Nebraska’s Sunrise Reports Miss the Mark Despite Law Requiring Thorough Reviews
of Requests Came from Industry
of Requests Sought New Licenses
of Reviews Recommended New Licenses
Reports from 1986 to 2017
- 38 Reviews
- 32 Unique Occupations
- 6 Sets of Repeat Reviews
The Nebraska sunrise reports in our dataset are lacking in independent research and meaningful analysis despite a law that, on its face, might be expected to produce rigorous reports. Not only are the law’s review criteria detailed, but the law is unique in requiring three separate reviews, including one by a technical committee, all of which we considered for this study.
Nebraska enacted its sunrise law, which covers only health-related occupations, in 1985. Sunrise review is initiated when regulation proponents submit a letter of intent to file an application, along with a $500 fee, to the director of public health. 2 If the application is eligible for review, the director informs regulation proponents that they can file their application. Any interested party can file an application. However, most applications—84%—are filed by health industry organizations or other occupational insiders.
Nebraska’s sunrise law contains a policy statement that expressly acknowledges the importance of balancing public safety with open occupational entry. It states: “The Legislature believes that all individuals should be permitted to provide a health service, a health-related service, or an environmental service unless there is an overwhelming need for the state to protect the public from harm.”
Nebraska’s law charges applicants with demonstrating a need for new regulation. 3 Among other factors, applicants must explain “[t]he problem created by not regulating a health professional group not previously regulated” and describe any standards already in place to guard against harms. They also “have the burden of producing evidence to support [their] application[s].”
Once an application is received, the director of public health establishes a six-member technical review committee. By law, the director must “ensure that the total composition of the committee is fair, impartial, and equitable.”
The technical committee is required to review the application and gather evidence by its own fact-finding and through public hearings. The committee must evaluate the proposal according to the law’s criteria, which includes whether “[u]nregulated practice can clearly harm or endanger the health, safety, or welfare of the public.” This is a moderate standard. In addition, the committee must consider whether regulation would impose costs on workers, consumers or the state and whether the public could be protected by less restrictive means. If it determines regulation is required, it must recommend the least restrictive regulation that would protect the public. To this end, Nebraska’s sunrise law provides a list of regulations ranging from inspections to licensing.
On finishing its review, the technical committee is required to prepare a written report and file it with the director of public health and the state Board of Health. The Board must then conduct its own review according to the same criteria as the technical committee. After the Board forwards its report to the director, the director is required to conduct his or her own review, again following the same statutory guidance. Not bound by the other reviewers’ recommendations, the director must produce a final report and submit it to the Legislature no later than 12 months after the application was filed. If the Legislature deems regulation appropriate, it must enact the least restrictive regulation.
Despite the state’s seemingly robust three-step sunrise review process, in which reviewers proactively seek out information, the state’s reports miss the mark. This may be because the technical committee tends not to seek out independent sources, instead consulting mainly industry insiders. Nevertheless, Nebraska’s reviews rarely recommend licensure.
Neb. Rev. Stat. Ann. §§ 71-6201 to -6229
Licensure Was Frequently Sought but Infrequently Recommended or Enacted
Summary of Nebraska’s Sunrise Reviews, 1986–2017
Notes: A distinct license is a separate license for an occupation already licensed under another, usually broader, occupational category. A recommendation of no new regulation means just that; a Notes: A distinct license is a separate license for an occupation already licensed under another, usually broader, occupational category. A recommendation of no new regulation means just that; a recommendation to maintain or amend license refers to a recommendation to reject new regulations (such as a distinct license) in favor of keeping an existing license, with or without amendments. A legislative outcome of no new regulation means no new regulation of personal qualifications; the legislature may have enacted other regulations. An outcome of broader credential means the legislature opted to sweep the occupation into a broader licensure, certification or registration scheme. Where a state reviewed an occupation more than once, we are counting only the legislative outcome as of 2018. To generate recommendations, we selected the most frequent recommendation among the three reviewers. For example, if two of the three reviewers recommended no new regulation, we counted that as the recommendation. We coded no recommendation in cases where the reviewers all disagreed.
Occupations Licensed Without Supporting Recommendations
|Medical Nutrition Therapists|
|Radiographers, Limited Scope|