§ 49:260 — Department of Justice Occupational Licensing Review Program

§260. Department of Justice Occupational Licensing Review Program
A. It is the policy of the state that where the state finds it necessary to displace
competition, occupational licensing boards shall use the least restrictive regulation to protect
the public from present, significant, and substantiated harms that threaten public health,
safety, or welfare. Active state supervision of occupational regulatory actions is a method
of ensuring adherence to this clearly articulated state policy. By establishing this program,
the state intends to ensure that participating boards and board members will avoid liability
under federal antitrust laws.
B. In addition to any other powers, duties, or authority granted to the attorney general
and the Department of Justice by the constitution and laws of this state, the attorney general
shall have the authority to enter into an agreement to provide active supervision of proposed
occupational regulations and proposed anti-competitive disciplinary actions of a state
occupational licensing board. Such active supervision shall be performed in accordance with
this Section and the terms of the written agreement between the occupational licensing board
and the Department of Justice. Participating licensing boards shall pay to the Department
of Justice annually the amount set forth in the agreement. The dollar amount set forth in the
agreement shall be equal to or less than the number of licensees multiplied by ten.
C. Participation in the Department of Justice Occupational Licensing Review
Program established in this Section is voluntary and optional. An occupational licensing
board that chooses to participate in the program established in this Section is not required to
comply with the requirements of the Occupational Board Compliance Act, R.S. 37:41 et seq.
D.(1) Prior to submitting a notice of final regulation to the proper legislative
oversight committees, the occupational licensing board shall submit any occupational
regulation it seeks to promulgate, together with a report of any public comments received,
agency response to comments, and the statement of proposed fiscal impact, to the
Department of Justice.
(2) The Department of Justice shall review the substance of each proposed
occupational regulation submitted to ensure compliance with clearly articulated state policy
pursuant to this Section and may also consider any other applicable law.
(3) Following the review, the Department of Justice shall do one of the following:
(a) Approve the proposed occupational regulation and authorize the occupational
licensing board to proceed with promulgation.
(b) Disapprove the proposed occupational regulation and require the occupational
licensing board to revise and resubmit the occupational regulation for approval.
(4) The decision by the Department of Justice shall be communicated in writing with
an explanation of the basis for the decision.
(5) Compliance with this Subsection shall not be required for emergency rules
adopted pursuant to the Administrative Procedure Act, but emergency rules shall not be used
to circumvent active supervision of proposed occupational regulations. Nothing in this
Subsection shall prevent the occupational licensing board from electing to submit an
emergency rule that meets the definition of occupational regulation for review.
E.(1) Prior to taking an anti-competitive disciplinary action, the occupational
licensing board shall submit the proposed action and supporting documentation to the
Department of Justice.
(2) The Department of Justice shall review the substance of the proposed disciplinary
action to ensure compliance with clearly articulated state policy pursuant to this Section and
may also consider any other applicable law.
(3) Following the review, the Department of Justice shall do any of the following:
(a) Determine that the proposed disciplinary action does not implicate any market
competition interests.
(b) Approve the proposed disciplinary action as a proper exercise of state regulatory
action in accordance with clearly articulated state policy, notwithstanding possible impact
on market competition, and authorize the occupational licensing board to proceed with
imposing the disciplinary action.
(c) Disapprove of the proposed disciplinary action and decline to authorize its
imposition.
(4) The decision by the Department of Justice shall be communicated in writing with
an explanation of the basis of the decision. This written explanation shall be considered
confidential until the disciplinary action has become a final determination of the board.
(5) All records, writings, accounts, letters, exhibits, data, pictures, drawings, charts,
reports, or photographs shall be considered to be in the custody and control of the
occupational licensing board, and all exemptions contained in R.S. 44:1 et seq. or any other
provision of law shall continue to apply.
F.(1) There is hereby established in the state treasury a special fund to be known as
the Department of Justice Occupational Licensing Review Program Fund, hereafter referred
to in this Section as "the fund".
(2) Notwithstanding any provision of law to the contrary, after compliance with the
requirements of Article VII, Section 9(B) of the Constitution of Louisiana, relative to the
Bond Security and Redemption Fund, and after a sufficient amount is allocated from that
fund to pay all of the obligations secured by the full faith and credit of the state which
become due and payable within any fiscal year, the treasurer shall pay an amount into the
fund equal to the amount of monies received by the attorney general from participating
occupational licensing boards as compensation for the regulatory review activities
undertaken pursuant to this Subsection.
(3) Monies in the fund shall be subject to annual appropriation to the Department of
Justice solely for the support of occupational licensing board regulatory review activities and
general operating expenses. Monies so appropriated shall be used to supplement the
department's budget and shall not be used to displace, replace, or supplant appropriations
from the state general fund for operations of the department below the level of state general
fund appropriation for the foregoing year.
(4) All unencumbered and unexpended monies in the fund at the end of the fiscal
year shall remain in the fund. Monies in the fund shall be invested by the treasurer in the
same manner as those in the state general fund, and any interest earned on such investment
shall be deposited in and credited to the fund.
G. For the purposes of this Section:
(1) "Active market participant" means an individual or entity that is any of the
following:
(a) Licensed by the occupational licensing board to which they are appointed,
including subspecialties licensed by that board.
(b) A provider of any service subject to the regulatory authority of that occupational
licensing board.
(2) "Active supervision" shall include all of the following duties and powers:
(a) Independent review and evaluation of the substance of the proposed occupational
regulation or the proposed anti-competitive disciplinary action, not merely the procedures
followed to produce it.
(b) The ability to approve, reverse, veto, or modify a proposed occupational
regulation or proposed anti-competitive disciplinary action to ensure it complies with state
policy rather than merely a party's individual interests.
(c) The ability to obtain the information necessary to perform a proper evaluation of
the occupational board's proposed occupational regulation or the proposed anti-competitive
disciplinary action.
(d) A written decision outlining the reasons and rationale for approving, reversing,
vetoing, or modifying the recommended action.
(3) "Occupational licensing board" means any state executive branch board,
commission, department, or other agency that is all of the following:
(a) Regulating the entry of persons into, or regulating the conduct of persons within,
a particular profession or occupation.
(b) Authorized to issue or revoke occupational licenses or registrations.
(c) Controlled by active market participants.
(4) "Occupational regulation" means a rule as defined in the Administrative
Procedure Act that has reasonably foreseeable anti-competitive effects. Any license, permit,
or regulation established by a parish, municipality, or a board not composed of a controlling
number of active market participants is excluded.
H. The Department of Justice is authorized to promulgate rules and procedures as
necessary to implement the program established by this Section.
I. Nothing in this Section is intended to restrict an occupational licensing board from
requiring, as a condition of licensure or renewal of licensure, that an individual's personal
qualifications include obtaining or maintaining certification from a private organization that
credentials individuals in the relevant occupation.
J. The provisions of this Section shall not apply to the regulation of the practice of
law.

Legislative History

Acts 2021, No. 399, §1.