Effective 28 Aug 2018

324.047. Guidelines for regulation of certain occupations and professions — definitions — limitation on state regulation, requirements — reports. — 1. The purpose of this section is to promote general welfare by establishing guidelines for the regulation of occupations and professions not regulated prior to January 1, 2019, and guidelines for combining any additional occupations or professions under a single license regulated by the state prior to January 1, 2019.

2. For purposes of this section, the following terms mean:

(1) "Applicant group", any occupational or professional group or organization, any individual, or any other interested party that seeks to be licensed or further regulated or supports any bill that proposes to combine any additional occupations or professions under a single license regulated by the state prior to January 1, 2019;

(2) "Certification", a program in which the government grants nontransferable recognition to an individual who meets personal qualifications established by a regulatory entity. Upon approval, the individual may use "certified" as a designated title. This term shall not be synonymous with an occupational license;

(3) "Department", the department of commerce and insurance;

(4) "Director", the director of the division of professional registration;

(5) "Division", the division of professional registration;

(6) "General welfare", the concern of the government for the health, peace, morality, and safety of its residents;

(7) "Lawful occupation", a course of conduct, pursuit, or profession that includes the sale of goods or services that are not themselves illegal to sell irrespective of whether the individual selling them is subject to an occupational regulation;

(8) "Least restrictive type of occupational regulation", the regulation that is least restrictive, in which the following list of regulations in order from least to most restrictive is used to make such determination:

(a) Bonding or insurance;

(b) Registration;

(c) Certification;

(d) Occupational license;

(9) "Occupational license", a nontransferable authorization in law for an individual to perform a lawful occupation for compensation based on meeting personal qualifications established by a regulatory entity and that, if not possessed, prohibits the individual from performing the occupation for compensation;

(10) "Occupational regulation", a statute, ordinance, rule, practice, policy, or other law requiring an individual to possess certain personal qualifications to work in a lawful occupation;

(11) "Personal qualifications", criteria related to an individual's personal background, including completion of an approved educational program, satisfactory performance on an examination, work experience, criminal history, and completion of continuing education;

(12) "Practitioner", an individual who has achieved knowledge and skill by practice and is actively engaged in a specified occupation or profession;

(13) "Registration", a requirement established by the general assembly in which an individual:

(a) Submits notification to a state agency; and

(b) May use "registered" as a designated title.

­­Notification may include the individual's name and address, the individual's agent for service of process, the location of the activity to be performed, and a description of the service the individual provides. Registration may include a requirement to post a bond but does not include education or experience requirements. If the requirement of registration is not met, the individual is prohibited from performing the occupation for compensation or using "registered" as a designated title. The term "registration" shall not be synonymous with an occupational license;

(14) "Regulatory entity", any board, commission, agency, division, or other unit or subunit of state government that regulates one or more professions, occupations, industries, businesses, or other endeavors in this state;

(15) "State agency", every state office, department, board, commission, regulatory entity, and agency of the state. The term "state agency" includes, if provided by law, programs and activities involving less than the full responsibility of a state agency;

(16) "Substantial burden", a requirement in an occupational regulation that imposes significant difficulty or cost on an individual seeking to enter into or continue in a lawful occupation and is more than an incidental burden.

3. All individuals may engage in the occupation of their choice, free from unreasonable government regulation. The state shall not impose a substantial burden on an individual's pursuit of his or her occupation or profession unless there is a reasonable interest for the state to protect the general welfare. If such an interest exists, the regulation adopted by the state shall be the least restrictive type of occupational regulation consistent with the public interest to be protected.

4. All bills introduced in the general assembly to regulate, pursuant to subsection 6 of this section, an occupation or profession shall be reviewed according to the following criteria. An occupation or profession shall be regulated by the state if:

(1) Unregulated practice could cause harm and endanger the general welfare, and the potential for further harm and endangerment is recognizable;

(2) The public can reasonably be expected to benefit from an assurance of personal qualifications; and

(3) The general welfare cannot be sufficiently protected by other means.

5. After evaluating the criteria in subdivision (3) of this subsection and considering governmental, economic, and societal costs and benefits, if the general assembly finds that the state has a reasonable interest in regulating, pursuant to subsection 6 of this section, an occupation or profession not previously regulated by law, the most efficient form of regulation shall be implemented, consistent with this section and with the need to protect the general welfare, as follows:

(1) If the threat to the general welfare resulting from the practitioner's services is easily predictable, the regulation shall implement a system of insurance, bonding, or registration;

(2) If the consumer has challenges accessing credentialing information or possesses significantly less information on how to report abuses such that the practitioner puts the consumer in a disadvantageous position relative to the practitioner to judge the quality of the practitioner's services, the regulation shall implement a system of certification; and

(3) If other regulatory structures, such as bonding, insurance, registration, and certification, insufficiently protect the general welfare from recognizable harm, the regulation shall implement a system of licensing.

6. After January 1, 2019, any relevant regulatory entity shall report, and the department shall make available to the general assembly, upon the filing of a bill that proposes additional regulation of a profession or occupation currently regulated by the regulatory entity, the following factors to the department:

(1) A description of the professional or occupational group proposed for expansion of regulation, including the number of individuals or business entities that would be subject to regulation to the extent that such information is available; the names and addresses of associations, organizations, and other groups representing the practitioners; and an estimate of the number of practitioners in each group;

(2) Whether practice of the profession or occupation proposed for expansion of regulation requires such a specialized skill that the public is not qualified to select a competent practitioner without assurances that minimum qualifications have been met;

(3) The nature and extent of potential harm to the public if the profession or occupation is not regulated as described in the bill, the extent to which there is a threat to the general welfare, and production of evidence of potential harm, including a description of any complaints filed with state law enforcement authorities, courts, departmental agencies, professional or occupational boards, and professional and occupational associations that have been lodged against practitioners of the profession or occupation in this state within the past five years. Notwithstanding the provisions of this section or any other section, the relevant regulatory entity shall provide, and the department shall make available to the general assembly, the information relating to such complaints even if the information is considered a closed record or otherwise confidential; except that, the regulatory entity and the department shall redact names and other personally identifiable information from the information released;

(4) A description of the voluntary efforts made by practitioners of the profession or occupation to protect the public through self-regulation, private certifications, membership in professional or occupational associations, or academic credentials and a statement of why these efforts are inadequate to protect the public;

(5) The extent to which expansion of regulation of the profession or occupation will increase the cost of goods or services provided by practitioners and the overall cost-effectiveness and economic impact of the proposed regulation, including the direct cost to the government and the indirect costs to consumers;

(6) The extent to which expansion of regulation of the profession or occupation would increase or decrease the availability of services to the public;

(7) The extent to which existing legal remedies are inadequate to prevent or redress the kinds of harm potentially resulting from the lack of the requirements outlined in the bill;

(8) Why bonding and insurance, registration, certification, occupational license to practice, or another type of regulation is being proposed, why that regulatory alternative was chosen, and whether the proposed method of regulation is appropriate;

(9) A list of other states that regulate the profession or occupation, the type of regulation, copies of other states' laws, and available evidence from those states of the effect of regulation on the profession or occupation in terms of a before-and-after analysis;

(10) The details of any previous efforts in this state to implement regulation of the profession or occupation;

(11) Whether the proposed requirements for regulation exceed the national industry standards of minimal competence, if such standards exist, and what those standards are if they exist; and

(12) The method proposed to finance the proposed regulation and financial data pertaining to whether the proposed regulation can be reasonably financed by current or proposed licensees through dedicated revenue mechanisms.

7. If no existing regulatory entity regulates the occupation or profession to be regulated in the bill, the department shall report and make available to the general assembly, upon the filing of a bill after January 1, 2019, that proposes new regulation of a profession or occupation, the following factors:

(1) A description of the professional or occupational group proposed for regulation, including the number of individuals or business entities that would be subject to regulation to the extent that such information is available; the names and addresses of associations, organizations, and other groups representing the practitioners; and an estimate of the number of practitioners in each group;

(2) The nature and extent of potential harm to the public if the profession or occupation is not regulated, the extent to which there is a threat to the general welfare, and production of evidence of potential harm, including a description of any complaints filed with state law enforcement authorities, courts, departmental agencies, professional or occupational boards, and professional and occupational associations that have been lodged against practitioners of the profession or occupation in this state within the past five years. Notwithstanding the provisions of this section or any other section, the department shall release the information relating to such complaints even if the information is considered a closed record or otherwise confidential; except that, the department shall redact names and other personally identifiable information from the information released;

(3) A list of other states that regulate the profession or occupation, the type of regulation, copies of other states' laws, and available evidence from those states of the effect of regulation on the profession or occupation in terms of a before-and-after analysis;

(4) The details of any previous efforts in this state to implement regulation of the profession or occupation; and

(5) Whether the proposed requirements for regulation exceed the national industry standards of minimal competence, if such standards exist, and what those standards are if they exist.

8. After January 1, 2019, applicant groups may report to the department, and the department shall make available to the general assembly, any of the information required in subsection 6 or 7 of this section and whether the profession or occupation plans to apply for mandated benefits.

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(L. 2018 H.B. 1500 merged with H.B. 1719)