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Conaway, Raskin, and Cicilline Introduce Legislation to Reform State Occupational Licensing Boards

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Washington, D.C., October 23, 2020 | comments

U.S. Representatives Mike Conaway (R-TX-11), Jamie Raskin (D-MD-08), and David Cicilline (D-RI-01) today introduced the Occupational Licensing Board Antitrust Damages Relief Act to prevent individual members of state occupational licensing boards from being sued for antitrust damages in their personal capacities. In 2015, the Supreme Court ruled in North Carolina State Board of Dental Examiners v. FTC that “if a ‘controlling number’ of a board’s members are active participants in the business it regulates, they could be sued as antitrust violators.” There are nearly 2,000 occupational licensing boards in the United States, according to a comprehensive 2017 study, which found that 85% of them mandate that their board members must actively work in the regulated occupation in order to serve. These people, rendering an essential public service and maintaining professional and occupational standards, are now being put at risk.

Since the 2015 ruling, there have been dozens of lawsuits brought against individual board members seeking antitrust treble damages for board actions and rulings. The Supreme Court decision and subsequent lawsuits are likely to produce a long-term corrosive effect on the maintenance of critical professional standards as state boards struggle to find qualified board members willing to risk significant personal liability and the personal financial costs of defending themselves in litigation even when courts ultimately find lawsuits against them to be unfounded. 

The bipartisan Raskin-Cicilline-Conaway legislation seeks to address these problems. It creates a national framework that will allow state occupational licensing board members to operate without the threat of treble damages or personal liability while still ensuring that the boards themselves are responsive to state governmental oversight, the professionals they regulate, and the wellbeing of the public. The bill requires that, to be immune from such liability, state licensing boards must be created by law and:

  • Have all members of the board appointed by governmental officers;
  • Include members of the public who are not market participants in the regulated profession;
  • Provide mechanisms to contest board actions that include the opportunity to introduce and rebut evidence, receive a written decision from the board, and appeal any decision to an independent adjudicator, including a court.

"Those who serve on state licensing boards perform a public service by ensuring that our products and services are delivered in a safe and reliable manner,” said Rep. Conaway (TX-11). “This bill upholds oversight and accountability of the board as a whole without jeopardizing the personal property and liability of its individual members. As a former Chairman of the Texas State Board of Public Accountancy, I have seen first-hand the important role these boards play in ensuring public trust and accountability. Our nation needs qualified and professional board members who deserve to serve without putting their personal property at risk. I am pleased to be working with Reps. Raskin and Cicilline on this bipartisan initiative, and encourage my colleagues on both sides of the aisle to support our legislation.”

“In Maryland, the state oversees 21 public licensing boards that regulate the activities of more than 255,000 individuals and businesses, such as architects, barbers, cosmetologists, electricians, landscapers, locksmiths, pilots, plumbers, and tax preparers,” said Rep. Raskin, a Member of the House Judiciary Subcommittee on Antitrust, Commercial and Administrative Law. “The hardworking people on state licensing boards uphold standards of quality and competence essential to the public interest. They should be able to both do the work they love and serve on their respective occupational licensing boards without suffering fear of personal liability. I look forward to working with Reps. Cicilline and Conaway to bring forth our legislation.”

“Today, nearly a third of jobs require licensure, including many jobs that have little impact on public health or consumer safety,” said Rep. Cicilline, Chair of the House Judiciary Subcommittee on Antitrust. “Although there are many benefits associated with establishing credentials for professions—particularly those with important public health and safety considerations—excessive licensing can create barriers to entry in the workplace, impose additional costs on workers, and result in job losses. I firmly believe that we must explore every path for creating economic opportunity for working Americans---this legislation is an important step in that direction. It will ensure that licensing requirements are effective and reasonably tailored, provide legal certainty for board members, and preserve the availability of robust antitrust enforcement to stop illegal behavior. I thank Congressman Raskin for his leadership on this legislation.”

The legislation is supported by the following organizations: American Institute of CPAs, American Physical Therapy Association, American Psychological Association, American Veterinary Medical Association, Association of State and Provincial Psychology Boards, Council of Landscape Architectural Registration Boards, Federation of Podiatric Medical Boards, Federation of State Boards of Physical Therapy, Federation of State Medical Boards, National Association of State Boards of Accountancy, National Athletic Trainers’ Association Board of Certification, Inc., and National Board for Certification in Occupational Therapy, Inc.

Click here to view their letter of support, which states: “Passage of this legislation will ensure that all volunteer members, including those representing the public, of state regulatory boards are not deterred from civic-minded service because of the potential for personal monetary damages.” The letter continues: “Our organizations believe that this legislation is a balanced approach to competition policy that retains enforcement mechanisms against anticompetitive activities while ensuring that current and prospective state licensing board members will continue to be willing to serve and are not dissuaded because of uncertainty over any potential personal liability arising from their public service.”

Bill text is available here. A section-by-section overview is available here.

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