December 10, 2015

Written comments submitted to New Jersey Assembly committee opposing new music therapist license

By Caleb R. Trotter Attorney

Here at PLF we see a lot of crazy government regulations. New Jersey is home to the latest sighting. Today, the New Jersey Assembly is considering creating an occupational license for music therapists. If you’ll recall, I recently blogged about the efforts of music therapist organizations to push for licensure. After succeeding in getting licenses implemented in four states, they have recently turned their focus to eight more states. New Jersey is the first one up in this wave.

The New Jersey bill, A4353, imposes five requirements on prospective music therapists:

  1. Must be at least eighteen years old
  2. Must be “of good moral character”
  3. Must have a bachelor’s degree, or higher, in music therapy, or its equivalent, from a program approved by the American Music Therapy Association
  4. Must complete 1,200 hours of clinical training
  5. Must pass the examination for board certification offered by the Certification Board for Music Therapists

As you will see, these requirements are unconstitutional and extremely burdensome, particularly the final three. That is why today I submitted written comments to the Regulated Professions Committee of the New Jersey Assembly opposing this new license. Some highlights (or lowlights):

First, requiring a degree in music therapy is a costly, time-consuming burden. Based on the number of people who do not have jobs related to their college degree (73%), this will likely require most future music therapists to return to school for an additional degree. Also, there is only one approved program in New Jersey, at Montclair State University, which costs between $90,000 and $159,000 over four years. This means that if someone either can’t afford that program or would rather go somewhere else, they will have to travel or move out of state, or choose a different profession.

Second, requiring 1,200 hours of clinical training is exorbitant. In contrast, New Jersey only requires emergency medical technicians to complete 220 hours of training, and massage therapists need only complete 935 hours. How it is necessary to spend more than five times as long as EMTs in training, for a total of thirty weeks, on top of obtaining a college degree, needs to be explained by those pushing for this license.

Third, taking the certification exam can only occur after completion of an approved degree program in music therapy, and clinical training. Then, after paying a fee of $325 the applicant may take the three-hour, 150 multiple-choice question certification exam. Plus, once that’s successfully completed, to maintain certification music therapists must re-certify every five years by retaking the exam or completing eighty-three hours of continuing education.

These significant restrictions create major obstacles for people pursuing their right to earn a living. Tragically, these obstacles are most acutely experienced by racial minorities and people of lesser means. This is unfair and unjust, especially when occupational licensing is typically used to limit competition and raise prices while masquerading as legislation to protect the public from bad actors.

This proposed license is also unconstitutional. The practice of music therapy involves activities that are considered to be speech, and resultingly, falls under the protection of the First Amendment. To be constitutional, defenders of the license would have to prove that unlicensed music therapy will result in real, substantial harm to the public, and that the stringent restrictions of the license will alleviate those harms. Neither of these can be proven.

Yet, even if harms actually exist and can be proven to be substantial, this license would still be unconstitutional. That is because it is not narrowly tailored to preventing those harms. Instead, the license requirements are unconstitutionally overbroad because they do nothing to ensure that “bad” music therapy does not occur.

As I note in my comments, the license adds nothing that the voluntary certification program and market forces already provide to prevent unqualified practice. Due to the inherent subjectivity in musical tastes and responses, and since the government cannot compel music therapists to play certain songs, it is unavoidable that not all therapy will be beneficial. So, imposing a license that bars everyone but the most qualified from engaging in a profession that is speech-based is a remedy akin to attempting to kill a spider with a blowtorch. In the end you wind up burning the house down.

PLF Economic Liberty Project attorneys Timothy Sandefur and Anastasia Boden have previously testified before lawmakers in Nevada, Montana, and the U.S. Senate about the burdens of and constitutional problems with occupational licensing laws. I will keep you updated with how round one of the fight goes to stop the spread of music therapist licenses in defense of economic liberty and the right to earn a living.

If you’re interested, the meeting can be listened to online.

*UPDATE*

With a vote of four in favor, four not voting, and one abstaining, the Regulated Professions Committee advanced the bill on to the full Assembly for consideration.

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