Occupational Licensing Reform is Having a Moment
The idea of occupational licensing reform in the medical and legal fields has long been met with recoil, partially because people view the fields as above reproach—too important and delicate to risk any deregulation. But as the COVID-19 pandemic required medical flexibility, and legal credentialing became a mess in a remote world, people across the political spectrum began to realize the necessity and value of reform in both industries. Our current moment provides a unique opportunity to ease excessive credentialing burdens in both fields and to expand access to care and justice.
The ability to move to a new state and continue working is a key issue with occupational licensing. Prior to 2019, in most cases, a licensed professional relocating to a new state would have to jump through endless hoops in order to work. And this does not even address working with clients in other states on a temporary basis—which would be nearly impossible. These regulations seriously hinder economic mobility. In recent years, many states have eased the transfer process for military spouses with occupational licenses. As members of families constantly forced to move, military spouses struggle when becoming licensed in a new state takes too long. Legislators across the country saw this and realized fixes were needed.
In April 2019, Gov. Doug Ducey (R-Ariz.) signed a first of its kind universal licensing recognition bill that allowed most licensed professionals—including doctors and nurses—to move to Arizona and go through a simple process to have licenses recognized. As of October 2021, at least 16 states have similar or equal laws. Though he was unaware of it at the time, Gov. Ducey’s work was particularly forward thinking: less than a year later, various professionals would need to work across state lines in order to assist with COVID-19 flare-ups. Mobility became a necessity when hospitals were overwhelmed in some areas and not others.
Before the pandemic, people met some reforms with instant and often unwarranted concern, thinking that licenses in other states would not be identical to licenses in the new state. Such reactions differed greatly from the responses to floods of pandemic executive orders allowing medical professionals to work across state lines without the burdens of repetitive licensing. Some orders even allowed retired professionals and those with lapsed licenses to work again. Nearly every state implemented some form of this, and far from being met with concern, people expressed gratitude and thanks that professionals could help save lives.
The same dynamic goes for scope of practice expansion for advanced practice nurse practitioners during the pandemic, save for the American Medical Association, which has economic interest in limiting the role of nurses. Indeed, pre-pandemic, people expressed concern with expanding nurse or pharmacist scope of practice. But when medical professionals were needed, people appeared to realize that expanding capacity was necessary, not dangerous.
Reflexive doubt was replaced with a real understanding of how regulations, when too burdensome, can hinder health care access. Even the idea of a system that enabled certain foreign-trained doctors to work in the United States was met not with scorn but with curiosity. A proposal sponsored by Rep. Derek Grier (Mo.-100) would have done just that. Though the bill did not pass, the idea is not without precedent as during the pandemic a few states allowed foreign-trained medical professionals in the United States to work for a limited time in order to help overwhelmed medical facilities.
Easing licensing for medical professionals across state lines and allowing medical professionals to act within their full scopes of practice are good ideas—in bad times and in good ones. With opposition to such reforms at an all-time low, states that have yet to do this work have a prime opportunity.
A similar progression occurred in the legal profession. Over the past decade or so, some have considered reforms to the field, such as creating a more tiered licensing system for lawyers that can lower barriers to entry; removing the requirement of licensure for certain legal tasks; eliminating or replacing the bar exam; or allowing non-lawyers to own law firms.
Arizona and Utah are tentatively allowing non-lawyers to own law firms. Both states have been at the forefront of revolutionary licensing and general regulatory reforms, and their work here, too, could improve access to justice and increase innovation. These reforms have also garnered the interest of the American Bar Association (ABA), which launched a program to study how well such reforms function.
A member of the ABA’s Commission on Multijurisdictional Practice is also considering licensing reciprocity for lawyers. Lawyers exist in a strange space with licensing transfers; the profession is not really covered under universal licensing recognition. That said, certain states have the uniform bar exam, and scores can be accepted by other states. Other states have one-off reciprocity agreements with various other states. Some have none. But the system is hardly intuitive or easy, and there is a lot of room for improvement—particularly because regulatory costs are passed onto consumers who, in this case, are those seeking justice.
The bar exam is also a big focus for reformers. During the pandemic, administration of the bar exam failed miserably—from tech support staff ignoring students to them deciding that a third of the examinees were cheating. Bar exam software crashed; test takers urinated during the exam because breaks were not allowed; and one person even had to choose between re-taking the test or going without feminine sanitary products when menstruation began.
But the seemingly valid criticism may be problematic in itself. “I’m worried because they have threatened to do character investigations on those of us who are making noise,” CNBC reported one person saying. The concern is warranted, as the head of the National Conference of Bar Examiners threatened to do just this.
Following months of nightmares, Clifford Winston of the Brookings Institution wrote an article advocating for the elimination of the exam, saying “the disadvantaged pay the price for an elitist legal system” and noting that the research in his book finds that “educational requirements and state bar exams do little in practice to assure a minimum quality of legal services.” Here then we have onerous and unnecessary regulations hindering prospective lawyers’ ability to provide the services with which people’s liberty is defended. At the same time, those regulations are doing that hindrance in ways that worsen pre-existing inequalities.
With the bar exam in particular, many have argued that the content relates inadequately to practice and is more of a random barrier than a safeguard for consumers. “We don’t even know if the bar exam measures competency. Studies linking the bar exam to protection of the public or success as a lawyer are scarce,” writes Valerie Strauss in The Washington Post. “Some state boards of bar examiners have come right out and said as much.” Even the ABA president has her doubts, and there is no shortage of lawyers arguing to abolish the bar.
Winston also hits at the heart of one aspect of the whole legal licensing dilemma: “The legal profession regulates itself—which explains how lawyers get away with practices that pad their own earnings and block nonlawyers from selling competing services at lower prices.” He advocates for all kinds of reforms, such as lowering barriers to entry through programs that offer bachelor’s degrees in law. This list is not exhaustive, and there are real, sensible alternatives to the current dynamic: fixing or abolishing a horribly broken bar exam; allowing new accrediting education structures; and allowing non-lawyers to own law firms would all help improve things—and there is appetite for such reforms.
For a long time, both legal and medical licensing reform seemed to be the third rail of occupational licensing reform. But after eighteen very strange months of pandemic, the immediate necessity for change in both fields, and a new perspective from the public, there appears to be a window in which reformers can approach the issues to open up access to both care and justice.
Finally, if occupational licensing reform is both possible and desirable in these two fields which have long been immune to that reform, imagine what it could do for other jobs like floristry where public acceptance of deregulation is considerably greater. This is occupational licensing reform’s moment, the moment when we make it easier for people to do the job they want to do, thereby supporting themselves and contributing to society. We need to make the most of that moment.
Image credit: Ockskay Bence