Current Status Bill Number:1338 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:19960404 Primary Sponsor:Bryan All Sponsors:Bryan, Thomas, Giese and Richter Drafted Document Number:pfm\9200ac.96 Companion Bill Number:4877 Residing Body:Senate Current Committee:Labor, Commerce and Industry Committee 12 SLCI Subject:Administrative regulation of professions, occupations
Body Date Action Description Com Leg Involved
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Senate 19960404 Introduced, read first time, 12 SLCI
referred to Committee
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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:
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.