AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO THE DENTIST AND DENTAL HYGIENIST COMPACT.

Legislation Document

SPONSOR:

Sen. Pinkney & Rep. Harris

Sens. Cruce, Huxtable, Lockman, Mantzavinos, Paradee, Pettyjohn, Sokola, Townsend

DELAWARE STATE SENATE

153rd GENERAL ASSEMBLY

SENATE BILL NO. 147

AN ACT TO AMEND TITLE 24 OF THE DELAWARE CODE RELATING TO THE DENTIST AND DENTAL HYGIENIST COMPACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 11, Title 24 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Subchapter III-A. Dental and Dental Hygienist Compact

§ 1151. Title and purpose.

(a) This subchapter is known and cited as the Dentist and Dental Hygienist Compact.

(b) The purposes of this Compact are to facilitate the interstate practice of dentistry and dental hygiene and improve public access to dentistry and dental hygiene services by providing a dentist or dental hygienist licensed in a participating state the ability to practice in participating states in which the dentist or dental hygienist is not licensed.

(c) The Compact achieves the purposes of subsection (b) of this section by establishing a pathway for a dentist or dental hygienist licensed in a participating state to obtain a compact privilege that authorizes the dentist or dental hygienist to practice in another participating state in which the dentist or dental hygienist is not licensed.

(d) The Compact enables a participating state to protect the public health and safety with respect to the practice of such dentist or dental hygienist through the participating state’s authority to regulate the practice of dentistry and dental hygiene in the participating state.

(e) The Compact does all of the following:

(1) Enables dentist and dental hygienists who qualify for a compact privilege to practice in other participating states without satisfying burdensome and duplicative requirements associated with securing a license to practice in those states.

(2) Promotes mobility and addresses workforce shortages through each participating state’s acceptance of a compact privilege to practice in the participating state.

(3) Increases public access to qualified, licensed dentists and dental hygienists by creating a responsible, streamlined pathway for licensees to practice in participating states.

(4) Enhances the ability of participating states to protect the public’s health and safety.

(5) Does not interfere with licensure requirements established by a participating state.

(6) Facilitates the sharing of licensure and disciplinary information among participating states.

(7) Requires dentists and dental hygienists who practice in a participating state under a compact privilege to practice within the scope of practice authorized in the participating state.

(8) Extends the authority of the participating state to regulate the practice of dentistry and dental hygiene within the participating state’s borders to dentists and dental hygienists who practice in the participating state through a compact privilege.

(9) Promotes the cooperation of participating states in regulating the practice of dentistry and dental hygiene within those states.

(10) Facilitates the relocation of military members and their spouses who are licensed to practice dentistry or dental hygiene.

§ 1152. Definitions.

As used in this Compact:

(1) “Active military member” means any individual with full-time duty status in the armed forces of the Unites States, including members of the National Guard and Reserve.

(2) “Adverse action” means disciplinary action or encumbrance imposed on a license or compact privilege by a state licensing authority.

(3)a. “Alternative program” means a non-disciplinary monitoring or practice remediation process applicable to a dentist or dental hygienist approved by a state licensing authority of a participating state in which the dentist or dental hygienist is licensed.

b. “Alternative program” includes programs to which licensees with substance abuse or addiction issues are referred to in lieu of adverse action.

(4) “Clinical assessment” means examination or process, required for licensure as a dentist or dental hygienist as applicable, that provides evidence of clinical competence in dentistry or dental hygiene.

(5) “Commissioner” means the individual appointed by a participating state to serve as the member of the Commission for the participating state.

(6) “Compact” means this subchapter, the Dentist and Dental Hygienist Compact.

(7) “Compact privilege” means the authorization granted by a remote state to allow a licensee from a participating state to practice as a dentist or dental hygienist in a remote state.

(8) “Continuing professional development” means a requirement, as a condition of license renewal, to provide evidence of successful participation in educational or professional activities relevant to practice or area of work.

(9) “Criminal background check” means the submission of fingerprints or other biometric-based information for a license applicant for the purpose of obtaining that applicant’s criminal history record information, as defined in 28 C.F.R. § 20.3(d), from the Federal Bureau of Investigation and the State’s criminal history record repository, as defined in 28 C.F.R. § 20.3(f).

(10) “Data system” means the Commission’s repository of information about licensees, including examination, licensure, investigative, compact privilege, adverse action, and alternative program.

(11) “Dental Hygienist” means an individual who is licensed by a state licensing authority to practice dental hygiene.

(12) “Dentist” means an individual who is licensed by a state licensing authority to practice dentistry.

(13) “Dentist and Dental Hygienist Compact Commission” or “Commission” means a joint government agency established by this Compact comprised of each state that has enacted this Compact and a national administrative body comprised of a Commissioner from each state that has enacted this Compact.

(14) “Encumbered license” means a license that a state licensing authority has limited in any way other than through an alternative program.

(15) “Executive Board” means the Chair, Vice Chair, Secretary, and Treasurer and any other Commissioners as may be determined by Commission rule or bylaw.

(16) “Jurisprudence requirement” means the assessment of an individual’s knowledge of the laws and rules governing the practice of dentistry or dental hygiene, as applicable, in a state.

(17) “License” means current authorization by a state, other than authorization under a compact privilege, or other privilege, for an individual to practice as a dentist or dental hygienist in the state.

(18) “Licensee” means an individual who holds an unrestricted license from a participating state to practice as a dentist or dental hygienist in the participating state.

(19) “Model Compact” the model for the Dental and Dental Hygienist Compact on file with the Council of State Governments or other entity as designated by the Commission.

(20) “Participating state” means a state that has enacted this Compact and been admitted to the Commission in accordance with the provisions under this Compact and Commission rules.

(21) “Qualifying license” means a license that is not an encumbered license issued by a participating state to practice dentistry or dental hygiene.

(22) “Remote state” means a participating state where a licensee who is not licensed as a dentist or dental hygienist is exercising or seeking to exercise the compact privilege.

(23) “Rule” means a regulation promulgated by an entity that has the force of law.

(24) “Scope of practice” means the procedures, actions, and processes a dentist or dental hygienist licensed in a state is permitted to undertake in the state and the circumstances under which the licensee is permitted to undertake those procedures, actions, and processes. The procedures, actions, and processes and the circumstances under which the procedures, actions, and processes may be undertaken may be established through means, including statute, regulations, case law, and other processes available to the state licensing authority or other government agency.

(25) “Significant investigative information” means information, records, and documents received or generated by a state licensing authority pursuant to an investigation for which a determination has been made that there is probable cause to believe that the licensee has violated a statute or regulation that is considered more than a minor infraction for which the state licensing authority could pursue adverse action against the licensee.

(26) “State” means any state, commonwealth, district, or territory of the United States of America that regulates the practices of dentistry and dental hygiene.

(27) “State licensing authority” means an agency or other entity of a state that is responsible for the licensing and regulation of dentists or dental hygienists.

§ 1153. State participation in the Compact.

(a) To join this Compact and continue as a participating state in this Compact, a state must do all of the following:

(1) Enact a compact that is not materially different from the Model Compact as determined in accordance with Commission rules.

(2) Participate fully in the Commission’s data system.

(3) Have a mechanism in place for receiving and investigating complaints about the participating state’s licensees and license applicants.

(4) Notify the Commission, in compliance with the terms of this Compact and Commission rules, of any adverse action or the availability of significant investigative information regarding a licensee or licensed applicant.

(5) Fully implement a criminal background check requirement, within a time frame established by Commission rule, by receiving the results of a qualifying criminal background check.

(6) Comply with the Commission rules applicable to a participating state.

(7) Accept the National Board Examinations of the Joint Commission on National Dental Examinations or another examination accepted by Commission rule as a licensure examination.

(8) Accept for licensure that applicants for a dentist license graduate from a predoctoral dental education program accredited by the Commission on Dental Accreditation, or another accrediting agency recognized by the United State Department of Education for the accreditation of dentistry and dental hygiene education programs, leading to the Doctor of Dental Surgery (D.D.S.) or Doctor of Dental Medicine (D.M.D.) degree.

(9) Accept for licensure that applicants for a dental hygienist license graduate from a dental hygiene education program accredited by the Commission on Dental Accreditation or another accrediting agency recognized by the United States Department of Education for the accreditation of dentistry and dental hygiene education programs.

(10) Require for licensure that applicants successfully complete a clinical assessment.

(11) Have continuing professional development requirements as a condition for license renewal.

(12) Pay a participation fee to the Commission as established by Commission rule.

(b) Providing alternative pathways for an individual to obtain an unrestricted license does not disqualify a state from participating in this Compact.

(c) When conducting a criminal background check the state licensing authority shall for all of the following:

(1) Consider the criminal background check information in making a licensure decision.

(2) Maintain documentation of completion of the criminal background check and background check information to the extent allowed by state and federal law.

(3) Report to the Commission whether the state licensing authority has completed the criminal background check and whether the individual was granted or denied a license.

(d) A licensee of a participating state who has a qualifying license in the participating state and does not hold an encumbered license in any other participating state, must be issued a compact privilege in a remote state in accordance with the terms of this Compact and Commission rules. If a remote state has a jurisprudence requirement, a compact privilege may not be issued to the licensee unless the licensee has satisfied the jurisprudence requirement.

§ 1154. Compact privilege.

(a) To obtain and exercise the compact privilege under the terms and provisions of this Compact, the licensee shall do all of the following:

(1) Have a qualifying license as a dentist or dental hygienist in a participating state.

(2) Be eligible for a compact privilege in any remote state under subsections (d), (g), and (h) of this section.

(3) Submit to an application process whenever the licensee is seeking a compact privilege.

(4) Pay any applicable Commission and remote state fees for a compact privilege in the remote state.

(5) Meet any jurisprudence requirement established by a remote state in which the licensee is seeking a compact privilege.

(6) Have passed a National Board Examination of the Joint Commission on National Dental Examinations or another examination accepted by Commission rule.

(7) For a dentist, have graduated from a predoctoral dental education program accredited by the Commission on Dental Accreditation, or another accrediting agency recognized by the United States Department of Education for the accreditation of dentistry and dental hygiene education programs, leading to the Doctor of Dental Surgery (D.D.S.) or Doctor of Medicine (D.M.D.) degree.

(8) For a dental hygienist, have graduated from a dental hygiene education program accredited by the Commission on Dental Accreditation or another accrediting agency recognized by the United States Department of Education for the accreditation of dentistry and dental hygiene education programs.

(9) Have successfully completed a clinical assessment for licensure.

(10) Report to the Commission adverse action taken by any non-participating state when applying for compact privilege and, otherwise, within 30 days from the date the adverse action is taken.

(11) Report to the Commission when applying for a compact privilege the address of the licensee’s primary residence and immediately report to the Commission any change in address of the licensee’s primary residence.

(12) Consent to accept service of process by mail at the licensee’s primary residence on record with the Commission with respect to any action brought against the licensee by the Commission or a participating state, and consent to accept service of a subpoena by mail at the licensee’s primary residence on record with the Commission with respect to any action brought or investigation conducted by the Commission or a participating state.

(b) The license shall comply with the requirements of subsection (a) of this section to maintain the compact privilege in the remote state. If those requirements are met, the compact privilege continues as long as the licensee maintains a qualifying license in the remote state through which the licensee applied for the compact privilege and pays any applicable compact privilege renewal fees.

(c) A licensee providing dentistry or dental hygiene in a remote state under the compact privilege shall function within the scope of practice authorized by the remote state for a dentist or dental hygienist licensed in the remote state.

(d) A licensee providing dentistry or dental hygiene under a compact privilege in a remote state is subject to the remote state’s regulatory authority. A remote state may, in accordance with due process and the remote state’s laws, by adverse action, revoke or remove a licensee’s compact privilege in the remote state for a specific period of time and impose fines or take any other necessary actions to protect the health and safety of the remote state’s citizens. If a remote state imposes an adverse action against a compact privilege that limits the compact privilege, that adverse action applies to all compact privileges in all remote states. A licensee whose compact privilege in a remote state is removed for a specified period of time is not eligible for a compact privilege in any other remote state until the specific time for removal of the compact privilege has passed and all encumbrance requirements are satisfied.

(e) If a license in a participating state is an encumbered license, the licensee loses the compact privilege in a remote state and is not eligible for a compact privilege in any remote state until the license is no longer encumbered.

(f) Once an encumbered license in a participating state is restored to good standing, the licensee must meet the requirements of subsection (a) of this section to obtain a compact privilege in a remote state.

(g) If a licensee’s compact privilege in a remote state is removed by the remote state, the individual loses or is ineligible for the compact privilege in any remote state until all of the following occur:

(1) The specific period of time for which the compact privilege was removed has ended.

(2) All conditions for removal of the compact privilege have been satisfied.

(h) Once the requirements of subsection (g) of this section have been met, the licensee must meet the requirements in subsection (a) of this section to obtain a compact privilege in a remote state.

§ 1155. Active military member or their spouse.

An active military member or their spouse must not be required to pay for a compact privilege the fee otherwise charged by the Commission. If a remote state chooses to charge a fee for a compact privilege, it may choose to charge a reduced fee or no fee to an active military member or their spouse for a compact privilege.

§ 1156. Adverse actions.

(a) A participating state in which a licensee is licensed has exclusive authority to impose adverse action against the qualifying license issued by the participating state.

(b) A participating state may take adverse action based on the significant investigative information of a remote state, so long as the participating state follows the participating state’s own procedures for imposing adverse action.

(c) Nothing in this Compact overrides a participating state’s decision that participation in an alternative program may be used in lieu of adverse action and that such participation remains non-public if required by the participating state’s laws. Participating states must require licensees who enter any alternative program in lieu of discipline to agree not to practice under a compact privilege in any other participating state during the term of the alternative program without prior authorization from the other participating state.

(d) Any participating state in which a licensee is applying to practice or is practicing under a compact privilege may investigate actual or alleged violations of the statutes and regulations authorizing the practice of dentistry or dental hygiene in any other participating state in which the dentist or dental hygienist holds a license or compact privilege.

(e) A remote state has the authority to do all of the following:

(1) Take adverse actions under § 1154(d) of this title against a licensee’s compact privilege in the remote state.

(2) In furtherance of the remote state’s rights and responsibilities under this Compact and the Commission’s rules, issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses and the production of evidence. Subpoenas issued by a state licensing authority in a participating state for the attendance and testimony of witnesses or the production of evidence from another participating state must be enforced in the other participating state by any court of competent jurisdiction, according to the practice and procedure of the court applicable to subpoenas issued in proceedings pending before the court. The issuing authority shall pay any witness fees, travel expenses, mileage, and other fees required by the service statutes of the participating state where the witnesses or evidence are located.

(3) If otherwise permitted by state law, recover from the licensee the costs of investigations and disposition of cases resulting from any adverse action taken against the participating state’s licensee.

(f) Joint investigations.

(1) In addition to the authority granted to a participating state by the participating state’s dentist or dental hygienist licensure act or other applicable state law, a participating state may jointly investigate licensees with other participating states.

(2) Participating states shall share any significant investigative information, litigation, or compliance materials in furtherance of any joint or individual investigation initiated under this Compact.

(g) Authority to continue investigation.

(1) After a licensee’s compact privilege in a remote state is terminated, the remote state may continue an investigation of the licensee that began when the licensee had a compact privilege in the remote state.

(2) If the investigation yields what would be significant investigative information had the licensee continued to have a compact privilege in the remote state, the remote state shall report the presence of the information to the data system as required under § 1158(b)(6) of this title as if the information was significant investigative information.

§ 1157. Establishment and operation of the Commission.

(a) The participating states create and establish the Commission, a joint government agency whose membership consists of all participating states that have enacted this Compact. The Commission is an instrumentality of the participating states acting jointly and not an instrumentality of any one state. The Commission shall come into existence on or after the effective date of this Compact under § 1161(a) of this title.

(b) Participating, voting, and meetings.

(1) Each participating state has and is limited to 1 participating Commissioner selected by that participating state’s state licensing authority or, if the participating state has more than one state licensing authority, selected collectively by the state licensing authorities.

(2) The Commissioner must be a member or designee of the state licensing authority or state licensing authorities.

(3) The Commission may by rule or by bylaw establish a term of office for Commissioners and may by rule or bylaw establish term limits.

(4) The Commission may recommend to a state licensing authority or state licensing authorities, as applicable, removal or suspension of an individual as the participating state’s Commissioner.

(5) A participating state’s state licensing authority, or authorities, as applicable, shall fill any vacancy of the participating state’s Commissioner on the Commission within 60 days of the vacancy.

(6) Each Commissioner is entitled to one vote on all matters that are voted on by the Commission.

(7) The Commission shall meet at least once during each calendar year. Additional meetings may be held as set forth in the bylaws. The Commission may meet by telecommunication, video conference, or other similar electronic means.

(c) The Commission has all of the following powers:

(1) Establish the fiscal year of the Commission.

(2) Establish code of conduct and conflict of interest policies.

(3) Adopt rules and bylaws.

(4) Maintain the Commission’s financial records in accordance with the bylaws.

(5) Meet and take such actions as are consistent with the provisions of this Compact, the Commission’s rules, and the bylaws.

(6) Initiate and conclude legal proceedings or actions in the name of the Commission, provided that the standing of any state licensing authority to sue or be sued under applicable law is not affected.

(7) Maintain and certify records and information provided to a participating state as the authenticated business records of the Commission, and designate a person to do so on the Commission’s behalf.

(8) Purchase and maintain insurance and bonds.

(9) Borrow, accept, or contract for services of personnel, including employees of a participating state.

(10) Conduct an annual financial review.

(11) Hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of this Compact, and establish the Commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters.

(12) As set forth in the Commission rules, charge a fee to a licensee for the grant of a compact privilege in a remote state and, as may be established by Commission rule, charge the licensee a compact privilege renewal fee for each renewal period in which that licensee exercises or intends to exercise the compact privilege in the remote state. Nothing in this paragraph (c)(12) may be construed to prevent a remote state from charging a licensee a fee for a compact privilege or renewals of a compact privilege, or a fee for the jurisprudence requirement if the remote state imposes such a requirement for the grant of a compact privilege.

(13) Accept any and all appropriate gifts, donations, grants of money, other sources of revenue, equipment, supplies, materials, and services, and receive, utilize, and dispose of the same; provided that at all times the Commission shall avoid any appearance of impropriety or conflict of interest.

(14) Lease, purchase, retain, own, hold, improve, or use any property, real, personal, or mixed, or any undivided interest therein.

(15) Sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property real, personal, or mixed.

(16) Establish a budget and make expenditures.

(17) Borrow money.

(18) Appoint committees, including standing committees, which may be composed of members, state regulators, state legislators or their representatives, and consumer representatives, and such other interested persons as may be designated in this Compact and the bylaws.

(19) Provide and receive information from, and cooperate with, law enforcement agencies.

(20) Elect a Chair, Vice Chair, Secretary, and Treasurer and such other officers of the Commission as provided in the Commission’s bylaws.

(21) Establish and elect an Executive Board.

(22) Adopt and provide to the participating states an annual report.

(23) Determine whether a state’s enacted compact is materially different from the Model Compact language such that the state would not qualify for participation in this Compact.

(24) Perform such other functions as may be necessary or appropriate to achieve the purposes of this Compact.

(d) Meetings of the Commission.

(1) All meetings of the Commission that are not closed under this subsection must be open to the public. Notice of public meetings must be posted on the Commission’s website at least 30 days before the public meeting.

(2) Notwithstanding paragraph (d)(1) of this section, the Commission may convene an emergency public meeting by providing at least 24 hours prior notice on the Commission’s website, and any other means as provided in the Commission’s rules, for any of the reasons it may dispense with notice of proposed rulemaking under § 1159(

l

). The Commission’s legal counsel shall certify that one of the reasons justifying an emergency public meeting has been met.

(3) The notice of a Commission meeting must provide the time, date, and location of the meeting. If the meeting is to be held or accessible by telecommunication, video conference, or other electronic means, the notice must include the mechanism for access to the meeting through such means.

(4) The Commission may convene in a closed, non-public meeting for the Commission to receive legal advice or to discuss any of the following:

a. Non-compliance of a participating state with the participating state’s obligations under this Compact.

b. The employment, compensation, discipline, or other matters, practices, or procedures related to specific employees or other matters related to the Commission’s internal personnel practices and procedures.

c. Current or threatened discipline of a licensee or compact privilege holder by the Commission or by a participating state’s state licensing authority.

d. Current, threatened, or reasonably anticipated litigation.

e. Negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate.

f. Accusing any person of a crime or formally censuring any person.

g. Trade secrets or commercial or financial information that is privileged or confidential.

h. Information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy.

i. Investigative records compiled for law enforcement purposes.

j. Information related to any investigative reports prepared by or on behalf of or for use of the Commission or other committee charged with responsibility of investigation or determination of compliance issues under this Compact.

k. Legal advice.

l.

Matters specifically exempted from disclosure to the public by federal or participating state law.

m. Other matters as promulgated by the Commission by rule.

(5) If a meeting, or portion of a meeting, is closed, the presiding officer shall state that the meeting will be closed and reference each relevant exempting provision, and such reference must be recorded in the minutes.

(6) The Commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action must be identified in such minutes. All minutes and documents of a closed meeting must remain under seal, subject to release only by a majority vote of the Commission or order of a court of competent jurisdiction.

(e) Financing of the Commission.

(1) The Commission shall pay, or provide for the payment of, the reasonable expenses of the Commission establishment, organization, and ongoing activities.

(2) The Commission may accept any and all appropriate sources of revenue, donations, and grants of money, equipment, supplies, materials, and services.

(3) The Commission may levy on and collect an annual assessment from each participating state and impose fees on licensees of participating states when a compact privilege is granted, to cover the cost of the operations and activities of the Commission and the Commission’s staff, which must be in a total amount sufficient to cover the Commission’s annual budget as approved each fiscal year for which sufficient revenue is not provided by other sources. The aggregate annual assessment amount for participating states must be allocated based on a formula that the Commission promulgates by rule.

(4) The Commission may not incur obligations of any kind before securing the funds adequate to meet the obligation and the Commission may not pledge the credit of any participating state, except by and with the authority of the participating state.

(5) The Commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the Commission are subject to the financial review and accounting procedures established under the Commission’s bylaws. All receipts and disbursements of funds handled by the Commission are subject to an annual financial review by a certified or licensed public accountant, and the report of the financial review must be included in and become part of the annual report of the Commission.

(f) The Executive Board.

(1) The Executive Board has the power to act on behalf of the Commission according to the terms of this Compact. The powers, duties, and responsibilities of the Executive Board include all of the following:

a. Overseeing the day-to-day activities of the administration of this Compact including compliance with the provisions of this Compact and the Commission’s rules and bylaws.

b. Recommending to the Commission changes to the rules or bylaws, changes to this Compact, fees charged to participating states, fees charged to licensees, and other fees.

c. Ensuring Compact administration services are appropriately provided, including by contract.

d. Preparing and recommending the budget.

e. Maintaining financial records on behalf of the Commission.

f. Monitoring Compact compliance of participating states and providing compliance reports to the Commission.

g. Establishing additional committees as necessary.

h. Exercising the powers and duties of the Commission during the interim between Commission meetings, except for adopting or amending rules, adopting or amending bylaws, and exercising any other powers and duties expressly reserved to the Commission by rule or bylaw.

i. Other duties provided in the rules or bylaws of the Commission.

(2) The Executive Board is composed of up to 7 members as follows:

a. The Chair, Vice Chair, Secretary, and Treasurer of the Commission and any other members of the Commission who serve on the Executive Board are voting members of the Executive Board.

b. Other than the Chair, Vice Chair, Secretary, and Treasurer, the Commission may elect up to 3 voting members from the current membership of the Commission.

(3) The Commission may remove any member of the Executive Board as provided in the Commission’s bylaws.

(4) The Executive Board shall meet at least annually.

a. An Executive Board meeting at which the Board takes or intends to take formal action on a matter must be open to the public, except that the Executive Board may meet in a closed, non-public session of a public meeting when dealing with any of the matters under paragraph (d)(4) of this section.

b. The Executive Board shall give 5 business days’ notice of the Board’s public meetings, posted on the Board’s website and as the Board may otherwise determine to provide notice to persons with an interest in the public matters the Executive Board intends to address at those meetings.

(5) The Executive Board may hold an emergency meeting when acting for the Commission to do any of the following:

a. Meet an imminent threat to public health, safety, and welfare.

b. Prevent a loss of Commission or participating state funds.

c. Protect public health and safety.

(g) Qualified immunity, defense, and indemnification.

(1) The members, officers, executive director, employees, and representatives of the Commission are immune from suit and liability, both personally and in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error, or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities. Nothing in this paragraph (g)(1) may be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful or wanton misconduct of that person. The procurement of insurance of any type by the Commission does not in any way compromise or limit the immunity granted under this paragraph (g)(1).

(2) The Commission shall defend any member, officer, executive director, employee, and representative of the Commission in any civil action seeking to impose liability arising out of any actual alleged act, error, or omission that occurred within the scope of Commission employment, duties, or responsibilities, or as determined by the Commission that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of Commission employment, duties, or responsibilities if the actual or alleged act, error, or omission did not result from that person’s intentional or willful or wanton misconduct. Nothing in this paragraph (g)(2) may be construed to prohibit that person from retaining their own counsel at their own expense.

(3) Notwithstanding paragraph (g)(1) of this section, if any member, officer, executive director, employee, or representative of the Commission is held liable for the amount of any settlement or judgement arising out of any actual or alleged act, error, or omission that occurred within the scope of that individual’s employment, duties, or responsibilities for the Commission, or that the person to whom that individual is liable had a reasonable basis for believing occurred within the scope of the individual’s employment, duties, or responsibilities for the Commission, the Commission shall indemnify and hold harmless the individual if the actual or alleged act, error, or omission did not result from the intentional or willful or wanton misconduct of the individual.

(4) Nothing in this Compact may be construed as a limitation on the liability of any licensee for professional malpractice or misconduct, which is governed solely by any other applicable state laws.

(5) Nothing in this Compact may be interpreted to waive or otherwise abrogate a participating state’s state action immunity or state action affirmative defense with respect to antitrust claims under the Sherman Act, Clayton Act, or any other state or federal antitrust or anticompetitive law or regulation.

(6) Nothing in this Compact may be construed to be a waiver of sovereign immunity by the participating states or by the Commission.

§ 1158. Data system.

(a) The Commission shall provide for the development, maintenance, operation, and utilization of a coordinated database and reporting system containing licensure, adverse action, and the presence of significant investigative information on all licensees and applicants for a license in participating states.

(b) Notwithstanding any other provision of state law to the contrary, a participating state shall submit a uniform data set to the data system on all individuals to whom this Compact is applicable as required by the rules of the Commission, including all of the following:

(1) Identifying information.

(2) Licensure date.

(3) Adverse actions against a licensee, license applicant, or Compact privilege and information related thereto.

(4) Non-confidential information related to alternative program participation, the beginning and ending dates of the participation, and other information related to the participation.

(5) Any denial of an application for licensure, and the reason for the denial, excluding the reporting of any criminal history record information where prohibited by law.

(6) The presence of significant investigative information.

(7) Other information that may facilitate the administration of this Compact or the protection of the public, as determined by the rules of the Commission.

(c) The records and information provided to a participating state under this Compact or through the data system, when certified by the Commission or an agent thereof, constitutes the authenticated business records of the Commission, and are entitled to any associated hearsay exception in any relevant judicial, quasi-judicial, or administrative proceedings in a participating state.

(d) Significant investigative information pertaining to a licensee in any participating state is only to be available to other states.

(e) It is the responsibility of the participating states to monitor the database to determine whether adverse action has been taken against a licensee or license applicant. Adverse action information pertaining to a licensee or license applicant in any participating state is available to any other participating state.

(f) A participating state contributing information to the data system may designate information that may not be shared with the public without the express permission of the participating state.

(g) Any information submitted to the data system that is subsequently expunged under federal law or the laws of the participating state contributing the information must be removed from the data system.

§ 1159. Rulemaking.

(a) The Commission shall promulgate reasonable rules in order to effectively and efficiently implement and administer the purposes and provisions of this Compact. A Commission rule is invalid and has no force or effect only if a court of competent jurisdiction holds that the rule is invalid because the Commission exercised the Commission’s rulemaking authority in a manner that is beyond the scope and purposes of this Compact, or the powers granted under this Compact, or based on another applicable standard of review.

(b) The rules of the Commission have the force of the law in each participating state; however, if the rules of the Commission conflict with the laws of the participating state that establish the participating state’s scope of practice, as held by a court of competent jurisdiction, the rules of the Commission are effective in the participating state to the extent of the conflict.

(c) The Commission shall exercise the Commission’s rulemaking powers under the criteria set forth in this section and the rules adopted under this section. Rules become binding as of the date specified by the Commission for each rule.

(d) If a majority of the legislatures of the participating states reject a Commission rule or portion of a Commission rule by enactment of a statute or resolution in the same manner used to adopt this Compact within 4 years of the date of adoption of the rule, then the rule has no further force and effect in any participating state or to any state applying to participate in this Compact.

(e) Rules must be adopted at a regular or special meeting of the Commission.

(f) Before adoption of a proposed rule by the Commission, and at least 30 days in advance of the meeting at which the Commission will hold a public hearing on the proposed rule, the Commission shall provide a notice of proposed rulemaking by all of the following means:

(1) On the website of the Commission or other publicly accessible platform.

(2) To persons who have requested notice of the Commission’s notices of proposed rulemaking.

(3) In such other ways as the Commission may be rule specify.

(h) The notice of proposed rulemaking must include all of the following:

(1) The time, date, and location of the public hearing at which the Commission will hear public comments on the proposed rule and, if different, the time, date, and location of the meeting where the Commission will consider and vote on the proposed rule.

(2) If the hearing is held via telecommunication, video conference, or other electronic means, the Commission must include the mechanism for access to the hearing in the notice of proposed rulemaking.

(3) The text of the proposed rule and reason for the rule.

(4) A request for comments on the proposed rule from any interested person.

(5) The manner in which interested persons may submit written comments.

(i) A hearing on a proposed rule must be recorded. A copy of the recording and all written comments and documents received by the Commission in response to the proposed rule must be available to the public.

(j) Nothing in this section may be construed as requiring a separate hearing on each Commission rule. Rules may be grouped for the convenience of the Commission at hearings required by this section.

(k) The Commission shall, by majority vote of all Commissioners, take final action on the proposed rule based on the rulemaking record.

(1) The Commission may adopt changes to the proposed rule provided the changes do not enlarge the original purpose of the proposed rule.

(2) The Commission shall provide an explanation of the reasons for substantive changes made to the proposed rule as well as reasons for substantive changes not made that were recommended by commenters.

(3) The Commission shall determine a reasonable effective date for the rule. Except for an emergency as provided in subsection (

l

) of this section, the effective date of the rule may not be sooner than 30 days after the Commission issues the notice that it adopted or amended the rule.

(

l

) On determination that an emergency exists, the Commission may consider and adopt an emergency rule with 24 hours’ notice, with opportunity to comment, if the usual rulemaking procedures provided in this Compact and in this section are retroactively applied to the rule as soon as reasonably possible, but not later than 90 days after the effective date of the rule. For the purposes of this subsection, an emergency rule is one that must be adopted immediately to do any of the following:

(1) Meet an imminent threat to public health, safety, or welfare.

(2) Prevent a loss of Commission or participating state funds.

(3) Meet a deadline for the promulgation of a rule that is established by federal law or rule.

(4) Protect public health and safety.

(m) The Commission or an authorized committee of the Commission may direct revisions to a previously adopted rule for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of a revision under this subsection must be posted on the website of the Commission. The revision may be subject to challenge by any person for a period of 30 days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge must be made in writing and delivered to the Commission before the end of the notice period. If no challenge is made, the revision takes effect without further action. If the revision is challenged, the revision may not take effect without the approval of the Commission.

(n) A participating state’s rulemaking requirements do not apply under this Compact.

§ 1160. Oversight, dispute resolution, and enforcement.

(a). Oversight.

(1) The executive and judicial branches of State government in each participating state shall enforce this Compact and take all actions necessary and appropriate to implement the Compact.

(2) Venue is proper and judicial proceedings by or against the Commission may be brought solely and exclusively in a court of competent jurisdiction where the principal office of the Commission is located. The Commission may waive venue and jurisdictional defenses to the extent the Commission adopts or consents to participate in alternative dispute resolution proceedings. Nothing in this subsection affects or limits the selection or propriety of venue in any action against a licensee for professional malpractice, misconduct, or any such similar matter.

(3) The Commission is entitled to receive service of process in any proceeding regarding the enforcement or interpretation of this Compact or a Commission rule and has standing to intervene in such a proceeding for all purposes. Failure to provide the Commission service of process renders a judgement or order void as to the Commission, this Compact, or promulgated rules.

(b) Default, technical assistance, and termination.

(1) If the Commission determines that a participating state has defaulted in the performance of the Commission’s obligations or responsibilities under this Compact or the promulgated rules, the Commission shall provide written notice to the participating state. The notice of default must describe the default, the proposed means of curing the default, and any other action that the Commission may take, and must offer training and specific technical assistance regarding the default.

(2) The Commission shall provide a copy of the notice of default to the other participating states.

(c) If a participating state that is in default fails to cure the default, the participating state may be terminated from this Compact on an affirmative vote of a majority of the Commissioners, and all rights, privileges, and benefits conferred on the participating state by this Compact may be terminated on the effective date of termination. A cure of the default does not relieve the participating state of obligations or liabilities incurred during the period of default.

(d) Termination of participation in this Compact may be imposed only after all other means of securing compliance have been exhausted. The Commission shall give notice of intent to suspend or terminate to the governor, the majority and minority leaders of the participating state’s legislature, the participating state’s state licensing authority or authorities, as applicable, and each of the other participating states’ state licensing authority or authorities, as applicable.

(e) A participating state that has been terminated is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.

(f) On the termination of a participating state’s participation in this Compact, the participating state shall immediately provide notice to all licensees of the participating state, including licensees of other participating states issued a compact privilege to practice within the terminating participating state. The terminating participating state shall continue to recognize all compact privileges then in effect in the terminating participating state for a minimum of 180 days after the date of the notice of termination.

(g) The Commission does not bear any costs related to a participating state that is found to be in default or that has been terminated from this Compact, unless agreed to in writing between the Commission and the participating state.

(h) A participating state that is found to be in default may appeal the action of the Commission by petitioning the United States District Court for the District of Columbia or the federal district where the Commission has its principal offices. The prevailing party must be awarded all costs of such litigation, including reasonable attorney fees.

(i) Dispute resolution.

(1) On request by a participating state, the Commission shall attempt to resolve disputes related to this Compact that arise among participating states, and between participating states and non-participating states.

(2) The Commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.

(j) Enforcement.

(1) The Commission, in the reasonable exercise of the Commission’s discretion, shall enforce the provisions of this Compact and the Commission’s rules.

(2) By majority vote, the Commission may initiate legal action against a participating state in default in the Unites States District Court for the District of Columbia or the federal district where the Commission has its principal offices to enforce compliance with the provisions of this Compact and the Commission’s promulgated rules. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including reasonable attorney’s fees. The remedies in this paragraph (j)(2) are not the exclusive remedies of the Commission. The Commission may pursue any other remedies available under federal or the defaulting participating state’s law.

(3) A participating state may initiate legal action against the Commission in the United States District Court for the District of Columbia or the federal district where the Commission has its principal offices to enforce compliance with the provisions of this Compact and this Compact’s promulgated rules. The relief sought may include both injunctive relief and damages. If judicial enforcement is necessary, the prevailing party must be awarded all costs of such litigation, including attorney’s fees.

(4) An individual or entity, other than a participating state, may not enforce this Compact against the Commission.

§ 1161. Effective date, withdrawal, and amendment.

(a) This Compact takes effect on the date on which this Compact is enacted into law in the seventh participating state.

(1) On or after the effective date of this Compact, the Commission shall convene and review the enactment of each of the states that enacted the Compact before the Commission convening (“charter participating states”) to determine if the law enacted by each charter participating state is materially different than the Model Compact.

a. A charter participating state whose enactment is found to be materially different from the Model Compact is entitled to the default process set forth in § 1160 of this title.

b. If any participating state is later found to be in default, is terminated, or withdraws from this Compact, the Commission remains in existence and the Compact remains in effect even if the number of participating states is less than 7.

(2) A participating state enacting this Compact after the charter participating states is subject to the process under § 1157(c)(23) to determine if the participating state’s enactment is materially different from the Model Compact and whether the participating state qualifies for participation in the Compact.

(3) All actions taken for the benefit of the Commission or in furtherance of the purposes of the administration of this Compact before the effective date of this Compact or the Commission coming into existence are considered to be actions of the Commission unless specifically repudiated by the Commission.

(4) Any state that joins this Compact subsequent to the Commission’s initial adoption of the rules and bylaws shall be subject to the Commission’s rules and bylaws as they exist on the date on which this Compact becomes law in that state. Any rule that has been previously adopted by the Commission shall have the full force and effect of law on the day this Compact becomes law in that state.

(b) A participating state may withdraw from this Compact by enacting a law repealing the participating state’s enactment of this Compact.

(1) A participating state’s withdrawal does not take effect until 180 days after enactment of the law repealing the participating state’s enactment of this Compact.

(2) A participating state’s withdrawal does not affect the continuing requirement of the participating state’s state licensing authority or authorities to comply with the investigative and adverse action reporting requirements of this Compact before the effective date of withdrawal.

(3) On the enactment of a law withdrawing from this Compact, the participating state shall immediately provide notice of the withdrawal to all licensees within the participating state. Notwithstanding any subsequent law to the contrary, a withdrawing participating state shall continue to recognize all compact privileges to practice within the participating state granted under this Compact for a minimum of 180 days after the date of the notice of withdrawal.

(c) Nothing contained in this Compact may be construed to invalidate or prevent any licensure agreement or other cooperative arrangement between a participating state and a non-participating state that does not conflict with this Compact.

(d) This Compact may be amended by the participating states. An amendment to this Compact does not become effective and binding on any participating state until the amendment is enacted into the laws of all participating states.

§ 1162. Construction and severability.

(a) This Compact and the Commission’s rulemaking authority must be liberally construed so as to effectuate the purposes, and the implementation and administration of this Compact. Provisions of this Compact expressly authorizing or requiring the promulgation of rules may not be construed to limit the Commission’s rulemaking authority solely for those purposes.

(b) The provisions of this Compact are severable and if any phrase, clause, sentence, or provision of this Compact is held by a court of competent jurisdiction to be contrary to the constitution of any participating state, a state seeking participation in this Compact, or of the United States, if the applicability to any government, agency, person, or circumstance is held to be unconstitutional by a court of competent jurisdiction, the validity of the remainder of this Compact and the applicability of this Compact to any other government, agency, person, or circumstance is not affected.

(c) Notwithstanding subsection (b) of this section, the Commission may deny a state’s participation in the Compact or, under § 1160(b) of this title, terminate a participating state’s participation in this Compact, if the Commission determines that a constitutional requirement of a participating state is a material departure from this Compact. Otherwise, if this Compact is held to be contrary to the constitution of any participating state, this Compact remains in full force and effect as to the remaining participating states and in full force and effect as to the participating state affected as to all severable matters.

§ 1163. Consistent effect and conflict with other state laws.

(a) Nothing in this Compact prevents or inhibits the enforcement of any other law of a participating state that is not inconsistent with this Compact.

(b) Any laws, statutes, regulations, or other legal requirements in a participating state in conflict with this Compact are superseded to the extent of the conflict.

(c) All permissible agreements between the Commission and the participating states are binding in accordance with the terms of the agreements.

SYNOPSIS

This Act adopts the Dentist and Dental Hygienist Compact.

Author: Senator Pinkney