Virginia has separate but similar sunrise processes for health and non-health occupations. The state’s sunrise laws and administrative policies require some of the most detailed inquiries into least restrictive regulations of any state. Moreover, both processes are guided by a policy statement that expressly acknowledges the importance of preserving open occupational entry while requiring a moderate standard of harm to justify regulation.
Virginia law states: “The right of every person to engage in any lawful profession, trade, or occupation of his choice is clearly protected by both the Constitution of the United States and the Constitution of the Commonwealth of Virginia. The Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when (i) it is clearly found that such abridgment is necessary for the protection or preservation of the health, safety, and welfare of the public and (ii) any such abridgment is no greater than necessary to protect or preserve the public health, safety, and welfare.” Regulation is justified only if the unregulated occupational practice “can harm or endanger . . . the public, and the potential for harm is recognizable and not remote or dependent upon tenuous argument.”
Virginia enacted its sunrise processes for health and non-health occupations in 1977 and 1979, making them two of the nation’s oldest. For both types of occupations, sunrise review can be triggered by an application filed by regulation proponents, by executive action or by legislative request. There is no fee for applications. In practice, however, most reviews have been initiated when the General Assembly has requested a general review into whether regulation of an occupation is needed.
For health occupations, sunrise reports of health occupations are produced by the Board of Health Professions. In addition to conducting its own investigations, BHP considers comments from practitioners and members of the public. It evaluates the threat of harm from unregulated practice and searches for evidence of past harm based on a review of malpractice insurance information and job analyses. It also evaluates whether regulation’s costs to consumers and the state are justified and whether current laws and efforts by occupational groups can protect the public. And BHP must consider less restrictive alternatives, such as strengthened consumer protection laws and inspections, and ultimately recommend the least restrictive regulation that would protect the public. The law sets no time limit for BHP’s reviews.
For non-health occupations, sunrise reports are produced by the Board for Professional and Occupational Regulation. Unlike BHP, BPOR is not expressly permitted to accept input from parties other than regulation proponents. Nor is it required to consider evidence of past harm, weigh costs to consumers or the state, or recommend least restrictive regulations. However, it must evaluate the threat of harm from unregulated practice, whether current government and private measures can address the threat, and whether the proposed regulation is narrowly tailored. The law gives BPOR at least 11 months for its review, depending on when applications are submitted.
For both types of occupations, Virginia’s sunrise law requires the General Assembly to enact least restrictive regulations. Of course, the sunrise law cannot pre-empt legislative decisions, so this provision is nonbinding.
Both Virginia’s health and non-health reports in our dataset are highly rigorous, consistently using independent research and analysis to understand occupations and the need, or lack thereof, for regulation.
General Reviews and Licensure Were Frequently Sought—and Licensure Was Frequently Enacted Despite Few Licensure Recommendations
Summary of Virginia’s Sunrise Reviews, 1987–2017
Notes: A distinct license is a separate license for an occupation already licensed under another, usually broader, occupational category. A general review is an open-ended inquiry into whether and how an occupation should be regulated. 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.
Occupations Licensed Without Supporting Recommendations
Occupational Therapy Assistants
Speech Language Pathology Assistants
Vocational Rehabilitation Counselors
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