Subpart 1.
Consideration of
factors.
In the review of an applicant group questionnaire, the
subcommittee, council, and commissioner shall base their recommendation or
decision as to whether or not the applicant group shall be regulated upon the
factors contained in Minnesota Statutes, section
214.001,
subdivision 2.
Subp. 2.
Factor of unregulated practice.
In applying the factor of whether the unregulated practice of
an occupation may harm or endanger the health, safety, and welfare of citizens
of the state and whether the potential for harm is recognizable and not remote,
at a minimum the relevance of the following shall be considered:
A. harm shall be construed to be a condition
representative of physical, emotional, mental, social, financial, or
intellectual impairment resulting from the functions rendered or failed to be
rendered by the applicant group;
B.
potential for harm may be recognizable when evidenced by at least one or more
of the following: expert testimony; client, consumer, or patient testimony;
research findings; legal precedents, financial awards, or judicial
rulings;
C. potential for harm may
be recognizable when evidenced by at least one or more of the following
characteristics of the applicant group;
(1)
inherently dangerous nature of the applicant group's functions;
(2) dangerous nature of devices or substances
used in performing applicant group's functions;
(3) exercise by practitioners of the
applicant groups of an observable degree of independent judgment when:
identifying or evaluating a consumer's or client's symptoms; formulating a plan
for consumer or client care, service delivery or treatment; and/or providing
consumer or client care, delivering service, or implementing a plan of
treatment;
D. potential
for harm may be remote when evidenced by at least one or more of the following:
infrequent or rare instances of impairment; impairment which is minor in
nature; or secondary or tertiary effects of the applicant group's
function.
Subp. 3.
Occupation requiring special skill factor.
In applying the factor of whether the practice of an
occupation requires specialized skill or training and whether the public needs
and will benefit by assurances of initial and continuing occupational ability,
the existence of the following items shall be considered as indicating that
specialized skill or training or their continuation is required:
A. that the functions performed by the
practitioner are several and their performance necessitates a thorough
understanding of the complex relationship between those functions;
B. that the one or more functions performed
by the practitioner requires a detailed understanding of the specific
components of the function and the relationship between the functions and the
symptoms, problem, or condition that function is intended to address or
ameliorate;
C. that the absence of
specialized skill or training is likely to increase the incidence and/or degree
of harm as defined in subpart 2 to the consumer as client; and
D. that there occur frequent or major changes
in areas of skilled knowledge and technique of which the practitioner must keep
informed in order to meet current standards.
Subp. 4.
Factor of more effective
means.
In applying the factor of whether the citizens of this state
are or may be effectively protected by other means, at a minimum the relevance
of the following shall be considered:
A. Indicators of protection by other means
shall include but not be limited to:
(1)
supervision by practitioners in a regulated occupation;
(2) existence of laws governing devices and
substances used in the occupation;
(3) existence of laws governing the standard
of practice;
(4) existence of
standards for professional performance;
(5) employment in licensed human service
facilities which are required to employ competent staff;
(6) existence of federal licensing as
credentialing mechanism;
(7)
existence of civil service procedures which effectively screen potential
employees for competence;
(8)
graduation of members of the applicant group from an accredited educational
institution or training program;
(9) mandatory participation in on-the-job
training programs which are required by law or by professional organization of
the occupation;
(10) existence of
professional credentials and standards of performance which effectively
sanction malpractice; and
(11)
existence of a national certification process which effectively attests to the
competency of recognized professionals.
B. Indicators of protection by other means
shall be assessed and evaluated at least in view of the extent to which they:
(1) address all practitioners within an
occupational group;
(2) appear
sufficient to protect the general public from harm caused by the practice of
the occupation in question; and
(3)
appear to be permanent and ongoing mechanisms.
Subp. 5.
Overall cost-effectiveness and
economic impact.
In determining whether the overall cost-effectiveness and
economic impact would be positive for citizens of the state, the following
shall be considered:
A. Positive
cost-effectiveness and economic impact results where the benefits expected to
accrue to the public from a decision to regulate an occupation are greater than
the costs resulting from that decision.
(1)
Cost-effectiveness means the relationship of the benefits anticipated from a
decision to regulate an occupation to the overall costs to the public resulting
from that decision.
(2) Economic
impact means the direct and indirect effects on the price and supply of
services provided by the occupation under consideration for regulation. Direct
effects include impacts on the cost and supply of practitioners who would be
regulated. Indirect effects include: the degree to which the existing
practitioners will be precluded from practice because of regulation; the degree
to which persons aspiring to practice the occupation, who if not for regulation
could practice the occupation successfully, but will be prohibited because of
inability to meet entry requirements; impact on ability of minorities or
protected classes to enter the occupation; or impact on innovations in the
delivery of care or services as a result of regulation.
(3) Costs of a decision to regulate include
the estimated costs to state and local governments of administering the
proposed regulatory program; educational requirements and training costs
including costs associated with experiential requirements of the proposed mode
of regulation; and costs to the public such as reduced or increased access by
potential or existing providers to labor markets.
(4) Benefits of a decision to regulate an
occupation include access to less expensive but similar providers; measurable
improvements in quality of care; reductions in costs of services; process for
seeking redress for injury from malpractice, or other unprofessional conduct,
and reduction in the potential for public harm from unregulated
practice.
B.
Cost-effectiveness and economic impact can be evaluated through consideration
of the following factors:
(1) degree to which
regulation directly or indirectly impacts the costs and prices of goods or
services provided by applicant group;
(2) impact upon the current and future supply
of practitioners of the regulated occupation;
(3) degree to which the existing
practitioners will be precluded from practice because of regulation;
(4) impact, if any, on innovations in the
delivery of care or services as a result of regulation;
(5) costs of additional education and
training required as a result of the regulation of the occupation;
(6) manner in which and degree to which
regulation will result in improvement in the quality of care;
(7) degree to which services of the applicant
group substitute for currently regulated occupations and estimated comparative
costs of applicant group and currently regulated practitioners;
(8) degree to which services of the applicant
group supplement currently regulated occupations;
(9) whether regulation confers or facilitates
access to reimbursement for government assistance programs such as medicare and
medicaid; estimated impact on program budgets; and
(10) impact on expenditures by government and
private third-party payors, if any, resulting from regulation of the
occupation.
Subp.
6.
Nonlimiting guidelines.
Subparts 2 to 5 shall be considered nonlimiting guidelines to
be used in applying the statutory factors contained in Minnesota Statutes,
section
214.001,
subdivision 2. Additional elements may be considered if necessary to permit a
thorough review and evaluation of an applicant group questionnaire in light of
the statutory factors; provided, however, that the additional elements shall be
identified during the course of the review and evaluation process, all
interested persons given the opportunity to comment thereon, and shall be
specifically addressed in the commissioner's written decision required by part
4695.1500.
