John Locke Update / Research Brief

How an Overzealous Licensing Board’s Threat Shows the Need for Structural Licensing Reform

posted on in Economics, Government Reform, Human Flourishing, Law & Regulation, Rights & Regulation
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  • The state licensing board for massage and bodywork said reflexologists didn’t practice massage and bodywork — then they changed their mind
  • House Bill 434 would ward off this licensing threat by creating a state healing arts commission to oversee reflexologists and music therapists, with other practices sure to be added
  • North Carolina needs structural overhaul of its occupational regulation, especially a careful, thoughtful approach in law to make sure any future regulation of a practice is the “least restrictive regulation necessary to protect consumers” and “demonstrably necessary and narrowly tailored to legitimate health, safety, and welfare objectives”

North Carolina has one of the more extensive occupational licensing regimes in the nation. Many states have been making sweeping reforms of their entire approaches to occupational licensing, but not North Carolina.

One of the problems this causes for North Carolinians is that occupational licensing boards stay on the lookout for additional practices to regulate. Instead of leaving an unrelated field alone, the boards and their licensed practitioners have financial incentives to find and assert that the field includes practices that fall under the board’s scope of practice.

Consider the plight of reflexologists. They practice the art of applying “pressure to areas on the feet (or the hands)” to relieve pain or stress and to bring healing to the body. Five years ago the N.C. Board of Massage and Bodywork Therapy had decided that reflexology is “specifically intended to affect the human energy field” and that “those who practice reflexology are not practicing massage and bodywork therapy.”

Shortly afterward, however, the massage board decided to change its mind, and reflexologists suddenly found themselves at risk of licensure by the massage board. It would be no small matter. Reflexologists had taken 200-300 classroom hours to become a certified reflexologist. This license would force them to fulfill 500 hours of classroom instruction to obtain a massage and bodywork therapist license.

Other states would prevent licensing boards from such arbitrary pillage of other practices. Mississippi and Nebraska, for example, require that state regulation of a practice should be the “least restrictive regulation necessary to protect consumers.” Arizona and Tennessee have Right to Earn a Living statutes that prevent state regulators from going to the extreme of licensing an occupation unless it is “demonstrably necessary and narrowly tailored to legitimate health, safety, and welfare objectives.”

If a board had decided a trade was outside its scope of practice, and then sought to license it under its scope of practice, could that sudden change of mind pass legal scrutiny as “demonstrably necessary” or “the least restrictive regulation necessary”? I can’t see how.

As originally filed, House Bill 434 from Rep. Harry Warren (R-Rowan) and Rep. Dennis Riddell (R-Alamance) would have had the state of North Carolina honor the national certification of reflexologists by the American Reflexology Certification Board. It would have essentially required that reflexology performed in North Carolina be done only by certified reflexologists (but certification would not be voluntary with legal protection of the title “certified”). Nevertheless, the measure would have been a less restrictive regulation that would have protected reflexologists from the threat of licensing and regulation by the massage board.

A proposed “North Carolina Healing Arts Commission”

The latest version of H.B. 434 would create a North Carolina Healing Arts Commission to supervise the “healing arts,” defined as using “allopathic, complementary, or alternative approaches to the art and science of medicine” for prevention, diagnosing, or treatment, and for promoting or restoring health and wellness. Though the bill leaves it open to add numerous practices under healing arts, it would start with reflexology and music therapists.

Why music therapists? This is a practice that, for years and years, has sought licensing from the state of North Carolina not really for the prevention of harm, but for the legitimacy a state license would bring to help make the practice eligible for medical insurance reimbursement. Only 10 states require licensing of music therapists.

For each practice, the healing arts commission would set up an advisory committee that would determine whether an applying practitioner is eligible for a North Carolina Healing Arts Certificate. Eligibility would be satisfied by being at least 18 years of age, having “good moral character as determined by the Committee,” holding a national certification in the practice, and having paid the $100 certification fee to the commission. The commission could determine the merits of applicants, discipline its certificate holders, and seek civil or criminal penalties against others who practice without a national certification.

In many ways, the commission would behave like a licensing board, with the key exception being that nationally certified practitioners would not be required to obtain a North Carolina healing arts certificate. Otherwise, the commission would uphold the legislation’s requirement that all paid practitioners of the healing arts be nationally certified in their respective practices.

Would such a measure solve the problems of reflexologists and music therapists as well as other, similar professions? The legislation would state explicitly that “reflexology is not massage and bodywork,” which would close the door on that licensure threat. Would holding the title of “North Carolina Certified Music Therapist” suffice for medical insurance reimbursement? Conceivably, a private company could determine it useful for that purpose.

A couple of other questions. Could the healing arts commission grow to become a licensing board? It wouldn’t take much. Or could the state healing arts certificate and the commission be ignored by practitioners?

One thing that seems clear from this legislation and the concerns that prompted it: the need for a structural overhaul of North Carolina’s approach to licensing professions. It goes beyond just deregulation. Among other things, North Carolina needs a careful, thoughtful approach in law to make sure that any future regulation of a practice is — to borrow language from other states — the “least restrictive regulation necessary to protect consumers” and “demonstrably necessary and narrowly tailored to legitimate health, safety, and welfare objectives.”

I continue to argue for a package of licensing reforms for this reason. Along with a Right to Earn a Living Act, they include an Occupational License Consumer Choice Act, instituting sunset with periodic review of remaining licenses and licensing boards, a least-cost-state standard of remaining licenses’ burdens, and universal license recognition for remaining licenses.

Without them, the legislature will continue to be hounded by people in different practices seeking fixes for situations, whether they’re being imperiled by overzealous licensing boards, wanting to qualify for medical insurance reimbursement, or feeling some other need that falls short of the mark of being least restrictive needed, narrowly tailored, and demonstrably necessary.

Jon Sanders is an economist studying state regulations, that spreading kudzu of invasive government and unintended consequences. Serving as Senior Fellow of Regulatory Studies and also Research Editor at the John Locke Foundation, Jon gets in the weeds of all… ...

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