1876-S AMS CLEM BUCK 006

SHB 1876 - S AMD to S AMD(S-3440.1/07) 506

By Senator Clements

Beginning on page 1, line 3 of the amendment, after "Sec. 1." strike all material through "2009." on page 32, line 14 and insert the following:

"(1) The purpose of this chapter is to establish guidelines for the regulation of heating, ventilating, air conditioning, and refrigeration construction industry by the department of labor and industries. This chapter does not:

(a) Apply to any regulatory entity created before January 1, 2007, except as provided in this chapter;

(b) Affect the powers and responsibilities of the superintendent of public instruction or the Washington professional educator standards board under RCW 28A.410.210 and 28A.410.010; and

(2) The legislature declares that all individuals should be permitted to enter into a profession unless there is an overwhelming need for the state to protect the interests of the public by restricting entry into the profession. When such a need is identified, the regulation adopted by the state should be set at the least restrictive level consistent with the public interest to be protected.

(3) The legislature intends that no regulation shall be imposed upon the heating, ventilating, air conditioning, and refrigeration construction industry except for the exclusive purpose of protecting the public interest. All bills introduced in the legislature to regulate the heating, ventilating, air conditioning, and refrigeration construction industry for the first time must first be reviewed by the department according to the following criteria. The heating, ventilating, air conditioning, and refrigeration construction industry should be regulated by the state only when:

(a) Unregulated practice can clearly harm or endanger the health, safety, or welfare of the public, and the potential for the harm is easily recognizable and not remote or dependent upon tenuous argument;

(b) The public needs and can reasonably be expected to benefit from

an assurance of initial and continuing professional ability; and

more cost-beneficial manner.

(4) After evaluating the criteria in subsection (3) of this section

and considering governmental and societal costs and benefits, if the

department determines that it is necessary to regulate the heating, ventilating, air conditioning, and refrigeration construction industry, the least restrictive method of regulation should be recommended, consistent with the public interest and this section:

(a) When existing common law and statutory civil actions and criminal prohibitions are not sufficient to eradicate existing harm,

the regulation should provide for stricter civil actions and criminal

prosecutions;

(b) When a service is being performed for individuals involving a

hazard to the public health, safety, or welfare, the regulation should

impose inspection requirements and enable the department to enforce

violations by injunctive relief in court, including, but not limited to, regulation of the heating, ventilating, air conditioning, and refrigeration construction activity providing the service rather than

the employees of the business;

being is relatively small as a result of the operation of the heating, ventilating, air conditioning, and refrigeration construction industry,

the regulation should implement a system of registration;

(d) When the consumer may have a substantial basis for relying on

the services of a practitioner, the regulation should implement a

system of certification; or

(e) When it is apparent that adequate regulation cannot be achieved by means other than licensing, the regulation should implement a system of licensing.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Applicant group" includes any trade professional group or organization, any individual, or any other interested party that proposes that the heating, ventilating, air conditioning, and refrigeration construction industry be further regulated or that proposes legislation to substantially increase the scope of practice or the level of regulation of the heating, ventilating, air conditioning, and refrigeration construction industry.

(2) "Certification" means a voluntary process by which a statutory

regulatory entity grants recognition to an individual who: (a) Has met

certain prerequisite qualifications specified by that regulatory entity; and (b) may use "certified" in the title or designation to perform prescribed professional tasks.

(3) "Department" means the department of labor and industries.

(4) "Inspection" means the periodic examination of practitioners by a state agency in order to ascertain whether the practitioners' occupation is being carried out in a fashion consistent with the public health, safety, and welfare.

(5) "Legislative committees of reference" means the standing

legislative committees designated by the respective rules committees of the senate and house of representatives to consider proposed legislation to regulate the heating, ventilating, air conditioning, and refrigeration construction industry.

(6) "License," "licensing," and "licensure" mean permission to engage in a trade which would otherwise be unlawful in the state in the

absence of the permission. A license is granted to those individuals who meet prerequisite qualifications to perform prescribed professional

tasks and for the use of a particular title.

(7) "Practitioner" means an individual who: (a) Has achieved knowledge and skill by practice; and (b) is actively engaged in the heating, ventilating, air conditioning, and refrigeration construction industry.

(8) "Public member" means an individual who is not, and never was,

a member of the heating, ventilating, air conditioning, and refrigeration construction industry being regulated or the spouse of a member, or an individual who does not have and never has had a material financial interest in either the rendering of the heating, ventilating, air conditioning, and refrigeration construction industry or an activity directly related to the heating, ventilating, air conditioning, and refrigeration construction industry.

(9) "Registration" means the formal notification which, before rendering services, a practitioner shall submit to a state agency setting forth: The name and address of the practitioner; the location,

nature, and operation of the trade activity to be practiced; and, if

required by the regulatory entity, a description of the service to be

provided.

(10) "Regulatory entity" means any board, commission, agency,

division, or other unit or subunit of state government which regulates

one or more professions, occupations, industries, trades, businesses,

or other endeavors in this state.

(11) "State agency" includes every state office, department, board,

commission, regulatory entity, and agency of the state, and, where

provided by law, programs and activities involving less than the full

responsibility of a state agency.

(12) "Trade" means activities related to heating, ventilating, air conditioning, and refrigeration construction industry.

NEW SECTION. Sec. 3. The department shall determine, by interviewing members of applicant groups, discussions with the general public, information received in public hearings as provided in section 4 of this act, and the department's own internal information, if the heating, ventilating, air conditioning, and refrigeration construction industry should be regulated or further regulated. The department shall make this determination by reviewing at least the following factors:

(1) A definition of the problem and why regulation is necessary:

(a) The nature of the potential harm to the public if the heating, ventilating, air conditioning, and refrigeration construction industry is not regulated, and the extent to which there is a threat to public

health and safety;

(b) The extent to which consumers need and will benefit from a method of regulation identifying competent practitioners, indicating typical employers, if any, of practitioners in the heating, ventilating, air conditioning, and refrigeration construction industry; and

(i) The extent to which the profession calls for independent judgment and the extent of skill or experience required in making the

independent judgment; and

(ii) The extent to which practitioners are supervised;

(2) The efforts made to address the problem:

(a) Voluntary efforts, if any, by members of the heating, ventilating, air conditioning, and refrigeration construction industry to:

(i) Establish a code of ethics or standards of practice; or

(ii) Help resolve disputes between practitioners and consumers; and

(b) Recourse to and the extent of use of applicable law and whether

it could be strengthened to control the problem;

(3) The alternatives considered including:

(a) Regulation of heating, ventilating, air conditioning, and refrigeration construction industry employers or practitioners rather than employee practitioners;

(b) Regulation of the program or service rather than the individual

practitioners;

(d) Certification of all practitioners;

(e) Why the use of the alternatives specified in this subsection

are not adequate to protect the public interest; and

(f) Why licensing would serve to protect the public interest;

(4) The benefit to the public if regulation is granted including:

(a) The extent to which the incidence of specific problems present

in the unregulated trade can reasonably be expected to be reduced by regulation;

(b) Whether the public can identify qualified practitioners;

practitioners are competent including:

(i) Whether the proposed regulatory entity would be a board composed of members of the profession and public members, or a state agency, or both, and, if appropriate, their respective responsibilities

in administering the system of registration, certification, or licensure, including the composition of the board and the number of public members, if any;

(ii) The powers and duties of the board or state agency regarding examinations and for cause revocation, suspension, and

nonrenewal of registrations, certificates, or licenses;

(iii) The adoption of rules and canons of ethics; the conduct of inspections;

(iv)The receipt of complaints and disciplinary action taken against practitioners;

(v)How fees would be levied and collected to cover the expenses of administering and operating the regulatory system;

(vi) If there is a grandfather clause, whether such practitioners

will be required to meet the prerequisite qualifications established by

the regulatory entity at a later date;

(vii) The nature of the standards proposed for registration, certification, or licensure as compared with the standards of other jurisdictions;

(viii) Whether the regulatory entity would be authorized to enter

into reciprocity agreements with other jurisdictions;

(ix) The nature and duration of any training including, but not limited to, whether the training includes a substantial amount of supervised field experience;

(x) Whether training programs exist in this state;

(xi) If there will be an experience requirement and whether the experience must be acquired under a registered, certificated, or licensed practitioner;

(xii) Whether there are alternative routes of entry or methods of meeting the prerequisite qualifications; and

(xiii) Whether all applicants will be required to pass an examination and, if an examination is required, by whom it will be developed and how the costs of development will be met; and

(d) Assurance to the public that practitioners have maintained

their competence including whether:

(i) The registration, certification, or licensure will

carry an expiration date; and

(ii) Renewal will be based only upon payment of a fee, or whether renewal will involve reexamination, peer review, or other enforcement;

(5) The extent to which regulation might harm the public including:

(a) The extent to which regulation will restrict entry into the

profession and whether the proposed regulation:

(i) Is more restrictive than necessary to ensure safe and effective performance; and

(ii) Requires registered, certificated, or licensed practitioners in other jurisdictions who migrate to this state to qualify in the same manner as state applicants for registration, certification, and licensure when the other jurisdiction has substantially equivalent requirements for registration, certification, or licensure as those in this state; and

(b) Whether there are similar trades to that of the heating, ventilating, air conditioning, and refrigeration construction industry

which should be included in, or portions of the applicant group which

should be excluded from, the proposed legislation;

(6) The maintenance of standards including:

(a) Whether effective quality assurance standards exist in the profession, such as legal requirements associated with specific programs that define or enforce standards, or a code of ethics; and

(b) How the proposed legislation will assure quality including:

(i) The extent to which a code of ethics or standards of practice,

if any, will be adopted; and

(ii) The grounds for suspension or revocation of the registration,

certification, or license;

(7) A description of the group proposed for regulation, including

a list of associations, organizations, and other groups representing

the practitioners in this state, an estimate of the number of

practitioners in each group, and whether the groups represent different

levels of practice; and

(8) The expected costs of regulation including:

(a) The impact registration, certification, or licensure will have

on the costs of the services to the public; and

(b) The cost to the state and to the general public of implementing

the proposed legislation.

NEW SECTION. Sec. 4. (1) The department shall hold a public hearing during which the department will receive public comment on whether the heating, ventilating, air conditioning, and refrigeration construction industry should be regulated by the state. At least twenty days before the public hearing, the department shall file a notice of

hearing with the code reviser for publication in the Washington State

(a) The trades for which information is sought;

(b) The information requested under section 3 of this act; and

information about the heating, ventilating, air conditioning, and refrigeration construction industry.

(2) The department shall request names of individuals and organizations that may have information needed for the review from legislators and other identified interested parties. The department must send these individuals and organizations the notice under this section.

NEW SECTION. Sec. 5. After the department has conducted its review under this chapter, it shall submit a report with the details of its review as well as its recommendations about regulating the heating, ventilating, air conditioning, and refrigeration construction industry to the legislative committees of reference. It shall also post the report on its web site.

NEW SECTION. Sec. 6. Sections 1 through 5 of this act constitute

a new chapter in Title 18 RCW."

SHB 1876 - S AMD to S AMD(S-3440.1/07) 506

By Senator Clements

On page 32, line 16 of the title amendment, after "insert" strike

the remainder of the title amendment and insert "and adding a new chapter to Title 18 RCW."

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EFFECT: Directs the Department of Labor and Industries to consider the need for regulating the heating, ventilation, air conditioning and refrigeration industry and if regulation is needed, what level of regulation is needed.