Review of State Professional and Occupational Licensure ...

2018

Review of State Professional and Occupational Licensure Board Requirements and Processes

By direction of Governor Tom Wolf

EXECUTIVE ORDER 2017-03

PENNSYLVANIA DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

COMMONWEALTH OF PENNSYLVANIA | Delivered June 11, 2018

Acknowledgements

This report was put together with the invaluable assistance of Saint Francis University's Knee Center for the Study of Occupational Regulation. The Knee Center's team worked and continues working diligently to collected and analyze data that goes toward developing a national database of occupational regulations. The Department of State wishes to thank the following Saint Francis staff for their dedication to this process:

Edward J. Timmons, Ph.D. Professor of Economics

Director, Knee Center for the Study of Occupational Regulation Saint Francis University

Alanna Wilson Director of Public Relations, Knee Center for the Study of Occupational Regulation

Saint Francis University

Emily Vargo Assistant Director, Knee Center for the Study of Occupational Regulation

Saint Francis University

John Hazenstab, MBA Graduate Assistant, Knee Center for the Study of Occupational Regulation

Saint Francis University

Ilya Kukaev Graduate Research Fellow, Knee Center for the Study of Occupational Regulation

Saint Francis University

Alexis Delullo Student Fellow, Knee Center for the Study of Occupational Regulation

Saint Francis University

Per the Executive Order, an Advisory Group was created to assist in the research, data collection, and formatting of the report. The group provided insightful feedback and knowledge regarding professional licensure.

Advisory Group Members

Chairman John Christopher, Wayne Crawford, Esq., Jake Derrick, Com. Ian Harlow, Travis Gery, Esq., Kalonji Johnson, Esq, Chairwomen Linda Kmetz, PhD, RN, Jerry Livingston, Cynthia Montgomery, Esq., Chairman Dan G. Murphy III, Rep. Mark Mustio, Chairwomen Cynthia Potter, PT, DPT, Rep. Harry Readshaw, Dep. Sec. Peter Speaks, Jennifer Thomson, Esq., Sec. Robert Torres, Marlene Wilson, Esq.

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Abstract

On October 24, 2017, Governor Tom Wolf signed Executive Order 2017-03: Review of State Professional and Occupational Licensure Board Requirements and Processes. The order required the Pennsylvania Department of State (DOS), Bureau of Professional and Occupational Affairs (BPOA), which oversees professional licensure, to conduct a comprehensive review of the state's processes, fees, training requirements, criminal history policies, reciprocity or interstate agreements, and continuing education requirements for occupational and professional licensure. In addition, the order directs BPOA to benchmark Pennsylvania's professional and occupational licensure data against regional averages in order to help identify requirements and processes which may present unnecessary employment barriers for Pennsylvanians.

This report responds to the governor's charge by presenting a holistic review of Pennsylvania's occupational licensure system. The intent of this report is to provide information to the governor to help him and administration officials identify opportunities to remove unnecessary restrictions that prevent Pennsylvanians from gaining employment without compromising the health and safety of residents.

BPOA worked in coordination with Saint Francis University's Knee Center for the Study of Occupational Regulation (CSOR) to compile data on regional equivalent professional and occupational licensure. The report found that regionally Pennsylvania typically had lower than average initial fees, continuing education requirements, and training requirements. Pennsylvania has a few license types that were only present in a minority of states in the region, and an even smaller amount that were exclusive to Pennsylvania. Where Pennsylvania is above the regional average for fees, training, and continuing education requirements and where license types are not widely present in other regional states, the report recommends the governor and administration officials evaluate the health and safety protections associated with licensure against the impact of employment restrictions on Pennsylvania residents and businesses. Additionally, the Wolf Administration should examine policies that have the potential to mitigate the mobility problems associated with state licensure, such as interstate compacts, reciprocity, endorsement, uniformity, and lessor forms of regulation such as certification or registration. A review of current interstate agreements, both in Pennsylvania and regionally, is included in this report and the data can assist in assessing impact of accessing licensure for residents entering the commonwealth.

In addition to the analysis referenced above, the report also includes a review of criminal history bans, disciplinary actions, licensure processing times, and demographic makeup. The data collected shows that while disciplinary actions vary widely by board, the annual number of actions is steadily growing. Additionally, processing times for initial applications vary significantly from board to board, ranging from less than a day to 53 days, with the average application processing time for all boards at 13.8 days. Criminal history bans also vary from board to board, with significant bans set in statute for most healthcare-related occupations. Lastly, the requirement to demonstrate "good moral character" is loosely defined and while this administration has provided guidance through policy statements regarding the use and review of criminal histories there is the potential for it to be applied unevenly across boards. The governor and administration officials should examine the impact of criminal history bans and "good moral character" requirements on ensuring Pennsylvania residents are able to engage in the workforce without unnecessary barriers.

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Table of Contents Abstract Executive Summary Section 1: Re-examining Occupational Licensing Section 2: The Commonwealth's Licensing Framework Section 3: Analysis of Findings

3.1 Prevalence of Licensure 3.2 Comparison of Licensure Types 3.3 Disciplinary Actions 3.4 Effect of Criminal History 3.5 Fees 3.6 Training and Continuing Education 3.7 Processing Times 3.8 Interstate Compacts 3.9 Demographics

Appendix 1: Disciplinary Action by Board Appendix 2: Disciplinary Action Data Appendix 3: Initial Versus Renewal Fees Appendix 4: Board Profiles

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Executive Summary

Occupational licensing laws require individuals to meet entry and renewal requirements to work in specified occupations. These entry and renewal requirements may include minimum levels of schooling, training, or experience; entry and renewal fees; passing exams; and/or meeting other requirements as defined in enabling statutes and accompanying regulations. In some instances, the requirements of occupational licensure in terms of training, continuing education, and oversight help raise the quality of service and protects consumers. However, in other instances, occupational licensure can serve as a form of "title protection," shielding practitioners with a license from competition from those who are not licensed but wish to practice the particular trade or profession. It is incumbent on policy makers to continually ensure that an appropriate balance between the costs and benefits of occupational licensure is maintained.

The scale and scope of occupational licensing has grown significantly over the past several decades. In the 1950s, just five percent of U.S. workers were required to hold an occupational license ? meaning they completed additional schooling or training, and passed an exam to be licensed to practice their trade or profession in a certain state. Today, the U.S. Bureau of Labor Statistics estimates that 23 percent of full-time workers have a license. This uptick in licensed workers is directly correlated to the growth of occupational licensing laws. In the early 1990s, 800 occupations required licenses in at least one state. According to the National Conference of State Legislatures, that number increased to approximately 1,100 occupations by 2016.

In Pennsylvania, 29 professional boards and commissions regulate 255 licensure types, and just over 1 million licensees. Each of the licensing boards and commissions is governed by its respective enabling statutes and accompanying regulations. They are comprised of both members of the licensed professions and public members who are appointed by the governor and confirmed by the Senate. The licensee classes regulated by each board and commission varies significantly. The largest--Pennsylvania's Board of Nursing--oversees the licensure of more than 312,000 nurses and dietitian-nutritionists, while the smallest--the Navigation Commission for the Delaware River and its Navigable Tributaries--licenses just 42 maritime pilots.

Governor Wolf's Executive Order 2017-03 directed the commissioner of Professional and Occupational Affairs to work with each board and commission to undertake a critical and comprehensive review of the following for each profession licensed:

? The number of regional states that require the same or equivalent license as Pennsylvania; ? Processes, licensing and renewal fees, training, and continuing education requirements; ? Whether the above referenced requirements and fees are set in statute, regulation, or policy;

and ? Any automatic criminal history bans, specifying the crime or conviction trigger and the

length of the licensure ban.

For all of the above, the Executive Order directs the commissioner to benchmark Pennsylvania requirements against regional averages. As defined in the Executive Order, regional states include Ohio, West Virginia, Maryland, Delaware, New Jersey, New York, Massachusetts, Rhode Island, Connecticut, New Hampshire, Vermont, and Maine. In any case where Pennsylvania exceeds the

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regional average, additional information is provided on the commonwealth's requirements and whether they are necessary to protect the health and safety of residents.

Additionally, the following information, as required by the executive order, is also included in this report:

? The number of disciplinary actions imposed on licensees each year for the past five years, including fines, penalties, license suspensions, and other disciplinary actions;

? The ten most frequent disciplinary actions resulting in a fine; ? Interstate Compacts or Reciprocity Agreements; and ? Demographic information about the composition of the boards and commissions and the

licensed population.

It is important to note that while licensure is the strictest form of occupational regulation, there are a variety of other options--ranging from private certifications, to bonding and insurance requirements, to registration and certification--which can be utilized to help protect the public and ensure high quality delivery of services, without creating an unnecessary bar to entry to a profession.

Prevalence of Licensure

With 27.8 percent of the workforce professionally licensed and certified, Pennsylvania ranks 24th in the country in terms of percentage of total workforce licensed or certified. Looking solely at percentage of workforce professionally licensed, Pennsylvania is slightly lower than average at 20.2 percent. Further analysis examining the prevalence of licensure in Pennsylvania is contained in Section 3.1.

Comparison of Licensure Types

Pennsylvania's 29 boards and commissions license 255 occupational types, the majority of which also require a license in most of the regional comparison states. Based on a comprehensive review of occupations licensed in Pennsylvania and a comparison with other states in the region, 14 license types were identified, which are found in four or less other states, including five which are only licensed in Pennsylvania--Cemetery Associate Broker; Cemetery Broker; Geologist in Training; Manager of Records (Real Estate); and Orthotic Fitter. Further analysis comparing the types of occupations licensed in Pennsylvania with regional comparison states is contained in Section 3.2.

Disciplinary Actions

The total number of sanctions issued in 2016-17 across all boards is higher than the number issued in 2012-2013, with sanctions increasing annually over the past three fiscal years. In fiscal year 2012-2013, 2,305 sanctions were imposed, while in fiscal year 2016-2017, 2,664 sanctions were imposed. Over this same period, five boards--Nursing, Cosmetology, Vehicle Manufacturers, Dealers and Salespersons, Medicine, and Barber Examiners--were responsible for roughly 74

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percent of sanctions imposed. In some cases--such as nursing--the number of violations was due to the size of the class. In others, the licensing board regulates facilities as well as licensees, and the number of sanctions issued includes citations for both regulatory roles. The most common violation cited was practicing with a lapsed or expired license, followed by unlicensed practice activity, and then facility violations. Further analysis regarding disciplinary actions is contained in Section 3.3.

Effect of Criminal History

While each of Pennsylvania's professional and occupational licensing boards are authorized by the Criminal History Records Information Act, (Title 18, Pa. C.S., ?? 9101-9106) ("CHRIA") to consider an applicant's criminal convictions in making licensure decisions, 13 of the 29 boards have provisions within their respective authorizing legislations that impose a mandatory 10-year licensure ban for persons who have been convicted of a felony under Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act. The boards to which the 10-year ban applies are predominantly health-related licensure boards?the main exception being the State Board of Crane Operators. Among the regional comparison group, Pennsylvania is an outlier in applying an automatic criminal history licensure ban. While a handful of states have similar bans, the majority only authorize consideration of criminal history under certain circumstances, such as where the crime was related to the occupation being licensed. Further analysis regarding the effect of criminal history on licensure is presented in Section 3.4.

Application and Renewal Fees

Application and renewal fees are determined by each board and are based upon a multitude of factors. By statute, application fees are determined based on the cost to process an initial application for licensure, not the average salary for a newly licensed professional. Renewal fees are designed to cover the day-to-day operating costs of the board, which includes administrative, legal, and investigatory oversight. Renewal fees are typically greater than initial fees by design. This structure was designed to create a lower barrier to entry for initial applicants and as a result, Pennsylvania's initial application fees are largely in line with or lower than those in regional states, with the exception of two occupations--maritime pilots and hearing aid dispensers/specialists-- for which fees are the highest in the region. For renewal fees, 14 occupations in Pennsylvania have fees higher than the regional average, and for five occupations--barber teachers; cemetery salesperson; certified real estate evaluator; maritime pilots; and vehicle salesperson-- Pennsylvania's renewal fees are the highest in the region. Further analysis regarding the fees charged in Pennsylvania is presented in Section 3.5.

Continuing Education/Training

Continuing education requirements are designed to keep practitioners informed of innovations and updates in their fields. For most occupations reviewed, Pennsylvania's continuing education requirements were comparable to requirements regionally. However, for 18 licensed occupations, Pennsylvania's continuing education requirements exceed the regional average. Further analysis regarding continuing education and training requirements is presented in Section 3.6.

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Processing Times

Recognizing that delays in receiving a license, reactivating a lapsed license, or obtaining a renewal can present a barrier to practice, BPOA reviewed processing times for each board and commission. Processing times for initial applications ranged from less than a day at several boards to 53 days at the State Real Estate Commission. The average across all boards was 13.8 days. Full data regarding the average timeline for obtaining action on an initial application, reactivation or renewal for each board or commission is presented in Section 3.7.

Interstate Compacts and Portability

Interstate compacts provide a streamlined approach to licensure by granting a license for multiple jurisdictions in a single conveyance while maximizing time, money and administrative resources. Pennsylvania has entered into one Interstate Compact in recent years--the Interstate Medical Compact-- and there are currently to bills introduced in the General Assembly that would expand the use of interstate compacts. A related trend is efforts to expand licensure portability, particularly for groups such as military spouses who are disproportionately affected by licensure requirements due to frequent moves. Information regarding interstate compacts and portability is presented in Section 3.8.

Demographic Data

Demographic data was examined in two ways. First, the 189 members serving on boards and commissions as of November 17, 2017 were asked to complete a confidential survey with questions regarding their gender, ethnicity or race, geographical region, and age. Of the members who were asked to complete the survey, 177 responded. The results of this survey are presented in detail below, but notably, responses indicate that boards are less diverse (86% white, 5% Black, 3% Hispanic or Latino, 2% Asian) than the commonwealth as a whole (82.4% White, 11.8% Black, 7% Hispanic or Latino, 3.5% Asian). Males are represented more frequently than females (57% to 42%), and the members of the board tend to be older than the average in Pennsylvania, with over two-thirds of respondents identifying their age as being over 56. Board membership varies geographically, with larger proportions drawn from more densely populated regions of the state.

The Executive Order also directed BPOA to present demographic information regarding its licensee population and professional community. BPOA is currently collecting a more comprehensive data set for current licensees, however, because renewal periods are staggered over two years, the collection of this data will not be complete until December 31, 2019. In terms of BPOA's historical data, questions regarding the gender, race or ethnicity of license applicants have always been voluntary, making this data unreliable. Further analysis of the demographics of board and commission members, and Pennsylvania's licensee community is presented in Section 3.9.

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