§ 3101. Policy and purpose
It is the policy of the state of Vermont that regulation be imposed upon a profession or occupation solely for the purpose of protecting the public. The legislature believes that all individuals should be permitted to enter into a profession or occupation unless there is a demonstrated need for the state to protect the interests of the public by restricting entry into the profession or occupation. If such a need is identified, the form of regulation adopted by the state shall be the least restrictive form of regulation necessary to protect the public interest. If regulation is imposed, the profession or occupation may be subject to periodic review by the legislature to insure the continuing need for and appropriateness of such regulation. (Added 1977, No. 183 (Adj. Sess.), § 1; amended 1985, No. 96, § 1; 1985, No. 255 (Adj. Sess.), § 1.)
§ 3101a. Definitions
The definitions contained in this section shall apply throughout this chapter unless the context clearly requires otherwise:
(1) "Certification" means a voluntary process by which a statutory regulatory entity grants to an individual, who has met certain prerequisite qualifications, the right to assume or to use the title of the profession or occupation, or the right to assume or use the term "certified" in conjunction with the title. Use of the title or the term "certified," as the case may be, by a person who is not certified is unlawful.
(2) "Licensing" and "licensure" mean a process by which a statutory regulatory entity grants to an individual, who has met certain prerequisite qualifications, the right to perform prescribed professional and occupational tasks and to use the title of the profession or occupation. Practice without a license is unlawful.
(3) "License" means an individual, nontransferable authorization to carry on an activity based on qualifications such as:
(A) satisfactory completion of or graduation from an accredited or approved educational or training program; and
(B) acceptable performance on a qualifying examination or series of examinations.
(4) "Practitioner" means an individual who is actively engaged in a specified profession or occupation.
(5) "Public member" means an individual who has no material financial interest in the profession or occupation being regulated other than as a consumer.
(6) "Registration" means a process which requires that, prior to rendering services, all practitioners formally notify a regulatory entity of their intent to engage in the profession or occupation. Notification may include the name and address of the practitioner, the location of the activity to be performed, and a description of the service to be provided.
(7) "Regulatory law" as used in section 3104 of this title, means any profession or occupation registered, certified, or licensed under this title or 4 V.S.A. chapter 23. (Added 1985, No. 255 (Adj. Sess.), § 2.)
§ 3102. Periodic review requirement
(a) Each licensing law enumerated below in subsection (b) of this section, each board related thereto, and the activities resulting shall be subject to review, at least once, in the manner provided in section 3104 of this title and on the basis of the criteria in section 3105 of this title.
(b) The following laws are subject to review:
(1) Chapter 15 of this title on electricians;
(2) Chapter 39 of this title on plumbers and plumbing;
(3) Chapter 28 of this title on nursing;
(4) Chapter 10 of this title on chiropractic;
(5) Chapter 6 of this title on barbers;
(6) Chapter 6 of this title on cosmeticians and hairdressers;
(7) Chapter 23 of this title on medicine and surgery;
(8) Chapter 33 of this title on osteopathic physicians and surgeons;
(9) Chapter 13 of this title on dentists and dental hygienists;
(10) 18 V.S.A. chapter 46 on nursing home administrators;
(11) Chapter 17 of this title on embalmers;
(12) Chapter 21 of this title on funeral directors;
(13) Chapter 44 of this title on veterinary science;
(14) Chapter 1 of this title on accountants;
(15) Chapter 59 of this title on private detectives;
(16) Chapter 55 of this title on psychologists;
(17) Chapter 36 of this title on pharmacy;
(18) Chapter 51 of this title on radiological technologists;
(19) Chapter 41 of this title on real estate brokers and salesmen;
(20) Chapter 20 of this title on engineering;
(21) Chapter 3 of this title on architects;
(22) Chapter 45 of this title on land surveyors;
(23) Chapter 31 of this title on physicians' assistants;
(24) Chapter 7 of this title on podiatry;
(25) 4 V.S.A. chapter 23 on attorneys;
(26) Chapter 47 of this title on opticians;
(27) Chapter 65 of this title on clinical mental health counselors;
(28) Chapter 67 of this title on hearing aid dispensers;
(29) Chapter 79 of this title on tattooists;
(30) Chapter 81 of this title on naturopathic physicians;
(31) Chapter 83 of this title on athletic trainers;
(32) Chapter 87 of this title on audiologists and speech-language pathologists.
(c) Any new law to regulate another profession or occupation shall be based on the relevant criteria and standards in section 3105 of this title. (Added 1977, No. 183 (Adj. Sess.), § 1; amended 1979, No. 134 (Adj. Sess.), § 2, eff. April 22, 1980; 1979, No. 192 (Adj. Sess.), § 3; 1981, No. 105, § 1; 1981, No. 227 (Adj. Sess.), § 1, eff. May 6, 1982; 1983, No. 64, § 1, eff. April 26, 1983; 1983, No. 187 (Adj. Sess.), §§ 1, 2; 1983, No. 233 (Adj. Sess.), § 3; 1983, No. 242 (Adj. Sess.), § 12; 1985, No. 96, § 2; 1985, No. 255 (Adj. Sess.), § 3; 1987, No. 245 (Adj. Sess.), § 3; 1989, No. 60, § 3; 1989, No. 253 (Adj. Sess.), § 16; 1991, No. 236 (Adj. Sess.), § 4; 1995, No. 79 (Adj. Sess.), § 3; 1995, No. 171 (Adj. Sess.), § 3; 1997, No. 108 (Adj. Sess.), § 4, eff. Jan. 1, 1999; 2001, No. 151 (Adj. Sess.), § 48, eff. July 1, 2003.)
§ 3103. Repealed. 1985, No. 96, § 5.
§ 3104. Process for review
(a) Either house of the general assembly may designate, by resolution, a regulatory law or an issue that affects professions and occupations generally to be reviewed by the legislative council staff. The staff shall base its review on the criteria and standards in section 3105 of this title.
(b) The review may also include the following inquiries:
(1) the extent to which the board's actions have been in the public interest and consistent with legislative intent;
(2) the extent to which the board's rules are complete, concise, and easy to understand;
(3) the extent to which the board's standards and procedures are fair and reasonable and accurately measure an applicant's qualifications;
(4) the way in which the board receives, investigates, and resolves complaints from the public;
(5) the extent to which the board has sought ideas from the public and from those it regulates, concerning reasonable ways to improve the service of the board and the profession or occupation regulated;
(6) the extent to which the board gives adequate public notice of its hearings and meetings and encourages public participation;
(7) whether the board makes efficient and effective use of its funds, and meets its responsibilities;
(8) whether the board has sufficient funding to carry out its mandate.
(c) The legislative council staff shall give adequate notice to the public, the board, and the appropriate professional societies that it is reviewing a particular law and board. Notice to the board and the professional societies shall be in writing. All information required under section 3107 of this title and data reasonably requested for purposes of the review shall be provided by the boards. The staff shall seek comments and information from the public and from members of the profession or occupation. It also shall give the board a chance to present its position and to respond to any matters raised in the review. The staff, upon its request, shall have assistance from the department of finance and management, the auditor of accounts, the attorney general, the director of the office of professional regulation, the joint fiscal committee, or any other state agency.
(d) The legislative council staff shall file a separate written report for each review with the speaker of the house and president of the senate and with the chairman of the appropriate house or senate committee as provided in subsection (f) of this section. The reports shall contain:
(1) findings, alternative courses of action, and recommendations,
(2) a copy of the board's administrative rules, and
(3) appropriate legislative proposals.
(e) The legislative council staff shall send a copy of the report to the board affected, and shall make copies available for public inspection.
(f) The house and senate committees on government operations shall be responsible for overseeing the preparation of reports by the legislative council staff under this chapter.
(g) After considering a report each committee shall send its findings and recommendations, including proposals for legislation, if any, to the house or to the senate, as appropriate. Any proposed licensing law shall be drafted according to a uniform format recommended in the comprehensive plan. (Added 1977, No. 183 (Adj. Sess.), § 1; amended 1981, No. 105, § 2; 1981, No. 227 (Adj. Sess.), § 2; 1985, No. 96, § 3; 1985, No. 255 (Adj. Sess.), § 4; 1989, No. 250 (Adj. Sess.), § 4(d); 1991, No. 241 (Adj. Sess.),§§ 1, 2.)
§ 3105. Criteria and standards
(a) A profession or occupation shall be regulated by the state only when:
(1) it can be demonstrated that the unregulated practice of the profession or occupation can clearly harm or endanger the health, safety, or welfare of the public, and the potential for the harm is recognizable and not remote or speculative;
(2) the public can reasonably be expected to benefit from an assurance of initial and continuing professional ability; and
(3) the public cannot be effectively protected by other means.
(b) After evaluating the criteria in subsection (a) of this section and considering governmental and societal costs and benefits, if the legislature finds that it is necessary to regulate a profession or occupation, the least restrictive method of regulation shall be imposed, consistent with the public interest and this section:
(1) if existing common law and statutory civil remedies and criminal sanctions are insufficient to reduce or eliminate existing harm, regulation should occur through enactment of stronger civil remedies and criminal sanctions;
(2) if a professional or occupational service involves a threat to the public and the service is performed primarily through business entities or facilities that are not regulated, the business entity or the facility should be regulated rather than its employee practitioners;
(3) if the threat to the public health, safety, or welfare including economic welfare is relatively small, regulation should be through a system of registration;
(4) if the consumer may have a substantial interest in relying on the qualifications of the practitioner, regulation should be through a system of certification; or
(5) if it is apparent that the public cannot be adequately protected by any other means, a system of licensure should be imposed.
(c) Any of the issues set forth in subsections (a) and (b) of this section and section 3107 of this title may be considered in terms of their application to professions or occupations generally.
(d) Prior to review under this chapter and consideration by the legislature of any bill to regulate a profession or occupation, the office of professional regulation shall make, in writing, a preliminary assessment of whether any particular request for regulation meets the criteria set forth in subsection (a) of this section. The office shall report its preliminary assessment to the appropriate house or senate committee on government operations.
(e) After the review of a proposal to regulate a profession, the office of professional regulation may decline to conduct an analysis and evaluation of the proposed regulation if it finds that:
(1) the proposed regulatory scheme appears to regulate fewer than 250 individuals; and
(2) the office previously conducted an analysis and evaluation of the proposed regulation of the same profession, and no new information has been submitted that would cause the office to alter or modify the recommendations made in its earlier report on the proposed regulation of the profession. (Added 1977, No. 183 (Adj. Sess.), § 1; amended 1985, No. 96, § 4; 1985, No. 255 (Adj. Sess.), § 5; amended 1997, No. 145 (Adj. Sess.), § 16; 2009, No. 35, § 39.)
§ 3106. Director of the office of professional regulation; annual report
Annually, the director of the office of professional regulation shall prepare a concise report on the activities of all boards under his or her jurisdiction. Prior to the commencement of each legislative session, the director shall prepare a report for publication on the office's website containing his or her assessments, conclusions, and recommendations with proposals for legislation, if any, to the speaker of the house and to the chairpersons of the government operations committees of the house and senate and the chairpersons of the boards. The office shall also provide written copies of the report to the house and senate committees on government operations. (Added 1981, No. 227 (Adj. Sess.), § 3; amended 1985, No. 255 (Adj. Sess.), § 6; 1989, No. 250 (Adj. Sess.), §§ 2, 4(d); 1997, No. 145 (Adj. Sess.), § 6; 2003, No. 60, § 16.)
§ 3107. Information required
Prior to review under this chapter and prior to consideration by the legislature of any bill which proposes to regulate a profession or occupation, the profession or occupation being reviewed or seeking regulation shall explain each of the following factors, in writing, to the extent requested by the appropriate house or senate committees on government operations:
(1) Why regulation is necessary including:
(A) the nature of the potential harm or threat to the public if the profession or occupation is not regulated;
(B) specific examples of the harm or threat identified in subdivision (1)(A) of this section;
(C) the extent to which consumers will benefit from a method of regulation which permits identification of competent practitioners, indicating typical employers, if any, of practitioners;
(2) The extent to which practitioners are autonomous, as indicated by:
(A) the degree to which the profession or occupation requires the use of independent judgment, and the skill or experience required in making such judgment;
(B) the degree to which practitioners are supervised;
(3) The efforts that have been made to address the concerns that give rise to the need for regulation including:
(A) voluntary efforts, if any, by members of the profession or occupation to:
(i) establish a code of ethics;
(ii) help resolve disputes between practitioners and consumers;
(iii) establish requirements for continuing education.
(B) recourse to and the extent of use of existing law;
(4) Why the alternatives to licensure specified in this subdivision would not be adequate to protect the public interest:
(A) stronger civil remedies or criminal sanctions;
(B) regulation of the business entity or facility providing the service rather than the employee practitioners;
(C) regulation of the program or service rather than the individual practitioners;
(D) registration of all practitioners;
(E) certification of practitioners;
(F) other alternatives;
(5) The benefit to the public if regulation is granted including:
(A) how regulation will result in reduction or elimination of the harms or threats identified under subdivision (1) of this section;
(B) the extent to which the public can be confident that a practitioner is competent:
(i) whether the registration, certification, or licensure will carry an expiration date;
(ii) whether renewal will be based only upon payment of a fee, or whether renewal will involve reexamination, peer review, or other enforcement;
(iii) the standards for registration, certification, or licensure as compared with the standards of other jurisdictions;
(iv) the nature and duration of the educational requirement, if any, including, but not limited to, whether such educational program includes a substantial amount of supervised field experience; whether educational programs exist in this state; whether there will be an experience requirement; whether the experience must be acquired under a registered, certified, or licensed practitioner; whether there are alternative routes of entry or methods of satisfying the eligibility requirements and 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;
(6) The form and powers of the regulatory entity including:
(A) whether the regulatory entity is or would be a board composed of members of the profession or occupation and public members, or a state agency, or both, and, if appropriate, their respective responsibilities in administering the system of registration, certification, or licensure;
(B) the composition of the board, if any, and the number of public members, if any;
(C) the powers and duties of the board or state agency regarding examinations;
(D) the system for receiving complaints and taking disciplinary action against practitioners;
(7) The extent to which regulation might harm the public including:
(A) whether regulation will restrict entry into the profession or occupation:
(i) whether the standards are the least restrictive necessary to insure safe and effective performance;
(ii) whether persons who are registered, certified, or licensed in a jurisdiction which the board or agency believes has requirements that are substantially equivalent to those of this state will be eligible for endorsement or some form of reciprocity;
(B) whether there are similar professions or occupations which should be included, or portions of the profession or occupation which should be excluded from regulation;
(8) How the standards of the profession or occupation will be maintained:
(A) whether effective quality assurance standards exist in the profession or occupation, such as legal requirements associated with specific programs that define or enforce standards, or a code of ethics;
(B) how the proposed form of regulation will assure quality:
(i) the extent to which a code of ethics, if any, will be adopted;
(ii) the grounds for suspension, revocation, or refusal to renew registration, certification, or licensure;
(9) A profile of the practitioners in this state, including a list of associations, organizations, and other groups representing the practitioners including an estimate of the number of practitioners in each group.
(10) The effect that registration, certification, or licensure will have on the costs of the services to the public. (Added 1985, No. 255 (Adj. Sess.), § 7.)