Is licensing music therapists sound policy or a regulatory bottleneck?

 

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Good morning Austin:

Today’s question is which do you find more worrisome – the prospect of an unlicensed music therapist, or the possibility that you might have to have a license to be a music therapist?

To Al Bomanis, director of communications for the American Music Therapy Association, based just outside of D.C. in Silver Spring, Maryland, it is the former. But to William Mellor and Dick Carpenter of the Institute for Justice, co-authors of Bottleneckers: Gaming the Government for Power and Private Profit, a new book pictured above, it is the latter.

The Institute for Justice describes itself as, “the nation’s only libertarian, civil liberties, public interest law firm.”

The word bottleneckers is the authors’ own coinage.

Bottlenecker

(n)

: a person who advocates for the creation or perpetuation of government regulation, particularly an occupational license, to restrict entry into his or her occupation, thereby accruing an economic advantage without providing a benefit to consumers

They write:

It’s called occupational licensure. Simply put, an occupational license is a government-issued permission slip allowing a person to work. Although some occupational and professional licenses are familiar, such as those for physicians or attorneys, others are less well known, such as those for interior designers, locksmiths, auctioneers, sign language interpreters, music therapists, florists, and many other occupations.

States (and sometimes cities or counties) require that people wishing to work in such occupations go through often-arbitrary anticompetitive hurdles, like completing mandatory education and training, passing
examinations, paying fees, and reaching a prescribed age. Those who cannot clear the required hurdles are prohibited from working in the occupation. Because these hurdles are often purposefully high, occupational licensing is a rare public policy that accomplishes precisely what it sets out to do—keep people out of the occupation.

On Wednesday, Carpenter, who is based in D.C., to talk about his book at the Texas Public Policy Foundation – a conservative think tank with whom it has had along relationship – and on Tuesday night I talked with Carpenter.

The book has chapters on Casket Cartels: Robbery without a Pistol, and Designed to Exclude: The Interior Design Cartel’s House of Lies.

But, of late, Carpenter’s gaze has alighted on music therapists.

From the book:

In just one example, the American Music Therapy Association (AMTA) and its sister organization, the Certification Board for Music Therapists (CBMT), have mounted a nationwide campaign to license the practice of music therapy in order to “[protect] clients or patients from potential harm or misrepresentation from individuals that are not board certified music therapists and are not practicing under the CBMT
Scope of Practice.”

A music therapist, according to the Dictionary of Occupational Titles,directs and participates in instrumental and vocal music activities designed to meet patients’ physical or psychological needs, such as solo or group singing, rhythmic and other creative music activities, music listening, or attending concerts.”

Regardless of what one thinks of the value of this work, the unregulated practice of music therapy hardly poses a threat to public health and safety. Although it had been practiced freely and safely for years, licenses have recently been adopted in the field, not at the request of harmed or concerned consumers but rather as an exclusive result of the actions of professional associations.

Through the advocacy efforts of a “regulatory affairs” team, the AMTA and the CBMT coordinated state-based task forces to introduce legislation for the creation of music therapy licenses.

To date, three states have passed such regulation—Nevada, North Dakota, and, most recently, Georgia. Georgia’s adoption of this legislation neatly illustrates the previously described process wherein industry representatives run to the legislature for protection. Upon its introduction, Georgia Senate Bill 414 was sent to the Senate Health and Human Services committee, which heard testimony from
the AMTA in favor of the bill and received a packet containing several letters of support from music therapists, parents of children who were receiving music therapy, and a professor of music therapy at Georgia College.

No one testified against the bill; no empirical evidence was presented demonstrating a genuine threat to public health and safety from the unregulated practice of music therapy; and no one asked about
the potential economic consequences to consumers in the form of higher prices. As a result, working as a music therapist in Georgia now requires:
• obtaining a bachelor’s degree in music therapy or higher from a program approved by the AMTA, the very entity that lobbied for the bill;
• successfully completing 1,200 hours of clinical training, with at least 180 hours of preinternship experiences and at least 900 hours of internship experiences;
• passing the examination for board certification offered by the CBMT, which costs $325 to take;
• paying various fees;
• being at least eighteen years of age; and
• passing a criminal background check.

Consumers in Georgia, North Dakota, Nevada, and any other state  that adopts this law could pay as much as 15 percent more for the services of a music therapist,with no evidence that the cost will be offset by increased protection for the public. Should a legislature attempt to repeal the license at some later date, the same association leaders who advocated for the law in the first place will most assuredly mount an aggressive campaign to protect their interests, and now they will be joined by representatives from the state licensing board, populated by licensed music therapists intent on maintaining their bottleneck on new entrants into the occupation.

There is no licensing for music therapists in Texas, but Carpenter said the AMTA has Texas in its sights.

They don’t have a specific legislator who is introducing a bill yet so they are working to develop a legislator to do that. So they themselves are the advocates right now and they are looking for a legislator to represent them.

Ultimately what they want is a license for their industry. So they want to create an occupational license that will enable them to restrict entry into the occupation so that those who are already in the occupation can obviously keep the competition out and enjoy an economic advantage as a result.

They are going state by state advocating, so here in Texas they’ve been in the organizing and momentum building stage.

It usually takes several years to organize and mount a campaign in a particular state. What they are doing now in Texas is very classic activity that we have seen in other states.

The AMTA website suggests they are indeed on the march in seeking licensing provisions in more states.

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Music Therapy Title Protection Created in Connecticut
The American Music Therapy Association (AMTA) and the Certification Board for Music Therapists (CBMT) are excited to announce that, on May 27, 2016, Governor Malloy of Connecticut signed into law HB 5537. This legislation includes language stating that music therapy services can only be provided by those who hold the MT-BC credential. Many thanks to the members of the Connecticut Task Force (Emily Bevelaqua, Jennifer Sokira, Courtney Biddle, Natalie McClune, and Heather Wagner) for all their work, dedication, and advocacy for this legislation.

Music Therapy License Created in Oklahoma
The American Music Therapy Association (AMTA) and the Certification Board for Music Therapists (CBMT) are excited to announce that, on April 26, 2016, Governor Fallin of Oklahoma signed into law HB 2820. This legislation creates a music therapy license under the State Board of Medical Licensure and Supervision.

Many thanks to the members of the Oklahoma Task Force (Suzanne Heppel, Jennifer Voss, Amber Loomis, Heather Malcom, Rebecca Cantrell, Brandy Jenkins, Sophia Lee, and Hayoung Lim) for all their work, dedication, and advocacy for this legislation, and their commitment since 2006 to the state recognition process. Many thanks as well to Anne Roberts, Director of Legislative Affairs at INTEGRIS Health, as well as the music therapists from the southwestern region for their support of HB 2820.
Three states have successfully enacted music therapy licensure legislation.  On April 26, 2011, Governor Dalrymple of North Dakota signed into law SB 2271. This legislation created the first-ever music therapy license in the country through the Board of Integrative Health. Following close behind in the state recognition process was Nevada.  On Friday, June 3, 2011, Governor Brian Sandoval of Nevada signed into law SB 190. This legislation creates a music therapy license in Nevada through the State Board of Health.  Georgia enacted music therapy licensure legislation in May of 2012 with Georgia bill SB 414 which was signed by Governor Nathan Deal.

Illinois Legislation Announcement
The American Music Therapy Association (AMTA) and the Certification Board for Music Therapists (CBMT) are excited to announce that, on Tuesday, August 18, 2015, Governor Bruce Rauner of Illinois signed into law SB 1595. As a study bill, this legislation creates a Music Therapy Advisory Group charged with exploring the feasibility of regulating music therapy practice in Illinois and submitting a report of its findings and recommendations to the state. Many thanks to the members of the Illinois Task Force (Nancy Swanson, Andrea Crimmins, Allison Gunnink, Stephanie Kleba, Melaine Pohlman, and Victoria Storm) and to all music therapists in Illinois for their work, dedication, and advocacy for this legislation.

Music Therapy License in Oregon Signed Into Law
The American Music Therapy Association (AMTA) and the Certification Board for Music Therapists (CBMT) are excited to announce that, on Wednesday, July 1, 2015, Governor Kate Brown of Oregon signed into law HB 2796. This legislation creates a music therapy license in Oregon through the Health Licensing Office. Many thanks to the members of the Oregon Task Force (Jodi Winnwalker-Chair, Lillieth Grand, Dawn Iwamasa, Laura Beer, Chris Korb, Ted Owen, Melissa Potts, and Adam Young) and to all the music therapists in Oregon for their work, dedication, and advocacy for this legislation.

Rhode Island Music Therapy Legislation Signed Into Law
The American Music Therapy Association (AMTA) and the Certification Board for Music Therapists (CBMT) are excited to announce that, on June 30, 2014, Governor Lincoln Chafee of Rhode Island signed into law HB 7131.

This legislation creates a music therapy registry that will be administered by the Rhode Island Department of Health.

Many thanks to Nicole O’Malley, members of the Rhode Island Task Force (James Danna, Dalita Getzoyan, David Hirschberg, Crystal King, Linda Majewski, Teri Pimley, Kristi Rood, Jaye Watts), other key supporters and organizations (Cathy Andreozzi, Sue Baylis, Cris Brodeur, John Cronin, Kathy Dennard, Jennifer Hoskins, Kathleen Howland, Katie Little, Carol Manglass, Jennifer Sokira, Ella Whaley, The Brain Injury Association of Rhode Island, Easter Seals of Rhode Island), legislative champions (Reps. McNamara, Rep. Palumbo, Sen. Miller, Rep. Langevin), family members of Hands in Harmony, and to all the music therapists and music therapy advocates in Rhode Island and the New England region for your work, dedication, and advocacy for this legislation. Despite significant obstacles, the RI Task Force mobilized an incredible grassroots advocacy campaign and worked tirelessly to support this bill.

Their commitment to securing state recognition for music therapy will serve to benefit Rhode Island citizens by allowing them to more easily access music therapy services provided by qualified practitioners. 

North Dakota and Nevada Regulation
Music therapists from North Dakota and Nevada have been actively involved in the implementation of the AMTA and CBMT State Recognition Operational Plan.  The focus in these states will now move from the legislative process to the creation of regulations.  AMTA Government Relations staff and CBMT Regulatory Affairs staff will continue to provide guidance and assistance as each state implements these new licenses.  Many thanks to the members of the North Dakota Task Force (Andrew Knight, Natasha Thomas, and Emily Wangen), the members of the Nevada Task Force (Judith Pinkerton, Manal Toppozada, and Diane Bell) and to the Government Relations representative for the Western Region of AMTA (Rachel Firchau) for their work, dedication, and advocacy.

I talked with Bumanis, who is in his 26th year with AMTA, and before that worked as a music therapist.

He told me:

The trend has been that more states are licensing music therapists, not to keep other musicians out – there are musicians that are welcome in hospitals – but for the clinical work that needs to be done and to understand the therapeutic milieu and understand the research behind what you are doing.

I think the issue is having unqualified people taking part in health care. Music therapy is a course of study, it is a health profession. It is being licensed in states to protect people from people who really don’t know what they’re doing, or can’t communicate with other health professionals.

Clinical music therapy is different than spreading the joy of music, which is a wonderful thing, but it isn’t an extra gig for guy who’s working in clubs at night. I think a lot of people have always thought that.

If that were the case, Austin might be the musical therapy capital of the world.

Here’s an explainer from AMTA in 2014.

SETTING THE RECORD STRAIGHT:

What Music Therapy Is and Is Not

January 23, 2014—SILVER SPRING, MD— The American Music Therapy Association (AMTA) supports music for all and applauds the efforts of individuals who share their music-making and time; we say the more music the better! But clinical music therapy is the only professional, research-based discipline that actively applies supportive science to the creative, emotional, and energizing experiences of music for health treatment and educational goals. Below are a few important facts about music therapy and the credentialed music therapists who practice it:

  • Music therapists must have a bachelor’s degree or higher in music therapy from one of AMTA’s 72 approved colleges and universities, including 1200 hours of clinical training.
  • Music therapists must hold the MT-BC credential, issued through the Certification Board for Music Therapists, which protects the public by ensuring competent practice and requiring continuing education. Some states also require licensure for board-certified music therapists.
  • Music Therapy is an evidence-based health profession with a strong research foundation.
  • Music Therapy degrees require knowledge in psychology, medicine, and music.

These examples of therapeutic music are noteworthy, but are not clinical music therapy:

  • A person with Alzheimer’s listening to an iPod with headphones of his/her favorite songs
  • Groups such as Bedside Musicians, Musicians on Call, Music Practitioners, Sound Healers, and Music Thanatologists
  • Celebrities performing at hospitals and/or schools
  • A piano player in the lobby of a hospital
  • Nurses playing background music for patients
  • Artists in residence
  • Arts educators
  • A high school student playing guitar in a nursing home
  • A choir singing on the pediatric floor of a hospital

Finally, here are examples what credentialed music therapists do:

  • Work with Congresswoman Giffords to regain her speech after surviving a bullet wound to her brain.
  • Work with older adults to lessen the effects of dementia.
  • Work with children and adults to reduce asthma episodes.
  • Work with hospitalized patients to reduce pain.
  • Work with children who have autism to improve communication capabilities.
  • Work with premature infants to improve sleep patterns and increase weight gain.
  • Work with people who have Parkinson’s disease to improve motor function.

AMTA’s mission is to advance public awareness of the benefits of music therapy and increase access to quality music therapy services in a rapidly changing world. In consideration of the diversity of music used in healthcare, special education, and other settings, AMTA unequivocally recommends the unique knowledge and skill of board certified music therapists.

More from Bumanis:

What we do is special, unique, it takes a lot of skill, at end of life, working with kids in the neonatal care unit. All of that takes special training.

At least four universities in Texas have the music therapy curriculum. It’s a difficult course of study.

It’s clinical music therapy. I wish that was the way it to describe what we do all the time – clinical music therapy.

Carpenter said there are other, less onerous methods for an industry to pursue to allow practitioners to identify themselves, short of licensing, which he said effectively closes off the field to the unlicensed.

Certification is a way for someone to be recognized either by the state or by a third-party organization, without necessarily restricting entry into the occupation. And there are a host of other options that achieve the exact same thing or something close to it, like registration or bonding and insurance.

What we like to say is licensing should be the very last option when there has been a demonstrable need to protect public health and safety and that demonstrable need should be represented by empirical evidence.

When you see these licenses created, and we see these all the time because we watch this process constantly, what happens is the industry representatives go the legislator and they ask for a license.

At no time do they ever introduce any empirical evidence showing that there is harm being perpetrated on the public as a result or unlicensed practice.  Instead, they have anecdotes and general information and legislators will very rarely ask them to provide any information. Often when you watch these legislative hearings, a question is hardly ever asked by a legislator, so the process by which these are created is one where there is no healthy skepticism and no actual evidence introduced for the need for that particular license.

Bumanis said that AMTA has “just around 4,000 members.”

The best estimate there are about 6,000 practicing music therapists in the country, closing in on 7,000.

I think there’s six states now have licensure or some sort of recognition. I know in North Dakota there is some talk of getting rid of licensure. To me it’s all a change in the political climate in this country with a new administration that’s sort of anti-regulation, anti-safeguard, all that stuff.

I would say licensed music therapists, probably come up to 400.

From Carpenter:

Our experience, and what little data exists about this, suggests that the creation of licenses are not dependent or influenced by political climate or parties in power and here’s why. Legislators have an incentive to create licenses. the incentive is it builds a constituency for them.

The impression is that a license comes with very little or no cost, that’s the impression, because those who advocate for the license say this is going to be budget neutral. There will be no impact on the budget. Which is debatable, but let’s just assume for the moment that it’s true.

That doesn’t mean that it’s a bill with no  costs,  There are significant costs. In fact, the Obama White House in 2015 released a report, in which they detailed the costs with occupational licensing and how severe they are. So there’s a myth that it’s a law with no costs and upside benefits, and so legislators have the impression, that well, `We adopt this bill, the industry wants it so it must be good, it’s a law with little to no cost, oh, and by the way, I can build a constituency for myself,’ and so they have tendency to say yes.

In Texas, Sen. Don Huffines, R-Dallas, is drawing up legislation that would reform the licensing process with an eye to culling the numbers of professions that require licensing.

It was the Institute for Justice that successfully fought Texas licensing requirements on behalf of Isis Brantley,

Dallas entrepreneur Isis Brantley, center, speaks to the media Tuesday, October 1, 2013 in Dallas, TX. She is one of the country's leading African hair braiders who has teamed with Institute For Justice Texas Chapter, is suing the state of Texas in Federal Court over economic liberty. She works with everyone from Grammy Award-winning artist Erykah Badu to the homeless. Texas will not permit Isis to teach hair braiding for a living unless she spends 750 hours in barber school, passes four exams that do not teach braiding, spends thousands of dollars on tuition, and builds a fully-equipped barber college she doesn't need.  (David Woo/The Dallas Morning News) 10022013xMETRO 10032013xBRIEFING MANDATORY CREDIT; NO SALES; MAGS OUT; TV OUT; INTERNET USE BY AP MEMBERS ONLY

(Dallas entrepreneur Isis Brantley, center, speaks to the media Tuesday, October 1, 2013 in Dallas, TX. She is one of the country’s leading African hair braiders who has teamed with Institute For Justice Texas Chapter, is suing the state of Texas in Federal Court over economic liberty. She works with everyone from Grammy Award-winning artist Erykah Badu to the homeless. Texas will not permit Isis to teach hair braiding for a living unless she spends 750 hours in barber school, passes four exams that do not teach braiding, spends thousands of dollars on tuition, and builds a fully-equipped barber college she doesn’t need. (David Woo/The Dallas Morning News)’   

 

From Jazmine Ullloa’s 2015 Statesman story:

Texas laws that require African-style hair braiding businesses to become barber colleges before they can issue state licenses are unconstitutional and do not promote public health and safety or any other legitimate government interest, a federal judge in Austin has found.

In a sweeping ruling issued this week, U.S. Sam Sparks sided with Dallas hair braider Isis Brantley, who sued the state in 2013, saying the regulations related to her school were unreasonable and made it nearly impossible for her and other entrepreneurs to teach hair braiding for a living. The federal decision came 17 years after she was arrested for braiding hair without a special state license, leading her to embark on a long legal battle to change the criminal and civil statutes regulating the practice she describes as a cultural art form.

I feel relieved, refreshed,” she said Wednesday from her school in Dallas, the Institute of Ancestral Hair Braiding. “I feel like a new beginning is on the horizon for economic liberty and institutional equity, fairness.”

A decade after police officers in 1997 raided her business and took her away in handcuffs, Brantley had helped change the law making it easier for hair braiders to get licensed. But instead of deriving a new set of regulations for the practice, Texas state officials wedged it into statutes for barbers.

Those laws mandated Brantley and other hair braiders to convert their small businesses into fully equipped barber colleges before they could issue licenses, preventing most braiders from teaching it for a living. Businesses, for example, had to have at least 10 student workstations with a reclining chair, back bar and a mirror, as well as a a sink behind every two workstations.

U.S. District Judge Sam Sparks ruled Monday that the regulations excluded Brantley and others from the market and were “irrational,” pointing to licensed braiding salons, which are not required to have sinks because washing hair is not involved in the braiding process.

Those laws mandated Brantley and other hair braiders to convert their small businesses into fully equipped barber colleges before they could issue licenses, preventing most braiders from teaching it for a living. Businesses, for example, had to have at least 10 student workstations with a reclining chair, back bar and a mirror, as well as a a sink behind every two workstations.

U.S. District Judge Sam Sparks ruled Monday that the regulations excluded Brantley and others from the market and were “irrational,” pointing to licensed braiding salons, which are not required to have sinks because washing hair is not involved in the braiding process.

Sparks said he found it “troubling” that the defendants could not name one school that, like Brantley’s, solely taught African-style hair braiding.

In a statement, Susan Stanford, a spokeswoman for the Texas Department of Licensing and Regulation, said Brantley and her agency had their day in court and that her agency “respects Judge Sparks’ decision.”

No decision has been made as to an appeal, she said.

Arif Panju, a lawyer for the Institute of Justice in Austin and lead counsel for Brantley, called Spark’s ruling “a resounding victory — not only for Isis Brantley but all entrepreneurs across Texas.”

For Brantley, who has been braiding hair for 32 years and counts singer Erykah Badu among her clientele, the judge’s decision could be the final chapter in a long journey, she said.

“I am happy to see these natural hair schools becoming a reality,” she said. “I also am happy that we will pass down the skills down to another generation.”

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