Occupational licensing reform, stakeholder engagement, and more: Q&A with Utah’s Dept. of Commerce (Part 2)
Utah licensing reform
In Part 2 of Paul Leavoy's conversation with Margaret Busse and Jeff Shumway from Utah's Dept. of Commerce, they discuss how to overcome barriers to occupational licensing reform, how other states are streamlining licensing requirements, the importance of stakeholder engagement, and much more

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Occupational licensing reform has gained significant momentum across the U.S. since the Obama administration shed light on the impacts of occupational licensing in a 2015 report and urged states to take action.

But while many states approach reform in a one-off manner, Utah is taking an innovative and systematic approach with its Office of Professional Licensure Review (OPLR). Officially launched in July 2022 within the state’s Department of Commerce, which oversees occupational licensing, OPLR has a mandate of reviewing all of Utah’s licensed occupations at least once every 10 years and reviewing applications to establish new licensed occupations. Each year, the OPLR team identifies which occupations should be reviewed and provides the legislature with objective, data-driven recommendations on how licensure requirements can be improved, if necessary.

In this Q&A series, Margaret Busse, executive director of Utah’s Department of Commerce, and Jeff Shumway, director of OPLR, join Ascend Magazine Editor Paul Leavoy to discuss occupational licensing reform in Utah and the work of OPLR so far. They began their conversation by exploring the history of occupational licensure and licensing reform in Utah, the creation of OPLR and how it approaches prioritizing occupations for review, and the reasons behind the current shortage of mental health practitioners in Utah and how changing licensing requirements can help address it. Their conversation concludes with a discussion of how to overcome barriers to reform, how other states are streamlining licensing requirements, what’s next for OPLR, the importance of stakeholder engagement during the reform process, foreign credentialing, and more.

Note: this conversation has been edited for length and clarity.

Paul Leavoy: Can you talk about any notable examples of where existing licensure requirements became evidently out of date or unnecessary? 

Margaret Busse: One that jumps to mind is telehealth. There used to be strict requirements about what doctors and other health care providers could and couldn’t do and that they had to provide services in-office. The pandemic disrupted that, as we all know well, but it looks like telehealth can be viable and people should be able to do that, and it opens up services for people. So that’s an example. A lot of times it’s technology that’s bringing about changes and our regulations are behind.

Sometimes the hours that are set for certain training are a little bit arbitrary – is it 1,500 or 2,000 that makes someone safer? I don’t know. Maybe those marginal 500 hours are diminishing returns in terms of helping safety, but they cost a lot of money. That happened with our cosmetology regulation. A few years ago, it used to be 2,000 hours to become a cosmetologist, and they reduced it to 1,500. 

Paul Leavoy: When you’re trying to make modifications to licensing requirements, what kind of friction do you run into? How do you overcome the barriers when you’re trying to make changes? 

Jeff Shumway: Here’s the interesting thing: The natural constituency for licensing is the industry themselves, as we’ve talked about. But there are other natural constituencies that don’t necessarily get brought into the process as much. Consumer groups, people who care about mental health and suicide prevention, and others – they care a lot about this, and they may have different views. The providers who have to do the staffing and the supervision and are looking for the balance of an adequate supply and good quality – they’re a natural constituency, so we’re trying to draw them into the process. The insurance folks, both the public programs but also commercial – they have an interest in getting this right. I think there’s a bunch of constituencies out there that we don’t usually bring into licensing because it’s largely done between the industry-driven association and industry-driven board and the legislature.

I think there’s a much broader conversation to be had with a lot more stakeholders to say ok, what do we need? And once you get those people engaged, I think the conversation quickly turns away from how can we make treatment better for those we’re treating, to what is the need of the whole community? And that’s a really healthy shift. 

Paul Leavoy: Are there any other states that have made regulatory moves around streamlining licensure that you’ve found particularly inspiring or something you want to replicate?

Jeff Shumway: Looking at mental health, there’s some interesting things going on in a couple of states right now. A lot of folks are worried about licensure exams, specifically for social work. There’s a big brouhaha right now about disparate outcomes on the ASWB exam – ASWB is the board that runs licensure exams for most states – and that’s causing a lot of people to get creative. There are some states, I’m thinking of Texas, which say if you fail that exam but are within five percentage points of passing, you can move on and become fully licensed if you get an extra layer of supervision, and then your supervisor can sign off. They call this provisional licensing, and there’s a couple of states that have either gone to provisional licensing or have tried doing away with that exam. So there’s this interesting national experiment where you can look at how many people got licensed in the years running up and then how many people got licensed when they released that requirement. We’re seeing a doubling in some cases in those states where they got rid of the licensing exam requirement.

The other one that I think is fascinating is Nebraska, which took all the master’s-level mental health therapists and essentially said, you all have roughly the same scope of practice, at least in terms of health and safety, so we’re just going to call it one thing. You’re all going to be licensed professional therapists, or licensed clinical therapists, but then you have a voluntary right to title, so you can say you want to be registered or certified as a social worker, and no one else can call themselves a social worker. So they’ve streamlined the actual licensure but then they’ve still allowed right to title within the occupations.

Margaret Busse: It may be a little trite to say that states are the laboratories of democracy, but I think in this case they really are, and it gives us an amazing opportunity for this office to look at these sorts of natural experiments. Benchmarking other states is going to be an important part of the analysis. If it turns out that X state isn’t even licensing a profession at all and they’ve seen no harmful consequences, that might tell us something. It’s fantastic that we have access to what these different states are doing.

In terms of the overall approach, Colorado and Vermont have similar reviews but there’s still some differences. I think Texas might have something that looks at more regulations, not just occupational licensure but other kinds of regulations that they’re doing reviews on. The key that we think is really important is the analytical approach, the collaborative approach between the legislature and the executive branch, and the resourced approach. Many times, states will do a regulatory review and there are some temporary resources that are put towards that, but it’s not an ongoing, systematic, resourced approach. And I think that’s what’s key.

Paul Leavoy: What is the goal of OPLR?

Jeff Shumway: Our office is ongoing. The periodic review that happens every 10 years will keep cycling. We assume that life is going to change, and needs are going to change enough that that will be required once every 10 years.

Margaret Busse: We need to keep our regulations relevant. The biggest problem any regulation runs into is it becomes irrelevant. When you have any kind of regulation that has become out of date because new technology has come into play, or whatever it is, then you’re just hampering something for no good reason. It may no longer be doing anything to protect the public; it’s just creating pure economic waste. There should be an ongoing regulatory review process for everything, in my view, but it’s hard to do. It takes time. And there’s not the same kind of competitive forces that exist in the private sector. The only competitive force that we have is maybe comparing other states. In Utah we like to be regulatory-light so we might be doing that for that reason, but otherwise there’s not a lot of incentive to be looking at your regulations unless you’re just really committed to it. Or if it comes up on a one-off basis because somebody brings it up. But I think there’s a lot of economic waste that resides in lots of types of regulation. It’s not doing any good to protect the public, it’s just sitting there to hamper the economy.

Paul Leavoy: Can you give me any examples of how technology has rendered regulations out of date?

Margaret Busse: We talked a little bit already about telehealth. Another thing that the legislature has been looking at this last legislative session is the use of a new device that makes it easier to perform certain kinds of eye surgeries. It’s always only been trained MDs and ophthalmologists that could perform this type of procedure, and optometrists (who have a lower level of training) were arguing that with this new technology, their training is adequate for them to be able to perform it. Ultimately the legislature decided against that, but it’ll probably come up again.

Paul Leavoy: What is the future of the department? What do the next few years look like?

Jeff Shumway: There are some natural groupings of high-impact occupations, so our plan is to propose one of those each year for the legislature, and they have to approve what we do. We can propose, it but there’s an interim committee that approves that. We’re going to propose one of those every year for the next four or five years. Beyond that, the groupings tend to fall apart but there’s lots more ad hoc bundling that will go on. I expect that we’ll continue looking at large groupings like trades, cosmetologists, nursing, doctors, and that we’ll do those in any order that makes sense given the appetite of the legislature and others to take them on.

Paul Leavoy: How do you measure the success and performance of the department?

Jeff Shumway: We have a research manager who just finished a PhD in management, specifically in occupational identity, and that was one of the first questions she asked: how are we going to know if we get it right? Access is really what we’re looking at now for mental health, to do something that actually improves access. There’s a bunch of points along the way that I think we would like to measure and see how we do on. Looking at the throughput of licensees within these occupations – given that we’re in a time of shortage – over the next few years, that would be a good indication. Seeing uptake of new licensure pathways, if that’s where we end up going, or new sub-licenses that have a lower educational or experience requirements.

Margaret Busse: The other thing is this new office will propose recommendations to the legislature, but it’s not our choice whether they’ll get adopted. We’ll work hard to help them get adopted, and I presume we’ll have the governor’s support on that, but that is up to the legislature to make policy changes. To the extent that some of these policy changes could be made in rule, then our department, the Department of Commerce, has that ability to make those changes. But ones that require statutory change are up to the legislature.

Jeff: That’s the first thing that we want to measure – the uptake of our recommendations – because I think that’s a good sign that our stakeholder engagement is doing what it should as we go through the process.

Margaret Busse: And speaking of stakeholders, there are a lot here. Some of these stakeholders are nervous because this could be disruptive to their industry, which is why that kind of engagement is really important. We engaged heavily with these kinds of stakeholders even in just the creation and the design of the office.

Paul Leavoy: If a new state with no existing professional licensure review were beginning the process, what advice would you give them based on the lessons learned during the design and implementation of OPLR?

Margaret Busse: Stakeholder outreach is really important. Making sure there’s a really robust mechanism to have a partnership with the legislature, because ultimately, they need to make the policy changes. They are the ones that will make statutory changes, so making sure you have connections with the legislature – both formally through the actual creation of the office, but also informally. We’ve done a lot of work with individual legislators as Jeff has come on board, to make sure that people understand the purpose of the office and we’re hearing their ideas and concerns. So those are really important things, and also getting the analytics right. I think Jeff has done an amazing job at figuring out how we approach this, what are the right metrics to be looking at, and how do we prioritize the licenses to be reviewed.

Paul Leavoy: I want to talk a little bit more about foreign credentialing. What has that undertaking looked like and what sort of outcomes would be desirable?

Margaret Busse: This is very nascent for us because the law went into effect just a few months ago, so we’ve just done some hiring to build capacity. The idea is that we know we have a lot of folks coming in from other countries – immigrants and refugees and so forth – that are potentially very highly skilled and are often not able to work at the top of their training. And on the other side of it, we know we have a labor shortage across the economy – obviously in certain professions more acutely, but across the economy. So it’s sort of silly that we’re not thinking about how to do it, but it’s also hard to do, too because you’re trying to say, from any country, what were their requirements to be a doctor, or a nail technician, or a cosmetologist, or a construction worker. We have to then look at that, understand how those compare with what we require, and then figure out what the “delta” of training is. It does take quite a bit of work, but we wanted to take that on because it’s a waste for our economy not to utilize these people.

We’ve started with professions and countries that we’re seeing a lot of folks from – we had a lot of refugees come in from Afghanistan, now we’re seeing them from Ukraine – so we’re looking at those countries specifically and some of their requirements. With refugees, it can be very difficult because they often have to leave their countries in distress and they don’t have any forms of certification that they can bring with them, so then there might be competency tests involved. A very specific example: our family has been involved in sponsoring a Ukrainian refugee family to come over here and the mother had some training in doing nails, so we’re trying to figure out how we get her licensed as a nail technician, and because we have this new statute that allows us to do it, there is a path. So we’re in the process of helping her do that right now.

Paul Leavoy: What do these reviews mean for business in Utah?

Margaret Busse: For businesses that are employing lots of licensed individuals, it means that they will hopefully be able to have access to more individuals because more individuals will be able to become licensed, and it will free up their ability to do business.

Jeff Shumway: There’s the direct effect on businesses that use licensed individuals, but there’s also the indirect effect. Utah’s growing much faster than other states and the national average. We’ve been a growing state for a long time, and a lot of that is because of the lifestyle, because of the economy, because of the outdoors, and all those things. We need to get this right for secondary reasons, so people still want to move here, still want to start businesses here, and want to stay here. Providing medical services, having people who can do trades, having cosmetologists, having mental health professionals, makes it a good place to live, so we want to get it right for that secondary reason, too.

To hear Paul Leavoy’s full conversation with Margaret Busse and Jeff Shumway, listen to this recent episode of the Ascend Radio podcast.

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Ariel Visconti
Written byAriel Visconti
Ariel Visconti researches and writes on government and politics, regulation, occupational licensing, and emerging technologies.

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