Proposed establishment of a program for certifying individuals who fit prescription footwear (pedorthists)…

Proposed establishment of a program for certifying individuals who fit prescription footwear (pedorthists), and facilities which

provide pedorthic services, File 783 7008.
Opinion Letter
June 15, 1978
Dear Mr. Krill:

This is in response to your request for an advisory opinion concerning a certification program proposed by the Board for Certification in Pedorthics (BCP). After considering your request, the Commission has determined that it cannot approve the program. According to your submission, the BCP proposes establishment of a program for certifying individuals who fit prescription footwear (pedorthists) and facilities which provide pedorthic services. Certified individuals would be required to fulfill certain continuing education obligations, pay an annual fee, and adhere to a code of ethical professional conduct. Facilities would be certified upon a demonstration that they meet certain minimum requirements. The Commission recognizes that certification programs can be helpful to consumers by informing them that practitioners (and establishments) meet meaningful levels of occupational competency. All such programs, however, must be carefully structured and implemented so that (1) consumers are not misled or unfairly affected, (2) potential entry restraints are held to a minimum; and (8) competition is not otherwise unreasonably restricted. The Commission is of the opinion that several facets of the BCP program fail these tests.

First, the requirements for qualification of applicants are too indefinite, and the purpose of certain standards for facility certification are too uncertain. For example, the requirements that an applicant have had “sufficient” clinical experience and that a facility maintain “adequate” staff and have a “professional” appearance are too subjective and could lead to arbitrary limitations on certification. Second, although an appeal process is available to rejected applicants, to facilities denied certification and to other aggrieved parties, ultimate decisions are made by the same Board which was responsible for initial adverse decisions. Moreover, although the composition of the governing Board of Directors would include directors nominated by outside organizations, such as an orthopedic medical group, a majority would consist of Prescription Footwear Association members, who are competitors of candidates for certification. mi: 1 “7 1

ADVISORY OPINIONS 1205 “ethical” obligations, imposed by “Canons ‘of Ethical Conduct” and promulgated by the Prescription Footwear Association. These provisions impose significantly increased potential for unfair or anticompetitive practices. The Canons can be construed to impose, for example, prohibitions against advertising the availability and prices of pedorthic services. This is couched in terms of distinguishing between so-called “professional” and “commercial” aspects of pedorthic practice. The Canons forbid, as well, open criticism of the services provided by a competitor. All fee sharing, presumably for shared servicing, is also unreasonably prohibited. No disclosed commercial or ethical justification for these restrictions appears. The Commission, for each of the reasons noted herein, cannot advise the BCP that its proposed certification plan is acceptable. In summary, the Commission believes that no certification program should be so structured that competing practitioners can determine who is or is not to be certified, based upon subjective, undefined criteria. Nor can the Commission approve a plan which permits ultimate certification decisions to be made, even in part, by persons not distinct and separate from the initial certification decision-makers. Finally, there is no place in such a program for rules, codes, or understandings the effect of which are to place unreasonable limitations upon effective competition.

By direction of the Commission.
Letter of Request
June 17, 1976