NO. 129 Page no. 129. An act relating to professional regulation



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NO. 129 Page



NO. 129. AN ACT RELATING TO PROFESSIONAL REGULATION.

(H.501)


It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 3 V.S.A. § 128 is amended to read:

§ 128. UNPROFESSIONAL CONDUCT TO BE REPORTED TO BOARD

(a) Any hospital, clinic, community mental health center or other health care institution in which a licensee performs professional services shall report to the appropriate board, along with supporting information and evidence, any disciplinary action taken by it or its staff, after an initial investigation or hearing in which the licensee has been afforded the opportunity to participate, which significantly limits or conditions the licensee’s privilege to practice or leads to suspension or expulsion from the institution. The report shall be made within ten days of the date such disciplinary action was taken, regardless of whether the action is the subject of a pending appeal, and in the case of a licensee who is employed by, or under contract with, a community mental health center, a copy of the report shall also be sent to the commissioner of mental health and mental retardation. This section shall not apply to cases of resignation or, separation from service for reasons, or changes in privileges which are unrelated to disciplinary action:



(1) a disciplinary or adverse action;

(2) an adverse action report to the National Practitioner Data Bank;

(3) an unexpected adverse outcome in the care or treatment of a patient;

(4) misconduct or allegations of misconduct;

(5) the initiation or process of an action to limit, condition, or suspend a licensee’s privilege to practice in an institution;

(6) an action to expel the licensee from an institution; or

(7) any other action which could lead to an outcome described in subdivisions (1) through (6) of this subsection.

(b) Within 30 days of any judgment or settlements involving a claim of professional negligence by a licensee, any insurer of the licensee shall report

such information to the appropriate board, regardless of whether the action is the subject of a pending appeal.

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Sec. 2. 3 V.S.A. § 129 is amended to read:

§ 129. POWERS OF BOARDS; DISCIPLINE PROCESS

(a) In addition to any other provisions of law, a board may exercise the following powers:

(1) Adopt procedural rules governing the investigatory and disciplinary process.

(2) Issue subpoenas and administer oaths in connection with any authorized hearing, investigation or disciplinary proceeding. Subpoenas may be issued ex parte by the chair of the board, the director, or any attorney representing a party. Depositions may be taken after charges upon due notice to all parties without specific authorization by the board.

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(11) Issue temporary licenses to health care providers and veterinarians during a declared state of emergency. The health care provider or veterinarian to be issued a temporary license must be currently licensed, in good standing and not subject to disciplinary proceedings in any other jurisdiction. The temporary license shall authorize the holder to practice in Vermont until the termination of the declared state of emergency or 90 days, whichever occurs first, as long as the licensee remains in good standing. Fees shall be waived when a license is required to provide services under this subdivision.

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(c) A board may assign one or more members of the board to investigate complaints and license applications. These members shall have the assistance of an investigator for the office and the attorney general who shall be responsible for prosecuting disciplinary and licensing cases before the board. In the case of professions which have advisor appointees, the secretary may designate one or more of the advisor appointees or other licensed or certified members of the profession to assist in the investigation. While acting in this capacity, a board member or advisor appointee shall not sit in adjudication of the case. When a board is unable to assign one or more members to investigate complaints or license applications by reason of disqualification, resignation, vacancy or necessary absence, the secretary of state may, at the request of the board, appoint ad hoc members to serve on the board for investigation of that matter only. Ad hoc members shall have the same qualifications as required by law for the absent members. The board shall appoint independent counsel when, in the opinion of the attorney general or the board, the attorney general has a potential conflict of interest.

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(g) A board may authorize any of the following:

(1) Its chair to grant continuances of scheduled hearings and stays pending appeal.

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Sec. 3. [DELETED.]



* * * Accountants * * *

Sec. 4. 26 V.S.A. § 13 is amended to read:

§ 13. DEFINITIONS

For the purposes of this chapter:



(1)(A) “Attest services” means providing the following financial statement services:

(i) any audit or other engagement to be performed in accordance with the Statements on Auditing Standards (SAS);

(ii) any review of a financial statement or compilation of a financial statement to be performed in accordance with the Statement on Standards for Accounting and Review Services (SSARS);

(iii) any examination of prospective financial information to be performed in accordance with the Statements on Standards for Attestation Engagements (SSAE);

(B) The statements on standards specified in this section shall be adopted by reference by the board pursuant to rulemaking, and shall be those developed for general application by the American Institute of Certified Public Accountants.

(1)(2) “Board” means the board of public accountancy.

(2)(3) “Disciplinary action” or “disciplinary cases” includes any action taken by a board against a licensee, registrant or applicant premised upon a finding of wrongdoing or unprofessional conduct by the licensee or applicant. It includes all sanctions of any kind, excluding obtaining injunctions, but including issuing warnings, other similar sanctions and ordering restitution.

(3) “Financial interest” means being:

(A) a licensed practitioner of accounting; or

(B) a person who has invested anything of value in a business which provides accounting services.

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(6) “Opinion on financial statements” means an opinion expressed in accordance with generally accepted auditing standards as to whether the presentation of information used for guidance in financial transactions or for accounting for or assessing the status or performance of commercial and noncommercial enterprises, whether public, private, or governmental, is in conformity with generally accepted accounting principles or some other comprehensive basis of accounting.Peer review” means a systemwide study, appraisal, or review of one or more aspects of the professional work of a person or firm in the practice of public accounting that performs attest services by a person or persons who are licensed under this chapter and who are not affiliated with the person or firm being reviewed.

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(8) “Public accountant” means a certified public accountant or a registered public accountant until July 1, 2003, after which the title of registered public accountant will still exist for those licensed as registered public accountants or having received conditional credit toward licensure as a registered public accountant by that date, but will no longer be a title granted by the board.

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(10) “Report review” means a study, appraisal, or review of one or more aspects of the professional work of a person or firm in the practice of public accounting, by a person or persons who hold certificates and who are not affiliated with the person or firm being reviewed.

(11) “State” includes the states of the United States, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.

Sec. 5. 26 V.S.A. § 14 is amended to read:

§ 14. PROHIBITIONS

(a) No person or firm shall issue a report on financial statements of, or provide attest services for, any other person, firm, organization, or governmental unit unless the person or firm is licensed or registered under this chapter. This prohibition does not apply to an officer, partner, or employee of any firm or organization affixing their signature to any statement or report in reference to the financial affairs of such firm or organization with any wording designating the position, title, or office that they hold therein; nor prohibit any act of a public official or employee in the performance of his or her duties as such; nor prohibit the performance by any persons of other services involving the use of accounting skills, including the preparation of tax returns, management advisory services, and the preparation of financial statements without the issuance of reports thereon.

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(e) No person may use the title “certified public accountant” or “registered public accountant” in conjunction with names indicating or implying that there is a partnership or corporation, or limited liability company, or in conjunction with the designation “and company” or “and co.” or a similar designation if there is no bona fide partnership or corporation or firm holding a license under this chapter shall use a professional or firm name or designation that is misleading about the legal form of the firm, or about the persons who are partners, officers, members, managers or shareholders of the firm, or about any other matter; provided, however, that the names of one or more partners, members, managers or shareholders may be included in the name of a firm or its successor.



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Sec. 6. 26 V.S.A. § 15 is amended to read:

§ 15. EXEMPTIONS

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(b) A public accountant of another state, or any accountant who is qualified for the practice of public accounting in a foreign country may:

(1) use a title granted by that state or country, together with any suitable translation into English of that title, and, if a foreign country, the name of that country;

(2) temporarily practice public accounting after registering with the board under section 74a of this title; and



(3) practice public accounting after filing an application for license and until the board acts on that application.

(c) Nothing in this chapter prohibits a federal, state or municipal officer or employee from performing the lawful functions and duties of any office or service required of him.

(d) Nothing in this chapter prohibits an officer, employee, partner or principal of any organization from:

(1) signing a statement or report in reference to the affairs of that organization, with wording designating the title he holds held in the organization; or

(2) describing himself or herself by title.

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(f) Nothing in this chapter prohibits an individual person from using a title which he previously held as a public accountant licensed or certified in this or any other state, provided that the person’s license or certificate was not revoked or suspended, and provided further that the person is not currently engaged in the practice of public accounting and does not use the title for the purpose of practicing public accounting.

(g) Nothing in this chapter shall be construed to prohibit other licensed or certified professionals from carrying on in the usual manner any of the functions of their professions.

Sec. 7. 26 V.S.A. § 51 is amended to read:

§ 51. CREATION OF BOARD

(a) A board of public accountancy is created, consisting of five members, who shall be residents of this state.

(b) One member of the board shall be a member of the public who has no financial pecuniary interest in accounting other than as a consumer or possible consumer of its services. He or she The member shall have no financial pecuniary interest personally or through a spouse, parent, child, brother or sister.

(c) At least two three members of the board shall be licensed certified public accountants.

(d) At least one member of the board shall be a licensed registered public accountant. In the event that a registered public accountant is unavailable to serve as a board member, that vacancy shall be filled by a licensed certified public accountant or a public member.

(e) The remaining member shall be a licensed certified public accountant, licensed registered public accountant or a public member.



(f) Board members shall be appointed for three-year five-year terms by the governor, with the advice and consent of the senate. The governor may request nominations from any source but shall not be bound to select board members from among the persons nominated. When the board is first established, appointments may be for less than three-year terms in accordance with section 129b of Title 3.

(g) Vacancies may be filled in the same manner that initial appointments are made.

(h) The governor may remove any member of a board as provided in 3 V.S.A. § 2004.

(i) No board member may be appointed who has served eight or more years on the board.

Sec. 8. 26 V.S.A. § 54 is amended to read:

§ 54. GENERAL POWERS AND DUTIES OF THE BOARD

(a) The board shall adopt rules concerning:

(1) a definition of the practice of public accountancy, interpreting section 13 of this title as appropriate;

(2) qualifications for obtaining licensure, interpreting section 71 of this title the relevant statutes as appropriate;

(3) forms approved by the secretary of state, which are to be used by the board; and

(4) explanations of appeal and other significant rights given to applicants and the public.

(b) The board may:

(1) conduct examinations and pass upon the qualifications of applicants for licensing;

(2) adopt rules of professional conduct, consistent with the recommendations of the National Association of State Boards of Public Accountancy, for establishing and maintaining high standards of competence and integrity in the profession of public accounting;

* * *


(10) adopt rules regarding report peer reviews that may be required to be performed under this chapter.

(c) The board annually shall submit to the secretary of state:



(1) a register of complaints required by section 79 of this title;

(2) a statement evaluating the cost, quality and availability of service extended by public accountants and identifying the information on which this evaluation is based;

(3) a statement of all receipts and disbursements; and

(4) a listing of all licensed public accountants, and all registered firms.

(d) The board annually may submit a proposed budget to the secretary of state.

Sec. 9. 26 V.S.A. § 71a is amended to read:

§ 71a. CERTIFIED PUBLIC ACCOUNTANT LICENSES

(a) A license as a “certified public accountant” shall be granted by the board to any person:

(1) who is of good character;

(2) who completes:

(A) 60 or more semester hours of college credit at a college or university recognized by the board, including a minimum of 30 semester hours of accounting, auditing and related subjects as the board determines to be appropriate, and four years of experience in public accounting, meeting the requirements prescribed by board rule or other experience or employment which the board in its discretion considers substantially equivalent; or

(B) 120 or more semester hours of college credit at a college or university recognized by the board, including a minimum of 30 semester hours of accounting, auditing and related subjects as the board determines to be appropriate, and two years of experience in public accounting, meeting the requirements prescribed by board rule or other experience or employment which the board in its discretion considers substantially equivalent; or

(C) 150 or more semester hours of college credit at a college or university recognized by the board, including a minimum of 42 semester hours of accounting, auditing and related subjects as the board determines to be appropriate, and one year of experience in public accounting, meeting the requirements prescribed by board rule or other experience or employment which the board in its discretion considers substantially equivalent; or and

(D) an apprenticeship program satisfying requirements established by rule of the board to ensure continuing opportunity for non‑university trained persons to practice public accounting consistent with assuring the highest standards of service; and



(3) who has passed the examination required under subsection (b) of this section.

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Sec. 10. 26 V.S.A. § 71b is amended to read:

§ 71b. REGISTERED PUBLIC ACCOUNTANT LICENSES

(a) A license as a “registered public accountant” shall be granted by the board to any person:

(1) who is of good character;

(2) who completes:

(A) 60 or more semester hours of college credit at a college or university recognized by the board, including a minimum of 30 semester hours of accounting, auditing and related subjects as the board determines to be appropriate, and four years of experience in public accounting, meeting the requirements prescribed by board rule or other experience or employment which the board in its discretion considers substantially equivalent; or

(B) 120 or more semester hours of college credit at a college or university recognized by the board, including a minimum of 30 semester hours of accounting, auditing and related subjects as the board determines to be appropriate, and two years of experience in public accounting, meeting the requirements prescribed by board rule or other experience or employment which the board in its discretion considers substantially equivalent; or

(C) 150 or more semester hours of college credit at a college or university recognized by the board, including a minimum of 42 semester hours of accounting, auditing and related subjects as the board determines to be appropriate, and one year of experience in public accounting, meeting the requirements prescribed by board rule or other experience or employment which the board in its discretion considers substantially equivalent; or and

(D) an apprenticeship program satisfying requirements established by rule of the board to ensure continuing opportunity for non‑university trained persons to practice public accounting consistent with assuring the highest standards of service; and

(3) who has passed the examination required by subsection (b) of this section.

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(c) An applicant for a license as a registered public accountant must have received conditional credit toward the registered public accountant examination on or before July 1, 2003 in order to continue on that path of licensure. Registered public accountants who have qualified for licensure on or before that date are allowed to continue to hold themselves out as such and continue to use that license and title.

Sec. 11. 26 V.S.A. § 72a is amended to read:

§ 72a. GENERAL LICENSING PROVISIONS

* * *


(c) Without requiring an examination, the board shall issue an appropriate license to a public accountant who is licensed or certified under the laws of another state:

(1) with education, examination and experience requirements which the board considers to be substantially equal to those of this state; or

(2) upon a showing that the applicant has had five years of experience in the practice of public accountancy or meets equivalent requirements prescribed by the board by rule, after having passed an examination upon which the applicant’s certificate was based within the ten years immediately preceding the application; and

(3) has fulfilled the requirements of continuing education or continuing professional competence programs that would have been applicable under subsection (b) of section 75 of this title.

(d) Examinations for each license shall be held by the board as often as the board determines, but not less frequently than once each year.

(e) An applicant of good character who has met the education requirements of the board for a license, or who expects to meet it within 60 days following the examination, may take the examination without waiting until he the applicant meets the education requirement. No credit shall be given for the examination if the education requirement is not completed within the next 60 days or within a longer time granted by the board on application.



(f) By rule, the board may provide for granting credit during a fixed period of time to a candidate who has satisfactorily completed one or more subjects in an examination. It may also provide by rule for a reasonable waiting period for reexamination in any subject which a candidate has failed. A candidate is entitled to any number of reexaminations.

Sec. 12. 26 V.S.A. § 74 is amended to read:

§ 74. FIRMS; REGISTRATION AND OWNERSHIP

(a) All firms that have an office established or maintained in this state for the practice of public accounting shall be registered biennially with the board. Each office shall be under the direct supervision of a resident manager who shall be a public accountant licensed in this state and shall be either a principal, shareholder or a staff employee. The resident manager may serve in that capacity at one office only. The board shall adopt rules prescribing the procedure to be followed in carrying out the registrations.

(b) An applicant for initial registration or renewal under this section shall be required to show that, notwithstanding any other provision of law, a simple majority of the ownership of the firm, in terms of financial interest equity, creditor and voting rights of all partners, officers, members, shareholders or managers, belongs to holders of a certificate who are licensed in some state, and such partners, officers, members, shareholders or managers, whose principal place of business is in this state, and who perform professional services in this state, hold a valid license issued under this chapter. Although firms may include non-licensee nonlicensee owners, the firm and its ownership must comply with the rules adopted by the board.

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Sec. 13. 26 V.S.A. § 74a is amended to read:

§ 74a. REGISTRATION OF ACCOUNTANTS FOR TEMPORARY PRACTICE NONRESIDENT FIRMS

(a) All nonresident firms licensed or registered in another state or country who desire to temporarily practice in the state must register with the board and pay the required fee. The board shall adopt rules prescribing the procedure to be followed in carrying out the registrations. Registrations under this section shall expire three months after issuance. “Firm” is as defined in subdivision 13(4) of this title.

(b) Registrations under this section shall expire three months after issuance All nonresident firms providing public accounting services in the state of Vermont must be registered and obtain a firm registration number.

Sec. 14. REPEAL

26 V.S.A. § 74b (registration of nonresident firms) is repealed.

Sec. 15. 26 V.S.A. § 75 is amended to read:

§ 75. RENEWAL

(a) Public accountant licenses and firm registrations under this chapter shall be renewed every three years prior to July 1, 1999 and every two years thereafter on payment of the required fee.

* * *

(e) Failure of If a licensee or registrant fails to apply for renewal renew within three months of expiration terminates the right of renewal unless the applicant demonstrates hardship 10 years of the license lapsing, the licensee must file a new application for licensure and satisfy the initial licensure requirements of the board in order to obtain a license.



Sec. 16. 26 V.S.A. § 76 is amended to read:

§ 76. UNPROFESSIONAL CONDUCT



(a) Unprofessional conduct is the conduct prohibited by this section, by section 129a of Title 3, or by the other statutes relating to public accounting, whether or not taken by a license holder.

(b) Unprofessional conduct means:

(1) Public accounting advertising which is intended or known to be deceptive, including representing a partnership or corporation as composed of public accountants if not all of its partners or shareholders are so licensed The conduct prohibited by this section, by section 129a of Title 3, or by other statutes relating to public accounting, whether or not that conduct is by a licensee, an applicant, or a person who later becomes an applicant;

(2) Conviction of a crime related to the practice of public accounting or suspension for cause Disciplinary action by another state or country or federal agency of a license or certificate to practice public accountancy;

(3) Failing to make available, upon request of a person using public accounting services, copies of documents in the possession or under the control of the accountant, when those documents have been prepared for and purchased by paid for by the user of services;

(4) Conduct which evidences moral unfitness to practice public accounting Failing to return client‑supplied information and documents, in whatever form contained, upon request of the client;

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(6) Violating a rule of professional conduct adopted by the board;

(7) Failing to comply with an order of restitution from the board under section 78 of this title;

(8) Disclosing confidential communications in violation of section 82 of this title Dishonesty, fraud or negligence in the practice of public accountancy, including making misleading, deceptive or untrue representations in the practice of public accountancy;

(7) The making of any false or misleading statement in support of an application filed by another;

(8) Failure of a licensee to provide any explanation requested by the board regarding evidence submitted by the licensee in support of an application for licensure filed by another, or regarding evidence submitted by the licensee in support of an application for licensure filed by another, or regarding a failure or refusal to submit such evidence; and failure by a licensee to furnish for inspection, upon request by the board, or its representative, documentation relating to any evidence submitted by the licensee in support of such an application; or

(9) Failing to report changes to the board as required by statute and the board’s rules.

Sec. 17. 26 V.S.A. § 78 is amended to read:

§ 78. DISCIPLINARY MATTERS

(a) In addition to other powers specifically established by law, the board may:

* * *

(3) Suspend Issue warnings and reprimands, condition, suspend, revoke, or reinstate licenses and order restitution to aggrieved consumers.



(b) The board shall accept complaints from any member of the public, any licensee, any state or federal agency or the attorney general. Notice of matters involving service to consumers shall be given to the attorney general. The board may initiate disciplinary action in any complaint against a licensee and may act without having received a complaint.

(c) After hearing, the board may take disciplinary action against a licensee, registrant or applicant found guilty of unprofessional conduct. Sanctions imposed by a board against an applicant shall be limited to denial of a license and notification of relevant state and federal agencies of the unprofessional conduct of an applicant.

(d) On petition, the board may reinstate any license or registration it earlier conditioned, revoked or suspended.

(e) Appeals from final board decisions shall be taken in accordance with section 130a of Title 3.

Sec. 18. 26 V.S.A. § 81(c) is added to read:



(c) Original copies of client documents in the possession of the licensee are the property of the client, and must be returned to the client upon request.

Sec. 19. 26 V.S.A. § 82(d) is amended to read:

(d) Nothing contained in this chapter prohibits a firm or any of its employees, from disclosing any data in confidence to any representative of a recognized professional association or to the board in connection with a professional ethics investigation or in the course of a peer review.

* * * Medicine and Surgery * * *

Sec. 20. 26 V.S.A. § 1311 is amended to read:

§ 1311. DEFINITIONS

For the purposes of this chapter:

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(4) “Local medical Medical director” means, for purposes of this chapter, a physician who is board-certified or board-eligible in his or her field of specialty, as determined by the American Board of Medical Specialties (ABMS), and who is charged by a managed care plan health maintenance organization with responsibility for overseeing all clinical activities of the plan in this state, or his or her designee.

(5) “Managed care plan” or “plan” means a health benefit plan offered by a health insurer that either requires a member to use, or creates incentives, including financial incentives, for a member to use, health care providers and health care facilities managed, owned, under contract with or employed by the health insurer. For purposes of this chapter, an obligation imposed upon a managed care plan shall be deemed to be imposed as well on the health insurer that offers the managed care plan. “Health maintenance organization”, as used in this section, shall have the same meaning as defined in subdivision 9402(9) of Title 18.

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Sec. 21. 26 V.S.A. § 1351 is amended to read:



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