March 14, 2016

Florida music therapy bills die by inaction

By Caleb R. Trotter Attorney

Future music therapists in Florida–and their clients–can breathe a sigh of relief for one more year. Last Friday, March 11, the 2016 Florida legislative session ended before two bills that would have imposed onerous new regulations on the music therapy profession were brought to a vote. HB 571 died without a second hearing, and SB 204 made its way through three Senate subcommittees before dying without a vote on the Senate floor.

HB 571 would have created a mandatory registration requirement for Florida music therapists, requiring fees and completion of a training program approved by the Florida Board of Psychology before a music therapist could lawfully practice her profession. I previously submitted written comments opposing the bill, and analyzed the constitutional problems with the bill and its likely impact of limiting access to the profession while causing costs to rise for consumers here.

In contrast, even though SB 204 was styled as a registration bill similar to HB 571, in practice it would have required a full-fledged occupational license for music therapists. Significantly more burdensome than typical occupational registration bills, SB 204 mandated the payment of fees and completion of the board certification examination developed and administered by the Certification Board for Music Therapists (CBMT). Discussing the overly burdensome requirements, and the bill’s unconstitutionality, I also submitted written comments opposing SB 204 to the Senate subcommittees.

As I stated in my comments:

SB 204 imposes well over four years of training and tens of thousands of dollars in costs. Some prospective music therapists may even be forced to travel or move out of state to comply with it. And once all that is completed, the prospective therapist still must pass an exam. As should now be evident, even though a registration system may sound innocuous, SB 204 erects significant barriers to entering the music therapist profession, and actually functions as a license because, under the bill, only registered music therapists are authorized to practice in Florida. At a minimum, proponents of this bill should be required to show why such barriers are needed to protect the public.

And:

SB 204 does not just burden the right to earn a living; it also burdens speech. AMTA defines music therapy as “the clinical and evidence-based use of music interventions to accomplish individualized goals…” In practice, a music therapist “provides the indicated treatment including creating, singing, moving to, and/or listening to music.” These speech activities are fully protected by the First Amendment.

Government restrictions on speech “must demonstrate that the harms” it seeks to address “are real” and that the restriction “will in fact alleviate [those harms] to a material degree.” The legislature cannot rely on speculation, it must “base its conclusions upon substantial evidence.” If SB 204 is signed into law and subsequently challenged in court, the burden of proving the speech restriction’s efficacy will fall on the government.

Because no evidence has ever been offered to show there are any actual risks of harm associated with the unlicensed or unregistered practice of music therapy, I argued that both bills are likely unconstitutional restrictions on the right to earn a living and the right to freedom of speech.

While the failure of these bills is certainly worthy of celebration, the push for licensure of music therapists continues in other states, and if history is any guide, it’s likely that new bills will be offered in Florida next year. Of course, PLF will be on the lookout for any future attempts to limit economic liberty.

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