West Virginia-2021-HB3052-Introduced

WEST virginia legislature

2020 regular session

Introduced

House Bill 3052

By Delegate Foster

[Introduced March 10, 2021; Referred to the Committee on Government Organization then the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §29-30-1, §29-30-2, §29-30-3, §29-30-4, §29-30-5, §29-30-6, §29-30-7, §29-30-8, §29-30-9, and §29-30-10, all relating to creating the Occupational Board Reform Act; creating the Office of Supervision of Occupational Boards; providing the Attorney General’s Consumer Protection Division with the authority to establish the office; establishing the office’s responsibilities; giving the office the authority to actively supervise state occupational boards; authorizing the office to play a substantial role in the development of an occupational board’s rules and policies, including the approval and disapproval of proposed rules or policies in certain instances; providing for review and oversight by the Attorney General; requiring the Speaker of the House of Delegates and the President of the Senate to establish a position in the nonpartisan research staff to analyze occupational rules; providing for the Legislature’s analysis of occupational rules; providing a short title; establishing its policy; providing for avoidance of liability under federal anti-trust laws; defining terms; providing for statutory interpretation; providing for petitions for review of criminal history; providing for preemption; and providing an effective date.

Be it enacted by the Legislature of West Virginia:

For occupational rules and their boards, it is the policy of the state that:

(a) The right of an individual to pursue an occupation is a fundamental right.

(b) Occupational rules shall be construed and applied to increase economic opportunities, promote competition and encourage innovation.

(c) Where the state finds it is necessary to displace competition, it will use the least restrictive rule to protect consumers from present, significant and substantiated harms that threaten public health and safety.

(d) An occupational rule may be enforced against an individual only to the extent the individual sells goods and services that are included explicitly in the statute that defines the occupation’s scope of practice.

(e) The Consumer Protection Division of the Office of the Attorney General shall establish the Office of Supervision of Occupational Boards. The office shall actively supervise state occupational boards.

(f) The Legislature shall establish a position in its nonpartisan research staff to analyze occupational rules. The position shall review legislation and laws related to occupational rules.

§29-30-3. Antitrust law.

For the purposes of this article, the words defined in this section have the following meanings:

“Active supervision” means the Office of Supervision of Occupational Boards shall independently:

(1) Play a substantial role in the development of an occupational board’s rules and policies to ensure they benefit consumers and not serve private interests of providers of goods and services who the board regulates;

(2) Disapprove the use of any board rule or policy and terminate any enforcement action outstanding at the time of this article’s enactment and subsequently that fails to accord with §20-30-2 of this code;

(3) Exercise control over each of the boards by reviewing and affirmatively approving only rules, policies and enforcement actions that are consistent with §20-30-2 of this code; and use the nonpartisan research staff’s analysis in §20-30-8 of this code; and

(4) Conduct reasonable investigations to gain additional information, including about less restrictive regulatory approaches, to reduce exposure to antitrust litigation. A government or private attorney providing general counsel to a board does not meet the requirement for active supervision.

“Certification” is a voluntary program in which a private organization or the state government grants nontransferable recognition to an individual who meets personal qualifications established by the private organization or the Legislature. Upon approval, the individual may use “certified” as a designated title. A noncertified individual may also perform the lawful occupation for compensation, but may not use the title “certified.”

“Lawful occupation” means 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 rule.

“Least restrictive rule” means, from least to most restrictive:

(1) Market competition;

(2) Third-party or consumer-created ratings and reviews;

(3) Private certification;

(4) Specific private civil cause of action to remedy consumer harm;

(5) Deceptive trade practices;

(6) Regulation of the process of providing the specific goods or services to consumers;

(7) Inspection;

(8) Bonding or insurance;

(9) Registration;

(10) Government certification;

(11) Specialty occupational license for medical reimbursement; and

(12) Occupational license.

“Occupational license” is a nontransferable authorization in law for an individual to perform exclusively a lawful occupation for compensation based on meeting personal qualifications established by the Legislature. In an occupation for which a license is required, it is illegal for an individual who does not possess a valid occupational license to perform the occupation for compensation.

“Occupational rule” means a statute, rule, practice, policy or other state law that allows an individual to use an occupational title or work in a lawful occupation. It includes registration, certification and occupational license. It excludes a business license, facility license, building permit, or zoning and land use regulation except to the extent those state laws regulate an individual’s personal qualifications to perform a lawful occupation.

“Personal qualifications” are criteria related to an individual’s personal background and characteristics including completion of an approved educational program, satisfactory performance on an examination, work experience, other evidence of attainment of requisite skills or knowledge, moral standing, criminal history and completion of continuing education.

“Registration” means a requirement to give notice to the government that 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” does not include personal qualifications but may require a bond or insurance. Upon the government’s receipt of notice, the individual may use “registered” as a designated title. A nonregistered individual may not perform the occupation for compensation or use “registered” as a designated title. “Registration” is not transferable.

“Specialty occupational license for medical reimbursement” means a nontransferable authorization in law for an individual to qualify for payment or reimbursement from a government agency for the nonexclusive provision of medical services based on meeting personal qualifications established by the Legislature. A private company may recognize this credential. Notwithstanding this specialty license, it is legal for a person regulated under another occupational rule to provide similar services as defined in that statute for compensation and reimbursement. It is also legal for an individual who does not possess this specialty license to provide the identified medical services for compensation but the nonlicensed individual may not qualify for payment or reimbursement from a government agency.

§29-30-5. Statutory interpretation.

(a) The fundamental right of an individual to pursue an occupation includes the right of an individual with a criminal history to obtain an occupational license, specialty occupational license for medical reimbursement, government certification or any state recognition of the individual’s personal qualifications (hereafter “state recognition” in this section).

(b) An individual with a criminal history may petition the responsible licensing board agency or department (hereafter “board” in this section), at any time, including before obtaining any required education or paying any fee, for a determination of whether the individual’s criminal history will disqualify the individual from obtaining state recognition.

(c) Notwithstanding any other statute or rule, the board may determine whether the individual’s criminal history disqualifies the individual from obtaining state recognition.

(d)(1) The board may find the individual's criminal history disqualifies the individual from obtaining state recognition only if:

(A) The individual has a felony conviction;

(B) The type of felony for which the individual was convicted is expressly codified as a disqualifying offense in the relevant occupational license’s statute; and

(C) The board concludes the state has an important interest in protecting public safety that is superior to the individual’s right.

(2) The board may make this conclusion only if it determines, by a clear and convincing evidence at the time of the petition, that:

(A) The specific offense for which the individual was convicted is substantially related to the state’s interest;

(B) The individual, based on the nature of the specific offense for which the individual was convicted and the individual’s current circumstances, is more likely to reoffend by virtue of having the license than if the individual did not have the license; and

(e) The board shall issue its determination within 90 days after the board receives the petition. The determination shall be in writing and include a finding of facts and a conclusion of law.

(f) If the board determines the state’s interest is superior to the individual’s right, the board may advise the individual of actions the individual may take to remedy the disqualification.

(g) The individual may appeal the board’s determination as provided by the state Administrative Procedure Act.

(h) The individual may submit a new petition to the same responsible licensing board at any time two years after final judgment in the initial petition. If the new petition is submitted on the ground that the individual has undertaken the actions the board has advised him or her will remedy the disqualification, then the individual may submit a new petition at any time six months after final judgment in the initial petition.

(i) The board may rescind its determination at any time in the future if the individual is convicted of an additional offense that the board determines meets the elements in subsection (d) (1).

§29-30-7. Office of Supervision of Occupational Boards.

(a) The Consumer Protection Division of the Office of the Attorney General shall establish the Office of Supervision of Occupational Boards.

(b) Responsibility.-- The office shall actively supervise state occupational boards to ensure compliance with the policies in §29-30-2 of this code. This requires the office to be staffed by one or more attorneys who do not provide general counsel to any board and exercise control over a board’s processes and substantive actions.

(c) Approval. -- The office must review and approve or reject any proposed board rule, policy, enforcement or other regulatory action prior to it being adopted or implemented. The office’s approval must be explicit; silence or failure to act may not be considered approval.

(d) Complaint.-- A person may file a complaint to the office about a board’s rule, policy or enforcement action that the person believes is inconsistent with §29-30-2 of this code. Within 90 days, the office will investigate the complaint, identify remedies to the complaint, instruct the board to act, where appropriate, and respond in writing to the person. There is no administrative appeal available to the person of the office’s decision under the state Administrative Procedure Act.

(e) Attorney general’s review. -- A state legislator may ask the Attorney General to review:

(1) A board’s rule, policy, or enforcement action that the state legislator believes is inconsistent with §29-30-2 of this code;

(2) The office’s active supervision of a board; or

(3) The office’s response to a complaint filed under subsection (d) of this section.

(f) Cost Allocation. -- The office and the Attorney General may assess its costs on each board for its services of active supervision and review. Each board may recoup the assessment by increasing the fees paid to each board by license holders.

§29-30-8. The Legislature’s analysis of occupational rules.

(a) Legislature’s analysis of occupational rules. -- The Speaker of the House of Delegates and the President of the Senate shall establish a position in the nonpartisan research staff to analyze occupational rules.

(b) Sunrise reviews. -- (1) The position shall review legislation to enact or modify an occupational rule to ensure compliance with the policies in §29-30-2 of this code.

(2) The position may require the legislation’s proponents to submit evidence of present, significant and substantiated harms to consumers in the state. The position also may require information from others knowledgeable of the occupation, labor economics or other factors.

(3) The position shall determine if legislation meets the state policy of using the least restrictive rule necessary to protect consumers from present, significant, and substantiated harms.

(4) The position shall evaluate the effects of legislation on opportunities for workers, consumer choices and costs, general unemployment, market competition, governmental costs and other effects.

(5) The position shall compare the legislation to whether and how other states regulate the occupation.

(6) The position shall issue a report to relevant committees about legislation on a timely basis.

(c) Rule. -- The House of Delegates and the Senate shall each adopt a rule requiring a committee considering legislation to enact or modify an occupational rule to receive the position’s analysis of the legislation prior to voting on the legislation.

(d) Sunset reviews. -- Starting on January 1, 2022, the position shall review annually approximately 20 percent of the state’s occupational rules to improve consistency with §29-30-2 of this code. The position will review all occupational rules over a period of five years. The position may require information be submitted by a board, its members and others.

(e) Sunset reports. -- Starting on January 1, 2023, the position shall report annually the findings of its reviews to the Speaker of the House of Delegates, the President of the Senate and the Attorney General. In its report, the position shall recommend the Legislature enact new legislation that:

(1) Repeals the occupational rules;

(2) Converts the occupational rules to less restrictive rules as defined in section four of this article;

(3) Instructs the relevant licensing board or agency to promulgate revised occupational rules; or

(4) Reflects other recommendations to the Legislature.

(f) The position may also recommend that no new legislation be enacted.

§29-30-9. Preemption.

This article is effective on July 1, 2021.

NOTE: The purpose of this bill is to create the Occupational Board Reform Act. The bill creates the Office of Supervision of Occupational Boards. The bill provides the Attorney General’s Consumer Protection Division with the authority to establish the office. The bill establishes the office’s responsibilities. The bill gives the office the authority to actively supervise state occupational boards. The bill authorizes the office to play a substantial role in the development of an occupational board’s rules and policies, including the approval and disapproval of certain proposed rules or policies, and provides for review and oversight by the Attorney General. The bill requires the Speaker of the House of Delegates and the President of the Senate to establish a position in the nonpartisan research staff to analyze occupational rules and provides for the Legislature’s analysis of occupational rules. The bill provides a short title. The bill establishes its policy and provides for avoidance of liability under federal anti-trust laws. The bill defines terms and provides for statutory interpretation. The bill provides for petitions for review of criminal history, for preemption, and an effective date.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.