HOUSE BILL No. 6114
June 6, 2018, Introduced by Reps. Theis, Hoitenga, Bellino, Griffin, Moss and Iden 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, 2019, 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, 2020, 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.