Sec. 405. Active supervision
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/bill/117/s/2039/is/section-405·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
The immunity under section 404(a) shall apply to any action of an occupational licensing board of a State, or any action of a member, officer, or employee of that board acting in the official capacity of that member, officer, or employee, if— the actions of the occupational licensing board or member, officer, or employee are authorized by a non-frivolous interpretation of the occupational licensing laws of the State; the State adopts a policy of using less restrictive alternatives to occupational licensing to address real, substantial threats to public health, safety, or welfare, in accordance with subsection
(b)of this section; and the State enacts legislation providing for active supervision of the actions of an occupational licensing board and any member, officer, or employee of such a board, in accordance with subsection
(c)of this section. The State shall adopt a policy providing that— occupational licensing laws should be construed and applied to— protect public health, safety, and welfare; and increase economic opportunity, promote competition, and encourage innovation; regulators should displace competition through occupational licensing laws only if less restrictive alternatives to occupational licensing will not suffice to protect consumers from real, substantial threats to public health, safety, or welfare; and an occupational licensing law should be enforced against an individual only to the extent the individual sells goods or services that are included explicitly in the statute or regulation that defines the occupation’s scope of practice. The legislation enacted under subsection (a)(3) shall satisfy each of the requirements under this subsection. The State shall establish an Office of Supervision of Occupational Boards (referred to in this subsection as the Office ) to review the actions of occupational licensing boards to ensure compliance with the policy adopted under subsection (b). The Office shall— review and explicitly approve or reject in writing any occupational regulation proposed by an occupational licensing board before the board may adopt or implement the occupational regulation; play a substantial role in the development of a board’s rules and policies to ensure they benefit consumers and do not serve the private interests of providers of goods and services regulated by the board; disapprove in writing the use of any board rule or policy relating to an occupational regulation and terminate any enforcement action, including any such action pending on the date of enactment of this Act, that is inconsistent with the policy adopted under subsection (b); exercise control over each board by reviewing and affirmatively approving in writing only occupational regulations that are consistent with the policy adopted under subsection (b); use the analysis conducted under paragraph
(5)and conduct reasonable investigations to gain additional information, including about less restrictive regulatory approaches, to promote compliance with subsection (b); be staffed by not less than 1 attorney; and prohibit attorneys working in the Office from providing general counsel to any board; and approve board actions explicitly in writing, rather than implicitly; and clearly establish that silence or inaction does not constitute approval. The State shall establish a mechanism under which a person who is a resident of or has a license to operate a business in the State may file a complaint with the Office about an occupational regulation of an occupational licensing board in the State that the person believes is inconsistent with the policy adopted under subsection (b). Not later than 90 days after the date on which a person files a complaint under subparagraph (A), the Office shall— investigate the complaint; identify remedies and instruct the board to take action, where appropriate; and respond in writing to the complainant. The State shall establish a mechanism for review of a determination made by the Office under subparagraph (B), under which a complainant may appeal the determination to the general division of the trial court of the State if the challenged occupational regulation would substantially burden the complainant’s ability to— engage in a lawful occupation; or employ or contract other individuals for the performance of a lawful occupation. The State shall authorize an individual to assert as a defense, in any administrative or judicial proceeding to enforce an occupational regulation, that the regulation does not comply with the policy adopted under subsection (b). In a proceeding described in subparagraph (A)— an individual who asserts a defense under this paragraph has the initial burden of proof that the occupational regulation being enforced substantially burdens the individual’s ability to engage in a lawful occupation; if an individual meets the burden of proof under clause (i), the State shall be required to demonstrate by clear and convincing evidence that the occupational regulation— advances an important government interest in protecting against real, substantial threats to public health, safety, or welfare; and is substantially related to achievement of the important government interest described in subclause (I), in light of the availability of less restrictive alternatives to occupational licensing; and in reviewing an alleged violation of the policy adopted under subsection (b), an administrative agency or a court— shall make its own findings of fact and conclusions of law; may not rely on a legislative finding of fact presented in admissible form to the agency or court; and may not grant any presumption to a legislative determination— of harm to public health, safety, or welfare; or that the occupational regulation is substantially related to achievement of the important government interest described in clause (ii)(I). The State shall establish a mechanism for periodic non-binding review of existing occupational regulations, and non-binding review of new proposed occupational regulations, to ensure that the occupational regulations comply with the policy adopted under subsection (b). The entity conducting the review under subparagraph (A)— shall publish an annual written report encompassing approximately 20 percent of the occupations subject to occupational regulations within the State, such that the entity will review all occupational regulations within the State during each 5-year period; and shall publish a written report assessing any proposed occupational licensing law, or other proposed law that would expand the authority of an occupational licensing board to impose occupational regulations, before the proposed law is submitted to a vote by the State legislature. In conducting the review required under subparagraph (A), the entity shall— determine whether the law or other regulation satisfies the policy adopted under subsection
(b)of using the least restrictive regulation necessary to protect consumers from real, substantial threats to public health, safety, or welfare; evaluate the effects of the law or other regulation on opportunities for workers, consumer choices and costs, general unemployment, market competition, governmental costs, and other effects; compare the law or other regulation to whether and how other States regulate the applicable occupation; and if the applicable occupation is subject to an occupational licensing law, evaluate— the feasibility of entering into reciprocity compacts with one or more other States to improve worker mobility and labor market flexibility; and the advisability of endorsing occupational licenses granted by other States to spouses of active service military members as if those occupational licenses were granted by the State conducting the review.