Interim Legislative Testimony LR191: examining the effect of universal recognition of occupational licenses

Chairman Brewer and Members of the Government Committee. My name is Laura Ebke, and I am the Senior Fellow at the Platte Institute. I focus most of my attention on barriers to entry for businesses and individuals where occupational licensing is concerned.

As many of you know, during my time in the Legislature, I served on the Judiciary Committee—including chairing it for two years. We had multiple special committees—in addition to the Judiciary Committee—exploring the problem of prison overcrowding and how to solve that while I was here, but also before I got here—and it’s a problem that you’re dealing with still.

I don’t believe that there is any one answer to our Corrections problem. There are a lot of answers suggested—and we would disagree about the worthiness of some of those answers. But we should be able to agree on one thing: if someone has spent time in our Corrections system and has served their sentence, it is better for the system—and for society—if they do not re-offend and end up in the system again. Depending on the source that is consulted, Nebraska’s rates of recidivism are somewhere around 20%, plus or minus 5 points. That means, simply, that 1 in every 5 people who are released from the corrections system will end up back there.

We know that recidivism is impacted by support structure, but also by the ability to find a way to earn a decent living honestly. I doubt that most people exiting the correctional system do so with the idea that they’re going to re-offend and end up back there. By the same token, if there are no opportunities for training, licensure, and a decent living post-release, it’s not hard to see how some end up returning to their previous lives.

Occupational licensing rules oftentimes exclude, automatically, anyone with a felony conviction, no matter what the offense or how far in the past it was. Others rules sometimes have a discretionary function, which allow licensing boards to decide whether to license someone based on felony convictions, but without definition.

In 2018, LB299 made it possible for those who had criminal records to at least petition licensing boards in advance to find out whether their background would exclude them from licensure. That, though, was a step back from the introduced version, which would have largely prohibited the automatic denial based on criminal record, unless there were defined felonies which qualified for exclusion from specific licenses. For instance, someone who has a felony child abuse record could reasonably be excluded from a teaching or childcare license; someone who has a record of felony controlled substances sales might be excluded from pharmacy technician registration/licensure.

Ultimately, the goal should not be automatic denial, but rather a firm reason FOR denial of licensure—a reason that has a nexus between the conviction and the license being sought.

As this committee and the Legislature consider universal recognition—either via Sen. Briese’s LB263 in January, or in any of the other more limited forms that it appears for military spouses or health care workers—you should consider whether our current licensing structure will allow someone who may have been fully licensed in one state—with a felony conviction of some sort—to be recognized in Nebraska.

I believe that the best course of action is to modify the Occupational Board Reform Act to include something akin to its 2017 introduced language, which would ultimately require the assorted licensing boards and practice acts that we have here in the state to define specific felonies (or types of felonies) which would exclude one from licensure in Nebraska.

Whether it’s done in 2022 or later, I believe that Universal Recognition will come to Nebraska, just as it is spreading across the country, as you can see by the Institute for Justice and Goldwater Institute analyses that I’ve passed around. We should be thinking now about how to make that work as smoothly as possible.

Universal recognition is a good way of fast-tracking needed, licensed, occupations into our state, and building our workforce.  But for the sake of those leaving Nebraska’s correctional system, or those who may have a felony record in the distant past in their state of origin, we would be well-served by finding ways to tighten up language so that any exclusions that we feel necessary are clearly defined.

Thank you conducting the hearing on this study, and allowing the diverse group of testifiers to talk with you. If you have any questions for me, I’d be happy to try and answer them.