2017 Regular Session
To: Judiciary A
By: Representative Wilson
AN ACT TO CREATE THE OCCUPATIONAL BOARD COMPLIANCE ACT OF 2017; TO PROVIDE DEFINITIONS TO BE USED IN THE ACT; TO PROVIDE THE POLICY CONCERNING OCCUPATIONAL REGULATIONS AND THEIR BOARDS; TO REQUIRE THE GOVERNOR TO PROVIDE ACTIVE SUPERVISION OF OCCUPATIONAL LICENSING BOARDS; TO PROVIDE THAT THIS ACT SHALL NOT BE APPLICABLE TO OCCUPATIONAL LICENSING BOARDS THAT ARE NOT CONTROLLED BY ACTIVE MARKET PARTICIPANTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Occupational Board Compliance Act of 2017."
SECTION 2. By establishing and executing the policies provided in this act, the State of Mississippi intends to ensure that occupational boards and board members shall avoid liability under federal antitrust laws.
SECTION 3. As used in this act, the following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Active market participant" means an individual who is:
(i) Licensed by an occupational licensing board;
(ii) Provides any service subject to the regulatory authority of an occupational licensing board; or
(iii) Is subject to the jurisdiction of an occupational licensing board;
(b) "Active supervision" means the Governor shall independently review the substance of occupational regulation proposed by any occupational licensing board and approve, veto or modify any rules, regulations, restraints or the enforcement thereof, to ensure compliance with state policy provided in this act;
(c) "Governor" means the Governor or the Governor's designee;
(d) "State policy" means the policy provided in Section 4 of this act;
(e) "Occupational licensing board" means any state board, commission, department or other agency that is established for the primary purpose of regulating the entry of persons into, or regulating the conduct of persons within, a particular profession or occupation, and which is authorized to issue and revoke occupational licenses;
(f) "Occupational regulation" means a statute, rule, regulation, restraint, practice, policy or other state law that allows an individual to use an occupational title or work in a lawful occupation. "Occupational regulation" includes registrations, certifications and occupational licenses, and does not include 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;
(g) "Personal qualifications" means the 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;
(h) "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;
(i) "Certifications" mean a voluntary program in which a private organization or the state grants nontransferable recognition to an individual who meets personal qualifications established by the private organization or the state. Upon approval, the individual may use "certified" as a designated title. A noncertified individual may also perform the occupation for compensation but may not use the title "certified";
(j) "Specialty occupation license for medical reimbursement" means a nontransferable and nonexclusive 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 certain personal qualifications. A private company may recognize this credential;
(k) "Occupational license" means a nontransferable authorization in law for an individual to exclusively perform a lawful occupation for compensation based on meeting certain personal qualifications. 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;
(l) "Least restrictive regulation" means, from least to most restrictive:
(i) Market competition;
(ii) Third-party or consumer-created ratings and reviews;
(iii) Private certification;
(iv) Specific private civil cause of action to remedy consumer harm under a deceptive trade practice act;
(v) Regulation of the process of providing the specific goods or services to consumers;
(vii) Bonding or insurance;
(ix) Government certification;
(x) Specialty occupational license for medical reimbursement; and
(xi) Occupational license.
SECTION 4. For occupational regulations and their boards, it is the policy of the State of Mississippi to:
(a) Increase economic opportunities for all of its citizens by promoting competition and thereby encouraging innovation and job growth; and
(b) Use the least restrictive regulation necessary to protect consumers from present, significant and substantiated harms that threaten public health and safety.
SECTION 5. (1) The Governor shall be responsible for actively supervising state occupational licensing boards to ensure compliance with state policy in both the adoption and enforcement of occupational regulations promulgated by occupational licensing boards. The Governor is authorized to employ or engage one or more competent attorneys to carry out the duties and functions of this act. These positions may not be filled by an attorney who provides general counsel to any board or exercises control over a board's processes and substantive actions.
(2) An occupational licensing board must submit proposed occupational regulations and enforcement actions to the Governor before the occupational licensing board may file them in the Office of the Secretary of State if the occupational regulation is required to be filed in the Office of the Secretary of State by Chapter 43, Title 25, Mississippi Code of 1972, (Mississippi Administrative Procedures Law) or before the rule, regulation, restraint or enforcement action becomes effective, if filing is not required.
(3) The Governor's responsibilities shall include:
(a) Upon submission of an occupational regulation, review of the occupational regulation or enforcement action, including substantive review for consistency with state policy, and, in writing, approval, modification or veto of the occupational regulation or enforcement action;
(b) Review of existing occupational regulations promulgated by occupational licensing boards to increase compliance with state policy; and
(c) Reporting to the Legislature by October 1 of every year of recommendations for changes to statutory occupational regulations that would increase compliance with state policy.
(4) The Governor shall issue proclamations necessary to effectuate the provisions of this section, including the process, procedures and timelines that will govern any submission filed in accordance with the act. Nothing in this act shall be interpreted to subject the Governor to any of the administrative procedures of Chapter 43, Title 25, Mississippi Code of 1972, (Mississippi Administrative Procedures Law).
SECTION 6. This act shall not apply to occupational licensing boards that are not controlled by active market participants.
SECTION 7. This act shall take effect and be in force from and after July 1, 2017.