On March 28, Governor Baker issued Executive Order 567 To Ensure Proper Review of the Regulation of Professional Licensing by Independent Boards. On April 8, he filed H4188 to provide oversight in state law.
H. 4188 reflects Executive Order 567 and, when enacted and signed into law, would provide the same oversight. It was sent to the Joint Committee on Consumer Protection and Professional Licensure on April 11. H. 4188 will be heard on May 10, 2016 at 1 PM.
In an April 8 letter to the Massachusetts legislature, Governor Baker noted that the bill "is required to bring the Commonwealth's oversight of State-sponsored professional licensing boards into compliance with a recent decision of the United States Supreme Court."
Responding to the recent United States Supreme Court decision in North Carolina Board of Dental Examiners v. Federal Trade Commission, (135 S.Ct. 1101), which held in February of 2015 that when a controlling number of the decision makers on a state licensing board are active participants in the occupation the board regulates, the board can invoke state-action immunity only if it is subject to active supervision by the state, this bill filed by the Governor is his effort to address the problem within the context of the Commonwealth's licensing boards. The Governor's filing letter notes that within the Department of Professional Licensure, the Department of Public Health, the Department of Public Safety, and elsewhere, there are more than 40 State licensing boards that rely on the expertise of board members currently practicing in the fields they oversee to regulate professional licensure and practice. Each time a State licensing board sets qualifications for licensing or places limits on scope of practice, those actions may have the effect of restraining trade and commerce. Board actions that produce this effect are free from legal challenge only if they are protected by the State's general immunity from antitrust claims. Under the Supreme Court's decision, where a substantial percentage of board decision-makers are active market participants in an occupation the board regulates, board actions will be entitled to State antitrust immunity only when those actions are the product of active supervision by the State itself. To meet the "active supervision" requirement, the State must have authority to review any board action that may limit competition and to veto the action when a State supervisor concludes that the board's action does not serve some other, clearly articulated State policy goal, notwithstanding its potential anti-competitive effect. This bill seeks to continue the Commonwealth's reliance on independent, practicing professionals as the best source of expert knowledge for State regulation of the professions. Accordingly, where feasible, the legislation builds on the existing statutory structure to ensure the Commonwealth can provide active supervision of State licensing boards. In those few instances where the General Laws now leave certain licensing boards without clear State oversight, the legislation introduces new provisions that will satisfy the active supervision requirement.