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Licensure: Questions for the Profession
by Peg Connolly, PhD., CTRS. Appeared in the Fall
1995 NCTRC Newsletter. Reproduced with permission.
There appears to be an increased emphasis on licensing
across the country. While only a few states have licensure or title protection
acts, several other states have committees of therapeutic recreation professionals
actively working on seeking licensure or title protection for the field.
Why are professionals seeking licensure? In theory,
licensure at the state level would protect the consumer from harm. However,
practitioners often seek licensure to be able to receive reimbursement, or because
they assume it will afford similar status as is given to licensed health professions
such as occupational therapy or physical therapy. In other cases, it seems practitioners
believe the consumer will be protected from harm by licensure, assuring that
all practitioners in therapeutic recreation are qualified. Discussion needs
to be focused on the motivations for seeking licensure. If the consumer is truly
the focus, then the local licensing group must document that the consumer's
health and safety are threatened or harmed in some way without licensure.
State regulatory laws may regulate a profession
through licensure, certification, or registration. Many states use these terms
interchangeably. Typically, however, "licensure" is mandatory regulation prohibiting
unlicensed persons from practicing a profession. "Certification" and "registration"
may be either voluntary or mandatory depending on the type of laws enacted.
Although the laws tend to differ in style, generally the laws will restrict
(i) the practice of the profession("practice restriction"), (ii) the use of
certain descriptions or titles ("title restriction"), or (iii) practice and
title use. While some states do not want to enact new laws restricting practice,
some have been willing to enact title protection laws.
When a state passes a title protection law, it
may refer to national certification standards and a national exam. The state
benefits from this model because it does not have to bear the financial burden
of developing standards and a standardized exam. The professional regulated
under this type of model may be required to pay twice for the same certification:
once at the national level plus any fees the state may levy for the title protection.
If the state followed its mandate of protecting
the consumer from harm, fees collected by the state would be used to fund the
state regulatory board. The regulatory board would investigate and sanction
individuals who use the protected title without being authorized by the state,
as well as those who violate disciplinary rules or threaten the health and safety
of the consumer. However, the collected fees often do not go directly to the
regulatory board, but instead are held in the general funds of the state.
Some state regulatory boards do not follow through
with the responsibility of investigating consumer harm. For this reason, the
Governor of Massachusetts has introduced a bill that will abolish 12 regulating
boards, including the boards of OT and PT (Boston Globe, 7/25/95). The Governor
concluded that licensing and regulation were unnecessary, citing an investigation
finding that with 90,000 licensed individuals in Massachusetts, only 213 consumer
complaints were documented.
In the 1990's, title protection was challenged
in the courts. Abrahamson v. Gonzales, a landmark 1992 ruling by the Supreme
Court, found a Florida title protection law (that did not restrict practice)
to be unconstitutional. The professional title protection law was found to violate
first amendment rights. The Court ruled that while this law prohibited use of
a protected title, it did not restrict an individual's right to practice the
occupation the title reflected. Further, those allowed to practice had their
first amendment rights violated by not being able to use the title of the occupation
they were legally allowed to practice. It will be interesting to watch the affects
of this Supreme Court ruling on further activity to restrict professional titles
without restricting practice.
Why is NCTRC concerned about the increase of licensing
efforts for therapeutic recreation? Because of the title protection model being
used where the state refers to a national certification program's standards
and exam. More often, this is the approach being taken in the profession of
An issue of serious concern arises when states
seek to "take" NCTRC's registered trademark "CTRS(tm)," or the other marks owned
by NCTRC, including "Certified Therapeutic Recreation Specialist(tm)," "CTRA(tm),"
"Certified Therapeutic Recreation Assistant(tm)," "NCTRC(tm)," and "National
Council for Therapeutic Recreation Certification(tm)." States may also attempt
to obtain other NCTRC property, by requiring passage of the NCTRC exam, or meeting
NCTRC's standards, without the expressed written permission of NCTRC.
NCTRC has established ownership of its titles,
designations, exam, and other properties and is fully within its rights to protect
these properties to prevent infringement, misuse or dilution of the value of
its properties. As the credibility of the credential and titles rises, more
individuals seek to take and use NCTRC's properties without permission.
NCTRC must protect its properties on several grounds:
(i) if individuals represent themselves as being certified when they are not,
these individuals mislead the public and could cause harm, (ii) if NCTRC lost
control of its titles, designations, and properties, others could start to use
them without instituting the same consistent standards, and the credential would
be diluted in value and meaning, and (iii) if state laws confuse private certification
with state regulation, this could mislead the public and cause harm.
What direction should state groups take in the
regulation of the profession? Is licensure the wrong approach? Will the effort
to abolish licensing boards in Massachusetts be successful and set a new trend
across other states? Will more individuals seek to defeat title laws on the
basis of such laws being unconstitutional? These questions remain to be answered.
In the meantime, the profession may examine other less restrictive means of
defining competent practice at the state level.
Professionals should examine motivations for seeking
more restrictive means of regulation on a state level. Is it truly to protect
the consumer, or is it to protect the professional? Licensure at the state level
is designed to protect the consumer of services, not the professionals' interests.
Above all, if states do seek regulation and wish to use any of NCTRC's titles,
standards, its exam, its job analysis or other materials, they must seek written
permission from NCTRC early in the process.
Special Thanks to NCTRC Executive Director Peg
Connolly, Ph.D., CTRS.
All rights reserved.