Webs of Affiliation: The Organizational Context of Health Professional Regulation

Foreword

Richard Morrison is a private consultant in regulatory policy and Vice-President of the Citizen Advocacy Center in Washington, D.C. For a decade he was Executive Director of the Virginia Board of Health Professions, a commission appointed by the Governor to oversee the regulation of one-quarter million licensees practicing in more than fifty health occupations that were licensed or certified by twelve regulatory boards within the Commonwealth's Department of Health Professions. More recently, he served as consultant to the Pew Health Professions Commission and member of the Commission's Task Force on Health Care Workforce Regulation. The material presented here constituted an issue brief presented to the Task Force for consideration in its review of professional regulation. He has also served as Coordinator for Health Management Education Partnerships in Central and Eastern Europe and the former Soviet Union for the American International Health Alliance and Fellow of the Association of University Programs in Health Administration.

Introduction

In and of itself, the regulation of more than 125 health occupations or professions in one or more of the fifty states is a study in organizational confusion, complexity, and inconsistency. But even a review of state regulation alone cannot provide a full appreciation of the web of formal and informal organizational linkages that provide the context for professional regulation and that make regulatory reform a daunting task.

Critics of state licensure have focused on the close ties between professional associations and state regulation, and on the fact that members of the regulated professions dominate the membership of state licensing boards (Gross, 1984). To some degree, this "fox guarding the hen-house" problem has been lessened by the addition of public members of licensing boards. The fact remains that, historically, professional regulation has occurred as the result of lobbying by professional associations and not from public appeals for greater protection (Shimberg 1980, 1984, 1991). The model provided by the American Medical Association and the American Bar Association in promoting state licensure for physicians and attorneys in the late 19th century continues to be emulated by newer professions in their quest for legitimacy and market share (Begun, 1993).

Tracing linkages between the agendas of professional associations and state regulatory policy is not always easy. State boards are careful to avoid the appearance of domination by professional interests, but a thick accretion and dense network of direct and subtle ties between state boards and the larger professional community continues to ensure that the voices of organized professions are heard more clearly than those of other stakeholders.

A full depiction of the webs of affiliation between state boards and other public and private organizations is beyond the scope of this review. Instead, the following linkages are briefly discussed insofar as they impede the agenda for regulatory reform in the public interest:

• state regulation and the federal government;
• national associations and state boards;
• regulation and the accreditation of professional education;
• professional regulation and the examination business; and
• professional regulation, reimbursement, and health care quality assurance.

State regulation and the federal government

The issue: Occupational regulation is a "states' right," but since the 1960s the federal government has taken an increasing interest in health care workforce regulation and its effects on health care cost, access and quality. The federal posture has been inconsistent, however, and some initiatives work at cross purposes with others. While generally critical of the effects of licensure on health care costs, some federal policies have increased reliance on occupational regulation as a solution to specific, high profile problems in some segments of the health care enterprise.

The most far-reaching action of the federal government related to state regulation of the health professions was the affirmation by the U.S. Supreme Court of the constitutional right of state licensing boards to require a specific educational credential in the late 19th century (Dent v West Virginia 1888). Coupled with the success of dominant professional association initiatives to license physicians and attorneys in every state, other professional associations pressed for licensure as a means of acquiring legitimacy and securing or expanding that profession’s share of an ever-increasing market for health care. Until the mid-twentieth century, state licensure had generally been limited to a small number of professions: medicine, dentistry, nursing, pharmacy, optometry, and veterinary medicine.

Following World War II, however, a surge of professional licensure occurred as newer allied health professions and a variety of mental health and counseling professions successfully promoted state regulation. Parallel with these developments, the cost of health care skyrocketed as millions of American workers secured health insurance as employment benefits. The connection between professional regulation and escalating health care costs did not escape federal attention.

The earliest federal studies of licensure were sponsored by the U.S. Department of Labor in the 1960s (Holen, 1965; Shimberg, Esser and Kruger, 1972). USDOL interest was tied to the impact of licensing on the availability of non-professional manpower in occupations where skill shortages existed, including dental hygiene and ophthalmic dispensing in the health field. The principal findings challenged the received wisdom that occupational regulation results in higher service quality and benefits consumers beyond the increased cost that licensure causes. The recommendations remain trenchant today:

• strong criteria are needed to evaluate the need to regulate new occupations;
• regulatory boards should provide assurance of the continuing competency of licensees;
• the administration of licensure programs should be improved;
• boards should assure greater equity in the discipline of licensed practitioners;
• fiscal controls should be strengthened;
• the representation of the public on licensing boards should be greatly increased;
• artificial barriers to interstate mobility should be removed;
• regulatory policy and anti-discrimination policies of federal and state governments should be better coordinated;
• regulatory boards should be removed from control of educational functions (Shimberg, Esser and Kruger, 1972: 222-229).

Since that time, a number of other federal agencies have examined the effects of licensure. The U.S. Department of Health, Education and Welfare conducted studies and convened consensus conferences over a five-year period commencing in 1971 (USDHEW 1971, 1973, 1976). These initiatives resulted in the following recommendations: (1) that states declare moratoria on licensing of additional health professions, (2) that requests for new regulation be evaluated through the use of explicit criteria, and (3) that a national (non-federal) council be formed to foster private certification programs for allied health professions to serve as a lower cost quality assurance alternative to state licensure.

In response to recommendations that states carefully evaluate the need for new occupational regulation, more than a dozen states now have formal sunrise review evaluations using criteria derived from those suggested by USDHEW. The preeminent criterion is that licensure be reserved for those professions whose practices place the public at a clear risk for harm. Yet professions (interior designers, massage therapists, recreational therapists) continue to be licensed not so much on that basis as on their persistence and the size of their state-level political action funding. The National Commission of Health Certifying Agencies (now a part of the National Organization for Competency Assurance [NOCA]) was formed in response to the last recommendation, but the existence of private certification has not stemmed the growth of licensure of government certification programs for allied health occupations. In fact, NOCA provides an arena for private certification principals to learn from one another the strategies and tactics of lobbying for state licensure.

A subsequent and influential review of empirical studies of professional regulation was funded by the U.S. Department of Health and Human Services and reported in 1984 (Gaumer, 1984). Ninety-seven studies and articles published between 1910 and 1984 were reviewed. The author’s conclusions and recommendations were consistent with those published earlier by USDHEW: occupational licensure is supported only in cases in which the public faces substantial risk for harm; less restrictive means for consumer protection and quality assurance that do not unnecessarily impede competition are preferred.

Other federal recommendations from this period have also had important--and controversial--effects. The 1976 USDHEW report on licensure recommended that in those cases where licensure standards are considered appropriate, federal health care reimbursement should be limited to services rendered by health professions that are either licensed by the states or certified by the proposed national certification council. Tying third-party payment to credentialing has had provocative effects. For example, the Council of State Governments views this linkage as resulting in a heavy burden on state legislators to enact new licensing statutes (and create additional state regulatory structures) for the many currently unlicensed behavioral science professions and allied health occupations" (CLEAR 1986).

One example of linking licensure to reimbursement lies in federal mandates for states to license nursing home administrators, and later to maintain registries of nurse aides as a condition for Medicare and Medicaid reimbursement. These mandates were intended as partial solutions to scandals within the nursing home industry. All states now license nursing home administrators, and all have some form of regulation of nurse aides, but there is little evidence that these regulatory programs offer significant public protection or quality assurance in the delivery of long-term care. Paradoxically, while nursing home administrators are licensed, hospital, home-health, and integrated health system managers and administrators, the managers of managed care, and utilization reviewers are not widely regulated, and it is doubtful that either nursing home administrators or nurse aides could have successfully navigated state sunrise reviews that use the criteria recommended by the federal government.

More recent federal initiatives include the establishment of the National Practitioner Data Bank in 1987, and the mandate for hospitals, HMOs and other health care organizations, professional societies, licensing boards, peer review organizations, and liability insurers to report all adverse actions taken against licensed practitioners to this national data base. The national effort was intended to apply to all regulated health professions to end the practice of "state hopping" by incompetent and unscrupulous practitioners. For funding and other reasons, the reporting mandate currently extends only to physicians, osteopaths and dentists. A number of evaluations have questioned the effectiveness of the system, but the most persistent criticisms are that reporting requirements are not enforced and that the information in the data base is not available to the public, a policy that reinforces notions of professional secrecy and governmental disdain for the informational needs of private citizens. This argument is especially cogent in the new managed health care environment in which consumer choices of providers are constrained, and the need for objective information for making informed choices is increased.

There are many other examples of federal concern for state regulatory policies. Morrison (1987) catalogues the following:

• regulatory effects in restricting manpower utilization and worker mobility (U.S. Department of Labor);
• the effects of regulation on more equitable distribution of health services and providers, and continued concern for regulatory contribution to the explosive growth and cost of health services (U.S. Department of Health and Human Services);
• discriminatory effects of regulation (U.S. Department of Justice);
• monopoly effects and antitrust implications (Federal Trade Commission and federal courts);
• reviews of policy literature in specific areas such as the regulation of allied health professions (the Institute of Medicine, National Center on Health Service Research).

Continued federal interest includes the dissemination and use of federally-funded clinical practice guidelines and outcomes research by state regulatory boards. This movement has been greatly influenced by the Agency for Health Care Policy Research within the Health Research and Services Administration, and the Health Care Finance Administration continues to consider exploring opportunities to foster innovation in workforce utilization through funding policies. Some critics argue that more aggressive policies to measure the costs and outcomes of services delivered by a workforce defined by traditional regulatory restrictions against those of services delivered from a managerially directed workforce are needed. Others argue for institutional licensure or for "deemed status" for health care delivery systems to permit greater flexibility in the use of the 11.5 million individuals who deliver health care.

Generally, however, federal agencies tread gingerly when addressing health professional licensure. A proposal for federal override of state licensing laws in President Clinton’s health care reform package drew fire from professional associations, individual state licensing boards, the Council on Licensure, Enforcement and Regulation (CLEAR), and the Federation of State Medical Boards, among others. Even though the proposal would have limited federal override to instances in which the practice of any class of health professional was restricted beyond what is justified by the skills and training of these professions, the reactions of these stakeholders was negative and strong.

The federal government is not only a major payer for health care services; grants and other financial assistance flow freely into professional education and the preparation of medical and other specialists. The manner by which these funding streams are categorized and administered is frequently cited as contributing to educational practices that reify professional turf boundaries, inhibit the ability to train health care providers to work in interdisciplinary teams, and foster overspecialization. New federal and other initiatives to correct for overspecialization are costly and risk pitting the burgeoning numbers of new primary care physicians against mid-level providers (nurse practitioners, physician assistants and others) whose scopes of practice were expanded as a result of earlier federal initiatives.

Other examples of federal influence include rigorous studies published by the Federal Trade Commission of commercial restrictions in the regulation of dentistry, optometry and other professions. The FTC has consistently challenged regulatory provisions that restrict competition without providing countervailing benefits in public protection and quality assurance (Cox and Foster, 1990). Decisions by federal courts have forced organized medicine to retreat from efforts to marginalize alternative care providers, including chiropractors. More recently, the American Bar Association in a consent degree has agreed to reexamine its control of legal education through the accreditation process.

There is some evidence that federal agencies are willing to reexamine the effects of government policies on the education and use of the health care workforce. Recent examples of public-private initiatives to address workforce issues include the convening of conferences on multi-skilling, developing core curricula, and the future of the allied care workforce. This overview, however brief, supports the following conclusion:

The policies and practices of the federal government can and do significantly influence state regulation of the health care workforce, but these policies are often inconsistent, and some may be counterproductive to state efforts to streamline professional regulation and eliminate regulatory barriers to the provision of cost-effective, accessible, quality health care. Moreover, many federal programs and policies affecting health professional education, regulation and practice were instituted before the nation had reached its current consensus to rely on competition rather than regulation to bring about desired changes in the delivery of health care.
The author encourages the task force to recommend that the federal government review all current policies and programs related to the health care workforce and develop policies and practices that are internally consistent and that foster innovation in the use of the health care workforce.

National associations, associations of boards, and state licensing boards

The issue: A number of national associations have emerged to assist and support state licensing boards. While some provide excellent products and services related to general issues of professional regulation or to the particular interests of specific health professions, none is directed to coordinating health professional regulation in the public interest of a more efficient, innovative, and cost-effective health care workforce.

The same forces that led professional associations to seek licensure in every state also fostered the development of national councils or associations of state boards to work toward consistency in education and examination requirements for entry to professional practice and better communication among states related to disciplined practitioners. The most visible of these associations include the Federation of State Medical Boards, the American Association of Dental Examiners, the National Association of Pharmacy Boards, the National Council of State Boards of Nursing, and the International Association of Optometric Examiners. National associations of boards have also been created for the regulation of audiology and speech-language pathologists, physical therapists, nursing home administrators, pschologists, professional counselors and marriage and family therapists, social workers and others.

In addition, national associations have been formed to foster communication on purely regulatory matters across professions and states. The most prominent of these is the Council on Licensure, Enforcement and Regulation (CLEAR), an affiliate of the Council of State Governments. CLEAR’s membership includes state officials and board members from both health and non-health professions, as well as representatives of the examination industry and other organizations that sell services to regulatory boards. CLEAR generally refrains from taking policy positions related to occupational regulation, including health professional regulation. Still another national association, the Federation of Associations of Regulatory Boards (FARB), provides a common ground for representatives of national associations of regulatory boards, including health professional licensing boards. In addition, both CLEAR and FARB have strong representation from private, voluntary certification agencies and boards including the National Organization for Competency Assurance.

The activities of these national associations vary. Some--including a number of national associations of state health professional boards--conduct task analyses for the affected profession, contract with examination vendors for procurement of tests used throughout the nation, operate clearinghouses of disciplinary actions taken by state boards, conduct annual national or regional meetings of regulators, conduct policy studies, market continuing educational materials, etc.

As with other trade associations, these national organizations focus on the most salient needs of constituent members. Because the national organizations are private associations of state governmental agencies, they may often speak to issues and proffer opinions that individual boards as instruments of government cannot. In addition, national associations of state boards are available conduits for federal and other funds that could not appropriately be channeled to an individual state agency.

For example, the Federation of State Medical Boards (FSMB) has used recent federal grant funds to establish a comprehensive self-study instrument, as well as processes for the use of state boards, and to convene a first international conference on the regulation of physicians. These projects may or may not be well aligned with the public interest. Although publicly funded, the results of the medical board self-studies are not available to the public, and the international conference of physician licensing included only representatives of English-speaking countries. These exclusionary policies prevailed despite appeals from consumer advocacy organizations for access to the medical board assessment and despite the enactment of the North American Free Trade Agreement (NAFTA), which will directly affect regulators in Canada, Mexico and the United States.

Other activities of these national associations constrain the freedom of choice of state boards, and these constraints are consistent with the wishes of most of the state licensing agencies. In pharmacy, the National Association of Boards of Pharmacy (NABP) operates a credentialing center that must be accessed when a pharmacist moves from one licensure jurisdiction to another. State boards that attempt to bypass this resource or to deviate from NABP policies risk rejection by NABP, an action that could freeze the pharmacist population in the "rebel' state. National organizations in pharmacy have also pressed for continuing education requirements in each state using materials approved by the American Council on Pharmaceutical Education, despite criticism that these requirements bear little relation ship to what pharmacists need to enhance their actual competence in practice.

There are obvious benefits to state boards that accrue from the programs of these associations, but their existence reifies the notion that regulation is an instrument for creating and preserving the prerogatives of specific professions. No organization has to date arisen to address the impact of the totality of health professional regulation that in practical effect--and for better or worse--defines the health care workforce, including how that workforce is educated and how it is used in the health care marketplace.

The conclusion of this brief discussion is clear:

Health professional regulatory policy is social policy in the full sense of that term. Decisions related to health professional regulation affect the development of resources, the division of labor, and the allocation of rights throughout the health care enterprise. The need for a comprehensive and rational health care workforce policy transcends issues related to the regulation of specific health occupations and professions.

The author suggests the task force recommend that work commence immediately to establish a national, non-federal forum directed to consider health professional regulatory policy within the framework of overall health policy. Such a forum should provide for the involvement of all major stakeholders in health policy: provider organizations, practitioner organizations, regulatory boards and associations of regulatory boards, public and private payers and insurers and consumer organizations.

Regulation and the accreditation of professional education

The issue: The most common requirement for entry into regulated health professional practice in any state is graduation from an educational program approved by the state licensing board. In virtually every instance, approval
simply means that licensing boards defer to private, professionally-dominated, voluntary organizations that accredit educational programs. Educators have frequently criticized boards for insistence on accreditation standards that fall far behind the progress of professional knowledge and health care technology. Others note that neither health care employers and payers nor the public are effectively involved in discussion of these standards (Begun, 1993). In the final analysis, through links between these private standards and state statutes or regulation, professionally-dominated interests access the police powers of the state in ways that may be inimical to the public interest.

Virtually all programs that accredit health professional education were created by the dominant national professional association in the discipline. Some programs remain integral parts of national professional associations; others have been spun off, but the majority continue to be controlled by professional interests. In at least one case--nursing--state boards directly approve or accredit educational programs conducted in their jurisdiction. Boards of nursing have been criticized for the apparent conflict-of-interest that arises from their authority to regulate education (usually a voluntary private agency function) and to license the graduates of these programs. This same criticism should apply to professions in which educational accreditation and professional licensing are formally separate but, for all practical purposes, state authority is delegated to private, professional interests.

Automatic deference to professionally-controlled accreditation processes may be coming to an end. In a well publicized case, the Massachusetts School of Law (MSL) at Andover alleges that the American Bar Association (ABA) has engaged in illegal antitrust activity in the design and operation of its program for the accreditation of law schools. The complainant school views the accreditation of postsecondary, professional education as a "social evil," claiming that:

The ABA and codefendents have been engaged for decades in an unlawful conspiracy and in concert ed action to restrain and monopolize trade through the imposition of unreasonably restrictive and anti-competitive standards for law school accreditation in violation of the Sherman Act.

The adoption and enforcement of the ABA Standards for Approval of Law Schools have the purpose and effect of artificially enhancing faculty salaries, limiting the services of law school professors, deans and librarians, imposing unnecessarily costly guidelines for law libraries, increasing law school tuition and freezing out of law school aspiring individuals from lower socioeconomic classes and those in mid-life.

While its specific litigation involving the ABA and MSL is unresolved, the American Bar Association has consented to an agreement in a federal court to reexamine its accreditation standards.

Complaints of this kind are not limited to legal education. Havinghurst (1995), an expert in antitrust law and health policy, says that one of the attractions of regulators’ reliance on private accreditation is its ability to foster pluralism, but control of an accrediting program by special interests may give these interest groups control of the only accessible sources of authoritative information and opinion about quality-related issues.

Havinghurst cites pharmacy as an example of an organized profession that has successfully dictated an increased educational standard. The proposal of the American Council on Pharmaceutical Education (ACPE) to extend the length of pharmacy education from five to six years illustrates how a private accreditor enjoys a virtual monopoly in the making of crucial policy, effectively preempting both legislative and consumer choice. One source of difficulty is the Department of Education’s recognition of the ACPE as the sole accreditor of pharmacy schools. Another is the nearly universal delegation to the ACPE of authority to determine which training programs can qualify their graduates for pharmacy licensure.

ACPE is a joint venture of the American Pharmaceutical Association, the American Association of Schools of Pharmacy, and the national Association of Boards of Pharmacy (NABP). Although the NABP’s members are state boards (public agencies), Havinghurst claims:

. . .it essentially represents and is represented on the ACPE board by practicing pharmacists. And, although one in ten votes on the ACPE board belongs to the American Council on Education--a body having virtually no stake in pharmacy education--its token involvement, like the presence of a few ‘public’ members on the boards of other accreditors, does not alter the ACPE’s character as a creature of narrow industry interests. . .

. . . under the lens of the Sherman Act, many well-entrenched joint ventures in accrediting on which the public is almost exclusively dependent for authoritative information on a wide variety of important commercial and public policy issues begin to look like what they are--conspiracies to ensure that the public hears only the collective opinion of certain industry insiders and is deprived of the benefits of competition in what is essentially a marketplace of ideas. . . In the field of educational accrediting, antitrust law could force a restructuring of many powerful joint ventures of which Congress and the Department of Education have been altogether too tolerant.

The status of educational accreditation in the health professions is variously seen as "in crisis" (Finnochio. 1995) or at a critical juncture marking the "end of an era" (Southern Regional Congress of Health Professions Educators, 1994). Both assessments focus on the collapse of the CAHEA (Committee on Allied Health Education and Accrediation), an American Medical Association-supported accreditation program for allied health education. Since 1977, CAHEA had put into place procedures for accreditation of educational programs for 28 allied health disciplines. In 1993 more than 50,000 new allied health workers came online after graduation from CAHEA-accredited programs.

The reasons for AMA's abandonment of CAHEA are complex, and the results may or may not lead to better coordination of the accreditation of health professional educational programs. A number of associations have joined together to forge a new organization for the accreditation of allied health education, but others have opted for direct control of the accreditation process by the national professional association. Coupled with the demise of the federal Council on Professional Accreditation (COPA) in 1993, systematic oversight of private sector accreditation program has been relinquished and returned to the control of professional associations. State boards will need to be increasingly on guard to challenge educational inflation enforced through accreditation standards, and other stakeholders will need to remain alert for instances in which the state's police powers have been bent to serve professional rather than public interests.

Gelmon (1994) shows how accreditation must be reformed to meet the needs of the public to align with changes in the industry envisioned by the Pew Commission:

from specialized to primary care;

from technological to humanistic care;

from cost unaware to cost accountable care;

from institutional to community-based care;

from an individual patient to a population focus;

from professionally dominated systems to managerially controlled systems;

from individual providers to provider teams;

• from reliance on public policy to reliance on market forces; and
• from incremental change to reform.

These recommended accreditation system reforms are overdue in the eyes of most educators, but discussions of accrediation reform continue to be focused on single professions or on collections of occupations grouped as "allied health professions." Just as there is a need to examine all health professional licensure within a comprehensive health care workforce policy framework, the total health professional educational accreditation system--as well as its direct and indirect ties to licensure--needs to be reviewed. This is particularly imperative in light of the internalization of health care. Several reviews of these international issues are underway in individual professions; they should ideally be considered within the broader context of the education, regulation and use of all members of the health care workforce.

In light of these considerations, the author encourages the task force to recommend that a national commission of all relevant stakeholders be formed to:

• study current accreditation processes and standards for educational programs that prepare members for licensure and subsequent practice as members of the health care workforce, and to recommend changes needed to conform these practices and standards to the emerging health care finance and delivery systems in the United States; and
• work cooperatively with international agencies such as the Center for Quality Assurance in International Education to identify and remove unnecessary barriers to the international mobility of competent health care practitioners that are created by voluntary educational accreditation standards, that, through their linkage to licensure requirements, have the effective force of law.

Professional regulation and the examination business

The issue: A second, virtually universal requirement for entry into regulated practice is the successful completion of an examination approved or accepted by the state regulatory board. In the great majority of instances, these examinations are developed by private sector vendors for national use. Often the examination contract is negotiated with the national association of regulatory boards, and fees go directly from the candidate to the national association of the test vendor. In some instances, additional examinations (regional or state-level) may be required, but these appear to be declining as boards become more aware of their vulnerability to challenge on the basis of the use of examinations that have not been validated by reference to current and expensive job analyses. More often than not, the resources for these job analyses come from professional associations.

When studies of licensure first proliferated in the 1960s and 1970s, federal and other reviews recommended that states conform their examination practices to the standards of the testing industry. A substantial examination enterprise has developed to serve the needs of state boards for "psychometrically sound, legally-defensible" examinations. By and large, the examinations required for entry into health professional practice do meet these standards, but regulators, academics and others argue that the control of examination content--as in the case of educational accreditation--is unduly influenced by professional associations whose economic interests are served by ever-increasing educational (and examination) requirements. Unfortunately, debates over the public policy implications of the control and content of legally-required examinations often degenerate into discussion of technical standards and recondite issues that are of interest primarily to psychometricians. Yet the mere existence of examinations that meet industry standards may lead to expanded professional dominion and control, whether or not that expansion was intended as public policy.

The newest health occupation to be regulated by all states is the nurse aide. States may choose among several options to meet the federal mandate for the registration of nurse aides who are employed in long-term care--primarily nursing homes. About one-half of the states have placed the regulation of these assistive personnel under the state board of nursing, and these programs are now coordinated within the national Council of State Boards of Nursing. Because of the numbers involved, resources are available for the Council to conduct job analyses and to contract for a single examination for use by state boards. The Chairman of the National Council’s Nurse Aide Competency Evaluation Program (NACEP) describes the process by which the tasks of a new occupation are defined, and testing is developed to measure the knowledge, skills and abilities of nurse aides to perform these tasks:

In the quest for psychometric soundness and legal defensibility, the national Council and its test service for the NACEP, The Psychological Corporation, have insisted that material in the written and manual skills evaluation be current and representative of the roles and responsibilities of nurse aides. To achieve this result, a national nurse aide job analysis study is conducted every five years. Data supplied by nurse aides and supervisors of nurse aides, working in nursing homes, home health and hospitals from all regions of the country, indicate what activities are performed by nurse aides, how frequently they are performed, and how important the activities are to patient safety. The National Council’s NACEP Task Force evaluates the current evaluation blueprint based on the results of the job analysis study and modifies the blueprint for the written and manual skills evaluation as needed. (Lyons, 1995)

Although the nurse aide job analysis and examination practices may be consistent with current industry standards for testing, other questions are also important from a public policy perspective. The federal requirement for nurse aide "registration" by the states mandated only that a registry be maintained of nurse aides employed in long-term care facilities, and did not specify which agencies would conduct the registry program. Boards of nursing exploited the opportunity to bring aides under the direct control of nursing boards, to raise the effective level of regulation from registration to certification, and to underwrite this process with federal funds made available to offset the start-up costs of the registry program. Economies of scale made it possible for the national association of nursing boards to conduct a job analysis and design a validated examination to provide the "psychometric soundness and legal defensibility" state boards need. This, in turn, was appealing in other states, and state boards of nursing began to sign on to use the National Council’s examinations and to participate in a clearinghouse directed to the concerns of nurse regulators in administering the certified nurse aide (CNA) program. As a result the National Council of State Boards of nursing now oversees the regulation of nurse aides in twenty-two states that together examine 65,000 candidates for certification annually.

With federal funding, a curriculum has also been developed by the nursing profession to qualify individuals to serve as assistive personnel as "Medicaid-certified Personal Care Aides," or as "Certified Homemaker-Home Health Aides" in addition to qualifying as CNAs. In effect, these events confer on nursing boards the authority to regulate assistive personnel in institutions and in community and home-based care. There is no question that boards of nursing will be vigilant in the administration of these programs, but it is not clear that it was a matter of intended policy that professional nurses strengthen their control over assistive personnel--an objective highly consistent with the views of organized nursing. The takeover" has been significantly influenced by the fact that nursing had the resources to capture a job analysis and an examination process.

From a policy perspective, examination practices should conform to the cardinal regulatory principle: the least restrictive provisions consistent with public protection are the provisions of choice. Fortune (1985) anchors an important proposal in this logic: examinations should test for competency only in those areas of practice that are potentially harmful to the public. This argument is paradoxically supported by policies within states that require licensure for private practice but exempt state agencies (and often private, nonprofit) agencies from conforming to licensure requirements for their employees. The rationale for these exemptions include state studies that conclude that government agencies can better identify and test for the knowledge, skills and abilities required of employed professionals than can its own state licensing boards (Morrison, 1987). Additional support is found in studies of the effectiveness of mental health and counseling interventions: successful outcomes are more dependent on the personality characteristics of practitioners than on the therapist’s educational preparation, professional discipline or theory base (Hogan, 1979).

According to Shimberg (1997), Madaus and others have called for national critical assessments and--ultimately--accreditation of all "high stakes" examinations. During early planning stages for this initiative, professional licensing and certification examinations were included along with admissions and achievement examinations required for access to the American opportunity structure. Unfortunately, from the persepective of this review, licensure and certification exams were not included in the final research project.

Shimberg continues to believe that some type of external audit process is needed to ensure that licensing and certification tests conform to professional and legal examination standards. In the opinion of the present author, this audit should include careful scrutiny of the potential discriminatory effects of these examinations. In requiring successful completion of licensing or certification examinations, state governments, through their licensing boards, effectively endow private groups with the authority to admit or deny entry into service monopolies that are protected by the powers of the state.

The author encourages the task force to recommend that examinations for entry to health professional educational programs and for licensure be reviewed as part of the proposed national review of standards for educational accreditation and for entry into regulated practice. The review should address questions such as:

• who determines the knowledge, skills and abilities required in the workplace, and;
• to what degree it is either legitimate or in the interest of the state to determine a candidate’s competence in any areas other than those components of practice that place the public at risk for harm.

Professional regulation, reimbursement, regulation of the workplace, and other concerns

While the focus of this brief is on professional licensure, this review has documented direct and indirect linkages between government standards for licensure, the agendas of professional associations and private associations of government regulatory boards, "voluntary" standards for educational accreditation, and industry standards for the measurement of competence by examination. These linkages are so strong that reform of any element of the linked programs must be accompanied by reform of all the others.

There are other important linkages that must also be assessed critically for their effects on cost and access as well as on quality. Several of these connections will be briefly discussed.

Professional licensure and the regulation of health care facilities and programs

A growing number of national organizations attempt to assure health care quality through the operation of "voluntary" programs for the accreditation of facilities and programs. Often the linkage of these programs with professional licensure is direct: to become accredited, facilities and programs are required to use licensed practitioners functioning within their legal scope of practice. The largest of these is the Joint Commission on the Accreditation of Healthcare Organizations (JCAHO), a national program that has reorganized its domain and processes to include the accreditation of all health care organizations (in addition to its historic focus on hospitals). Others include CARF, the Commission on Accreditation of Rehabilitation Organizations, and the relatively new National Commission on Quality Assurance (NCQA) that accredits some managed care plans and integrated health systems. There is growing competition among these workplace and program accreditors as each seeks greater legitimacy and "market share". These agencies are struggling to match their standards to the emerging health care system. More often than not their guidance to the institutions and programs they accredit involves deference to personnel licensure standards as "threshold" requirements for credentialing practitioners to participate in accredited facilities or programs. In a much more private realm, inaccessible to the public, attention is reserved for assessing practice patterns for cost-effectiveness and adherence to the philosophy of the accreditor and the industry it accredits.

A great deal of attention has focused on the development of quality indicators that may be used by payers, buyers or consumers of institutional services. There has been relatively little discussion of the development and use of quality indicators that could allow consumers to discriminate intelligently in the selection of a physician or other health care practitioners from the limited range of choices available under managed care plans. Licensure status is neither a valid nor reliable surrogate measure for competency, currency, or compassion.

Professional regulation and third-party reimbursement

The link between state licensure and third-party reimbursement is often direct: to be reimbursed for services, practitioners must be licensed, and the services they provide must be included in a regulated scope of practice. Although state officials and licensing boards deny that economic interests are fundamental to regulatory decision making, the record shows otherwise: few practitioners are directly reimbursed unless they possess a license to practice within a scope of practice that has been defined by the profession itself and has been subsequently written into state statutes and regulations as a direct result of targeted professional initiatives to secure a governmentally-protected market share.

Professional regulators and professional liability (malpractice)

Communication between licensing boards and the tort system were infrequent until federal mandates required malpractice judgment or settlements to be reported to state licensing boards as part of the establishment of the National Practitioner Data Bank.

A number of questions about the effects of these requirements are unresolved:

• Do thresholds for reporting judgments or settlements result in disproportionate numbers of decisions just below the reporting threshold?
• Do similar policies related to disciplinary actions by state boards also result in sanctions that fall below the threshold for reporting these actions to the national data base?
• Are any of the requirements effectively enforced?

Over the past several decades, some critics of professional licensure have argued for "institutional licensure" to replace the current pastiche of requirements in the separate states. Proponents of institutional licensure believe that risk management within integrated health systems could offer as much or more consumer protection and quality assurance than could professional licensure. These same proponents, however, have not endorsed proposals for "enterprise liability" to replace individual malpractice liability as a recourse for aggrieved consumers, and national initiatives to explore enterprise liability have been strongly resisted by both the health care industry and trial attorneys.

Conclusion

Concerns for consumer protection and quality assurance become more critical as the nation moves toward integrated health systems, managed care, capitation, and other changes in the organization and financing of care. Managed care providers are intent on breaking down regulatory barriers to cost-effective care; professions and regulators are adamant that ruthless cost-cutting will diminish the quality of care unless professional licensing standards are upheld and increased; consumers are anxious to obtain more information on the professionals in an era of diminished capacity to choose freely who will provide health care. There is no evidence of a national dialogue that includes the perspectives of professional and facility regulators, third-party payers, managed care organizations, and consumers. Important changes are occurring in the health care enterprise that make reexamination of consumer protection and quality assurance mechanisms a priority concern. The following are some thoughts regarding consumer protection and quality assurance in an era of managed care:

• Consumer choice is now limited for the majority of Americans who are enrolled in managed health care programs. One is free to choose only among a select group of practitioners and health care facilities. Consumers need reliable information about practitioners more than ever before, but licensing boards have traditionally been cautious in the extreme in providing information to consumers.
• The widely discussed reform of medical malpractice--including replacement of individual malpractice liability with enterprise liability--did not occur. Had enterprise liability become a reality, it is possible that institutional systems for quality assurance could have replaced reliance on the licensure of professions.
• Ideally, any significant reform of the professional licensing system should be accompanied by and consistent with reforms of professional educational accreditation, facility and program accreditation, the reimbursement system, programs for consumer empowerment and education, and the movement from personal liability to enterprise liability.
• This ideal is not likely to occur in the current economic and political environment, but it is important that the first step be taken--the illumination of the shadowy webs of affiliation that preserve professional dominion over much of the health care enterprise. Once made explicit, it will be difficult for these systems to defend the hegemony of professional control over the education, regulation and use of the health care workforce. It is not likely that the current system can be successfully defended in a court of informed public opinion.

Although any health profession could be selected to illustrate professional dominance over interrelated systems, Jones (1993) provides a rare physician critique of the proliferation and purposes of organizations formed to serve the interests of the dominant health profession--medicine--as practiced by physicians and surgeons. He documents that state laws prior to the Civil War allowed physicians and others who studied in universities to charge higher fees long before licensure was a requirement for practice. Then, following the Civil War, states began to impose licensure requirements on physicians, creating state boards comprised of physicians as an intermediary agency between professional education and being paid for professional services.

After 1900 the American Medical Association assumed greater power and control through the formation of the national Board of Medical Examiners. That board developed educational standards to be used "voluntarily"
by state licensing boards. These are now used universally by the AMA-dominated Liaison Committee on Medical Education, the accrediting body for U.S. medical education programs.

After licensure was universally required for medical practice by all states, the AMA’s focus turned to standards for specialty practice. An advisory board for medical specialities was organized in 1933, and since 1934, specialty board recognition has been controlled by the American Board of Medical Specialities (ABMS). In 1972, ABMS joined the American Hospital Association, the AMA, the American Association of Medical Colleges and the Council of Medical Specialty Societies in a conference committee on medical education and a liaison committee on graduate medical education (LCGME). A decade later, LCGME became the Accreditation Council for Graduate Medical Education. Within ACGME, various residence review committees (RRCs) establish criteria by which physician residency programs must operate, and determine the number of residents allowed in each residency program.

In surgery and most other specialties, residency programs must be within facilities approved by the Joint Commission on the Accredidatation of Healthcare Organizations, JCAHO, an organization dominated by professional interests. In addition to its control over medical education and licensure, until 1993 the AMA also controlled the accreditation of allied health professional education through CAHEA.

Jones estimates that there are more than 12,000 medical organizations, agencies, and groups in the United States that ensure that the interests of physicians will dominate all other workforce decisions. His descriptions of the interlocking organizations that contribute to this dominance can be summarized in the following chain of linked requirements:

• To practice medicine in any setting, a physician must be licensed by a state board dominated by physician members.
• To become licensed, the typical physician must be graduated from a medical school accredited by an organization dominated by physicians.
• Following graduation from an accredited school, the physician must also successfully pass licensure examinations developed by organizations dominated by physicians.
• To practice a recognized medical specialty, a physician must successfully complete a graduate educational program accredited by an organization dominated by physicians and operated within a facility (typically, in the past, a hospital) accredited by an organization dominated by physicians.
• To hold staff privileges at a hospital, the physician must be licensed and usually board-certified in a specialty accredited by an organization dominated by physicians.
• To be reimbursed for services provided in an institution, office or community facility, the physician must be licensed, and, often, board certified and provide the services in a facility or program accredited by organizations dominated by physicians.

The obvious, but startling, conclusion of this chain of interlocked requirements is that every standard-setting organization and program except state regulation resides in the private "voluntary" sector. It is only from the sometimes subtle and sometimes obvious coupling of these private standards with the police powers of the state that the private agendas of professions become public policy. Any attempt to identify and remove unnecessary regulatory barriers to cost-effective, accessible, quality health care will need to confront these "taken-for-granted" links between government regulation and the economic agendas and ambitions of the professions.

Recommendations

1. A national, non-federal, non-governmental commission be formed to consider health professional regulatory policy within the framework of overall health policy. Such a commission should include all major stakeholders concerned with consumer protection and quality assurance: state legislators, provider organizations, practitioner organizations, federal and state regulatory and health policy officials, and private payers and insurers, and especially consumer advocates.
2. The commission should be requested to consider the following issues and to explore and report on other matters relevant to the role of public and private organizations in protecting the public and assuring quality health care:
   1. study the effects of federal programs and policies--including reimbursement policies--on the regulation of health care professions by the states and recommend change to ensure that federal initiatives are consistent with the goal of reducing regulatory and other barriers to cost-effective, accessible, quality health care;
   2. study current accreditation processes and standards for educational programs that prepare members for licensure and subsequent practice as members of the health care workforce, and recommend changes needed to conform these practices and standards to the emerging health care finance and delivery systems in the United States;
   3. work cooperatively with international agencies such as the Center for Quality Assurance in International Education to identify and remove unnecessary barriers to international mobility of competent health care practitioners that are created by voluntary educational accreditation standards that, through their linkage to licensure requirements, have the effective force of law, and;
   4. review licensure examination practices, including attention to who determines the knowledge, skills and abilities required for competent practice in the workplace, and to what degree it is legitimate or in the interest of the state government to determine a candidate’s competence in any areas other than those components of practice that place the public at risk for harm.

References

Begun, J.W. and R.C. Lippincott. Strategic Adaptation in the Health Professions: Meeting the Challenge of Change. San Francisco: Jossey-Bass, 1993.

Clearinghouse on Licensure, Enforcement and Regulation. State Credentialing of the Behavioral Science Professions: Counselors, Psychologists and Social Workers. Lexington, Kentucky: The Council of State Governments, 1986.

Cox, Carolyn and Susan Foster. The Costs and Benefits of Occupational Regulation. Washington, D.C.: Bureau of Economics, U.S. Federal Trade Commission, 1990.

Finocchio, Leonard. "Health Professional Regulation in the 21st Century: A Report of the Task Force on Health Professional Regulation of the Pew Health Professions Commission". Paper presented at the annual meeting of the Council on Licensure, Enforcement and Regulation, San Antonio, September 1995.

Gaumer, Gary. "Regulating Health Professionals. A Review of the Empirical Literature." Millbank Memorial Quarterly/Health and Society 62 (1984): 380-416.

Gelmon, Sherril B. "Accreditation and Core Curriculum: Barriers and Opportunities in Allied Health Education."
Core Curricula in Allied Health. Pew Health Professions Commission, 1994.

Gross, S.J. Of Foxes and Henhouses: Licensing and the Health Professions. Westport, Connecticut: Quorum, 1984.

Hogan, Daniel. The Regulation of Psychotherapists. 4 vols. Ballinger, Cambridge University, 1979.

Holen, A.S. "The Effects of Professional Licensing Arrangements on Interstate Mobility and Resource Allocation." Journal of Political Economy 73 (1965): 492-98.

Jones, R. Scott. "Organized Medicine in the United States." Annals of Surgery 217 (1993): 5, 423-9.

Lyons, Cindy M. "Chair's Forum." Insight Newsletter 4.1 (1995): 2.

Morrison, Richard D. "The Causes and Consequences of Health Occupational Regulation: History, Theory and Evidence With Special Reference to the Regulation of Social Workers in Virginia." Ph.D. diss., Virginia Commonwealth University, 1987.

Shimberg, Benjamin. Occupational Licensing: A Public Perspective. Princeton: Educational Testing Service, 1980.

--- "The Relationship Among Accreditation, Certification and Licensure." Federation Bulletin. Federation of State Medical Boards, April (1984): 99-116.

--- "Regulation in the Public Interest: Myth or Reality?"
Resource Briefs. Lexington, Kentucky: Council on Licensure, Enforcement and Regulation, 1991.

--- "Social Considerations in the Validation of Licensing and Certification Examinations." Educational Measurement: Issues and Practice. Winter (1990): 11-14.

Shimberg, Benjamin, B. Esser, and D. Kruger. Occupational Licensing, Practices and Policies. Washington, D.C.: Public Affairs Press, 1972.

Southern Regional Congress of Health Professional Education: Emerging and Changing Roles of the Health Professions. Sponsored by the University of North Carolina, Southern Regional Education Board, Association of Academic Health Center and the Pew Center for the Health Professions. The Friday Center, Chapel Hill, NC. October 17-18, 1994.

U.S. Department of Health, Education and Welfare. 1973. Developments in Health Manpower Licensure: A Follow-up to the 1971 Report in Licensure and Related Health Personnel Credentialing. HRA 74-3101. Washington, D.C.: GPO.

U.S. Department of Health, Education and Welfare. A Proposal for Credentialing Health Manpower. Washington, D.C.: GPO, 1976.

COPYRIGHT 2000. Rights to copy and distribute this publication are hereby granted to members of the Council on Licensure, Enforcement and Regulation (CLEAR), providing credit is given to CLEAR and copies are not distributed for profit.