Can academic programs require certification?

A legal perspective

By Donald A. Balasa, JD, MBA, Executive Director, Legal Counsel

A question has arisen in the allied health educational and testing communities as to whether a postsecondary academic program is permitted by law to require completing students to take—and even pass—a voluntary, national certification examination. A definition of terms is necessary to begin answering this important question.

According to the National Commission for Certifying Agencies (NCCA) Standards for the Accreditation of Certification Programs, certification is defined as follows:

[Certification is] a process, often voluntary, by which individuals who have demonstrated the level of knowledge and skill required in the profession, occupation, role, or skill are identified to the public and other stakeholders.

Note a similar definition from the former United States Department of Health, Education, and Welfare (HEW):

Certification is the process by which a non-governmental agency or association grants recognition to an individual who has met certain predetermined qualifications specified by that agency or association. Such qualifications may include graduation from an accredited or approved training program, acceptable performance on a qualifying examination, and/or completion of some specified amount or type of work experience.

The NOCA Guide to Understanding Credentialing Concepts, published by the National Organization for Competency Assurance, defines licensure in this way:

[Licensure is] the mandatory process by which a governmental agency grants time-limited permission to an individual to engage in a given occupation after verifying that he/she has met predetermined and standardized criteria, and offers title protection for those who meet the criteria.

According to the Department of HEW, licensure is defined as follows:

Licensure is the process by which an agency of government grants permission to persons to engage in a given profession or occupation by certifying that those licensed have attained the minimal degree of competency necessary to ensure that the public health, safety and welfare will be reasonably well protected. Once a profession obtains licensure status, it is illegal for anyone who does not hold a valid license to practice the profession.

In recent years both the United States Department of Education (USDE) and the private sector Council for Higher Education Accreditation (CHEA) have strongly emphasized the importance of student learning outcomes as an objective and valid indicator of the quality of a school or program. The following excerpt from a CHEA article is illustrative of this thinking:

[S]tudent learning outcome[s]…is properly defined in terms of the particular levels of knowledge, skill, and abilities that a student has attained at the end (or as a result) of his or her engagement in a particular set of college experiences…Evidence of student learning can take many forms, but most involve a direct examination of student levels of attainment—either for individual students or for representative samples of students. Examples of the types of evidence that might be used include (but are not limited to):

• faculty-designed comprehensive or capstone examinations and assignments
• performance on external or licensure examinations
• authentic performances or demonstrations
• portfolios of student work over time
• samples of representative student work generated in response to typical course assignments¹

Note carefully the reference in the above excerpt to “performance on external or licensure examinations.” Based on the above definitions, a voluntary certification examination measuring achievement in the body of knowledge taught in the academic program would clearly fall within this category of student learning outcomes.

The concern has been raised that requiring the passing of a licensure examination (by definition, a test that is legally mandated in order to practice the profession or occupation) is legal, but requiring the passing of a certification examination (by definition, a test that is not legally mandated in order to practice the profession or occupation) is legally suspect. Careful analysis of the antitrust and common law fairness principles inherent in this question indicates that there is no legal basis for this concern.

As long as the certification examination is: (1) a reliable and valid instrument for measuring essential knowledge and abilities taught in the program; and (2) necessary for the safe and effective practice of the profession, there is no substantial likelihood of a successful legal challenge to the program’s requirement that all completing students pass an examination.

The fundamental purpose of certification (and licensure) examinations is protecting the public (and employers, when applicable) from substandard practice. Similarly, the fundamental purpose of professional education is preparing and elevating the students to a level of knowledge, competency, and professionalism that adequately protects the graduates and the patients, clients, or customers. In light of these two purposes, a professional education program utilizing a psychometrically sound and legally defensible certification examination as one measurement of student learning outcomes clarifies and reinforces the goals of postsecondary professional education. Thus, requiring completing students to pass a certification examination does not constitute an unreasonable restraint of trade or legally-prohibited discrimination.

References:

Ewell PT. Accreditation and Student Learning Outcomes: A Proposed Point of Departure. Washington, DC: Council for Higher Education Accreditation; 2001.