Licensing Vs. Certification

Reprinted with permission from
"Legal Guidelines for Unlicensed Practitioners" by Dr. Lawrence Wilson

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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.

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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.

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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.

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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.

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Certification is not a permission to act, but rather a statement of completion or qualification.

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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.

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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'.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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I hope the acupuncturists reading this text see the folly of involving the government to limit the practice of acupuncture.

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SUMMARY

The definitions, features and implications of licensing and certification are summarized in the following chart for quick reference.