Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H4602 Compare Versions

Only one version of the bill is available at this time.

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1	1	HOUSE . . . . . . . . No. 4602
2	2	The Commonwealth of Massachusetts
3	3	________________________________________
4	4	HOUSE OF REPRESENTATIVES, May 6, 2024.
5	5	The committee on Consumer Protection and Professional Licensure, to
6	6	whom were referred the petition (accompanied by bill, Senate, No. 2451)
7	7	of Cynthia Stone Creem, Liz Miranda and Estela A. Reyes for legislation
8	8	to further regulate professional and occupational licensing and the petition
9	9	(accompanied by bill, House, No. 348) of David Henry Argosky LeBoeuf,
10	10	Steven Ultrino and others for legislation to further regulate professional
11	11	and occupational licensing, reports recommending that the accompanying
12	12	bill (House, No. 4602) ought to pass.
13	13	For the committee,
14	14	TACKEY CHAN. 1 of 7
15	15	FILED ON: 4/30/2024
16	16	HOUSE . . . . . . . . . . . . . . . No. 4602
17	17	The Commonwealth of Massachusetts
18	18	_______________
19	19	In the One Hundred and Ninety-Third General Court
20	20	(2023-2024)
21	21	_______________
22	22	An Act relative to increasing professional licensure opportunities.
23	23	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
24	24	of the same, as follows:
25	25	1 SECTION 1. Chapter 6 of the General Laws, as appearing in the 2022 Official Edition, is
26	26	2hereby amended by striking out section 172N, and inserting in place thereof the following 2
27	27	3sections:-
28	28	4 Section 172N. (a) For the purposes of this section and section 172N 1/2, “licensing
29	29	5authority” shall include any agency, examining board, credentialing board or other office or
30	30	6commission, including boards supervised by the commissioner of occupational licensure, with
31	31	7the authority to impose occupational fees or licensing requirements on a profession.
32	32	8 (b) A licensing authority shall provide individualized consideration of an applicant’s
33	33	9circumstances as described in subsections (d) and (e) to deny, diminish, suspend, revoke,
34	34	10withhold or otherwise limit a professional or occupational license.
35	35	11 (c) Notwithstanding any general or special law to the contrary, a licensing authority shall
36	36	12not consider, nor require an applicant to disclose: 2 of 7
37	37	13 (1) a deferred adjudication, including but not limited to a continuance without a finding,
38	38	14participation in a diversion program or an arrest not followed by a conviction;
39	39	15 (2) a conviction for which no sentence of incarceration may be imposed;
40	40	16 (3) a conviction that has been sealed, annulled, dismissed, vacated, set aside, expunged or
41	41	17pardoned;
42	42	18 (4) a juvenile adjudication;
43	43	19 (5) a non-violent misdemeanor;
44	44	20 (6) a conviction that occurred more than 3 years prior to the date of the licensing
45	45	21authority’s consideration or where the applicant’s incarceration ended more than 3 years before
46	46	22the date of the licensing authority’s consideration, except for a conviction of:
47	47	23 (i) a crime punishable by imprisonment for a term exceeding 2 and a half years, or any
48	48	24act of juvenile delinquency involving the use or possession of a deadly weapon that would be
49	49	25punishable by imprisonment for such term if committed by an adult, that (A) has as an element
50	50	26involving the use, attempted use or threatened use of physical force or a deadly weapon against
51	51	27the person of another; (B) is burglary, extortion, arson or kidnapping; (C) involves the use of
52	52	28explosives; or (D) resulted in death, bodily injury, or serious bodily injury with malice
53	53	29aforethought;
54	54	30 (ii) a felony related to a sex offense, a sex offense involving a child or a sexually violent
55	55	31offense as defined in section 178C; or
56	56	32 (iii) a felony related to criminal fraud pursuant to section 1 of chapter 267 or
57	57	33embezzlement pursuant to chapter 266. 3 of 7
58	58	34 (d) A licensing authority may deny, diminish, suspend, revoke, withhold or otherwise
59	59	35limit a professional or occupational license only if the licensing authority determines, by clear
60	60	36and convincing evidence, that:
61	61	37 (1) First, an applicant’s non-excluded criminal record directly relates to the duties and
62	62	38responsibilities of the profession or occupation.
63	63	39 (2) Second, if an applicant’s non-excluded criminal record is directly related to the duties
64	64	40and responsibilities of the profession or occupation, the licensing authority must then determine
65	65	41if the interest of the licensing authority in protecting the public, an individual or property from
66	66	42harm outweighs the applicant’s right to hold the professional or occupational license.
67	67	43 (3) Third, if the licensing authority determines that the interest in protecting the public, an
68	68	44individual or property from harm outweighs the applicant’s right to hold the professional or
69	69	45occupational license, then the licensing authority shall determine if the applicant has failed to be
70	70	46rehabilitated.
71	71	47 (e) If the applicant’s criminal record is directly related to the performance, duties,
72	72	48responsibilities, practices or functions of the profession, the licensing authority shall consider the
73	73	49following factors, in a light most favorable to the applicant, to demonstrate evidence of
74	74	50rehabilitation:
75	75	51 (1) the age of the applicant at the time of the offense;
76	76	52 (2) the length of time since the offense;
77	77	53 (3) the completion of a criminal sentence, not including financial obligations;
78	78	54 (4) a certificate of rehabilitation, restoration of rights or good conduct; 4 of 7
79	79	55 (5) completion of, or active participation in, rehabilitative drug or alcohol treatment or
80	80	56similar programs;
81	81	57 (6) testimonials and recommendations, including, but not limited to, progress reports
82	82	58from the applicant’s probation or parole officer;
83	83	59 (7) education and training;
84	84	60 (8) employment history;
85	85	61 (9) the applicant’s responsibilities, including civic and community engagement or family
86	86	62contributions;
87	87	63 (10) whether the applicant will be bonded in the occupation; and
88	88	64 (11) other evidence of rehabilitation or information that the applicant submitted to the
89	89	65licensing authority, including mitigating circumstances.
90	90	66 (f)(1) The licensing authority shall issue and send a decision to the applicant on the
91	91	67petition not later than 60 days after the licensing authority receives the petition or, if a hearing is
92	92	68held, not later than 90 days after the licensing authority receives the petition. The decision shall
93	93	69be made in writing and include a copy of any criminal record report that the licensing authority
94	94	70reviewed. If the licensing authority determines that an occupational or professional license
95	95	71should not be granted because of the criminal conviction of an applicant, the decision shall set
96	96	72forth the reasons for the determination which shall address each of the factors in subsection (e)
97	97	73that the licensing authority deemed relevant to the determination.
98	98	74 (2) If the licensing authority decides that the professional or occupational license should
99	99	75not be granted, the licensing authority may provide an alternative advisory opinion, in which the 5 of 7
100	100	76licensing authority may advise the applicant of actions the applicant may take to remedy the
101	101	77disqualification.
102	102	78 (3) If advised by the licensing authority of remedial actions, the applicant may submit a
103	103	79revised petition reflecting completion of the remedial actions before a deadline set by the
104	104	80licensing authority in the alternative advisory decision.
105	105	81 (g) The applicant may appeal the licensing authority’s decision as provided in section
106	106	82176.
107	107	83 (h) An ambiguity in a professional or occupational regulation relating to a licensing
108	108	84authority’s use of an applicant’s criminal record shall be resolved in the favor of the applicant.
109	109	85 (i) Nothing in this section shall be construed to change a licensing authority’s ability to
110	110	86enforce other conditions of professional and occupational licenses, including the personal
111	111	87qualifications required to obtain recognition or compliance with other regulations.
112	112	88 Section 172N ½. (a) At least once every three years, a licensing authority shall review
113	113	89and issue a report on their license application review and approval processes to ensure that those
114	114	90decisions promote economic opportunities while fostering public safety in a manner consistent
115	115	91with the stated objectives of applicable statutes.
116	116	92 In so reviewing, each licensing authority shall report to the division of occupational
117	117	93licensure, or the department under which the licensing authority sits:
118	118	94 (1) the number of times that each licensing authority acted to deny, diminish, suspend,
119	119	95revoke, withhold or otherwise limit state recognition for a license because of an individual’s
120	120	96criminal record; 6 of 7
121	121	97 (2) the criminal convictions that were the subject of each licensing authority action;
122	122	98 (3) the number of applicants petitioning each licensing authority;
123	123	99 (4) the criminal convictions that were the subject of each approval or denial of a petition;
124	124	100and
125	125	101 (5) other relevant data as determined by the division of occupational licensure or the
126	126	102department under which the licensing authority sits.
127	127	103 (b) The division of occupational licensure or department governing the licensing
128	128	104authority shall compile and publish a report on a searchable public website summarizing data
129	129	105reported.
130	130	106 SECTION 2. There shall be a special commission on background record requirements
131	131	107and good moral character for occupational licensure consisting of 11 members: the commissioner
132	132	108of occupational licensure or a designee, who shall serve as chair; the commissioner of public
133	133	109health, or a designee; the executive director of the Massachusetts office of victim assistance, or a
134	134	110designee; and 8 members to be appointed by the governor, 1 of whom shall be a representative of
135	135	111the Massachusetts AFL-CIO Council, Inc., 1 of whom shall be a representative of the
136	136	112Massachusetts Building Trades Council, 1 of whom shall be a representative of a local chamber
137	137	113of commerce, 1 of whom shall be a representative of the NAACP New England Area
138	138	114Conference, 1 of whom shall be a representative of a registered Massachusetts affiliate of the
139	139	115National Urban League, Inc., 1 of whom shall be a representative of the YWCA’s of
140	140	116Massachusetts, Inc., and 1 of whom shall be a representative of the Greater Boston Legal
141	141	117Services, Inc.. 7 of 7
142	142	118 The commission shall: (a) advise the division of occupational licensure and licensing
143	143	119authorities, as defined in section 172N of chapter 6 of the General Laws, to provide
144	144	120recommendations for background record requirements for each professional and occupational
145	145	121license granted within the commonwealth; and (b) report on the use and any necessity of, or the
146	146	122elimination or modification of vague terms contained in the General Laws, including but not
147	147	123limited to chapters 112 and 151B, relative to licensing or employment decision making,
148	148	124including: (i) “good moral character”; (ii) “moral turpitude”; or (iii) “character and fitness”.
149	149	125 Background record requirements developed by the commission shall not be designed to
150	150	126eliminate certain licenses, nor to develop or recommend that the division of occupational
151	151	127licensure or other licensing authority create new licenses or additional professional requirements
152	152	128for licensure. The commission shall report its findings, including any recommended further
153	153	129legislative action, to the offices of the House and Senate Clerks and to the Joint Committee on
154	154	130Consumer Protection and Professional Licensure not later than 6 months.