HF 2225

as introduced - 90th Legislature (2017 - 2018) Posted on 03/14/2017 10:19am

A bill for an act
relating to occupations; providing for oversight of state occupational regulations;
creating a petition process for review of occupational disqualification based on
criminal history; requiring reports; amending Minnesota Statutes 2016, sections
214.001, subdivisions 1, 3; 214.002, subdivision 2; 214.01, by adding subdivisions;
proposing coding for new law in Minnesota Statutes, chapter 214.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2016, section 214.001, subdivision 1, is amended to read:

Subdivision 1.

Policy.

The legislature finds that the interests of the people of the state
are served by the regulation of certain occupations. The legislature further finds:

(1) that it is desirable for boards composed primarily of members of the occupations so
regulated to be charged with formulating the policies and standards governing the occupation;

(2) that economical and efficient administration of the regulation activities can be
achieved through the provision of administrative services by departments of state government;
and

(3) that procedural fairness in the disciplining of persons regulated by the boards requires
a separation of the investigative and prosecutorial functions from the deleted text begin board's deleted text end new text begin boards' new text end judicial
responsibility.

Sec. 2.

Minnesota Statutes 2016, section 214.001, subdivision 3, is amended to read:

Subd. 3.

Regulation of new occupations.

new text begin (a) new text end If the legislature finds after evaluation of
the factors identified in subdivision 2 that it is necessary to regulate an occupation not
deleted text begin heretofore deleted text end new text begin currently new text end credentialed or regulated new text begin because providers' reputations disseminated
privately are insufficient to protect consumers new text end , then new text begin the state shall use the least restrictive
new text end regulation deleted text begin should be implemented deleted text end new text begin necessary to protect consumers from present, significant,
and substantiated harm that threatens public health and safety new text end consistent with the policy of
this section, in modes in the following order:

(1) new text begin recognition of private certification;
new text end

new text begin (2) new text end creation or extension of common law or statutory causes of civil action, and the
creation or extension of criminal prohibitions;

new text begin (3) enactment of new or enhanced authority for the attorney general to prosecute fraud;
new text end

new text begin (4) enactment of a regulation of the process providing the lawful goods or services to
consumers including expanding the scope of a building or housing code, environmental
protection laws, or regulations of the sale of specific goods or services;
new text end

deleted text begin (2) deleted text end new text begin (5) new text end imposition of inspection requirements and the ability to enforce violations by
injunctive relief in the courts;

new text begin (6) imposition of a bonding or insurance requirement;
new text end

deleted text begin (3) deleted text end new text begin (7) new text end implementation of a system of registration whereby practitioners new text begin give notice to
the 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 the
individual provides. "Registration" does not include predetermined personal qualifications
but may require a bond or insurance. Upon the state's receipt of notice, the individual may
use "registered" as a designated title. A nonregistered individual must not perform the
occupation for compensation or use "registered" as a designated title;
new text end

new text begin (8) implementation of a system of certification whereby practitioners new text end who will be the
only persons permitted to use a designated title are listed on an official roster after having
met predetermined new text begin personal new text end qualifications new text begin , and whereby noncertified individuals are allowed
to perform the occupation for compensation new text end ; deleted text begin or
deleted text end

new text begin (9) implementation of a system of a limited license for the purpose of receiving payment
or reimbursement from a government agency whereby the practitioner must receive
recognition by the state of having met predetermined personal qualifications but persons
not so licensed may practice for compensation but do not qualify for payments or
reimbursement from a government agency. A private company may recognize this credential;
or
new text end

deleted text begin (4) deleted text end new text begin (10) new text end implementation of a system of licensing whereby a practitioner must receive
recognition by the state of having met predetermined new text begin personal new text end qualifications, and persons
not so licensed are prohibited from practicing.

new text begin (b) new text end Two or more of deleted text begin these deleted text end new text begin the new text end modes new text begin in paragraph (a) new text end may be simultaneously implemented
if necessary and appropriate.

Sec. 3.

Minnesota Statutes 2016, section 214.002, subdivision 2, is amended to read:

Subd. 2.

Contents of report.

A report in support of the regulation of a health-related or
non-health-related occupation must address the following issues as specifically as possible:

(1) the harm to the public that is or could be posed by the unregulated practice of the
occupation or by continued practice at its current degree of regulation;

(2) any reason why existing civil or criminal laws or procedures are inadequate to prevent
or remedy any harm to the public;

(3) why the proposed level of regulation is being proposed and why, if there is a deleted text begin lesser deleted text end new text begin
less restrictive new text end degree of regulation, it was not selected;

(4) any associations, organizations, or other groups representing the occupation seeking
regulation and the approximate number of members in each in Minnesota;

(5) the functions typically performed by members of this occupational group and whether
they are identical or similar to those performed by another occupational group or groups;

(6) whether any specialized training, education, or experience is required to engage in
the occupation and, if so, how current practitioners have acquired that training, education,
or experience;

(7) whether the proposed regulation would change the way practitioners of the occupation
acquire any necessary specialized training, education, or experience and, if so, why;

(8) whether any current practitioners of the occupation in Minnesota lack whatever
specialized training, education, or experience might be required to engage in the occupation
and, if so, how the proposed regulation would address that lack;

(9) whether new entrants into the occupation would be required to provide evidence of
any necessary training, education, or experience, or to pass an examination, or both;

(10) whether current practitioners would be required to provide evidence of any necessary
training, education, or experience, or to pass an examination, and, if not, why not; deleted text begin and
deleted text end

(11) the expected impact of the proposed regulation on the supply of practitioners of the
occupation and on the cost of services or goods provided by the occupation deleted text begin . deleted text end new text begin ; and
new text end

new text begin (12) whether and how other states and the federal government regulate the occupation.
new text end

Sec. 4.

new text begin [214.003] PETITION FOR REVIEW OF CRIMINAL HISTORY.
new text end

new text begin Subdivision 1. new text end

new text begin Findings. new text end

new text begin The legislature finds that the right of an individual to pursue
an occupation is a fundamental right. The 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.
new text end

new text begin Subd. 2. new text end

new text begin Definitions. new text end

new text begin For the purpose of this section, the following terms have the
meanings given:
new text end

new text begin (1) "board" includes a state occupational licensing board or a state agency or department
that engages in occupational licensing; and
new text end

new text begin (2) "state recognition" means the state has formally acknowledged the individual's
occupational qualifications by licensing, certifying, registering, or otherwise authorizing
the individual to engage in an occupation under state law.
new text end

new text begin Subd. 3. new text end

new text begin Petition. new text end

new text begin An individual with a criminal history may petition the responsible
licensing board at any time for a determination of whether the individual's criminal history
will disqualify the individual from obtaining state recognition. An individual may petition
the board before obtaining any required education necessary for licensing or paying any
application fee.
new text end

new text begin Subd. 4. new text end

new text begin Disqualification. new text end

new text begin (a) Notwithstanding any other statute or rule, the board is
authorized to determine whether or not the individual's criminal history disqualifies the
individual from obtaining state recognition.
new text end

new text begin (b) The board may find the individual's criminal history disqualifies the individual from
obtaining state recognition only if:
new text end

new text begin (1) the individual has a felony conviction;
new text end

new text begin (2) 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
new text end

new text begin (3) the board concludes the state has an important interest in protecting public safety
that is superior to the individual's right. The board may make this conclusion only if it
determines, by clear and convincing evidence at the time of the petition, that (i) the specific
offense for which the individual was convicted is substantially related to the state's interest,
(ii) the individual, based on the nature of the specific offense for which the individual was
convicted and on 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 (iii) a reoffense will
cause greater harm than it would if the individual did not have the license.
new text end

new text begin Subd. 5. new text end

new text begin Determination. new text end

new text begin (a) 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 fact and a conclusion of law.
new text end

new text begin (b) If the board determines the individual's criminal history disqualifies the individual
from obtaining state recognition, the board must advise the individual of the appeal and
resubmission procedures in subdivisions 6 and 7, including advising the individual of what
actions the individual could take to remedy the disqualification.
new text end

new text begin Subd. 6. new text end

new text begin Appeal. new text end

new text begin The individual may appeal the board's determination under chapter
14, the Administrative Procedure Act.
new text end

new text begin Subd. 7. new text end

new text begin Resubmission. new text end

new text begin The individual may resubmit a petition to the same responsible
board at any time two years after final judgment in the initial petition. If the new petition
is submitted on the grounds that the individual has undertaken the actions the board has
advised will remedy the disqualification, then the individual may resubmit a petition at any
time six months after the final judgment in the initial petition.
new text end

new text begin Subd. 8. new text end

new text begin Rescind determination. new text end

new text begin 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 conditions in subdivision 4, paragraph (b).
new text end

new text begin Subd. 9. new text end

new text begin Fee. new text end

new text begin The board may charge the individual a fee to recoup its costs in
administering this section not to exceed $100 for each petition.
new text end

Sec. 5.

Minnesota Statutes 2016, section 214.01, is amended by adding a subdivision to
read:

new text begin Subd. 2a. new text end

new text begin Least restrictive regulation. new text end

new text begin "Least restrictive regulation" means, from least
to most restrictive:
new text end

new text begin (1) market competition;
new text end

new text begin (2) third-party or consumer-created ratings and reviews;
new text end

new text begin (3) private certification;
new text end

new text begin (4) a specific private civil cause of action to remedy consumer harm;
new text end

new text begin (5) new or enhanced authority for the attorney general to prosecute fraud, including
expanding the scope of deceptive trade practices;
new text end

new text begin (6) a regulation of the process of providing the specific goods or services to consumers,
including expanding the scope of a building or housing code, environmental protection
laws, or regulation of the sale of specific goods or services;
new text end

new text begin (7) inspection;
new text end

new text begin (8) bonding or insurance;
new text end

new text begin (9) registration;
new text end

new text begin (10) government certification;
new text end

new text begin (11) limited license for government payments or reimbursements for medical services;
and
new text end

new text begin (12) occupational license.
new text end

Sec. 6.

Minnesota Statutes 2016, section 214.01, is amended by adding a subdivision to
read:

new text begin Subd. 4. new text end

new text begin Predetermined personal qualifications. new text end

new text begin "Predetermined personal qualifications"
are criteria related to an individual's personal background and experience 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.
new text end