January 11, 2016

Comments submitted to Florida House of Representatives subcommittee opposing music therapist registration

By Caleb R. Trotter Attorney

Round two of PLF’s continuing crusade to stop the enactment of new licensing laws for music therapists has begun. As I’ve previously mentioned, music therapist organizations are pushing for various licensing regulations in eight states. Seeking to educate lawmakers on the constitutional ramifications of occupational licensing, last month we were in New Jersey. Now, we turn to Florida.

Today I submitted written comments to the Florida House of Representatives Health Quality Subcommittee. The subcommittee is considering HB 571, which, if successful, would create a mandatory registration requirement for Florida music therapists. HB 571 requires prospective music therapists to satisfy four requirements:

  1. be at least seventeen years old;
  2. apply and pay an application fee of no more than $50;
  3. pay a registration fee of no more than $50 biennially; and
  4. complete a training program approved by the Board of Psychology.

It may not look like much, but this is no small burden, and it is unconstitutional.

First, requiring prospective music therapists to register and pay fees will create a deterrent to the music therapy field. Second, the bill is not at all clear what kind of training program will be required by the Board of Psychology. Other states have required completion of a college-level program or completion of the certification program administered by the Certification Board for Music Therapists (CBMT). Either result would be very burdensome.

Currently, there are only two approved music therapy programs in Florida, and both are full degree programs. If the Board instead mandates certification with the CBMT, that will create even more burdensome requirements. A person is only eligible to sit for the exam after completing an approved degree program in music therapy, and clinical training. Then, after paying $325, the applicant may take the three-hour, multiple-choice, 150 question certification exam.

The proposed Bill is also unconstitutional. As I state in my comments:

Helpfully, the Court [in the Washington D.C. tour guides case, Edwards v. D.C.] offered three examples of actions the District could have taken that would have been less restrictive–and satisfied narrow tailoring–while still effectively protecting the public from any alleged harms. Most relevant to music therapy, one of the Court’s examples was a voluntary certification program. In other words, the Court recognized that the availability of voluntary certification would provide the public with a reliable source of qualified practitioners without erecting unnecessary barriers to free speech and the right to earn a living.

As in that case, the various music therapist organizations calling for regulating their profession have not provided substantial evidence of any harms that require this legislation. Perusal of the several websites advocating for licensure and registration do not mention any harms that unqualified music therapists cause. In fact, it puzzles the mind to imagine what real harm could result from music therapy performed by someone who is unqualified.

Even if playing Mozart when Beethoven is more appropriate could be said to cause “harm”, the government would have a hard time proving that this law, with its burdensome provisions, is narrowly tailored to preventing that harm. This last point proved to be fatal in the D.C. tour guides case. Just as tour guides had ample incentives beyond government prerogatives to perform well, or to obtain voluntary certification, music therapists do too. Moreover, no one in a relatively new profession, that is actively seeking more recognition, would perform in a manner that would damage the reputation of the profession. As a result, a registration requirement provides nothing that voluntary certification and market forces do not already create. While Florida may certainly forbid music therapists from engaging in fraud or dishonesty, imposing the burdens of HB 571 upon all music therapists is unconstitutional.

While the committee in New Jersey did not heed our warnings about its unconstitutional bill, hopefully the Florida subcommittee will. This bill is bad for entrepreneurs, bad for consumers, and importantly, unconstitutional.

*UPDATE

Unfortunately, but not especially surprising, the subcommittee voted to approve the bill. The vote was 9-0 in favor, with four members absent. I will of course continue to track the bill and remind Florida lawmakers of its unconstitutionality.

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