licensure

SB58: Removing Arbitrary Limits on Nurse Practitioners

January 11, 2016  |  Posted in:  |  No comments

This bill was modified from its original version, and then passed both chambers of the legislature unanimously.

Government mandates often unreasonably drive up the cost of health care, as regulations place direct burdens on health care providers or function to reduce their number operating in the marketplace. These regulations violate the principles of a free market that is otherwise (in theory) guaranteed by the Utah Constitution.

Under current Utah law, advanced practice registered nurses (APRN), or “nurse practitioners,” are required to pay a doctor under a “consultation and referral plan” (C&R) before being able to prescribe certain medications—despite receiving advanced training in order to be able to prescribe medications. These nurse practitioners are already licensed by the state, registered by the Drug Enforcement Agency (DEA), and permitted to make such prescriptions under their professional scope of practice, but are still subject to this arbitrary arrangement.

Moreover, the requirement does not specify what “consultation and referral” must include and does not specify the type of doctor. Thus, a legally compliant C&R plan could be for a mental health nurse in St. George to pay a podiatrist in Logan to sign their form. In some cases, these C&R’s have become little more than an extra revenue source for doctors—while creating financial barriers for nurse practitioners. This requirement is particularly onerous in rural areas where there are already shortages of doctors; nurse practitioners can help meet the need, but are discouraged from doing so due to this mandate.

Registered nurses who undergo advanced training to become APRN’s and who already have DEA registrations permitting them to prescribe medication should not be subjected to additional arbitrary state regulations. Senate Bill 58, sponsored by Senator David Hinkins, removes the mandate for advanced practice registered nurses to enter into consultation and referral plans with doctors prior to being permitted to prescribe schedule II and III prescription medications.

Free market reforms aimed at removing arbitrary barriers to entry ensure that the supply of goods and services in a market can meet demand. This system is what will produce the most competitive prices for consumers, the best quality, and employment opportunities for producers. This is particularly true in health care. Government should seek to reduce regulations that unnecessarily drive up the cost of delivering health care. With so many locations in Utah suffering from health care provider shortages, it is important that we ensure all health care providers are permitted to practice their profession to the full extent of their training and professional scope of practice.

HB132: Freedom from Licensure for Small Businesses

 |  Posted in:  |  One comment

This bill passed the House 57-17 but was not considered in the Senate for lack of time.

Libertas Institute supports this bill.

UPDATE: SEE THE BOTTOM FOR NEW INFORMATION

Utah law currently allows municipalities to license businesses “for the purpose of regulation and revenue.” In other words, merely for raising additional funds for its own budget, a city may require licenses and fees of businesses despite having no regulatory justification for doing so.

The fees required of businesses often exceed over $100 annually, rising in amount for commercial businesses and other high-traffic operations. This burden is onerous on businesses that bring in little revenue, such as a piano teacher, babysitter, craftsman selling wares on Etsy, or MLM consultant. Many part-time operations amount in little revenue, and yet to be compliant with the law such persons would have to divert a large amount of their revenue to pay for these fees.

House Bill 132, sponsored by Representative Jake Anderegg, would repeal the authority to require licensure and impose fees merely to raise revenue. In addition, it would carve out an exemption for most home-based businesses, minimizing the regulatory and financial burden already placed upon them.

Finally, the bill clarifies that nonprofit organizations (many of which operate on a shoestring budget) are not a business as defined by state law, and therefore municipalities may not require licensure and fees of them.

The bill does allow municipalities to require exempt businesses to register with the city, though it prohibits them from imposing any fee or penalty for failure to register.

UPDATE: This bill has been changed from its initial form. The current draft prohibits cities from requiring fees of home-based businesses if their off-site (external) impact is not greater than the impact of normal residential use, but allows cities to still require a (no cost) license of these businesses. Occasional businesses operated by minors are exempted both from licensure and fees. Also, cities will be prohibited from requiring any license for purposes of revenue, or any license from a non-profit organization.

HB44: Establishing Alternative Pathways to Heavy- Handed Licensure

December 21, 2015  |  Posted in:  |  No comments

This bill was not considered by the legislature.

Libertas Institute supports this bill.

A recent nationwide study found Utah to be the 12th most onerously licensed state in the nation. This is a metric that harms free enterprise in our state. Utahns should have the right to work and engage in their occupation free from government mandates to obtain a permission slip from bureaucrats. House Bill 44, sponsored by Representative Jon Stanard, aims to ensure closer review of these regulations.

Too often, industries seek to create barriers to entry for new practitioners using government regulation via increased occupational licensing requirements. These occupational licensure regulations are one of the biggest ways government interferes in the free market. The Occupational and Professional Licensure Review Committee is important in reigning in the increase in such licensing regulations and in ensuring that when regulations do exist, they avoid unnecessary intrusions on individual liberty. Expanding the scope of the committee’s work in this area will further help to bring scrutiny on state regulations.

We have written about a recent Supreme Court ruling that calls into question the actions of licensure boards that restrict competitive markets. It is important that Utah acts to reign in the regulations imposed by occupational licensing schemes in the state—not just in order to preserve free enterprise, but also to avoid legal liability.

This bill modifies the statute governing the committee that reviews all new requests for state licensure of professions (sunrise reviews). This committee also reviews the sunset provision for statutes that license occupations. This bill aims to broaden the reach of the committee by allowing it to review “any occupational or professional licensure matter” outside of a sunrise or sunset review, and to also conduct sunset reviews for all licensed occupations in the state, no matter the section of code they are licensed under.

Additionally, the bill clarifies that in reviewing the creation (sunrise) of new regulations for occupations, the committee can consider a “less restrictive alternative to licensing, including registration or certification” in order to “avoid unnecessary regulation and intrusion upon individual liberties by the state, while still protecting the health and safety of the public.” These are good ways to check occupational licensure in Utah and will help to promote and preserve free enterprise and the right of Utahns to freely pursue their careers.

Why Government Should Get Out of the Marriage Business

July 6, 2015  |  Posted in: Op-Eds  |  2 comments

The following op-ed by our vice president, DJ Schanz, was published this weekend in the Salt Lake Tribune.

By their own admission, many same-sex marriage proponents view the Supreme Court’s recent ruling more as the beginning—and certainly not the end—of a larger legislative and judicial war. This contention has exhausted hundreds of millions of dollars and man hours. Even worse, it has turned neighbors into enemies.

You don’t see such hostility between Mormons and Catholics regarding the form and method of baptism. The former church believes that baptizing infants is a “mockery before God” whereas the latter considers it “an immemorial tradition of the Church.” Each group disagrees with the other, but not to the point of bitterness and public strife.

Obviously, there is no government definition of baptism; one denomination has not been able to impose its doctrinal position on their peers through the force of law. As such, there is no attempt to wrest control of political power to modify and expand that definition to be more inclusive. Each group operates in a “live and let live” fashion, using persuasion to convince others.

Read more »

Occupational Licensure Boards: On the Defense after SCOTUS Ruling?

April 23, 2015  |  Posted in: Center for Free Enterprise  |  2 comments

Around the country, states have imposed licensure requirements on a large number of professions, effectively requiring workers to seek government permission—and pass through a number of bureaucratic hurdles—in order to practice their chosen profession. Whereas in the 1950s only one in 20 U.S. workers were required to obtain a license, that figure today stands at almost one in every three workers.

For each licensed profession, state legislatures usually authorize and empower a governing board, comprised in most cases of members of that same profession. For example, in Utah, the licensure of chiropractors is regulated by a board made up of four chiropractors and a token “public member” who is not a member of the industry. Nurses are regulated by a board comprised of nine fellow nurses and two public members. Direct-entry midwives are overseen by four licensed people from the profession and one “public member.” The trend holds constant for the other several dozen licensed professions in Utah.

That trend may soon change in light of a U.S. Supreme Court opinion issued in February that may put these boards on the defense. The case at hand, North Carolina State Board of Dental Examiners v. FTC, arose due to the dental board—comprised primarily of dentists—engaging in non-competitive behavior and being sued by the Federal Trade Commission. Specifically, the board attempted to prohibit non-dentists from providing teeth whitening services, presumably because this competition undermined their monopolistic hold on the market.

Read more »

HB235: Reducing the Burden of Occupational Licensure

February 4, 2015  |  Posted in:  |  One comment

This bill passed out of committee but was not considered by the House of Representatives.

Libertas Institute supports this bill.

We believe in the right of an individual to engage in an occupation free from government restriction or a mandate to first obtain a permission slip from bureaucrats. Too often, industries seek to create barriers to entry for new practitioners using government regulation via increased occupational licensing requirements. Some licensing requirements include arbitrary waiting times or requisite years of experience before a license is issued despite whether an individual can demonstrate actual competency in the field.

House Bill 235, sponsored by Representative Norman Thurston, aims to reduce these barriers to entry from waiting times by giving prospective licensees the opportunity to demonstrate skills competency in their field in lieu of a waiting time. Under the bill, the Utah Department of Occupational Licensure would offer alternative testing for license applicants who wish to demonstrate skills competency. While we are opposed to licensing in general and oppose increased barriers to entry, we see this bill as a common sense way to reduce existing licensure burdens and provide more opportunity for individuals to obtain requisite licenses.

A recent nationwide study found Utah to be the 12th most onerously licensed state in the nation. This is a metric that harms free enterprise in our state and the liberty of Utahns to engage in an occupation of their choice. Utah should continue to find ways to reduce the burden of licensure. HB 235 is a good step in that direction.

HB126: Licensure for Interior Designers

January 19, 2015  |  Posted in:  |  8 comments

This bill passed out of committee but was not considered by the House of Representatives.

Libertas Institute opposes this bill.

In Utah, the independent practice of interior design, when seeking building permits to make modifications to certain architectural elements of an interior, is restricted to the existing licensing requirements under architectural licensing. Some interior designers want the ability to work independently from architects and seek their own licensing recognition to allow them to obtain building permits independently from architects. This summer, the interior design lobby in Utah applied to become a licensed occupation in Utah. New applications for licensure must first be reviewed through a sunrise process by the Occupational and Professional Licensure Review Committee. During that process, the committee declined to grant the interior designers’ request and instead favored alternatives to full licensure. One option the committee favored was to grant interior designers an exemption from existing architectural licensing requirements for the work of interior design. However, the industry did not reach agreement on what constituted interior design, how interior design differed from architecture, what, if any, impacts on public health and safety interior design had, and what, if any, requirements would be required to qualify for an exemption.

House Bill 126, sponsored by Representative Fred Cox, an architect by trade, aims to address some of these issues by regulating interior design through a separate professional licensure act, something the review committee did not favor. The bill is designed to carve out a portion of existing architectural work that interior designers could also conduct independently of architects. It grants licensed interior designers the ability to submit plans independently for building permit approval which current architectural licensing does not permit. However, it also creates an entirely new category of licensure along with a professional licensing board and new requirements for interior designers to meet to obtain this license.

Generally, the trend across the country has been to deregulate interior design and reduce the number of licensed occupations. Utah should not break this trend. New licensing acts come with a number of concerns:

Read more »

HB61: Freedom from Licensure for Small Businesses and Nonprofits

December 29, 2014  |  Posted in:  |  No comments

To track the status of this bill, find it on our Legislation Tracker.
Click here to contact the sponsor of the bill to share your thoughts, or
click here to email your Senator and Representative about it.

Libertas Institute supports this bill.

Utah law currently allows municipalities to license businesses “for the purpose of regulation and revenue.” In other words, merely for raising additional funds for its own budget, a city may require licenses and fees of businesses despite having no regulatory justification for doing so.

The fees required of businesses often exceed over $100 annually, rising in amount for commercial businesses and other high-traffic operations. This burden is onerous on businesses that bring in little revenue, such as a piano teacher, babysitter, craftsman selling wares on Etsy, or MLM consultant. Many part-time operations amount in little revenue, and yet to be compliant with the law such persons would have to divert a large amount of their revenue to pay for these fees.

Read more »

Legislative Overstepping? Firearms, Breastfeeding, and More

August 5, 2014  |  Posted in: Center for Free Enterprise  |  4 comments

Under Utah law, cities are authorized to require permits of business owners—including home business owners—for “purposes of regulation and revenue.” A bill attempting to restrict that authority, specifically carving out an exemption for at-home business owners, struggled in committee and was referred to interim study.

That interim study came in the form of another committee meeting a few weeks ago, in which the same debate was had; many legislators struggled to understand how or why the legislature should “impose” something upon the cities. They voiced objections to the thought of “micro-managing” cities, and indicated a preference to allowing cities to do as they please.

What wasn’t brought up, however, was the fact that the legislature has in the past—in many cases—restricted the authority of local governments to ensure a state-wide policy is followed rather than enabling a patchwork of different treatment for citizens around the state. As it relates to the home business exemption, this also makes sense. Why should a (very part time) seamstress earning $200 a year on the side be forced to pay a $150 license fee for the privilege of working in her own home, while another seamstress earning the same amount in another city be free from that burden?

As mentioned, there are many instances in Utah law when cities and counties are prohibited from doing something. Here are a few examples.

Firearms

Utah law explicitly recognizes the “individual right to keep and bear arms” as “a constitutionally protected right under Article I, Section 6 of the Utah Constitution.” As such, “the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.”

Part of that uniform law includes the following:

(2) Except as specifically provided by state law, a local authority or state entity may not:
(a) prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual’s place of residence, property, business, or in any vehicle lawfully in the individual’s possession or lawfully under the individual’s control; or
(b) require an individual to have a permit or license to purchase, own, possess, transport, or keep a firearm.

Many cities might like to enact policy restricting or regulating firearm possession and transportation. Some would jump at the chance to collect revenue by requiring a permit and license. This power is denied to them by the legislature, creating a state-wide policy that recognizes and protects the right to acquire and possess firearms.

Breastfeeding

Andrea Scannel, a Utah mother, was at Mount Logan Middle School for a government-administered “free lunch” program for her three-year-old. While there, she nursed her infant. She was given a letter by the school’s principal, delivered by an employee, passive-aggressively inviting her to “use discretion” and to “find a way to discreetly feed the baby, whether with a small blanket or in a more private area.” Andrea was taken aback by the “request,” later commenting: “I just never expected anyone to have an issue with me feeding my baby while everyone is there to feed their children.”

Utah law states, “A woman’s breast feeding, including breast feeding in any place where the woman otherwise may rightfully be, does not under any circumstance constitute an obscene or lewd act, irrespective of whether or not the breast is covered during or incidental to feeding.”

It further stipulates that local governments “may not prohibit a woman’s breast feeding…” Some of the more conservative cities might otherwise wish to regulate how much breast can be exposed, and when and where, but this power is denied to them “irrespective of whether the breast is uncovered during or incidental to the breast feeding.” Mothers around the state now take comfort in a general recognition that their nursing of their infants is a legally protected activity.

Alcohol regulation

One might imagine what Provo, Utah would do in regards to regulating alcohol availability if it had the opportunity, but Utah law states that it, and other cities, “may not regulate in relation to” an issue “related to alcoholic product control” if state law already addresses that issue, unless the legislature “expressly granted” authority to do so.

If the legislative committee reviewing the business licensure bill imposed their same logic on this issue, some cities such as Park City and Salt Lake City would have free-flowing booze while others, such as Provo or Orem, would be dry cities. The legislature has previously decided on requiring a more uniform set of policies throughout the state, denying authority to the cities to act contrary to its edicts.

Immigration

Just a few years ago, the legislature passed a bill that prevents local governments from enacting “an ordinance or policy that limits or prohibits a law enforcement officer, local official, or local government employee from communicating or cooperating with federal officials regarding the immigration status of a person within the state.”

Whereas a more liberal city council might want to prevent coordination such as this to provide sanctuary to so-called “illegal immigrants,” cities and counties around the state have been denied the ability to intervene.

Conclusion

More examples exist, but these suffice to show that the legislature is perfectly comfortable establishing state-wide policies on matters where there otherwise might be diverse interests among Utah’s 243 cities and towns.

Of course, just because the legislature has done something in the past is not reason on its own to repeat it in the future. However, in cases where fairness and rights are involved, it makes more sense to have a uniform policy that recognizes and protects that right.

The right to work has long been recognized by the courts in Utah. For example, in Leetham v. McGinn: “The right to engage in a profession or occupation is a property right, which is entitled to protection by the law and the courts.” In another case, McGrew v. Industrial Commission, we read this:

[O]ne may be said to have a special property in his profession or calling by means of which he makes his support, and he can be deprived of it only by due process of law. . . . . The right to work, the right to engage in gainful occupations, the right to receive compensation for one’s work are essentially property rights. So too is the right to enjoy the benefits resulting from the work of one so employed. So also the right to engage in commerce or in legitimate business is property.

For this reason, we support a state-wide restriction on a city’s ability to siphon money from its residents through permits for operating businesses inside the home that do not impact the public. Legislators expressing concern over stepping on the toes of cities seems, in the end, to be more a concern of money than authority; local governments are not going to give up an estimated $4 million in revenue without a fight.

DOPL and Dyslexia

July 29, 2013  |  Posted in: Center for Free Enterprise  |  2 comments

Last week, the Administrative Rules Review Committee met to discuss the Division of Occupational and Professional Licensing‘s assertion that dyslexia can only be assessed and treated by psychologists licensed by the state.

At issue was a complaint made against the Dyslexia Center of Utah, which employs trained specialists who do not have such a license. Should such persons, clearly qualified in their field of work and screened properly by their employer, be barred from providing services to the public without the permission of the state?

More specifically, these employees were helping assess and treat dyslexia by administering the Comprehensive Test of Phonological Processing—a standard test that’s more like a game for the children who take it. It produces a fluency score and offers supplemental tests that help determine whether the child has difficulty with phonological analysis which may indicate dyslexia.

Prior to last week’s meeting, the director of the Dyslexia Center of Utah, Shelley Hatch, sent an email to Dr. Joseph Torgesen, one of the authors of this widely used test. Hatch wanted to ask Torgesen’s thoughts on what qualifications were needed to administer the test. Did he think that licensed psychologists were inherently qualified? Torgesen replied:

Read more »

Featured