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Licensing Vs. Certification
Reprinted with permission from
"Legal Guidelines for Unlicensed Practitioners" by Dr.
Lawrence Wilson.
LICENSING
A license is a permission to do
something that otherwise is forbidden. In most cases, a license is required
or mandatory for engaging in that activity. For instance, a
drivers license is considered mandatory to drive a car on the public
roads. An exception is that a house may be built by someone who is not a
licensed contractor.
A license is given by the government, and is a government
privilege. It therefore presumes that the activity in question is a
privilege, not a right. The privilege may be bestowed by the federal,
state or local government.
A license involves the police power of the state. That is,
if one violates the licensing law, either by acting without a license,
or failing to uphold the rules governing the license privilege, one is
subject to prosecution under the civil or criminal laws of the governing
body.
The purpose of licensing, whether admitted or not, is to restrict
entry and control a profession or activity.
CERTIFICATION
Certification is a statement or declaration that one has
completed a course of study, passed an examination, or otherwise met
specified criteria for certification.
Certification is not a permission to act, but rather a statement of
completion or qualification.
Certification is a private matter, issued by a private organization.
It does not involve the police power of the state, and is not a state
privilege.
Certification is based on the premise that there is a right to work.
Certification only provides the consumer with more information about a
practitioner. It also gives practitioners a way to increase their
competency through a course of study and exams, and to advertise or
inform others of their completion of this course of study.
The purpose of certification is mainly to set standards, educate
practitioners and inform the public. It may, however, be used to control
entry if combined with state laws. See the section below on
'combinations'.
REGISTRATION
Registration is similar to certification. Dietitians, for example,
are registered in most states. The registering organization, the
American Dietetic Association, is a private group. The government is not
involved. Information in this chapter regarding certification applies to
registration as well.
IMPLICATIONS OF LICENSING VERSUS CERTIFICATION
Licensing presumes that an activity is forbidden until it is
permitted through a license. Certification presumes that an activity is
permitted by right. It presumes a right to work. In chapter 9, it will
be explained that this is a negative right to work. This means that one
is not automatically provided with a job. Rather it means that one
cannot be denied the opportunity to seek work.
Licensing increases the power of the government. The powers to decide
whom to consult for services shifts from the consumer to a government
licensing board. By the same degree to which it empowers the government,
licensing decreases the power of the individual consumer. Certification
empowers the consumer, not the government.
Licensing restricts entry into a particular field of activity.
Certification does not restrict entry at all. It merely informs and
distinguishes those who have completed courses or examinations
pertaining to a field of work.
Licensing provides a method of strict control of the behavior of
those in particular field of activity. If the licensees do not follow
prescribed rules, they risk loss of the ability to work at all.
Certification may be used for control. However, it is more limited. If
those who are certified do not follow certain rules, certification may
be withdrawn. However, they may still practice their trade, albeit
without certification.
COMBINATIONS
Certain groups, such as the acupuncturists, have a national
certifying agency. Many wish that state governments would pass laws
stating that only acupuncturists certified by this national group are
allowed to practice.
This amounts to a license. It restricts who can practice, it involves
the police power of the state, and it takes away the power of choice
from the consumer. The national organization basically becomes the
licensing board in a shared private/government agreement.
With this arrangement, the private certifying group will lose power
to the government. For if the government does not like what the private
group is doing, they will repeal their state law.
I hope the acupuncturists reading this text see the folly of
involving the government to limit the practice of acupuncture.
SUMMARY
The definitions, features and implications of licensing and
certification are summarized in the following chart for quick reference.
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LICENSING
- A permission to perform an activity.
- Generally is mandatory to perform the
activity
- Involves the police power of the
government.
- Presumes that working in the particular
field of activity is a privilege. Establishment of licensing
shifts the activity from a right to privilege. The
privilege is given and may be withdrawn at any time by the
issuing agency.
- Increases the power of government, and
reduces the power of the individual consumer.
- The purpose is to restrict entry and
strictly control the profession or activity.
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CERTIFICATION
- A statement of completion or meeting a
standard.
- Voluntary.
- Does not involve the police power of the
state.
- Presumes that working the field is a
right.
- Certification may be withdrawn at any time
by the issuing agency. However, this does not stop one from
working.
- Preserves and enhances the power of the
individual consumer to decide upon the practitioner of his
choice.
- The purpose is mainly to inform and
educate.
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For more information on certification and licensing go
to ANCB.NET.
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