SENATE BILL No. 40

 

 

January 22, 2019, Introduced by Senator THEIS and referred to the Committee on Regulatory Reform.

 

 

 

     A bill to amend 1986 PA 268, entitled

 

"Legislative council act,"

 

(MCL 4.1101 to 4.1901) by adding section 404.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 404. (1) In addition to its duties under section 403,

 

after a bill that enacts or amends an occupational regulation is

 

introduced, the Michigan law revision commission shall review the

 

legislation to determine whether the legislation meets the policy

 

of using the least restrictive regulation necessary to protect

 

consumers from present, significant, and substantiated harms that

 

threaten public health and safety. All of the following apply to

 

the review of pending legislation under this subsection:

 

     (a) The commission may require the legislation's proponents to

 

submit evidence of present, significant, and substantiated harms to

 


consumers in the state. The commission also may require information

 

from other individuals who are knowledgeable about the occupation,

 

labor economics, or other relevant factors.

 

     (b) The commission shall evaluate the effects of the

 

legislation on opportunities for workers, consumer choices and

 

costs, general unemployment, market competition, and governmental

 

costs and any other effects of the legislation if enacted.

 

     (c) The commission shall compare the manner in which the

 

legislation would regulate an occupation if enacted to whether or

 

how other states regulate the occupation.

 

     (d) The commission shall complete the review, prepare a

 

written report of the results of the review, and submit the report

 

to the committee to which the legislation was referred, on a timely

 

basis.

 

     (2) Beginning January 1, 2020, the commission shall review

 

annually the occupational regulations of approximately 20% of the

 

occupations that are subject to state regulation, and over each 5-

 

year period review all occupational regulations that are subject to

 

state regulation, and shall evaluate whether those regulations are

 

consistent with the policy of using the least restrictive

 

regulation necessary to protect consumers from present,

 

significant, and substantiated harms that threaten public health

 

and safety. For purposes of its review under this subsection, the

 

commission may require that an occupational board, its members, and

 

other persons submit information to the commission.

 

     (3) In its analysis under subsections (1) and (2), the

 

commission shall employ a rebuttable presumption that market


competition and private remedies are sufficient to protect

 

consumers; and if that presumption is rebutted, where appropriate,

 

state regulations should be tailored to address specific market

 

failures identified by the commission to protect consumers from 1

 

or more of the following, as appropriate:

 

     (a) Fraud, by strengthening powers under the Michigan consumer

 

protection act, 1976 PA 331, MCL 445.901 to 445.922, and other

 

deceptive trade practices statutes in this state.

 

     (b) Unsanitary facilities and general health and safety

 

concerns, by periodic inspections.

 

     (c) Potential damages to the buyer or to third parties that

 

are not a party to a contract between a seller and buyer, and from

 

other types of externalities by bonding or insurance.

 

     (d) Potential damages by transient or fly-by-night providers

 

by requiring registration with the secretary of state.

 

     (e) Asymmetrical information between a seller and buyer, by

 

voluntary certification.

 

     (f) Governmental reimbursement for providing medical services

 

for new or highly specialized medical provisions by a specialty

 

license for medical reimbursement.

 

     (4) By January 31, 2021, and by each subsequent January 31,

 

the commission shall submit an annual report of the findings of its

 

reviews under subsection (2) in the preceding calendar year to the

 

speaker of the house of representatives, the senate majority

 

leader, and the attorney general. In the report about an

 

occupational regulation, the commission shall do 1 of the

 

following:


     (a) If the commission concludes as a result of the review that

 

the occupational regulation does not reflect the policy described

 

in subsection (2), recommend that the legislature enact new

 

legislation that does 1 or more of the following:

 

     (i) Repeals or rescinds the occupational regulation.

 

     (ii) Converts the occupational regulation to a less

 

restrictive regulation that reflects the policy described in

 

subsection (2).

 

     (iii) Instructs the relevant licensing board or agency to

 

promulgate a revised occupational regulation.

 

     (iv) Reflects any other recommendations of the commission.

 

     (b) If the commission concludes as a result of the review that

 

the occupational regulation does reflect the policy described in

 

subsection (2), recommend that the legislature not enact new

 

legislation.

 

     (5) As used in this section:

 

     (a) "Certification" means a voluntary program in which a

 

private organization or the government of this state grants

 

nontransferable recognition to an individual who meets personal

 

qualifications established by the private organization or the

 

government of this state. All of the following apply for purposes

 

of the interpretation of certification:

 

     (i) Certification includes the authority to use "certified" as

 

a designated title if certification is granted.

 

     (ii) A program of certification does not prevent a

 

noncertified individual from performing the lawful occupation of an

 

individual who holds a certification for compensation, but that


individual may not use the title "certified".

 

     (iii) Certification is not synonymous with the term

 

occupational license.

 

     (iv) The use of the word "certification" or "certified" in

 

other statutes of this state to mean requiring an individual to

 

meet certain personal qualifications to work legally, such as

 

requiring a certified public accountant to become certified before

 

working legally, shall be interpreted for the purposes of this

 

section as requiring an individual to meet the requirements of an

 

occupational license.

 

     (b) "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, whether or not the individual who is

 

selling them is subject to an occupational regulation.

 

     (c) "Least restrictive regulation" means any of the following,

 

from least to most restrictive:

 

     (i) Market competition.

 

     (ii) Third-party or consumer-created ratings and reviews.

 

     (iii) Private certification.

 

     (iv) A specific private civil cause of action to remedy

 

consumer harm.

 

     (v) An action that is a deceptive trade practice.

 

     (vi) A regulation of the process of providing specific goods

 

or services to consumers.

 

     (vii) Inspection.

 

     (viii) Bonding or insurance.

 

     (ix) Registration.


     (x) Government certification.

 

     (xi) A specialty occupational license for medical

 

reimbursement.

 

     (xii) An occupational license.

 

     (d) "Occupational license" means a nontransferable

 

authorization in law that meets both of the following:

 

     (i) Allows an individual to perform a lawful occupation for

 

compensation if he or she meets personal qualifications established

 

by law.

 

     (ii) Prohibits an individual who does not possess a valid

 

occupational license from performing the occupation for

 

compensation.

 

     (e) "Occupational regulation" means a statute, rule, practice,

 

policy, or other state law that requires an individual to possess

 

certain personal qualifications to use an occupational title or

 

work in a lawful occupation. The term includes registration,

 

certification, and occupational license. The term does not include

 

a business license, facility license, building permit, or zoning

 

and land use regulation established under state law, except to the

 

extent that state law regulates an individual's personal

 

qualifications to perform a lawful occupation.

 

     (f) "Personal qualifications" means criteria that are related

 

to an individual's personal background and characteristics,

 

including, but not limited to, completion of an approved

 

educational program, satisfactory performance on an examination,

 

work experience, moral standing, criminal history, and completion

 

of continuing education.


     (g) "Registration" means a requirement to give notice to the

 

government of this state 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 that the individual provides. All of the following apply

 

for purposes of the interpretation of registration:

 

     (i) Registration does not include personal qualifications but

 

may require a bond or insurance.

 

     (ii) When the government receives notice described in this

 

subdivision, the individual who gave notice may use "registered" as

 

a designated title. A nonregistered individual may not perform the

 

occupation for compensation or use "registered" as a designated

 

title.

 

     (iii) Registration is not transferable.

 

     (iv) Registration is not synonymous with an occupational

 

license.

 

     (v) The use of the words "registration" and "registered" in

 

other statutes of this state to mean requiring an individual to

 

meet certain personal qualifications to work legally, such as

 

requiring a nurse aide to become registered before working legally,

 

is considered for the purposes of this section as requiring an

 

individual to meet the requirements of an occupational license.

 

     (h) "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. All of the


following apply to a specialty occupational license for medical

 

reimbursement:

 

     (i) A private company may recognize this credential.

 

     (ii) An individual who is regulated under another occupational

 

regulation to provide similar services as defined in that

 

regulation for compensation and reimbursement may provide those

 

services without a specialty occupational license for medical

 

reimbursement.

 

     (iii) An individual who does not possess a specialty

 

occupational license for medical reimbursement may provide similar

 

services for compensation if he or she does not qualify for payment

 

or reimbursement from a government agency.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.