BILL REQ. #:  S-0087.1 

Read first time 01/13/09.   Referred to Committee on Labor, Commerce & Consumer Protection.

     AN ACT Relating to the regulation of certain trades by the department of labor and industries; amending RCW 18.118.020; and adding a new chapter to Title 18 RCW.

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

NEW SECTION.  Sec. 1   (1) The purpose of this chapter is to establish guidelines for the regulation of construction trades or construction-related trades generally overseen in some capacity by the department of labor and industries. This chapter applies when a trade seeks legislation to increase its scope of practice or the level of regulation of the trade, or when a trade seeks regulation of construction trades or construction-related trades not licensed or regulated on the effective date of this section. This chapter also applies when a legislator or a legislative committee requests that the department determine whether a trade should be regulated by the state. This chapter is not intended and shall not be construed to: (a) Apply to any regulatory entity created before the effective date of this section, except as provided in this chapter; (b) affect the powers and responsibilities of the superintendent of public instruction or Washington professional educator standards board under RCW 28A.410.210 and 28A.410.010; (c) apply to or interfere in any way with the practice of religion or to any kind of treatment by prayer; (d) apply to any remedial or technical amendments to any statutes that licensed or regulated activity before the effective date of this section; and (e) apply to proposals relating solely to continuing education. 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.
     (2) It is the intent of this chapter that no regulation shall be imposed upon any profession except for the purpose of protecting the public interest and the interest of the worker. Generally, a trade should be regulated by the state only when:
     (a) Unregulated practice can clearly harm or endanger the health, safety, or welfare of the public, or the worker, and the potential for the harm is easily recognizable and not remote or dependent upon tenuous argument;
     (b) The public or the worker needs and can reasonably be expected to benefit from an assurance of initial and continuing professional ability; and
     (c) The public or the worker cannot be effectively protected by other means in a more cost-beneficial manner.
     (3) After evaluating the criteria in subsection (2) of this section and considering governmental, societal, and worker costs and benefits, if the department determines that it is necessary to regulate a trade not previously regulated by law, the least restrictive alternative 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 or the worker's 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 trade activity providing the service rather than the employees of the business;
     (c) When the threat to the public or worker health, safety, or economic well-being is relatively small as a result of the operation of the trade, 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 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 any trade group not presently regulated be regulated or that proposes legislation to substantially increase the scope of practice or the level of regulation of the profession.
     (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 assume or use "certified" in the title or designation to perform prescribed professional tasks.
     (3) "Department" means the department of labor and industries.
     (4) "Grandfather clause" means a provision in a regulatory statute applicable to practitioners actively engaged in the regulated profession prior to the effective date of the regulatory statute that exempts the practitioners from meeting the prerequisite qualifications set forth in the regulatory statute to perform prescribed occupational tasks.
     (5) "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.
     (6) "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 trades not previously regulated.
     (7) "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.
     (8) "Practitioner" means an individual who (a) has achieved knowledge and skill by practice, and (b) is actively engaged in a specified trade.
     (9) "Public member" means an individual who is not, and never was, a member of the trade 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 trade service being regulated or an activity directly related to the profession being regulated.
     (10) "Registration" means the formal notification which, prior to 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.
     (11) "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.
     (12) "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.
     (13) "Trade" means activities related to construction, electrical, plumbing, asbestos removal, boiler, elevator, and factory-built structures work. It also includes any work related to one of these trades.

NEW SECTION.  Sec. 3   After the effective date of this section, the department shall determine, by interviewing members of applicant trade 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 a trade 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 trade 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 trade; and
     (c) The extent of autonomy a practitioner has, as indicated by:
     (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 trade 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:
     (a) Regulation of trade employers or practitioners rather than employee practitioners;
     (b) Regulation of the program or service rather than the individual practitioners;
     (c) Registration of all practitioners;
     (d) Certification of all practitioners;
     (e) Other alternatives;
     (f) Why the use of the alternatives specified in this subsection are not adequate to protect the public interest; and
     (g) Why licensing would serve to protect the public interest;
     (4) The benefit to the public and the worker if regulation is granted:
     (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;
     (c) The extent to which the public can be confident that qualified practitioners are competent:
     (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; the powers and duties of the board or state agency regarding examinations and for cause revocation, suspension, and nonrenewal of registrations, certificates, or licenses; the adoption of rules and canons of ethics; the conduct of inspections; the receipt of complaints and disciplinary action taken against practitioners; and how fees would be levied and collected to cover the expenses of administering and operating the regulatory system;
     (ii) 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;
     (iii) The nature of the standards proposed for registration, certification, or licensure as compared with the standards of other jurisdictions;
     (iv) Whether the regulatory entity would be authorized to enter into reciprocity agreements with other jurisdictions; and
     (v) The nature and duration of any training including, but not limited to, whether the training includes a substantial amount of supervised field experience; whether training programs exist in this state; if there will be an experience requirement; whether the experience must be acquired under a registered, certificated, or licensed practitioner; whether there are alternative routes of entry or methods of meeting the prerequisite qualifications; 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;
     (d) Assurance of the public that practitioners have maintained their competence:
     (i) Whether the registration, certification, or licensure will carry an expiration date; and
     (ii) Whether renewal will be based only upon payment of a fee, or whether renewal will involve reexamination, peer review, continuing education, or other enforcement;
     (5) The extent to which regulation might harm the public:
     (a) The extent to which regulation will restrict entry into the profession:
     (i) Whether the proposed standards are more restrictive than necessary to ensure safe and effective performance; and
     (ii) Whether the proposed legislation 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 applicant group which should be included in, or portions of the applicant group which should be excluded from, the proposed legislation;
     (6) The maintenance of standards:
     (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:
     (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 registration, certification, or licensure;
     (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:
     (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 a trade should be regulated by the state. At least twenty days before the public hearing, the department shall post on its web site a notice of hearing. The notice must include:
     (a) The trades for which information is sought;
     (b) The information requested under section 3 of this act; and
     (c) When, where, and how members of the general public may present information about the trade.
     (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 trade to the legislative committees of reference. It shall also post the report on its web site.

Sec. 6   RCW 18.118.020 and 1987 c 514 s 5 are each amended to read as follows:
     The definitions contained in this section shall apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Applicant group" includes any business professional group or organization, any individual, or any other interested party which proposes that any business professional group not presently regulated be regulated or which proposes legislation to substantially increase the scope of practice or the level of regulation of the profession.
     (2) "Business professions" means those business occupations or professions which are not health professions under chapter 18.120 RCW and includes, in addition to real estate brokers and salespersons under chapter 18.85 RCW, the following professions and occupations: Accountancy under chapter 18.04 RCW; architects under chapter 18.08 RCW; auctioneering under chapter 18.11 RCW; cosmetologists, barbers, and manicurists under chapter 18.16 RCW; ((contractors under chapter 18.27 RCW;)) debt adjusting under chapter 18.28 RCW; engineers and surveyors under chapter 18.43 RCW; escrow agents under chapter 18.44 RCW; landscape architects under chapter 18.96 RCW; ((water well construction under chapter 18.104 RCW; plumbers under chapter 18.106 RCW;)) and art dealers under chapter 18.110 RCW.
     (3) "Certificate" and "certification" mean 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 assume or use "certified" in the title or designation to perform prescribed professional tasks.
     (4) "Grandfather clause" means a provision in a regulatory statute applicable to practitioners actively engaged in the regulated profession prior to the effective date of the regulatory statute which exempts the practitioners from meeting the prerequisite qualifications set forth in the regulatory statute to perform prescribed occupational tasks.
     (5) "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.
     (6) "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 business professions not previously regulated.
     (7) "License", "licensing", and "licensure" mean permission to engage in a business profession 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.
     (8) "Professional license" means an individual, nontransferable authorization to carry on an activity based on qualifications which include: (a) Graduation from an accredited or approved program, and (b) acceptable performance on a qualifying examination or series of examinations.
     (9) "Practitioner" means an individual who (a) has achieved knowledge and skill by practice, and (b) is actively engaged in a specified business profession.
     (10) "Public member" means an individual who is not, and never was, a member of the business profession 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 business professional service being regulated or an activity directly related to the profession being regulated.
     (11) "Registration" means the formal notification which, prior to 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 business activity to be practiced; and, if required by the regulatory entity, a description of the service to be provided.
     (12) "Regulatory entity" means any board, commission, agency, division, or other unit or subunit of state government which regulates one or more professions, occupations, industries, businesses, or other endeavors in this state.
     (13) "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.

NEW SECTION.  Sec. 7   Sections 1 through 5 of this act constitute a new chapter in Title 18 RCW.