S 1338 Session 111 (1995-1996)
S 1338 General Bill, By Bryan, Giese, L.E. Richter and Thomas
Similar(H 4877)
A Bill to amend Chapter 1, Title 40, Code of Laws of South Carolina, 1976,
relating to professions and occupations, by adding Article 3 so as to
authorize the Department of Labor, Licensing, and Regulation to provide
administrative regulation of professions and occupations and to set forth the
framework for such regulation including, but not limited to, advisory panels
and disciplinary panels and their powers and duties.
04/04/96 Senate Introduced and read first time SJ-15
04/04/96 Senate Referred to Committee on Labor, Commerce and
Industry SJ-15
A BILL
TO AMEND CHAPTER 1, TITLE 40, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO PROFESSIONS AND
OCCUPATIONS, BY ADDING ARTICLE 3 SO AS TO
AUTHORIZE THE DEPARTMENT OF LABOR, LICENSING
AND REGULATION TO PROVIDE ADMINISTRATIVE
REGULATION OF PROFESSIONS AND OCCUPATIONS AND
TO SET FORTH THE FRAMEWORK FOR SUCH
REGULATION INCLUDING, BUT NOT LIMITED TO,
ADVISORY PANELS AND DISCIPLINARY PANELS AND
THEIR POWERS AND DUTIES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Chapter 1, Title 40 of the 1976 Code is amended
by adding:
"Article 3
Administrative Regulation of Professions and
Occupations
Section 40-1-410. (A) A profession or occupation not currently
regulated but which desires state regulation, must be evaluated and
established in accordance with this section and other applicable
provisions of this article.
(B) The General Assembly, in concert with members of the
profession or occupation desiring regulation, must evaluate the need
for regulation. The General Assembly must make the final
determination of the need for state regulation and the extent to
which regulation is necessary. Upon a determination that regulation
is appropriate, regulatory status for the profession or occupation
must be established by the General Assembly.
(C) Legislation to establish regulatory requirements including
practice qualifications, necessary prohibitions, and disciplinary
standards must be drafted following the format established by the
General Assembly for boards and commissions administered or
regulated by the department, or both.
Section 40-1-420. As used in this title unless the context
requires otherwise:
(1) `Administrative Law Judge Division' means the
Administrative Law Judge Division created by Section 1-23-500.
(2) `Administrator' means the individual to whom the director
has delegated authority to administer the programs of a specific
professional or occupational group for which the department has
regulatory authority.
(3) `Authorization to practice' or `practice authorization' means
the approval to practice the specified profession, engage in the
specified occupation, or use a title protected under this article or the
licensing act of the respective profession or occupation, which has
been granted by the director. This authorization is provided in the
form of a license, permit, certification, or registration.
(4) `Department' means the Department of Labor, Licensing and
Regulation.
(5) `Director' means the Director of the Department of Labor,
Licensing and Regulation, the director's official designee, or the
program administrator.
(6) `Licensee' means a person granted an authorization to
practice pursuant to this chapter. As used in this article, `licensee'
refers to a person holding a license, permit, certification, or
registration granted pursuant to this article.
(7) `Licensing act' means the statutes or regulations, or both, of
each regulated profession or occupation which include, but are not
limited to:
(a) governance;
(b) the qualifications and requirements for authorization to
practice;
(c) prohibitions; and
(d) disciplinary procedures.
(8) `Panel' means the body of individuals appointed to the
advisory panel or the disciplinary panel pursuant to Section
40-1-440 which is charged with assisting the department in matters
relating to regulation of a profession or occupation.
(9) `Person' means an individual, partnership, or corporation.
(10) `Profession or occupation' means a profession or occupation
regulated or administered, or both, by the department pursuant to
this article.
Section 40-1-430. (A) It is unlawful for a person to engage in
a profession or occupation regulated by the Department of Labor,
Licensing and Regulation without holding a valid authorization to
practice as required by statute or regulation.
(B) An authorization to practice issued pursuant to this title is
valid for up to two years and is renewable on renewal dates as
established by the Director of Labor, Licensing and Regulation with
the advice of the respective advisory panel.
Section 40-1-440. (A) The department, in consultation with the
Office of the Governor, members of professional and industry
associations, and the general public shall encourage public and
consumer membership and participation on the advisory panel and
the disciplinary panel, as provided for in this section. Public and
consumer membership may not include current or former, active or
inactive members of the profession or occupation or persons who
have a financial interest, direct or indirect, in the profession or
occupation being regulated. Public and consumer members have the
same rights and responsibilities as professionally or occupationally
related panel members and shall participate fully in all discussions,
deliberations, decisions, and votes of the panel on which they serve
unless otherwise prohibited by statute or regulation.
(B) An advisory panel and a disciplinary panel for each
regulated profession or occupation, must be created under the
Department of Labor, Licensing and Regulation, Division of
Professional and Occupational Licensing. However, an advisory
panel or a disciplinary panel may serve one or more closely related
professions or occupations. Members must be appointed by the
Governor from nominations submitted from an individual, group, or
association. A vacancy must be filled in the manner of the original
appointment for the remainder of the unexpired term. No member
may serve more than two full terms. The Governor may remove a
member of a panel in accordance with Section 1-3-240.
(C) Members of the advisory panels and the disciplinary panels
must be compensated for their services at the usual rate for mileage,
subsistence, and per diem as provided by law for members of state
boards, committees, and commissions and may be reimbursed for
actual and necessary expenses incurred in connection with and as a
result of their work as members of the panel. The director, within
the limits set by the Comptroller General, shall establish
reimbursement standards for travel and other expenses incurred by a
panel member in the performance of official duties. Compensation
and reimbursements paid to panel members under this subsection
must be paid as an expense in the administration of this article and
the profession or occupation's licensing act and must be paid from
the fees received pursuant to the provisions of this article or in a
manner prescribed by the Department of Labor, Licensing and
Regulation.
(D) Each advisory panel shall consist of five members. Three
members of the advisory panel must be members of the profession
or occupation to be regulated and two members must be appointed
from the general public. Members serve a term of four years and
until their successors are appointed and qualify.
(E) Each disciplinary panel shall consist of five members.
Three members of the disciplinary panel must be members of the
profession or occupation to be regulated and two members must be
appointed from the general public. Members serve a term of three
years and until their successors are appointed and qualify.
(F) Each panel annually shall elect a chairman to preside and
represent the panel as necessary. Each panel shall meet upon the
call of the director. A majority of the members of each panel
constitutes a quorum; however, if there is a vacancy, a majority of
the members serving constitutes a quorum.
(G) Panel members are required to attend meetings or to provide
proper notice and justification of inability to do so. Unexcused
absences from meetings may result in removal as provided for in
Section 1-3-240.
Section 40-1-450. (A) The advisory panel shall advise and
assist the department on matters of policy concerning the profession
or occupation including, but not limited to:
(1) setting qualifications and requirements for each level or
category of licensure, including establishing criteria for issuing,
renewing, and reactivating the authorizations to practice of qualified
applicants, including the issuance of active and permanent,
temporary, limited, and inactive licenses, or other categories as may
be created;
(2) setting requirements, standards, and procedures for
licensure examination;
(3) determining the eligibility of applicants for examination
and licensure;
(4) examining applicants for licensure including, but not
limited to:
(a) prescribing the subjects, character, and manner of
licensing examinations;
(b) preparing, administering, and grading the examination
or assisting in the selection of a contractor for the preparation,
administration, or grading of the examination;
(5) adopting a code of professional ethics appropriate to the
profession or occupation which it licenses or otherwise regulates;
(6) setting requirements, standards, and procedures for
continuing education or other requirements for renewal or
reactivation;
(7) evaluating and approving continuing education course
hours and programs;
(8) resolving consumer complaints, where appropriate and
possible; and
(9) proposing regulatory or statutory changes to improve
public protection.
(B) The disciplinary panel shall advise the department
concerning matters relating to violations of this article and the
licensing act of the respective profession or occupation. Where
possible and appropriate, the panel shall mediate consumer
complaints. The panel shall conduct hearings pursuant to Section
40-1-480 and, on the basis of the findings, recommend disciplinary
action in accordance with Section 40-1-480(H) to the director for
decision and order.
(C) Final decisions in all matters must be made by the director.
Section 40-1-460. (A) The department is responsible for the
administrative, contractual, fiscal, investigative, inspectional,
disciplinary, and licensure issuance and renewal activities associated
with the professions and occupations regulated pursuant to this
article.
The department, with the advice of the respective advisory panel,
shall promulgate regulations necessary for the administration of this
article and the licensing acts of the respective professions and
occupations the department regulates.
The director shall employ, supervise, and compensate personnel
necessary to effectuate the provisions of this article. Compensation
and necessary expenses incurred in the performance of duties by
department personnel must be paid as an expense of the profession
or occupation receiving the service.
The director shall maintain a separate account for each regulated
profession or occupation showing the monies collected on its behalf
and the expenses allotted to each and shall adjust fees in accordance
with subsection (D).
The director shall perform any additional functions necessary to
the administration of this article.
(B) The department shall keep a record of the proceedings of
each panel and shall maintain a registry of all applications for
licensure, permitting, certification, and registration for professions
and occupations regulated under this article. The registry shall
show the name, age, and last known address of each applicant, the
place of business of the applicant, the education, experience, and
other qualifications of the applicant, type of examination required,
whether or not an authorization to practice was granted, the date of
the action of the department, and other information considered
necessary by the director.
Except as otherwise specified by statute, the record of each
panel's proceedings and the profession or occupation's registry of
applicants must be open to public inspection and a copy of the
registry must be provided upon request and payment of a fee.
Records of each panel and the registry are prima facie evidence
of required proceedings and a copy certified by the administrator or
the director under seal is admissible as evidence with the same
force and effect as the original.
(C) The department may prepare and publish a roster for each
profession or occupation containing the names and places of
business of persons licensed under this article or the respective
licensing act. A copy of the roster must be provided upon request
and upon payment of a fee which may not exceed the cost of
printing and distribution of the roster.
(D) The fees established and collected for each profession or
occupation regulated under this article must generate sufficient
revenue to cover expenses associated with regulating the profession
or occupation. Each advisory panel, on at least a biennial basis,
shall provide the director with a statement of suggested program
changes and other information as may be used in the determination
of fees for the next biennial period.
Fees may be adjusted biennially to ensure that they are sufficient,
but not excessive, to cover expenses, including the total of the
direct and indirect costs to the State for the operation of each
profession or occupation. Fees must be deposited in accounts
established for each profession or occupation.
The following steps must be used in the development and
analysis of fee structures:
(1) Each month, the department's administrative section shall
prepare statements reflecting monthly revenue collection activity
and related program expenses for each profession or occupation
program. The financial standing of a profession or occupation
program is reviewed each biennium or more frequently if indicators
evidence a significant financial fluctuation of more than ten percent
variance between a program's revenue and related expenses.
(2) The department's administrative section shall review
historical volume information and adjust trends to reflect changes in
the industry, changes in the program, and general economic
indicators, to project program renewals and new applicants for the
upcoming two to three years. Based on these population
projections, the administrative section shall forecast program
revenues based on the current fee structure. With input from the
staff, the administrative section shall analyze related program direct
costs for the upcoming two to three years based on historical trends,
changes in program requirements, changes to expenditure centers,
and changes in staffing requirements. To these direct costs, the
administrative section shall add the program's proportionate share
of other related costs of the program including, but not limited to,
administration of exams, agency administration, and information
systems, to arrive at the total program cost.
(3) The department's administrative section shall determine
the projected financial position of the program and propose changes
where necessary and compare the total projected revenue at the
current fees to the total projected costs of the program over the next
two to three years. If the current fees and the projected program
population levels do not support the projected program's expenses,
the administrative section shall develop alternate fee structures
which would ensure the program's continuing financial stability as
required by this subsection.
(4) The department's administrative section shall present
findings to the director and staff for discussion, revision, evaluation,
and adoption. While developing fee analyses, the administrative
section shall maintain communications with staff and agency
management to ensure all necessary factors are evaluated and cost
savings, efficiencies, and alternative cost reduction scenarios are
pursued. The administrative section shall propose alternatives to the
director for consideration when preparing to adopt proposed fee
schedules to achieve a structure sufficient to support the program.
All fees are nonrefundable.
(E) The department shall prepare an annual report including
information relative to the professions and occupations regulated
under this article for submission to the Governor.
Section 40-1-470. (A) At the time a profession or occupation is
designated by law to be regulated under this article, criteria for the
levels and categories for the authorization to practice the profession
or occupation also must be established in law.
(B) A person may not be refused an authorization to practice,
pursue, or engage in a regulated profession or occupation solely
because of a prior criminal conviction unless the criminal
conviction directly relates to the profession or occupation for which
the authorization to practice is sought. However, the director has
the authority to refuse an authorization to practice if, based upon
information available, including the applicant's record of prior
convictions, the director finds that the applicant is unfit or unsuited
to engage in the profession or occupation.
(C) For each profession or occupation regulated under this
article, the department shall issue an authorization to practice to an
applicant who qualifies based upon the criteria established in the
licensing act of the profession or occupation. With the advice of
the advisory panel for the profession or occupation, the department
shall develop the practice authorization process for the profession or
occupation to include:
(1) application requirements and procedures, including
standards and requirements for licensure by endorsement and
reciprocity;
(2) forms and verification and reporting formats; and
(3) fees.
(D) An authorization to practice must be issued for a two-year
period and must be renewed biennially. During a transition period,
or at any time after the transition period, when the director
determines that the volume of work for an interval is unduly
burdensome or costly, authorizations to practice or renewals, or
both, may be issued for periods of not less than six or more than
eighteen months. The fee imposed for an authorization to practice
under this transition or alternative method for a period of other than
twenty-four months must be proportionate to the biennial fee.
(E) The department shall deny an authorization to practice to an
applicant who has committed an act that would be grounds for
disciplinary action pursuant to this article or the licensing act of the
profession or occupation, who has been the subject of disciplinary
action by another state or jurisdiction, who has failed to comply
with a final order, or who has failed to demonstrate the basic
qualifications or standards for practice authorization contained in
the licensing act of the profession or occupation. The applicant
shall demonstrate to the satisfaction of the department that the
applicant meets all the requirements for an authorization to practice.
(F) The department shall suspend the authorization to practice
issued pursuant to this article or the licensing act of the profession
or occupation of a person who submits a check, money draft, or
similar instrument for payment of a fee, which is not honored by
the financial institution named. The suspension is effective ten days
following delivery by certified mail of written notice of the
dishonor and the impending suspension to the person's address.
Upon notification of suspension, the person may reinstate the
authorization upon payment of the fee and penalties provided under
statute or regulation. The department is not required to comply
with the Administrative Procedures Act in suspending an
authorization to practice under this subsection.
(G) The provisions of Part II, Subarticle 3, Article 9, Chapter 7,
Title 20 apply to a person authorized to practice who is under an
order to pay child support.
Section 40-1-480. (A) The department has jurisdiction over the
actions committed or omitted by current and former licensees
during the entire authorization period. The department has
jurisdiction to investigate and act on any matter which arises during
the authorization period.
(B) If the director or the disciplinary panel has reason to believe
that a person has violated a provision of this article or a regulation
promulgated under this article or the licensing act of a profession or
occupation or a regulation promulgated under the licensing act or
that a licensee has become unfit to practice the profession or
occupation or if a person files a written complaint with the
department charging a person with a violation, the director may
initiate an investigation.
(C) In conducting the investigation, the director, or the
disciplinary panel with authorization granted by the director, may
subpoena witnesses, compel their attendance, take evidence, and
require the production of any matter which is relevant to the
investigation including, but not limited to, the existence,
description, nature, custody, condition, and location of books,
documents, or other tangible items and the identity and location of
persons having knowledge of relevant facts or any other matter
reasonably calculated to lead to the discovery of material evidence.
Upon failure to obey a subpoena or to answer questions propounded
by the director or the disciplinary panel, the director may apply to
an administrative law judge for an order requiring the person to
comply.
(D) The results of an investigation must be presented to the
disciplinary panel for the profession or occupation. If from these
results it appears that a violation has occurred or that a licensee has
become unfit to practice the profession or occupation, the panel
shall recommend disciplinary action based on the provisions of
subsection (H) and the licensing act of the profession or occupation.
The director, in accordance with the Administrative Procedures Act,
may take disciplinary action appropriate under the provisions of
subsection (H).
(E) For the purpose of a proceeding under this article, the
director or the disciplinary panel shall administer oaths and issue
subpoenas for the attendance and testimony of witnesses and the
production and examination of books, papers, and records on behalf
of the department or, upon request, on behalf of any party to the
case. Upon failure to obey a subpoena or to answer questions
propounded by the panel or its hearing officer, the director may
apply to an administrative law judge for an order requiring the
person to comply with the subpoena.
(F) When the disciplinary panel or the director has reason to
believe that a person is violating or intends to violate a provision of
this article or a regulation promulgated under this article or the
licensing act of the profession or occupation or a regulation
promulgated under the licensing act, in addition to other remedies,
the director may order the person immediately to cease and desist
from engaging in the conduct. If the person is practicing a
profession or occupation without being authorized to practice under
this article or the licensing act of the profession or occupation, is
violating a department order, a provision of this article or the
licensing act of the respective profession or occupation, or a
regulation promulgated under this article or the licensing act, the
director may apply to an administrative law judge for a temporary
restraining order. No panel member or the director or an employee
of the department may be held liable for damages resulting from a
wrongful temporary restraining order.
The director may seek from an administrative law judge other
equitable relief to enjoin the violation or intended violation of this
article or a regulation promulgated under this article or the licensing
act or the profession or occupation or a regulation promulgated
under the licensing act.
(G) The director may take disciplinary action based on the
following grounds and any additional grounds provided for in the
licensing act of the respective profession or occupation against an
individual who has:
(1) used a false, fraudulent, or forged statement or document
or committed a fraudulent, deceitful, or dishonest act or omitted a
material fact in obtaining an authorization to practice under this
article or the licensing act of the profession or occupation;
(2) had an authorization to practice a profession or
occupation in another state or jurisdiction canceled, revoked, or
suspended or who has otherwise been disciplined;
(3) intentionally or knowingly, directly or indirectly, violated
or aided or abetted in the violation or conspiracy to violate this
article or a regulation promulgated under this article or the
licensing act of the profession or occupation or a regulation
promulgated under the licensing act;
(4) intentionally used a fraudulent statement in a document
connected to the practice of the individual's profession or
occupation;
(5) obtained fees or assisted in obtaining fees under
fraudulent circumstances;
(6) committed a dishonorable, unethical, or unprofessional act
that is likely to deceive, defraud, or harm the public;
(7) been shown to lack the professional or ethical competence
to practice the profession or occupation;
(8) been convicted of or pled guilty to or nolo contendere to
a felony or a crime involving drugs or moral turpitude;
(9) practiced the profession or occupation while under the
influence of alcohol or drugs or used alcohol or drugs to a degree
so as to render the individual unfit to practice the profession or
occupation;
(10) sustained a physical or mental disability which renders
further practice by the individual dangerous to the public;
(11) violated a provision of this article or a regulation
promulgated under this article or under the licensing act of the
profession or occupation or a regulation promulgated under the
licensing act;
(12) violated the code of professional ethics adopted by the
department with the advice of the advisory panel of the profession
or occupation.
Each incident constitutes a separate violation.
(H) Upon a determination that one or more of the grounds for
discipline exists, the director may:
(1) issue a public reprimand;
(2) impose a fine not to exceed five hundred dollars unless
otherwise specified by the licensing act of the profession or
occupation or a regulation promulgated under the licensing act;
(3) place the individual on probation, restrict the
authorization to practice, or suspend the authorization to practice for
a definite or indefinite time and prescribe conditions to be met
during probation, restriction, or suspension including, but not
limited to, satisfactory completion of additional education or
satisfactory completion of a supervisory period or of continuing
education programs as the director may specify;
(4) permanently revoke the authorization to practice.
(I) A final order disciplining an individual under this section is
public information.
(J) Upon a determination that discipline is not appropriate, the
director may issue a nondisciplinary letter of caution.
(K) A person aggrieved by an action of the director may appeal
the decision to the Administrative Law Judge Division in
accordance with the Administrative Procedures Act. Service of a
petition requesting a review does not stay the director's decision
pending completion of the appellate process.
Section 40-1-490. An individual who is under investigation for
any of the grounds provided for in Section 40-1-480(G) or the
licensing act of a profession or occupation for which disciplinary
action may be taken may voluntarily surrender the authorization to
practice to the director. The voluntary surrender invalidates the
authorization to practice at the time of its relinquishment, and no
person whose authorization to practice is surrendered voluntarily
may practice the profession or occupation unless the director
reinstates the authorization to practice. A person practicing a
profession or occupation regulated under this article during the
period of voluntary surrender is considered an illegal practitioner
and is subject to the penalties provided by this article. The
surrender of an authorization to practice may not be considered an
admission of guilt in a proceeding under this article or the licensing
act of the profession or occupation and does not preclude the
director from taking disciplinary action against the licensee as
provided for in this article or the licensing act of the profession or
occupation including, but not limited to, imposing conditions that
must be met before the authorization to practice may be reinstated.
Section 40-1-500. (A) In an order issued in resolution of a
disciplinary proceeding before a disciplinary panel, a licensee found
in violation of the licensing act may be directed to pay a sum not to
exceed the reasonable costs of the investigation and prosecution of
the case in addition to other sanctions.
(B) A certified copy of the actual costs, or a good faith estimate
of costs where actual costs are not available, signed by the director
is prima facie evidence of reasonable costs.
(C) Failure to make timely payment in accordance with the
order shall result in the collection of costs in accordance with
Section 40-1-510.
(D) The department may not issue, renew, or reinstate an
authorization to practice to a former licensee who has failed to pay
all of the costs ordered under this section.
(E) The director may conditionally renew or reinstate, for a
maximum of one year, the authorization to practice of a person who
demonstrates financial hardship and who enters into a formal
agreement to reimburse the department within that one-year period
for the unpaid costs.
(F) This section does not apply to a profession or occupation
regulated under this article if a specific provision in the licensing
act of the profession or occupation provides for recovery of costs in
an administrative disciplinary proceeding.
Section 40-1-510. (A) Costs and fines imposed pursuant to this
article and the licensing acts of the professions and occupations
regulated under this article are due and payable immediately upon
imposition or at the time indicated by final order of the director.
Unless the costs and fines are paid within sixty days after the order
becomes final, the order becomes a judgment and may be filed and
executed upon in the same manner as a judgment in the court of
common pleas, and the director may collect costs and attorney fees
incurred in executing the judgment. Interest at the legal rate
accrues on the amount due from the date imposed until the date
paid.
(B) Costs and fines collected under this section must be remitted
by the department to the State Treasurer and deposited in a special
account established for the department to defray the administrative
costs associated with investigations and hearings under this article.
Excess funds in the account may be used for other purposes
necessary to the operation of the advisory and disciplinary panels or
for education or other purposes the department considers
appropriate to the provision of quality services and to increasing the
efficiency and effectiveness of its operation.
Section 40-1-520. (A) A communication, whether oral or
written, made by or on behalf of a person, to the director, or to the
director's designee, to investigate or hear matters relating to
discipline of a licensee, whether by way of complaint or testimony,
is privileged, and no action or proceeding, civil or criminal, may be
brought against the person by or on whose behalf the
communication is made, except upon proof that the communication
was made with malice.
(B) Nothing in this article may be construed as prohibiting the
respondent or the respondent's legal counsel from exercising the
respondent's constitutional right of due process under the law or as
prohibiting the respondent from normal access to the charges and
evidence filed against the respondent as part of due process under
the law.
Section 40-1-530. (A) A person who practices or offers to
practice a profession or occupation regulated under this article in
this State in violation of this article or who knowingly submits false
information for the purpose of obtaining an authorization to practice
is guilty of a misdemeanor and, upon conviction, must be fined not
more than fifty thousand dollars or imprisoned not more than one
year.
(B) The department, in addition to the institution of a criminal
proceeding, may institute a civil action through the Administrative
Law Judge Division, in the name of the State, for injunctive relief
against a person violating this article or a regulation promulgated
under this article or the licensing act of the profession or occupation
or a regulation promulgated under the licensing act or an order of
the director. For each violation, the administrative law judge may
impose a fine of not more than ten thousand dollars.
Section 40-1-540. If a provision of this article or its application
to a person or circumstance is held invalid, the invalidity does not
affect other provisions or applications of this article and to this end
the provisions of this article are severable."
SECTION 2. This act takes effect upon approval by the
Governor.
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