Why? Part 2: Government Involvement
In a previous newsletter article (February 2018), the Counsel’s Column focused on why regulation is under political scrutiny and suggested that social work boards embrace this spotlight as an opportunity to shine. This column will focus on government involvement in regulation and continue to justify the need for public-sector regulation of the occupations and professions.
Politicians, regulators, licensees, and consumers should be asking why government is involved in regulation. It is suggested that very few reflect on government regulation, especially consumers. Thus, political reaction to and modifications of government regulation are generally based on information generated by special interest groups. It is time to embrace regulatory reform and expand the horizons of opportunity. Too often, knee-jerk reactions to regulatory reform by regulators, licensees, and trade associations support the status quo and do not address the substance of the issues. Substantive issues include what are perceived as unnecessary barriers to licensure, which in turn, limit access to programs and services. These “barrier” arguments must be weighed against the rights of the states to regulate in the interest of their citizens. State-based licensure and inconsistency among states as to licensure requirements are the catalysts fueling regulatory reform via economic arguments.
Certain special interest groups have focused research on economic arguments in an effort to show that government regulation creates unnecessary barriers to persons seeking access to practice their particular occupations and professions. Focusing only on economic issues is shortsighted, has been countered in recent publications, and fails to adequately recognize what government brings to the table. In fact, state government is the common denominator providing an equitable system that is enforced uniformly and provides legal rights to all parties.
Government is the ultimate equalizer. Elected legislators enact statutes related to regulation of the professions and occupations designed to ensure practitioners possess entry-level competency, adhere to relevant standards, renew licensure based on continuing education, and provide an enforcement mechanism for the benefit of not only the affected consumer but also the public as a whole. These statutes establish the licensure criteria necessary to receive the government-issued credential. Appointed or elected board members, consisting of both subject matter experts (licensees) and consumer/public members, promulgate rules/regulations to add specificity to the statutes. Specificity through rules/regulations refines the statutory language to allow licensees and consumers to better understand practice expectations. Protecting consumers as a whole is the very reason government regulation exists.
It is time to embrace regulatory reform and expand the horizons of opportunity.
The involvement of government through statutes and regulations provides the standardized benchmark that is uniformly enforced under constitutional and statutory protections for everyone, including applicants, licensees, complainants, and the public. Constitutional and statutory protections, sometimes referred to as due process, provide a fair mechanism to establish, renew, and—where necessary— sanction licensure. Statutorily enacted benchmarks provide the basis for issuance of the license, which acts as a government-issued credential allowing persons to lawfully practice the occupation or profession. Statutes, enforced uniformly by regulatory boards, equalize the playing field and allow persons meeting the requirements set in law to obtain and renew licensure.
There is also an enforcement system established in government licensure statutes. For the benefit of the public as a whole, persons and licensees who run afoul of the statutes and regulations are subject to enforcement through a disciplinary process. That disciplinary process is government enforced, thereby providing all involved persons with constitutional and statutory rights, both procedurally and substantively. Aggrieved persons have the right to file a complaint at no cost, and the respondent (licensee or unlicensed person) has the right to due process. Due process involves the right to be notified of and be heard before a fair and impartial decision maker. Due process is triggered by the property interest in the government-issued license, which cannot be subject to adverse action without fair and proper procedures and decision-making processes.
Administrative enforcement actions taken by governmental boards are akin to a criminal system. For the benefit of the public, government (state and/or federal) prosecutes persons accused of violating criminal statutes. Criminal convictions can result in penalties designed to protect society as a whole. Similarly, administrative “prosecutions” can result in sanctions, also designed to ensure public protection. That is, persons found to have violated the laws related to regulation of the occupations and professions can be subject to sanctions, including removal from the right to practice. Failure to issue and imposition of adverse actions are intended to assure the public that those able to lawfully practice do, indeed, possess the competence to be able to safely and effectively engage in practice.
Picture the removal of government from this regulatory picture. What is left is a “self-regulation” system that is beholden to the inconsistencies of the private sector, a private sector driven by revenue. Private-sector certification operates at the whims of the private entity issuing the certificate. That private-sector entity establishes and enforces the standards and must base its decisions on economic survival. Failure to generate sufficient revenue to support its operations results in the organization eventually going out of business. Furthermore, the standards are set by the private organization, which has the freedom to set and modify the criteria for recognition as it sees fit. Additionally, private-sector programs are not required to adhere to constitutional principles of due process. While it may be argued that private-sector organizations benefit the public (and to a degree they do), government involvement is the only means of providing mandatory standards set in law. Private-sector issuance of certification is voluntary. Government issuance of licensure to lawfully practice is mandatory and carries with it consequences for unlicensed practice, both administratively and criminally.
Political movements to eliminate government involvement in occupational and professional licensure must take into consideration the consequences to consumers. Elimination of government removes these lawful protections and creates a weighted enforcement system benefiting persons not disadvantaged by the imbalance of knowledge and resources. Removal of government places consumers in a “buyer beware” situation that often disadvantages an unknowing consumer. This is especially true in certain circumstances where the knowledge gap is significant or the consumer is not in a position to make informed decisions. It is a flawed premise that the average consumer is in a position to navigate the complexities of various occupations and professions because there is asymmetry, or an imbalance of knowledge, between the consumer and the provider.
Social work regulators must understand and be able to articulate the need for and benefits of government licensure. ASWB provides significant education in this arena and, through member involvement, is developing programs that contribute to uniformity and effective and efficient licensure processes. Take advantage of these educational opportunities and participate in and embrace coordinated licensure opportunities among and between states and provinces.