Session of 2024
HOUSE BILL No. 2818
By Committee on Federal and State Affairs
Requested by Representative L. Williams
3-5
AN ACT concerning the legislature; relating to legislation pertaining to
occupational regulation; providing for a review process and evaluation
criteria for the legislature when considering bills that propose new or
additional occupational regulation; requiring regulatory entities at the
direction of the joint committee on administrative rules and regulations
to provide a report to the legislature to inform the legislature's
consideration of such proposals; authorizing the joint committee to
contract for such a report when necessary; amending K.S.A. 2023
Supp. 77-436 and repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) It is the intent of the legislature that the general
welfare of Kansas residents be promoted by establishing guidelines for
legislative consideration of proposals concerning the regulation of
occupations and professions not regulated prior to July 1, 2024, and
guidelines for proposals to increase regulation of any occupations or
professions or combine any additional occupations or professions under a
single license regulated by the state prior to July 1, 2024. The legislature
further finds that the general welfare will be promoted by providing
information for the benefit of the legislature when considering proposals
concerning the regulation of occupations and professions.
(b) The purpose of this act is to provide a structure, a process and
sufficient information when the legislature considers proposals to increase
occupational regulation to further the legislature's intent that all individuals
may engage in the occupation of their choice, free from unreasonable
government regulation. The state shall not impose a substantial burden on
an individual's pursuit of an occupation or profession unless there is a
reasonable interest for the state to protect the general welfare. If such an
interest exists, the regulation adopted by the state shall be the least
restrictive type of occupational regulation that is consistent with the public
interest to be protected.
New Sec. 2. For purposes of sections 1 through 5, and amendments
thereto:
(a) "Certification" means a program whereby the state grants
nontransferable recognition to an individual who meets predetermined
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qualifications established by statute or by rules and regulations of a
regulatory body and applied by the regulatory body. "Certification" entitles
the individual to use "certified" as a designated title. "Certification" shall
not be synonymous with "occupational license";
(b) "general welfare" means the concern of the state for the health,
peace, morality and safety of Kansas residents;
(c) "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 the individual selling them is or is not
subject to an occupational regulation;
(d) "least restrictive type of occupational regulation" means the
regulation that is least restrictive, pursuant to the following list of
regulations provided in order from least to most restrictive:
(1) Bonding or insurance;
(2) registration;
(3) certification; and
(4) occupational license;
(e) "occupational license" means a nontransferable authorization in
law for an individual to perform a lawful occupation for compensation
based on meeting personal qualifications established by a regulatory body
and that, if not possessed, prohibits the individual from performing the
occupation for compensation;
(f) "occupational regulation" means, except as provided by section 5,
and amendments thereto, a statute, rule and regulation, practice or policy
requiring an individual to possess certain personal qualifications to work
in a lawful occupation;
(g) "personal qualifications" means criteria related to an individual's
personal background, including completion of an approved educational
program, satisfactory performance on an examination, work experience,
criminal history or completion of continuing education;
(h) "practitioner" means an individual who has achieved knowledge
and skill by practice and is actively engaged in a specified occupation or
profession;
(i) (1) "registration" means a requirement established by statute or
rule and regulation for which an individual:
(A) Submits notification to a state agency; and
(B) may use "registered" as a designated title.
(2) For purposes of this subsection, "notification" includes the
individual's name and address, the individual's agent for service of process,
the location of the activity to be performed or a description of the service
that the individual provides. "Registration" includes a requirement to post
a bond but does not include education or experience requirements. If the
requirement of "registration" is not met, the individual is prohibited from
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performing the occupation for compensation or using "registered" as a
designated title. "Registration" is not synonymous with "occupational
license";
(j) "regulatory body" means any office, department, board,
commission, state agency, division or other unit or subunit of the executive
branch of the state that regulates one or more professions, occupations,
industries or businesses in this state. "Regulatory body" does not include
any unit or subunit of the judicial or legislative branches of government or
cities, counties, townships, school districts or any other local unit of
government;
(k) "state agency" means every state office, department, board,
commission, regulatory entity or agency of the executive branch of the
state; and
(l) "substantial burden" means a requirement in an occupational
regulation that imposes significant difficulty or cost on an individual
seeking to enter or continue in a lawful occupation and is more than an
incidental burden.
New Sec. 3. (a) To achieve the intent of the legislature set forth in
section 1, and amendments thereto, and except as provided by section 5,
and amendments thereto, all bills introduced in the legislature proposing to
regulate an occupation or profession not previously regulated by law prior
to July 1, 2024, shall be reviewed by the legislature according to the
following criteria. An occupation or profession not previously regulated by
law shall not be regulated by the state unless the legislature determines
that:
(1) Unregulated practice could cause harm and endanger the general
welfare, and the potential for further harm and endangerment is
recognizable and significant;
(2) the public can reasonably be expected to benefit significantly
from an assurance of personal qualifications; and
(3) the general welfare cannot be sufficiently protected by any other
means.
(b) After evaluating the criteria in subsection (a) and considering
governmental, economic and societal costs and benefits, if the legislature
determines that the state has a strong interest in regulating an occupation
or profession not previously regulated by law, the most efficient form of
regulation shall be implemented consistent with the need to protect the
general welfare, as follows:
(1) If the threat to the general welfare resulting from the practitioner's
services is easily predictable, the regulation shall implement a system of
insurance, bonding or registration;
(2) if the consumer has challenges accessing credentialing
information or possesses significantly less information on how to report
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abuses such that the practitioner puts the consumer in a disadvantageous
position relative to the practitioner to judge the quality of the practitioner's
services, the regulation shall implement a system of certification; and
(3) if other regulatory structures, such as bonding, insurance,
registration or certification insufficiently protect the general welfare from
recognizable harm, the regulation shall implement a system of licensing.
New Sec. 4. (a) During each regular or special session of the
legislature, the joint committee on administrative rules and regulations
shall review bills introduced in the legislature that pertain to the regulation
of a profession or occupation, except as provided in section 5, and
amendments thereto. There shall be no requirement for bills to be referred
to the joint committee for such review. The joint committee shall have
authority to consider and make such determinations and communicate with
regulatory bodies on behalf of the legislature as provided in this act.
(b) Upon review as provided by subsection (a), if the joint committee
on administrative rules and regulations determines that a bill proposes
stronger or additional regulation of a profession or occupation currently
regulated by a regulatory body or proposes regulation of an industry or
occupation that is not currently regulated but is within the scope of
expertise of a regulatory body or bodies, as determined by the joint
committee, the joint committee shall notify the relevant regulatory body or
bodies of such bill introduction. Within 10 business days after such
notification by the joint committee, the relevant regulatory body or bodies
shall prepare a report on the bill as provided by this subsection. All state
agencies shall cooperate with a regulatory body or bodies in the
preparation of a report when and to the extent requested by a regulatory
body preparing such report. The report shall be provided in electronic
format to the joint committee on administrative rules and regulations, the
chairperson, vice chairperson and ranking minority member of the
committee to which the bill under consideration has been assigned, the
speaker of the house, minority leader of the house, president of the senate
and minority leader of the senate. The report shall contain the following
information:
(1) A description of the professional or occupational group proposed
for expansion of regulation, including the number of individuals or
business entities that would be subject to regulation to the extent that such
information is available, the names and addresses of associations,
organizations and other groups representing the practitioners and an
estimate of the number of practitioners in each group;
(2) whether practice of the profession or occupation proposed for
expansion of regulation requires a specialized skill, such that the public is
not qualified to select a competent practitioner without assurances that
minimum qualifications have been met;
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(3) the nature and extent of potential harm to the public if the
profession or occupation is not regulated as described in the bill, including
the production of evidence of potential harm, a description of any
complaints filed with state law enforcement authorities, courts,
departmental agencies, professional or occupational boards and
professional and occupational associations that have been lodged against
practitioners of the profession or occupation in this state within the past
five years. Notwithstanding the provisions of any other law to the contrary,
the relevant regulatory body shall provide in such report any information
relating to such complaints even if the information is considered a closed
record or otherwise confidential, except that the regulatory body shall
redact from the information the names of individuals, other personally
identifiable information, including, but not limited to, addresses, birth
dates, tax identification numbers, social security numbers or license or
registration numbers, the names of businesses and information that would
specifically identify such businesses, information that would make an
individual or business identifiable when combined with other publicly
available information and any information that is confidential under
federal law;
(4) a description of the voluntary efforts made by practitioners of the
profession or occupation to protect the public through self-regulation,
private certifications, membership in professional or occupational
associations or academic credentials and a statement discussing why such
efforts are inadequate to protect the public;
(5) the extent to which expansion of regulation of the profession or
occupation will increase the cost of goods or services provided by
practitioners and the overall cost-effectiveness and economic impact of the
proposed regulation, including the direct cost to the government and the
indirect costs to consumers;
(6) the extent to which expansion of regulation of the profession or
occupation would increase or decrease the availability of services to the
public;
(7) the extent to which existing legal remedies are inadequate to
prevent or redress the kinds of harm potentially resulting from the lack of
the requirements outlined in the bill;
(8) why the bonding and insurance, registration, certification,
occupational license to practice or other type of regulation is being
proposed, why that regulatory alternative was chosen and whether the
proposed method of regulation is appropriate;
(9) a list of other states that regulate the profession or occupation, the
type of regulation, copies of other states' laws and available evidence of
the effect of regulation on the profession or occupation in terms of a
before-and-after analysis from such states;
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(10) the details of any previous efforts in this state to implement
regulation of the profession or occupation;
(11) whether the proposed requirements for regulation exceed the
national industry standards of minimal competence and what such
standards are, if such standards exist; and
(12) the method proposed to finance the proposed regulation and
financial data pertaining to whether the proposed regulation can be
reasonably financed by current or proposed licensees through dedicated
revenue mechanisms.
(c) Upon review as provided in subsection (a), if the joint committee
on administrative rules and regulations determines that a bill proposes new
regulation of a profession or occupation that is not regulated in this state
and further determines that no existing regulatory body regulates or has the
expertise to regulate such occupation or profession, then the joint
committee may contract with consultants, experts or professionals in the
applicable field or with appropriate faculty of Kansas institutions of higher
learning to prepare and make available to the legislature a report as
provided by this subsection. The contract shall require that such report be
provided within 10 business days after the contract's execution. The
director of legislative administrative services shall secure, prepare and
administer such contract as directed by the joint committee, and provide
copies of draft contracts and communications pertaining to the contract
with the joint committee to the chairperson and vice chairperson of the
legislative coordinating council. The contract may be approved by the
chairperson or vice chairperson of the legislative coordinating council, and
such approval may be given while the legislature is in session. The
chairperson of the joint committee may sign such contract on behalf of the
legislature as so approved. All state agencies shall cooperate with the joint
committee and any person contracted by the joint committee in the
preparation of such report when and to the extent requested by the joint
committee. The report shall be provided in electronic format to any
regulatory body discussed or that participated in the report, the joint
committee, the chairperson, vice chairperson and ranking minority
member of the committee to which the bill under consideration has been
assigned, the speaker of the house, minority leader of the house, president
of the senate and minority leader of the senate. The report shall contain the
following information:
(1) A description of the professional or occupational group proposed
for regulation, including the number of individuals or business entities that
would be subject to regulation to the extent that such information is
available, the names and addresses of associations, organizations, and
other groups representing the practitioners and an estimate of the number
of practitioners in each group;
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(2) the nature and extent of potential harm to the public if the
profession or occupation is not regulated, including the production of
evidence of potential harm, a description of any complaints filed with state
law enforcement authorities, courts, departmental agencies, professional or
occupational boards and professional and occupational associations that
have been lodged against practitioners of the profession or occupation in
this state within the past five years. Notwithstanding the provisions of any
other state law to the contrary, information relating to such complaints
shall be provided by any such entity upon the request of the joint
committee on administrative rules and regulations for purposes of the
report even if the information is considered a closed record or otherwise
confidential, except that the providing entity shall redact from the
information individual names or business names, other personally
identifiable information, including, but not limited to, addresses, birth
dates, tax identification numbers, social security numbers or license or
registration numbers, information that would make an individual or
business identifiable if combined with other publicly available information
and any information that is confidential under federal law;
(3) a list of other states that regulate the profession or occupation, the
type of regulation, copies of other states' laws and available evidence such
of the effect of regulation on the profession or occupation in terms of a
before-and-after analysis from such states;
(4) the details of any previous efforts in this state to implement
regulation of the profession or occupation; and
(5) whether the proposed requirements for regulation exceed the
national industry standards of minimal competence and what such
standards are, if such standards exist.
New Sec. 5. (a) (1) The provisions of this act shall not apply to
regulation or credentialing or any proposed regulation or credentialing of
any occupation or profession that is subject to the provisions of the Kansas
act on credentialing, K.S.A. 65-5001 et seq., and amendments thereto.
(2) For purposes of this subsection "credentialing" means the same as
defined in K.S.A. 65-5001, and amendments thereto.
(b) Nothing in this act shall be construed to change any requirement
for an individual to hold a current private certification as a condition of
licensure or renewal of licensure. This act shall not require a private
certification organization to grant or deny private certification to any
individual.
Sec. 6. K.S.A. 2023 Supp. 77-436 is hereby amended to read as
follows: 77-436. (a) There is hereby established a joint committee on
administrative rules and regulations consisting of five senators and seven
members of the house of representatives.
(1) The five senator members shall be appointed as follows:
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(A) Three by the committee on organization, calendar and rules; and
(B) two by the minority leader of the senate.
(2) The seven representative members shall be appointed as follows:
(A) Four by the speaker of the house of representatives; and
(B) three by the minority leader of the house of representatives.
(b) The committee on organization, calendar and rules shall designate
a senator member to be chairperson or vice-chairperson vice chairperson
of the joint committee as provided in this section. The speaker of the house
of representatives shall designate a representative member to be
chairperson or vice-chairperson vice chairperson of the joint committee as
provided in this section. The minority leader of the senate shall designate a
senator member to be the ranking minority member of the joint committee
as provided in this section. The minority leader of the house of
representatives shall designate a representative member to be the ranking
minority member of the joint committee as provided in this section.
(b)(c) A quorum of the joint committee on administrative rules and
regulations shall be seven. All actions of the committee may be taken by a
majority of those present when there is a quorum. In odd-numbered years
the chairperson and the ranking minority member of the joint committee
shall be the designated members of the house of representatives from the
convening of the regular session in that year until the convening of the
regular session in the next ensuing year. In even-numbered years the
chairperson and the ranking minority member of the joint committee shall
be the designated members of the senate from the convening of the regular
session of that year until the convening of the regular session of the next
ensuing year. The vice-chairperson shall exercise all of the powers of the
chairperson in the absence of the chairperson.
(c)(d) Except for rules and regulations revoked pursuant to K.S.A.
77-426(d), and amendments thereto, all proposed rules and regulations
shall be reviewed by the joint committee on administrative rules and
regulations during the public comment period required by K.S.A. 77-421,
and amendments thereto. The committee may introduce such legislation as
it deems necessary in performing its such committee's functions of
reviewing administrative rules and regulations.
(d)(e) The committee shall issue a report to the legislature following
each meeting making comments and recommendations and indicating
concerns about any proposed rule and regulation. Such report shall be
made available to each agency that had proposed rules and regulations
reviewed at such meeting during the agency's public comment period for
such proposed rules and regulations as required by K.S.A. 77-421, and
amendments thereto. If having a final report completed by the public
hearing as required by K.S.A. 77-421, and amendments thereto, is
impractical, a preliminary report shall be made available to the agency
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containing the committee's comments. The preliminary report shall be
incorporated into the final report and made available to each agency.
(e)(f) Except for rules and regulations revoked pursuant to K.S.A. 77-
426(d), and amendments thereto, all rules and regulations filed each year
in the office of secretary of state shall be subject to review by the joint
committee. The committee may introduce such legislation as it deems
necessary in performing its such committee's functions of reviewing
administrative rules and regulations.
(f)(g) The joint committee shall meet on upon the call of the
chairperson as authorized by the legislative coordinating council. All such
meetings shall be held in Topeka, unless authorized to be held in a
different place by the legislative coordinating council. Members of the
joint committee shall receive compensation, travel expenses and
subsistence expenses or allowances as provided in K.S.A. 75-3212, and
amendments thereto, when attending meetings of such committee
authorized by the legislative coordinating council.
(g)(h) The joint committee shall review bills pertaining to
occupational regulation introduced in the legislature during regular or
special sessions of the legislature, make determinations and cause reports
on such bills to be prepared as provided by sections 1 through 5, and
amendments thereto. The joint committee is authorized to act on behalf of
the legislature and enter into contracts pursuant to the provisions of
sections 1 through 5, and amendments thereto.
(i) Amounts paid under authority of this section, including amounts
paid under the authority of subsection (g) and sections 1 through 5, and
amendments thereto, shall be paid from appropriations for legislative
expense, and vouchers therefor shall be prepared by the director of
legislative administrative services and approved by the chairperson or
vice-chairperson vice chairperson of the legislative coordinating council.
Sec. 7. K.S.A. 2023 Supp. 77-436 is hereby repealed.
Sec. 8. This act shall take effect and be in force from and after its
publication in the statute book.
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