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Omdahl: Licensing boards face two challenges

By Staff | Aug 4, 2017

According to the Office of the Governor, North Dakota has 45 boards, commissions and entities charged with licensing various professions to protect the health and welfare of the consuming public. These boards are currently facing two challenges.

A well-funded group of libertarians are arguing that many of the licensing boards ought to be abolished so that more people could practice without qualifying for a professional license.

The proposal is being passed off as a jobs program but the real motive is opposition to government regulations of any kind, including licensing of professions. They want more of a free market in the personal service industry.

They get fodder for their case from states like Illinois where licensing has run rampant and professions are called professions that are hardly professional.

That is not the case in North Dakota. A review of our 45 licensing boards indicates that the state is requiring licenses for professions that need more than street knowledge.

Since North Dakota cannot be accused with overreach in license requirements, this issue will not go far in the Legislature. However, a recent U. S. Supreme Court decision poses a more serious challenge.

The controversy started when the North Carolina Board of Dental Examiners controlled by dentists issued a “cease and desist” order to non-dentists who were engaged in teeth whitening.

The Federal Trade Commission ruled that the Board’s action constituted an unreasonable restraint of trade and violated federal antitrust laws. By a vote of 6-3, the Supreme Court agreed that licensing boards controlled solely by the professions were a threat to the free market.

The solution to this problem, according to the FTC, is tighter state supervision of the boards. The North Dakota Legislature is now studying methods by which the state supervision requirement could be met without revamping all of the licensing boards.

North Dakota law gives professions outright control of 43 of the 45 boards. Of the 274 members serving on the 45 boards, 55 are designated as consumer representatives. The only licensing units that could be controlled by consumers under present law are the Aeronautics Commission and the Board of Abstractors.

There is no doubt that the legislative interim committee will leave no stone unturned to preserve the present board structure. It seems that the choices facing the interim committee are either closer state review of all decisions made by boards or requiring a majority of nonprofessionals on every board.

Requiring all licensing boards to load up on consumers may sound great to some reformers but that solution is unworkable. Perhaps most boards could add two or three nonprofessionals but that would be about the limit for most of them.

Take the nine-member State Board of Nursing Home Examiners, for example. To represent this important profession, the Board has the following representatives: one physician, one hospital administrator, four licensed home administrators, a nurse, the State Health Officer and an executive from the Department of Human Services.

In the first place, boards of eight or more members are already cumbersome so this board is already pushing the limit. To meet Supreme Court requirements, 10 nonprofessionals would have to be added, making it a 19-member assembly. Unworkable!

Right now, the Legislature’s interim committee is faced with defining what constitutes state supervision. What does that mean? How much oversight is needed? It will be necessary to strike a delicate balance between the Court’s mandate and preserving the present system.

Since these licensing boards don’t deal directly with consumers, most citizens are unaware and unconcerned about their performance even though they are important for the quality of health care, education and scores of other services in North Dakota.

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