FTC Pushes for Occupational License Portability
In September 2018, the Federal Trade Commission (FTC) published a policy statement addressing antitrust concerns related to limitations on occupation license portability (FTC Report). The FTC Report reflected a long-term enforcement policy involving challenges to decisions by state licensure boards that the FTC believed took anticompetitive positions in an effort to restrict qualified practitioners from obtaining licensure. The FTC Report indicated that in many instances, limitations on licensing portability curtails price competition among licensed professionals and adversely affects both consumers and qualified service providers.
The FTC cited the problems reported by spouses of military personnel as an example of why license portability is needed. Military personnel are typically transferred from one location to another every two to four years. A military spouse may have a valid occupational license in one state and then move to another state with similar licensure requirements. However, the military spouse will have to apply for and obtain a license in the second state in order to practice his or her profession. Although some state licensure boards have assisted professionals with existing licenses in other states by adopting temporary or expedited licensing procedures, this is not typical. When a licensed professional moves to a new state, the licensure procedure is often lengthy, time-consuming and expensive. Additional course taking and or testing may be required even though the applicant has completed similar courses and tests in another jurisdiction.
The FTC recognizes that states have the right to establish occupational licensure requirements, but urged state licensure boards, legislators and organizations such as trade association and professional societies, to work together and establish joint programs to enhance occupational licensure portability. The FTC noted that using model laws and interstate compacts as a basis for licensure are available options but cited the nursing and accounting professions as examples where national professional organizations and national organizations of state licensing boards worked together and developed programs which enhanced licensing portability and at the same time enabled the state licensure boards to maintain the ability to sanction practitioners who engage in unethical or deceptive practices.
Trade associations and professional societies which have occupational certification programs should review the FTC Report “Policy Perspectives Options to Enhance Occupational License Portability" and consider adopting an affirmative action program to enhance license portability. If there are multiple certification programs currently in use within a given occupation, the push for portability will result in an effort to harmonize the existing programs and establish a unified program. If your program is one of the multiple programs competing in the same profession, you need to get involved in the harmonization movement from the outset or face the prospect that harmonization will cause your program to fall by the wayside. Technological advances, changes in consumer demand requirements and a continued push by the FTC and consumer groups will result in greater emphasis on occupational license portability. The continued viability of an association’s or professional societies certification program may well be dependent on how that program recognizes the need for flexibility and meets occupational certification portability requirements.
For further information, please contact Steve Fellman at sfellman@gkglaw.com.