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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 therapeutic recreation.

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.

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