Licensure in Therapeutic Recreation:

Issues and Current Status

By Norma J. Stumbo, Ph.D, CTRS

"Approximately 800 occupations in the United States are regulated by states, not to mention those subject to federal or local regulation" (Shimberg, 1982. p. 15). The proliferation of credentialing regulation within the professions, especially those in the health care arena, indicates both the necessity for, and popularity of, occupational control. Therapeutic recreation is just beginning to embrace professional regulations as a positive and viable method for defining and upgrading its services. While the National Council for Therapeutic Recreation Certification (NCTRC) has an established national credentialing plan for therapeutic recreation personnel, several states have obtained, or are attempting to obtain, state licensure or certification. Currently, the Illinois Therapeutic Recreation Section is examining the possibilities of initiating a licensure bill within the state. The purpose of this article is to outline some of the issues and concerns surrounding licensure, and to help educate the membership about the advantages and disadvantages of state regulation.

What is Licensure?

Credentialing is an umbrella term used for any type of program which defines and recognizes professional competence. The four common types of credentializing programs include: licensure, certification, registration and accreditation. Utilization of one form does not prohibit others; that is, any given profession may use two or more mechanisms for credentialing individuals based on the profession's needs. And, in fact, most health care professions rely on two or more approaches.

Licensure is "the process by which an agency of government grants permission to an individual to engage in a given occupation upon finding that the applicant has attained the minimal degree of competency necessary to ensure that the public health, safety, and welfare will be reasonably well protected" (U.S. Department of Health, Education and Welfare, 1977, p. 4). Licensure is the most restrictive form of credentialing, as it requires state governments) to enact legislation defining professional practice. Since the law establishing the license for a profession typically defines the "scope of practice" covered by the act, licensing laws are often referred to as "practice acts" as opposed to "title acts" set forth by certification programs (Shimberg, 1982, p. 15). As such, licensing prohibits any individual from engaging in the activities covered by the "scope of practice" definition without permission from a governmental agency, and certification restricts unqualified individuals from using the regulated title(s).

The Licensure Process

Each state has some form of regulatory agency which oversees the credentialing needs of the state and of particular professions. These regulatory agencies provide several useful functions, which may include: a) screening applicants to insure they possess at least the minimum qualifications for safe practice; b) setting practice standards and codes of conduct for practitioners; c) investigating charges of incompetence or impropriety against licensees and taking appropriate disciplinary action where warranted; and d) overseeing the operations of the entire licensing program. In some cases, states have a central agency which oversees all licensing programs, while other states have separate governing boards for each regulated profession. The type of administrative structure may effect the licensure program by dictating the adminstrative and fiscal autonomy of its operations. In Illinois, there exists an agency, called the Select Joint Committee on Regulatory Agency Reform, which supervises and controls all licensing activity within the state. As such, it is the most restrictive and comprehensive type of regulatory structure.

In addition, each profession typically has a licensing board consisting of five to ten consumers, professionals and other interested individuals who advise the regulatory agency on the needs of the profession. Their terms of appointment, qualifications and responsibilities are detailed in the licensing act. In Illinois' case, the licensing boards usually serve in an advisory capacity only, given the nature of the comprehensive regulatory agency.

Typically, a professional organization or group of professionals initiate the original licensure bill. The language and intent may be taken from model acts (such as the National Therapeutic Recreation Society's Model Licensure Act) or from other state acts (such as the Utah and Georgia licensure acts for therapeutic recreation personnel). Before the act is voted upon, the regulatory agency mandates that a uniform set of questions be addressed by the initiators. These questions usually center around the need for the proposed regulation, the protection of the public, the motivations of the profession, plausible alternatives to regulation, costs to the state and to the consumer, standards for entry and the like. Once the questions are addressed by the initiators, the regulatory agency decides whether the legislation is truly necessary to protect the interests of the consumers.

Proving that state regulation is needed is not an easy task for any profession. Several barriers are in place which purposefully restrict an occupation from gaining this type of recognition. These barriers are issues that each profession must realistically face when seeking approval of the regulatory agency. The following discussion highlights a few of these issues, and specifically relates them to therapeutic recreation.

The 19 Questions Asked by the Illinois Joint Committee on Regulatory Reform in 1981 1. Why is licensure, certification or regulation being sought? Who seeks it? 2. What harm is caused the public by the absence of regulation? 3. What are the public or consumer benefits from this proposed legislation? 4. Is the harm and are the benefits clearly and easily recognizable or are they dependent upon tenuous argument? 5. Is this bill, as written, fully consistent with the letter and the spirit of the sunset act (P.A. 81-999) and sunrise act (P.A. 81-1131) including the statements of legislative intent? 6. Do other jurisdictions regulate this occupation? Which jurisdictions and in what ways? Does the federal government mandate or encourage by express policy statements the licensure of this occupation? 7. What harm is created in jurisdictions which do not regulate in comparison with jurisdictions that do? Conversely, what benefits are there to the public in regulated jurisdictions which do not accrue in non-regulated jurisdictions? 8. What are the anticipated administrative costs of licensing this occupation? What are the costs in other licensing jurisdictions? 9. What are the costs to the public in terms of direct costs of the service or indirect costs and as insurance premiums? Are insurance payments mandated by this bill? 10. What alternatives would accomplish the essentials of public protection with less cost and less use of the state's regulatory power? (e.g. criminal code; fraud; malpractice, etc.) 11. Does this profession have an established code of ethics? Who administers this code, if there is one, or takes disciplinary action? What disciplinary standards and practices are in force? 12. Are there any forms of voluntary regulation or self-regulation? Have these failed? How could they be strengthened without invoking the state's police power? What incentives could be created? 13. What other state laws affect this occupation or are affected by it? Do these laws provide adequate consumer or public protection? If not, why not? How could they be strengthened without creating a regulatory function? 14. What access routes are there to this occupation? What are the minimum educational standards and methods? What are the minimum experience standards and kinds? 15. How does this bill, as written, provide for access? Is a monopoly created for certain educational institutions or methods? Is minimum competency accurately gauged? Is the bill, as written, in conformance with equal employment opportunity requirements currently in force? Affirmative action? What standards are proposed for continued or continuing testing or competency standards?What accreditation procedures are proposed or applicable? How will adherence be monitored? 16. What fees will be charged to practitioners? Will these fees, based on the current number of practitioners, defray the state's cost in total? 17. How will state regulation assure that practitioners are competent? 18. Does this bill, as written, recommend: licensure (most restrictive form), certification (moderately restrictive form), registration (least restrictive form)? Is this level optimal, in the public interest? 19. What liability do practitioners incur? Are bonds or insurance required or available? What is the impact of regulation on that liability? What liability will the state incur if it regulates?

Licensure Issues

Protection of the Public

The group proposing a licensure bill must usually convince a legislative body that the consumer or public is being harmed by the lack of regulation. The rationale used to promote passage of practice acts is to ensure that practitioners are competent, and to protect the public against fraudulent or wrongful acts by the credentialed professionals. Proving potential or actual public harm is difficult for two reasons. The first is that most professions do not have accurate records of clients or patients (the public) being harmed by non-licensed or non-regulated practitioners. Most professions have a difficult time documenting the unethical or negligent conduct of practitioners who are credentialed and identified as professionals, let alone those who practice without receiving proper authority. While most supporters of licensure suggest that their motivation is one of protecting the public from harm, opponents suggest that the primary reason is the restriction of entry into the profession. Those proposing licensure legislation for their occupations have been hard-pressed to prove opponents wrong on this count.

Limiting the Number of Credentialed Professions

The second reason licensing legislation is difficult to obtain is the fact that many state legislatures and consumer groups have begun to scrutinize the proliferation of licensing acts and have made it more difficult for "new" professions or occupations to get appropriate legislation passed. In the early 1970's the American Medical Association, the American Hospital Association and the Department of Health, Education and Welfare (DHEW) promoted a moratorium until 1975 on further licensing legislation. Despite these efforts, 62 new licensure bills were introduced in 30 states in 1972, with 11 being enacted into law. In 1974, 30 new laws were enacted (Falk et al, 1979, p. 8). While some professions have been minimally successful, these early moratorium attempts have served to severely limit the number of occupations being licensed and have increased the requirements for justification. Several states, including Illinois, now employ a lengthy list of criteria the profession must

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address prior to being approved.

Another factor which the legislature uses to limit professions once they have obtained a licensure act is called Sunset legislation. The unusual feature of Sunset legislation is the enactment of a law which mandates termination dates for specified agencies and programs, including occupational licensing. That is, there is an expiration date for each licensure act, such as five years from the date of approval. Prior to the expiration date, the profession must prove the bill's usefulness in order to retain it; if this cannot be proven, the act is terminated and the licensure status is lost.

Reciprocity and Endorsement

Since licensure is a state-by-state function, individuals are licensed within one particular state. Unlike national certification, an individual would need to obtain a new license each time employment is sought within another state. When individual states do not have similar or identical licensing acts, problems may exist for practitioners who are looking to relocate within a different state. Opponents claim that state licensing programs create a "patchwork system of regulation across all States which impedes interstate mobility of practitioners and contributes to confusing variations in levels of competence (Falk, Weisfeld & Tochen, 1979, p. 8). This is an unfortunate circumstance for the practitioner trying to meet these requirements, as well as the consumer who probably does not comprehend the differing qualifications of each state.

The difficulties inherent in state law discrepancies can be managed by proper foresight in the drafting of a reciprocity or endorsement clause within the state licensure bill. For example, in therapeutic recreation, care can be taken to review existing licensing and certification bills (such as Utah, Georgia and North Carolina) as well as the model NTRS act. This type of review should address similarities and differences between proposed and existing acts and plot a course of action to be documented in the licensure bill.

Standards for Entry

Licensure standards for entry into the profession are usually set forth in a statute. Theoretically, the standards constitute the judgment of the legislature as to what minimum qualifications the applicant must possess in order to be licensed and practice in the profession. Realistically, these standards are dictated by the profession wishing to obtain licensure. This may be a group of educators, practitioners and other interested parties within the state, or they may reflect the views of a national association which prepares model legislation for introduction at the individual state level (Shimberg, 1982).

Commonly, standards for entry include some combination of education, experience and an examination (the three E's of credentialing). Additionally, standards may include citizenship, residency and good moral character requirements.

It may be useful to state here that the primary concern of all credentialing standards, including those for licensure, must be their job-relatedness. The initiators of the legislation and the subsequent governing board must be able to prove a relatively high degree of job relatedness for every aspect of the required standards. Standards may not be capricious, unjustifiable or based on 'tradition' or 'custom.' Every applicant who is denied licensure has the right to test the job-relatedness of the standards in court and, therefore, documentation should be kept which provides the process and rationale for setting standards. Since licensure almost always includes an examination, cautions concerning the validity, reliability and fairness of the test should also be noted. This often requires the expertise of a psychometrician or test expert.

While ensuring job-relatedness may sound like a relatively simple endeavor, it is not. Credentialing groups often spend years creating the initial standards and then several more years revising the standards to keep abreast of current events in the field. For example, national credentialing standards for therapeutic recreation have been in effect since 1956, with revisions occurring almost annually during the last ten years. The NCTRC's decision to implement a national certification examination only increases the need to continually monitor the job-relatedness of the qualifications. It is not difficult to see that implementing a testing program, whether it is for national certification or state licensure, requires some degree of expertise, as well as diligence.

Grandparenting

"Grandparenting" is another issue and concern in the initiation of a licensure program. If a grandparent clause is included in the licensing act, current practitioners or incumbents are exempted from meeting the new requirements and are automatically awarded the license. This practice, although widely used, warrants several considerations. First, grandparenting allows two groups of individuals, those who have met the new requirements and those who have not, to hold the same credential. While they have not met the same requirements, these two groups are presented equally to the consumer. Second, newer standards of entry tend to be higher than former standards, so those who must meet the newer requirements are more restricted from entering the field. The supply of entering professionals may be limited artificially by the standards of entry. Third, the previous two reasons combine to allow incumbents to profit the most from grandparenting clauses. They remain in the field without proving continued competence, the competition is minimized and they gain economic benefits from a limited labor force. Boards who implement grandparenting clauses are more open to scrutiny concerning their motivations for initiating a licensing program (Shimberg, 1982).

These are just a few of the issues to be

faced when attempting to initiate a licensure bill for a given profession. Others include the extended time and effort involved (it takes approximately seven years to get a licensure bill passed), the financial cost to the organizational group and concessions to other licensed or unlicensed professions which may be opposed to therapeutic recreation obtaining licensure. The largest hurdle, however, may be the decisions which need to be made at the outset, such as the type of credentialing program needed, the definition or scope of practice and the logistics of operating the program. It is obvious that these barriers are not insurmountable, as other states have credentialing programs for therapeutic recreation personnel. Not surprisingly though, these programs differ widely.

Licensure and State Certification
for Therapeutic Recreation

The State of Utah was the first to obtain state licensure for therapeutic recreation personnel in May of 1975 through the authorization of House Bill 361 (Rubio, Kelsey & Barnhart, 1976). The State of Georgia quickly followed in 1980 with its own mandatory licensure bill for therapeutic recreation personnel, in addition to the existing voluntary certification bill for "recreationists" which had existed since 1968 (State of Georgia, 1988). In March of of 1986, the District of Columbia received approval for a district registration plan for therapeutic recreation specialists and assistants (Howard, Mueck & Williams, personal correspondence, 1986). The State of North Carolina also approved a state certification program for therapeutic recreation specialists and assistants in 1986, to become effective January 1, 1990 (State of North Carolina, Session Laws, 1986). In addition, at least two states, Ohio and Nebraska, are attempting actively to achieve licensure or certification legislation at this time (Hanzlicek, 1988, personal correspondence; McPike, 1989, personal correspondence).

These state efforts have been aided by the Licensure Committee of the National Therapeutic Recreation Society (NTRS). Acting as a national clearinghouse for state efforts, this committee created a model Therapeutic Recreation Practice Act in October 1985 (NTRS, 1985). Included in the work are sections on purpose, board structure and operation, qualifications of applicants, fees and disciplinary actions. This model has provided a foundation from which states may create and build a practice or title act to suit the individual state's needs.

The Utah and Georgia bills are the most similar, being implemented prior to the development of the NTRS Model Practice Act and both being licensure acts. However, it is obvious that the District of Columbia registration plan

and the North Carolina certification plan have borrowed heavily from the NTRS Act. For example, the Utah and Georgia acts uphold the "therapy" definition of therapeutic recreation services (a process which brings about a desired change in behavior) while the NTRS, D.C. and North Carolina acts adhere to the "service continuum" approach (improve behaviors to establish and express an independent leisure lifestyle). The credentials awarded also differ among the five plans, (Utah has four levels; Georgia has three and NTRS, D.C. and North Carolina each have two levels), as well as the titles at each level. Board compositions (ranging from nine to four members) and fees (ranging from $15 to $50) also vary.

Perhaps the most profound difference is in the standards for entry. Little similarity is seen here and while all require some form of education, experience and examination, the actual standards differ significantly. For example, beyond education and experience requirements, Utah's bill states that every applicant must provide satisfactory evidence that s/he: "a.) is of good physical and mental health; b.) is of good moral character; c.) is at least 18 years of age; d.) has not been convicted of any crime involving moral turpitude; and e.) has satisfactorily completed an oral examination prepared by the board for such a license." No other bill mentions these personal requirements.

More distinctions may be found between the plans upon examination of the original statutes. These differences indicate that a great deal of discretion is given to the initiators concerning the language and intent of credentialing plans. Some of these differences are also attributable to varying state laws and procedures. It is also often a common practice for licensure bills to change significantly based on input from other professions. It does behoove the concept of reciprocity to align with current plans as much as is feasible for a given state.

Illinois Credentialing for
Therapeutic Recreation Personnel

In November 1980, the 14-member ITRS Credentialing Sub-Committee initiated a registration bill and met to review the language and intent of the proposed House Bill 1487. Following this meeting, both the language and intent were changed, primarily modifying the plan to one of certification as well as requesting two levels of certification instead of six, (a move made simultaneously with the national change from the NTRS Voluntary Registration Plan to the NCTRC Certification Plan.) The response from the Illinois Joint Committee on Regulatory Reform was to request ITRS to answer 19 questions regarding the justification of introducing a state credentialing program for therapeutic recreation personnel, both in writing and at a public hearing on January 15, 1981.

It was felt that ITRS did not adequately address these issues to the satisfaction of the Committee as the proposed certification bill was not passed. In a statement released on March 30, 1981, the Select Joint Committee on Regulatory Agency Reform voted unanimously to

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defeat the Act for four reasons: 1.) proponents of the proposal failed to demonstrate that un-regulated practice significantly harmed or endangered the public; 2.) a similar certification program was privately operated by NTRS; 3.) only two states regulated the occupation; and 4.) creation of the proposed regulatory program was not required for the protection of the health, safety and welfare of the citizens of the State.

The ITRS membership is once again discussing the need for seeking a state credentialing bill. Members need to ponder their motiviation, delineate the benefits and pitfalls of the process and decide the future course of action. Minimally, these options include: a.) attempting implementation of licensure bill; b.) attempting implementation of certification bill; c.) attempting implementation of registration bill; and d.) attempting no further state regulation, relying solely on national certification. Through formal and informal hearings conducted through the fall and winter of 1989-90, these determinations will be made by the ITRS membership. Careful consideration and extensive deliberation must occur prior to any action. This article has, hopefully, highlighted some of the more important issues and concerns surrounding licensing and will provide a springboard for these deliberations.

ABOUT THE AUTHOR Dr. Norma J. Stumbo, CTRS, is Chairperson of the Licensure Task Force for the Illinois Therapeutic Recreation Section and is an Assistant Professor in the Park and Recreation Administration Department of Illinois State University at Normal. Dr. Stumbo's article is a condensed version of a White Paper commissioned by, and available from, the Illinois Therapeutic Recreation Section. The author would like to thank the following reviewers for their time and effort in providing invaluable input which greatly enhanced the quality of the paper: Rose Hanzlicek — Lincoln, Nebraska; Gary Koenig, Jeff Levy, Patricia Malik, John McGovern, Kathy Mulligan and Carolyn Nagle — Illinois.