Second Substitute H.B. 75

Representative Brian M. Greene proposes the following substitute bill:

1 OCCUPATIONAL AND PROFESSIONAL LICENSING
2 AMENDMENTS
3 2013 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Brian M. Greene
6 Senate Sponsor: Howard A. Stephenson
7
8 LONG TITLE
9 General Description:
10 This bill modifies the Occupational and Professional Licensure Review Committee Act
11 and Title 58, Occupations and Professions.
12 Highlighted Provisions:
13 This bill:
14 . defines terms;
15 . requires a person who proposes that the state license an occupation or profession
16 that is not currently licensed by the state to submit an application for a sunrise
17 review by the Occupational and Professional Licensure Review Committee;
18 . requires that the committee conduct sunrise and sunset reviews for all occupations
19 and professions:
20 . proposed to be newly regulated; and
21 . that are subject to their related statutes being terminated under Section
22 63I-1-258;
23 . requires that when conducting a sunrise or sunset review, the committee shall:
24 . consider whether state licensing of the profession is necessary to address a
25 compelling state interest in protecting against present, recognizable, and

26 significant harm to the health or safety of the public;
27 . if the committee determines that state licensing of the profession is not
28 necessary to protect the health or safety of the public, recommend to the
29 Legislature that the state refrain from licensing the profession;
30 . if the committee determines that state licensing of the profession is necessary to
31 protect the health or safety of the public, consider whether the proposed or
32 existing statute is narrowly tailored to protect the health or safety of the public;
33 and
34 . recommend to the Legislature any changes to the proposed or existing statute to
35 ensure it is narrowly tailored to protect the health or safety of the public;
36 . requires the committee to study alternatives to professional licensing in 2013,
37 including registration and certification;
38 . requires that legislation proposing the licensing or regulation of an occupation or
39 profession under Title 58, Occupations and Professions:
40 . may not be enacted by the Legislature until the proposal has been reviewed by
41 the committee; and
42 . shall include a repeal date in Section 63I-1-258 that is no later than 10 years
43 after the effective date of the legislation; and
44 . makes technical changes.
45 Money Appropriated in this Bill:
46 None
47 Other Special Clauses:
48 None
49 Utah Code Sections Affected:
50 AMENDS:
51 36-23-101.5, as enacted by Laws of Utah 2007, Chapter 137
52 36-23-102, as last amended by Laws of Utah 2008, Chapter 218
53 36-23-103, as last amended by Laws of Utah 2008, Chapter 218
54 36-23-104, as last amended by Laws of Utah 2010, Chapter 286
55 36-23-105, as enacted by Laws of Utah 1999, Chapter 152
56 36-23-106, as last amended by Laws of Utah 2012, Chapter 242

57 36-23-107, as last amended by Laws of Utah 2007, Chapter 137
58 ENACTS:
59 36-23-109, Utah Code Annotated 1953
60 58-1-110, Utah Code Annotated 1953
61
62 Be it enacted by the Legislature of the state of Utah:
63 Section 1. Section 36-23-101.5 is amended to read:
64 36-23-101.5. Definitions.
65 As used in this chapter:
66 (1) "Committee" means the Occupational and Professional Licensure Review
67 Committee created in Section 36-23-102 .
68 (2) "Government requestor" means:
69 (a) the governor;
70 (b) an executive branch officer other than the governor;
71 (c) an executive branch agency;
72 (d) a legislator; or
73 (e) a legislative committee.
74 [(2)] (3) "Newly regulate" means to regulate under Title 58, Occupations and
75 Professions, an occupation or profession not regulated under Title 58 before the enactment of
76 the new regulation.
77 [(3)] (4) "Proposal" means:
78 (a) an application submitted under Section 36-23-105 , with or without specific
79 proposed statutory language;
80 (b) a request for review by a legislator of the possibility of newly regulating an
81 occupation or profession, with or without specific proposed statutory language; or
82 (c) proposed [or introduced] legislation to newly regulate an occupation or profession
83 referred to the committee by another legislative committee.
84 [(4)] (5) "Sunrise review" means a review under this chapter of a proposal to newly
85 regulate an occupation or profession.
86 (6) "Sunset review" means a review under this chapter of a statute:
87 (a) regarding a licensed profession under Title 58, Occupations and Professions; and

88 (b) that is scheduled for termination under Section 63I-1-258 .
89 Section 2. Section 36-23-102 is amended to read:
90 36-23-102. Occupational and Professional Licensure Review Committee.
91 (1) There is created the Occupational and Professional Licensure Review Committee.
92 (2) The committee consists of nine members appointed as follows:
93 (a) three members of the House of Representatives, appointed by the speaker of the
94 House of Representatives, no more than two from the same political party;
95 (b) three members of the Senate, appointed by the president of the Senate, no more
96 than two from the same political party; and
97 (c) three public members appointed jointly by the speaker of the House of
98 Representatives and the president of the Senate [as follows] from the following two groups:
99 (i) [two members who have] at least one member who has previously served, but [are]
100 is no longer serving, on any [of the] advisory [boards] board created under Title 58,
101 Occupations and Professions; and
102 (ii) at least one member from the general public who does not hold any type of license
103 issued by the Division of Occupational and Professional Licensing.
104 (3) (a) The speaker of the House of Representatives shall designate a member of the
105 House of Representatives appointed under Subsection (2)(a) as a cochair of the committee.
106 (b) The president of the Senate shall designate a member of the Senate appointed under
107 Subsection (2)(b) as a cochair of the committee.
108 Section 3. Section 36-23-103 is amended to read:
109 36-23-103. Committee terms -- Vacancies.
110 (1) A legislator serving on the committee shall serve a two-year term or until the
111 legislator's successor is appointed.
112 (2) (a) Except as provided in Subsection (2)(b), a public member shall serve a
113 three-year term or until the public member's successor is appointed.
114 (b) The speaker of the House of Representatives and the president of the Senate shall,
115 at the time of appointment or reappointment, adjust the length of terms of the public members
116 to ensure that approximately one of the public members is appointed every year.
117 (3) A legislative or public member of the committee may serve one or more terms.
118 (4) (a) A vacancy occurs:

119 (i) when a legislative member ceases to be a member of the Legislature; [or]
120 (ii) when a member of the committee resigns from the committee[.]; or
121 (iii) when a member is removed by the appointing authority for cause.
122 (b) A vacancy shall be filled by the appointing authority, and the replacement member
123 shall serve for the remaining unexpired term.
124 Section 4. Section 36-23-104 is amended to read:
125 36-23-104. Committee meetings -- Compensation -- Quorum -- Legislative rules.
126 (1) The committee [may] shall meet as needed, at the call of the committee chairs, to
127 carry out the duties [set forth] described in [Section 36-23-106 ] this chapter.
128 (2) A public member may not receive compensation or benefits for the member's
129 service, but may receive per diem and travel expenses in accordance with:
130 (a) Section 63A-3-106 ;
131 (b) Section 63A-3-107 ; and
132 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
133 63A-3-107 .
134 (3) (a) Five members of the committee constitute a quorum.
135 (b) If a quorum is present, the action of a majority of members present is the action of
136 the committee.
137 (4) Except as provided in Subsection (3), in conducting all its business, the committee
138 shall comply with the rules of legislative interim committees regarding motions.
139 Section 5. Section 36-23-105 is amended to read:
140 36-23-105. Applications -- Fees.
141 (1) [Representatives of occupations or professions who desire to have their occupation
142 or profession licensed or regulated by the state may] If a government requestor or a
143 representative of an occupation or profession that is not licensed by the state proposes that the
144 state license or regulate an occupation or profession, the requestor or representative shall, prior
145 to the introduction of any proposed legislation, submit an application for sunrise review to the
146 Office of Legislative Research and General Counsel in a form approved by the committee.
147 (2) [Applicants shall submit] If an application is submitted by a representative of an
148 occupation or profession, the application shall include a nonrefundable fee of $500 [with each
149 application].

150 (3) All application fees shall be deposited in the General Fund.
151 Section 6. Section 36-23-106 is amended to read:
152 36-23-106. Duties -- Reporting.
153 (1) The committee shall:
154 (a) conduct a sunrise review in accordance with Section 36-23-107 [for all
155 applications], within 12 months, for each application submitted in accordance with Section
156 36-23-105 ;
157 (b) (i) conduct a sunset review for [an occupational or professional license
158 classification that is referred to the committee by any other legislative committee by applying:]
159 all statutes regarding a licensed occupation or profession under Title 58, Occupations and
160 Professions, that are scheduled for termination under Section 63I-1-258;
161 [(i) the criteria in Section 36-23-107 ;]
162 [(ii) the criteria in Title 63I, Chapter 1, Legislative Oversight and Sunset Act; and]
163 [(iii) any other appropriate criteria; and]
164 [(c) submit a written report by no later than December 31 of each calendar year to:]
165 [(i) the speaker of the House of Representatives;]
166 [(ii) the president of the Senate;]
167 [(iii) the chair of the House Rules Committee;]
168 [(iv) the chair of the Senate Rules Committee; and]
169 [(v) the chairs of the Business, Economic Development, and Labor Appropriations
170 Subcommittee.]
171 (ii) conduct a sunset review under this Subsection (1)(b) prior to the last general
172 session of the Legislature that is scheduled to meet before the scheduled termination date; and
173 (iii) conduct a review or study regarding any other occupational or professional
174 licensure matter referred to the committee by the Legislature, the Legislative Management
175 Committee, or other legislative committee.
176 (2) The committee shall submit an annual written report before November 1 to:
177 (a) the Legislative Management Committee; and
178 (b) the Business and Labor Interim Committee.
179 [(2)] (3) The written report required by Subsection [(1)(c)] (2) shall include:
180 (a) all findings and recommendations made by the committee [under Subsection (1) or

181 (3) in that] in the calendar year; and
182 (b) a summary report [for] of each [sunrise] review or study conducted by the
183 committee stating:
184 [(i) whether the sunrise review was conducted under Subsection (1) or (3);]
185 [(ii)] (i) whether [or not] the [sunrise] review or study included a review of specific
186 proposed or existing statutory language;
187 [(iii)] (ii) [any] action taken by the committee as a result of the [sunrise] review or
188 study; and
189 [(iv) the number of legislative members that voted in favor of the action described in
190 Subsection (2) (b)(iii).]
191 (iii) a record of the vote for each action taken by the committee.
192 [(3)] (4) The committee may[: (a) conduct a sunrise review of any proposal to newly
193 regulate an occupation or profession; (b) conduct any other review referred to it by the
194 Legislature, the Legislative Management Committee, or other legislative committee; or (c)]
195 conduct any other review or study related to regulation of an occupation or profession under
196 Title 58, Occupations and Professions[.], including:
197 (a) using the criteria described for a sunrise or sunset review described in Section
198 36-23-107 , the review of an occupation or profession that is not scheduled for future
199 termination under Section 63I-1-258 ; and
200 (b) a study or review of administrative rules related to an occupation or profession.
201 Section 7. Section 36-23-107 is amended to read:
202 36-23-107. Sunrise or sunset review -- Criteria.
203 (1) In conducting a sunrise review or a sunset review under this chapter, the committee
204 may:
205 (a) receive information from:
206 (i) representatives of the occupation or profession proposed to be newly regulated or
207 that is subject to a sunset review;
208 (ii) the Division of Occupational and Professional Licensing; or
209 (iii) any other person; and
210 (b) review [the] a proposal with or without considering proposed statutory language[;].
211 [(c) evaluate the criteria in Subsection (2) to determine whether or not the occupation

212 or profession should be regulated by the state; and]
213 [(d) as to the proposal, recommend:]
214 [(i) that the proposal be adopted by the Legislature;]
215 [(ii) that the proposal be adopted by the Legislature with recommended changes;]
216 [(iii) that the proposal not be adopted by the Legislature; or]
217 [(iv) any other action.]
218 (2) When conducting a sunrise review or sunset review under this chapter, the
219 committee shall [use the following criteria]:
220 (a) consider whether state regulation of the occupation or profession is necessary to
221 address a compelling state interest in protecting against present, recognizable, and significant
222 harm to the health or safety of the public;
223 (b) if the committee determines that state regulation of the occupation or profession is
224 not necessary to protect against present, recognizable, and significant harm to the health or
225 safety of the public, recommend to the Legislature that the state not regulate the profession;
226 (c) if the committee determines that state regulation of the occupation or profession is
227 necessary in protecting against present, recognizable, and significant harm to the health or
228 safety of the public, consider whether the proposed or existing statute is narrowly tailored to
229 protect against present, recognizable, and significant harm to the health or safety of the public;
230 and
231 (d) recommend to the Legislature any necessary changes to the proposed or existing
232 statute to ensure it is narrowly tailored to protect against present, recognizable, and significant
233 harm to the health or safety of the public.
234 (3) In its performance of each sunrise review or sunset review, the committee may
235 apply the following criteria, to the extent that it is applicable:
236 (a) whether [or not] the unregulated practice of the occupation or profession has clearly
237 harmed or may harm or endanger the health, safety, or welfare of the public;
238 (b) whether [or not] the potential for harm or endangerment described in Subsection
239 [(2)] (3)(a) is easily recognizable and not remote;
240 [(c) whether or not the public needs, and can reasonably be expected to benefit from,
241 an assurance of initial and continuing occupational or professional competence;]
242 (c) whether regulation of the occupation or profession will significantly diminish an

243 identified risk to the health, safety, or welfare of the public;
244 (d) whether [or not] regulation of the occupation or profession:
245 (i) imposes significant new economic hardship on the public;
246 (ii) significantly diminishes the supply of qualified practitioners; or
247 (iii) otherwise creates barriers to service that are not consistent with the public welfare
248 or interest;
249 (e) whether [or not] the occupation or profession requires knowledge, skills, and
250 abilities that are:
251 (i) teachable; and
252 (ii) testable;
253 (f) whether [or not] the occupation or profession is clearly distinguishable from other
254 occupations or professions that are already regulated;
255 (g) whether [or not] the occupation or profession has:
256 (i) an established code of ethics;
257 (ii) a voluntary certification program; or
258 (iii) other measures to ensure a minimum quality of service;
259 (h) whether [or not]:
260 (i) the occupation or profession involves the treatment of an illness, injury, or health
261 care condition; and
262 (ii) practitioners of the occupation or profession will request payment of benefits for
263 the treatment under an insurance contract subject to Section 31A-22-618 ;
264 (i) whether [or not] the public can be adequately protected by means other than
265 regulation; and
266 (j) other appropriate criteria as determined by the committee.
267 Section 8. Section 36-23-109 is enacted to read:
268 36-23-109. Review of state regulation of occupations and professions.
269 Before the annual written report described in Section 36-23-107 is submitted for 2013,
270 the committee shall study potentially less restrictive alternatives to licensing for the regulation
271 of occupations and professions, including registration and certification if appropriate, that
272 would better avoid unnecessary regulation and intrusion upon individual liberties by the state,
273 while still protecting the health and safety of the public.

274 Section 9. Section 58-1-110 is enacted to read:
275 58-1-110. Legislative review in Title 58, Occupations and Professions.
276 Legislation proposing the licensing or regulation of an occupation or profession under
277 Title 58, Occupations and Professions, that is not currently subject to licensing or regulation
278 under Title 58, Occupations and Professions:
279 (1) may not be enacted by the Legislature unless a proposal to license or regulate the
280 occupation or profession has been reviewed by the Occupational and Professional Licensure
281 Review Committee as described in Title 36, Chapter 23, Occupational and Professional
282 Licensure Review Committee Act;
283 (2) is subject to a reauthorization schedule as described in Title 63I, Chapter 1,
284 Legislative Oversight and Sunset Act; and
285 (3) shall include a repeal date in Section 63I-1-258 that is no later than 10 years after
286 the effective date of the legislation.

[Bill Documents]