Licensure board powers.

2016
State of Wyoming
16LSO-0149
Introduced
1.2

SENATE FILE

NO.

SF0055

Licensure board powers.

Sponsored by:
Senator(s) Scott

A BILL

for

AN ACT relating to professions and occupations; providing for active oversight of certain boards and commissions as specified; providing additional duties for the state health officer and the office of the attorney general; providing for additional study of issues resulting from the United States Supreme Court decision in North Carolina Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015) and related court decisions; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section
1
.

W.S. 33
‑
1
‑
304 is created to read:

33
‑
1
‑
304
.

Restrictions
on regulation.

(a)

A board or commission is subject to this section if a
controlling number of the decision making members of the board are active members of a profession or occupation regulated, including any
related profession or related auxiliary or assist
ive profession
,
regulated by the board or commission
.
If
subject to this section
,
a
board shall:

(i)

Not take
any
action to prohibit any other person from performing, for compensation or otherwise, any actions within the scope of practice of the profession

except as explicitly authorized to do so by statute. If the action is not explicitly authorized
by statute the
board
shall contact the office of the
a
ttorney
g
eneral before taking
the
action and shall not act on the matter without
a
written affirmative
decision o
f that office
confirming the authority of the board to act
;

(ii)

Deny licenses, revoke or limit licenses, or otherwise discipline members of the professions it
regulates as provided by statute except that if the board is relying on a general provision, including but not limited to protection of the public health or safety or unprofessional conduct or good moral character
,
that is not further specifically defined in statute, the board may take formal action only after first obtaining a written opinion from its supervising official that the
professional member's alleged
actions, if proved, are a threat to the public health or safety, or needed for the economic protection of the consumer.

(b)

The supervising official
s
for boards
shall be
:

(i)

For issues involving public health or safety, the state health officer;

(ii)

For issues related to consumer economic protection, and any other issue not covered in paragraph (i) of this subsection, the assistant attorney general
within the office of the attorney general
overseeing
consumer protection
, or
other
assistant attorney general as designated by the attorney general.

(c)

The opinion of the supervising official is not required for actions authorized pursuant to W.S. 33
‑
1
‑
303(
a)(iii).

(d)

No charge or required reimbursement to the general fund shall be made to
any
account supporting
a
board for seeking
or
obtaining an opinion from a supervising official pursuant to this section or for consulting, on issues relating to this section with the staff of the attorney general
'
s office assigned to advise the board.

(e)

The purpose of this section is to meet the active supervision requirement necessary for a board to invoke state anti
‑
trust immunity under the decision in
North Carolina Board of Dental Examiners v. Federal Trade Commission
, 135 S. Ct. 1101 (2015)
and related
s
upreme
c
ourt decisions
. The provisions of this
section shall be construed in a
manner to meet that purpose, including, to the extent necessary, construing this section to supersede
any conflicting statute governing the operation of a specific board subject to this section.

(f)

As used in this section
:

(i)

"
Active member
"
means a board member who is:

(A)

Licensed by the board; or

(B)

Provides any service that is subject to the regulatory authority of the board.

(ii)

"
B
oard
"
means a board or commission regulating an occupation or
profession
under this title, or created by W.S. 11
‑
25
‑
101, 21
‑
2
‑
801, 23
‑
2
‑
408

or

26
‑
10
‑
101.

Section 2
.

W.S.
9
‑
1
‑
603(
a) by creating a new paragraph (ix),
33
‑
1
‑
301(b)
,
33
‑
1
‑
303(a)(iii)
and 35
‑
1
‑
240(a) by creating a new paragraph (xxiii)
are amended to read:

9
‑
1
‑
603
.

Duties generally; retention of qualified practicing attorneys; matters in which county or state is party or has interest; assistance to county and district attorneys in felony trials.

(a)

The attorney general shall:

(ix)

Designate an attorney or attorneys in his office to act as a supervising official and to carry out the duties of the same, all in accordance with W.S. 33
‑
1
‑
304.

33
‑
1
‑
301
.

Purpose and scope.

(b)

The provisions of this article supplement the statutes related to the specific board and profession regulated. If the statutes governing a board or regulated profession are silent or unclear the provisions of this article shall be applied.
Except as provided in
W.S.
33
‑
1
‑
304, t
he statutes governing the operation or creation of a specific board or commission are effective and
controlling to the extent they conflict with a provision of this article.

33
‑
1
‑
303
.

Powers of licensure boards.

(a)

Except as otherwise specifically provided by statute, a board authorized to establish examination, inspection, permit or license fees for any profession or occupation regulated under this title or under W.S. 11
‑
25
‑
105, 21
‑
2
‑
802 or 23
‑
2
‑
414 may:

(iii)

Seek injunctive relief to prevent individuals from practicing without a license
while holding
themselves
out to be a member of the profession
.

35
‑
1
‑
240
.

Powers and duties.

(a)

The department of health, through the state health officer, or under his direction and supervision, through the other employees of the department, shall have and exercise the following powers and duties:

(xxiii)

Those assigned as a supervising official under W.S. 33
‑
1
‑
304.

Section 3
.

The management council shall assign a joint interim legislative committee the task of determining what further changes, if any,
should
be made to
modify
Wyoming law
s governing the licensing of professions and occupations in light of the United States Supreme Court decision in
North Carolina Board of Dental Examiners v. Federal Trade Commission
, 135 S. Ct. 1101 (2015)
and other
s
upreme
c
ourt decisions

relevant to this act.
The council shall have flexibility concerning when it assigns this task and when the committee is requested to complete its task.
T
he
committee
shall
pay particular attention to
whether t
h
e relevant court
decision
s
change which professions and which individuals can prescribe prescription drugs
or modify which drugs may be prescribed
by certain professions or individuals
.
To the extent the committee determines
changes
to laws governing the authority of a profession or individual to
prescribe drugs
or the extent of that authority,
should be made
, the committee shall recommend those changes in a
bill
or bill
s
separate from any
committee sponsored bill making other changes to Wyoming law pursuant to this section
.

Section 4
.

This act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution.

(END)

1
SF0055