by Harvey Abrams, PhD
As if the Costco effect and OTC legislation weren’t causing the audiology community enough tsuris, along comes another threat that’s sure to keep us up at night – deregulating the practice of audiology. In the past 18 months, representatives in 2 states, Iowa and Texas, introduced legislation that would eliminate the requirement to obtain a license to practice audiology (along with other licensed professions). These efforts were beaten back through organized efforts by members of national and state professional organizations but may, nonetheless, signal a trend particularly given growing anti-regulatory sentiment at both the federal and state levels. The licensing of hearing professionals is even coming under attack by one its own.
A Florida hearing aid dispenser has filed a federal lawsuit arguing that Florida’s hearing dispensing licensing law increases consumer costs and limits their access to hearing aids. The suit also claims that the state’s hearing aid dispensing law is preempted by federal regulations designed to reduce unnecessary regulations. There has yet to be a ruling on this case.
So, what’s behind this effort to deregulate professionals? An excellent explanation of this trend can be found in a Pew Trust article that reviews the history of licensure and the political and professional forces that drive it, along with recent attempts by state governments to reduce or eliminate professional licensing.
The author, Jenni Bergal, reports on a growing tension between supporters of professional licensure who maintain that licensing laws are necessary to protect consumers and provide important regulatory oversight and a growing number of detractors who complain that such laws “are burdensome and create barriers to competition and job growth.”
The sights of many anti-regulatory state legislators may well have been brought into sharp focus following a rash of federal lawsuits brought by hair braiders against 12 separate states who argued that requiring a license to braid hair violated their constitutional right to earn a living. For many politicians, the need to license hair braiders just went too far. Despite the wide media coverage and considerable public support, they lost their lawsuit in both the lower court and in the 8th U.S. Circuit Court of Appeals. However, in a very recent decision, the U.S. Supreme Court vacated the Appeal Court’s ruling.
Hair braiders are now free to offer their services unencumbered by licensing requirements. In contrast to the outcome of the hair braiders’ case (and a little closer to home), anti-regulation proponents suffered a defeat when the U.S. Supreme Court ruled against a teeth-whitening firm and supported the state of Connecticut’s right to establish specific requirements associated with teeth-whitening.
The plaintiff, Sensation Smiles, argued that it was unconstitutional to require eight years of higher education “before they can point a flashlight at someone’s teeth.” The Supreme Court did not agree. So, if you’re a hair braider who also provides teeth-whitening services, you’re one for two.
For the most part, direct healthcare providers have been successful at resisting deregulation but what critics of regulation are concerned with is what is referred to as “licensing creep”.
According to Berliner and colleagues1, the percentage of the domestic workforce in positions subject to a licensing requirement has multiplied 500 percent since 1950 and now stands at approximately 25 percent of the economy. Among the many professions that require a license include:
- Ballroom dance instructors
- Cat groomers
- Elevator operators
- Fortune tellers
- Home entertainment installers
- Interior designers
- Makeup artists
- Motion picture projectionists
- Sheep dealers
- Tour or travel guides
- Whitewater rafting guides
As described by Berliner, the rationale for occupational licensing is based on, what most of us would agree, a justifiable rationale to protect the public from unskilled providers or unsafe practices – an economic concept known as the Public Interest Theory of Regulation.
However, the application of the Public Interest Theory to the growing number of occupations that require a license has caused concern among economists in recent years because it is not always clear whose interests are being best served – those of the consumer or those of favored constituents of legislators who pass the laws and regulators who are responsible for executing the laws. And once these licensing regulations become law, they become very difficult to repeal – sometimes requiring a decision by the U.S. Supreme Court.
Occupational Licensing: Is it in the Best Interest of the Consumer?
Berliner also argues that if occupational licensing was truly in the best interest of the consumer, we would expect to see consistency across the states in terms of what occupations are regulated and what credentials are required for licensure. By contrast, an examination of the licensing regimes across the 50 states shows notable inconsistency in occupational licensing, both in terms of which jobs are regulated and the credentials required for people doing the same job in different states. As noted by Berliner:
- One can become a licensed cosmetologist in New York or Massachusetts with just 233 days of training and experience; whereas Iowa, Nebraska, and South Dakota require more than double that — 490 days.
- About two-thirds of the 39 states that license massage therapists require only four months of training while others require twice that amount and Maryland nearly triple, with 11 months.
The occupation of hearing aid dispenser provides another good example. Among the myriad of differences across the states are those concerning age and education requirements:
- In Alabama you need to be at least 19 years old and have a high school diploma or GED;
- In Alaska, you need to be a minimum of 18 years of age and have a high school diploma or equivalent
- In Arizona, there is no age minimum listed but you do need to be of good moral character and have a minimum of a high school diploma or GED;
- In Arkansas, you need to be a minimum of 20 years of age and have the education equivalent of two or more years of accredited college-level course work from a regionally accredited college or university
There are also considerable differences across the states in terms of whether an examination is required and if so, what type. Alabama requires that the applicant pass a written, practical and state law exam; Alaska doesn’t appear to have an examination requirement; Arizona and Arkansas require a written and practical test – and we’ve only gotten through the “A’s”. To Berliner’s point, then, to what extent does the licensing of hearing aid dispensers meet the tenants of the Public Interest Theory if there is such a wide variation in the requirements to obtain a license? Are the hearing needs of the residents of one state so different than another that unique licensing requirements are justified? The licensing requirements of audiologists, on the other hand, tend to be more consistent across the country because many states consider ASHA’s Certificate of Clinical Competence in Audiology as a proxy for the minimum education and training requirements needed to be licensed.
Opponents of occupational licensure argue that it’s not just the resulting bureaucratic burden that’s a problem; licensing creep can result in significant economic costs to society as a consequence of “regulatory capture” whereby those bodies responsible for regulating industries become sympathetic to the businesses they are supposed to be regulating. I’ll review this concept and its implications for the hearing profession in my next post.
- Berliner, et. al., “Occupational Licensing Run Wild”, released by the Regulatory Transparency Project of the Federalist Society, November 7, 2017
Harvey Abrams, PhD, is a consulting research audiologist in the hearing aid industry. Dr. Abrams has served in various clinical, research, and administrative capacities in the industry, the Department of Veterans Affairs and the Department of Defense. Dr. Abrams received his master’s and doctoral degrees from the University of Florida. His research has focused on treatment efficacy and improved quality of life associated with audiologic intervention. He has authored and co-authored several recent papers and book chapters and frequently lectures on post-fitting audiologic rehabilitation, outcome measures, health-related quality of life, and evidence-based audiologic practice. Dr. Abrams can be reached at [email protected].