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OCR for page 235
7
Licensure and Other
Mechanisms for Regulating
Allied Health Personnel
THE CONGRESSIONAL CHARGE to this committee directed it to investi-
gate current practices under which each type of allied health personnel
obtains licenses, credentials, and accreditation" (Appendix A, Section
223EbjE3j). The committee has taken a rather broad view of this charge,
interpreting it to encompass the whole array of mechanisms meant to
ensure that allied health personnel are properly trained and competent to
practice. These mechanisms, which include licensure and other forms of
governmental regulation, voluntary certification, and standards imposed
by health care providers and payers, are central to this study in that they
interact with and influence virtually all of the other study issues.
For example, the scope of practice for a field that is defined under state
licensing statutes and regulations affects the demand for allied health per-
sonnel by constraining how they may be used by employers. Certification,
if it is accepted as a valid distinction by employers or if it is required by
accrediting bodies such as the Joint Commission on Accreditation of Health-
care Organizations, also affects employers' decisions to employ allied health
personnel; certified and noncertified members of the same allied health
field are then treated as separate labor pools. Regulatory mechanisms also
influence supply by defining who may enter and remain in certain allied
health fields.
A great deal is at stake here. Health care payers rely on licensure and
other credentialing mechanisms to assist them in defining eligibility for
coverage and reimbursement for allied health services. The various allied
health occupations look to these mechanisms to give them identity and
legitimacy by defining the nature and length of training, requirements for
235
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236
ALLIED HEALTH SERVICES
entry into the field, and the power to control certain health care practices.
In a time of great ferment in health care, these control mechanisms take
on even greater significance. The proliferation of health care occupations,
changing models of health care delivery, and new reimbursement methods,
alone with cost-~ontro1 efforts he incl~strv and government, place stresses
in. in, . ~ ,, ~ ~ ~ ~ ~ ~ ~ ~
on these controls.
To carry out this part of the congressional charge, the committee held
discussions with officials of government agencies and private organizations
responsible for the various control mechanisms. It also held a public hearing
at which 26 allied health associations and 4 experts presented testimony;
two of the experts prepared papers for the committee on state regulation
of health occupations. In addition, the committee reviewed the research
literature on occupational regulation.
METHODS OF CONTROL
State Regulation
Society applies many quality control methods to health care personnel,
including allied health personnel. The states bear the greater responsibility
in this control system. Through occupational licensure and other forms of
regulation, states exercise their authority to protect the health, safety, and
welfare of their citizens. The earliest attempts to regulate health occupations
in this country were in colonial Virginia (1639), Massachusetts (1649), and
New York (1665), when medical practice acts were enacted. By the begin-
ning of the twentieth century, the Supreme Court had validated this use
of the states' police powers, and most states had licensed lawyers, dentists,
pharmacists, physicians, and teachers. Between 1900 and 1919, most states
also licensed nurses, optometrists, osteopaths, podiatrists, and veterinarians
(Carpenter, 1987~. Before 1960, this list had expanded to include dental
hygienists, practical nurses, and physical therapists. Since 1960, only three
health occupations have come to be universally licensed: psychology, nurs-
ing home administration, and emergency medical technology. The latter
two were licensed as the result of federal legislation.
Table 7-1 shows the licensure status of the 10 allied health fields on
which this study concentrates as of June 1987. Among these fields, physical
therapists and dental hygienists are licensed in every state. Emergency
medical technicians must be certified by some agency in every state. At the
other extreme is medical record administration, for which no state requires
licensure; this field relies instead on certification (registration) by the Amer-
ican Medical Records Association. All the other fields are licensed in some
states: for example, respiratory therapists are licensed in 7 states, audiol-
ogists and speech-language pathologists in 37.
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REGULATING ALLIED HEALTH PERSONNEL
TABLE 7-1 Licensure Status of Selected Allied Health Fields
Field
Licensure Status
237
Clinical laboratory Medical technologists are licensed in 5 states and New York
technology City. Technicians are not licensed in any state.
Dental hygiene Dental hygienists are licensed in all 50 states and the District of
Columbia. Dental assistants are not licensed in any state.
Dietetics Dieticians are licensed in 14 states, the District of Columbia,
and Puerto Rico.
Emergency medical
services Certified in all 50 states.
Medical record Neither medical record administrators nor medical record
services technicians are licensed in any state.
Occupational therapy Occupational therapists are licensed in 34 states, the District of
Columbia, and Puerto Rico. Occupational therapy assistants
are not regulated in any state.
Physical therapy Physical therapists are licensed in all 50 states. Physical therapy
assistants are licensed in 18 states.
Radiology Radiographers are licensed in 17 states and Puerto Rico.
Radiation therapy technologists are licensed in 15 states and
P~erto Rico. Nuclear medicine technologists are licensed in
10 states and Puerto Rico.
Respiratory therapy Respiratory therapists are licensed in 7 states.
Speech-language Speech-language pathologists and audiologists are licensed in
pathology/audiology 36 states and Puerto Rico.
SOURCE: Information from professional associations, updated to tune 1987.
Licensure is the most restrictive form of state regulation. Carpenter
(1987) defines licensure as "a process by which a governmental agency
restricts entry into an occupation by defining a set of functions and activities
constituting a 'scope of practice,' grants permission to engage in that prac-
tice only to persons meeting predetermined qualifications, and establishes
structures and procedures for screening applicants and granting licenses
to practice." These and other definitions share certain common elements,
including:
· licensure is intended to protect the public;
· licensure is exclusionary;
· licensure prescribes the characteristics and qualifications of persons
who may be licensed;
· licensure defines a scope of practice for licensees (and therefore li-
censure laws are often referred to as "practice acts"~; and
· licensure prohibits nonlicensed persons from engaging in the defined
scope of practice.
Although the standard definitions focus on initial entry, licensure also
addresses standards of practice and ethical and business behavior (what it
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238
ALLIED HEALTH SERVICES
takes to keep a license) and causes for disciplinary action (what it takes to
lose a license).
By long tradition, licensure has been, for all practical purposes, a form
of state-sponsored self-regulation because it has been carried out by boards
composed of members of the regulated occupation empowered to act with
a high degree of autonomy. As Shimberg (1984) noted in recounting the
history of state licensure:
These boards had broad powers to implement the law by promulgating rules and
regulations governing practice standards and professional conduct; establishing
minimum education, training, and experience qualifications; examining candidates
as to their fitness to practice; investigating complaints against practitioners; and
taking appropriate disciplinary action, including suspension or revocation of a
practitioner's license where appropriate.
Recent reforms have broadened the membership of licensure boards to
include representatives of the public who may or may not have voting
privileges. Yet, on the whole, the licensed occupations still are largely self-
regulated. This point is elaborated later in this chapter. However, licensure
carries with it a whole array of regulations and administrative procedures
for implementing the state statutes.
States can and do use a number of modes of occupational regulation
other than licensure (Table 7-2~. Among the 10 allied health fields covered
in this report, title protection through registration or certification by the
state is the most frequently used form of regulation other than licensure.
This regulatory mechanism is also applied in other fields such as accoun-
tancy, in which anyone can practice but only those who have met state
standards can use the title "certified public accountant." In one form or
another, about 800 occupations are regulated by the states, including ar-
chitects, real estate brokers, barbers and cosmetologists, electricians, and
engineers.
Besides occupational regulation, states also oversee allied health person-
nel through the regulation of institutions and settings in which they work.
Requirements for the licensure of hospitals and nursing homes include
personnel standards. In addition, states have other laws and regulations of
broad applicability in place, such as those that govern business practices
and provide consumer protection, that may be used against incompetent
or unscrupulous allied health personnel. The states also define qualifica-
tions for civil service positions held by these personnel.
Consumers may use the tort system in any state to file civil suits to seek
compensation for malpractice by allied health personnel. Presumably, this
mechanism carries some deterrent effect; in the context of quality assur-
ance, however, it must be viewed as a last resort.
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REGULATING ALLIED HEALTH PERSONNEL
TABLE 7-2 Modes of Occupational Regulation
1. PRACTICE STANDARDS
Without special enforcement
Through the adoption of statutes and rules, this mode can establish restrictions on
the practice of an occupation with civil or criminal penalties enforceable through the
courts. This type of regulation requires no inspections, registration, or special
enforcement staff. Rather, it relies on action by the harmed parties or by a consumer
affairs office.
With special end orcement
Through statutes, or rules, or both, this mode can establish restrictions on the
practice of an occupation in addition to establishing inspections, enforcement
mechanisms, and penalties. However, this mode does not require registration,
certification, or any assessment of the practitioner's credentials or competency.
239
2. REGISTRATION
Without standards
Through regulation, a state agency can require persons in an occupation to register
and supply certain information without requiring any standards, testing, or
enforcement.
With standards
It is also possible to have a registration requirement in combination with minimum
practice standards that are set by a designated agency. Although registration would
not be exclusionary, it would subject registrants to minimum standards and thereby
provide some protection to the public.
3. STATUTORY CERTIFICATION
With state standards and state enforcement
Through regulation, occupational members can be required to meet certain state
standards; only those who meet these predetermined qualifications may legally use
the designated title of the occupation. This mode entails standards, testing, codes of
practice, possible inspections, and enforcement.
With private standards and assessment and state enforcement
Through regulation, an agency of the state may require members of an occupational
group to meet certain standards established by a private testing or assessment center
or organization (reviewed by the state), with the state handling the certification and
any enforcement required. Legally, the state is responsible for the standards set and
for monitoring the process.
4. STAT~ToRY CERT~F~cAT~o~ AND PRAcT~cE STA~DARDs
A state may establish, by rule, certification for an occupation and also request the
legislature to pass a law that would establish practice standards for that same
occupation. This combination would establish a system of title control for those
meeting certain required standards of competency, as well as establishing standards
of practice for anyone who practices the occupation.
5. REGULATION THROUGH SuPERv~s~oN BY AN ALREADY L~cENsED PRAcT~T~oNER
Certification with standards
Through statutes and rules, an occupation can be certified and required to work
under the supervision of an already licensed occupation; standards for practice can
also be established. Continued
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240
TABLE 7-2 Continued
ALLIED HEALTH SERVICES
Through standards of practice but without certification
It is also possible to regulate by providing that the occupation be performed under
the supervision of a licensed professional with certain standards set forth but without
-requiring that the individual be certified.
6. L~cENsuRE
Licensure is the most restrictive form of occupational regulation, providing for both
title control and an exclusive area of practice. It requires standards of practice,
education, knowledge or minimum competency, and inspection and enforcement
with civil and criminal penalties.
SOURCE: Goldman and Helms (1983).
Criticisms of State Regulation
Occupational regulation has been in ferment for at least 20 years. Crit-
icisms have come from a number of quarters, and these criticisms have
given rise to recommendations for reform. Some changes have occurred
as a consequence.
In the 1960s the source of concern was access to health care. With an
apparent shortage of physicians, there was concern that restrictive licensing
laws were hampering the effective deployment and utilization of physicians'
assistants and other physician extenders. This issue was addressed by the
National Advisory Commission on Health Manpower in its 1967 report.
At the direction of Congress in the Health Training Improvement Act of
1970, the U.S. Department of Health, Education, and Welfare's Office of
the Assistant Secretary for Health and Scientific Affairs investigated prob-
lems in health care personnel licensure and certification. The department's
1971 Report on Licensure and Related Health Personnel Credentialing
contained far-reaching recommendations, including a recommendation to
the states for "a two-year moratorium on the enactment of legislation that
would establish new categories of health personnel with statutorily-defined
scopes of functions." The moratorium was to allow time for further con-
sideration of the tasks and functions of new health care occupations.
Questions about the wisdom of occupational licensure still remain, al-
though the circumstances today are different. The perceived shortage of
doctors and dentists has changed to a perceived surplus, and the number
of newly emerging health care occupations is increasing. Since the early
1970s the issue of rising health care costs has taken on greater and greater
importance. In the context of cost containment, the fact that more and
more health occupations have been seeking statutorily protected scopes of
practice is worrisome. This proliferation is seen as contributing to ineffi-
ciencies in the health care industry, especially in view of the rapidity of
technological change.
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REGULATING ALLIED HEALTH PERSONNEL
241
Allied health personnel are affected by this tension. Many of the allied
health fields are new, and, according to the example offered by older, well-
established fields such as medicine, nursing, and dentistry, state licensure
is crucial to their achieving recognition as professions. Licensure, it is be-
lieved, gives legal validation to the field's unique status. It provides a way
of excluding unqualified practitioners from providing services; it gives
official recognition to the field's scope of practice; and it offers easily ver-
ified credentials that can be used by employers and health care payers
(McCready, 19821. Licensure is also considered to be necessary to avoid
being subject to prosecution. For example, physicians would be vulnerable
to prosecution for practicing medicine without a license, since many medical
practice acts are so broad that physicians are granted virtually unlimited
~ .
scopes ot practice.
Above all, state regulation is viewed as a means of improving the quality
of health care by restricting entry into health care occupations to persons
who have proper credentials and by disciplining persons who do not meet
standards of professional behavior. Much of the criticism leveled at reg-
ulation is based on the lack of evidence on this point.
Criticisms Or Structure and Process
The traditional regulatory structures and processes, which were devel-
oped in the last century, are criticized as anachronistic and inconsistent
with the public policy objective of protection of the public.
By long tradition, the regulation of a health occupation, given a practice
statute, is the responsibility of a board. The composition of the board is
usually defined in the statute. One of the strongest criticisms of the reg-
ulatory structure is that these boards are not sufficiently accountable to the
larger public. Until recently, they were composed entirely of members of
the regulated occupation, drawn from the membership of their related
associations. In many states, they generated their own revenues by charging
fees to candidates and licensees; they had their own staffs; they were often
located in the home of the board's secretary; and they had considerable
rule-making authority with little or no oversight. Their proceedings were
closed to the public, as were their records.
By statute, the regulatory boards are charged with setting entry require-
ments, practice standards, and codes of conduct, and with disciplining
licensees who fail to meet those standards and codes. The performance of
these functions has also been subject to criticism.
Eligibility standards are defined in terms of education and, in some cases,
experience. Boards also require entrants to pass an examination that, in
some cases, is devised by the board. In other cases, the board relies on a
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242
ALLIED HEALTH SERVICES
national examination or commissions a testing organization to develop a
state exam. Criticisms that have been leveled at entry requirements are that
they are inflexible, offering only one path to entry; that education and
experience requirements are unrelated to the demands of practice; that
educational requirements rest heavily on accreditation, which in turn is
controlled by the professional associations; that examinations are not valid
reflections of "real-world" practice requirements; and that the common
practice of "grandfathering" current practitioners when licensing a new
occupation is inconsistent with the goals of protecting the public health and
welfare.
"Standards of practice" are defined in terms of behaviors that are subject
to disciplinary action, including fraud and deception in obtaining the li-
cense; conviction of a felony; engaging in unacceptable patient care through
deliberate or negligent acts; knowing violation of the practice act; contin-
uing to practice although unfit; and lewd or immoral conduct in the delivery
of services. "Codes of conduct" most commonly prohibit business practices
that are considered unacceptable professional behavior. Traditionally, these
have included advertising; practice in chain or department stores, shopping
centers, or other commercial environments; and engaging in competitive
bidding.
Disciplinary procedures are usually defined in the statute. In some states
and for some occupations, revocation of a license is the only sanction
provided. In others, the statute defines an array of sanctions of varying
degree, including license suspension, censure, and reprimand.
Boards have been criticized for the way they carry out their disciplinary
responsibilities: they only investigate complaints of incompetence or im-
propriety, rather than performing any independent monitoring. Impro-
priety (i.e., violation of the code of ethics) is more frequently the basis for
disciplinary action than is incompetence. The number of disciplinary ac-
tions is extremely low in comparison with estimates of the incidence of
incompetent practice. The public is not informed of disciplinary actions
against licensees. A partial explanation for the historical lack of disciplinary
vigor is the inadequacy of the resources available to the task of investigating
and "prosecuting" complaints. Without sufficient staff and budget, the
regulatory process is more bark than bite.
"Turf'' monitoring and turf protection occupy a significant portion of
the energies of a state's regulatory apparatus. The various occupations
battle among themselves over which parts of health care and which parts
of the patient fall under their jurisdiction. These battles are fought by
establishing practice acts and by implementing rules and regulations. Yet
this is not the only theater of conflict; insurance coverage and reimburse-
ment constitute another. Yet the regulatory arena is where the identity and
power of allied health personnel are largely determined.
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REGULATING ALLIED HEALTH PERSONNEL
243
In carrying out this study the committee encountered many examples
of jurisdictional struggles among allied health and other occupations, strug-
gles that caused their roles to be constantly shifting. For instance,
· ophthalmic medical assistants versus optometrists on performing re-
~ .
tractions;
· surgical technologists versus nurses on who should perform various
tasks in the operating room;
· orthoptists versus physical therapists on fitting braces and other or-
thotic devices; and
· audiologists versus hearing aid dispensers in hearing testing.
These struggles, in which one occupation seeks to expand its realm of
control at the expense of another, are a constant element of regulating
health services through licensure. In many cases the issue is which occu-
pation is entitled to perform a specific function. In others, the issue is which
occupation or occupations have jurisdiction over some portion of the hu-
man anatomy. In still others the issue is under what conditions persons in
an occupation perform their functions. For example, in many states, phy-
sician referral is required for physical therapy or occupational therapy but
not for speech therapy. Another important condition of practice is the level
of supervision required. These referral and supervision provisions in li-
censure statutes define the degree of autonomy of health care workers on
the one hand and their degree of availability to consumers on the other.
Decisions on these issues by state legislators and regulatory bureaucracies
affect the costs, quality, and accessibility of health care services.
The great difficulty facing state decision makers is that the impact on
costs, quality, and accessibility of any proposed modification in a health
occupation's scope of practice, referral, or supervision is rarely clear. The
risks and benefits of change are often hypothetical, difficult to measure,
and subject to large differences in judgment. Rhetoric and political power
frequently substitute for evidence and rational decision making. Rarely are
rigorous studies done.
One of the clearest examples of this problem is the case of dental hygiene
services. In the course of testimony by representatives of the American
Dental Hygienists' Association (1987a,b) and the American Dental Asso-
ciation (1987) before the committee, committee members learned of the
continuing controversy over the required levels of supervision of dental
hygienists by dentists.
In general, dental hygienists are only permitted to practice (i.e., perform
a variety of chiefly preventive services e.g., cleaning teeth, taking x rays,
applying topical fluorides, and teaching proper dental hygiene) under the
supervision of a licensed dentist. The supervision may be "general," which
means that a dentist may delegate a given function. The dentist must be
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244
ALLIED HEALTH SERVICES
responsible for its successful performance but does not have to be physically
present while the delegated function is carried out. Alternatively, the su-
pervision may be "direct," meaning that the dentist must be present in the
same room as the hygienist, or "indirect," which requires only that the
dentist be present in the treatment facility.
Supervision requirements vary among the states. According to the Amer-
ican Dental Hygienists' Association (1987b), 38 states permit dental hy-
gienists to practice at least some preventive oral health services under
general supervision. In some states, general supervision is limited to hos-
pitals, nursing homes, adult day care centers, and other institutional set-
tings. In Washington State, dental hygienists have practiced unsupervised
in long-term care facilities since 1984.
The American Dental Association is seeking to tighten supervisory re-
quirements for hygienists. In 1986 the association's House of Delegates
passed a resolution opposing general supervision and urging state dental
societies to eliminate it from state practice acts. The same resolution urged
that, in instances in which general supervision could not be removed from
the statute, the regulations be changed to require that:
a. any patient treated by a dental hygienist first become a "patient of
record" of a licensed dentist;
b. dental hygiene services be given prior authorization by a dentist no
more than 45 days before the services are provided; and
c. the dentist examines the patient within a reasonable time after the
dental hygiene services are provided.
The justification for this resolution was that general supervision endan-
gers the dental health of the public. Its effect would be to increase dentists'
control of dental hygiene services.
Since the resolution was passed, efforts have been made in several states
to delete general supervision. A bill to this effect was introduced in Con-
necticut in 1987. In Texas, where general supervision has been permitted
for over 30 years, the Board of Dental Examiners proposed rules that
would require direct supervision of all dental hygiene functions (American
Dental Hygienists' Association, 1987b). The Virginia Dental Board, which
had been on the verge of liberalizing supervision requirements, decided
against such action.
Other states are moving to relax their supervision requirements so that
dental hygiene services can be provided without the dentist's physical pres-
ence. Legislation to this effect has been proposed in Missouri, Ohio, South
Carolina, and Wisconsin. At the extreme on this continuum is Colorado,
which in 1986 became the first state to allow dental hygienists to provide
most of their basic functions without supervision by a dentist. Other func-
tions, which are designated as "supervised dental hygiene," require a den-
.
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REGULATING ALLIED HEALTH PERSONNEL
245
fist's supervision. Diagnosis, treatment planning, and prescription of
therapeutic measures continue to be the responsibility of dentists. The
statute imposes disciplinary action on dental hygienists who fail to refer
patients to a dentist when the treatment needed is beyond their scope of
practice. A lawsuit to overturn the statute failed but is under appeal.
In California, 15 dental hygienists are allowed to clean and examine
teeth without the supervision of dentists. This demonstration program is
one of the state-sponsored Health Manpower Pilot Projects, under which
the requirements of state practice acts may be waived for experiments with
innovative methods of health care delivery. According to the California
Office of Statewide Health Planning and Development (1987), the agency
responsible for the program, it "is authorized to approve locally conceived
and implemented demonstration projects to prepare and utilize health
personnel for new or expanded roles."
To qualify for the program, hygienists needed at least 4 years of clinical
experience, certification in cardiopulmonary resuscitation, and special training
in instrumentation. They are currently providing services in offices and in
other settings such as nursing homes. Some make house calls to people
who are bedridden. Their case records are reviewed by a dentist.
The California Dental Association sued to halt the program on the basis
that it was a threat to public health and that the procedures followed by
the state and by California State University in approving and implementing
the program were inadequate. In August 1987 fudge Rothwell B. Mason
of the Sacramento County Superior Court ruled against the dental asso-
ciation. His opinion was that the program was consistent with the legisla-
ture's intent to enable experimentation with new kinds and combinations
of delivery systems and the need for exemptions from the healing arts
practice act to permit such experimentation (California Dental Association v.
Office of Statewide Health Planning and Development et al., Proceedings, August
28, 1987, California Superior Court, County of Sacramento).
In neither the Colorado nor the California cases were the substantive
issues resolved; both cases, to date at least, have hinged on procedural
matters. In neither case were any data or research findings presented to
support arguments about risks or benefits. In addition, no evidence was
presented on the issue of what dental hygienists' training includes and what
types of responsibilities hygienists are prepared for, on the issue of acces-
sibility of services, or on the costs of services.
In its testimony to this committee the American Dental Association (1987)
stated that it "believes that all segments of the public should receive the
same high standard of dental care." The association expressed its concerns
about the great responsibility placed on dental care providers by the need
to diagnose nondental diseases that manifest symptoms in the mouth and
the need to provide services to patients who are severely medically com-
promised (American Dental Association, 19871.
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248
ALLIED HEALTH SERVICES
Criteria for regulating an occupation include evidence of harm from
unregulated practice, evidence that the occupation involves specialized skills,
and evidence that the public is not protected by any other means. More
recently, a criterion of cost-effectiveness has been added by some states.
Minnesota's statute and current regulations (see Appendix F) are an ex-
ample of these criteria. The rules spell out in some detail what constitutes
evidence of harm, including the kinds of harm that are recognized and
how to assess the potential for harm, and the extent of danger inherent
in the occupation's functions.
Minnesota's regulations also appropriately recognize the rather long list
of "other means" for protecting the public: supervision by other practi-
tioners, state or federal laws governing devices and substances, employment
.. . ~ ... . ,~ . . .. . . .
In licensed taal~t~es, federal licensing or other requirements, Avis service
procedures, or national certification procedures. A consideration of these
other means not only guides the initial decision to regulate at all but can
also guide the design of the appropriate regulatory mechanism when one
is needed.
The criteria for selecting the mode of regulation follow the principle of
using the least restrictive activities consistent with public protection (see
Subdivision 3 of the Minnesota statute, Appendix F). The least regulatory
mode is the strengthening of the base for civil action or criminal prohi-
bitions, or both. This is essentially a reliance on the deterrent effect of
potential civil actions or criminal penalties. The most regulatory mode is
occupational licensure, which prohibits persons who do not meet the state
standards from engaging in practice. An intermediate mode is the estab-
lishment of title protection through registration or certification.
Certification has been used for many years in the field of accountancy.
Accountants are certified by the states after meeting certain eligibility cri-
teria. These criteria vary among the states, but all states require passing
grades in each of four parts of the uniform national examination given by
the American Institute of Certified Public Accountants (CPAs). Some states
have education requirements; some also require experience in public ac-
countancy. Certified status allows an accountant to offer independentjudg-
ment about an organization's financial records, the value of its assets, and
so forth. In general, large organizations have their financial accounts au-
dited and evaluated by CPAs. A lender generally requires an audited state-
ment from a firm seeking a loan. The Securities and Exchange Commission
requires an audited statement before approving a stock offering. In these
capacities, CPAs wield considerable influence, their expertise is widely un-
derstood and respected, and they can command substantial salaries.
On the other hand, a person can prepare a firm's financial statements,
complete tax returns, and perform most accounting functions without being
certified. Unless a company wants to borrow money or sell shares to the
public, it does not have to pay for the services of a CPA. An individual
. .. . . .
. .
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REGULATING ALLIED HEALTH PERSONNEL
249
taxpayer is not required to have his or her tax return prepared by a CPA.
Thus, there are lower cost options available for a wide
variety of accounting
services. Using these lower cost and presumably lower quality options is
not without risk; an individual might be fined by the Internal Revenue
Service or see his or her company fail because of poor accounting services.
However, in this field, consumers are able to weigh the risks and benefits
and to choose among an array of providers, based on the importance they
place on certification and their financial constraints.
The concept of economic impact is relatively new in this arena. It makes
explicit a concern that the imposition of regulation, whatever its benefits,
carries with it certain costs to society. These include any increases in the
cost or price of services, insurance premium costs, the costs of additional
training, and the costs of operating the regulatory mechanism itself. In
some states, these regulatory operating costs are defrayed wholly or in part
through licensing fees and thus do not get charged to the consumer. In
evaluating the regulatory burden, however, these costs are significant, ir-
respective of how they are financed. There is probably merit in having
them made public, even if they are paid through licensing fees, as a means
of focusing attention on how much regulation costs society.
An economic impact statement requirement is very useful. It could and
should be expanded to a broader "environmental impact" statement to
incorporate other criteria such as access and quality into the considerations.
This broader statement would encourage allied health occupations seeking
state regulation, other parties at interest, and the states themselves to make
as explicit as possible the nature of the trade-offs under consideration.
Reforms of the Regulatory Structure and Process
The criticisms enumerated above have led to calls that date back to the
late 1960s for structural and procedural changes. These recommendations
for change have been aimed at increasing the public accountability, effi-
ciency, and effectiveness of state regulatory boards.
Board Composition Widening the membership of regulatory boards has
been one of the most consistent recommendations made by critics of state
occupational regulation (e.g., Public Health Service, 1977; Begun, 1981;
Cohen, 1980; Shimberg, 1982~. As stated by Tuohy (1976, cited in Begun,
1981, p. 94), "Governments cannot continue to expect that coherent public
policy can be achieved by dealing with professional groups as if they were
the 'owners' of their respective technologies." The need for public input
has generally been associated with consumer involvement, that is, the in-
clusion of one or more "lay" members on each licensure board. A number
of states have taken this step. These lay members generally are consumers
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ALLIED HEALTH SERVICES
(much of the impetus for having them came from the consumer move-
ment); they may or may not have full membership status voting privileges,
for example.
Although informed consumers have a great deal to offer to the regu-
latory process, there is some question about whether the addition of 1 or
2 consumers to a board with 8 or 10 members of a regulated field, especially
if the consumers cannot vote, will have the desired effect of making the
board more accountable to the public. More far-reaching recommendations
to this end include:
· Drawing the "public" board members from the appropriate state agency.
Bureaucrats would have the advantage of (1) technical knowledge relevant
to the task, and (2) a power base from which to exert leverage on other
board members. The power would flow from the agency head and, ulti-
mately, the governor (Cohen, 19801.
· Drawing a majority of the board members from outside the regulated
occupation. A far cry from one or two "token" consumers, under this
proposal boards would be dominated by lay members (Begun, 19811.
· Drawing board members entirely from persons outside the regulated
occupation. Board members could be not only consumers but others with
relevant expertise in such Gelds as education, public health, economics,
health administration, and health services research (Cohen, 1980~.
In the last case, the board could employ as consultants either individuals
or a panel of technical advisors drawn from the regulated field. However,
because no member of the board would come from the field and because
board members would have considerable relevant expertise of their own,
they would be likely to avoid "capture" or domination by the field and its
associationts).
Location of Boards in the State Administrative Structure A second major
recommendation to improve accountability has been to strengthen the
connections between regulatory boards and one or more state agencies.
One approach has been to centralize the administrative support, including
recordkeeping, the investigative staff, and other common functions of boards
in a single state agency, either the health department or a special depart-
ment established for this function.
Another approach, recommended by Selden (1970), is to have a single
board that regulates all health occupations and that is linked to a state
agency that provides all administrative, analytical, and investigative support.
Subcommittees from each field would develop policies for that field, subject
to approval by the full board.
A third approach is to link related health occupations through joint
boards. Rather than the single board envisioned by Selden, there would
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REGULATING ALLIED HEALTH PERSONNEL
251
be a number of boards but considerably fewer than the number of regulated
occupations. Virginia is moving in this direction with a proposal for a joint
board for several allied health occupations.
Ctril~tilr~1 rh~ng`~c in the direction of greater accountability are highly
desirable. To be fully effective, however, they should apply to all health
occupations, notjust to those that are the newest. States will need to examine
and probably revise their practice acts for physicians and other health care
professionals and to review the structures of regulation for those fields. A
double standard, one applicable to allied health fields and one to medicine,
dentistry, and nursing, is not desirable.
Information for the Public The regulatory process has been criticized for
being conducted virtually invisibly. Not only has doing business in a closed
fashion been a barrier to public accountability, it has kept the regulatory
process from serving an important educational function. Through state
regulation the public could become much better informed about the dif-
ferent health care occupations, their credentials, and the services they offer.
Public education could also increase state citizens' awareness of the im-
portance of occupational regulation. Such awareness would be likely to
elicit greater interest and participation.
No single model for accountability is obviously superior to all others.
Each state should use its own mechanisms consistent with the objective of
cost-effective public protection.
~~$ ,,,~,,,,~,,$ be.. ~~_.~_v ,,^ ~
The Federal Role
The federal government plays a very important role in regulating allied
health personnel. Although it does not regulate health occupations directly,
it has indirect influence on state regulatory policy by supporting evaluation
research, sponsoring policy analyses, and fostering information dissemi-
nation. It has direct responsibility for setting standards for eligible providers
under Medicare, however, and a shared responsibility with the states for
standard setting under the Medicaid program. Medicare conditions of
participation, which apply to all institutional providers of health services,
are a powerful regulatory tool because providers that do not meet the
conditions may not receive payment from the program except in emergency
circumstances. These regulations can be used to define the qualifications
of fillip,] h`~lth nerconne1 working in Participating hospitals, nursing homes,
~1 ~111~ 11~11 ~$~4$14~4 ~^^~^^~ rid -r~----o ~ 1~
and other health care institutions.
The federal influence is also exerted by the actions of the Federal Trade
Commission. The commission has conducted and sponsored research on
the effects of regulation and has struck down certain anticompetitive prac-
tices of regulatory boards such as prohibitions on advertising.
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ALLIED HEALTH SERVICES
The federal government has taken an important leadership role in health
occupations regulation. Reports issued by the U.S. Department of Health,
Education, and Welfare in the 1970s were influential in drawing attention
to problems in the mechanisms of state regulation. Recommendations from
those reports and from studies sponsored by the Labor Department helped
shape the new directions in state regulation.
The Bureau of Health Professions has supported studies of occupational
roles that are useful in devising entry and practice standards. The bureau
has also helped develop and disseminate information on state regulatory
activities through its support of the Clearinghouse on Licensure, Enforce-
ment, and Regulation of the Council of State Governments.
In addition, the bureau has supported the National Commission for
Health Certifying Agencies (NCHCA), a body that sets standards for or-
ganizations that certify allied health personnel. NCHCA sets standards that
are designed to ensure that certifying agencies are accountable to individ-
uals seeking certification, to their employers, to health care payers, and to
the public. (A copy of their standards is attached as Appendix G.i
The federal Medicare program has a significant impact on allied health
personnel through the way it defines covered services. By means of reg-
ulation, the secretary of the Department of Health and Human Services
can define the qualifications (e.g., licensure) of personnel providing services
such as physical therapy, occupational therapy, and speech therapy.
Private Control Mechanisms
Private recognition of competence also offers some assurance to the
public; it may take several forms. Membership in an association is an in-
dication that an individual has met certain standards for admission. The
standards may include qualifications of education or experience, moral
character, and so on. In a number of allied health fields, a basic requirement
of membership is graduation from an education program approved by
CAHEA. Dental hygiene programs are accredited by the American Dental
Association. Physical therapy education programs are accredited by the
American Physical Therapy Association.
Certification by a private agency or association generally imposes more
rigorous standards than those required for association membership. Cer-
tification has been defined as:
. . . the process by which a nongovernmental agency or association grants recog-
nition to an individual who has met certain predetermined qualifications specified
by that agency or association. Such qualifications may include graduation from an
accredited or approved training program, acceptable performance on a qualifying
examination, and/or completion of some specified amount or type of work expe-
rience. (Shimberg, 1984)
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REGULATING ALLIED HEALTH PERSONNEL
253
In a paper prepared for this committee, Carpenter (1987) notes that cer-
tification establishes "standards of competence" and then grants an indi-
vidual a certificate allowing them to use an occupational title, for example,
"registered dietician." ("Registered" is a very confusing term because it may
be used to mean licensed, as with registered nurses, or certified, as in this
case.) This mechanism is, of course, analogous to certification by a state,
except that it does not include legal prohibition against the use of the title
by persons not meeting the standards.
Historically, licensure has been concerned with minimum competency,
whereas certification has been reserved for those meeting considerably
higher standards. In medicine, for example, certification by a speciality
board was (and is) viewed as a "badge of excellence" (Shimberg, 19841.
This distinction is less clear-cut today, when in some fields certification
attests to basic entry standards and in others it attests to special achievement.
Two forms of private accreditation are used as quality assurance mech-
anisms for allied health personnel. In the context of credentialing allied
health personnel, accreditation most commonly refers to a process through
which a private association or agency "grants public recognition to a school,
institute, college, university, or specialized program of study having met
certain established qualifications or standards" (Shimberg, 19841. Educa-
tional accreditation is a form of peer review that is meant "to provide a
professional judgment of the quality of the educational institution or pro-
gram" (Committee on Allied Health Education and Accreditation, 1987~.
The second form of accreditation that is a quality control mechanism
for allied health personnel is the accreditation of hospitals and nursing
homes by the joint Commission on the Accreditation of Health Care Or-
ganizations. The joint commission promulgates standards that include qual-
ifications of key hospital personnel. Many of these standards apply to allied
health personnel (see Table 7-3~.
CONCLUSIONS AND RECOMMENDATIONS
In light of potential future shortages of allied health personnel and the
need to find a reasonable balance between health care costs and quality,
the committee believes that it is important to maintain flexibility in the use
of existing personnel and a variety of routes of entry for new personnel.
It appears that widespread use of licensure carries with it higher costs
to consumers, reduced access to health care services, and reduced flexibility
for managers. People in health care careers are inhibited from changing
fields and from advancing within their fields by rigid requirements imposed
by state regulatory mechanisms. Although these control mechanisms are
designed and carried out in the stated interest of protecting the health and
welfare of the public, their effectiveness in this regard has been mixed at
best.
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ALLIED HEALTH SERVICES
TABLE 7-3 Joint Commission on Accreditation of Healthcare
Organizations' Accreditation Standards for Hospitals
Field Summary of Relevant Standards (if any)
Clinical laboratory The director is a member of the medical staff and preferably a
technology board-certified pathologist. There are sufficient qualified
laboratory technologists and supportive staff to perform the
required tests. A qualified technologist is a graduate of an
approved medical technology program or has equivalent
1 1 w' 1 ~ 1
education, training, and/or experience; meets current legal
requirements of licensure/registration; and is currently
competent.
Dietetics A qualified dietitian dispenses the nutritional aspects of patient
care and ensures that quality nutritional care is provided to
patients.
Medical records A hospital must employ or have as a consultant a registered
record administrator or an accredited record technician. If
consultants only are used, medical record supervisors are to
demonstrate competence.
Physical therapy See rehabilitation services.
Occupational therapy See rehabilitation services.
Radiology The director of the radiology service is to determine the
qualifications and competence of department personnel; at
least one qualified radiologic technologist is available; a
technologist does not independently perform diagnostic
fluoroscope except under certain circumstances.
The director of the nuclear medicine service is to determine
the qualifications and competence of department personnel
who are not independent practitioners.
"When radiation oncology procedures are performed in the
hospital, designated qualified technologists are assigned as
needed."
Rehabilitation services Each individual providing physical rehabilitation services must
meet relevant licensure, certification, or registration
requirements. Separate services are defined, including
occupational therapy, physical therapy, prosthetic and
orthotic services, psychological services, recreation therapy,
social work services, speech-language pathology or audiology
services, and vocational rehabilitation services. No specific
staffing standards are given beyond the general one.
Separate standards require that comprehensive rehabilitation
services be provided "in an interdisciplinary manner," and
that the quality and appropriateness of these services be
monitored and evaluated.
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REGULATING ALLIED HEALTH PERSONNEL
TABLE 7-3 Continued
255
Field
Summary of Relevant Standards (if any)
Respiratory therapy Respiratory care services are to be provided by a sufficient
- number of qualified persons under competent medical
direction. If warranted, services are supervised by a technical
director registered or certified by the National Board for
Respiratory Therapy, Inc. Other qualified personnel may
provide services commensurate with their training,
experience, and competence; these include registered
respiratory therapists or certified technicians; persons with
equivalent education or experience; qualified
cardiopulmonary technologists; and appropriately trained
licensed nurses.
SOURCE: Accreditation Manual for Hospitals (1988).
Statutory certification, which legally reserves the use of a title to persons
with specific qualifications, affords most of the benefits of licensure and
avoids many of the costs. In conjunction with public education, it gives
consumers the opportunity to choose among providers knowledgeably. It
does not prevent consumers from choosing lower quality or lower cost
alternatives. It permits institutional employers some flexibility in their staff-
ing. It permits innovation new careers may provide new cost-effective
methods of diagnosis and treatment.
The committee recommends statutory certification for fields in which
the state determines there is a need for regulation because this form of
regulation offers most of the benefits of licensure with fewer of its costs.
Medicare and other third-party payers should accept state title certifi-
cation as a prerequisite for reimbursement eligibility. Such certification
can and should be based on examinations and other eligibility criteria
the states may establish.
The committee endorses the establishment of sunrise criteria to guide
states' decisions about whether to regulate health occupations and, if so,
how. These decisions should follow three basic principles:
1. the protection of the public is the sole reason for states to regulate
health occupations;
2. the least restrictive regulatory mechanism consistent with public pro-
tection should be selected, taking into account other means that are in
place; and
3. if, after due deliberation, the decision is made to regulate an occu-
pation, it must be followed by a continuing commitment of resources on
the part of the legislature, the governor, and the relevant administrative
agencies.
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ALLIED HEALTH SERVICES
State regulatory structures and procedures must be improved if they are
to be effective. In most states the composition of boards, the requirements
for entry, and the flow of information to the public are not fully consistent
with the public interest.
The committee recommends that states strengthen the accountability
and broaden the public base of their regulatory mechanisms. In the near
term, the committee suggests the following:
· Licensing boards should draw at least half of their membership from
outside the licensed occupation; members should be drawn from the
public as well as from a variety of areas of expertise such as health
administration, economics, consumer affairs, education, and health ser-
vices research.
· Flexibility in licensure statutes should be maintained to the greatest
extent possible without undue risk of harm to the public. This may mean,
for instance, allowing multiple paths to licensure or overlapping scopes
of practice for some licensed occupations.
The regulatory process should be conducted as openly as possible and
should produce a flow of information to the public, including:
· the scope of practice of the occupation as defined by state law and
regulation;
· the eligibility requirements for entry into the occupation;
· basic information about licensees, including the status of their license
and any disciplinary actions taken by the state, as well as basic data such
as educational background, which should be collected as part of the li-
censing process; and
· board membership and procedures, especially procedures for filing
complaints against licensed professionals.
Regulatory boards should be well connected to the state bureaucracy.
If a state requires graduation from an accredited educational program
for licensure, the state should take an active interest in the accreditation
requirements to ensure that they are consistent with the state's interests.
Finally, the committee believes that decisions by states, accrediting bodies,
and health care payers regarding scope of practice, referral, and super-
vision should be better informed. The Bureau of Health Professions (or
another future focal point for allied health personnel in the Depa~-l'''ent
of Health and Human Services) should sponsor a body with members
drawn from allied health and other health professions and from the health
and social science research communities to assess objectively the evi-
dence bearing on jurisdictional issues. This body, in consultation with
other experts and interested parties, should consider issues of risk, cost,
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REGULATING ALLIED HEALTH PERSONNEL
257
quality, and access. It should draw on available scientific evidence and
identify topics on which research is needed.
Well-designed experiments and demonstrations of innovative roles for
allied health personnel will provide valuable evidence to guide regulatory
policy.
REFERENCES
Accreditation Manual for Hospitals. 1988. Chicago: Joint Commission on Accreditation
of Healthcare Organizations.
American Dental Association. 1987. Testimony before the IOM Committee to Study the
Role of Allied Health Personnel's Hearing on Regulation. National Academy of Sci-
ences, Washington, D.C. July.
American Dental Hygienists' Association. 1987a. Paper submitted to the IOM Committee
to Study the Role of Allied Health Personnel's Hearing on Regulation. National Acad-
emy of Sciences. Washington, D.C. July.
American Dental Hygienists' Association. 1987b. Testimony before the IOM Committee
to Study the Role of Allied Health Personnel's Hearing on Regulation. National Acad-
emy of Sciences, Washington, D.C. July.
Begun, I. W. 1981. Professionalism and the Public Interest: Price and Quality in Optom-
etry. Cambridge, Mass.: MIT Press.
California Office of Statewide Health Planning and Development.1987. Health Manpower
Pilot Projects Program: Annual Report to the Legislature and the Healing Arts Li-
censing Boards. Sacramento: State of California Office of Statewide Health Planning
and Development.
Carpenter, E. S. 1987. State regulation of allied health personnel trends and emerging
issues. Background paper commissioned by the Institute of Medicine Committee to
Study the Role of Allied Health Personnel. National Academy of Sciences, Washington,
D.C.
Carroll, S. L., and R. i. Gaston. 1977. Occupational Licensing: Final Report. Washington,
D.C.: National Science Foundation.
Cohen, H. S. 1980. On professional power and conflict of interest: State licensing boards
on trial. Journal of Health Politics, Policy and Law 5(2):291-308.
Committee on Allied Health Education and Accreditation. 1987. Allied Health Education
Directory, 1987. 15th ed. Chicago: American Medical Association.
Gaumer, G. L. 1984. Regulating health professionals: A review of the empirical literature.
Milbank Memorial Fund Quarterly/Health and Society 62(3):380-416.
Goldman, S. K., and W. D. Helms. 1983. The regulation of the health professions. A
policy review prepared for the Commission of Health Regulatory Boards of the Com-
monwealth of Virginia. Richmond, Va. October.
Holen, A. S. 1977. The Economics of Dental Licensing. Arlington, Va.: Center for Naval
Analysis.
Institute of Medicine, Committee to Study the Role of Allied Health Personnel. 1987.
Mechanisms for Controlling the Quality of Allied Health Personnel. Public hearing
held on July 1 at the National Academy of Sciences, Washington, D.C.
Maurizi, A. 1974. Occupational licensing and the public interest. journal of Political Econ-
omy 82:399-413.
McCready, L. A. 1982. Emerging health care occupations: The system under siege. HCM
Review (Fall) :71 -76.
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National Advisory Commission on Health Manpower. 1967. A Report by the Committee
on Health Manpower, Vol. 1. Washington, D.C.: Government Printing Office.
Shimberg, B. 1982. Occupational Licensing: A Public Perspective. Princeton, No.: Edu-
cational Testing Service.
Shimberg, B. 1984. The relationship among accreditation, certification and licensure.
Federal Bulletin (April): 99- 1 15.
U.S. Department of Health, Education, and Welfare, Office of the Assistant Secretary for
Health and Scientific Affairs. 1971. Report on Licensure and Related Health Personnel
Credentialing. Washington, D.C.: Government Printing Office.
Representative terms from entire chapter:
health personnel
