Its mission statement is clear. The Board of Professional Counselors and Therapists in Maryland has the responsibility to “protect the citizens of Maryland.” Like similar boards in other states, it licenses practitioners and attempts to ensure that they follow codes of ethics and guidelines for responsible behavior in dealing with their clients. But the mere existence of a board with a laudable mission is just a starting point. There are no guarantees that it will actually deliver.
A December 2017 legislative review of the board and an earlier audit in Maryland point to substantial breaches in delivery. “They’re not tracking complaints that they receive, and it takes a long time to look at complaints,” says Maryland Auditor Thomas Barnickel. His previous April audit, for example, listed “untimely action” in nine of the 15 complaints the audit tested. This included three that were not submitted to the Office of Attorney General, “even though the board recommended at least 10 months earlier they should have been referred to OAG for administrative action [including license revocation].”
Maryland is only the tip of the iceberg when it comes to difficulties with the 1,800 professional and occupational licensing boards in the U.S., which are largely dominated by the men and women who are part of the very professions being governed. Though problems aren’t universal, it’s difficult to balance the interests of members of a profession who deliver specified services with the interests of the public who receive those services. On top of that, many licensing boards are thinly staffed; board members, who are often unpaid or poorly paid, usually have significant subject knowledge but lack essential managerial skills.
The range of problems these weaknesses cause is wide and deep. A 2016 performance audit of the Nevada State Board of Dental Examiners, for instance, found almost no oversight of board decisions, poor documentation within disciplinary files and the absence of organized filing methods. Licensees were also often overcharged for investigations. Although the board had a goal of resolving complaints within 90 days, it took on average over 400 days to settle disciplinary matters.
A particularly biting special report came out of the Iowa Office of Ombudsman a year ago. That state’s 36 licensing boards cover a variety of medical professions and other occupations, such as massage therapists, plumbers and sign language interpreters. The problem, the report found, is that many of Iowa’s boards operate “in the shadows” with little accountability. “Are the boards focused on the complainants? I’d have to say no. That’s not really a big focus,” says Andy Teas, legal counsel for the ombudsman office and the lead writer of the February 2017 report. Since it came out, complaints to the ombudsman’s office have increased by about 55 percent.
One approach that has the potential for improved monitoring and oversight of licensing board activity is centralizing their work. For example, states can create a singular office that acts as an umbrella to oversee licensing board actions, such as the handling of complaints. Some states, like Arizona and Colorado, are quite centralized and provide more management oversight, which increases board effectiveness and the attention to public concerns. This kind of attention from state agencies can help make sure that technology is adequate, reports are completed on time, online files are fully documented, and complaints receive timely and even-handed treatment.
In Maryland, the Board of Professional Counselors and Therapists is trying to address its problems in part by creating a new tracking system for complaints and applying other management improvements.
Despite the problems in many state licensing boards, their numbers are growing, which can present additional challenges. Back in 2015, Morris Kleiner, the AFL-CIO Chair in Labor Policy at the University of Minnesota, told us he was concerned about the expansion in the number of state licensing boards and their subsequent costs. Today, he sees another related problem in the way professionals on boards deal with complaints against their peers. “There are few individuals who are disciplined by boards,” he says, “and it’s extremely rare for individuals to lose their license.”
As much as the issue of licensing and professional boards is not a brand-new one, it’s likely that states will find they need to manage this aspect of governance more closely in the near future. The impetus for that focus will be fallout from a 2015 U.S. Supreme Court decision in which the North Carolina State Board of Dental Examiners faced off against the Federal Trade Commission. The case involved the ability of a board dominated by licensed practicing dentists to prevent non-dentists from offering teeth whitening services and products. By ruling against the dentists, the Supreme Court alerted states that they could run afoul of antitrust laws unless they supervised the actions of a board dominated by the profession or occupation it licensed. Previously boards had been immune from antitrust actions. “This is really important and will occupy occupational regulation for years to come,” says Kleiner. “It makes the state government look at boards in a different way and will help make sure they’re looking after the interests of consumers.”