workshop, a host of prospective amendmentsaimed at reducing these harmful effects were discussed. The most prevalent included lightening continuing education, experience, and training requirements; reducing application fees and exam costs; extending renewal periods; and employing more generous recognition of out-of-state licenses.3

Similar measures have been the focus of recent, albeit largely unsuccessful, legislative efforts in Florida. Spearheaded by State Rep. Carlos Guillermo Smith, House Bill 1413 (2018), which died in subcommittee last year, would have instituted a two-year temporary endorsement of Puerto Rico licenses and certifications for migrants from the U.S. territory, many of which evacuated following Hurricane Maria in 2017.4

House Bill 15 (2018) sought more sweeping reform. The bill, which was passed by the Florida House of Representative but never made it out of the Senate, would have substantially diminished required training hours for licensees and outright repealed licensure for various occupations.5

House Bill 615 (2017) was one of the few legislative successes on this front, having been enacted in 2017. The bill emphasized licensure portability by allowing military members, spouses, and surviving spouses to obtain licensure in Florida, provided they are licensed in another state.6

The proliferation of occupational licensure in the U.S. has encouraged states to review best practices and evaluate the efficacy of existing regulations. CSG has played an instrumental role in facilitating this process. In 2017, CSG in partnership with NCSL and NGA launched a three-year project titled Occupational Licensing: Assessing State Policy and Practice. The aim of the undertaking is threefold: to help states improve their understanding of occupational licensure issues and best practices; identify current policies that create unnecessary barriers to labor market entry; and create an action plan that focuses on removing barriers to labor market entry and improves portability and reciprocity for selected occupations.

The “Florida Deregathon” event is another example of the growing appetite among states for reassessing their occupational licensing framework and increasing their commitment to ensuring that licensing provisions meaningfully protect the public, not gratuitously hinder economic productivity.

Sources:

  1. Governor Ron DeSantis Announces “Florida Deregathon” Event. January 2019. Retrieved from https://www.flgov.com/2019/01/24/governor-ron-desantis-announces-florida-deregathon-event/
  2. Blair, P. Q., & Chung, B. W. (2018). How Much of Barrier to Entry is Occupational Licensing? (No. w25262). National Bureau of Economic Research.
  3. Florida Deregathon. January 31, 2019. Retrieved from https://static1.squarespace.com/static/598a8562f43b55981f9a2f5a/t/5c59adfeec212d5c93d55734/1549381119220/DBPR+-+Deregathon+Power+Point_PDF+Version.pdf
  4. Florida State Senate. HB 1413: Temporary Licensure and Certification. 2018. Retrieved from http://www.flsenate.gov/Session/Bill/2018/1413
  5. Florida State Senate. HB 15: Deregulation of Professions and Occupations. 2018. Retrieved from https://www.flsenate.gov/Session/Bill/2018/00015/Category
  6. Florida State Senate. HB 615: Professional Regulation. 2017. Retrieved from https://www.flsenate.gov/Session/Bill/2017/615

New Ohio Law Targets Occupational Licensing Boards and Aids People with Criminal Records

Ohio Gov. John Kasich signed SB 255 on Friday which puts an expiration date of 6 years on all state licensing boards unless they are renewed by the legislature. Prior to a board’s end date, the board must present to standing committees so that lawmakers can evaluate the usefulness, performance, and effectiveness of the board. Each board will have the burden of proof to demonstrate there is a public need for its continued existence. The Legislature will determine whether a board is necessary to protect the health, safety, or welfare of the public and whether its regulations are the least restrictive form that adequately protects the public interest.

This sunset review will also analyze a board’s staff, its budget and its enforcement actions and conclude whether the board has inhibited economic growth, reduced efficiency, or increased the cost of government. One-third of the state’s licensing boards will be reviewed every two years.

Any proposed occupational regulations will have to undergo a similar sunrise review process. The Ohio Legislative Service Commission will analyze the extent to which the requirement for the occupational license stimulates or restricts competition, affects consumer choice, and affects the cost of services.

Boards who present to the legislature to introduce new regulations are expected to provide evidence of present, significant, and substantiated harms to consumers in the state and explain why current laws are insufficient. The goal of the sunrise and sunset reviews in SB 255 are to prohibit new and existing regulations that restrict entrants into the occupation with no clear public protection need identified.

The law also allows an individual who has been convicted of a criminal offense to request a licensing authority to determine whether the individual is disqualified from receiving or holding a license based on conviction. This is particularly impactful for people with criminal convictions who are considering occupations with extensive amount of training or education required. Previously an applicant might go through years of training and spend thousands of dollars only to find out when they apply for a license that their criminal conviction disqualifies them from licensure. Under this new provision, licensing boards must tell a potential application whether or not they have a conviction that would ban them from receiving a licensure which will spare practitioners a significant amount of resources. Licensing boards must also publish all offenses that could disqualify applicants online.

Ohio is following in the footsteps of Nebraska who was the first state to pass legislation mandating this type of sunrise/sunset review process. Nebraska’s LB299 has the same twostep process for review where first, there must be “present, significant, and substantiated harms” that warrant government intervention. Second, if such a problem exists, the legislators must first consider a regulation that is the “least restrictive” and imposes the lowest burdens and costs while still protecting consumers from the harm. A similar bill was also passed last legislative session in Louisiana.

As states continue to think about the way they regulate occupations, more states may follow this sunrise/sunset model as a way to thoughtfully consider if government intervention is needed to protect the health and safety of the public.

NCIC Summit of the States: A Tested Solution to Today’s Policy Issues

By Debra Miller

This panel examined the evolution and current use of interstate compacts, discuss the history of interstate compacts and examine the scope of interstate problems states now tackle through compacts, with a focus on occupational licensure compacts. Additionally, the panel explored other forms of multistate cooperation and discussed why compacts are viewed as a superior solution to foster interstate cooperation, protect consumers and guard state sovereignty. As policymakers confront issues from health care delivery to infrastructure revitalization, interstate compacts allow states to work collaboratively across state lines to bring resolution to some of America’s most pressing issues with innovation and a unified voice.

• Jeff Litwak, General Counsel, Columbia River Gorge Compact Click here for slides
• Rick Masters, Special Counsel, National Center for Interstate Compacts
 

BIOGRAPHIES

Jeffrey B. Litwak, Counsel, The Columbia River Gorge Commission

The Columbia River Gorge Commission is the interstate compact agency for the Columbia River Gorge National Scenic Area. Litwak’s practice includes interstate compacts, administrative law, land use, state and local government law, and civil appeals. He is admitted to practice in Oregon, Washington, and the U.S. district courts for Oregon and the Western District of Washington, Ninth Circuit, and U.S. Supreme Court. Litwak is also an adjunct professor of law at Lewis and Clark Law School, where he teaches interstate compact law, Oregon land use law, and administrative law.

Rick Masters, Special Counsel, The National Center for Interstate Compacts

Masters is special counsel to CSG’s National Center for Interstate Compacts (NCIC), providing legal guidance on the law and use of interstate compacts, their application and enforcement and bill drafting guidance in conjunction with the various NCIC compact projects. He has been a primary drafter of many compacts including multistate licensure compacts for the professions of nursing, medicine, physical therapy, emergency medical services and psychology. He also provides legal advice to a variety of compact governing boards and agencies and testifies before state legislatures and Congress about compact legislation. He does extensive research and writing in the field of interstate compacts including co-authoring the largest compilation of laws and commentary on the subject published by the American Bar Association in 2016 entitled The Evolving Law and Use of Interstate Compacts 2nd Edition.

NCIC Summit of the States: The Nuts and Bolts – Administering Interstate Occupational Licensure Compacts

By Debra Miller

The U.S. Bureau of Labor Statistics estimates that the number of licensed occupations has risen from 5 percent of the U.S. workforce in the 1950s to about a quarter of the workforce today. Navigating the various state licensing processes can pose a significant challenge for workers due to different rules, regulations, fee structures and continuing education requirements. This panel looked at the rising use of occupational licensure compacts, particularly in the health care sector, to achieve professional licensure portability and reciprocity and the potential impacts on America’s workforce. 

• Moderator: Dan Manz, REPLICA Click here for slides
• Scott Majors, Kentucky Board of Physical Therapy Click here for slides
• Joey Ridenour, Arizona State Board of Nursing Click here for slides
• Diana Shepard, West Virginia Board of Osteopathic Medicine

BIOGRAPHIES

Scott Majors, Executive Director, Kentucky Board of Physical Therapy

Majors has served as executive director for the Kentucky Board of Physical Therapy since 2012. He currently serves as Kentucky’s delegate to the Physical Therapy Licensure Compact Commission. Earlier this year he was elected to serve as a member of the Compact Commission’s Executive Board, and he has been a member of the Commission’s Rules and Bylaws Committee since its inception. Majors came to the Physical Therapy Board from Kentucky’s Judicial Conduct Commission where he served as its executive secretary. He also previously served as prosecuting attorney for the Kentucky Board of Nursing. He has over 30 years of experience working in state government with administrative boards, agencies and commissions, with a focus placed on licensing and regulation, disciplinary procedures, administrative adjudication, and professional ethics.

W. Daniel Manz

Manz served for 25 years as the Vermont Department of Health’s emergency medical services director and the operations and logistics administrator with Vermont’s Office of Public Health Preparedness and EMS. He went on to serve as the executive director of Essex Rescue for five years. He is currently involved in championing the 2018 update to the National EMS Scope of Practice Model and as of July 1, 2018 has been supporting the implementation of the REPLICA EMS Compact.  He is a commissioner on Vermont Public Safety Broadband Commission and also the vice-president of the Vermont Ambulance Association.

Joey Ridenour, Executive Director, Arizona State Board of Nursing

Ridenour’s prior experience includes over ten years as chief nursing officer at a large public hospital, Maricopa Health System. She found her greatest passion to be nursing regulation and served as past president of the Arizona State Board of Nursing ten years prior to being appointed as executive director in 1995. She has also served on the NCSBN Board of Directors and as president for four years. She has served as chair on five NCSBN committees and is the current chair of the NLC Rules Committee. She had been a member of the original NLC since 2002 and served on the NLC Executive Committee for seven years and as chair for four years. 

Diana Shepard , Executive Director, Board of Osteopathic Medicine

Shepard comes from a background in hospital administration. She serves on the Board of Directors of Administrators in Medicine (AIM). She is the AIM Southern representative, which includes Alabama, Florida (MD & DO boards), Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Puerto Rico, South Carolina, Tennessee (MD & DO boards), Virgin Islands, Virginia, and West Virginia (MD & DO boards).

Occupational Licensing Consortium Convenes Second National Meeting

On November 28-30, the states a part of the occupational licensing policy learning consortium convened for the second annual meeting in Clearwater, Florida. The state teams had the opportunity to focus on four population groups who are disproportionately affected by licensure—individuals with criminal records, veterans and military spouses, dislocated workers and immigrants with work authorization. License portability, reciprocity, and interstate compacts were also major topics. States had the opportunity to connect with and learn from fellow consortium states, as well as hear from states outside of the consortium that have taken action on occupational licensure including Nebraska and Michigan. 

New funding allowed for four new states to participate in this year’s consortium meeting. Idaho, New Hampshire, North Dakota, and Vermont formed state teams made up of legislators, regulatory agencies, and governor’s staff and joined the original 11 states in Clearwater to begin action planning their licensure reform. These states who recently came aboard the project will be part of the consortium going forward.

CSG was also able to expand existing state teams to include more regulatory board members. Licensure reform is a challenging policy area with many competing interests. Bringing together all stakeholders is something CSG wanted to accomplish as a part of this effort. Pursuing licensure reform without input from the licensure boards is not something states have had much success with. In order to engage more regulatory agencies, CSG used additional funding to expand state teams to include these key stakeholders.

The focus on particular reforms from the consortium states as discussed at the meeting ranges widely from sunrise/sunset review, interstate compacts, communications/marketing plans, board consolidation, data collection/standardization, and laws for military families.

One additional point of discussion for the state teams was developing a transition plan for states with outgoing governors and legislators. With state teams being made up heavily of legislators and governor staff, some teams are needing to come up with a plan maintain momentum once these new state leaders take office. The partners at CSG, NCSL, and NGA have committed to developing a transitional memo that states can request which will explain the project and ask for support from the newly elected official.  

The consortium will formally meet one more time in the summer of 2019, but the project partners hope this is just the beginning of state occupational licensing reform.

Vermont Deputy Secretary of State Chris Winters said, “This was the best conference I’ve ever been a part of. I was so glad to be able to contribute, and was also really proud of my Vermont team and their focus. This conference has energized them.”

Each consortium state has accomplished things throughout this project, but the latest consortium meeting in Clearwater was a great time for states to reset focus, refine vision, and energize to pursue common sense licensure reform.

States Explore Occupational Licensure Reform

The consortium of states participating in the U.S. Department of Labor’s Occupational Licensing: Assessing State Policy and Practice project recently began their second round of project meetings to discuss occupational license reform. The 11 states–Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin–are individually meeting to further review their licensure process, engage with policy experts and develop action plans. The state team meetings will culminate this year in the project’s second multistate learning consortium summit to be held Nov. 28-30 in Clearwater, Florida.

The Council of State Governments, along with its project partners the National Conference of State Legislators and the National Governors Association, continues to deliver technical assistance to the states during the project by facilitating meetings, issuing policy reports and collecting state licensing data. The partners recently published four reports that focus on the unique challenges and barriers specific to immigrants with work authorizationpeople with criminal recordslow-income, unemployed & dislocated workers; and veterans and military spouses.

The following is an update on the progress some of the states have made during the second round of meetings.

Kentucky

The Kentucky team’s meeting on Sept. 19 provided the group an opportunity to learn about the differences in state regulatory board structures as well as discuss opportunities for further research including sunrise/sunset review legislation.

“Occupational licensure is a topic that really encompasses a multitude of policy areas including workforce and economic development and veterans’ affairs,” said Brian Houillion, chief of staff and executive director of financial management and administration for the Kentucky Department for Local Government. “The goal is to take a look at what regulatory framework will best serve the needs of the state. For example, during the meeting we explored the different types of state regulatory board structures as part of our ongoing conversation on finding ways to improve our licensure board system.”

Kentucky was also recently awarded an additional $450,000 Department of Labor grant to further help improve the licensure process in the state.

“The grant allowed us to bring on a grant and project administrator to better facilitate the process of licensing reform,” said Houillion. “The additional staff will assist the state’s project team to complete the smaller steps that occur between meetings and stay on objective.”

Utah

During Utah’s Sept. 21 project meeting, the team learned from policy experts about competency-based testing, improving the processes of sunrise/sunset provisions, and licensure burdens specific to immigrants.

Utah state Sen. Todd Weiler, who is a member the state’s Occupational and Professional Licensure Review Committee, said the meeting was a continuation of the team “doing its due diligence by taking deep dives into policy areas and learning from the experts.” He added that one of the team’s primary purposes was to “do the laboring work before the Legislature considers additional reform.”

“Utah is in a transition state as it moves from an older model to a more up to date approach,” he added. “The project team is answering the questions about the health and safety objectives to be achieved through licensure and how to step away from the turf battle of professions and focus on how the customer is best served. The pendulum has swung to decrease regulation wherever it makes sense.”

Utah enacted a number of occupational licensure reform legislation last year that focused on improving licensure mobility, reducing regulation and assisting relocating military families. 

Maryland

Maryland’s Sept. 25 project team meeting centered on ways to expand licensure portability and improve stakeholder messaging. Victoria Wilkins, commissioner of the Division of Occupational and Professional Licensing at the Maryland Department of Labor, Licensing and Regulation commented on the importance of improving the state’s licensure process through the project.

“Anything that decreases regulations to get more people employed while still maintaining public health and safety is something we want to explore,” she said. “The project allows us to hold cross sectional learning meetings with a variety of stakeholders to improve the conversation about licensure.”

The state team is organized in a committee-based structure, which divides the group’s focus areas into the categories: identifying barriers, business needs, community relations, data and research, and addressing the “low hanging fruit” of licensure reform. Wilkins said the “low-hanging fruit” committee could, for example, address some licensure issues outside of the state’s legislative sessions.

“The Legislature only meets once a year, so the committee was established to identify what are some of the simpler changes that could be made in the meantime,” she said. “For instance, the passing score thresholds for plumber licensing exams were recently revised to bring them into uniformity with Maryland’s other licenses.”

The meeting’s guest speaker was Karen Goldman, attorney advisor for the Office of Policy Planning at the Federal Trade Commission, who presented her recently completed FTC policy report on licensure mobility. In the report, Goldman highlighted the important role that CSG’s National Center for Interstate Compacts serves when it comes to how states deal with structuring reciprocity. 

CSG National Conference

The Council of State Governments is providing additional opportunities for states to engage with policy experts and advance the conversation on occupational licensure reform during its annual National Conference, to be held in Greater Cincinnati-Northern Kentucky, Dec. 5-8. The conference will include multiple sessions to foster learning about licensure reciprocity through state compacts, lessons from military members and spouses state licensing policies, and specific case studies of how certain professions have handled reciprocity.

To find out more information about the conference, including how to register, please visit https://www.csg.org/2018nationalconference/Agenda18.aspx

Veterans’ Employment Service Unveils Resource for Military Spouses

By Jay Phillips

On June 28, 2018, the U.S. Department of Labor’s Veterans’ Employment and Training Services, or VETS, announced a professional license and credential finder portal for military spouses. The webpage comes after President Trump’s Executive Order Enhancing Noncompetitive Civil Service Appointments of Military Spouses. The webpage provides a comprehensive one-stop destination for occupational licensing portability, pulls resources from across the federal government, and highlights states with licensing rights for military spouses.

“Military spouses serve alongside our nation’s servicemen and women,” U.S. Secretary of Labor Alexander Acosta said in a press release announcing the webpage. “States should act to remove excessive regulatory barriers to work so that our military spouses can help support their families. This new site highlights states’ efforts to help military spouses secure good, family-sustaining jobs.”

Military spouses can use the portal to search for state laws, regulations and guidelines on occupational licensing. The website also includes information on how occupational licenses can be recognized from one state to another. Many states have specific standards for military spouses to encourage the obtainment of a license in their state. Methodologies range from endorsement, expediting, temporary licenses or a variety of combinations.

The new tool provides spouses with information they need to continue their careers following relocation to another state. Finding solutions for veterans and military families to barriers related to occupational licensing is a priority of CSG. A current CSG project funded by the Department of Labor, Occupational Licensing: Assessing State Policy and Practice, prioritizes veterans and military spouses as a target population for licensure reform.

CSG’s National Center for Interstate Compacts is also a vital resource for military families looking for reciprocity of licensure. Compacts vary in authority and structure based on the occupation but are a proven best-practice for enhancing reciprocity among states in occupational licensing.

More States Take a Hard Look at Licensing Practices

States continue to take significant actions in attempts to lessen barriers to workforce entry caused by occupational licensing. CSG currently facilitates a consortium of 11 states looking at occupational licensing reform as a part of the Occupational Licensing Assessing State Policy and Practice project in partnership with NCSL and NGA, funded by the US Department of Labor. However, the examples below come from states not currently participating in this project’s consortium, signifying that occupational licensing reform is a priority for states nationwide, and not just the 11 states participating in this CSG project.

Oklahoma

In December 2016, Oklahoma Governor Mary Fallin called for the formation of the Occupational Licensing Task Force to study the issue of occupational licensing in Oklahoma and to provide recommendations by December 2017. In January 2018, the Task Force released their final report with a draft blueprint for analyzing occupational licensing. This blueprint can be used to evaluate whether government licensing is necessary in a particular occupation. It takes factors such as public health and safety risks, means to protect public interest, and board member participation into consideration to determine if licensing is appropriate or if a less restrictive means of regulation could be used.

The blueprint starts by asking the question: “Is there a compelling public interest that needs to be protected?” From there, the blueprint calls for using the “least restrictive means that would sufficiently protect the public interest.” The blueprint lists 13 possible ways to protect the public interest, ranked from the least restrictive (market competition) to the most restrictive (occupational licensing). The Task Force is also suggesting that state laws mandating licenses be subject to legislative review periodically — a sunset provision — and that this standard blueprint be used to make sure licensing is the least restrictive way to meet the state’s interest.

Louisiana

Sponsored by Rep. Julie Emerson, Louisiana House Bill 748 establishes a review process within the office of the governor. This occupational analysis would use a two-step process to review both proposed and existing regulations. First, there should be credible empirical evidence of a systematic problem that warrants government intervention. Second, if such a problem exists, the regulation must be the least restrictive form that imposes the lowest burdens and costs while still protecting consumers from harm. Every year, the office will examine one-fifth of the state’s occupational regulations to identify any rules or laws that should be repealed or modified so that they are the least restrictive. HB 748 gives Louisiana one of the most robust licensing review process in the nation.

Arizona

Arizona Governor Doug Ducey issued an executive order to all state licensing boards in March 2017 mandating a full review of all existing licensing requirements. It also requires the licensing boards to provide economic justifications for any standard that is more burdensome than the national average and for any license that is not required by at least 25 other states. The Arizona State Legislature followed suit by passing SB 1437, or the Right to Earn a Living Act, which bars licensing boards from writing regulations that restrict entry into a profession if a public health or safety benefit cannot be proven. The new law also empowers individuals to petition a board for further review of a licensing requirement.

Nebraska

Similar to Louisiana’s sunset review process, Nebraska passed an Occupational Board Reform Act (LB 299) which requires state lawmakers to undertake a review of Nebraska’s occupational licensing laws in order to loosen or eliminate requirements that serve as barriers to employment without benefiting public safety. The bill requires that licensing laws “respect the fundamental right of an individual to pursue an occupation” and requires lawmakers to favor less restrictive forms of regulation in circumstances where licensing rules violate that right.

Another important aspect of the bill is a change how state licensing boards will review criminal histories. As a result of LB 299, before applicants complete any required training, they will be able to petition an agency to see if their criminal history would be disqualifying. If denied, applicants will then be able to appeal that disqualification. In some cases, an aspiring worker will go through the entire credentialing process only to find out that a previous conviction disqualifies them from practicing the profession. LB 299 eliminates that possibility by telling the applicant up front whether or not they possess a disqualifying conviction.

The themes from these state examples are similar. States are trying to determine whether legitimate health and safety concerns exist for licensed professions, and if so pursue solutions to licensing problems by finding least restrictive form of regulation while continuing to ensure the health and safety of the consumer.

New Occupational Licensing Analysis Opposes Traditional Theory

A commonly cited argument for occupational licensing reform states that licensing results in restricted employment growth and higher wages for licensed workers, which in turn increases consumer costs. Higher wages benefit licensed workers, but wage disparity leads to inefficiency and unfairness, including reducing employment opportunities and depressing wages for excluded workers.

However, CSG’s analysis of data from the Bureau of Labor Statistics (BLS) finds no evidence that licensing has any effect at all on wages and employment growth for electricians and massage therapists. Using original CSG time-series licensing data along with occupational employment data from BLS’ Occupational Employment Statistics (OES) program, this analysis compares wage trends before and after licensure, to a control state that does not license the occupation at all. Plotting wages for the licensed state and the control state, with hourly median wages on the vertical axis and year on the horizontal axis, while drawing a vertical line at the year of initial licensure shows any potential licensing effect. Deviations from wage trends prior to licensure can be attributed to licensing if the effect is similar across several state comparisons.

(SEE ATTACHMENT FOR PLOTTED DATA)

When comparing the time series data plotted for licensed and non-licensed states, there is no evidence that these occupations becoming licensed has an effect on wages and employment. The result is most convincing for electricians. When looking at the plotted time series data, the trend lines barely changes at all upon initial licensure. If a licensing effect did exist, we would expect the line to trend upward for wages and downward for employment after a state licenses electricians.  However, when comparing with the control states that do not license, the trend lines hardly deviates at all upon initial licensure. This result is consistent across all three sets of state comparisons.

The result seems to hold even for an occupation within an entirely different industry. The trend lines for massage therapists are more erratic, but still do not seem to support a possible licensing effect. There must be other effects at work causing the wage and employment lines to shift, but these shifts do not occur in sync with the treatment state adopting a license requirement.

If most economists agree with the assumption that occupational licensing increases wages for licensed workers and decreases what are some possible explanations for this result? It may be the case that a licensing effect takes many years to be seen. The increase in wages and decrease in employment growth could be a slow, gradual process over the course of many years that eventually restricts entrants into the profession, but does not do so initially.

Secondly perhaps the licensing requirements adopted are not severe enough to deter an aspiring practitioner from entering the occupation.

Electricians

StatesExperienceNo. Of
Exams
Length of
Renewal
Continuing
Education
Initial
Cost
Renewal
Cost
Iowa16000, h13187575
Kentucky4, y11615050
Massachusetts8000, h1345330104

Massage Therapists

StatesTraining
Hours
No. Of
Exams
Length of
Renewal
Continuing
Education
Initial
Cost
Renewal
Cost
Illinois600124837087.5
Michigan5001354290115
Nebraska10001224322127

The above tables from CSG, NCSL, and NGA’s Occupational Licensing Database outline the licensing requirements for electricians and massage therapist in each treatment state where a license was adopted. Based on previous literature, if a licensing effect did exist for these occupations, you would expect the effect to be even more noticeable in the graphs for Nebraska and Iowa. The training and experience requirements for these two states are double the requirements for the other states who also recently adopted a license, yet the trend lines do not suggest that a more severe licensing effect exists.

This result is important to policy makers who are looking for new ways to grow their state’s economy. Occupational licensing reform has been a workforce priority of the two most recent presidential administrations with President Obama’s administration releasing a 76-page policy framework for state officials, and the Trump administration awarding large grants to enhance state occupational licensing portability of which CSG was a co-recipient.

Enhancing portability of state licensing and creating more a more equitable system for vulnerable populations like veterans and military families, people with criminal records, immigrants, and long-term unemployed workers is a crucial need. However, it is not clear from this evidence that deregulation will have the economic impacts that some believe.

If the result of a state adopting a license for certain occupations is negligible for these economic indicators, perhaps policymakers should focus their efforts on things other than deregulation when figuring out how to grow their state economies. Some argue that removing these licensing barriers will result in an influx of new practitioners into the occupation which will stimulate job growth. The evidence from CSG’s analysis does not show that this would be the case. If an occupation becoming licensed does not affect wages or employment, then deregulating an occupation likely won’t affect these outcomes either.

Plotted BLS Data

Utah Legislation to Reduce Occupational Licensing Barriers

By Ray Williams

Utah’s Department of Commerce issued a 2018 legislative brief that includes a comprehensive and proactive approach to reducing occupational licensing constraints and barriers. Utah is part of CSG’s occupational licensing project, which includes an 11-state consortium that includes Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin.

CSG started the occupational licensure project in partnership with the National Conference of State Legislatures and the National Governors Association. Project funding is supported through a $7.5 million grant from the U.S. Department of Labor, or DOL. The DOL project scope focuses on target populations of military spouses and children, immigrants with work authorization, people with criminal records, and unemployed and dislocated workers.

Each state selected their choice of occupational licensure focus from the DOL’s list of 34 target occupations and drafted an action plan detailing their overall strategies in achieving project performance goals. The DOL’s projects goals are:

  • To improve their understanding of occupational licensure issues and best practices
  • To examine existing licensing policies in their state
  • To identify current policies that create unnecessary barriers to labor market entry
  • To create an action plan that focuses on removing barriers to labor market entry and improves portability and reciprocity for select occupations

The Utah Division of Occupational and Professional Licensing, or DOPL, is in a continuous effort to minimize unnecessary regulation while promoting public safety and commerce. The 2018 general session passed several laws detailing their accomplishment of both DOL project goals and their own mission.

Military Families

H.B. 170 Licensing Fee Waiver Amendments

License fee waivers for full-time active duty service members of the U.S. Armed Forces, National Guard and Reserve.

S.B. 227 Licensing Standards for Military Spouses

Expands exemption from licensure for military spouses to include all licensed professions within the state.

S.B. 60 License Hold for Military Service

Authorizes fee waivers associated with renewal of an inactive license for members of the U.S. Armed Forces, National Guard and Reserve.

Reducing Regulation

H.B. 37 Occupational and Professional Licensing Amendments

Modifies and reduces required training, exams, experience and hours of training for various occupations with minimal impact on public safety; removes nonviolent felony restriction for nursing professionals to a case by case basis.

H.B. 310 Professional Licensing Amendments

Reduces licensing fees for contractors and repeals the Lien Recovery Fund leaving the State Construction Registry Program as a single point for oversight of lien law.

H.B. 63 Cosmetology an Associated Professions Amendment

Allows required exams to be administered in applicant’s native language.

S.B. 15 Environmental Health Scientists Act Amendments

Allows nonaccredited programs to qualify for education requirements when both programs are substantially equivalent.

S.B. 197 Private Security Amendments

Significantly reduces required training and education for licensing.

H.B. 200 Dentists Licensing Amendments

Removes artificial barriers and expands the list of regional dental clinical license exams accepted.

Facilitating Worker Mobility

H.B. 37 Occupational and Professional Licensing Amendments

Modifies language to allow for expanded implementation of multistate licensure compacts.

H.B. 173 Occupational Licensing Requirement Amendments

Expands licensure endorsement requirements to create a pathway for work experience minimums and competency requirements.

Transparency and Public Accountability

S.B. 223 Utah Health Care Malpractice Act Amendments

Requires DOPL to compile and study information related to medical liability to ensure intent of act for both patients and providers.

H.B. 37 Occupational and Professional Licensing Amendments

Reduces required licenses for membership of the Hunting Guides and Outfitters Licensing Board.

States Address Barriers to Occupational Licensure for Individuals with Criminal Records

By Ray Williams

The Council of State Governments Justice Center is providing in-depth analysis to help 11 states achieve their occupational licensure goals. CSG launched the occupational licensure project in partnership with the Department of Labor, or DOL, the National Conference of State Legislatures and the National Governors Association. The DOL scope includes assessing potential barriers to obtaining specific occupational licenses for target populations in 11 consortium states, including military spouses and children, immigrants with work authorizations, people with criminal records, and unemployed and displaced workers.

The initial data included occupational licensing requirements for all 50 states relative to education and training requirements, exam requirements, renewal processes, associated fees, reciprocity agreements and ex-offender restrictions. The consortium states are now requesting more information so they can analyze underlying cause and effect relationships within their current regulations and statues, as well as conduct comparative analysis of other states. CSG Justice Center is providing enhanced reports to the consortium, with additional information on background check requirements and restrictions, through the National Inventory of Collateral Consequences of Conviction project.

The National Inventory of Collateral Consequences, or NICCC, is supported by a grant from the Department of Justice, or DOJ, Office of Justice Programs, and currently catalogs over 45,000 statutory and regulatory provisions that limit the rights, benefits and opportunities available to individuals with criminal records. Among those, 15,000 provisions limit an individual’s ability to obtain occupational licensure or impair licenses already held through suspension, revocation or other means. That data is used to analyze and distinguish the collateral consequences affecting current and prospective licensees, particularly relationships between types of offenses, and the scope and duration of license ineligibility or impairment. Broad restrictions that offer little chance for employment after conviction can often discourage rehabilitation and increase recidivism.

“Of those 15,000 licensing consequences, over 6,000 are mandatory, meaning boards have no discretion to grant a license or forgo suspension, revocation or other impairments when an individual has a disqualifying conviction,” Josh Gaines, a CSG Justice Center senior policy analyst said.

The enhanced reports provided through the NICCC include data on background checks for occupational licenses, linking all 50 states to their applicable laws, statutes and regulations. The database provides enhanced search features for collateral consequence and offense type, allowing the consortium states to examine specific statutes and their collateral consequence on occupational licensing. This data allows states to compare current provisions of law and their potential outcome on licensing barriers.

Additionally, the DOJ and DOL have partnered with CSG Justice Center to fund the Clean Slate Clearinghouse, or CSC. The CSC links individuals with criminal records to legal resources and support services for record clearance, and provides states with record clearing policies for comparative best practice methods. Criminal record clearance is a process in which individuals can have their records expunged, sealed, restricted or closed, aiding in both employment and housing opportunities.  

Most occupational licensing restrictions are in place to protect public safety and provide a legitimate regulatory function. The NICCC further examines these restrictions that apply to any crime without regard to the type of crime, the lapse of time after conviction, or the rehabilitation efforts. The NICCC project provides data for legislatures and licensing boards.

The NICCC data is focused on one of the DOL’s target populations and is a vital tool for consortium states as they continue to examine occupational licensing barriers.

Connecticut Collaborating on Best Practices for Occupational Licensing

By Ray Williams

Connecticut held a meeting on March 2, 2018 on occupational licensure with assistance from The Council of State Governments, or CSG, the National Conference of State Legislatures, or NCSL and the National Governor’s Association, or NGA.

CSG launched an occupation licensing technical assistance project in August 2017 in partnership NCSL and NGA, through a $7.5 million grant from the U.S. Department of Labor, or DOL. The 11 state consortium includes Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin. Each state focused on specific occupations and target populations in an attempt to identify known and unknown barriers of occupational licensing.

The DOL project scope identified the key populations for each state as military spouses and children, immigrants with work authorization, people with criminal records and unemployed and dislocated workers. The DOL identified 34 occupations for evaluation, allowing each state to select specific occupations based on their individual needs. The overall objective of the project is to examine occupational licensing requirements, identifying potential barriers and to improve portability across state lines.

The consortium met last November in Tucson Arizona, giving state leaders an opportunity to work on action planning with licensing stakeholders, while collaboratively collecting data. Since the November meeting, 7 states have held in state meetings including Arkansas, Colorado, Connecticut, Delaware, Illinois, Maryland and Nevada. The remaining 4 states, including Indiana, Kentucky, Utah and Wisconsin have in state meetings planned in the coming weeks.

Throughout these meetings, reciprocity is one of the emerging themes and states are looking to neighboring states, as well as consortium states, to ease occupational licensing portability between state lines.

Connecticut’s Department of Public Health Section Chief Christian Anderson said during the 2017 consortium meeting, “We have always assumed that Connecticut’s reciprocity agreements have been a selling point for the state but we really didn’t know until we met with consortium states.” 

During Connecticut’s in-state meeting, April 2018, Director of Policy Bill Wlez said, “it is imperative that Connecticut review and expand reciprocity agreenents with consortium states, as well as neighboring states, to stay competitive and continuing to protect public safety.”

Over the course of the project, consortium states are relying on current and active interstate compacts as a means to solve problems that span state boundaries. CSG’s National Center for Interstate Compacts, or NCIC, is a policy program developed by CSG to assist states in developing interstate compacts, which are contracts between states. Currently, the NCIC manages more than 200 active interstate compacts helping states facilitate consensus on national issues.

CSG, NCSL and NGA provided a throughout review of state requirements and reciprocity agreements on occupational licenses. The collected data will allow all states to ensure consistency throughout testing procedures, education requirements and any necessary training requirements across all 50 states and 5 territories.   

In addition to reciprocity agreements, consortium states are also using shared data to examine best practice methods for background check requirements, apprenticeship programs, transferability of military skills, overcoming legislative obstacles and lessons learned approaches to occupational licensing barriers.”It is an opportunity for all states to learn from one another, as well as hopefully ease barriers in portability, all while advancing economic development,” Connecticut’s DOL Executive Director Kathleen Marioni said during a status meeting.

For the remainder of 2018, CSG, NGA and NCSL will visit each consortium state, providing technical assistance and best practice methodologies from other states. All 11 consortium states will meet in November of 2018 to review and share their progress with stakeholders.

CSG Launches National Occupational Licensing Database

By Kathryn Price

CSG, in partnership with the National Conference of State Legislatures and the National Governor’s Association, released the National Occupational Licensing Database to help state leaders better understand the national licensing landscape. This database contains information on the criteria required to attain a license in 34 occupations with 18 requirements being assessed. Some of the data points include initial and continuing education requirements, training, experience, exams and fees. Additionally, if a certain occupation is selected, a map of the states that require licensure will be produced (See top image below for map produced when searching the database for information on electricians). The database also allows for the user to make comparisons between states and occupations (See bottom image below for an excerpt of search results from the database when selecting to show information on cosmetologists).

The database gives the user the ability to see all the requirements across 50 states and shows the disparities between each state. These differences can create barriers for those moving across state lines as well as those attempting to gain initial licensure.

The licensing process is designed to ensure the safety of workers and the public by requiring a certain level of competency to practice a profession. However, some licenses can have excessive requirements and fees, which may be insurmountable for some. For example, home inspectors in New Jersey face an initial licensure fee of $850 along with a $500 fee every two years to renew. Whereas, those in Pennsylvania pay $225 initially and the license doesn’t expire. Four groups who are particularly vulnerable when it comes to gaining licensure are immigrants with work authorization, those with criminal records, military families, and unemployed and dislocated workers.

This database is the first step in a project aimed at understanding and reducing these barriers to licensure as well as learn best practices for licensing certain occupations. The three-year project, entitled Occupational Licensing: Assessing State Policy and Practice, is a joint effort by The Council of State Governments, the National Conference of State Legislatures, and the National Governors Association Center for Best Practices, and is funded by a grant from the U.S. Department of Labor.

The project also selected a consortium of 11 states that will meet with licensure experts to discuss each state’s current licensure practices, and develop and implement action plans that aim to remove excessive barriers created by some licenses. The states in the consortium are Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah, and Wisconsin.

The first consortium meeting was held in December of last year in Tucson, Arizona, with two more meetings slated for fall 2018 and summer 2019. In addition to these meetings, the project will produce continuing resources, namely a webinar series, blogs, newsletters and magazine article on occupational licensure policy.

The map produced when searching the database for information on electricians shows that 19 states do not require licensure.

U.S. Licensing System

By Heather Perkins

The current economic cost of professional and occupational regulation directly impacts one quarter1 of the working population in the U.S. The number of professions or occupations requiring a government license is nearly one quarter2 of the current working population. The majority3 of this increase has been the result of the increasing number of professions or occupations requiring a license. Recent domestic evidence also shows that states vary dramatically in their rates of licensure, ranging from 12 percent to 33 percent.

  Download the Article in PDF / E-Reader Compatible Format



About the Author
Adam Parfitt 
is executive director of the Council on Licensure, Enforcement and Regulation (CLEAR), a position he has held for the last ten years. Previously he served as the organization’s Director of International Relations. Prior to his time with CLEAR. Adam worked with several associations of state government officials.


Professional and occupational regulation is predominantly a state function, undertaken and protected under Article X of the U.S. Constitution. Article X grants states the authority to regulate activities affecting the health, safety and welfare of their citizens. Practitioner disciplinary matters follow each state’s administrative procedures act. Exceptions to this state oversight are the growing numbers of municipal-level licensing and professionals employed by the federal government to work within state borders.

Recent Scrutiny
Research suggests that nearly one quarter4 of the working population in the U.S. requires a government license for their profession or occupation, a number that has risen from 5 percent in the 1950s. The vast majority5of this increase has been the result of the increasing number of professions or occupations requiring a license. Meanwhile, economists suggest that the wage effect of professional and occupational licensing can be as high as 15 percent.6 Little wonder, then, that close attention is being paid to this policy lever, its implications and implementation.

Indicative of the higher profile enjoyed by professional and occupational regulation, a recent White House press release7 called for reforms to the existing system, stating:

“While licensing can offer important health and safety protections to consumers, as well as benefits to workers, the current system often requires unnecessary training, lengthy delays, or high fees. This can in turn artificially create higher costs for consumers and prohibit skilled American workers like florists or hairdressers from entering jobs in which they could otherwise excel.”

Recent developments have focused upon the following perceived shortcomings within the system:

  • The scale and growth in the number of professions and occupations affected by professional or occupational regulation, in addition to the disparity in approaches across the states;
  • Perceived attendant restrictions on professional mobility, affecting both civilian populations and military families (the latter disproportionately affected by deployments to military bases in different jurisdictions);
  • Applicability related to new working patterns (including telework and telepractice);
  • Issues of fairness, related particularly to those with qualifications from foreign institutions, as well as those with a criminal record;
  • The availability of consumer information about providers and practitioners; and
  • Issues related to oversight and broader governance.

Scale and Growth of Professional and Occupational Regulation
A recently published list of licensing best practices8provides a guide to the focus of future reforms in the field:

Ensure that Licensing Restrictions are Closely Targeted to Protecting Public Health and Safety, and are Not Overly Broad or Burdensome

1. In cases where public health and safety concerns are mild, consider using alternative systems that are less restrictive than licensing, such as voluntary state certification (“right-to-title”) or registration (filing basic information with a state registry).

2. Make sure that substantive requirements of licensing (e.g., education and experience requirements) are closely tied to public health and safety concerns.

3. Minimize procedural burdens of acquiring a license, in terms of fees, complexity of requirements, processing time and paperwork.

4. Where licensure is deemed appropriate, allow all licensed professionals to provide services fully of their current competency, even if this means that multiple professions provide overlapping services.

5. Review licensing requirements for the formerly incarcerated, immigrants and veterans to ensure that licensing laws do not prevent qualified individuals from securing employment opportunities, while still providing appropriate protections for consumers.

The desire to ensure that regulation is proportionate and reflective of the risk to the public is echoed elsewhere, notably in a recent report9 from the Professional Standards Authority in the U.K., which developed a “continuum of assurance” as part of efforts to provide “a methodology for assessing and assuring occupational risk of harm.”10

The Professional Standards Authority’s model contains two stages: profiling the risk of harm that results from the practice of a profession; and determining the external risk factors that may exist. The latter includes the numbers of practitioners and potential clients, methods by which the risk can be managed (including through the use of technology), the economic cost (including effects on cost and supply), innovation, perceived risk and unintended consequences.

Having been encouraged to consider alternative policy levers, some states have attempted to deregulate, or de-license, existing professions and occupations. Research suggests11 however, that such initiatives are rarely successful. A recent Bureau of Labor Statistics report commented that “In nearly every instance that we analyzed, de-licensing and de-licensing attempts have been met not only with stiff resistance but also usually (when successful) with a movement to reinstitute licensing. Clearly, these results reflect the lobbying power of the occupations in question and their professional associations.”12 The report goes on to suggest additional reasons for such resistance, including the likelihood that the costs (of delicensing) to members of licensed practitioners is high, at the same time as the benefits to the public are arguably widespread, but limited. Other possibilities include the unwillingness of state legislatures to deny the states a source of revenue, given that most regulatory boards are, at a minimum, self-sustaining. While sunset laws exist in a variety of states, historically many appear reluctant to recommend de-licensure, or find legislatures reluctant to act upon such recommendations.

Concerns about the economic cost of professional and occupational regulation are not confined to domestic governments and think tanks. Recent years have seen the Organization for Economic Cooperation and Development, or OECD, produce significant work related to this topic. Among the initiatives has been the development of a Services Trade Restrictiveness Index,13 which “provides policy makers and negotiators with information and measurement tools to open up international trade in services and negotiate international trade agreements. The STRI indices take the value from 0 to 1, where 0 is completely open and 1 is completely closed.”

State Variations in Regulatory Practice
Recent domestic evidence also shows that states vary dramatically in their rates of licensure, ranging from a low of 12 percent of workers in South Carolina to 33 percent in Iowa. Such significant differences in licensing prevalence are frequently cited by opponents of licensure, who suggest that jurisdictions are not treating occupations equivalently, to the detriment of both market participants and consumers. A Reason Foundation report14 from 2007 tabulated each state’s licensing requirements by occupation. The report found that on average, states require licenses for 92 occupations. A separate report by Institute for Justice compared licensing requirements for low and moderate-income occupations that are licensed in at least one state. This report found that 15 occupations were licensed in 40 states or more, with the average occupation being licensed in only 22 states.15

This variation is further demonstrated in Table A, indicating the percentage of workers licensed in each state. While a large number of states fall within the 20 to 25 percent range, three states license in excess of 30 percent of their workforce, while five states license fewer than 15 percent.

  Download “Table A: Share of Workforce Licensed or Certified, by State”  in PDF / E-Reader Compatible Format

Supreme Court Case: North Carolina State Board of Dental Examiners v. Federal Trade Commission
The implications of a recent Supreme Court case16are slowly becoming evident with occupational regulators considering the potential need to make likely significant changes to their regulatory arrangements, such as:

  • Requiring public member majorities on regulatory boards
  • Multi-party board membership
  • Providing umbrella boards with policy oversight
  • Establishing an independent review board to oversee rulemaking
  • Creating majority public review bodies for scope of practice actions
  • Making boards advisory only
  • Expanding the powers of sunrise/sunset review
  • Giving attorneys general additional oversight powers.17

Former California Attorney General Kamala Harris summarized the Supreme Court case as follows:

The North Carolina Board of Dental Examiners was established under North Carolina law and charged with administering a licensing system for dentists. A majority of the members of the board are themselves practicing dentists. North Carolina statutes delegate authority to the dental board to regulate the practice of dentistry, but did not expressly provide that teeth whitening was within the scope of the practice of dentistry. Following complaints by dentists that non-dentists were performing teeth-whitening services for low prices, the dental board conducted an investigation. The board subsequently issued cease and desist letters to dozens of teeth-whitening outfits, as well as to some owners of shopping malls where teeth-whiteners operated. The effect on the teeth-whitening market in North Carolina was dramatic, and the Federal Trade Commission took action. In defense to antitrust charges, the dental board argues that, as a state agency, it was immune from liability under the federal anti-trust laws. The Supreme Court rejected that argument, holding that a state board on which a controlling number of decision-makers are active market participants must show that it is subject to “active supervision” in order to claim immunity.”18

In response, states have taken a variety of steps:

  • California’s attorney general provided guidance19 about what should be considered “active supervision” for the purposes of the state action immunity doctrine, and identified measures that could be taken to guard against antitrust liability for board members. The opinion identified possible steps, including changing the composition of boards, adding additional supervision by state officials, reducing exposure for damages claims, and ensuring board members receive legal indemnification and antitrust training.
  • In Oklahoma, an executive order was issued20 which required those state boards with a majority of members who are active market participants in the occupation or profession directly or indirectly controlled by the board, to submit each non-rulemaking action to the Office of the Attorney General for review and analysis. Where the attorney general concludes the board action may violate law, the board must defer or reconsider the proposed action.21
  • In North Carolina, the General Assembly’s Program Evaluation Division, or PED, reviewed both structure and operation of the 55 independent occupational licensing boards. The ensuing report22stated that there was insufficient state-level oversight to ensure efficient and effective public protection, recommending a legislative review of several occupational licensing boards’ authority and the consolidation of several others.
  • Massachusetts Gov. Charlie Baker issued an executive order23 directing the review of any acts, rules, regulations or policies (proposed by independent licensing boards) with the potential to limit competition in a relevant market for professional services. The review evaluates whether the proposed act, rules, regulations or policies advance the goal of ensuring the health, safety and welfare of the public sufficiently, so that it should be permitted regardless of any potential anticompetitive impact. Several types of acts warrant particular attention, including scope-of-practice rules, and territorial restrictions.
  • Activity has also been recorded in Iowa, Maine and West Virginia, in addition to other jurisdictions.

The Supreme Court decision has also raised concerns that individual board members may be liable for damages for antitrust liability related to their service. Indeed, some organizations have called for legislation that “indemnifies state boards and members from any damages or litigation fees related to claims against them to which the immunity applies.”24

Some states, such as Massachusetts and Rhode Island, clearly provide immunity and indemnification to at least some of their boards via statutory language. Other states, such as Illinois, Michigan, New Jersey, New York, Oklahoma and Texas, have indemnification statutes that may protect state agencies, but legislation here offers less clarity about whether indemnification extends to professional board members.

Private litigation has followed the Supreme Court ruling, most notably in the cases of Teladoc Inc. v. Texas Medical Board25, and Henry v. North Carolina Acupuncture Licensing Board.26In the former case, Teladoc, a provider of telehealth services, filed suit after the Texas Medical Board enacted a 2015 rule requiring face-to-face contact between an individual and a doctor before a prescription is issued. Teladoc claimed that rules placing limits on video consultations violate the Sherman Act. A district court ruling denied the medical board’s motion to dismiss the complaint, finding that the board was not actively supervised by the state.

The latter case saw several licensed physical therapists and patients sue the North Carolina Acupuncture Licensing Board for sending cease-and-desist letters to physical therapists who offered “dry needling” services. The physical therapists in receipt of the letter were accused of engaging in the illegal practice of acupuncture. The plaintiffs maintain that the board’s efforts violate federal antitrust law and a bid to dismiss the lawsuit against the board has been unsuccessful to date.

Conclusion
The recent award of a substantial U.S. Department of Labor grant27 to “Identify licensing criteria to ensure that existing and new licensing requirements are not overly broad or burdensome and don’t create unnecessary barriers to labor market entry; and improve portability for selected occupational licenses across state lines,” should ensure that interesting developments follow in this fascinating, and often under-reported field.


Notes

1 Occupational Licensing: A Framework for Policymakers, Department of the Treasury, Office of Economic Policy, the Council of Economic Advisers, and the Department of Labor (2015), p.3.
2 Ibid.
3 Ibid.
4 Occupational Licensing: A Framework for Policymakers, Department of the Treasury, Office of Economic Policy, the Council of Economic Advisers, and the Department of Labor (2015), p.3.
5 Ibid.
6 Ibid, p.4.
https://obamawhitehouse.archives.gov/the-press-office/2016/06/17/fact-sheet-new-steps-reduce-unnecessary-occupation-licenses-are-limiting.
https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf   (p.42).
9 Right-touch assurance: a methodology for assessing and assuring occupational risk of harm (http://www.professionalstandards.org.uk/docs/default-source/publications/right-touch-assurance—a-methodology-for-assessingand-assuring-occupational-risk-of-harm.pdf?sfvrsn=0).
10 Right-touch assurance: a methodology for assessing and assuring occupational risk of harm, p.1.
11 https://www.bls.gov/opub/mlr/2015/article/the-delicensing-of-occupations-in-the-united-states.htm.
12 Ibid.
13 http://www.oecd.org/tad/services-trade/services-traderestrictiveness-index.htm.
14 Summers, A. (2007). Occupational licensing: Ranking the states and exploring alternatives. Los Angeles: Reason Foundation.
15 Carpenter D., Knepper L., Erickson A. and Ross J. (2012), License to Work, A National Study of Burdens from Occupational Licensing. Institute for Justice, p.5.
16 North Carolina State Board of Dental Examiners v. Federal Trade Commission (https://www.supremecourt.gov/opinions/14pdf/13-534_19m2.pdf).
17 Citizen Advocacy Center, Addressing the Supreme Court’s North Carolina Decision: Options for the States.
18 California Attorney General Opinion 15-402, issued 9/10/15.
19 Opinion of Kamala D. Harris, Attorney General, and Susan Duncan Lee, Deputy Attorney General, No. 15-402 (Sept. 10, 2016), 98 Ops.Cal.Atty.Gen. available at https://oag.ca.gov/system/files/opinions/pdfs/15-402_0.pdf.
20 State of Oklahoma Executive Department, Executive Order 2015-33 (July 17, 2016).
21 Ibid.
22 North Carolina General Assembly Program Evaluation Division, “Occupational Licensing Agencies Should Not be Centralized, but Stronger Oversight is Needed,” Final Report to the Joint Legislative Program Evaluation Oversight Committee, Report No. 2014-15 (Dec. 17, 2014), available at http://www.ncleg.net/PED/Reports/documents/OccLic/OccLic_Report.pdf.
23 Office of the Governor of the Commonwealth of Massachusetts, “To Ensure Proper Review of the Regulation of Professional Licensing by Independent Boards,” Executive Order No. 567 (March 28, 2016), available at http://www.mass.gov/governor/legislationexecorder/execorders/executive-order-no-567.html.
24 AICPA – https://www.aicpa.org/Advocacy/State/DownloadableDocuments/Memo-NC-Dental-Supreme-Court-Decision-August-2016.pdf.
25 Teladoc, Inc., et al. v. Texas Medical Board, et al., No. 1:15-cv-00343 (W.D.Texas, Apr. 29, 2015).
26 Henry, et al. v. North Carolina Acupuncture Licensing Bd., et al., No. 15-831 (M.D.N.C. Oct. 7, 2015).
27 https://obamawhitehouse.archives.gov/the-press-office/2017/01/12/us-labor-department-awards-75m-fund-researchimproving-geographic.

North Carolina Looks To Ease Occupational Licensure Requirements For Military Families

The North Carolina Senate unanimously passed SB-8 on March 15th which eases occupational licensure burdens on veterans by allowing military members and their spouses to practice their profession with a license from another state while transitioning to the requirements of North Carolina. The bill, sponsored by Senators Andy Wells, Harry Brown, and Louis Pate, is a positive step towards helping military families working jobs that may require a license.

Recognizing professional licenses issued by other states relieves some of the burden put on military families who relocate regularly. Rather than being put out of work while getting re-licensed in a new state, families can continue working while they move towards satisfying qualification requirements for licensure in North Carolina.

The bill only applies to military members and spouses who have performed the occupation in another state where the requirements are “substantially equivalent” to North Carolina’s. Qualifying participants receive a temporary practice permit that is valid for one year. Military families are also no longer required to pay the application fee for licensure if one is typically required in the field in which they work.

Research suggests relicensing policies impose a considerable cost of time and money on workers looking for jobs in another state. Variations in state licensing laws cause military families difficulties while pursuing their careers as they move between states.

CSG executives signed a resolution late last year supporting intergovernmental collaboration on occupational licensing for military spouses. The resolution reports that thirty-five percent of military spouses work in occupations that require a professional license including teaching, childcare services, and nursing. Additionally, sixty-eight percent of married veterans report their spouse’s ability to maintain a career impacted their decision to remain in the military by a large or moderate extent.

CSG recently won a $7.5 million dollar grant from the U.S. Department of Labor to guide a group of 10 states in improving licensure portability across state borders. The action plan prioritizes military families as a part of the targeted population in need of greater licensure opportunities.

Relieving financial and administrative burdens on these families who sacrifice for the sake of our country is a small way of repaying them for their service. State and local governments who streamline occupational licensing opportunities will ease the transition for military members and their spouses to move across state lines.

North Carolina’s SB-8 is currently working its way through House Standing Committees, but is receiving bipartisan support, and sponsors anticipate it becoming a law in the upcoming weeks. 

The Grades Are In: How Well is Your State Licensing People with Criminal Records?

According to a study produced by the National Employment Law Project (NELP), the majority of states are creating barriers for people with criminal records to access occupational licensure opportunities. NELP estimates between 70 and 100 million American (nearly 1 in 3) have a criminal record. Additionally, people with records are on average only half as likely to get a callback after submitting an application compared to those without a record. The structure of current state laws is a major barrier to participation in the labor force.


The study produced by NELP examined existing laws in 40 states, and graded each state based on the effectiveness of their laws at creating licensing opportunities for people with criminal records (see chart attached). The researchers grouped the grades into 5 nominal categories ranging from most effective to unsatisfactory, and developed grades based on these four criteria:

  1. Does the law prohibit the blanket rejection of applicants with conviction histories?
  2. Does the law incorporate EEOC Factors which include consideration of whether a conviction is occupation-related and how much time has passed since the conviction?
  3. Does the law limit the scope of record inquiry or the consideration of certain types of record information?
  4. Does the law require consideration of rehabilitation?   

The study’s primary criticism of the laws was their inconsistent, vague, and unnecessarily restrictive nature. The laws sometimes only applied to certain convictions or jobs, and often gave licensing boards the discretion to decide with little or no guidance.

Some examples of the vagueness: 

  • New Mexico: “Behavior that gravely violates the accepted moral standards of the community”
  • Utah: “A crime that involves actions done knowingly contrary to justice, honestly or good morals”
  • Idaho: “An individual can become a certified public accountant only if he/she are of ‘good moral character’, which means lack of a history of dishonest dealings.”

Twenty-five of the forty states examined received “minimal” or “unsatisfactory” rating. The study gave only Minnesota its “most effective” grade. Minnesota’s law prohibits a blanket ban based on conviction, meaning just because someone has a criminal record that does not automatically disqualify them for licensure. Minnesota also prohibits denial based on a conviction unrelated to the position, requires consideration of the time elapsed since conviction, and lists clear standards for considering rehabilitation. Minnesota forbids licensing boards from rejecting licensure based on a conviction when the individual has been released for over a year and shows “sufficient rehabilitation”.  

Plenty of research exists that focuses on the difficulties people with criminal records face when attempting to find employment. However, with the percentage of American jobs that require licensure growing, policy needs to shift its focus on examining licensure practices. The Brookings Institute estimates nearly 30 percent of American workers need a license to perform their job. Maybe the problem is not a poor job market, but inability to acquire jobs based on state laws that broadly reject applicants with certain records regardless of their qualifications or evidence of their rehabilitation. 

The National Inventory of Collateral Consequences of Conviction (NICCC), administered by the CSG Justice Center, reports that licensing boards impose over 25,000 licensing restrictions nationwide. Over 10,000 of these restrictions apply automatically regardless of a crime’s relationship to a particular license, evidence of rehabilitation, or the time since conviction.

Responsible policymaking should address these barriers embedded into licensing laws, and develop opportunities for people with criminal records. Nearly one third of the population are willing workforce participants, but are being denied entry based on their criminal past, and not their current qualifications. 

Overall State Grades

Blue Star Families, Quality of Life and Spouse Employment

By Donna Counts

The 2016 Blue Star Families Military Lifestyle Survey summary was released in January 2017.  The Blue Star Survey is an annual snapshot of the state of military families and the largest nongovernmental survey of its kind and provides information needed to understand the wellbeing of military families, critical information since family and individual wellbeing is key to the success of the nation’s all-volunteer force.  According to the survey, just over half of all military personnel are married, while 36 percent are married with children.   Survey respondents indicated family quality of life is the top reason for leaving the service.  When asked about their top concerns, 37.9 percent of military spouses site their employment as a major concern.

Military service members and their families often have to move across state lines, and these moves can be difficult on military spouses as they try to maintain their own careers. More than one-third of military spouses are in an occupation that requires them to have a license, and licensing requirements are set at the state level with significant variation from state to state.

Frequent moves and unpredictable work schedules make it difficult for find a job and creates financial stress for the family.  The 2015 Demographics Report prepared by the Department of Defense, the latest report that is available, found that 79 percent of active duty spouses had moved across state lines or abroad in the past five years, and 27 percent of spouses reported that it took ten months or more to find employment after a move.  Perhaps not coincidentally the 2016 Blue Star Families report found that 79 percent of military spouses felt that military spouse status has a negative impact on their ability to pursue a career, and 63 percent of military spouses encountered licensing challenges due to relocation.  This difficulty is reflected in the 2016 unemployment rate for military spouses of 21percent compared to the 4.9 percent national unemployment rate. 

Significant obstacles for military spouses finding employment are state occupational licensing laws.  State licensure can disproportionately affect military families because military families tend to be more mobile.   Other segments of the workforce also face difficulty when moving from place to place due to occupational licensure.  Licensure can ensure that licensed professionals have the qualifications to meet quality, health and safety standards.  Licensure can also help to encourage a higher level of skill and professionalism which can translate into higher wages.  However, licensure can present obstacles to workers attempting to enter a profession by increasing the training requirements and associated costs or when workers move across state lines and have to comply with different state licensing requirements.  While licensure can increase individual wages, it can also increase the prices consumers pay for the services provided by the license professional.   

The problem for military spouses more prevalent in states with a high concentration of military personnel and families.  The following chart illustrates the state-by-state distribution of active duty military and families and the following table presents data on the peent of the workforce requires an occupational license.  California is the state with the highest military population with 324,666 and 20.7 percent of its workforce requires some sort of an occupational license.  Virginia has the second largest military population with 291,225, and 17.2 percent of its workforce requires an occupational license. 

There is little disagreement that licensure serves a needed purpose if the quality, health and safety standards are obvious.  In this case, policy best practices for establishing occupational licensing include standardizing the licensing requirements for occupations and encouraging inter-state compacts that recognize licenses from other states.  When the benefits to the public are less clear and licensure requirements create significant barriers to employment, then it may be time for state leaders and policymakers to re-evaluate the licensure requirements. 

Reading resources:

Blue Star Families. 2016 Annual Military Family Lifestyle Survey: Comprehensive Report. Falls Church, VA: Blue Star Families.

Department of Defense (DoD), Office of the Deputy Assistant Secretary of Defense for Military Community and Family Policy (ODASD (MC&FP), 2015 Demographics Profile of the Military Community, 

Department of Defense (DoD), Defense Manpower Data Center (DMDC), Active Duty Spouses and Active Duty Members:  Spouse Employment, Satisfaction, Financial Health, Relationships, & Deployments, Results from 2015 Survey of Active Duty Spouses & 2013-2014 Status of Forces Surveys of Active Duty Members, July 2016.  

Spouse Employment Report, Institute for Veterans and Military Families, Syracuse University, February 2014.  

Council of State Governemnt, Capitol Ideas, Top 5 Issues in Workforce, 2017 Special Issue

Resolution Supporting Intergovernmental Collaboration on Occupational Licensing for Military Spouses

By CSG Executive Committee

  Download the Resolution in PDF / E-Reader Compatible Format

WHEREAS, military service members and their families make sacrifices for the sake of our country and in defense of our freedom; and

WHEREAS, military families often move across state lines during their service and immediately following; and

WHEREAS, military spouses move households to accommodate their families at a rate ten times higher than non-military spouses; and

WHEREAS, thirty-five percent of military spouses work in an occupation that requires a professional license; and

WHEREAS, the top three occupations held by military spouses – teaching, child care services, and nursing – require occupational licensing; and

WHEREAS, current state laws vary dramatically regarding licensing requirements for many occupations; and

WHEREAS, sixty-eight percent of married service members reported their spouse’s ability to maintain a career impacted their decision to remain in the military by a large or moderate extent; and

WHEREAS, streamlining the occupational licensing process supports military families and promotes employment.

NOW, THEREFORE BE IT RESOLVED, that The Council of State Governments requests that the Congress and the Executive Branch work with state and local governments to promote policies which ease the transition for military service members and their families when they move across state lines by streamlining occupational licensing, which will ease the financial and administrative burdens placed on those families by the need to frequently regain their professional credentials.

Adopted by The Council of State Governments’ Executive Committee this 11th Day of December, 2016 in Colonial Williamsburg, Virginia.

Professional Licensing

By Audrey Wall

In an effort to contain costs while also providing better consumer service, government agencies throughout North America are developing business plans and restructuring professional and occupational regulatory agencies. Increased technology use is bringing new security problems along with enhanced access for all stakeholders. The professional licensing stakeholder community is expanding to include international regulators.

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About the Author
Pam Brinegar is the executive director of The Council on Licensure, Enforcement and Regulation (CLEAR), which provides educational programs for professional licensing officials. CLEAR is an affiliate of The Council of State Governments.