Some 40 years ago, the state of Vermont passed a law that outlawed roadside billboards. The intent was to protect uninterrupted vistas of the landscape. And so, the billboards came down. What came up in their stead, in some places, were huge “sculptures,” which were not prohibited by the billboard law. One auto dealer erected a 12-foot gorilla clutching a real Volkswagen Beetle. A carpet store installed a 19-foot genie floating from a teapot and holding a rolled carpet. I’m not sure who put up the giant squirrel in red suspenders.
This roadside menagerie came to Vermont courtesy of the law of unintended consequences, which holds that actions can be expected to have unexpected results. The concept dates to at least the 17th century; John Locke and, later, Thomas Jefferson, wrote about it. Economists point out that unanticipated outcomes are not always bad. Adam Smith’s invisible hand is one example; in a free economy, he observed, when individuals act in self-interest the collective result will benefit the common good.
In my home state of New York, however, we are wrestling with unanticipated results that are anything but positive. We face mind-boggling perverse effects stemming from a 2004 law creating state licensure of certain laboratory personnel that proponents no doubt thought would benefit laboratory workers. The NY bill was introduced under pressure from the Service Employees International Union 1199. As a licensed physician, I understand the importance of licensure. It ensures that the credentials of an individual meet basic requirements to provide a service. Most licensing agencies also have a responsibility to act if a licensed individual misbehaves. The law in New York goes way past this basic premise.
Proposed regulations for this new statute—the first such law to be enacted in any state since the Clinical Laboratory Improvement Amendments of 1988 were implemented—create huge barriers to hiring and advancement. Highly specific educational requirements disqualify excellent entry-level applicants. The law creates only three classes of laboratory workers: clinical laboratory technologists, technicians, and cytotechnologists. Histotechnology is written out of existence via a requirement that histotechnologists must also be licensed laboratory technologists. We are still not sure what will happen for pathology assistants. Limited grandfathering provisions do provide some insulation for current workers, but the long-term outlook for adequate staffing in this regulatory environment is not good. The law also excludes out-of-state laboratories that provide services to New Yorkers. It establishes two standards of care. If all goes as expected, there is one result we can predict: a decline in quality due to understaffing.
Though proponents have argued that licensure would improve the income and stature of laboratory personnel, the limited available data suggest that licensure may rather create workforce shortages. Four of the five large-population states with clinical laboratory personnel licensure had fewer laboratory workers per capita than Illinois, a non-licensure state. And the U.S. Bureau of Labor Statistics reports that seven of the 11 states that do have licensure programs fall below the national mean of $43,060 for medical technologist wages and $30,200 for medical technicians.
In fact, the draft New York regulations impose a heavy financial burden on licensees. In our laboratory, we estimate our approximate 700 technical employees will write checks for at least a total of $210,000 to the state of New York this month to participate in a mandatory system that will restrict promotions based on licensure.
The CAP is opposed to licensure and, of course, its unpredictable effects. Licensure has not been associated with increased income or improved quality andhasbeen structured (at least in New York) to restrict performance-based or experience-based entry and achievement. One has to ask if the quality of the employee in our laboratory will be improved by this act. I doubt it. The bottom line is that licensing of laboratory personnel is unnecessary. CLIA provides specific guidelines for medical directors with respect to the types of testing carried out by personnel in the laboratory, conferring authority to select, assign, and qualify individuals. In New York, the state already requires us to verify the credentials of laboratory personnel who work as technologists and technicians. The federal law also requires participation in a program of inspections and regular proficiency testing that ensures quality clinical laboratory performance and adherence to quality standards. These same standards require competency analysis of individuals. There is no reason on earth to place the state in the middle of this process—diluting the medical director’s authority, supplanting CLIA’s authority, closing entry to qualified applicants whose experience is equivalent to educational requirements, and creating barriers to promotion on the basis of performance.
Others in our professional community have supported the CAP’s efforts to defeat state licensure proposals. In Illinois, for example, the state histotechnology and cytotechnology organizations were key allies. The American Society for Clinical Pathology, or ASCP, in 2002 urged licensure in a hearing in Albany, and while it did object to some of the provisions, its testimony gave credibility to the process. I recognize that ASCP is an organization of 140,000 laboratory professionals, and you can understand its support given that only six percent of members are pathologists. The CAP is an organization of 16,000 laboratory professionals, 100 percent of whom are pathologists. We approach some things differently.
Earlier this year, the College conducted an electronic survey of more than 5,000 members in states that do not have existing laboratory personnel licensure laws; 678 pathologists responded. An overwhelming number (73 percent) said they believed licensure would substantially limit entry into the clinical laboratory workforce, more than half (51 percent) opposed personnel licensure requirements that exceed CLIA provisions, and more than two-thirds (68 percent) opposed licensure requirements that limited the medical director’s authority to qualify applicants for positions in their laboratories.
The College will continue to do everything possible to protect the ability of our laboratory personnel to provide quality results in a healthy work environment. In New York, the question will be which arguments will prove most persuasive to those responsible for finalizing the regulations.
Dr. Sodeman welcomes communication from CAP members. Write to him at firstname.lastname@example.org.