Enacting the occupational therapy licensure compact, respiratory care interstate compact, esthetics licensure compact and athletic trainer licensure compact to provide interstate practice privileges.

HOUSE BILL No. 2533
AN A CT concerning health professions and practices; relating to occupational therapy,
respiratory therapy, esthetics and athletic training; enacting the occupational therapy
licensure compact, respiratory care interstate compact, esthetics licensure compact
and athletic trainer licensure compact to provide interstate practice privileges.
Be it enacted by the Legislature of the State of Kansas:
Section 1. This section shall be known and may be cited as the
occupational therapy licensure compact.
ARTICLE 1 – PURPOSE
(a) The purpose of this compact is to facilitate interstate practice
of occupational therapy with the goal of improving public access to
occupational therapy services. The practice of occupational therapy
occurs in the state where the patient or client is located at the time of
the occupational therapy encounter. The compact preserves the
regulatory authority of states to protect public health and safety through
the current system of state licensure.
(b) This compact is designed to achieve the following objectives:
(1) Increase public access to occupational therapy services by
providing for the mutual recognition of other member state licenses;
(2) enhance the states' ability to protect the public's health and
safety;
(3) encourage the cooperation of member states in regulating
multi-state occupational therapy practice;
(4) support spouses of relocating military members;
(5) enhance the exchange of licensure, investigative and
disciplinary information between member states;
(6) allow a remote state to hold a provider of services with a
compact privilege in that state that is accountable to that state's practice
standards; and
(7) facilitate the use of telehealth technology in order to increase
access to occupational therapy services.
ARTICLE 2 – DEFINITIONS
As used in this compact, and except as otherwise provided, the
following definitions shall apply:
(a) "Active duty military" means full-time duty status in the active
uniformed service of the United States, including members of the
national guard and reserve on active duty orders pursuant to 10 U.S.C.
chapter 1209 and 10 U.S.C. chapter 1211.
(b) "Adverse action" means any administrative, civil, equitable or
criminal action permitted by a state's laws that is imposed by a
licensing board or other authority against an occupational therapist or
occupational therapy assistant, including actions against an individual's
license or compact privilege such as censure, revocation, suspension,
probation, monitoring of the licensee or restriction on the licensee's
practice.
(c) "Alternative program" means a non-disciplinary monitoring
process approved by an occupational therapy licensing board.
(d) "Compact privilege" means the authorization, equivalent to a
license, granted by a remote state to allow a licensee from another
member state to practice as an occupational therapist or an occupational
therapy assistant in the remote state under its laws and rules. The
practice of occupational therapy occurs in the member state where the
patient or client is located at the time of the occupational therapy
encounter.
(e) "Continuing competence or education" means a requirement,
as a condition of license renewal, to provide evidence of participation
in or completion of, educational and professional activities relevant to
practice or area of work.
(f) "Current significant investigative information" means
investigative information that a licensing board, after an inquiry or
investigation that includes notification and an opportunity for the
HOUSE BILL No. 2533—page 2
occupational therapist or occupational therapy assistant to respond, if
required by state law, has reason to believe is not groundless and, if
proved true, would indicate more than a minor infraction.
(g) "Data system" means a repository of information concerning
licensees, including, but not limited to, license status, investigative
information, compact privileges and adverse actions.
(h) "Encumbered license" means a license in which an adverse
action restricts the practice of occupational therapy by the licensee or
such adverse action has been reported to the national practitioner data
bank (NPDB).
(i) "Executive committee" means a group of directors elected or
appointed to act on behalf of and within the powers granted to them by
the commission.
(j) "Home state" means the member state that is the licensee's
primary state of residence.
(k) "Impaired practitioner" means individuals whose professional
practice is adversely affected by substance abuse, addiction or other
health-related conditions.
(l) "Investigative information" means information, records or
documents received or generated by an occupational therapy licensing
board pursuant to an investigation.
(m) "Jurisprudence requirement" means the assessment of an
individual's knowledge of the laws and rules governing the practice of
occupational therapy in a state.
(n) "Licensee" means an individual who currently holds an
authorization from the state to practice as an occupational therapist or
as an occupational therapy assistant.
(o) "Member state" means a state that has enacted the compact.
(p) "Occupational therapist" means an individual who is licensed
by a state to practice occupational therapy.
(q) "Occupational therapy assistant" means an individual who is
licensed by a state to assist in the practice of occupational therapy.
(r) "Occupational therapy," "occupational therapy practice" and
the "practice of occupational therapy" mean the care and services
provided by an occupational therapist or an occupational therapy
assistant as set forth in the member state's statutes and regulations.
(s) "Occupational therapy compact commission" or "commission"
means the national administrative body whose membership consists of
all states that have enacted the compact.
(t) "Occupational therapy licensing board" or "licensing board"
means the agency of a state that is authorized to license and regulate
occupational therapists and occupational therapy assistants.
(u) "Primary state of residence" means the state, also known as the
home state, where an occupational therapist or occupational therapy
assistant who is not active-duty military declares a primary residence
for legal purposes as verified by driver's license, federal income tax
return, lease, deed, mortgage, voter registration or other verifying
documentation as further defined by commission rules.
(v) "Remote state" means a member state other than the home
state where a licensee is exercising or seeking to exercise the compact
privilege.
(w) "Rule" means a regulation promulgated by the commission
that has the force of law.
(x) "State" means any state, commonwealth, district or territory of
the United States that regulates the practice of occupational therapy.
(y) "Single-state license" means an occupational therapist or
occupational therapy assistant license issued by a member state that
authorizes practice only within the issuing state and does not include a
compact privilege in any other member state.
(z) "Telehealth" means the application of telecommunication
technology to deliver occupational therapy services for assessment,
intervention or consultation.
HOUSE BILL No. 2533—page 3
ARTICLE 3 – STATE PARTICIPATION IN THE
COMPACT
(a) To participate in the compact, a member state shall:
(1) License occupational therapists and occupational therapy
assistants;
(2) participate fully in the commission's data system, including,
but not limited to, using the commission's unique identifier as defined
in rules of the commission;
(3) have a mechanism in place for receiving and investigating
complaints concerning licensees;
(4) notify the commission, in compliance with the terms of the
compact and rules, of any adverse action or the availability of
investigative information regarding a licensee;
(5) implement or utilize procedures for considering the criminal
history records of applicants for an initial compact privilege. These
procedures shall include the submission of fingerprints or other
biometric-based information by applicants for the purpose of obtaining
an applicant's criminal history record information from the federal
bureau of investigation and the agency responsible for retaining that
state's criminal records;
(A) A member state shall, within a time frame established by the
commission, require a criminal background check for a licensee
seeking or applying for a compact privilege whose primary state of
residence is in that member state, by receiving the results of the federal
bureau of investigation criminal record search and shall use the results
in making licensure decisions.
(B) Communication between a member state, the commission and
among member states regarding the verification of eligibility for
licensure through the compact shall not include any information
received from the federal bureau of investigation relating to a federal
criminal records check performed by a member state under public law
92-544;
(6) comply with the rules of the commission;
(7) utilize only a recognized national examination as a
requirement for licensure pursuant to the rules of the commission; and
(8) have continuing competence or education requirements as a
condition for license renewal.
(b) A member state shall grant the compact privilege to a licensee
holding a valid unencumbered license in another member state in
accordance with the terms of the compact and rules.
(c) Member states may charge a fee for granting the compact
privilege.
(d) A member state shall provide for the state's delegate to attend
all occupational therapy compact commission meetings.
(e) Individuals not residing in a member state shall continue to be
able to apply for a member state's single-state license as provided under
the laws of each member state. However, the single-state license
granted to these individuals shall not be recognized as granting the
compact privilege in any other member state.
(f) Nothing in this compact shall affect the requirements
established by a member state for the issuance of a single-state license.
ARTICLE 4 – COMPACT PRIVILEGE
(a) To exercise the compact privilege under the terms and
provisions of the compact, the licensee shall:
(1) Hold a license in the home state;
(2) have a valid United States social security number or national
practitioner identification number;
(3) have no encumbrance on any state license;
(4) be eligible for a compact privilege in any member state in
accordance with article 4(d), (f), (g) and (h);
HOUSE BILL No. 2533—page 4
(5) have paid all fines and completed all requirements resulting
from any adverse action against any license or compact privilege and
two years have elapsed from the date of such completion;
(6) notify the commission that the licensee is seeking the compact
privilege within a remote state;
(7) pay any applicable fees, including any state fee, for the
compact privilege;
(8) complete a criminal background check in accordance with
article 3(a)(5), for which the licensee shall be responsible for the
payment of any fee associated with the completion of a criminal
background check;
(9) meet any jurisprudence requirements established by the remote
state where the licensee is seeking a compact privilege; and
(10) report to the commission adverse action taken by any
nonmember state within 30 days from the date the adverse action is
taken.
(b) The compact privilege is valid until the expiration date of the
home state license. The licensee shall comply with the requirements of
article 4(a) in order to maintain the compact privilege in the remote
state.
(c) A licensee providing occupational therapy in a remote state
under the compact privilege shall function within the laws and
regulations of the remote state.
(d) Occupational therapy assistants practicing in a remote state
shall be supervised by an occupational therapist licensed or holding a
compact privilege in that remote state.
(e) A licensee providing occupational therapy in a remote state
shall be subject to that state's regulatory authority. A remote state may,
in accordance with due process and that state's laws, remove a
licensee's compact privilege in the remote state for a specific period of
time, impose fines or take any other necessary actions to protect the
health and safety of its citizens. The licensee may be ineligible for the
compact privilege in any state until the specific time for removal has
passed and all fines have been paid.
(f) If a home state license is encumbered, the licensee shall lose
the compact privilege in any remote state until the following occur:
(1) The home state license is no longer encumbered; and
(2) two years have elapsed from the date that the home state
license is no longer encumbered in accordance with article 4(f)(1).
(g) Once an encumbered license in the home state is restored to
good standing, the licensee shall meet the requirements of article 4(a)
to obtain a compact privilege in any remote state.
(h) If a licensee's compact privilege in any remote state is
removed, the individual may lose the compact privilege in any other
remote state until the following occur:
(1) The specific period of time when the compact privilege was
removed has ended;
(2) all fines have been paid and all conditions have been met;
(3) two years have elapsed from the date of completing
requirements for paragraphs (1) and (2);
(4) the compact privileges are reinstated by the commission; and
(5) the compact data system is updated to reflect reinstatement.
(i) If a licensee's compact privilege in any remote state is removed
due to an erroneous charge, privileges shall be restored through the
compact data system.
(j) Once the requirements of article 4(h) have been met, the
licensee shall meet the requirements in article 4(a) to obtain a compact
privilege in a remote state.
ARTICLE 5 – OBTAINING A NEW HOME STATE
LICENSE BY VIRTUE OF COMPACT PRIVILEGE
(a) An occupational therapist or occupational therapy assistant
may hold a home state license that allows for compact privileges in
HOUSE BILL No. 2533—page 5
member states in only one member state at a time.
(b) If an occupational therapist or occupational therapy assistant
changes primary state of residence by moving between two member
states:
(1) The occupational therapist or occupational therapy assistant
shall file an application for obtaining a new home state license by
virtue of a compact privilege, pay all applicable fees and notify the
current and new home state in accordance with applicable rules adopted
by the commission;
(2) upon receipt of an application for obtaining a new home state
license by virtue of compact privilege, the new home state shall verify
that the occupational therapist or occupational therapy assistant meets
the pertinent criteria outlined in article 4 via the data system without
need for primary source verification, except for:
(A) A federal bureau of investigation fingerprint-based criminal
background check if not previously performed or updated pursuant to
applicable rules adopted by the commission in accordance with public
law 92-544; and
(B) other criminal background check as required by the new home
state;
(3) the occupational therapist or occupational therapy assistant
shall submit to any requisite jurisprudence requirements of the new
home state;
(4) the former home state shall convert the former home state
license into a compact privilege once the new home state has activated
the new home state license in accordance with applicable rules adopted
by the commission;
(5) notwithstanding any other provision of this compact, if the
occupational therapist or occupational therapy assistant cannot meet the
criteria in article 4, the new home state shall apply its requirements for
issuing a new single-state license; and
(6) the occupational therapist or the occupational therapy assistant
shall pay all applicable fees to the new home state to be issued a new
home state license.
(c) If an occupational therapist or occupational therapy assistant
changes primary state of residence by moving from a member state to a
nonmember state or from a nonmember state to a member state, the
state criteria shall apply for the issuance of a single-state license in the
new state.
(d) Nothing in this compact shall interfere with a licensee's ability
to hold a single-state license in multiple states, except that, for the
purposes of this compact, a licensee shall have only one home state
license.
(e) Nothing in this compact shall affect the requirements
established by a member state for the issuance of a single-state license.
ARTICLE 6 – ACTIVE-DUTY MILITARY
PERSONNEL OR THEIR SPOUSES
Active-duty military personnel or their spouse shall designate a
home state where the individual has a current license in good standing.
The individual may retain the home state designation during the period
the service member is on active duty. Subsequent to designating a home
state, the individual shall only change their home state through
application for licensure in the new state or through the process
described in article 5.
ARTICLE 7 – ADVERSE ACTIONS
(a) A home state shall have exclusive power to impose adverse
action against an occupational therapist's or occupational therapy
assistant's license issued by the home state.
(b) In addition to the other powers conferred by state law, a remote
state shall have the authority, in accordance with existing state due
HOUSE BILL No. 2533—page 6
process law, to:
(1) Take adverse action against an occupational therapist's or
occupational therapy assistant's compact privilege within that member
state; and
(2) issue subpoenas for both hearings and investigations that
require the attendance and testimony of witnesses as well as the
production of evidence. Subpoenas issued by a licensing board in a
member state for the attendance and testimony of witnesses or the
production of evidence from another member state shall be enforced in
the latter state by any court of competent jurisdiction, according to the
practice and procedure of that court applicable to subpoenas issued in
proceedings pending before it. The issuing authority shall pay any
witness fees, travel expenses, mileage and other fees required by the
service statutes of the state where the witnesses or evidence are located.
(c) For purposes of taking adverse action, the home state shall
give the same priority and effect to reported conduct received from a
member state as it would if the conduct had occurred within the home
state. In so doing, the home state shall apply its own state laws to
determine appropriate action.
(d) The home state shall complete any pending investigations of
an occupational therapist or occupational therapy assistant who changes
primary state of residence during the course of the investigations. The
home state, where the investigations were initiated, shall also have the
authority to take appropriate action and shall promptly report the
conclusions of the investigations to the occupational therapy compact
commission data system. The occupational therapist compact
commission data system administrator shall promptly notify the new
home state of any adverse actions.
(e) A member state, if otherwise permitted by state law, may
recover from the affected occupational therapist or occupational
therapy assistant the costs of investigations and disposition of cases
resulting from any adverse action taken against that occupational
therapist or occupational therapy assistant.
(f) A member state may take adverse action based on the factual
findings of the remote state if the member state follows its own
procedures for taking the adverse action.
(g) Joint investigations:
(1) In addition to the authority granted to a member state by its
respective state occupational therapy laws and regulations or other
applicable state law, any member state may participate with other
member states in joint investigations of licensees.
(2) Member states shall share any investigative, litigation or
compliance materials in furtherance of any joint or individual
investigation initiated under the compact.
(h) If an adverse action is taken by the home state against an
occupational therapist's or occupational therapy assistant's license, the
occupational therapist's or occupational therapy assistant's compact
privilege in all other member states shall be deactivated until all
encumbrances have been removed from the state license. All home state
disciplinary orders that impose adverse action against an occupational
therapist's or occupational therapy assistant's license shall include a
statement that the occupational therapist's or occupational therapy
assistant's compact privilege is deactivated in all member states during
the pendency of the order.
(i) If a member state takes adverse action, it shall promptly notify
the administrator of the data system. The administrator of the data
system shall promptly notify the home state of any adverse actions by
remote states.
(j) Nothing in this compact shall override a member state's
decision that participation in an alternative program may be used in lieu
of adverse action.
HOUSE BILL No. 2533—page 7
ARTICLE 8 – ESTABLISHMENT OF THE
OCCUPATIONAL THERAPY COMPACT COMMISSION
(a) The compact member states hereby create and establish a joint
public agency known as the occupational therapy compact commission.
(1) The commission is an instrumentality of the compact states.
(2) Venue is proper and judicial proceedings by or against the
commission shall 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 it adopts or consents to participate in alternative dispute
resolution proceedings.
(3) Nothing in this compact shall be construed to be a waiver of
sovereign immunity.
(b) Membership, voting and meetings:
(1) Each member state shall have and be limited to one delegate
selected by that member state's licensing board.
(2) The delegate shall be either:
(A) A current member of the licensing board who is an
occupational therapist, occupational therapy assistant or public
member; or
(B) an administrator of the licensing board.
(3) Any delegate may be removed or suspended from office as
provided by the law of the state where the delegate is appointed.
(4) The member state board shall fill any vacancy occurring in the
commission within 90 days.
(5) Each delegate shall be entitled to one vote with regard to the
promulgation of rules and creation of bylaws and shall otherwise have
an opportunity to participate in the business and affairs of the
commission. A delegate shall vote in person or by such other means as
provided in the bylaws. The bylaws may provide for delegates'
participation in meetings by telephone or other means of
communication.
(6) The commission shall meet at least once during each calendar
year. Additional meetings shall be held as set forth in the bylaws.
(7) The commission shall establish by rule a term of office for the
executive committee delegates.
(c) The commission shall have the following powers and duties:
(1) Establish a code of ethics for the commission;
(2) establish the fiscal year of the commission;
(3) establish bylaws;
(4) maintain its financial records in accordance with the bylaws;
(5) meet and take such actions as are consistent with the
provisions of this compact and the bylaws;
(6) promulgate uniform rules to facilitate and coordinate
implementation and administration of this compact. The rules shall
have the force and effect of law and shall be binding in all member
states;
(7) bring and prosecute legal proceedings or actions in the name of
the commission, except that the standing of any state occupational
therapy licensing board to sue or be sued under applicable law shall not
be affected;
(8) purchase and maintain insurance and bonds;
(9) borrow, accept or contract for services of personnel, including,
but not limited to, employees of a member state;
(10) hire employees, elect or appoint officers, fix compensation,
define duties, grant such individuals appropriate authority to carry out
the purposes of the compact and establish the commission's personnel
policies and programs relating to conflicts of interest, qualifications of
personnel and other related personnel matters;
(11) accept any and all appropriate donations and grants of money,
equipment, supplies, materials and services and receive, utilize and
dispose of the same except that at all times the commission shall avoid
HOUSE BILL No. 2533—page 8
any appearance of impropriety or conflict of interest;
(12) lease, purchase, accept appropriate gifts or donations of, or
otherwise own, hold, improve or use any property, real, personal or
mixed except that at all times the commission shall avoid any
appearance of impropriety;
(13) sell, convey, mortgage, pledge, lease, exchange, abandon or
otherwise dispose of any property, real, personal or mixed;
(14) establish a budget and make expenditures;
(15) borrow money;
(16) appoint committees, including standing committees
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;
(17) provide and receive information from and cooperate with,
law enforcement agencies;
(18) establish and elect an executive committee; and
(19) perform such other functions as may be necessary or
appropriate to achieve the purposes of this compact, consistent with the
state regulation of occupational therapy licensure and practice.
(d) The executive committee:
(1) The executive committee shall have the power to act on behalf
of the commission according to the terms of this compact.
(2) The executive committee shall be composed of nine members,
as follows:
(A) Seven voting members who are elected by the commission
from the current membership of the commission;
(B) one ex officio, nonvoting member from a recognized national
occupational therapy professional association; and
(C) one ex officio, nonvoting member from a recognized national
occupational therapy certification organization.
(3) The ex officio members shall be selected by their respective
organizations.
(4) The commission may remove any member of the executive
committee as provided in bylaws.
(5) The executive committee shall meet at least annually.
(6) The executive committee shall have the following duties and
responsibilities:
(A) Recommend to the entire commission changes to the rules or
bylaws, changes to this compact legislation, fees paid by compact
member states such as annual dues and any commission compact fee
charged to licensees for the compact privilege;
(B) ensure that compact administration services are appropriately
provided, contractual or otherwise;
(C) prepare and recommend the budget;
(D) maintain financial records on behalf of the commission;
(E) monitor compact compliance of member states and provide
compliance reports to the commission;
(F) establish additional committees as necessary; and
(G) perform other duties as provided in rules or bylaws.
(e) Meetings of the commission:
(1) All meetings shall be open to the public, and public notice of
meetings shall be given in the same manner as required under the
rulemaking provisions in article 10.
(2) The commission or the executive committee or other
committees of the commission may convene in a closed, nonpublic
meeting if the commission or executive committee or other committees
of the commission must discuss:
(A) Noncompliance of a member state with its obligations under
the 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, threatened or reasonably anticipated litigation;
(D) negotiation of contracts for the purchase, lease or sale of
HOUSE BILL No. 2533—page 9
goods, services or real estate;
(E) accusing any person of a crime or formally censuring any
person;
(F) disclosure of trade secrets or commercial or financial
information that is privileged or confidential;
(G) disclosure of information of a personal nature where
disclosure would constitute a clearly unwarranted invasion of personal
privacy;
(H) disclosure of investigative records compiled for law
enforcement purposes;
(I) disclosure of information related to any investigative reports
prepared by or on behalf of or for use of the commission or other
committee charged with the responsibility of investigation or
determination of compliance issues pursuant to the compact; or
(J) matters specifically exempted from disclosure by federal or
member state statute.
(3) If a meeting or portion of a meeting is closed pursuant to this
provision, the commission's legal counsel or designee shall certify that
the meeting may be closed and shall reference each relevant exempting
provision.
(4) 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 therefor, including a
description of the views expressed. All documents considered in
connection with an action shall be identified in such minutes. All
minutes and documents of a closed meeting shall remain under seal,
subject to release by a majority vote of the commission or order of a
court of competent jurisdiction.
(f) Financing of the commission:
(1) The commission shall pay or provide for the payment of the
reasonable expenses of its establishment, organization and ongoing
activities.
(2) The commission may accept any and all appropriate revenue
sources, donations and grants of money, equipment, supplies, materials
and services.
(3) The commission may levy on and collect an annual assessment
from each member state or impose fees on other parties to cover the
cost of the operations and activities of the commission and its staff that
shall be in a total amount sufficient to cover its annual budget as
approved by the commission each year for which revenue is not
provided by other sources. The aggregate annual assessment amount
shall be allocated based upon a formula to be determined by the
commission, which shall promulgate a rule binding upon all member
states.
(4) The commission shall not incur obligations of any kind prior to
securing the funds adequate to meet the same nor shall the commission
pledge the credit of any of the member states except by and with the
authority of the member state.
(5) The commission shall keep accurate accounts of all receipts
and disbursements. The receipts and disbursements of the commission
shall be subject to the audit and accounting procedures established
under its bylaws. All receipts and disbursements of funds handled by
the commission shall be audited yearly by a certified or licensed public
accountant, and the report of the audit shall be included in and become
part of the annual report of the commission.
(g) Qualified immunity, defense and indemnification:
(1) The members, officers, executive director, employees and
representatives of the commission shall be immune from suit and
liability, either personally or 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, except that nothing in this
HOUSE BILL No. 2533—page 10
paragraph shall 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.
(2) The commission shall defend any member, officer, executive
director, employee or representative of the commission in any civil
action seeking to impose liability arising out of any actual or alleged
act, error or omission that occurred within the scope of commission
employment, duties or responsibilities 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, except
that nothing herein shall be construed to prohibit that person from
retaining such person's counsel, provided that the actual or alleged act,
error or omission did not result from that person's intentional or willful
or wanton misconduct.
(3) The commission shall indemnify and hold harmless any
member, officer, executive director, employee or representative of the
commission for the amount of any settlement or judgment obtained
against that person arising out of any actual or alleged act, error or
omission that occurred within the scope of commission employment,
duties or responsibilities or that such person 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 the intentional or willful or wanton misconduct of that
person.
ARTICLE 9 – DATA SYSTEM
(a) The commission shall provide for the development,
maintenance and utilization of a coordinated database and reporting
system containing licensure, adverse action and investigative
information on all licensed individuals in member states.
(b) A member state shall submit a uniform data set to the data
system on all individuals to whom this compact is applicable, utilizing
a unique identifier, as required by the rules of the commission,
including:
(1) Identifying information;
(2) licensure data;
(3) adverse actions against a license or compact privilege;
(4) nonconfidential information relating to alternative program
participation;
(5) any denial of application for licensure and the reason for such
denial;
(6) other information that may facilitate the administration of this
compact, as determined by the rules of the commission; and
(7) current significant investigative information.
(c) Current significant investigative information and other
investigative information pertaining to a licensee in any member state
shall only be available to other member states.
(d) The commission shall promptly notify all member states of
any adverse action taken against a licensee or an individual applying
for a license. Adverse action information pertaining to a licensee in any
member state shall be available to any other member state.
(e) Member states contributing information to the data system may
designate information that shall not be shared with the public without
the express permission of the contributing state.
(f) Any information submitted to the data system that is
subsequently required to be expunged by the laws of the member state
contributing the information shall be removed from the data system.
ARTICLE 10 – RULEMAKING
(a) The commission shall exercise its rulemaking powers pursuant
to the criteria set forth in this article and the rules adopted thereunder.
Rules and amendments shall become binding as of the date specified in
each rule or amendment.
HOUSE BILL No. 2533—page 11
(b) The commission shall promulgate reasonable rules in order to
effectively and efficiently achieve the purposes of the compact.
Notwithstanding the foregoing, in the event that the commission
exercises its rulemaking authority in a manner that is beyond the scope
of the purposes of the compact, or the powers granted hereunder, then
such an action by the commission shall be invalid and have no force
and effect.
(c) If a majority of the legislatures of the member states rejects a
rule, by enactment of a statute or resolution in the same manner used to
adopt the compact within 4 years of the date of adoption of the rule,
then such rule shall have no further force and effect in any member
state.
(d) Rules or amendments to the rules shall be adopted at a regular
or special meeting of the commission.
(e) Prior to promulgation and adoption of a final rule or rules by
the commission and at least 30 days in advance of the meeting where
the rule will be considered and voted upon, the commission shall file a
notice of proposed rulemaking on the websites of:
(1) The commission or other publicly accessible platform; and
(2) each member state's occupational therapy licensing board or
other publicly accessible platform or the publication where each state
would otherwise publish proposed rules.
(f) The notice of proposed rulemaking shall include:
(1) The proposed time, date and location of the meeting where the
rule will be considered and voted upon;
(2) the text of the proposed rule or amendment and the reason for
the proposed rule;
(3) a request for comments on the proposed rule from any
interested person; and
(4) the manner that interested persons may submit notice to the
commission of their intention to attend the public hearing and any
written comments.
(g) Prior to adoption of a proposed rule, the commission shall
allow persons to submit written data, facts, opinions and arguments,
which shall be made available to the public.
(h) The commission shall grant an opportunity for a public hearing
before it adopts a rule or amendment if a hearing is requested by:
(1) At least 25 persons;
(2) a state or federal governmental subdivision or agency; or
(3) an association or organization having at least 25 members.
(i) If a hearing is held on the proposed rule or amendment, the
commission shall publish the place, time and date of the scheduled
public hearing. If the hearing is held via electronic means, the
commission shall publish the mechanism for access to the electronic
hearing.
(1) All persons wishing to be heard at the hearing shall notify in
writing the executive director of the commission or other designated
member of their desire to appear and testify at the hearing within not
less than five business days before the scheduled date of the hearing.
(2) Hearings shall be conducted in a manner providing each
person who wishes to comment a fair and reasonable opportunity to
comment orally or in writing.
(3) All hearings shall be recorded. A copy of the recording shall be
made available on request.
(4) Nothing in this section shall be construed as requiring a
separate hearing on each rule. Rules may be grouped for the
convenience of the commission at hearings required by this article.
(j) Following the scheduled hearing date, or by the close of
business on the scheduled hearing date if the hearing was not held, the
commission shall consider all written and oral comments received.
(k) If no written notice of intent to attend the public hearing by
interested parties is received, the commission may proceed with
promulgation of the proposed rule without a public hearing.
(l) The commission shall, by majority vote of all members, take
HOUSE BILL No. 2533—page 12
final action on the proposed rule and determine the effective date of the
rule, if any, based on the rulemaking record and the full text of the rule.
(m) Upon determination that an emergency exists, the commission
may consider and adopt an emergency rule without prior notice,
opportunity for comment or hearing, except that the usual rulemaking
procedures provided in the compact and in this section shall be
retroactively applied to the rule as soon as reasonably possible but in no
event later than 90 days after the effective date of the rule. For the
purposes of this provision, an emergency rule is one that shall be
adopted immediately in order to:
(1) Meet an imminent threat to public health, safety or welfare;
(2) prevent a loss of commission or member state funds;
(3) meet a deadline for the promulgation of an administrative rule
that is established by federal law or rule; or
(4) protect public health and safety.
(n) The commission or an authorized committee of the
commission may direct revisions to a previously adopted rule or
amendment for purposes of correcting typographical, formatting,
consistency or grammatical errors. Public notice of any revisions shall
be posted on the website of the commission. The revision shall 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 shall be made in
writing and delivered to the chair of the commission prior to the end of
the notice period. If no challenge is made, the revision shall take effect
without further action. If the revision is challenged, the revision shall
not take effect without the approval of the commission.
ARTICLE 11 – OVERSIGHT, DISPUTE
RESOLUTION AND ENFORCEMENT
(a) Oversight:
(1) The executive, legislative and judicial branches of state
government in each member state shall enforce this compact and take
all actions necessary and appropriate to effectuate the compact's
purposes and intent. The provisions of this compact and the rules
promulgated hereunder shall have standing as statutory law.
(2) All courts shall take judicial notice of the compact and the
rules in any judicial or administrative proceeding in a member state
pertaining to the subject matter of this compact that may affect the
powers, responsibilities or actions of the commission.
(3) The commission shall be entitled to receive service of process
in any such proceeding and shall have standing to intervene in such a
proceeding for all purposes. Failure to provide service of process to the
commission shall render a judgment 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 member state has
defaulted in the performance of its obligations or responsibilities under
this compact or the promulgated rules, the commission shall:
(A) Provide written notice to the defaulting state and other
member states of the nature of the default, the proposed means of
curing the default or any other action to be taken by the commission;
and
(B) provide remedial training and specific technical assistance
regarding the default.
(2) If a state in default fails to cure the default, the defaulting state
may be terminated from the compact upon an affirmative vote of a
majority of the member states, and all rights, privileges and benefits
conferred by this compact may be terminated on the effective date of
termination. A cure of the default does not relieve the offending state of
obligations or liabilities incurred during the period of default.
(3) Termination of membership in the compact shall be imposed
only after all other means of securing compliance have been exhausted.
HOUSE BILL No. 2533—page 13
Notice of intent to suspend or terminate shall be given by the
commission to the governor, the majority and minority leaders of the
defaulting state's legislature and each of the member states.
(4) A 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.
(5) The commission shall not bear any costs related to a state that
is found to be in default or that has been terminated from the compact,
unless agreed upon in writing between the commission and the
defaulting state.
(6) The defaulting state may appeal the action of the commission
by petitioning the United Sates District Court for the District of
Columbia or the federal district where the commission has its principal
offices. The prevailing member shall be awarded all costs of such
litigation, including reasonable attorney fees.
(c) Dispute resolution:
(1) Upon request by a member state, the commission shall attempt
to resolve disputes related to the compact that arise among member
states and between member and nonmember states.
(2) The commission shall promulgate a rule providing for both
mediation and binding dispute resolution for disputes as appropriate.
(d) Enforcement:
(1) The commission, in the reasonable exercise of its discretion,
shall enforce the provisions and rules of this compact.
(2) By majority vote, the commission may initiate legal action in
the United States District Court for the District of Columbia or the
federal district where the commission has its principal offices against a
member state in default to enforce compliance with the provisions of
the compact and its promulgated rules and bylaws. The relief sought
may include both injunctive relief and damages. In the event that
judicial enforcement is necessary, the prevailing member shall be
awarded all costs of such litigation, including reasonable attorney fees.
(3) The remedies herein shall not be the exclusive remedies of the
commission. The commission may pursue any other remedies available
under federal or state law.
ARTICLE 12 – DATE OF IMPLEMENTATION OF THE
INTERSTATE COMMISSION FOR OCCUPATIONAL
THERAPY PRACTICE AND ASSOCIATED RULES,
WITHDRAWAL AND AMENDMENT
(a) The compact shall come into effect on the date that the
compact statute is enacted into law in the 10th member state. The
provisions, which become effective at that time, shall be limited to the
powers granted to the commission relating to assembly and the
promulgation of rules. Thereafter, the commission shall meet and
exercise rulemaking powers necessary to the implementation and
administration of the compact.
(b) Any state that joins the compact after the commission's initial
adoption of the rules shall be subject to the rules as they exist on the
date on that the 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 the compact becomes law in that state.
(c) Any member state may withdraw from this compact by
enacting a statute repealing the same.
(1) A member state's withdrawal shall not take effect until six
months after enactment of the repealing statute.
(2) Withdrawal shall not affect the continuing requirement of the
withdrawing state's occupational therapy licensing board to comply
with the investigative and adverse action reporting requirements of this
act prior to the effective date of withdrawal.
(d) Nothing contained in this compact shall be construed to
invalidate or prevent any occupational therapy licensure agreement or
HOUSE BILL No. 2533—page 14
other cooperative arrangement between a member state and a
nonmember state that does not conflict with the provisions of this
compact.
(e) This compact may be amended by the member states. No
amendment to this compact shall become effective and binding upon
any member state until it is enacted into the laws of all member states.
ARTICLE 13 – CONSTRUCTION AND SEVERABILITY
This compact shall be liberally construed so as to effectuate the
purposes thereof. The provisions of this compact shall be severable and
if any phrase, clause, sentence or provision of this compact is declared
to be contrary to the constitution of any member state or of the United
States or the applicability thereof to any government, agency, person or
circumstance is held invalid, the validity of the remainder of this
compact and the applicability thereof to any government, agency,
person or circumstance shall not be affected thereby. If this compact
shall be held contrary to the constitution of any member state, the
compact shall remain in full force and effect as to the remaining
member states and in full force and effect as to the member state
affected as to all severable matters.
ARTICLE 14 – BINDING EFFECT OF COMPACT
AND OTHER LAWS
(a) A licensee providing occupational therapy in a remote state
under the compact privilege shall function within the laws and
regulations of the remote state.
(b) Nothing herein shall prevent the enforcement of any other law
of a member state that is not inconsistent with the compact.
(c) Any laws in a member state in conflict with the compact shall
be superseded to the extent of the conflict.
(d) Any lawful actions of the commission, including all rules and
bylaws promulgated by the commission, shall be binding upon the
member states.
(e) All agreements between the commission and the member states
shall be binding in accordance with their terms.
(f) In the event that any provision of the compact exceeds the
constitutional limits imposed on the legislature of any member state,
the provision shall be ineffective to the extent of the conflict with the
constitutional provision in question in that member state.
Sec. 2. This section shall be known and may be cited as the
respiratory care interstate compact.
ARTICLE 1 – TITLE AND PURPOSE
(a) The purpose of this compact is to facilitate the interstate
practice of respiratory therapy with the goal of improving public access
to respiratory therapy services by providing respiratory therapists
licensed in a member state the ability to practice in other member
states. The compact preserves the regulatory authority of states to
protect public health and safety through the current system of state
licensure.
(b) This compact is designed to achieve the following objectives:
(1) Increase public access to respiratory therapy services by
creating a responsible, streamlined pathway for licensees to practice in
member states with the goal of improving outcomes for patients;
(2) enhance states' ability to protect the public's health and safety;
(3) promote the cooperation of member states in regulating the
practice of respiratory therapy within those member states;
(4) ease administrative burdens on states by encouraging the
cooperation of member states in regulating multi-state respiratory
therapy practice;
(5) support relocating active military members and their spouses;
and
HOUSE BILL No. 2533—page 15
(6) promote mobility and address workforce shortages.
ARTICLE 2 – DEFINITIONS
As used in this compact, unless the context requires otherwise, the
following definitions shall apply:
(a) "Active military member" means any person with a full-time
duty status in the armed forces of the United States, including members
of the national guard and reserve.
(b) "Adverse action" means any administrative, civil, equitable or
criminal action permitted by a state's laws that is imposed by any state
authority with regulatory authority over respiratory therapists, such as
license denial, censure, revocation, suspension, probation, monitoring
of the licensee or restriction on the licensee's practice, not including
participation in an alternative program.
(c) "Alternative program" means a non-disciplinary monitoring or
practice remediation process applicable to a respiratory therapist
approved by any state authority with regulatory authority over
respiratory therapists. This includes, but is not limited to, programs to
which licensees with substance abuse or addiction issues are referred in
lieu of adverse action.
(d) "Charter member states" means those member states that were
the first seven states to enact the compact into the laws of their state.
(e) "Commission" or "respiratory care interstate compact
commission" means the governmental instrumentality and body politic
whose membership consists of all member states that have enacted the
compact.
(f) "Commissioner" means the individual appointed by a member
state to serve as the member of the commission for that member state.
(g) "Compact" means the respiratory care interstate compact.
(h) "Compact privilege" means the authorization granted by a
remote state to allow a licensee from another member state to practice
as a respiratory therapist in the remote state under the remote state's
laws and rules. The practice of respiratory therapy occurs in the
member state where the patient is located at the time of the patient
encounter.
(i) "Criminal background check" means the submission by the
member state of fingerprints or other biometric-based information on
license applicants at the time of initial licensing for the purpose of
obtaining that applicant's criminal history record information, as
defined in 28 C.F.R. § 20.3(d) or successor provision, from the federal
bureau of investigation and the state's criminal history record
repository, as defined in 28 C.F.R. § 20.3(f) or successor provision.
(j) "Data system" means the commission's repository of
information about licensees as further set forth in article 8.
(k) "Domicile" means the jurisdiction that is the licensee's
principal home for legal purposes.
(l) "Encumbered license" means a license that a state's respiratory
therapy licensing authority has limited in any way.
(m) "Executive committee" means a group of directors elected or
appointed to act on behalf of and within the powers granted to them by
the commission.
(n) "Home state" except as set forth in article 5, means the
member state that is the licensee's primary domicile.
(o) "Home state license" means an active license to practice
respiratory therapy in a home state that is not an encumbered license.
(p) "Jurisprudence requirement" means an assessment of an
individual's knowledge of the state laws and regulations governing the
practice of respiratory therapy in such state.
(q) "Licensee" means an individual who currently holds an
authorization from the state to practice as a respiratory therapist.
(r) "Member state" means a state that has enacted the compact and
been admitted to the commission in accordance with the provisions in
this compact and commission rules.
HOUSE BILL No. 2533—page 16
(s) "Model compact" means the model for the respiratory care
interstate compact on file with the council of state governments or other
entity as designated by the commission.
(t) "Remote state" means a member state where a licensee is
exercising or seeking to exercise the compact privilege.
(u) "Respiratory therapist" or "respiratory care practitioner" means
an individual who holds a credential issued by the national board for
respiratory care or its successor and a license in a state to practice
respiratory therapy. For purposes of this compact, any other title or
status adopted by a state to replace the term "respiratory therapist" or
"respiratory care practitioner" shall be deemed synonymous with
"respiratory therapist" and shall confer the same rights and
responsibilities to the licensee under the provisions of this compact at
the time of enactment.
(v) "Respiratory therapy," "respiratory therapy practice,"
"respiratory care," "the practice of respiratory care" and "the practice of
respiratory therapy" mean the care and services provided by or under
the direction and supervision of a respiratory therapist or respiratory
care practitioner.
(w) "Respiratory therapy licensing authority" means the agency,
board or other body of a state that is responsible for licensing and
regulation of respiratory therapists.
(x) "Rule" means a regulation promulgated by an entity that has
the force and effect of law.
(y) "Scope of practice" means the procedures, actions and
processes a respiratory therapist licensed in a state or practicing under a
compact privilege in a state is permitted to undertake in that state and
the circumstances under which the respiratory therapist is permitted to
undertake those procedures, actions and processes. Such procedures,
actions, processes and the circumstances under which they may be
undertaken may be established through means, including, but not
limited to, statute, regulations, case law and other processes available to
the state respiratory therapy licensing authority or other governmental
agency.
(z) "Significant investigative information" means information,
records and documents received or generated by a state respiratory
therapy 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 respiratory therapy licensing
authority could pursue adverse action against the licensee.
(aa) "State" means any state, commonwealth, district or territory
of the United States.
ARTICLE 3 – STATE PARTICIPATION IN THIS
COMPACT
(a) In order to participate in this compact and thereafter continue
as a member state, a member state shall:
(1) Enact a compact that is not materially different from the model
compact;
(2) license respiratory therapists;
(3) participate in the commission's data system;
(4) have a mechanism in place for receiving and investigating
complaints against licensees and compact privilege holders;
(5) notify the commission, in compliance with the terms of this
compact and commission rules, of any adverse action against a
licensee, a compact privilege holder or a license applicant;
(6) notify the commission, in compliance with the terms of this
compact and commission rules, of the existence of significant
investigative information;
(7) comply with the rules of the commission;
(8) grant the compact privilege to a holder of an active home state
license and otherwise meet the applicable requirements of article 4 in a
HOUSE BILL No. 2533—page 17
member state; and
(9) complete a criminal background check for each new licensee
at the time of initial licensure. If expressly authorized or permitted by
federal law, whether such federal law is in effect prior to, at or after the
time of a member state's enactment of this compact, a member state's
enactment of this compact shall hereby authorize the member state's
respiratory therapy licensing authority to perform criminal background
checks as defined in this compact. The absence of such a federal law as
described in this subsection shall not prevent or preclude such
authorization if it may be derived or granted through means other than
the enactment of this compact.
(b) Nothing in this compact prohibits a member state from
charging a fee for granting and renewing the compact privilege.
ARTICLE 4 – COMPACT PRIVILEGE
(a) To exercise the compact privilege under the terms and
provisions of the compact, the licensee shall:
(1) Hold and maintain an active home state license as a respiratory
therapist;
(2) hold and maintain an active credential from the national board
for respiratory care or its successor that would qualify such licensee for
licensure in the remote state where they are seeking the privilege;
(3) have not had any adverse action against a license within the
previous two years;
(4) notify the commission that the licensee is seeking the compact
privilege within a remote state;
(5) pay any applicable fees, including any state fees, commission
fees and renewal fees, for the compact privilege;
(6) meet any jurisprudence requirements established by the remote
state where the licensee is seeking a compact privilege;
(7) report to the commission adverse action taken by any non-
member state within 30 days from the date that the adverse action is
taken;
(8) report to the commission, when applying for a compact
privilege, the address of the licensee's domicile and thereafter promptly
report to the commission any change in the address of the licensee's
domicile within 30 days of the effective date of the change in address;
and
(9) consent to accept service of process by mail at the licensee's
domicile on record with the commission with respect to any action
brought against the licensee by the commission or a member state and
consent to accept service of a subpoena by mail at the licensee's
domicile on record with the commission with respect to any action
brought or investigation conducted by the commission or a member
state.
(b) The compact privilege is valid until the expiration date or
revocation of the home state license unless terminated pursuant to
adverse action. The licensee shall comply with all of the requirements
of subsection (a) to maintain the compact privilege in a remote state. If
such requirements are met, no adverse actions are taken and the
licensee has paid any applicable compact privilege renewal fees, then
the licensee shall maintain the licensee's compact privilege.
(c) A licensee providing respiratory therapy in a remote state
under the compact privilege shall function within the scope of practice
authorized by the remote state for the type of respiratory therapist
license the licensee holds. Such procedures, actions, processes and the
circumstances under which they may be undertaken may be established
through means, including, but not limited to, statute, regulations, case
law and other processes available to the state respiratory therapy
licensing authority or other government agency.
(d) If a licensee's compact privilege in a remote state is removed
by the remote state, the individual shall lose or be ineligible for the
compact privilege in that remote state until the compact privilege is no
HOUSE BILL No. 2533—page 18
longer limited or restricted by that state.
(e) If a home state license is encumbered, the licensee shall lose
the compact privilege in all remote states until the following occur:
(1) The home state license is no longer encumbered; and
(2) two years have elapsed from the date that the license is no
longer encumbered due to the adverse action.
(f) Once a licensee with a restricted or limited license meets the
requirements of subsection (e)(1) and (2), the licensee shall also meet
the requirements of subsection (a) to obtain a compact privilege in a
remote state.
ARTICLE 5 – ACTIVE MILITARY
MEMBER OR THEIR SPOUSE
(a) An active military member or their spouse shall designate a
home state where the individual has a current license in good standing.
The individual may retain the home state designation during the period
that the service member is on active duty.
(b) An active military member and their spouse shall not be
required to pay to the commission for a compact privilege any fee that
may otherwise be charged by the commission. If a remote state chooses
to charge a fee for a compact privilege, such state may choose to charge
a reduced fee or no fee to an active military member and their spouse
for a compact privilege.
ARTICLE 6 – ADVERSE ACTIONS
(a) A member state where a licensee is licensed shall have
authority to impose adverse action against the license issued by that
member state.
(b) A member state may take adverse action based on significant
investigative information of a remote state or the home state, so long as
the member state follows its own procedures for imposing adverse
action.
(c) Nothing in this compact shall override a member state's
decision that participation in an alternative program may be used in lieu
of adverse action and that such participation shall remain nonpublic if
required by the member state's laws.
(d) A remote state shall have the authority to:
(1) Take adverse actions as set forth in this compact against a
licensee's compact privilege in that state;
(2) issue subpoenas for both hearings and investigations that
require the attendance and testimony of witnesses and the production of
evidence:
(A) Subpoenas may be issued by a respiratory therapy licensing
authority in a member state for the attendance and testimony of
witnesses and the production of evidence.
(B) Subpoenas issued by a respiratory therapy licensing authority
in a member state for the attendance and testimony of witnesses shall
be enforced in the latter state by any court of competent jurisdiction in
the latter state, according to the practice and procedure of that court
applicable to subpoenas issued in proceedings pending before it.
(C) Subpoenas issued by a respiratory therapy licensing authority
in a member state for production of evidence from another member
state shall be enforced in the latter state, according to the practice and
procedure of that court applicable to subpoenas issued in the
proceedings pending before it.
(D) The issuing authority shall pay any witness fees, travel
expenses, mileage and other fees required by the service statutes of the
state where the witnesses or evidence are located;
(3) unless otherwise prohibited by state law, recover from the
licensee the costs of investigations and disposition of cases resulting
from any adverse action taken against that licensee;
(4) notwithstanding subsection (d)(2), a member state shall not
HOUSE BILL No. 2533—page 19
issue a subpoena to gather evidence of conduct in another member state
that is lawful in such other member state for the purpose of taking
adverse action against a licensee's compact privilege or application for
a compact privilege in that member state; and
(5) nothing in this compact authorizes a member state to impose
discipline against a respiratory therapist's compact privilege in that
member state for the individual's otherwise lawful practice in another
state.
(e) Joint investigations:
(1) In addition to the authority granted to a member state by its
respective respiratory therapy practice act or other applicable state law,
a member state may participate with other member states in joint
investigations of licensees, except that a member state receiving such a
request has no obligation to respond to any subpoena issued regarding
an investigation of conduct or practice that was lawful in a member
state at the time it was undertaken.
(2) Member states shall share any significant investigative
information, litigation or compliance materials in furtherance of any
joint or individual investigation initiated under the compact. In sharing
such information among member state respiratory therapy licensing
authorities, all information obtained shall be kept confidential, except
as otherwise mutually agreed upon by the sharing and receiving
member states.
(f) Nothing in this compact shall be construed to permit a member
state to take any adverse action against a licensee or holder of a
compact privilege for conduct or practice that was legal in the member
state at the time such conduct or practice was undertaken.
(g) Nothing in this compact shall be construed to permit a member
state to take disciplinary action against a licensee or holder of a
compact privilege for conduct or practice that was legal in the member
state at the time such conduct or practice was undertaken.
ARTICLE 7 – ESTABLISHMENT OF THE
RESPIRATORY CARE INTERSTATE
COMPACT COMMISSION
(a) The compact member states hereby create and establish a joint
governmental agency whose membership consists of all member states
that have enacted the compact known as the respiratory care interstate
compact commission. The commission is an instrumentality of the
compact member states acting jointly and not an instrumentality of any
one state. The commission shall come into existence on or after the
effective date of the compact, as set forth in article 11.
(b) Membership, voting and meetings:
(1) Each member state shall have and be limited to one
commissioner selected by that member state's respiratory therapy
licensing authority.
(2) The commissioner shall be an administrator or their designated
staff member of the member state's respiratory therapy licensing
authority.
(3) The commission shall by rule or bylaw establish a term of
office for commissioners and may by rule or bylaw establish term
limits.
(4) The commission may recommend to a member state the
removal or suspension any commissioner from office.
(5) A member state's respiratory therapy licensing authority shall
fill any vacancy of its commissioner occurring on the commission
within 60 days of the vacancy.
(6) Each commissioner shall be entitled to one vote on all matters
before the commission requiring a vote by commissioners.
(7) A commissioner shall vote in person or by such other means as
provided in the bylaws. The bylaws may provide for commissioners to
meet by telecommunication, videoconference or other means of
communication.
HOUSE BILL No. 2533—page 20
(8) The commission shall meet at least once during each calendar
year. Additional meetings may be held as set forth in the bylaws.
(c) The commission shall have the following powers:
(1) Establish and amend the fiscal year of the commission;
(2) establish and amend bylaws and policies, including, but not
limited to, a code of conduct and conflict of interest;
(3) establish and amend rules that shall be binding in all member
states;
(4) maintain its 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 conduct legal proceedings or actions in the name of
the commission, except that the standing of any respiratory therapy
licensing authority to sue or be sued under applicable law shall not be
affected;
(7) maintain and certify records and information provided to a
member state as the authenticated business records of the commission
and designate an agent to do so on the commission's behalf;
(8) purchase and maintain insurance and bonds;
(9) accept or contract for services of personnel, including, but not
limited to, employees of a member 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 the compact and establish the commission's personnel
policies and programs relating to conflicts of interest, qualifications of
personnel and other related personnel matters;
(12) assess and collect fees;
(13) accept, receive, utilize and dispose of the same, any and all
appropriate gifts, donations, grants of money, other sources of revenue,
equipment, supplies, materials and services, except that at all times:
(A) The commission shall avoid any appearance of impropriety;
and
(B) the commission shall avoid any appearance of 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 in a fiscally responsible manner;
(18) appoint committees, including standing committees,
composed of commissioners 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) establish and elect an executive committee, including a
chairperson, vice chairperson, secretary, treasurer and such other
offices as the commission shall establish by rule or bylaw;
(21) enter into contracts or arrangements for the management of
the affairs of the commission;
(22) determine whether a state's adopted language is materially
different from the model compact language such that the state would
not qualify for participation in the compact; and
(23) perform such other functions as may be necessary or
appropriate to achieve the purposes of this compact.
(d) The executive committee:
(1) The executive committee shall have the power to act on behalf
of the commission according to the terms of this compact. The powers,
duties and responsibilities of the executive committee shall include:
(A) Overseeing the day-to-day activities of the administration of
the compact, including enforcement and compliance with the
provisions of the compact, its rules and bylaws and other such duties as
HOUSE BILL No. 2533—page 21
deemed necessary;
(B) recommending to the commission changes to the rules or
bylaws, changes to this compact legislation, fees charged to compact
member 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 member 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; and
(I) performing other duties as provided in the rules or bylaws of
the commission.
(2) The executive committee shall be composed of up to nine
members, as further set forth in the bylaws of the commission:
(A) Seven voting members who are elected by the commission
from the current membership of the commission; and
(B) two ex officio, nonvoting members.
(3) The commission may remove any member of the executive
committee as provided in the commission's bylaws.
(4) The executive committee shall meet at least annually.
(A) Executive committee meetings shall be open to the public,
except that the executive committee may meet in a closed, nonpublic
meeting as provided in subsection (f)(4) below;
(B) the executive committee shall give advance notice of its
meetings, posted on its website and as determined to provide notice to
persons with an interest in the business of the commission; and
(C) the executive committee may hold a special meeting in
accordance with subsection (f)(2) below.
(e) The commission shall adopt and provide to the member states
an annual report.
(f) Meetings of the commission:
(1) All meetings of the commission that are not closed pursuant to
paragraph (4) shall be open to the public. Notice of public meetings
shall be posted on the commission's website at least 30 days prior to the
public meeting.
(2) Notwithstanding paragraph (1), 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 article 9(g). The commission's
legal counsel shall certify that one of the reasons justifying an
emergency public meeting has been met.
(3) Notice of all commission meetings shall provide the time, date
and location of the meeting, and if the meeting is to be held or
accessible via telecommunication, video conference or other electronic
means, the notice shall include the mechanism for access to the
meeting.
(4) The commission or the executive committee may convene in a
closed, nonpublic meeting for the commission or executive committee
to receive or solicit legal advice or to discuss:
(A) Noncompliance of a member state with its obligations under
the compact;
(B) the employment, compensation, discipline or other matters,
practices or procedures related to specific employees;
(C) current or threatened discipline of a licensee or compact
privilege holder by the commission or by a member state's respiratory
therapy licensing authority;
(D) current, threatened or reasonably anticipated litigation;
HOUSE BILL No. 2533—page 22
(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 pursuant to the compact;
(K) legal advice;
(L) matters specifically exempted from disclosure by federal or
member state law; or
(M) other matters as promulgated by the commission by rule.
(5) If a meeting or a 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 shall be recorded in
the minutes.
(6) The commission shall keep minutes in accordance with
commission rules and bylaws. All documents considered in connection
with an action shall be identified in such minutes. All minutes and
documents of a closed meeting shall remain under seal, subject to
release only by a majority vote of the commission or order of a court of
competent jurisdiction.
(g) Financing of the commission:
(1) The commission shall pay or provide for the payment and
reasonable expenses of its establishment organization and ongoing
activities.
(2) The commission may accept any and all appropriate revenue
sources as provided in this compact.
(3) The commission may levy on and collect an annual assessment
from each member state and impose fees on licensees of member states
to whom it grants a compact privilege to cover the cost of the
operations and activities of the commission and its staff. The aggregate
annual assessment amount for member states, if any, shall be allocated
based upon a formula that the commission shall promulgate by rule.
(4) The commission shall not incur obligations of any kind prior to
securing the funds or a loan adequate to meet such obligations nor shall
the commission pledge the credit of any of the member states, except
by and with the authority of the member state.
(5) The commission shall keep accurate accounts of all receipts
and disbursements. The receipts and disbursements of the commission
shall be subject to the financial review and accounting procedures
established under its bylaws. However, all receipts and disbursements
of funds handled by the commission shall be subject to an annual
financial review by a certified or licensed public accountant, and the
report of the financial review shall be included in and become part of
the annual report of the commission.
(h) Qualified immunity, defense and indemnification:
(1) The provisions of this compact shall not be construed as a
limitation on the liability of any licensee for professional malpractice or
misconduct, which shall be governed solely by any other applicable
state laws.
(2) The member states, commissioners, officers, executive
directors, employees and agents of the commission shall be 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, except that nothing
HOUSE BILL No. 2533—page 23
in this subsection shall 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 such person. The
procurement of insurance of any type by the commission shall not in
any way compromise or limit the immunity granted hereunder.
(3) The commission shall defend any commissioner, officer,
executive director, employee and agent of the commission in any civil
action seeking to impose liability arising out of any actual or 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, except that nothing in this
compact shall be construed to prohibit such person from retaining their
own counsel at their own expense and that the actual or alleged act,
error or omission did not result from such person's intentional or willful
or wanton misconduct.
(4) The commission shall indemnify and hold harmless any
commissioner, member, officer, executive director, employee and agent
of the commission for the amount of any settlement or judgment
obtained against that person arising out of any actual or alleged act,
error or omission that occurred within the scope of commission
employment, duties or responsibilities or that such person had a
reasonable basis for believing occurred within the scope of commission
employment, duties or responsibilities if that the actual or alleged act,
error or omission did not result from the intentional or willful or
wanton misconduct of such person.
(5) Nothing in this compact shall be interpreted to waive or
otherwise abrogate a member 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 shall be construed to be a waiver of
sovereign immunity by the member states or by the commission.
ARTICLE 8 – 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.
(b) Notwithstanding any other provision of state law to the
contrary, a member state shall submit a uniform data set to the data
system as required by the rules of the commission, including, but not
limited to:
(1) Identifying information;
(2) licensure data;
(3) adverse actions against a licensee, license applicant or compact
privilege holder and information related thereto;
(4) nonconfidential information related to alternative program
participation, the beginning and ending dates of such participation and
other information related to such participation not made confidential
under member state law;
(5) any denial of application for licensure and the reason or
reasons for such denial;
(6) the presence of current significant investigative information;
and
(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) A member state shall not submit any information that
constitutes criminal history record information, as defined by
applicable federal law, to the data system established hereunder.
(d) The records and information provided to a member state
HOUSE BILL No. 2533—page 24
pursuant to this compact or through the data system, when certified by
the commission or an agent thereof, shall constitute the authenticated
business records of the commission and shall be entitled to any
associated hearsay exception in any relevant judicial, quasi-judicial or
administrative proceedings in a member state.
(e) Significant investigative information pertaining to a licensee in
any member state shall only be available to other member states.
(f) It shall be the responsibility of the member states to report any
adverse action against a licensee and to monitor the database to
determine whether adverse action has been taken against a licensee.
Adverse action information pertaining to a licensee in any member
state shall be available to any other member state.
(g) Member states contributing information to the data system
may designate information that shall not be shared with the public
without the express permission of the contributing state.
(h) Any information submitted to the data system that is
subsequently expunged pursuant to federal law or the laws of the
member state contributing the information shall be removed from the
data system.
ARTICLE 9 – RULEMAKING
(a) The commission shall promulgate reasonable rules in order to
effectively and efficiently implement and administer the purposes and
provisions of the compact. A rule shall be invalid and have no force and
effect only if a court of competent jurisdiction holds that the rule is
invalid because the commission exercised its rulemaking authority in a
manner that is beyond the scope and purposes of the compact or the
powers granted hereunder or based upon another applicable standard of
review.
(b) For purposes of the compact, the rules of the commission shall
have the force of law in each member state.
(c) The commission shall exercise its rulemaking powers pursuant
to the criteria set forth in this section and the rules adopted thereunder.
Rules shall become binding as of the date specified in each rule.
(d) If a majority of the legislatures of the member states rejects a
rule or portion of a rule, by enactment of a statute or resolution in the
same manner used to adopt the compact within four years of the date of
adoption of the rule, then such rule shall have no further force and
effect in any member state.
(e) Rules shall be adopted at a regular or special meeting of the
commission.
(f) Prior to adoption of a proposed rule, the commission shall hold
a public hearing and allow persons to provide oral and written
comments, data, facts, opinions and arguments.
(g) Prior to adoption of a proposed rule by the commission and at
least 30 days in advance of the meeting where the commission will
hold a public hearing on the proposed rule, the commission shall
provide a notice of proposed rulemaking:
(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; and
(3) in such other ways as the commission may specify by rule.
(h) The notice of proposed rulemaking shall include:
(1) The time, date and location of the public hearing where 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 shall include the mechanism
for access to the hearing in the notice of proposed rulemaking;
(3) the text of the proposed rule and the reason therefor;
(4) a request for comments on the proposed rule from any
HOUSE BILL No. 2533—page 25
interested person; and
(5) the manner in which interested persons may submit written
comments.
(i) All hearings will be recorded. A copy of the recording and all
written comments and documents received by the commission in
response to the proposed rule shall be available to the public.
(j) Nothing in this section shall be construed as requiring a
separate hearing on each 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
and the full text of the rule.
(1) The commission may adopt changes to the proposed rule if the
changes are consistent with 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), the
effective date of the rule shall be not earlier than 30 days after issuing
the notice that it adopted or amended the rule.
(l) Upon determination that an emergency exists, the commission
may consider and adopt an emergency rule with 24 hours' notice and an
opportunity to comment, provided that the usual rulemaking procedures
provided in the compact and in this section shall be retroactively
applied to the rule as soon as reasonably possible but in no event later
than 90 days after the effective date of the rule. For the purposes of this
provision, an emergency rule is one that shall be adopted immediately
in order to:
(1) Meet an imminent threat to public health, safety or welfare;
(2) prevent a loss of commission or member state funds;
(3) meet a deadline for the promulgation of a rule that is
established by federal law or rule; or
(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 any revisions shall
be posted on the website of the commission. The revision shall 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 shall be made in
writing and delivered to the commission prior to the end of the notice
period. If no challenge is made, the revision shall take effect without
further action. If the revision is challenged, the revision may not take
effect without the approval of the commission.
(n) A member state's rulemaking process or procedural
requirements shall not apply to the commission. The commission shall
have no authority over any member state's rulemaking process or
procedural requirements that do not pertain to the compact.
(o) The provisions of this compact and any rule or regulation of
the commission shall not be construed to limit, restrict or in any way
reduce the ability of a member state to enact and enforce laws,
regulations or other rules related to the practice of respiratory therapy
in that state, where those laws, regulations or other rules are not
inconsistent with the provisions of this compact.
ARTICLE 10 – OVERSIGHT, DISPUTE
RESOLUTION AND ENFORCEMENT
(a) Oversight:
(1) The executive and judicial branches of state government in
each member state shall enforce this compact and take all actions
HOUSE BILL No. 2533—page 26
necessary and appropriate to implement the compact.
(2) Venue is proper, and judicial proceedings by or against the
commission shall 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 it adopts or consents to participate in alternative dispute
resolution proceedings. The provisions of this compact shall not affect
or limit the selection or propriety of venue in any action against a
licensee for professional malpractice, misconduct or any such similar
matter.
(3) The commission shall be entitled to receive service of process
in any proceeding regarding the enforcement or interpretation of the
compact and have standing to intervene in such a proceeding for all
purposes. Failure to provide the commission service of process shall
render a judgment 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 member state has
defaulted in the performance of its obligations or responsibilities under
this compact or the promulgated rules, the commission shall provide
written notice to the defaulting state. The notice of default shall
describe the default, the proposed means of curing the default and any
other action that the commission may take and shall offer training and
specific technical assistance regarding the default.
(2) The commission shall provide a copy of the notice of default
to the other member states.
(c) If a state in default fails to cure the default, the defaulting state
may be terminated from the compact upon an affirmative vote of a
majority of the commissioners of the member states and all rights,
privileges and benefits conferred on that state by this compact may be
terminated on the effective date of termination. A cure of the default
shall not relieve the offending state of obligations or liabilities incurred
during the period of default.
(d) Termination of membership in the compact shall be imposed
only after all other means of securing compliance have been exhausted.
Notice of intent to suspend or terminate shall be given by the
commission to the governor, the majority and minority leaders of the
defaulting state's legislature, the defaulting state's respiratory therapy
licensing authority and each of the member states' respiratory therapy
licensing authorities.
(e) A state that has been terminated shall be responsible for all
assessments, obligations and liabilities incurred through the effective
date of termination, including obligations that extend beyond the
effective date of termination, if necessary.
(f) Upon the termination of a state's membership from this
compact, that state shall immediately provide notice of such
termination to all licensees and compact privilege holders, of which the
commission has a record, within that state. The terminated state shall
continue to recognize all licenses granted pursuant to this compact for a
minimum of 180 days after the date of such notice of termination.
(g) The commission shall not bear any costs related to a state that
is found to be in default or that has been terminated from the compact
unless agreed upon in writing between the commission and the
defaulting state.
(h) The defaulting state 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 shall be awarded all costs of such
litigation, including reasonable attorney fees.
(i) Dispute resolution:
(1) Upon request by a member state, the commission shall attempt
to resolve disputes related to the compact that arise among member
states and between member and nonmember states.
(2) The commission shall promulgate a rule providing for both
HOUSE BILL No. 2533—page 27
mediation and binding dispute resolution for disputes, as appropriate.
(j) Enforcement:
(1) By majority vote, as may be further provided by rule, the
commission may initiate legal action against a member state in default
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 the compact and its
promulgated rules. A member state by enactment of this compact
consents to venue and jurisdiction in such court for the purposes set
forth in this compact. The relief sought may include both injunctive
relief and damages. In the event that judicial enforcement is necessary,
the prevailing party shall be awarded all costs of such litigation,
including reasonable attorney fees. The remedies in this compact shall
not be the exclusive remedies of the commission. The commission may
pursue any other remedies available under federal or the defaulting
member state's law.
(2) A member 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 the compact and
its promulgated rules. The relief sought may include both injunctive
relief and damages. In the event that judicial enforcement is necessary,
the prevailing party shall be awarded all costs of such litigation,
including reasonable attorney fees.
(3) No person other than a member state shall enforce this
compact against the commission.
ARTICLE 11 – EFFECTIVE DATE,
WITHDRAWAL AND AMENDMENT
(a) Effective date means the date that the compact statute is
enacted into law in the seventh member state. The compact shall come
into effect on the effective date.
(1) On or after the effective date of the compact, the commission
shall convene and review the enactment of each of the first seven
member states, charter member states, to determine if the statute
enacted by each such charter member state is materially different than
the model compact.
(A) A charter member state whose enactment is found to be
materially different from the model compact shall be entitled to the
default process set forth in article 10.
(B) If any member state is later found to be in default or is
terminated or withdraws from the compact, the commission shall
remain in existence and the compact shall remain in effect even if the
number of member states should be fewer than seven.
(2) Member states enacting the compact subsequent to the seven
initial charter member states shall be subject to the process set forth in
this compact and commission rule to determine if such states'
enactments are materially different from the model compact and
whether such states qualify 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 the compact prior
to the effective date of the compact or the commission coming into
existence shall be considered to be actions of the commission unless
specifically repudiated by the commission. The commission shall own
and have all rights to any intellectual property developed on behalf or
in furtherance of the commission by individuals or entities involved in
organizing or establishing the commission, as may be further set forth
in rules of the commission.
(4) Any state that joins the compact subsequent to the
commission's initial adoption of the rules and bylaws shall be subject to
the rules and bylaws as they exist on the date that the 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 date that
HOUSE BILL No. 2533—page 28
the compact becomes law in that state.
(b) Any member state may withdraw from such compact by
enacting a statute repealing the same.
(1) A member state's withdrawal shall not take effect until 180
days after enactment of the repealing statute.
(2) Withdrawal shall not affect the continuing requirement of the
withdrawing state's respiratory therapy licensing authority to comply
with the investigative and adverse action reporting requirements of this
compact prior to the effective date of withdrawal.
(3) Upon the enactment of a statute withdrawing from this
compact, a state shall immediately provide notice of such withdrawal to
all licensees and compact privilege holders, of which the commission
has a record, within that state. Notwithstanding any subsequent
statutory enactment to the contrary, such withdrawing state shall
continue to recognize all licenses granted pursuant to this compact for a
minimum of 180 days after the date of such notice of withdrawal.
(c) The provisions of this compact shall not be construed to
invalidate or prevent any licensure agreement or other cooperative
arrangement between a member state and a nonmember state that does
not conflict with the provisions of this compact.
(d) This compact may be amended by the member states. No
amendment to this compact shall become effective and binding upon
any member state until it is enacted into the laws of all member states.
ARTICLE 12 – CONSTRUCTION AND SEVERABILITY
(a) This compact and the commission's rulemaking authority shall
be liberally construed so as to effectuate the purposes and the
implementation and administration of the compact. Provisions of the
compact expressly authorizing or requiring the promulgation of rules
shall not be construed to limit the commission's rulemaking authority
solely for those purposes.
(b) The provisions of this compact shall be 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
member state, a state seeking participation in the compact or of the
United States or the applicability thereof 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 thereof to any other government, agency, person
or circumstance shall not be affected thereby.
(c) Notwithstanding subsection (b), the commission may deny a
state's participation in the compact or, in accordance with the
requirements of article 10, terminate a member state's participation in
the compact if the commission determines that a constitutional
requirement of a member state is a material departure from the
compact. If this compact shall be held to be contrary to the constitution
of any member state, the compact shall remain in full force and effect
as to the remaining member states and in full force and effect as to the
member state affected as to all severable matters.
ARTICLE 13 – CONSISTENT EFFECT AND
CONFLICT WITH OTHER STATE LAWS
(a) Nothing in this compact shall prevent or inhibit the
enforcement of any other law of a member state that is not inconsistent
with the compact.
(b) Any laws, statutes, regulations or other legal requirements in a
member state in conflict with the compact are superseded to the extent
of the conflict, including any subsequently enacted state laws.
(c) All permissible agreements between the commission and the
member states shall be binding in accordance with their terms.
(d) Except as expressly set forth in this compact, nothing in this
compact shall impact initial licensure.
HOUSE BILL No. 2533—page 29
Sec. 3. This section shall be known and may be cited as the
esthetics licensure compact.
ARTICLE 1—PURPOSE
(a) The purpose of this compact is to facilitate the interstate
practice and regulation of esthetics with the goal of improving public
access thereto, the safety of esthetics services and reducing barriers
related to esthetician licensure. Through this compact the member
states seek to establish a regulatory framework that provides for a new
multistate licensing program. Through this new licensing program, the
member states seek to provide increased value and mobility to licensed
estheticians in the member states, while ensuring the provision of safe,
effective and reliable services to the public.
(b) This compact is designed to achieve the following objectives,
which are ratified by the member states to this compact:
(1) Provide opportunities for interstate practice by estheticians
who meet uniform requirements for multistate licensure;
(2) enhance the abilities of member states to protect public health
and safety and prevent fraud and unlicensed activity within the
profession;
(3) ensure and encourage cooperation between member states in
the licensure and regulation of the practice of esthetics;
(4) support relocating military members and their spouses;
(5) facilitate the exchange of information between member states
related to the licensure, investigation and discipline of the practice of
esthetics; and
(6) provide for the licensure and mobility of the workforce in the
profession.
ARTICLE 2—DEFINITIONS
As used in this compact and except as otherwise provided, the
following definitions shall apply:
(a) "Active duty military" means any individual in full-time duty
status in the active uniformed service of the United States, including
members of the national guard and reserve.
(b) "Adverse action" means any administrative, civil, equitable or
criminal action permitted by a member state's laws that is imposed by a
licensing authority or other regulatory body against an esthetician,
including actions against an individual's license or authorization to
practice such as revocation, suspension, probation, monitoring of the
licensee, limitation of the licensee's practice or any other encumbrance
on a license affecting an individual's ability to participate in the
esthetics industry, including the issuance of a cease and desist order.
(c) "Authorization to practice" means a legal authorization
associated with a multistate license permitting the practice of esthetics
in that remote state, which shall be subject to the enforcement
jurisdiction of the licensing authority in that remote state.
(d) "Alternative program" means a nondisciplinary monitoring or
prosecutorial diversion program approved by a member state's licensing
authority.
(e) "Background check" means the submission of information for
an applicant for the purpose of obtaining that applicant's criminal
history record information, as further defined in C.F.R. § 20.3(d), from
the federal bureau of investigation and the agency responsible for
retaining state criminal or disciplinary history in the applicant's home
state.
(f) "Charter member state" means a member state that has enacted
legislation to adopt this compact where such legislation predates the
effective date of this compact as defined in article 13.
(g) "Commission" means the joint government agency whose
membership consists of all states that have enacted this compact,
known as the esthetics licensure compact commission, as defined in
article 9, and shall operate as an instrumentality of the member states.
HOUSE BILL No. 2533—page 30
(h) "Current significant investigative information" means
investigative information that:
(1) A licensing authority, after an inquiry or investigation that
complies with a member state's due process requirements, has reason to
believe is not groundless and, if proved true, would indicate a violation
of that state's laws regarding fraud or the practice of esthetics; or
(2) indicates that a licensee has engaged in fraud or represents an
immediate threat to public health and safety, regardless of whether the
licensee has been notified and has had an opportunity to respond.
(i) "Data system" means a repository of information about
licensees, including, but not limited to, license status, investigative
information and adverse actions.
(j) "Disqualifying event" means any event that shall disqualify an
individual from holding a multistate license under this compact, which
the commission may by rule or order specify.
(k) "Encumbered license" means a license in which an adverse
action restricts the practice of esthetics by a licensee or in which such
adverse action has been reported to the commission.
(l) "Encumbrance" means a revocation or suspension of or any
limitation on the full and unrestricted practice of esthetics by a
licensing authority.
(m) "Esthetician" means an individual licensed in such
individual's home state to engage in the practice of esthetics as defined
in this article.
(n) "Esthetics" means the skin care and services for cosmetic
purposes provided by an esthetician in a member state as set forth in the
relevant statutes and regulations of a member state. The practice of
esthetics occurs in the member state where the client is located at the
time of service.
(o) "Executive committee" means a group of delegates elected or
appointed to act on behalf of and within the powers granted to them by
the commission.
(p) "Home state" means the member state that is a licensee's
primary state of residence and where that licensee holds an active and
unencumbered license to practice esthetics.
(q) "Investigative information" means information, records or
documents received or generated by a licensing authority pursuant to an
investigation or other inquiry.
(r) "Jurisprudence requirement" means the assessment of an
individual's knowledge of the laws and rules governing the practice of
esthetics in a state.
(s) "Licensee" means an individual who currently holds a license
from a member state to practice as an esthetician.
(t) "Licensing authority" means a state's administrative or
regulatory body responsible for regulating the practice of esthetics or
that is responsible for issuing licenses to estheticians or otherwise
overseeing the practice of esthetics in that state.
(u) "Member state" means any state that has adopted this compact.
(v) "Multistate license" means a license issued and subject to the
enforcement jurisdiction of the licensing authority in a licensee's home
state that authorizes the practice of esthetics in member states and
includes authorizations to practice esthetics in all remote states
pursuant to this compact.
(w) "Remote state" means any member state other than the
licensee's home state.
(x) "Rule" means any rule or regulation adopted by the
commission under this compact, or an authorized entity, that has the
force of law.
(y) "Single-state license" means a license issued by a member
state that authorizes the practice of esthetics only within the issuing
state and does not include any authorization outside of the issuing state.
(z) "State" means a state, commonwealth, territory or possession
of the United States and the District of Columbia.
HOUSE BILL No. 2533—page 31
ARTICLE 3—MEMBER STATE REQUIREMENTS
(a) To be eligible to join this compact and to maintain eligibility as
a member state, a state shall:
(1) License estheticians and regulate esthetics;
(2) have a mechanism or entity in place to receive and investigate
complaints about licensees practicing in that state;
(3) require that licensees within the state pass a competency
examination prior to being licensed to provide esthetics services to the
public in that state;
(4) require that licensees satisfy educational or training
requirements prior to being licensed to provide esthetics services to the
public in that state;
(5) implement procedures for considering one or more of the
following categories of information from applicants for licensure:
Criminal history, disciplinary history or background check. Such
procedures may include the submission of information by applicants
for the purpose of obtaining an applicant's background check as defined
in this compact;
(6) participate in the data system, including through the use of
unique identifying numbers;
(7) share information related to adverse actions with the
commission and other member states, both through the data system and
otherwise;
(8) notify the commission and other member states, in compliance
with the terms of the compact and rules of the commission, of the
existence of investigative information or current significant
investigative information in the state's possession regarding a licensee
practicing in that state;
(9) comply with such rules as may be enacted by the commission
to administer the compact; and
(10) accept licensees from other member states as established in
this compact.
(b) Member states may charge a fee for granting a multistate
license to practice esthetics.
(c) Individuals not residing in a member state shall continue to be
able to apply for a member state's single-state license as provided under
the laws of each member state. However, the single-state license
granted to these individuals shall not be recognized as granting a
multistate license to provide services in any other member state.
(d) Nothing in this compact shall affect the requirements
established by a member state for the issuance of a single-state license.
(e) A multistate license issued to a licensee by a home state to a
resident of that state shall be recognized by each member state as
authorizing a licensee to practice esthetics in each member state.
(f) The commission shall not have the power to define the
educational or professional requirements for a license to practice
esthetics. The member states shall retain sole jurisdiction over the
provision of these requirements.
ARTICLE 4—MULTISTATE LICENSE
(a) To be eligible to apply to their home state's licensing authority
for an initial multistate license under this compact, a licensee shall hold
an active and unencumbered single-state license to practice esthetics in
their home state.
(b) Upon the receipt of an application for a multistate license,
according to the rules of the commission, a member state's licensing
authority shall ascertain whether the applicant meets the requirements
for a multistate license under this compact.
(c) If an applicant meets the requirements for a multistate license
under this compact and any applicable rules of the commission, the
licensing authority in receipt of the application shall, within a
reasonable time, grant a multistate license to that applicant and inform
HOUSE BILL No. 2533—page 32
all member states of the grant of such multistate license.
(d) A multistate license to practice esthetics issued by a member
state's licensing authority shall be recognized by each member state as
authorizing the practice thereof as though that licensee held a single-
state license to do so in each member state, subject to the restrictions in
this compact.
(e) A multistate license granted pursuant to this compact may be
effective for a definite period of time, concurrent with the licensure
renewal period in the home state.
(f) To maintain a multistate license under this compact, a licensee
shall:
(1) Agree to abide by the rules of the licensing authority and the
state scope of practice laws governing the practice of esthetics of any
member state where the licensee provides services;
(2) pay all required fees related to the application and process and
any other fees that the commission may provide by rule; and
(3) comply with any and all other requirements regarding
multistate licenses that the commission may provide by rules.
(g) A licensee practicing in a member state shall be subject to all
scope of practice laws governing esthetics services in that state.
(h) The practice of esthetics under a multistate license granted
pursuant to this compact shall subject the licensee to the jurisdiction of
the licensing authority, the courts and the laws of the member state
where the esthetics services are provided.
ARTICLE 5—REISSUANCE OF A MULTISTATE
LICENSE BY A NEW HOME STATE
(a) A licensee may hold a multistate license, issued by their home
state, in only one member state at any given time.
(b) If a licensee changes their home state by moving between two
member states:
(1) The licensee shall immediately apply for the reissuance of
their multistate license in their new home state. The licensee shall pay
all applicable fees and notify the prior home state in accordance with
the rules of the commission;
(2) upon receipt of an application to reissue a multistate license,
the new home state shall verify that the multistate license is active,
unencumbered and eligible for reissuance under the terms of the
compact and the rules of the commission. The multistate license issued
by the prior home state shall be deactivated and all member states
notified in accordance with the applicable rules adopted by the
commission;
(3) if required for initial licensure, the new home state may require
a background check as specified in the laws of the new home state or
compliance with any jurisprudence requirements of the new home state;
and
(4) notwithstanding any other provision of this compact, if a
licensee does not meet the requirements set forth in this compact for the
reissuance of a multistate license by the new home state, then the
licensee shall be subject to the new home state requirements for the
issuance of a single-state license in that state.
(c) If a licensee changes their primary state of residence by
moving from a member state to a nonmember state, or from a
nonmember state to a member state, then the licensee shall be subject to
the state requirements for the issuance of a single-state license in the
new home state.
(d) Nothing in this compact shall interfere with a licensee's ability
to hold a single-state license in multiple states, except that, for the
purposes of this compact, a licensee shall have only one home state and
only one multistate license.
(e) Nothing in this compact shall interfere with the requirements
established by a member state for the issuance of a single-state license.
HOUSE BILL No. 2533—page 33
ARTICLE 6—AUTHORITY OF THE COMPACT
COMMISSION AND MEMBER STATE
LICENSING AUTHORITIES
(a) Nothing in this compact, nor any rules or regulation of the
commission, shall be construed to limit, restrict or in any way reduce
the ability of a member state to enact and enforce laws, rules or
regulations related to the practice of esthetics in that state where those
laws, rules or regulations are not inconsistent with the provisions of this
compact.
(b) Insofar as practicable, a member state's licensing authority
shall cooperate with the commission and with each entity exercising
independent regulatory authority over the practice of esthetics
according to the provisions of this compact.
(c) Discipline shall be the sole responsibility of the state where
esthetics services are provided. Accordingly, each member state's
licensing authority shall be responsible for receiving complaints about
individuals practicing esthetics in that state and for communicating all
relevant investigative information about any such adverse action to the
other member states through the data system in addition to any other
methods the commission may require by rule.
ARTICLE 7— ADVERSE ACTIONS
(a) A licensee's home state shall have exclusive power to impose
an adverse action against a licensee's multistate license issued by the
home state.
(b) A home state may take adverse action on a multistate license
based on the investigative information, current significant investigative
information or adverse action of a remote state.
(c) In addition to the powers conferred by state law, each remote
state's licensing authority shall have the power to:
(1) Take adverse action against a licensee's authorization to
practice esthetics through the multistate license in that member state,
except that:
(A) Only the licensee's home state shall have the power to take
adverse action against the multistate license issued by the home state;
and
(B) for the purpose of taking an adverse action, the home state's
licensing authority shall give the same priority and effect to reported
conduct received from a remote state as it would if such conduct had
occurred within the home state. In so doing, the home state shall apply
its own state laws to determine the appropriate action;
(2) issue cease and desist orders or impose an encumbrance on a
licensee's authorization to practice within that member state;
(3) complete any pending investigations of a licensee who changes
their primary state of residence during the course of such an
investigation. The licensing authority shall also be empowered to report
the results of such an investigation to the commission through the data
system as described in this compact;
(4) issue subpoenas for both hearings and investigations that
require the attendance and testimony of witnesses, as well as the
production of evidence. Subpoenas issued by a licensing authority in a
member state for the attendance and testimony of witnesses or the
production of evidence from another member state shall be enforced in
the latter. State by any court of competent jurisdiction, according to the
practice and procedure of that court applicable to subpoenas issued in
proceedings before it. The issuing licensing authority shall pay any
witness fees, travel expenses, mileage and other fees required by the
service statutes of the state where the witnesses or evidence are located;
(5) if otherwise permitted by state law, recover from the affected
licensee the costs of investigations and disposition of cases resulting
from any adverse action taken against that licensee; and
(6) take adverse action against the licensee's authorization to
HOUSE BILL No. 2533—page 34
practice in that state based on the factual findings of another remote
state.
(d) A licensee's home state shall complete any pending
investigation of an esthetician who changes their primary state of
residence while the investigation is pending. The home state shall also
have the authority to take appropriate action and shall promptly report
the conclusions of the investigations to the data system.
(e) If an adverse action is taken by the home state against a
licensee's multistate license, the licensee's authorization to practice in
all other member states shall be deactivated until all encumbrances
have been removed from the home state license. All home state
disciplinary orders that impose an adverse action against a licensee's
multistate license shall include a statement that the esthetician's
authorization to practice is deactivated in all member states during the
pendency of the order.
(f) Nothing in this compact shall override a member state's
authority to accept a licensee's participation in an alternative program
in lieu of adverse action. A licensee's multistate license shall be
suspended for the duration of the licensee's participation in any
alternative program.
(g) Joint investigations.
(1) In addition to the authority granted to a member state by its
respective scope of practice laws or other applicable state law, a
member state may participate with other member states in joint
investigations of licensees.
(2) Member states shall share any investigative, litigation or
compliance materials in furtherance of any joint or individual
investigation initiated under the compact.
ARTICLE 8—ACTIVE DUTY MILITARY AND THEIR
SPOUSES
An active duty military service member or their spouse shall designate
a home state where the individual has a current license in good
standing. The individual or spouse may retain their home state
designation during any period of service when that individual is on
active duty.
ARTICLE 9—ESTABLISHMENT AND OPERATION OF
THE ESTHETICS LICENSURE COMPACT
COMMISSION
(a) The compact member states create and establish a joint
government agency whose membership consists of all member states
that have enacted the compact known as the esthetics licensure compact
commission. The commission is an instrumentality of the compact
states acting jointly and not an instrumentality of any one state. The
commission shall come into existence on or after the effective date of
the compact as set forth in article 13.
(b) Membership, voting and meetings.
(1) Each member state shall have and be limited to one delegate
selected by that member state's licensing authority.
(2) The delegate shall be an administrator of the licensing
authority of the member state or their designee.
(3) The commission shall by rule or bylaw establish a term of
office for delegates and may by rule or bylaw establish term limits.
(4) The commission may recommend removal or suspension of
any delegate from office.
(5) A member state's licensing authority shall fill any vacancy of
its delegate occurring on the commission within 60 days of the
vacancy.
(6) Each delegate shall be entitled to one vote on all matters that
are voted on by the commission.
HOUSE BILL No. 2533—page 35
(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 shall have 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 its 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 licensing authority
to sue or be sued under applicable law shall not be affected;
(7) maintain and certify records and information provided to a
member state as the authenticated business records of the commission
and designate an agent 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,
but not limited to, employees of a member 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 the 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 multistate license and thereafter, as may be
established by commission rule, charge the licensee a multistate license
renewal fee for each renewal period. Nothing in this compact shall be
construed to prevent a home state from charging a licensee a fee for a
multistate license or renewals of a multistate license or a fee for the
jurisprudence requirement if the member state imposes such a
requirement for the grant of a multistate license;
(13) assess and collect fees;
(14) 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, except that, at all
times the commission shall avoid any appearance of impropriety or
conflict of interest;
(15) lease, purchase, retain, own, hold, improve or use any
property, real, personal or mixed, or any undivided interest therein;
(16) sell, convey, mortgage, pledge, lease, exchange, abandon or
otherwise dispose of any property real, personal or mixed;
(17) establish a budget and make expenditures;
(18) borrow money;
(19) appoint committees, including standing committees,
composed of members, state regulators, state legislators or their
representatives, consumer representatives and such other interested
persons as may be designated in this compact and the bylaws;
(20) provide and receive information from and cooperate with law
enforcement agencies;
(21) elect a chair, vice chair, secretary, treasurer and such other
officers of the commission as provided in the commission's bylaws;
(22) establish and elect an executive committee, including a chair
and a vice chair;
(23) adopt and provide to the participating states an annual report;
(24) determine whether a state's adopted language is materially
different from the model compact language such that the state would
not qualify for participation in the compact; and
(25) perform such other functions as may be necessary or
appropriate to achieve the purposes of this compact.
(d) The executive committee shall have the power to act on behalf
of the commission according to the terms of this compact. The powers,
HOUSE BILL No. 2533—page 36
duties and responsibilities of the executive committee shall include:
(1) Overseeing the day-to-day activities of the administration of
the compact, including compliance with the provisions of the compact,
the commission's rules and bylaws and other such duties as deemed
necessary;
(2) recommending to the commission changes to the rules or
bylaws, changes to this compact legislation, fees charged to compact
member states, fees charged to licensees and other fees;
(3) ensuring compact administration services are appropriately
provided, including by contract;
(4) preparing and recommending the budget;
(5) maintaining financial records on behalf of the commission;
(6) monitoring compact compliance of member states and
providing compliance reports to the commission;
(7) establishing additional committees as necessary;
(8) exercise 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; and
(9) other duties as provided in the rules or bylaws of the
commission.
(A) The executive committee shall be composed of up to seven
voting members:
(i) The chair and vice chair of the commission and any other
members of the commission who serve on the executive committee
shall be voting members of the executive committee.
(ii) Other than the chair, vice chair, secretary and treasurer, the
commission shall elect three voting members from the current
membership of the commission.
(iii) The commission may elect ex officio, nonvoting members
from a recognized national organization as approved by the
commission. The commission's bylaws shall identify qualifying
organizations and the manner of appointment if the number of
organizations seeking to appoint an ex officio member exceeds the
number of members specified in this article.
(B) The commission may remove any member of the executive
committee as provided in the commission's bylaws.
(C) The executive committee shall meet at least annually.
(i) Annual executive committee meetings, as well as any executive
committee meeting at which it does not take or intend to take formal
action on a matter for which a commission vote would otherwise be
required, shall be open to the public, except that the executive
committee may meet in a closed, non-public session of a public
meeting when dealing with any of the matters covered under article 9(f)
(4).
(ii) The executive committee shall give five business days advance
notice of its public meetings, posted on its website and as determined to
provide notice to persons with an interest in the public matters the
executive committee intends to address at those meetings.
(D) The executive committee may hold an emergency meeting
when acting for the commission to:
(i) Meet an imminent threat to public health, safety or welfare;
(ii) prevent a loss of commission or participating state funds; or
(iii) protect public health and safety.
(e) The commission shall adopt and provide an annual report to
the member states.
(f) Meetings of the commission.
(1) All meetings of the commission that are not closed pursuant to
this subsection shall be open to the public. Notice of public meetings
shall be posted on the commission's website at least 30 days prior to the
public meeting.
(2) Notwithstanding article 9(f)(1), the commission may convene
an emergency public meeting by providing at least 24 hours prior
HOUSE BILL No. 2533—page 37
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 article 11(l). The commission's
legal counsel shall certify one of the reasons justifying an emergency
public meeting has been met.
(3) Notice of all commission meetings shall provide the time, date
and location of the meeting and if the meeting is to be held or
accessible via telecommunication, video conference or other electronic
means, the notice shall include the mechanism for access to the
meeting.
(4) The commission may convene in a closed, nonpublic meeting
for the commission to discuss:
(A) Noncompliance of a member state with its obligations under
the 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 by the
commission or by a member state's 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 pursuant to the compact;
(K) legal advice;
(L) matters specifically exempted from disclosure to the public by
federal or member state law; or
(M) other matters as adopted by the commission by rule.
(5) If a meeting, or portion of a meeting, is closed, the presiding
officer shall state that the meeting shall be closed and reference each
relevant exempting provision and such reference shall 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 therefor, including a
description of the views expressed. All documents considered in
connection with an action shall be identified in such minutes. All
minutes and documents of a closed meeting shall remain under seal,
subject to release only by a majority vote of the commission or order of
a court of competent jurisdiction.
(g) Financing the commission.
(1) The commission shall pay or provide for the payment of the
reasonable expenses of its 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 member state and impose fees on licensees of member states
to whom it grants a multistate license to cover the cost of the operations
and activities of the commission and its staff, which shall be in a total
amount sufficient to cover its annual budget as approved each year for
which revenue is not provided by other sources. The aggregate annual
assessment amount for member states shall be allocated based upon a
formula that the commission shall adopt by rule.
HOUSE BILL No. 2533—page 38
(4) The commission shall not incur obligations of any kind prior to
securing the funds adequate to meet the same, nor shall the commission
pledge the credit of any member states, except by and with the
authority of the member state.
(5) The commission shall keep accurate accounts of all receipts
and disbursements. The receipts and disbursements of the commission
shall be subject to the financial review and accounting procedures
established under its bylaws. All receipts and disbursements of funds
handled by the commission shall be subject to an annual financial
review by a certified or licensed public accountant, and the report of the
financial review shall be included in and become part of the annual
report of the commission.
(h) Qualified immunity, defense and indemnification.
(1) The members, officers, executive director, employees and
representatives of the commission shall be 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, provided that nothing in this
paragraph shall 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 shall not in
any way compromise or limit the immunity granted under this compact.
(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 or 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, provided that nothing in this
compact shall be construed to prohibit that person from retaining their
own counsel at their own expense, and provided further, that the actual
or alleged act, error or omission did not result from that person's
intentional or willful or wanton misconduct.
(3) The commission shall indemnify and hold harmless any
member, officer, executive director, employee and representative of the
commission for the amount of any settlement or judgment obtained
against that person arising out of any actual or alleged act, error or
omission that occurred within the scope of commission employment,
duties or responsibilities or that such person had a reasonable basis for
believing occurred within the scope of commission employment, duties
or responsibilities, provided that the actual or alleged act, error or
omission did not result from the intentional or willful or wanton
misconduct of that person.
(4) Nothing shall be construed as a limitation on the liability of
any licensee for professional malpractice or misconduct, which shall be
governed solely by any other applicable state laws.
(5) Nothing in this compact shall be interpreted to waive or
otherwise abrogate a member 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 shall be construed to be a waiver of
sovereign immunity by the member states or by the commission.
ARTICLE 10—DATA SYSTEM
(a) The commission shall provide for the development,
maintenance, operation and utilization of a coordinated database and
reporting system.
HOUSE BILL No. 2533—page 39
(b) The commission shall assign each applicant for a multistate
license a unique identifier, as determined by the rules of the
commission.
(c) Notwithstanding any other provision of state law to the
contrary, a member 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:
(1) Identifying information;
(2) licensure data;
(3) adverse actions against a license and information related
thereto;
(4) nonconfidential information related to alternative program
participation, the beginning and ending dates of such participation and
other information related to such participation;
(5) any denial of application for licensure and the reason for such
denial, excluding the reporting of any criminal history record
information where prohibited by law;
(6) the existence of investigative information;
(7) the existence of current significant investigative information;
and
(8) other information that may facilitate the administration of this
compact or the protection of the public, as determined by the rules of
the commission.
(d) The records and information provided to a member state
pursuant to this compact or through the data system, when certified by
the commission or an agent thereof, shall constitute the authenticated
business records of the commission and shall be entitled to any
associated hearsay exception in any relevant judicial, quasi-judicial or
administrative proceedings in a member state.
(e) The existence of current significant investigative information
and the existence of investigative information pertaining to a licensee
in any member state shall only be available to other member states.
(f) It is the responsibility of the member states to monitor the
database to determine whether adverse action has been taken against
such a licensee or license applicant. Adverse action information
pertaining to a licensee or license applicant in any member state shall
be available to any other member state.
(g) Member states contributing information to the data system
may designate information that shall not be shared with the public
without the express permission of the contributing state.
(h) Any information submitted to the data system that is
subsequently expunged pursuant to federal law or the laws of the
member state contributing the information shall be removed from the
data system.
ARTICLE 11— RULEMAKING
(a) The commission shall adopt reasonable rules to effectively and
efficiently implement and administer the purposes and provisions of the
compact. A rule shall be invalid and have no force or effect only if a
court of competent jurisdiction holds that such rule is invalid because
the commission exercised its rulemaking authority in a manner that is
beyond the scope and purposes of the compact, the powers granted in
this compact or based upon another applicable standard of review.
(b) The rules of the commission shall have the force of law in each
member state, provided, however, that where the rules of the
commission conflict with the laws of the member state that establish
the member state's scope of practice laws governing the practice of
esthetics as held by a court of competent jurisdiction, the rules of the
commission shall be ineffective in that state to the extent of the
conflict.
(c) The commission shall exercise its rulemaking powers pursuant
to the criteria set forth in this article and the rules adopted thereunder.
Rules shall become binding as of the date specified by the commission
HOUSE BILL No. 2533—page 40
for each rule.
(d) If a majority of the legislatures of the member states rejects a
rule or portion of a rule by enactment of a statute or resolution in the
same manner used to adopt the compact within four years of the date of
adoption of the rules, then such rules shall have no further force and
effect in any member state or to any state applying to participate in the
compact.
(e) Rules shall be adopted at a regular or special meeting of the
commission.
(f) Prior to adoption of a proposed rule, the commission shall hold
a public hearing and allow persons to provide oral and written
comments, data, facts, opinions and arguments.
(g) Prior to adoption of a proposed rule by the commission and at
least 30 days in advance of the meeting where the commission will
hold a public hearing on the proposed rules, the commission shall
provide a notice of proposed rulemaking:
(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; and
(3) in such other ways as the commission may specify by rule.
(h) The notice of proposed rulemaking shall include:
(1) The time, date and location of the public hearing where the
commission will hear public comments on the proposed rules and, if
different, the time, date and location of the meeting where the
commission will consider and vote on the proposed rules;
(2) if the hearing is held via telecommunication, video conference
or other electronic means, the commission shall include the mechanism
for access to the hearing in the notice of proposed rulemaking;
(3) the text of the proposed rules and the reason therefor;
(4) a request for comments on the proposed rules from any
interested person; and
(5) the manner in which interested persons may submit written
comments.
(i) All hearings shall be recorded. A copy of the recording and all
written comments and documents received by the commission in
response to the proposed rule shall be available to the public.
(j) Nothing in this article shall be construed as requiring a separate
hearing on each rule. Rules may be grouped for the convenience of the
commission at hearings required by this article.
(k) The commission shall, by majority vote of all members, take
final action on the proposed rules based on the rulemaking record and
the full text of the rules.
(1) The commission may adopt changes to the proposed rules
provided the changes do not enlarge the original purpose of the
proposed rules.
(2) The commission shall provide an explanation of the reasons
for substantive changes made to the proposed rules 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 rules. Except for an emergency as provided in subsection (l), the
effective date of the rules shall not be earlier than 45 days after the
commission adopted or amended the rules.
(l) Upon determination that an emergency exists, the commission
may consider and adopt an emergency rule with five days' notice, with
opportunity to comment, provided that the usual rulemaking procedures
provided in the compact and in this article shall be retroactively applied
to the rules as soon as reasonably possible, in no event later than 90
days after the effective date of the rules. For the purposes of this
provision, an emergency rule is one that shall be adopted immediately
to:
(1) Meet an imminent threat to public health, safety or welfare;
(2) prevent the loss of commission or member state funds;
HOUSE BILL No. 2533—page 41
(3) meet a deadline for the adoption of a rule that is established by
federal law or rule; or
(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 any revisions shall
be posted on the website of the commission. The revision shall 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 shall be made in
writing and delivered to the commission prior to the end of the notice
period. If no challenge is made, the revision shall take effect without
further action. If the revision is challenged, the revision shall not take
effect without the approval of the commission.
(n) No member state's rulemaking requirements shall apply under
this compact.
ARTICLE 12—OVERSIGHT, DISPUTE RESOLUTION
AND ENFORCEMENT
(a) Oversight.
(1) The executive and judicial branches of state government in
each member 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 shall 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 it adopts or consents to participate in alternative dispute
resolution proceedings. Nothing in this compact shall affect or limit the
selection or propriety of venue in any action against a licensee for
professional malpractice, misconduct or any such similar matter.
(3) The commission shall be entitled to receive service of process
in any proceeding regarding the enforcement or interpretation of the
compact and shall have standing to intervene in such a proceeding for
all purposes. Failure to provide the commission service of process shall
render a judgment or order void as to the commission, this compact or
adopted rules.
(b) Default, technical assistance and termination.
(1) If the commission determines that a member state has
defaulted in the performance of its obligations or responsibilities under
this compact or the adopted rules, the commission shall provide written
notice to the defaulting state. The notice of default shall describe the
default, the proposed means of curing the default and any other action
that the commission may take, and shall offer training and specific
technical assistance regarding the default.
(2) The commission shall provide a copy of the notice of default
to the other member states.
(3) If a state in default fails to cure the default, the defaulting state
may be terminated from the compact upon an affirmative vote of a
majority of the delegates of the member states, and all rights, privileges
and benefits conferred on that state by this compact may be terminated
on the effective date of termination. A cure of the default does not
relieve the offending state of obligations or liabilities incurred during
the period of default.
(4) Termination of membership in the compact shall be imposed
only after all other means of securing compliance have been exhausted.
Notice of intent to suspend or terminate shall be given by the
commission to the governor, the majority and minority leaders of the
defaulting state's legislature, the defaulting state's licensing authority
and each of the member state's licensing authority.
(5) A state that has been terminated is responsible for all
assessments, obligations and liabilities incurred through the effective
HOUSE BILL No. 2533—page 42
date of termination, including obligations that extend beyond the
effective date of termination.
(6) Upon the termination of a state's membership from this
compact, that state shall immediately provide notice to all licensees
who hold a multistate license within that state of such termination. The
terminated state shall continue to recognize all licenses granted
pursuant to this compact for a minimum of 180 days after the date of
such notice of termination.
(7) The commission shall not bear any costs related to a state that
is found to be in default or that has been terminated from the compact,
unless agreed upon in writing between the commission and the
defaulting state.
(8) The defaulting state 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 shall be awarded all costs of such
litigation, including reasonable attorney fees.
(c) Dispute resolution.
(1) Upon request by a member state, the commission shall attempt
to resolve disputes related to the compact that arise among member
states and between member and nonmember states.
(2) The commission shall adopt a rule providing for both
mediation and binding dispute resolution for disputes as appropriate.
(d) Enforcement.
(1) The commission, in the reasonable exercise of its discretion,
shall enforce the provisions of this compact and the commission's rules.
(2) By majority vote as provided by commission rules, the
commission may initiate legal action against a member state in default
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 the compact and its adopted
rules. The relief sought may include both injunctive relief and damages.
In the event that judicial enforcement is necessary, the prevailing party
shall be awarded all costs of such litigation, including reasonable
attorney fees. The remedies in this compact shall not be the exclusive
remedies of the commission. The commission may pursue any other
remedies available under federal or the defaulting member state's laws.
(3) A member 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 the compact and
its adopted rules. The relief sought may include both injunctive relief
and damages. In the event judicial enforcement is necessary, the
prevailing party shall be awarded all costs of such litigation, including
reasonable attorney fees.
(4) No individual or entity other than a member state shall enforce
this compact against the commission.
ARTICLE 13—EFFECTIVE DATE, WITHDRAWAL
AND AMENDMENT
(a) The compact shall come into effect on the date when the
compact statute is enacted into law in the seventh member state. On or
after the effective date of the compact, the commission shall convene
and review the enactment of each of the charter member states to
determine if the statute enacted by each such charter member state is
materially different than the model compact statute.
(1) A charter member state whose enactment is found to be
materially different from the model compact statute shall be entitled to
the default process set forth in article 12.
(2) If any member state is later found to be in default or is
terminated or withdraws from the compact, the commission shall
remain in existence, and the compact shall remain in effect even if the
number of member states should be less than seven.
HOUSE BILL No. 2533—page 43
(3) Member states enacting the compact after the charter member
states shall be subject to the process set forth in article 9(c)(21) to
determine if their enactments are materially different from the model
compact statute and whether they qualify for participation in this
compact.
(4) All actions taken for the benefit of the commission or in
furtherance of the purposes of the administration of the compact prior
to the effective date of the compact or the commission coming into
existence shall be considered actions of the commission unless
specifically repudiated by the commission.
(5) Any state that joins the compact shall be subject to the
commission's rules and bylaws as they exist on the date that the
compact becomes law in that state. Any rules that have been previously
adopted by the commission shall have the full force and effect of law
on the day the compact becomes law in that state.
(b) Any member state may withdraw from this compact by
enacting a statute repealing that state's enactment of the compact.
(1) A member state's withdrawal shall not take effect until 180
days after the enactment of the repealing statute.
(2) Withdrawal shall not affect the continuing requirement of the
withdrawing state's licensing authority to comply with the investigative
and adverse action reporting requirements of this compact prior to the
effective date of withdrawal.
(3) Upon the enactment of a statute withdrawing from this
compact, a state shall immediately provide notice of such withdrawal to
all licensees within that state. Notwithstanding any subsequent statutory
enactment to the contrary, such withdrawing state shall continue to
recognize all licenses granted pursuant to this compact for a minimum
of days after the date of such notice of withdrawal.
(c) Nothing contained in this compact shall be construed to
invalidate or prevent any licensure agreement or other cooperative
arrangement between a member state and a non-member state that does
not conflict with the provisions of this compact.
(d) This compact may be amended by the member states. No
amendment to this compact shall become effective and binding upon
any member state until it is enacted into the laws of all member states.
ARTICLE 14—CONSTRUCTION AND SEVERABILITY
(a) This compact and the commission's rulemaking authority shall
be liberally construed to effectuate the purposes and the
implementation and administration of the compact. The provisions of
the compact expressly authorizing or requiring the adoption of rules
shall not be construed to limit the commission's rulemaking authority
solely for those purposes.
(b) The provisions of this compact shall be 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
member state, a state seeking participation in the compact or the United
States, or the applicability thereof 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 thereof to any other government, agency, person or
circumstance shall not be affected thereby.
(c) Notwithstanding article 14(b), the commission may deny a
state's participation in the compact or, in accordance with the
requirements of article 12, terminate a member state's participation in
the compact if it determines that a constitutional requirement of a
member state is a material departure from the compact. Otherwise, if
this compact shall be held to be contrary to the constitution of any
member state, the compact shall remain in full force and effect as to the
remaining member states and in full force and effect as to the member
state affected as to all severable matters.
HOUSE BILL No. 2533—page 44
ARTICLE 15—CONSISTENT EFFECT AND CONFLICT
WITH OTHER STATE LAWS
(a) Nothing in this compact shall prevent or inhibit the
enforcement of any other law of a member state that is not inconsistent
with the compact.
(b) Any laws, statutes, rules and regulations or other legal
requirements in a member state in conflict with the compact are
superseded to the extent of the conflict.
(c) All permissible agreements between the commission and the
member states are binding in accordance with their terms.
(d) The purpose of this compact is to facilitate multistate licensure
for estheticians. Nothing in this compact shall subject a member state to
any laws, regulations, rules or policies from any other member state
beyond the intended purpose of this compact.
(e) Nothing in this compact shall require any member state to
adopt additional laws, regulations, rules or policies beyond the intended
purpose of this compact.
Sec. 4. This section shall be known and may be cited as the
athletic trainer licensure compact.
ARTICLE 1—PURPOSE
(a) The purpose of this compact is to expand mobility of athletic
training practice and improve public access to services by providing
athletic trainers licensed in a member state the ability to practice in
other member states. This compact preserves the regulatory authority of
states to protect public health and safety through the current system of
state licensure, while also providing for expanded interstate mobility
through a compact privilege granted to qualifying professionals.
(b) This compact is designed to achieve the following objectives:
(1) Increase public access to athletic training by providing for the
mutual recognition of other member state licenses;
(2) provide opportunities for interstate practice by licensed athletic
trainers who meet uniform licensure requirements;
(3) promote mobility and workforce development by eliminating
the necessity for licenses in multiple states by providing for the mutual
recognition of other member state licenses;
(4) reduce administrative burden on applicants and member states;
(5) enhance the states' ability to protect the public's health and
safety;
(6) encourage the cooperation of member states in regulating
multistate practice of licensed athletic trainers;
(7) support relocating active military and their spouses;
(8) enhance the exchange of licensure, investigative and
disciplinary information among member states;
(9) support the uniformity of licensed athletic trainer licensure
requirements throughout the states;
(10) affirm the authority of all member states to hold a licensed
athletic trainer accountable for meeting all state practice laws in the
state where the patient is located at the time care is rendered to allow
for continuity of competent care through the mutual recognition of
member state licenses; and
(11) adhere to the substantive language in the model compact
language in order to promote uniformity and ensure that all member
states have accepted and are mutually obligated to the same terms.
ARTICLE 2—DEFINITIONS
As used in this compact:
(a) "Active military member" means any individual with full-time
duty status in the active armed forces of the United States, including
members of the national guard and reserve.
(b) "Adverse action" means any administrative, civil, equitable or
HOUSE BILL No. 2533—page 45
criminal action permitted by a state's laws that is imposed by a
licensing authority or other authority against a licensee, including
actions against an individual's license or compact privilege such as
revocation, suspension, probation, monitoring of the licensee, limitation
on the licensee's practice or any other encumbrance on licensure
affecting a licensee's authorization to practice.
(c) "Alternative program" means a non-disciplinary monitoring or
practice remediation process applicable to an athletic trainer approved
by a state licensing authority of a member state in which the athletic
trainer is licensed. This includes, but is not limited to, programs to
which licensees with substance use, addiction or mental health
conditions are referred in lieu of adverse action.
(d) "Athletic training" means the prevention, examination,
assessment, treatment and rehabilitation of emergent, acute or chronic
injuries and medical conditions as defined by applicable member state
laws and regulations.
(e) "Athletic training compact commission" or "commission"
means the government agency whose membership consists of all states
that have enacted this compact, which is known as the athletic trainer
licensure compact commission, as described herein , and which shall
operate as an instrumentality of the member states to administer and
implement the compact according to its terms.
(f) "BOC" means the board of certification, inc. or any successor
organization thereto.
(g) "CAATE" means the commission on accreditation of athletic
training education or any successor organization thereto.
(h) "Charter member state" means any member state which
enacted this compact by law before the effective date specified in this
compact.
(i) "Commissioner" means the individual appointed by a member
state to serve as the member of the commission for that member state.
(j) "Compact" means this athletic trainer compact.
(k) "Compact privilege" means the authorization granted by a
remote state, equivalent to a license, allowing a licensee from another
member state to provide athletic training services in a remote state.
(l) "Compact qualifying license" means a license that is not an
encumbered license issued by a member state to practice athletic
training that qualifies the licensee to exercise a compact privilege
pursuant to article 4 of this compact.
(m) "Continuing competence" means a requirement, as a condition
of license renewal, to provide evidence of successful participation, and
completion of, educational and professional activities relevant to
practice or area of work. for purposes of this compact, evidence of
active BOC certification may satisfy the meaning of continuing
competence as set forth in this compact.
(n) "Current significant investigative information" means:
(1) Investigative information that a licensing authority, after a
preliminary inquiry that includes notification and an opportunity for the
subject licensee to respond, if required by state law, has reason to
believe is not groundless and, if proved true, would indicate more than
a minor infraction; or
(2) investigative information that indicates that the subject
licensee represents an immediate threat to public health and safety,
regardless of whether the subject licensee has been notified and had an
opportunity to respond.
(o) "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).
(p) "Data system" means the commission's repository of
information about licensees, including, but not limited to, examination,
licensure, investigative, compact privilege, adverse action and
HOUSE BILL No. 2533—page 46
alternative program.
(q) "Encumbrance" or "encumbered" means a revocation or
suspension of, or any limitation or condition on, the full and
unrestricted practice of athletic training licensed and regulated by a
licensing authority.
(r) "Executive committee" means a group of commissioners
elected or appointed to act on behalf of and within the powers granted
to them by the compact and the commission.
(s) "Investigative information" means information, records and
documents received or generated by a licensing authority pursuant to an
investigation.
(t) "Jurisprudence requirement" means the assessment of an
individual's knowledge of the laws and rules governing the practice of
athletic training, as applicable, in a state.
(u) "License" means current authorization by a member state to
engage in the practice of athletic training.
(v) "Licensee" or "licensed athletic trainer" means an individual
who currently holds an active, unrestricted license and who meets all of
the requirements outlined in article 4 of this compact.
(w) "Licensing authority" means the board or agency of a state, or
equivalent, that is responsible for the licensing and regulation of
athletic trainers.
(x) "Model compact language" means the model language for the
athletic trainer compact on file with the council of state governments or
other entity as designated by the commission to which all member
states shall substantively adhere and adopt.
(y) "Member state" means a state that has enacted the compact.
(z) "Remote state" means a member state other than the state of
qualifying licensure.
(aa) "Rule" means a regulation adopted by an entity that has the
force of law.
(bb) "Scope of practice" means the procedures, actions and
processes an athletic trainer licensed in a state is permitted to undertake
in that state and the circumstances under which the licensee is
permitted to undertake those procedures, actions and processes. Such
procedures, actions and processes and the circumstances under which
they may be undertaken may be established through means, including,
but not limited to, statute, regulations, case law and other processes
available to the state licensing authority or other government agency.
"Scope of practice" includes any state requirements regarding
supervision or direction, if required by such state and as further defined
by such state's statutes and regulations.
(cc) "Single state license" means a license issued by any state that
authorizes practice only within the issuing state.
(dd) "State" means any state, commonwealth, district or territory
of the United States of America.
(ee) "State of qualifying licensure" means the member state that
has issued a compact qualifying license to a licensee.
(ff) "Unencumbered license" means a license that authorizes a
licensee to engage in the full and unrestricted practice of athletic
training.
ARTICLE 3—STATE PARTICIPATION
IN THE COMPACT
(a) To be eligible to join this compact and to maintain eligibility as
a member state, a state shall:
(1) Enact and maintain a statute that is not materially different
from the model compact language;
(2) license and regulate the practice of athletic training;
(3) require that licensees in that state maintain continuing
competence standards as part of their state practice act or rules;
(4) have a mechanism in place for receiving and investigating
complaints about licensees;
HOUSE BILL No. 2533—page 47
(5) grant the compact privilege to a licensee who meets all the
requirements outlined in article 4 in accordance with the terms of the
compact and any rules adopted under this compact;
(6) participate fully in the compact commission's data system,
including using the unique identifier as defined in rules;
(7) notify the compact commission, in compliance with the terms
of the compact and rules, of any adverse action or the availability of
current significant investigative information regarding a licensee;
(8) within a time frame established by rule, implement or utilize
procedures for considering the criminal history records of applicants
for a compact qualifying license, which includes receiving the results of
the federal bureau of investigation record search and shall use those
results in making licensure decisions. These procedures shall include
the submission of fingerprints or other biometric-based information by
applicants for the purpose of obtaining an applicant's criminal history
record information from the federal bureau of investigation and the
agency responsible for retaining that state's criminal records:
(A) Fully implement a criminal background check requirement, in
order to participate in the issuance and acceptance of compact
privileges; and
(B) communication between a member state and the compact
commission or among member states regarding the verification of
eligibility for licensure through the compact shall not include any
information received from the federal bureau of investigation relating
to a federal criminal records check performed by a member state; and
(9) comply with and enforce the rules of the compact commission.
(b) Member states may set and collect a fee for issuance and
renewal of a compact privilege to applicants.
(c) Individuals without a compact qualifying license shall continue
to be able to apply for a member state's single state license as provided
under the laws of each member state.
(d) Nothing in this compact shall affect the requirements
established by a member state for the issuance of a single state license.
(e) A compact qualifying license issued to a licensee by a member
state shall be recognized by each remote state as authorizing that
licensee to engage in the practice of athletic training, under a compact
privilege, in another member state in accordance with the requirements
in article 4.
ARTICLE 4—COMPACT PRIVILEGE
(a) To be eligible for a compact privilege under the terms and
provisions of the compact, the licensee shall complete a criminal
background check performed by the licensing authority in the state of
qualifying licensure prior to entry in the compact and shall:
(1) Satisfy one of the two following pathways:
(A) Hold a valid, current and active certification through the BOC
or its successor organization; or
(B) if a licensee does not meet the requirements of subparagraph
(A), complete all of the following:
(i) An education program that is:
(a) at least a bachelor's degree with a major course of study in
athletic training or an equivalent course of study from a college or
university accredited at the time of graduation by CAATE or its
successor organization;
(b) an academic degree from a college or university in a foreign
country equivalent to the degree described in subclause (a) with a major
course of study as described in subclause (a) that is accredited by
CAATE or its successor organization; or
(c) the substantial equivalent of the foregoing that the commission
may determine by rule; and
(ii) successful completion of the comprehensive exam
administered by the BOC or its successor organization preceding the
date of the licensee's application for licensure in the licensee's state of
HOUSE BILL No. 2533—page 48
qualifying licensure, or the substantial equivalent of the foregoing
requirement, which the commission may determine by rule;
(2) hold a compact qualifying license;
(3) have not had any encumbrance or restriction against any
license or compact privilege to practice athletic training within the
previous two years;
(4) be eligible for a compact privilege in any member state in
accordance with article 4;
(5) notify the compact commission that the licensee is seeking the
compact privilege within a remote state;
(6) pay any applicable fees, including any state fee, for the
compact privilege;
(7) meet any continuing competence requirements established by
the state of qualifying licensure;
(8) comply with any requirements of the state of qualifying
licensure as set forth in article 3;
(9) meet any jurisprudence requirements established by the remote
state where the licensee is seeking a compact privilege; and
(10) report to the compact commission any adverse action,
encumbrance or restriction on a license taken by any non-member state
within 30 days from the date that the action is taken.
(b) The compact privilege is valid until the expiration date of the
compact qualifying license. To maintain a compact privilege, renewal
of the compact privilege shall be congruent with the renewal of the
compact qualifying license as the compact commission may define by
rule. The licensee shall comply with the requirements of this article to
maintain the compact privilege in the remote state. A licensee may
apply for and hold compact privileges in multiple member states.
(c) A licensed athletic trainer shall follow the scope of practice of
the member state where the patient is located. A licensee engaging in
the practice of athletic training in a remote state under the compact
privilege shall adhere to the scope of practice laws and regulations of
the remote state. Licensees shall be responsible for educating
themselves on and complying with any and all state laws relating to the
remote practice of athletic training, as applicable.
(d) A licensee engaging in the practice of athletic training in a
remote state is subject to that state's regulatory authority. A remote state
may, in accordance with due process and that state's laws, remove a
licensee's compact privilege in the remote state for a specific period of
time, impose fines, or take any other necessary actions to protect the
health and safety of its citizens. Any member state which undertakes
such an action shall promptly notify the member state and the
commission as specified in the rules. The licensee may be deemed to be
ineligible to exercise the compact privilege by any member state until
the specific time for removal has passed and all fines are paid.
(e) All member state disciplinary orders that impose adverse
action against a compact qualifying licensee shall result in deactivation
of the licensee's compact privilege in all member states during the
pendency of the order. If a compact qualifying license is encumbered,
the licensee shall lose the compact privilege in any remote state until
the following occur:
(1) The compact qualifying license is no longer encumbered; and
(2) the licensee has not had any encumbrance or restriction against
any license, compact qualifying license or compact privilege within the
previous two years.
(f) Once an encumbered license is restored to good standing as a
compact qualifying license as certified by the licensing authority, the
licensee shall meet the requirements of this article to obtain a compact
privilege in any remote state.
(g) If a licensee's compact privilege in any remote state is
removed, that licensee may also lose the compact privilege in other
remote states, as each member state shall determine in its sole authority,
until the following occur:
(1) The specific period of time for which the compact privilege
HOUSE BILL No. 2533—page 49
was removed has ended;
(2) all fines have been paid; and
(3) have not had any encumbrance or restriction against any
license or compact privilege within the previous two years.
(h) Once the requirements of article 4(g) have been met, the
licensee shall meet the requirements in article 4(a) to obtain a compact
privilege in a remote state.
ARTICLE 5—COMPACT QUALIFYING LICENSE
(a) A licensee may hold only one compact qualifying license at a
time. The procedures for such designation may be further defined by
the compact commission by rule.
(b) Nothing in this article shall require that the state of qualifying
licensure be the state of primary residence or state of primary practice
for the licensee.
(c) Nothing in this compact shall interfere with a licensee's ability
to hold a single state license in multiple states.
(d) Nothing in this compact shall affect the requirements
established by a member state for the issuance of a license other than a
compact qualifying license.
ARTICLE 6—ACTIVE MILITARY MEMBERS OR
THEIR SPOUSES
An active military member or their spouse shall not be required to
pay to the commission for a compact privilege. If a member state
chooses to charge a member state fee, it may choose to charge a
reduced fee or no fee to an active military member or such military
member's spouse for a compact privilege.
ARTICLE 7—ADVERSE ACTIONS
(a) A member state in which a licensee is issued a compact
qualifying license shall have the exclusive authority to impose adverse
action against the compact qualifying license issued by that member
state.
(b) A member state may take adverse action based on current
significant investigative information of a remote state, so long as the
member state follows its own procedures for imposing adverse action.
(c) Nothing in this compact shall override a member state's
decision that participation in an alternative program may be used in lieu
of adverse action and that such participation shall remain non-public if
required by the member state's laws or rules.
(d) A remote state shall have the authority to:
(1) Take adverse action as set forth in this compact against a
licensee's compact privilege in that state; and
(2) issue subpoenas for both hearings and investigations that
require the attendance and testimony of witnesses as well as the
production of evidence.
(A) Subpoenas may be issued by a member state athletic training
licensing authority for the attendance and testimony of witnesses and
the production of evidence.
(B) A member state that issues a subpoena may request service of
that subpoena by another member state. The member state receiving the
request to serve a subpoena shall serve the subpoena if it is deemed
enforceable by a court of competent jurisdiction according to the
practice and procedure in the receiving member state.
(C) The issuing authority shall pay any witness fees, travel
expenses, mileage and other fees required by the service statutes of the
state where the witnesses or evidence are located.
(e) For the purposes of taking adverse action, a member state shall
give the same priority and effect to reported conduct received from
another member state as it would if the conduct had occurred within
that state. In so doing, the investigating member state shall apply its
HOUSE BILL No. 2533—page 50
own state laws to determine appropriate action.
(f) A member state, if otherwise permitted by state law, may
recover from the affected licensee the costs of investigations and
dispositions of cases resulting from any adverse action taken against
that licensee.
(g) Joint investigations.
(1) In addition to the authority granted to a member state by its
respective state law, any member state may participate with other
member states in joint investigations of licensees.
(2) Member states shall share any current significant investigative
information, litigation or compliance materials in furtherance of any
joint or individual investigation initiated under the compact. In sharing
such information between member state athletic trainer licensing
authorities, all information obtained shall be kept confidential except as
otherwise mutually agreed upon by the sharing and receiving member
state.
(3) A remote state may issue subpoenas on behalf of a member
state for both hearings and investigations that require the attendance
and testimony of witnesses as well as the production of evidence.
(h) If a member state takes adverse action, it shall promptly notify
the administrator of the data system. The administrator of the data
system shall promptly notify all member states of any adverse actions
by remote states.
(i) Nothing in this compact shall permit a member state to take
any adverse action against a licensee or holder of a compact privilege
for conduct or practice occurring in another member state that was legal
in the member state at the time it was undertaken.
ARTICLE 8—ESTABLISHMENT AND OPERATION
OF THE COMMISSION
(a) The compact member states hereby create and establish a joint
government agency whose membership consists of all member states
that have enacted the compact known as the athletic trainer licensure
compact commission. The compact commission is an instrumentality of
the member states acting jointly and not an instrumentality of any one
state. The compact commission shall come into existence on or after
the effective date of the compact as set forth in article 12.
(b) Membership, voting and meetings.
(1) Each member state shall have and be limited to one
commissioner, selected by that member state's licensing authority
within 60 days of the member state's effective date.
(2) The commissioner shall be an administrator or their designated
staff or current board member of the licensing authority.
(3) The compact commission may recommend removal or
suspension of any commissioner from office.
(4) A member state's licensing authority shall fill any vacancy of
its commissioner occurring on the compact commission within 60 days
of the vacancy.
(5) Each commissioner shall be entitled to one vote on all matters
before the compact commission requiring a vote by the commissioners.
(6) The compact commission shall meet at least once during each
calendar year. Additional meetings may be held as set forth in the
bylaws. A commissioner shall vote in person or by such other means as
provided in the bylaws. The bylaws may provide for commissioners to
meet by telecommunication, video conference or other similar
electronic means.
(c) The compact commission shall have the following powers:
(1) Adopt and amend rules and bylaws;
(2) establish a code of conduct, confidentiality and conflict of
interest policies for commissioners;
(3) establish the fiscal year of the compact commission;
(4) maintain its financial records in accordance with the bylaws;
(5) purchase and maintain insurance and insurance bonds;
HOUSE BILL No. 2533—page 51
(6) accept or contract for services of personnel, including, but not
limited to, employees of a member state;
(7) conduct a financial review or audit;
(8) hire employees, elect or appoint officers, fix compensation,
define duties, grant such individuals appropriate authority to carry out
the purposes of the compact and establish the compact commission's
personnel policies and programs relating to conflicts of interest,
qualifications of personnel and other related personnel matters;
(9) enter into contracts or arrangements for the management of the
affairs of the commission;
(10) assess and collect fees;
(11) 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, except that at all
times the compact commission shall avoid any appearance of
impropriety or conflict of interest;
(12) lease, purchase, retain, own, hold, improve, invest or use any
property, whether real, personal or mixed , or any undivided interest
therein;
(13) sell, convey, mortgage, pledge, lease, exchange, abandon or
otherwise dispose of any property, whether real, personal or mixed;
(14) establish a budget and make expenditures;
(15) borrow and invest money;
(16) meet and take such actions as are consistent with the
provisions of this compact, the compact commission's rules and the
bylaws;
(17) initiate and conclude legal proceedings or actions in the name
of the compact commission, except that the standing of any licensing
authority to sue or be sued under applicable law shall not be affected;
(18) maintain and certify records and information provided to a
member state as the authenticated business records of the compact
commission and designate an agent to do so on the compact
commission's behalf;
(19) provide and receive information from and cooperate with law
enforcement agencies;
(20) determine whether a state's adopted language is materially
different from the model compact language such that the state would
not qualify for participation in the compact;
(21) establish and elect an executive committee, including a
chairperson and vice chair person, secretary, treasurer and such other
offices as the commission shall establish by rule or bylaw;
(22) appoint committees, including standing committees,
composed of members, state regulators, state legislators or their
representatives, consumer representatives and such other interested
persons as may be designated in this compact and the bylaws; and
(23) perform such other functions as may be necessary or
appropriate to achieve the purposes of this compact.
(d) The executive committee.
(1) The executive committee shall have the power to act on behalf
of the compact commission according to the terms of this compact. The
powers, duties and responsibilities of the executive committee shall
include:
(A) Exercise the powers and duties of the compact commission
during the interim between compact commission meetings, except for
adopting or amending rules, adopting or amending bylaws and
exercising any other powers and duties expressly reserved to the
compact commission by rule or bylaw;
(B) oversee the day-to-day activities of the administration of the
compact, including enforcement and compliance with the provisions of
the compact, its rules and bylaws and other such duties as deemed
necessary;
(C) recommend to the compact commission changes to the rules
or bylaws, changes to this compact legislation, fees charged to compact
member states, fees charged to licensees and other fees;
HOUSE BILL No. 2533—page 52
(D) ensure compact administration services are appropriately
provided, including by contract;
(E) prepare and recommend the budget;
(F) maintain financial records on behalf of the compact
commission;
(G) monitor compact compliance of member states and provide
compliance reports to the compact commission;
(H) establish additional committees as necessary; and
(I) other duties as provided in the rules or bylaws of the compact
commission.
(2) The executive committee shall be composed of five voting
members elected by the compact commission:
(A) The chair and vice chair of the compact commission shall be
voting members of the executive committee;
(B) the compact commission shall elect up to three additional
voting members from the current membership of the compact
commission to include the offices of treasurer, secretary and one
member-at-large; and
(C) up to four ex officio, nonvoting member from recognized
national athletic trainer organizations.
(e) The compact commission may remove any member of the
executive committee as provided in the compact commission's bylaws.
(1) The executive committee shall meet at least annually.
Executive committee meetings shall be open to the public, except that
the executive committee may meet in a closed, non-public meeting as
provided in this article.
(A) The executive committee shall give advance notice of its
meetings, posted on its website and as determined by rule or bylaw to
provide notice to persons with an interest in the business of the
compact commission.
(B) The executive committee may hold a special meeting in
accordance with this article.
(f) The compact commission shall adopt and provide to the
member states an annual report.
(g) Meetings of the compact commission.
(1) All meetings shall be open to the public, except that the
compact commission may meet in a closed, non-public meeting as
provided in this article.
(2) Public notice for all meetings of the full compact commission
of meetings shall be given in the same manner as required under the
rulemaking provisions in this compact , except that the compact
commission may hold a special meeting as provided in this article.
(3) The compact commission may hold a special meeting when it
must meet to conduct emergency business by giving 24 hours' notice to
all commissioners, on the compact commission's website and other
means as provided in the compact commission's rules. The compact
commission's legal counsel shall certify that the compact commission's
need to meet qualifies as an emergency.
(4) The compact commission or the executive committee or other
committees of the compact commission may convene in a closed, non-
public meeting for the compact commission or executive committee or
other committees of the compact commission to receive legal advice or
to discuss:
(A) Non-compliance of a member state with its obligations under
the compact;
(B) the employment, compensation, discipline or other matters,
practices or procedures related to specific employees;
(C) current or threatened discipline of a licensee by a member
state's 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;
HOUSE BILL No. 2533—page 53
(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 compact commission or other committee
charged with responsibility of investigation or determination of
compliance issues pursuant to the compact;
(K) matters specifically exempted from disclosure by federal or
member state law; or
(L) other matters as specified in rules of the compact commission.
(5) If a meeting or portion of a meeting is closed, the compact
commission's legal counsel or designee shall certify that the meeting
will be closed and reference each relevant exempting provision and
such reference shall be recorded in the minutes.
All minutes and documents of a closed meeting shall remain under
seal, subject to release only by a majority vote of the compact
commission or order of a court of competent jurisdiction.
(h) Financing of the compact commission.
(1) The compact commission shall pay or provide for the payment
of the reasonable expenses of its establishment, organization and
ongoing activities.
(2) The compact commission may accept any and all appropriate
revenue sources as provided in this article.
(3) The compact commission may levy on and collect an annual
assessment from each member state and impose fees on licensees of
member states to whom it grants a compact privilege to cover the cost
of the operations and activities of the compact commission and its staff,
which shall be in a total amount sufficient to cover its annual budget as
approved each year for which revenue is not provided by other sources.
The aggregate annual assessment amount for member states shall be
allocated based upon a formula that the compact commission shall
adopt by rule.
(4) The compact commission shall not incur obligations of any
kind prior to securing the funds or a loan adequate to meet the same,
nor shall the compact commission pledge the credit of any of the
member states, except by and with the authority of the member state.
(5) The compact commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of the
compact commission shall be subject to the financial review and
accounting procedures established under its bylaws. However, all
receipts and disbursements of funds handled by the compact
commission shall be subject to an annual financial review or audit by a
certified or licensed public accountant, and the report of the financial
review or audit shall be included in and become part of the annual
report of the compact commission.
(i) Qualified immunity, defense and indemnification.
(1) The members, officers, executive director, employees and
representatives of the compact commission shall be 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
compact commission employment, duties or responsibilities, provided
that nothing in this paragraph shall 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 compact
commission shall not in any way compromise or limit the immunity
granted under this compact.
(2) The compact commission shall defend any member, officer,
executive director, employee and representative of the compact
HOUSE BILL No. 2533—page 54
commission in any civil action seeking to impose liability arising out of
any actual or alleged act, error or omission that occurred within the
scope of compact commission employment, duties or responsibilities or
as determined by the compact commission that the person against
whom the claim is made had a reasonable basis for believing occurred
within the scope of compact commission employment, duties or
responsibilities; provided that this compact shall not be construed to
prohibit that person from retaining their own counsel at their own
expense; and provided further, that the actual or alleged act, error or
omission did not result from that person's intentional or willful or
wanton misconduct.
(3) The compact commission shall indemnify and hold harmless
any member, officer, executive director, employee and representative of
the compact commission for the amount of any settlement or judgment
obtained against that person arising out of any actual or alleged act,
error or omission that occurred within the scope of compact
commission employment, duties or responsibilities or that such person
had a reasonable basis for believing occurred within the scope of
compact commission employment, duties or responsibilities, provided
that the actual or alleged act, error or omission did not result from the
intentional or willful or wanton misconduct of that person.
(4) Nothing in this compact shall be construed as a limitation on
the liability of any licensee for professional malpractice or misconduct,
which shall be governed solely by any other applicable state laws.
(5) Nothing in this compact shall be interpreted to waive or
otherwise abrogate a member 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) This compact shall not be construed to be a waiver of
sovereign immunity by the member states or by the compact
commission.
ARTICLE 9—DATA SYSTEMS
(a) The commission shall provide for the development,
maintenance, operation and utilization of a coordinated database and
reporting system containing licensure, compact privileges, adverse
action and the presence of current significant investigative information
on all licensees and applicants for a license in member states.
(b) Notwithstanding any other provision of state law to the
contrary, a member state shall submit a uniform data set to the data
system on all licensees, applicants and others to whom this compact is
applicable as required by the rules of the compact commission,
including:
(1) Identifying information;
(2) licensure data;
(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 such participation and
other information related to such participation not made confidential
under member state law;
(5) any denial of an application for licensure and the reason for
such denial, excluding the reporting of any criminal history record
information where prohibited by law;
(6) a binary determination regarding the presence of current
significant investigative information; and
(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 member state
pursuant to this compact or through the data system, when certified by
the commission or an agent thereof, shall constitute the authenticated
HOUSE BILL No. 2533—page 55
business records of the commission, and shall be entitled to any
associated hearsay exception in any relevant judicial, quasi-judicial or
administrative proceedings in a member state.
(d) Current significant investigative information pertaining to a
licensee in any member state shall only be available to other member
states.
(e) It is the responsibility of the member states to monitor the data
system 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 member state shall be available to
any other member state.
(f) Member states contributing information to the data system may
designate information that may not be shared with the public without
the express permission of the contributing state.
(g) Any information submitted to the data system that is
subsequently expunged pursuant to federal law or the laws of the
member state contributing the information shall be removed from the
data system.
ARTICLE 10—RULEMAKING
(a) The compact commission shall adopt reasonable rules in order
to effectively and efficiently implement and administer the purposes
and provisions of the compact. A rule shall be invalid and have no force
or effect only if a court of competent jurisdiction holds that the rule is
invalid because the compact commission exercised its rulemaking
authority in a manner that is beyond the scope and purposes of the
compact, or the powers granted hereunder, or based upon another
applicable standard of review.
(b) The rules of the compact commission shall have the force of
law in each member state, provided, however, that where the rules
conflict with the laws or regulations of a member state that relate to the
scope of practice that a licensed athletic trainer is permitted to
undertake in that state and the circumstances under which they may do
so, as held by a court of competent jurisdiction, the rules of the
compact commission shall be ineffective in that state to the extent of
the conflict.
(c) The compact commission shall exercise its rulemaking powers
pursuant to the criteria set forth in this article and the rules adopted
thereunder. Rules shall become binding on the day following adoption
or as of the date specified in the rule or amendment, whichever is later.
(d) If a majority of the legislatures of the member states rejects a
rule or portion of a rule by enactment of a statute or resolution in the
same manner used to adopt the compact within four years of the date of
adoption of the rule, then such rule shall have no further force and
effect in any member state.
(e) Rules shall be adopted at a regular or special meeting of the
compact commission.
(f) Prior to adoption of a proposed rule, the compact commission
shall hold a public hearing and allow persons to provide oral and
written comments, data, facts, opinions and arguments.
(g) Prior to adoption of a proposed rule by the compact
commission and at least 30 days in advance of the meeting at which the
compact commission will hold a public hearing on the proposed rule,
the compact commission shall provide a notice of proposed
rulemaking:
(1) On the website of the compact commission or other publicly
accessible platform;
(2) to persons who have requested notice of the compact
commission's notices of proposed rulemaking; and
(3) in such other way as the compact commission may by rule
specify.
(h) The notice of proposed rulemaking shall include:
(1) The time, date and location of the public hearing at which the
HOUSE BILL No. 2533—page 56
compact commission shall hear public comments on the proposed rule
and, if different, the time, date and location of the meeting where the
compact commission shall consider and vote on the proposed rule;
(2) if the hearing is held via telecommunication, video conference
or other electronic means, the compact commission shall include the
mechanism for access to the hearing in the notice of proposed
rulemaking;
(3) the text of the proposed rule and the reason therefor;
(4) a request for comments on the proposed rule from any
interested person; and
(5) the manner where interested persons may submit written
comments.
(i) All hearings shall be recorded. A copy of the recording and all
written comments and documents received by the compact commission
in response to the proposed rule shall be available to the public.
(j) Nothing in this article shall be construed as requiring a separate
hearing on each rule. Rules may be grouped for the convenience of the
compact commission at hearings required by this article.
(k) The compact commission shall, by majority vote of all
members, take final action on the proposed rule based on the
rulemaking record and the full text of the rule.
(1) The compact commission may adopt changes to the proposed
rule provided the changes do not enlarge the original purpose of the
proposed rule.
(2) The compact 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 compact commission shall determine a reasonable
effective date for the rule. Except for an emergency as provided in
article 10(l), the effective date of the rule shall be no sooner than 30
days after issuing the notice that it adopted or amended the rule.
(l) Upon determination that an emergency exists, the compact
commission may consider and adopt an emergency rule with 24 hours'
notice, with opportunity to comment, provided that the usual
rulemaking procedures provided in the compact and in this article shall
be retroactively applied to the rule as soon as reasonably possible, in no
event later than 90 days after the effective date of the rule. For the
purposes of this provision, an emergency rule is one that shall be
adopted immediately in order to:
(1) Meet an imminent threat to public health, safety or welfare;
(2) prevent a loss of compact commission or member state funds;
(3) meet a deadline for the promulgation of a rule that is
established by federal law or rule; or
(4) protect public health and safety.
(m) The compact commission or an authorized committee of the
compact commission shall 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 any revisions
shall be posted on the website of the compact commission. The revision
shall 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 shall be
made in writing and delivered to the compact commission prior to the
end of the notice period. If no challenge is made, the revision shall take
effect without further action. If the revision is challenged, the revision
shall not take effect without the approval of the compact commission.
(n) No member state's rulemaking requirements shall apply under
this compact.
HOUSE BILL No. 2533—page 57
ARTICLE 11—OVERSIGHT, DISPUTE RESOLUTION
AND ENFORCEMENT
(a) Oversight.
(1) The executive and judicial branches of state government in
each member state shall enforce this compact and take all actions
necessary and appropriate to implement the compact.
(2) Except as otherwise provided in this compact, venue is proper
and judicial proceedings by or against the compact commission shall be
brought solely and exclusively in a court of competent jurisdiction
where the principal office of the compact commission is located. The
compact commission may waive venue and jurisdictional defenses to
the extent it adopts or consents to participate in alternative dispute
resolution proceedings. This compact shall not affect or limit the
selection or propriety of venue in any action against a licensee for
professional malpractice, misconduct or any such similar matter.
(3) The compact commission shall be entitled to receive service of
process in any proceeding regarding the enforcement or interpretation
of the compact and shall have standing to intervene in such a
proceeding for all purposes. Failure to provide the compact commission
service of process shall render a judgment or order void as to the
compact commission, this compact or adopted rules.
(b) Default, technical assistance and termination.
(1) If the compact commission determines that a member state has
defaulted in the performance of its obligations or responsibilities under
this compact or the adopted rules, the commission shall provide written
notice to the defaulting state. The notice of default shall describe the
default, the proposed means of curing the default and any other action
that the compact commission may take, and shall offer training and
specific technical assistance regarding the default.
(2) The compact commission shall provide a copy of the notice of
default to the other member states.
(c) If a state in default fails to cure the default, the defaulting state
may be terminated from the compact upon an affirmative vote of a
majority of the commissioners of the member states, and all rights,
privileges and benefits conferred on that state by this compact may be
terminated on the effective date of termination. A cure of the default
does not relieve the offending state of obligations or liabilities incurred
during the period of default.
(d) Termination of membership in the compact shall be imposed
only after all other means of securing compliance have been exhausted.
Notice of intent to suspend or terminate shall be given by the compact
commission to the governor, the majority and minority leaders of the
defaulting state's legislature, the defaulting state's licensing authority
and each of the member states' licensing authority.
(e) A 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) Upon the termination of a state's membership from this
compact, that state shall immediately provide notice to all licensees
within that state of such termination. The terminated state shall
continue to recognize all licenses and compact privileges granted
pursuant to this compact for a minimum of 180 days after the date of
such notice of termination.
(g) The compact commission shall not bear any costs related to a
state that is found to be in default or that has been terminated from the
compact, unless agreed upon in writing between the compact
commission and the defaulting state.
(h) The defaulting state may appeal the action of the compact
commission by petitioning the United States District Court for the
District of Columbia or the federal district where the compact
commission has its principal offices. The prevailing party shall be
HOUSE BILL No. 2533—page 58
awarded all costs of such litigation, including reasonable attorney fees.
(i) Dispute resolution.
(1) Upon request by a member state, the compact commission
shall attempt to resolve disputes related to the compact that arise among
member states and between member and non-member states.
(2) The compact commission shall adopt a rule providing for both
mediation and binding dispute resolution for disputes as appropriate.
(j) Enforcement.
(1) By a 2/3 majority vote, the compact commission may initiate
legal action against a member state in default in the United States
District Court for the District of Columbia or the federal district where
the compact commission has its principal offices to enforce compliance
with the provisions of the compact and its adopted rules. The relief
sought may include both injunctive relief and damages. In the event
that judicial enforcement is necessary, the prevailing party shall be
awarded all costs of such litigation, including reasonable attorney fees.
The remedies in this compact shall not be the exclusive remedies of the
compact commission. The compact commission may pursue any other
remedies available under federal or the defaulting member state's law.
(2) A member state may initiate legal action against the compact
commission in the United States District Court for the District of
Columbia or the federal district where the compact commission has its
principal offices to enforce compliance with the provisions of the
compact and its adopted rules. The relief sought may include both
injunctive relief and damages. In the event judicial enforcement is
necessary, the prevailing party shall be awarded all costs of such
litigation, including reasonable attorney fees.
(3) No person other than a member state shall enforce this
compact against the compact commission.
ARTICLE 12—EFFECTIVE DATE, WITHDRAWAL
AND AMENDMENT
(a) The compact shall come into effect on the date when the
compact statute is enacted into law in the seventh member state.
(1) On or after the effective date of the compact, the compact
commission shall convene and review the enactment of each of the first
seven member states or charter member states to determine if the
statute enacted by each such charter member state is materially
different than the model compact statute.
(A) A charter member state whose enactment is found to be
materially different from the model compact language shall be entitled
to the default process set forth in article 11.
(B) If any member state is later found to be in default, is
terminated or withdraws from the compact, the compact commission
shall remain in existence and the compact shall remain in effect, even if
the number of member states should be fewer than seven.
(2) Member states enacting the compact subsequent to the seven
initial charter member states shall be subject to the process set forth in
this article to determine if their enactments are materially different
from the model compact statute and whether they qualify for
participation in the compact.
(3) All actions taken for the benefit of the compact commission or
in furtherance of the purposes of the administration of the compact
prior to the effective date of the compact or the compact commission
coming into existence shall be considered to be actions of the compact
commission unless specifically repudiated by the compact commission.
(4) Any state that joins the compact subsequent to the compact
commission's initial adoption of the rules and bylaws shall be subject to
the rules and bylaws as they exist on the date on which the compact
becomes law in that state. Any rule that has been previously adopted by
the compact commission shall have the full force and effect of law on
the day the compact becomes law in that state.
(b) Any member state may withdraw from this compact by
HOUSE BILL No. 2533—page 59
enacting a statute repealing the same.
(1) A member state's withdrawal shall not take effect until 180
days after enactment of the repealing statute.
(2) Withdrawal shall not affect the continuing requirement of the
withdrawing state's licensing authority to comply with the investigative
and adverse action reporting requirements of this compact prior to the
effective date of withdrawal.
(3) Upon the enactment of a statute withdrawing from this
compact, a state shall immediately provide notice of such withdrawal to
all licensees and privilege holders within that state. Notwithstanding
any subsequent statutory enactment to the contrary, such withdrawing
state shall continue to recognize all compact privileges granted
pursuant to this compact for a minimum of 180 days after the date of
such notice of withdrawal.
(A) Nothing contained in this compact shall be construed to
invalidate or prevent any licensure agreement or other cooperative
arrangement between a member state and a non-member state that does
not conflict with the provisions of this compact.
(B) This compact may be amended by the member states. No
amendment to this compact shall become effective and binding upon
any member state until it is enacted into the laws of all member states.
ARTICLE 13—CONSTRUCTION AND SEVERABILITY
(a) This compact and the compact commission's rulemaking
authority shall be liberally construed so as to effectuate the purposes,
and the implementation and administration of the compact. Provisions
of the compact expressly authorizing or requiring the promulgation of
rules shall not be construed to limit the compact commission's
rulemaking authority only for those purposes.
(b) The provisions of this compact shall be 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
member state, a state seeking participation in the compact or of the
United States, or the applicability thereof 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 thereof to any other government, agency, person
or circumstance shall not be affected thereby.
(c) Notwithstanding the foregoing , the compact commission may
deny a state's participation in the compact or terminate a member state's
participation in the compact, if it determines that a constitutional
requirement of a member state is a material departure from the
compact. Otherwise, if this compact shall be held to be contrary to the
constitution of any member state, the compact shall remain in full force
and effect as to the remaining member states and in full force and effect
as to the member state affected as to all severable matters.
ARTICLE 14—CONSISTENT EFFECT AND
CONFLICT WITH OTHER STATE LAWS
(a) This compact shall not prevent or inhibit the enforcement of
any other law of a member state that is not inconsistent with the
compact.
(b) Any laws, statutes, regulations or other legal requirements in a
member state in conflict with the compact are superseded to the extent
of the conflict.
(c) All permissible agreements between the compact commission
and the member states are binding in accordance with their terms.
HOUSE BILL No. 2533—page 60
Sec. 5. This act shall take effect and be in force from and after its
publication in the Kansas register.
I hereby certify that the above BILL originated in the HOUSE, and was
adopted by that body

HOUSE adopted
Conference Committee Report

Speaker of the House.

Chief Clerk of the House.
Passed the SENATE
as amended
SENATE adopted
Conference Committee Report

President of the Senate.

Secretary of the Senate.
APPROVED

Governor.