There is a difference between certification and licensing and at least 38 states have been involved in attempting to separate the two. In some cases, confusion reigns as nonprofit associations fight to keep the ability to upgrade and certify the skills of members.
The trouble for nonprofits is that although more than 100 associations have signed onto the Professional Certification Coalition (PCC), many of the state nonprofit associations did not know this is an issue. State association officials didn’t know about the push in both Michigan and Pennsylvania where bills are currently under discussion. Bill sponsors in both states did not return requests for information.
There have been at least 80 bills regarding occupational licensure and private certifications, according to Julia E. Judish, special counsel at the law firm Pillsbury Winthrop Shaw Pittman LLP in Washington, D.C. The concern is that legislation would inappropriately interfere with the right of private credentialing organizations to adopt and enforce ethics codes.
The PCC was formed in July 2018 to address efforts to enact state legislation that would undermine the activities or recognition of certifications developed or offered by non-governmental, private certification organizations. Some of the bills have included provisions that would:
“Licensure is a governmental function. Certification is overwhelmingly a private function. ” — Julia Judish
- Bar many professionals holding certifications from private organizations from using the titles “certified” or “registered;”
- Create evidentiary presumptions and barriers to state professional licensure laws recognizing or requiring certifications from private organizations; and/ or,
- Establish governmental certification programs that would supplant private certification programs, in some circumstances, according to information from the PPC.
In many instances, the bills incorporate language from anti-occupational licensing or anti-certification model legislation sponsored or endorsed by special interest groups. The Institute for Credentialing Excellence and the American Society of Association Executives (ASAE) spearheaded the formation of the coalition. The concept is to promote and represent non-governmental professional certification organizations and programs and their service providers.
There have been some successes, according to PCC officials. The coalition hired lobbyists in Missouri and Pennsylvania and received confirmation from the bill sponsor that a safe harbor provision will be added to Missouri H.B. 564 or its successor bill, should it return next year and contributed to a committee decision not to advance Pennsylvania H.B. 811.
The group lobbied for an amendment to Ohio S.B. 255 to remove a provision calling for government certification to supplant private certification in some instances and to add a safe harbor provision exempting recognition of private certification from the evidentiary standard requiring a showing of present harms to public health and safety.
“We’ve been able to have a really good working relationship on the ground, modifying or pausing legislation that’s the most dangerous like Ohio last year,” said Mary Kate Cunningham, vice president, public policy at ASAE: The Center for Association Leadership, in Washington, D.C.
“Licensure is a governmental function. Certification is overwhelmingly a private function,” said Judish. Many of these licensures were written broadly with a few examples of unintended consequences, she said. Those happen when a legislator thinks that licensure and professional certification are the same thing. Scooped up in the proposed legislation has been purely voluntary credentials not required by state regulation, such as engineering licenses.
For example, a bill in Louisiana would have prevented the use of voluntary certifications, such as from nonprofit credentialing organizations for the upholding of industry standards or education. “Only government can issue a license,” said Cunningham.
“Some of the bills also prevented the use of the word “certified” unless issued by the state. That caught people’s attention.” — Mary Kate Cunningham
In the case of Pennsylvania, an element of the bill was to reduce recidivism by expanding opportunities for ex-offenders to earn a living. The PCC has told legislators that while it’s a nice idea, the “government should refrain from interfering with the right of private certification organizations to determine what profession-specific certification requirements, both substantive and conduct-related, are necessary to qualify for the organization’s credentials.” They would prohibit any “licensing and certifying body” from denying approval to an individual with a non-violent misdemeanor conviction and also mandate specific procedures and restrictions with respect to applications by individuals with felony or violent misdemeanor convictions.”
The bill also defines “licensing or certifying body” as “the issuing body to whom an individual has applied for a license or certification to conduct or perform a lawful occupation or profession for which the license or certification is required in this Commonwealth.” PCC has asked that an amendment be made to clarify that the requirements apply only to governmental entities.
These provisions are often tacked on to consumer choice legislation, according to Judish. Some of the bills also prevented the use of the word “certified” unless issued by the state. “That caught people’s attention,” said Cunningham.
While the association has many members after just one year, it is difficult to stay up on the legislation, such as state associations not tuned in. States move quickly, Judish said, and it is not feasible for the PCC to be everywhere. Members of the PCC are reaching out to stakeholder groups to focus them on the potential of such bills.
