Senator Wayne A. Harper proposes the following substitute bill:


1     
PROFESSIONAL LICENSING AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Wayne A. Harper

5     
House Sponsor: Brian M. Greene

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Occupational and Professional Licensure Review Committee Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     modifies the responsibilities of the Occupational and Professional Licensure Review
14     Committee; and
15          ▸     makes technical changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          This bill provides a coordination clause.
20     Utah Code Sections Affected:
21     AMENDS:
22          36-23-101.5, as last amended by Laws of Utah 2013, Chapter 323
23          36-23-102, as last amended by Laws of Utah 2013, Chapter 323
24          36-23-105, as last amended by Laws of Utah 2013, Chapter 323
25          36-23-106, as last amended by Laws of Utah 2013, Chapter 323
26          36-23-107, as last amended by Laws of Utah 2013, Chapter 323
27          36-23-109, as last amended by Laws of Utah 2014, Chapter 189
28     Utah Code Sections Affected by Coordination Clause:
29          36-23-101.5, as last amended by Laws of Utah 2013, Chapter 323
30          36-23-102, as last amended by Laws of Utah 2013, Chapter 323
31          36-23-105, as last amended by Laws of Utah 2013, Chapter 323
32          36-23-106, as last amended by Laws of Utah 2013, Chapter 323
33          36-23-107, as last amended by Laws of Utah 2013, Chapter 323
34          36-23-109, as last amended by Laws of Utah 2014, Chapter 189
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 36-23-101.5 is amended to read:
38          36-23-101.5. Definitions.
39          As used in this chapter:
40          (1) "Committee" means the Occupational and Professional Licensure Review
41     Committee created in Section 36-23-102.
42          (2) "Government requestor" means:
43          (a) the governor;
44          (b) an executive branch officer other than the governor;
45          (c) an executive branch agency;
46          (d) a legislator; or
47          (e) a legislative committee.
48          (3) "Lawful occupation" means a course of conduct, pursuit, or profession that includes
49     the sale of goods or services that are not illegal to sell, irrespective of whether the individual
50     selling the goods or services is subject to an occupational regulation.
51          (4) "License" or "licensing" means a state-granted authorization for a person to engage
52     in a specified lawful occupation:
53          (a) based on the person meeting personal qualifications established under state law;
54     and
55          (b) where state law requires the authorization before the person may lawfully engage in
56     the occupation for compensation.
57          [(3)] (5) "Newly regulate" means to [regulate under Title 58, Occupations and
58     Professions, an occupation or profession not regulated under Title 58, Occupations and
59     Professions, before the enactment of the new regulation] create by statute or administrative rule
60     a new license, certification, registration, or exemption classification regarding a lawful
61     occupation.
62          (6) "Personal qualifications" are criteria established in state law related to a person's
63     background and may include:
64          (a) completion of an approved education program;
65          (b) satisfactory performance on an examination;
66          (c) work experience; and
67          (d) completion of continuing education.
68          [(4)] (7) "Proposal" means:
69          (a) an application submitted under Section 36-23-105, with or without specific
70     proposed statutory language;
71          (b) a request for review by a legislator of the possibility of newly regulating [an
72     occupation or profession] a lawful occupation, with or without specific proposed statutory
73     language; or
74          (c) proposed legislation to newly regulate [an occupation or profession] a lawful
75     occupation referred to the committee by another legislative committee.
76          (8) "State certification" means a state-granted authorization given to a person to use the
77     term "state certified" as part of a designated title related to engaging in a specified lawful
78     occupation:
79          (a) based on the person meeting personal qualifications established under state law;
80     and
81          (b) where state law prohibits a noncertified person from using the term "state certified"
82     as part of a designated title, but does not otherwise prohibit a noncertified person from
83     engaging in the lawful occupation for compensation.
84          (9) "State registration" means a state-granted authorization given to a person to use the
85     term "state registered" as part of a designated title related to engaging in a specified lawful
86     occupation:
87          (a) based on the person meeting requirements established under state law, which may
88     include the person's name and address, the person's agent for service of process, the location of
89     the activity to be performed, and bond or insurance requirements;
90          (b) where state law does not require the person to meet any personal qualifications; and
91          (c) where state law prohibits a nonregistered person from using the term "state
92     registered" as part of a designated title.
93          [(5)] (10) "Sunrise review" means a review under this chapter of a proposal to newly
94     regulate [an occupation or profession] a lawful occupation.
95          [(6)] (11) "Sunset review" means a review under this chapter of a statute[: (a) regarding
96     a licensed profession under Title 58, Occupations and Professions; and (b)] regarding a
97     regulated lawful occupation that is scheduled for termination under [Section 63I-1-258] Title
98     63I, Chapter 1, Part 2, Repeal Dates by Title.
99          Section 2. Section 36-23-102 is amended to read:
100          36-23-102. Occupational and Professional Licensure Review Committee.
101          (1) There is created the Occupational and Professional Licensure Review Committee.
102          (2) The committee consists of nine members appointed as follows:
103          (a) three members of the House of Representatives, appointed by the speaker of the
104     House of Representatives, with no more than two appointees from the same political party;
105          (b) three members of the Senate, appointed by the president of the Senate, with no
106     more than two appointees from the same political party; and
107          (c) three public members appointed jointly by the speaker of the House of
108     Representatives and the president of the Senate from the following two groups:
109          (i) at least one member who has previously served, but is no longer serving, on [any]
110     an advisory board created under Title 58, Occupations and Professions; and
111          (ii) at least one member from the general public who does not hold [any type of] a
112     license issued by the Division of Occupational and Professional Licensing.
113          (3) (a) The speaker of the House of Representatives shall designate a member of the
114     House of Representatives appointed under Subsection (2)(a) as a cochair of the committee.
115          (b) The president of the Senate shall designate a member of the Senate appointed under
116     Subsection (2)(b) as a cochair of the committee.
117          Section 3. Section 36-23-105 is amended to read:
118          36-23-105. Applications -- Fees.
119          (1) If a government requestor or a representative of [an occupation or profession] a
120     lawful occupation that is not licensed by the state proposes that the state license or newly
121     regulate [an occupation or profession] a lawful occupation, the requestor or representative
122     shall, prior to the introduction of any proposed legislation, submit an application for sunrise
123     review to the Office of Legislative Research and General Counsel in a form approved by the
124     committee.
125          (2) Along with any other information requested by the committee, the application shall
126     include a description of:
127          (a) why licensing or other regulation of the lawful occupation is required to protect
128     against present, recognizable, and significant harm to the health or safety of the public; and
129          (b) what is the least restrictive regulation of the lawful occupation that would protect
130     against recognizable and significant harm to the health or safety of the public.
131          [(2)] (3) If an application is submitted by a representative of [an occupation or
132     profession] a lawful occupation, the application shall include a nonrefundable fee of $500.
133          [(3)] (4) All application fees shall be deposited [in] into the General Fund.
134          Section 4. Section 36-23-106 is amended to read:
135          36-23-106. Duties -- Reporting.
136          (1) The committee shall:
137          (a) for each application submitted in accordance with Section 36-23-105, conduct a
138     sunrise review in accordance with Section 36-23-107 before November 1:
139          (i) of the year in which the application is submitted, if the application is submitted on
140     or before July 1; or
141          (ii) of the year following the year in which the application is submitted, if the
142     application is submitted after July 1;
143          (b) (i) conduct a sunset review for [all statutes] each statute regarding a [licensed
144     occupation or profession under Title 58, Occupations and Professions, that are] regulated
145     lawful occupation that is scheduled for termination under [Section 63I-1-258] Title 63I,
146     Chapter 1, Part 2, Repeal Dates by Title;
147          (ii) conduct a sunset review under this Subsection (1)(b) before November 1 of the year
148     prior to the last general session of the Legislature that is scheduled to meet before the
149     scheduled termination date; and
150          (iii) conduct a review or study regarding any other occupational or professional
151     licensure or other regulation matter referred to the committee by the Legislature, the Legislative
152     Management Committee, or other legislative committee.
153          (2) (a) The committee may conduct a review or study regarding any occupational or
154     professional regulation matter.
155          (b) In conducting a review or study under this Subsection (2), the committee shall
156     consider if the committee's recommendations would negatively affect the interest of members
157     of the regulated lawful occupation, including the effect on matters of reciprocity with other
158     states.
159          [(2)] (3) The committee shall submit an annual written report before November 1 to:
160          (a) the Legislative Management Committee; and
161          (b) the Business and Labor Interim Committee.
162          [(3)] (4) The written report required by Subsection [(2)] (3) shall include:
163          (a) all findings and recommendations made by the committee in the calendar year; and
164          (b) a summary report of each review or study conducted by the committee stating:
165          (i) whether the review or study included a review of specific proposed or existing
166     statutory language;
167          (ii) action taken by the committee as a result of the review or study; and
168          (iii) a record of the vote for each action taken by the committee.
169          Section 5. Section 36-23-107 is amended to read:
170          36-23-107. Sunrise or sunset review -- Criteria.
171          (1) In conducting a sunrise review or a sunset review under this chapter, the committee
172     may:
173          (a) receive information from:
174          (i) representatives of the [occupation or profession] lawful occupation proposed to be
175     newly regulated or that is subject to a sunset review;
176          (ii) the Division of Occupational and Professional Licensing; or
177          (iii) any other person; and
178          (b) review a proposal with or without considering proposed statutory language.
179          (2) When conducting a sunrise review or sunset review under this chapter, the
180     committee shall:
181          (a) consider whether state regulation of the [occupation or profession] lawful
182     occupation is necessary to address a compelling state interest in protecting against present,
183     recognizable, and significant harm to the health or safety of the public;
184          (b) consider if the committee's recommendations to the Legislature would negatively
185     affect the interests of members of the regulated lawful occupation, including the effect on
186     matters of reciprocity with other states;
187          [(b)] (c) if the committee determines that state regulation of the [occupation or
188     profession] lawful occupation is not necessary to protect against present, recognizable, and
189     significant harm to the health or safety of the public, recommend to the Legislature that the
190     state not regulate the profession;
191          [(c)] (d) if the committee determines that state regulation of the [occupation or
192     profession] lawful occupation is necessary in protecting against present, recognizable, and
193     significant harm to the health or safety of the public, consider whether:
194          (i) the proposed or existing statute is narrowly tailored to protect against present,
195     recognizable, and significant harm to the health or safety of the public; and
196          (ii) a potentially less restrictive alternative to licensing, including state certification,
197     state registration, or exemption, would avoid unnecessary regulation while still protecting the
198     health and safety of the public; and
199          [(d)] (e) recommend to the Legislature any necessary changes to the proposed or
200     existing statute to ensure it is narrowly tailored to protect against present, recognizable, and
201     significant harm to the health or safety of the public.
202          (3) In its performance of each sunrise review or sunset review, the committee may
203     apply the following criteria, to the extent that it is applicable:
204          (a) whether the unregulated practice of the occupation or profession has clearly harmed
205     or may harm or endanger the health, safety, or welfare of the public;
206          (b) whether the potential for harm or endangerment described in Subsection (3)(a) is
207     easily recognizable and not remote;
208          (c) whether regulation of the occupation or profession will significantly diminish an
209     identified risk to the health, safety, or welfare of the public;
210          (d) whether regulation of the [occupation or profession] lawful occupation:
211          (i) imposes significant new economic hardship on the public;
212          (ii) significantly diminishes the supply of qualified practitioners; or
213          (iii) otherwise creates barriers to service that are not consistent with the public welfare
214     or interest;
215          (e) whether the [occupation or profession] lawful occupation requires knowledge,
216     skills, and abilities that are:
217          (i) teachable; and
218          (ii) testable;
219          (f) whether the [occupation or profession] lawful occupation is clearly distinguishable
220     from other [occupations or professions] lawful occupations that are already regulated;
221          (g) whether the [occupation or profession] lawful occupation has:
222          (i) an established code of ethics;
223          (ii) a voluntary certification program; or
224          (iii) other measures to ensure a minimum quality of service;
225          (h) whether:
226          (i) the [occupation or profession] lawful occupation involves the treatment of an
227     illness, injury, or health care condition; and
228          (ii) practitioners of the [occupation or profession] lawful occupation will request
229     payment of benefits for the treatment under an insurance contract subject to Section
230     31A-22-618;
231          (i) whether the public can be adequately protected by means other than regulation; and
232          (j) other appropriate criteria as determined by the committee.
233          Section 6. Section 36-23-109 is amended to read:
234          36-23-109. Review of state regulation of occupations and professions.
235          (1) [Before the annual written report] As part of the annual report described in Section
236     36-23-106 [is submitted for 2013], the committee shall study and make recommendations
237     regarding potentially less restrictive alternatives to licensing for the regulation of [occupations
238     and professions] lawful occupations, including registration [and], certification, or exemption, if
239     appropriate, that would [better] avoid unnecessary regulation [and intrusion upon individual
240     liberties by the state,] while still protecting the health and safety of the public.
241          (2) The committee shall study and make recommendations regarding lawful
242     occupations that require a license in the state so that each licensed lawful occupation is
243     reviewed every 10 years.
244          Section 7. Coordinating S.B. 212 with H.B. 94 -- Superceding amendments.
245          If this S.B. 212 and H.B. 94, Occupational and Professional Licensure Review
246     Committee Amendments, both pass and become law, it is the intent of the Legislature that the
247     amendments to Sections 36-23-101.5, 36-23-102, 36-23-105, 36-23-106, 36-23-107, and
248     36-23-109 in this bill supersede the amendments to the same sections in H.B. 94, Occupational
249     and Professional Licensure Review Committee Amendments, when the Office of Legislative
250     Research and General Counsel prepares the Utah Code database for publication.