A State Regulator Looks Ahead: Issues and Trends in Professional Licensure David A. Montgomery Nebraska Department of Health and Human Services July 10, BOC Athletic Trainer Regulatory Conference

WHAT IS LICENSURE?

Licensure is: A public policy exercise of the State’s police powers Designed to protect the public A legalized monopoly to practice a profession A system of standards for entry into a profession A system of standards for maintaining licensure A system for removing impaired or incompetent providers from practice BOC Athletic Trainer Regulatory Conference

Licensure is: A legal way to deter entry into a profession A mechanism to protect licensees from competition A means to gain access to third-party reimbursement A means to establish and enhance the prestige of a profession A means to create a market for new academic disciplines BOC Athletic Trainer Regulatory Conference

Drivers of licensure and of changes in licensure: Cost containment ○Costs of health care ○Access to reimbursement Professional identity ○Relationship of licensure to professional identity ○Relationship of licensure to professional education Public protection 2009 BOC Athletic Trainer Regulatory Conference

LICENSURE AND COST CONTAINMENT

Issues: Access to reimbursement is a primary driver for licensing a profession Licensure is expensive ○Cost of administrative functions (accounting, HR, legal, investigations, etc.) ○These drive up licensure fees, especially for small professions Licensure costs can become a barrier to entry and limit access 2009 BOC Athletic Trainer Regulatory Conference

Possible Futures: New payment systems may weaken or sever link between licensure and reimbursement ○This might render licensure undesirable for some professions Increased sharing of expenses among licensing boards ○Agreements among autonomous boards ○Umbrella boards ○Umbrella agencies Cost-shifting away from individual licensing fees ○Public financing of some/all activities ○Distributing costs over a larger body of licensure 2009 BOC Athletic Trainer Regulatory Conference

LICENSURE AND PROFESSIONAL IDENTITY

Issues: Licensure often driven by desire to show “maturity” or “worthiness” of a profession Licensure sometimes becomes a means to create a market for evolving academic disciplines Both these tendencies are encouraged by emphasis on specialization rather than generalization 2009 BOC Athletic Trainer Regulatory Conference

Professional identity and academic curricula are intertwined with licensed scope of practice ○Academic disciplines focus on mastery of a body of knowledge and theory ○Most scopes of practice are based on functions or acts ○Many professional scopes of practice include duplicative acts – H&P, diagnosis/assessment, therapeutic modalities, prescribing ○Scopes of practice typically fall beyond patterns of practice and disciplinary knowledge The public is often clueless as to nuances of scopes of practice and academic identity 2009 BOC Athletic Trainer Regulatory Conference

Most professions insist on hiring members of their profession as regulators Most boards are totally or primarily composed of members of the profession (self-regulation) 2009 BOC Athletic Trainer Regulatory Conference

Possible Futures: Cost-containment may change paradigm to generalization rather than specialization Re-thinking of licensing by scope of practice “packages” ○Ontario model – licensed to perform acts, not to be a ○Practice defined more as application of specialized knowledge than as performance of acts ○Possible mergers of groups of related professions and disciplines ○Administration by non-licensed professional regulators ○Increased use of umbrella boards and public members on boards 2009 BOC Athletic Trainer Regulatory Conference

LICENSURE AND PUBLIC PROTECTION

Issues: Licensure often continues to protect the profession more than the public Many licensed professions have minimal ability to do significant harm to the public Disciplinary actions occupy an increasing share of licensing boards’ time ○Most cases involve the “Big 3” – sex, drugs, alcohol ○Very few cases deal with incompetence or gross negligence ○Many cases are technical or involve minor violations of regulations Most licensing boards lack jurisdiction over unlicensed practice Few major investigations due to public comments 2009 BOC Athletic Trainer Regulatory Conference

Possible Futures: Legislatures will become more reluctant to grant licensure on demand ○Greater use of “sunrise” programs ○More use of regulatory alternatives (institutional regulation, supervisory requirements, public disclosure statements, etc.) ○Some current professions may be deregulated or merged Licensing boards may seek greater jurisdiction over unregulated practice (although legislators often skeptical) Greater sharing of investigative and prosecutorial resources 2009 BOC Athletic Trainer Regulatory Conference

Possible public financing of investigative and prosecutorial functions Greater use of mandatory reporting by licensees to uncover offenses Streamlining of regulations to focus on serious issues of potential harm Greater education of licensees in requirements of practice 2009 BOC Athletic Trainer Regulatory Conference

THREE OBSERVATIONS

Our present professional regulatory “system” is a patchwork resulting from centuries of unsystematic legislation, band-aid fixes, and ad-hoc changes. It is marginally effective, but also inefficient, needlessly expensive, inconsistent and confusing to the public BOC Athletic Trainer Regulatory Conference

As part of health care reform, a major national conversation is needed over the effectiveness and efficiency of this “system”, including licensing, private certification, and enforcement. Such a conversation could lead to reforms that would streamline and modernize licensing practices BOC Athletic Trainer Regulatory Conference

At present there is no sign that this will occur BOC Athletic Trainer Regulatory Conference

Contact Information For Questions Regarding this Presentation: David A. Montgomery Nebraska Department of Health and Human Services Division of Public Health – Licensure Unit 301 Centennial Mall South P.O. Box Lincoln NE Phone:

Thank You 2009 BOC Athletic Trainer Regulatory Conference