Rebecca Allensworth

Well, they do have investigators, and these would be, in most cases, full-time employees of the state. But their salaries are paid through the board, and that's all through licensing fees. So there's this conflict of interest where the doctors on the board want to keep fees low for the rest of the doctors. Their revealed preferences are that they're happy with the minimalist regulation.

They don't feel like there's a real problem here. It becomes very low information trials and in some cases not very adversarial.

They're not subject to penalty. What I found is that the presence of some sort of criminal proceeding almost froze the board in its tracks. I was watching the medical board and the other prescribing boards in Tennessee because doctors aren't the only ones that can prescribe.

nurse practitioners, physician assistants, some dentists. So in this one day, there was this big splashy arrest. I think they arrested 30 Tennessee professionals for dealing opioids. This is the federal government. And most of them didn't have board discipline. I had been hearing all along that the real problem with discipline is that they just don't have the information.

They don't know who's screwing up. And they don't have resources to figure it out. Well, here we have... A sudden very public set of information like these 30 providers might be ones that you're going to want to like at the very least temporarily suspend their licenses, which you can do without much process. And just meeting after meeting, nothing's happening. Nothing's happening.

They were not called up. It was like it never happened. It was just silence.

They do eventually, but it didn't happen for a long time. I asked about this and it was like, well, we can't really proceed against their license because there's this Fifth Amendment problem. If they say anything in their licensing proceeding that's self-incriminatory, that'll go in their criminal thing. So that's one problem.

Now, that doesn't answer the question of why you don't summarily suspend it on an emergency basis. You can do that without their testimony. And then they're saying, well, also, it's just an accusation. And we're about to have a whole lot more information, like there'll be either a trial or a plea, and then we can act. We're talking now a year or two before these cases get resolved.

Yes, although the criminal system knows all of this and doesn't want that to happen. So the criminal judge is in the position of basically restricting their license, which is what the board was supposed to be doing. So now you have a totally inexpert criminal judge or federal judge saying you can prescribe this, you can't prescribe that. which is goofy.

And then in the end, there was a lot more forgiveness even after the conviction than I expected. The idea there was, well, let's not pile on. Obviously, this doctor's been through a lot. They have a criminal conviction. It's a huge ding on their record. And they also see how devastating a federal criminal conviction conviction can be on your career. They don't want that for themselves.

They think this is punishment enough. And then there's this heartbreaking part of it that's like, and they'll never practice on you and me anyway.

The board members, I'm giving them the most credit possible. Without fully realizing they're saying they're not going to be able to take private insurance. They're not going to be able to work in the highest end hospitals. They're going to be doing things like working in prisons, working for the VA. And that's not really the set of patients that I'm super worried about protecting.

Those patients are lucky to get care.

80% have a history of major discipline, often for overprescribing, for malpractice, for sex with patients. The lower down in the market you go, the rate of discipline goes up.

Professional licensing is too onerous for certain professions. And it just makes the barriers too high. It keeps people out. And the investment in what you're getting for that regulation is not worth it. And then for the professions that are left, medicine, nursing, law, now we need something like a licensing board. Only what we have is terrible.

We really need more data here. I would love if my book could inspire more kind of empirical work here. But what I do know is that as you receive discipline from your bar association, your likelihood of working at a firm goes down and your likelihood of working for yourself and in particular in working in immigration, injury law and indigent defense decreases.

goes up as you receive discipline from your bar. Those are three categories of clients that are particularly vulnerable.

The whole point of a license and a licensing board is the idea that consumers don't really know what they're getting. Let's take restaurant food. Maybe it's contaminated and not handled properly and you might get sick. And so we have some regulation for that. But as far as like what's tasty, what's hot, what arrives on time, consumers know what they're getting.

Licensing exists because we don't know what we're getting from our professionals. We don't know what the right legal advice is. We don't know if we have cancer. That's why we go to the doctor. But then when it comes to complaints, we rely on customers complaining about their professionals.

And then there's this other problem, which is that sometimes the bad conduct is stuff that the customers want.

Selling opioids or getting your lawyer to help you commit a crime. So it's a very bad way of figuring out where is the misconduct. And then the licensing boards figure, well, consumers don't know what's good practice, what's good medicine, what's good law. I think the place where you see this the most is in allegations about sex abuse.

All professionals are very concerned somebody could make up a story. And the boards do act as kind of a gatekeeper for complaints like that. None of this should stop a regulator from actually investigating and seeing whether it's true. Or if you get two or three very similar complaints, you might think that that's a little bit easier to believe.

In Tennessee, you can look them up and you can see if they've had discipline. You can't do it nationally. So somebody could have discipline in another state and you don't know it. There's something called the National Practitioner Data Bank that keeps information about board actions and malpractice that can't be accessed by the public. So it's pretty opaque and it's especially opaque for lawyers.

Lawyers really don't want clients finding out about their business.

As a non-practicing lawyer, I disapprove. Maybe if I asked my husband, he would say, no, no.

He is. He is. He has shared with me the professional perspective sometimes of like, well, you know, a lot of people complain about a lot of BS. And, you know, I don't know if I want people knowing about every complaint against me. That's an understandable perspective. I just don't know that we want to have that perspective, have the final say in regulation.

So what does this do? It kind of gives a leg up to people who already have a leg up in life.

By the way, a working title for the book was Bored to Death.

We license way too many professions. So we need to just get rid of licensing for many professions.

Yeah. So it had three problems. One, it was dorky wordplay. Two, there was this problem that maybe I was over claiming by talking about death in the title of a book about licensing. And then the other one, of course, being that it sounded like the book was going to be boring. But the over claiming point, you know, I do think that it's dangerous.

I would say a third to a half. The beauty professions are quite big. A lot of the housing and trade ones, plumbing and electricians, I think are bigger.

really big, about two thirds of the 20% are in the healthcare professions. Doctors are totally dwarfed by nurses. And I think that there's a significant number of professionals that have to have some sort of license as a nurse that maybe don't need to be licensed. So you've got RNs, I think they should be licensed. Nurse practitioners, they should be licensed.

But licensed practical nurses is a lot of professions within professions that we lump in there.

They really would. Yeah. Unlicensed practical nurse.

My goal here is not to write a book that says this is what should be licensed. This is what shouldn't be. But I did want to provide some guideposts for how you would make that determination.

Oh, I can defend it all. Let's start with the American dream. Homeownership used to be the American dream. That used to be the way that you knew you'd made it. I think there's a way in which a professional license has taken over that role. That's how you know you really are accepted in the society if you have the state imprimatur on the work that you do.

You see this a lot in the discourse of people who are trying to get new licenses. They say our work is important. Our work is dangerous. Our work is valuable. And we don't have a license. We should have that kind of status.

It impacts the economy because it is the most important regulatory institution we have in labor. There's more people who are subject to professional licensing than are in unions and are affected by the minimum wage combined. 20% of the American workforce, tens of millions of workers. Also, we know that it raises prices and creates scarcity. We spend more on healthcare than any other country.

I don't want to oversimplify healthcare economics, but there is an element of a supply and demand problem where prices go up because supply is so low. Another way of saying the same thing is that it is very expensive to go to medical school. It's such a huge investment to get into the profession, and that creates a small number of practitioners, and then prices go up.

It's a big problem for equality because you have to have typically a clean criminal record to get over this barrier. You have to have money to pay for a school. You also have to be able to take a year or three out of the labor force to go to school. So what does this do? It kind of gives a leg up to people who already have a leg up in life.

Literally, in the sense that there's a lot of doctors and lawyers out there who are just plain dangerous. And we give them a lot of trust and a lot of power as professionals.

Exactly. I think the place you see this most is with people with criminal histories, because the one thing you need when you get out of prison is a job. You have to overcome the idea that you've got a ding on your criminal record. There's no real nexus between the idea that you committed a crime and this licensed profession that you're doing.

I saw a dental assistant get a really hard time about her criminal record in front of the dental board. It's very unclear to me what her driver's license charges had to do with being a dental assistant.

Not a lot. The reason why those wages are higher and the reason why there's this path is because of the people who are left out of it. That's the source of the benefit.

It's not enough to say that this particular minority group or this particular disadvantaged set of people get a particular benefit out of licensing if the way that they're getting that benefit is by excluding other members from that same group.

Well, I think the hair professions are not ripe for professional licensing.

The reason why hair is such an attractive example is because it's just so extreme. It takes more classroom hours than to go to law school.

Yeah. Fifteen hundred hours. I've done the math. My students, I teach at a law school. My students have to be in class for twelve hundred hours.

There's a fair amount of book studying, which is actually a big problem because a lot of people who want to cut hair aren't capable of or interested in the book-based exam studying that comes along with the professional system. A lot of people don't go to hair school because they think that they won't succeed, even though they could be perfectly capable hair cutters.

This is a major source of power for the boards. In many states, including in Tennessee, nurse practitioners, for example, must be supervised by physicians. And the terms of that supervision are set by the boards, and they decide how many nurses you can supervise, what kind of intensity the supervision is. This is a huge problem for access to care.

Nurse practitioners can do a ton of medical care that we really desperately need in this country, especially primary care. And if we were to allow them to practice to the full extent of their training, we would have a lot more provision of that care. Doctors take the attitude that if you want to practice medicine, go to medical school.

What's a little funny about this is they will say it's really important that the public get the highest possible quality care. We don't want to cut any corners. We don't want to send anyone to a nurse practitioner if a doctor could have done a better job. They'll say that in that instance and then turn around in the disciplinary side and say, well, any doctor is better than no doctor.

And so I'm going to let this guy keep his license so he can go on to work at a prison.

Exactly.

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80% have a history of major discipline, often for overprescribing, for malpractice, for sex with patients.

Thank you.

Thank you.

Thank you. Thank you. Thank you. Thank you.

Thank you. Thank you.

Thank you. Thank you. We would get the requirements of the most onerous state, because as you said, no state is going to give up what they've got. There's a physician's compact, which is like a agreement among states to recognize each other's licenses. But the terms of that compact are essentially the most onerous state.

A licensing board is a regulatory body that's ostensibly part of the state that decides who can enter a profession, what qualifications they're supposed to have, and then also whether somebody has done something that deserves a revocation of their license or a restriction on their license. It's created by a state statute. But these boards are mostly made up of members of the profession.

So I worry if we did a national license that it would be particularly onerous. The other reason why it won't happen is because of the AMA or the ABA or whatever profession we're talking about is going to fight tooth and nail to maintain the state by state system.

It's easier for them to capture these smaller boards. And I think also the full ability to practice between states increases competition. If you can just phone a doctor in Ohio from Tennessee, that's going to create a lot more competition for physicians in Tennessee.

Well, I'm an antitrust professor, so I also love competition. Competition doesn't solve all problems. That's where I think the licensing board really has a role to play, and regulation has a role to play in many professions. It's not all about just what the customer wants when it comes to the professions. And it's also not clear what they're getting.

There's an information asymmetry for which a license can really help. The other point is competition is not going to solve problems like opioid overprescribing. That's a case of giving the patient what they want. How do you think...

Well, you spent six years writing a book about this example of governmental inefficiency. You get sort of excited. It's like, finally, my time is coming. And it turns out that what's underneath that is just more self-dealing. It's almost the opposite message that I'm trying to give, which is that it's the bureaucrats who know what they're doing.

Yes, we need to cut through the red tape, but it's the self-dealers and the members of the profession that have created that red tape.

Maybe or maybe it means unregulated when it suits Musk and regulated when it suits Musk. That's what I saw at the boards. When you give somebody power over their own regulation, they're going to be hands off when it suits them and they're going to be hands on when it suits them. So I'm all for cutting red tape. The question is, how do we cut it?

So people who are working full time as doctors, respiratory therapists, hairdressers, take a couple of days off a year to serve on this board and moonlight as their own regulators.

And I think we cannot trust people who have their own self-interest.

Oh, yes. This is one of my favorite examples. The legal case, obviously, is slam dunk, right? You could not have a license for a journalist because of the First Amendment. Maybe there are some people who are calling themselves journalists out there that we don't want doing it.

At the same time, there's systems for figuring out who are the most qualified journalists. There's journalism school. Obviously, who you're employed by is a big signal of how qualified you are.

I'm not here to defend the marketplace of ideas that we have right now in a full-throated way, but it's an example of a profession that is prestigious, important, and has its own kind of regulatory or at least sorting mechanism without licensing. I do not think we want the government coming in and saying, this is journalism and this is not. By the way, I myself have benefited from this.

I'm not a journalist, but I acted like a journalist.

I do. There's state legislation that can maybe not solve this problem but that can help. I think that there's some interest in that. There's a lot of headwinds from the professions, obviously. But I'm hopeful that maybe something can shake loose.

At the very least, I think people should know what they're up against when they're trying to get a license or when they feel locked out of a profession or just when they're a consumer or professional services, assuming that, you know, the license is on the wall, then this is fine.

I think that'll have an impact, hopefully, on everyday people who maybe think about their licensed professionals a little bit differently.

Well, it's not really a governmental agency. I don't think that it's made up of people who have the public good in mind. They may think they do, but it really is more like a professional association, a group of like-minded professionals who are looking out for the interests of the profession.

The Licensing Racket. How we regulate. Sorry. Okay. It's a long subtitle. I'm gonna have to do that one again. Okay. The Licensing Racket. All right. One more time. The Licensing Racket. How we decide who is allowed to work and how it goes wrong.

I know. I know.

You would think that like I would come here prepared to say the name of my book.

I went to the first licensing board and I was so shocked. I have a friend who's a journalist. And I was like, someone should write an investigative journalism piece about this. I kind of meant her. And then as I was saying it out loud, I was like, yeah, someone, maybe like me.

It's so time consuming sitting there. You don't know what you're going to find. You have to sift through all of it. You have to make these relationships. You have to spend enough hours in that room that the people on the board know who you are. They know you're going to put in the time to understand what they do. And then you have to say yes to everything. You have to talk to everyone.

Licensing started out with medicine in the late 19th century, and it was limited to the learned professions so-called until about the 70s. Since then, it's just been a straight line up, the number of licensed professions and the people covered by professional licenses. This idea of belonging and meaning and prestige plays a big role because people started to look around and say, our work matters.

Our work is just as important as this licensed profession. Therefore, we need to make sure that we get a licensing law for ourselves. I'll give you an example. Right about the time that people were starting to confront the idea of alcoholism in the 70s and 80s, there became a shortage of therapists that could help you overcome your addiction. And so AA became a big thing.

Then these AA group leaders wanted to have a little bit more training and professionalism. They wanted to become therapists themselves. And so there was a new profession called Alcohol and Drug Abuse Counselors. The idea was that it was going to be a relatively easy license to get and it was going to increase access to care.

Over the years, this profession looks around and says, what we do is just as important as any other therapist. In some ways, it's even more important. Overdose risk is really high. This is life or death. We need the same level of licensure.

And it just got ratcheted up to now to where it takes more hours of practice to be an alcohol and drug abuse counselor, like internship type hours, than it does to become a physician.

Because of self-regulation, because it's dominated by members of the profession that may want to look out for the public, but are much more seasoned in looking out for the profession.

Yes, but also the red tape. These boards are responsible not only for disciplining and policing their professions, but also deciding how high are those barriers to entry, who's going to get over it, whose criminal record is too bad, and they take it too far. And then in the disciplinary side, they abandon public protection.

The failure of medical boards to be able to tell when somebody is lying to them may be one of the most inept things I had to watch.

It's also a problem in law. The argument is you have to know the profession. You have to know everything about it to regulate it. And that's the expertise they're looking for. But then they miss what I would say is even more important expertise, which is the regulatory expertise.

First of all, I actually love the deep state, and that's what I want to bring to licensing. I want the bureaucrats doing this. The problem with the way licensing is done is that full-time employees of the state are given no power. A lot of the forehead slapping that I saw when I watched these boards regulate was done by lawyers and staff of the board who knew better than the members of the board.

And as far as it being dangerous, what I mean there is like nobody's watching. Nobody's sitting in on these board meetings. Nobody really knows what's going on. And everyone assumes, hey, my doctor has a license. My, you know, real estate agent has a license. There must be something going on there.

Exactly. The very first board meeting I went to was about a doctor who had traded drugs for sex with 11 of his patients. And most of that hearing, which was the hearing in which he got his license back, was about how they could impose this chaperone requirement, but not alert the patients, not tip them off to the idea that there was anything wrong.

So there's a lot of cover-up power that a license can give, which makes it really dangerous.

Well, no, and that's part of why I resist the word corruption when I talk about this problem. None of the members of the board knew him personally, had any connection to him, had any stake, really, in him getting his license back. On the other hand, most of them were physicians, and most of them saw this person as having started out somewhat like them.

Sure, he definitely made some very different choices. He lost his way. He had three different kinds of addiction. And that is something that especially physicians are likely to see as having a lot of explanatory power, as capable of being rehabilitated. And, you know, it's all about second chances.

His was a story of many, many chances. LaPaglia was using his license to deal drugs and to make money. He got in the crosshairs of the licensing board over that first incident. They came to his house and they found a whole bunch of drugs that he wasn't supposed to have, some for fun, some maybe he's selling. So they put him on probation.

But then while he was on probation, because he had lost his DEA number, which allows him to prescribe these more high-dose opioids, he starts trading in suboxone, which suboxone, even though it's used to treat addiction, can also be abused and also has a large street value. So he does this. He gets caught for it while he's already on probation with the board. And then he gets another chance.

He gets his license back. The restrictions that they put him on after that hearing were basically the same as what they had on the first one. What does he do after that? Well, now his prescribing is even more limited, in part because he's facing a federal indictment for this same conduct. So he goes door to door doing COVID tests. This is high COVID, right?

So he finds people who want a second opinion. They want a doctor's note that says, I don't have COVID, even after a positive test. He does that for $50 a piece. This is just somebody who has used their license not to treat patients, not in the best interest of patients, but really for their own gain.

That's right. So after all this, and after he was sentenced in his federal case to 18 months in prison, they did revoke his license in an order that gives him another path back to licensure.

I am sure that it would not have. And even with the federal criminal charge, it wouldn't have happened if his story hadn't become so public.

I wrote about it in the New York Review of Books, and it also was featured on an episode of This American Life. I think there was a lot of pressure on the board to pull his license at that time.

It is the most important regulatory institution we have in labor.

That's the big word there, incentive. I don't think there's much legally constraining the evidence that a board could gather and consider. The real constraint is resources and incentives.