Competitive Private Professional Certification Act Exposed

The Competitive Private Professional Certification Act was considered by ALEC's Commerce, Insurance and Economic Development Task Force at the 2011 States and Nation Policy Summit on December 1, 2011. This bill was part of the ALEC task force agenda between 2010 and 2012, but due to incomplete information, it is not known if the bill passed in a vote by legislators and lobbyists at ALEC task force meetings, if ALEC sought to distance itself from the bill as the public increased scrutiny of its pay-to-play activities, or if key operative language from the bill has been introduced by an ALEC legislator in a state legislature in the ensuing period or became binding law.

ALEC Draft Bill Text

Summary

Government licensing of professions is often justified on the basis that it protects health and safety and that it allows members of a profession to signal that potential customers can be assured of a minimum level of quality. This arguably enhances market outcomes and opportunity. On the other hand, licensing has the effect of creating monopoly-type benefits for those in a licensed profession at the expense of consumers and at the expense of others willing to provide a quality service. Often, economists have recommended certification as an alternative to licensing but certification is difficult to enforce privately with reliance on civil action. Government certification looks a lot like licensing. This model bill proposes private certification enforced by criminal law. There can be multiple private certifying organizations for similar professions and individuals could practice a profession without any certification at all (unless the profession is licensed). Professionals can signal quality with their certification credentials credibly enforced through criminal law while not blocking others from practicing the profession.

Model Legislation

Section 1. {Definitions}

(A) The term “private professional certification” is a non-transferable credential granted to an individual by a private certifying organization that indicates the individual is well qualified to practice a profession within a scope of professional practice as defined by the certifying organization.

(B) The term “private certifying organization” is any organization that:

(1) is non-governmental,

(2) allows any individual to apply for a certification credential regardless of gender, race, or ethnicity,

(3) requires bona fide minimum qualifications and/or criteria that an individual must meet, beyond mere registration and/or payment of a fee, in order to gain certification,

(4) defines a scope of professional practice appropriate to each class of credential granted to individuals,

(5) makes credentialing requirements and scopes of professional practice readily available to the public, and

(6) requires that privately certified individuals in good standing prominently display their credentialed status and make available credentialing requirements with the appropriate scope of professional practice.

Section 2. {Punishment and Allowances}

(A) Any individual who knowingly and falsely claims a private professional certification as defined by this section is guilty of a felony punishable by a maximum of five years in prison.

(B) Notwithstanding any other law, no individual with a private professional certification may be prevented from practicing the credentialed profession by any agency or subdivision of this state.

(C) Unless otherwise established in state law, no agency or subdivision of this state may prevent an individual from practicing a profession due to that individual’s lack of a private professional certification credential.

Section 3. {Severability clause}

Section 4. {Repealer clause}

Section 5. {Effective date}