This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1521b.GOS
DATE: 2/5/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1521 Professional Counselors Licensure Compact
SPONSOR(S): Professions & Public Health Subcommittee, Koster
TIED BILLS: HB 1523 IDEN./SIM. BILLS: CS/SB 358
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Professions & Public Health Subcommittee 18 Y, 0 N, As CS Morris McElroy
2) Government Operations Subcommittee Roth Toliver
3) Health Care Appropriations Subcommittee
4) Health & Human Services Committee
SUMMARY ANALYSIS
Current law allows a Florida-licensed health care practitioner, a practitioner licensed under a multistate health
care licensure compact of which Florida is a member, or a registered out-of-state-health care provider to
provide health care services to Florida patients via telehealth. It does not allow health care practitioners,
including Florida licensed clinical social workers, marriage and family therapists, and mental health counselors,
to use telehealth to provide services to out-of-state patients.
The Professional Counselors Licensure Compact (PCLC or compact) is an interstate compact, which is an
agreement between states to enact legislation and enter into a contract for a specific, limited purpose. In 2020,
the National Center for Interstate Compacts adopted model legislation for the compact which authorizes both
telehealth and in-person practice across state lines in compact states.
The compact establishes the Counseling Compact Commission (Commission), made up of each party state’s
representative of the state licensing board. The Commission is responsible for administering the compact. The
compact becomes effective on the date of enactment by the tenth state and currently has two member states.
HB 1521 enacts the PCLC and authorizes Florida to enter into the compact. The Department of Health (DOH)
must notify the Division of Law Revision when the compact is enacted into law by ten states.
Professional counselors licensed in compact states may apply to other compact states for the privilege to
practice through either telehealth or in-person. Thus, under the compact a Florida licensed clinical social
worker, marriage and family therapist, or mental health counselor is eligible to provide services to out-of-state
patients through either telehealth or in-person. It also allows out-of-state licensed professional counselors in
compact states to provide services to Florida patients through telehealth and in-person.
The compact requires all participating states to report certain licensure information to a data system, including
identifying information, licensure data, and adverse actions taken against a professional counselor’s license or
practice privileges in a compact state. Such information is public under the compact unless a compact state
designates the information it contributes to the data system as confidential, prohibiting disclosure to the public
without express permission of the reporting state.
The bill has a significant, negative fiscal impact on DOH and no fiscal impact on local governments.
The bill is effective upon enactment of the PCLC into law by ten states.
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DATE: 2/5/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Health Care Professional Shortage
There is currently a health care provider shortage in the U.S.
1
This shortage is predicted to continue
into the foreseeable future and will likely worsen with the aging and growth of the U.S. population
2
and
the passage of the Patient Protection and Affordable Care Act.
3
Aging populations create a
disproportionately higher health care demand.
4
Additionally, as more individuals qualify for health care
benefits, there will necessarily be a greater demand for more health care professionals to provide these
services.
According to the U.S. Health Resources and Services Administration (HRSA), the U.S. will experience
a 7% increase in demand for mental health counselors by 2030, producing a shortage of approximately
6,870 mental health counselors nationwide.
5
In Florida, HRSA estimates a shortage of 3,400 mental
health counselors by 2030.
6
Exacerbated by the COVID-19 pandemic, the American Academy of
Pediatrics declared a national state of emergency in children’s mental health, creating a need for more
mental health professionals and increased access to such.
7
Mental Health Counselor Licensure in Florida
A mental health counselor is an individual who uses scientific and applied behavioral science theories,
methods, and techniques to describe, prevent, and treat undesired behavior and enhance mental
health and human development. Counseling is based on research and theory in personality, family,
group, and organizational dynamics and development, career planning, cultural diversity, human
growth and development, human sexuality, normal and abnormal behavior, psychopathology,
1
For example, as of December 31, 2021, the U.S. Department of Health and Human Services has designated 7,613
Primary Care Health Professional Shortage Area (HPSA) (requiring 15,184 additional primary care physicians to eliminate
the shortage), 6,803 Dental HPSAs (requiring 11,181 additional dentists to eliminate the shortage), and 6,078 Mental
Health HPSAs (requiring 6,851 additional mental health providers to eliminate the shortage). U.S. Department of Health
and Human Services, Designated Health Professional Shortage Areas Statistics (Feb. 3, 2022),
https://data.hrsa.gov/Default/GenerateHPSAQuarterlyReport (last visited Feb. 3, 2022).
2
According to the U.S. Census Bureau, the U.S population is expected to increase by almost 100 million between 2014
and 2060, and by 2030, one in five Americans is projected to be 65 and over. Sandra L. Colby & Jennifer M. Ortman, U.S.
Census Bureau, Projections of the Size and Composition of the U.S. Population: 2014 to 2060 (March 2015),
https://www.census.gov/content/dam/Census/library/publications/2015/demo/p25-1143.pdf (last visited Feb. 3, 2022).
3
U.S. Dep’t of Health and Human Services, Department of Health and Human Services Strategic Plan: Goal 1:
Strengthen Health Care, available at http://www.hhs.gov/secretary/about/goal5.html (last visited on Feb. 3, 2022).
4
One analysis measured current primary care utilization (office visits) and projected the impact of population increases,
aging, and insured status changes. The study found that the total number of office visits to primary care physicians will
increase from 462 million in 2008 to 565 million in 2025, and (because of aging) the average number of visits will increase
from 1.60 to 1.66. The study concluded that the U.S. will require 51,880 additional primary care physicians by 2025.
(Petterson, Stephen M., et al., “Projecting U.S. Primary Care Physician Workforce Needs: 2010-2025,” Annals of Family
Medicine, vol. 10, No. 6 (November/December 2012), available at
http://www.annfammed.org/content/10/6/503.full.pdf+html (last visited on Feb. 3, 2022).
5
Health Resources Services Administration, Behavioral Health Workforce Projections, 2016-2030: Clinical, Counseling
and School Psychologists, https://bhw.hrsa.gov/sites/default/files/bureau-health-workforce/data-research/psychologists-
2018.pdf (last visited Feb. 4, 2022).
6
Health Resources Services Administration, State-Level Projections of Supply and Demand for Behavioral Health
Occupations: 2016-2030 (September 2018), https://bhw.hrsa.gov/sites/default/files/bureau-health-workforce/data-
research/state-level-estimates-report-2018.pdf (last visited Feb. 4, 2022).
7
American Academy of Pediatrics, AAP-AACAP-CHA Declaration of a National Emergency in Child and Adolescent
Mental Health, https://www.aap.org/en/advocacy/child-and-adolescent-healthy-mental-development/aap-aacap-cha-
declaration-of-a-national-emergency-in-child-and-adolescent-mental-health/ (last visited Feb. 4, 2022). STORAGE NAME: h1521b.GOS PAGE: 3
DATE: 2/5/2022
psychotherapy, and rehabilitation.
8
To qualify for licensure as a mental health counselor, an individual
must:
9
Have a master’s degree from a mental health counseling program accredited by the Council for
the Accreditation of Counseling and Related Educational Programs, or a program related to the
practice of mental health counseling that includes coursework and a 700-hour practicum,
internship, or fieldwork of which at least 280 hours must be in direct client services;
Have at least two years of post-master’s supervised clinical experience in mental health
counseling;
Pass an examination from the Professional Examination Service for the National Academy of
Certified Clinical Mental Health Counselors; and
Pass an eight-hour course on Florida laws and rules approved by the Board of Clinical Social
Work, Marriage and Family Therapy, and Mental Health Counseling.
10
Telehealth
A Florida-licensed health care practitioner, a practitioner licensed under a multistate health care
licensure compact of which Florida is a member,
11
or a registered out-of-state-health care provider can
provide health care services to Florida patients via telehealth.
12
Current law sets the standard of care
for telehealth providers at the same level as the standard of care for health care practitioners or health
care providers providing in-person health care services to patients in this state. This ensures that a
patient receives the same standard of care irrespective of the modality used by the health care
professional to deliver the services. A patient receiving telehealth services may be in any location at the
time services are rendered and a telehealth provider may be in any location when providing telehealth
services to a patient.
13
Under current law, in-state and out-of-state licensed or registered health care practitioners may use
telehealth to provide health care services to patients physically located in Florida.
14
The law does not
allow health care practitioners, including Florida licensed mental health counselors, to use telehealth to
provide services to out-of-state patients.
Sovereign Immunity
Sovereign immunity generally bars lawsuits against the state or its political subdivisions for torts
committed by an officer, employee, or agent of such governments unless the immunity is expressly
waived. The Florida Constitution recognizes that the concept of sovereign immunity applies to the state,
although the state may waive its immunity through an enactment of general law.
15
In 1973, the Legislature enacted s. 768.28, F.S., a partial waiver of sovereign immunity, allowing
individuals to sue state government and its subdivisions.
16
According to subsection (1), individuals may
sue the government under circumstances where a private person "would be liable to the claimant, in
accordance with the general laws of [the] state . . . . " Section 768.28(5), F.S., imposes a $200,000 limit
on the government's liability to a single person, and a $300,000 total limit on liability for claims arising
out of a single incident.
Impaired Practitioner Program
The impaired practitioner treatment program was created to provide resources to assist health care
practitioners who are impaired as a result of the misuse or abuse of alcohol or drugs, or both, or a
8
Sections 491.003(6) and (9), F.S.
9
Section 491.005(4), F.S.
10
Section 491.005(4), F.S., and r. 64B4-3.0035, F.A.C.
11
Florida is a member of the Nurse Licensure Compact. See s. 464.0095, F.S.
12
S. 456.47(4), F.S.
13
S. 456.47(2)(d), F.S.
14
S. 456.47(1) and (4), F.S.
15
Fla. Const. art. X, s. 13.
16
Chapter 73-313, L.O.F., codified at s. 768.28, F.S. STORAGE NAME: h1521b.GOS PAGE: 4
DATE: 2/5/2022
mental or physical condition which could affect the practitioners’ ability to practice with skill and
safety.
17
For a profession that does not have a program established within its individual practice act,
DOH is required to designate an approved program by rule.
18
By rule, DOH designates the approved
program by contract with a consultant to initiate intervention, recommend evaluation, refer impaired
practitioners to treatment providers, and monitor the progress of impaired practitioners. The impaired
practitioner program may not provide medical services.
19
Interstate Compacts
An interstate compact is an agreement between two or more states to address common problems or
issues, create an independent, multistate governmental authority, or establish uniform guidelines,
standards or procedures for the compact’s member states.
20
Article 1, Section 10, Clause 3 (Compact
Clause) of the U.S. Constitution authorizes states to enter into agreements with each other, without the
consent of Congress. However, the case law has provided that not all interstate agreements are subject
to congressional approval, but only those that may encroach on the federal government’s power.
21
Florida is a party to multiple interstate compacts, including the Nurse Licensure Compact,
22
Driver’s
License Compact,
23
Compact on Adoption and Medical Assistance,
24
and the Interstate Compact on
Educational Opportunity for Military Children.
25
Professional Counselors Licensure Compact
The Professional Counselors Licensure Compact (PCLC or compact) was created by the National
Center for Interstate Compacts as an interstate compact which authorizes professional counselors to
practice via telehealth and in-person across state lines in compact states.
26
The compact establishes
the Counseling Compact Commission (Commission) made up of member states which is responsible
for creating and finalizing rules and enforcing the compact. Licensed professional counselors must
obtain the privilege to practice from other compact states in order to provide services to clients in such
states.
27
Nothing in the compact is to be construed as a waiver of sovereign immunity. The PCLC
currently has two member states (Georgia and Maryland).
28
17
Section 456.076, F.S. The provisions of s. 456.076, also apply to veterinarians under s. 474.221, F.S. and radiological
personnel under s. 486.315, F.S.
18
Section 456.076(1), F.S.
19
Rule 64B31-10.001(1)(a), F.A.C.
20
National Center for Interstate Compacts, What Are Interstate Compacts?, https://compacts.csg.org/compacts/ (last
visited Feb. 4, 2022).
21
For example, see Virginia v. Tennessee, 148 U.S. 503 (1893), New Hampshire v. Maine, 426 U.S. 363 (1976)
22
Section 464.0095, F.S.
23
Section 322.44, F.S.
24
Section 409.406, F.S.
25
Section 1000.36, F.S.
26
Counseling Compact, Counseling Compact Finalized, https://counselingcompact.org/first-post/ (last visited Feb. 4,
2022).
27
Counseling Compact, Counseling Compact Model Legislation (Dec. 2020), https://counselingcompact.org/wp-
content/uploads/2021/06/Final_Counseling_Compact_With_Cover.pdf (last visited Feb. 4, 2022).
28
Counseling Compact, Map, https://counselingcompact.org/map/ (last visited Feb. 4, 2022). STORAGE NAME: h1521b.GOS PAGE: 5
DATE: 2/5/2022
The compact is arranged in 15 sections and addresses the following issues:
29
Purpose (Section 1)
The primary purposes of the PCLC are:
Provide for the mutual recognition of other compact state licenses;
Enhance states’ abilities to protect the public’s health and safety;
Encourage the cooperation of member states in regulating multistate practice for licensed
professional counselors;
Support active duty military personnel and their spouses;
Enhance the exchange of licensure, investigative, and disciplinary information among member
states;
Allow for the use of telehealth to increase access to counseling services;
Support the uniformity of professional counseling licensure requirements throughout states;
Eliminate the necessity for licenses in multiple states; and
Facilitate interstate practice by licensed professional counselors who meet uniform
requirements.
Definitions (Section 2)
The compact provides definitions for terms used in the model legislation.
29
Supra, note 27. STORAGE NAME: h1521b.GOS PAGE: 6
DATE: 2/5/2022
State Participation in the Compact (Section 3)
To participate in the compact, a state must:
License and regulate professional counselors;
Require passage of a Commission-approved, nationally recognized exam;
Require licensees to meet specified educational and post graduate professional experience
standards;
Have a mechanism in place for receiving and investigating complaints;
Participate in the Commission’s data system;
Notify the Commission of any adverse action or the availability of investigative information
regarding a licensee;
Implement a process for considering the criminal history of applicants;
Comply with the rules of the Commission;
Require applicants to obtain or retain a license in his or her home state and meet the home
state’s qualifications for licensure or renewal of licensure; and
Provide for the state’s representative to the Commission to attend the Commission meetings.
Additionally, compact states are authorized to charge a fee for granting the privilege to practice.
Licensed professional counselors may only utilize the compact if their home state joins the compact.
Privilege to Practice (Section 4)
To exercise the privilege to practice under the terms and provisions of the PCLC, the licensee must:
Hold a license in the home state;
Have a valid United States social security number or national practitioner identifier;
Be eligible for a privilege to practice in any member state;
Have no encumbrance or restriction against any license or privilege to practice within the
previous two years;
Notify the Commission that the licensee is seeking the privilege to practice within a remote state
or states;
Pay any applicable fees, including any state fee, for the privilege to practice;
Meet any continuing competence or education requirements established by the home state;
Meet any jurisprudence requirements established by the remote state or states in which the
licensee is seeking a privilege to practice; and
Report to the Commission any adverse action, encumbrance, or restriction on a license taken
by any non-member state within 30 days from the date the action is taken.
Obtaining a New Home State License Based on a Privilege to Practice (Section 5)
The PCLC requires a professional counselor to hold a home state license in only one compact state at
a time. A licensee who moves from one compact state to another compact state may obtain a new,
expedited home state license in the new state of residence if he or she holds a privilege to practice in
the new state. A licensee must complete a new background screening, any required state-level
background check, and any other requirements to obtain licensure in the new home state.
If a professional counselor moves from a non-compact state to a compact state, or from a compact
state to a non-compact state, he or she must apply for licensure in the new state under such state’s
requirements. Licensees may hold more multiple state licenses, but only the license tied to his or her
primary state of residence serves as the home state license under the compact.
Active Duty Military Personnel or Their Spouses (Section 6)
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The PCLC allows an active duty service member or his or her spouse to designate a home state where
he or she has a current license in good standing, which serves as the home state for the duration of the
service member’s active duty.
Compact Privilege to Practice Telehealth (Section 7)
The PCLC authorizes the provision of telehealth services to patients in remote states as a privilege to
practice. Professional counselors practicing via telehealth in a remote state must follow the laws and
regulations of the remote state.
Adverse Actions (Section 8)
Only the home state has the power to take adverse action against a professional counselor’s home
state license. The compact authorizes remote states to take adverse actions against a licensed
professional counselor’s privilege to practice within that compact state and issue subpoenas for
witnesses and evidence from other compact states. Under the compact, compact states are authorized
to initiate joint investigations of licensees and must share investigative materials in furtherance of a joint
investigation initiated under the compact. Adverse actions must be reported to the data system which
alerts the home state of such action. Compact states are authorized to take adverse actions based on
the factual findings of a remote state.
If a licensee changes his or her home state while under active investigation of the former home state,
the former home state must complete the investigation, take appropriate action under its laws, and
report its findings to the data system.
Nothing in the compact overrides a compact state’s decision to require a licensee to participate in an
alternative program in lieu of adverse action.
Establishment of Counseling Compact Commission (Section 9)
The compact establishes the Commission. Each compact state has one delegate selected by that
state’s licensing board. The delegate must be a current member or an administrator of the licensing
board. The Commission must establish term limits, a code of ethics, bylaws, rules, and a budget in
order to carry out the compact. The Commission must elect an executive committee of up to 11
members, at least seven of which must be from the Commission and up to four must be ex-officio,
nonvoting members from recognized national professional counselor organizations. All Commission
meetings must be open to the public except for when the Commission must discuss:
Noncompliance of a compact state with its obligations under the compact;
The employment, compensation, discipline, or other personnel matters, practices, or procedures
related to specific employees or other matters related to the Commission’s internal personnel
practices and procedure;
Current, threatened, or reasonably anticipated litigation;
Contract negotiations for the purchase or sale of goods, services, or real estate;
Accusing a person of a crime or formally censuring a person;
Disclosure of trade secrets or commercial or financial information that is privileged or
confidential;
Disclosure of information of a personal nature where disclosure would constitute a clearly
unwarranted invasion of personal privacy if disclosed to the public;
Disclosure of active investigatory records compiled for law enforcement purposes;
Disclosure of information related to any reports prepared by or on behalf of the Commission for
the purpose of investigation for compliance with the compact; and
Matters specifically exempted from disclosure by federal law or the laws of any party state.
Commission members are immune from liability related to their positions except in cases of wanton
misconduct.
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Data System (Section 10)
The compact requires all compact states to share licensee information. Compact states must submit a
uniform dataset to the data system on all counselors to whom the compact applies, as required by the
rules of the Commission. The data system allows for expedited sharing of adverse action or significant
investigative information against professional counselors with privilege to practice under the compact.
Data system information must be expunged according to the laws of the reporting compact state.
Rulemaking (Section 11)
The PCLC provides rulemaking authority to the Commission. Rules and amendments to the rules
passed by the Commission are binding on the party states as of the effective date specified in each rule
or amendment.
Prior to the promulgation and adoption of a rule, and at least 30 days in advance, the Commission must
provide notice of the meeting at which the rule is to be considered and voted upon. The notice must be
posted on the Commission’s website and the website of the licensing board of each member state, or
the publication in which each state would otherwise publish proposed rules, and include:
The time, date, and location of the meeting;
The text of the proposed rule or amendment,
A request for comment from interested persons; and
The manner in which interested persons may submit comments.
The public may submit written comments, which must be made publicly available, prior to the adoption
of the proposed rule. The Commission must hold a public hearing before it adopts a rule if requested
by:
At least 25 people;
A state or federal governmental entity; or
An association having at least 25 members.
If a hearing is held, the Commission must publish the place, time, and date of the scheduled public
hearing. Anyone wishing to speak at the hearing must notify the Executive Director of the Commission,
or another designated member, within five business days before the hearing. Hearings must be
conducted in a manner that provides fair and reasonable opportunity for the public to comment orally or
in writing. Transcripts of hearings are not required unless a written request is made. All hearings must
be recorded and a copy of the recording must be made available upon request. Rules may be grouped
together in the same hearing for convenience of the Commission.
Following the hearing, the Commission must consider all comments received from the public. A majority
vote of the Commission is required for adoption of rules and the Commission may decide the effective
date of the rule.
The Commission has the authority to consider and adopt emergency rules, without prior notice, if there
is an imminent threat to public health, safety, or welfare; to prevent a loss of funds of the Commission
or a party state; or to meet a deadline for the promulgation of an administrative rule that is required by
federal law.
Oversight, Dispute Resolution, and Enforcement (Section 12)
The executive, legislative, and judicial branches of state government in each compact state is charged
with enforcing the compact and must take any necessary action to effectuate its purpose and intent.
The Commission is entitled to receive service of process relating to its powers, responsibilities, or
actions, and may intervene in any proceeding affecting such.
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If a party state defaults in the performance of its duties or responsibilities under the compact, the
Commission must notify the defaulting state, as well as other party states, in writing of the nature of the
default and proposed cure of the default. The Commission will also provide remedial training and
technical assistance related to the default. If the defaulting state fails to cure the default, the
Commission may terminate its membership in the compact, upon majority affirmative vote of the
majority of the administrators. The Commission must notify the governor and the majority and minority
leaders of the defaulting state’s legislature, as well as all compact states, of its intent to suspend or
terminate the state’s membership in the compact. However, termination of membership is to only be
imposed after all other means of compliance have been exhausted.
A termination of membership in the compact may be appealed by petitioning the U.S. District Court for
the District of Columbia or the federal district in which the compact’s principal office is located. The
compact’s principal office is located in Lexington, Kentucky. The Commission may also bring an action
in federal court against a defaulting state to enforce compliance with the provisions of the compact. The
Commission may seek injunctive relief, damages, or any other remedies available under state or
federal law. A prevailing party in either action is entitled to court costs and reasonable attorneys’ fees.
In the event that a dispute arises between party states, the Commission will attempt to resolve such
disputes.
Date of Implementation of the Counseling Compact Commission and Associated Rules,
Withdrawal, and Amendment (Section 13)
The compact takes effect on the date of enactment by the tenth state. States that join after such date
are subject to the rules of the Commission as they exist on the date when the compact becomes law in
that state.
To withdraw from the PCLC, a state must enact a statute repealing the compact. Such withdrawal does
not take effect until six months after the enactment of the repealing legislation. Any adverse actions or
investigations that occur prior to the effective date of a withdrawal must be reported as required under
the compact.
The compact may be amended by the party states; however, an amendment will not be effective until it
is enacted into the laws of all compact states.
Construction and Severability (Section 14)
This compact is to be liberally construed to effectuate its purposes. The PCLC contains a severability
clause that provides that if the entire compact is found to be held contrary to the constitution of any
state member thereto, the compact shall remain in full force and effect as to the remaining compact
states.
Binding Effect of Compact and Other Laws (Section 15)
This section reiterates that licensees must adhere to the laws and regulations, including scope of
practice, of the state in which they are practicing. The compact requires that all rules and bylaws of the
Commission are binding on compact states. In the event of a conflict between a law of a compact state
and the compact, the state law is superseded to the extent of the conflict.
Effect of the Bill
Professional Counselors Licensure Compact
HB 1521 enacts the PCLC (see description of compact provisions in the Background section) and
authorizes Florida to enter into the compact with all other jurisdictions that have legally joined the
compact. This allows eligible Florida licensed clinical social workers, marriage and family therapists,
and mental health counselors to provide services to out-of-state patients –through either telehealth or STORAGE NAME: h1521b.GOS PAGE: 10
DATE: 2/5/2022
in-person– across compact states. It also allows out-of-state licensed professional counselors in
compact states to provide services to Florida patients through telehealth and in-person.
The bill amends current law to allow compact implementation. It requires DOH to report any significant
investigation information relating to a professional counselor’s practicing under the compact to the data
system. It requires counselors practicing under the compact to withdraw from all practice under the
compact if the professional counselor is in an impaired practitioner program. It requires the Board of
Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) to appoint
an individual to serve on the Commission and exempts out-of-state licensed clinical social workers,
marriage and family therapists, and mental health counselors who practice under the compact from
licensure requirements in this state. The bill authorizes the Board to take adverse action against a
mental health counselor’s authority to practice under the compact and impose disciplinary actions for
violation of prohibited acts.
The bill makes conforming changes to statute to reference the compact and the requirements under the
compact. The bill does not require changes to Florida’s licensure and license renewal requirements.
Sovereign Immunity
The bill provides that an individual of the Board, when serving as the state administrator of the
compact, and any administrator, officer, executive director, employee, or representative of the
Commission, when acting within the scope of their employment, duties, or responsibilities in this state,
is considered an agent of the state. The bill also requires the Commission to pay any claims or
judgments up to the statutory waived amount of sovereign immunity and authorizes it to maintain
insurance coverage to pay any such claims or judgements.
The bill is effective upon enactment of the PCLC into law by ten states
B. SECTION DIRECTORY:
Section 1: Creates s. 491.017, F.S., relating to Professional Counselors Licensure Compact.
Section 2: Amends s. 414.065, F.S., relating to noncompliance with work requirements.
Section 3: Amends s. 456.073, F.S., relating to disciplinary proceedings.
Section 4: Amends s. 456.076, F.S., relating to impaired practitioner programs.
Section 5: Amends s. 491.003, F.S., relating to definitions.
Section 6: Amends s. 491.004, F.S., relating to Board of Clinical Social Work, Marriage and Family
Therapy, and Mental Health Counseling.
Section 7: Amends s. 491.005, F.S., relating to licensure by examination.
Section 8: Amends s. 491.006, F.S., relating to licensure by endorsement.
Section 9: Amends s. 491.009, F.S., relating to discipline.
Section 10: Amends s. 768.28, F.S., relating to waiver of sovereign immunity in tort actions; recovery
limits; civil liberty for damages caused during a riot; limitation on attorney fees; statute of
limitation; exclusions; indemnification; risk management programs.
Section 11: Requires DOH to notify the Division of Law Revision upon enactment of the Professional
Counselors Licensure Compact into law by 10 states.
Section 12: Provides the bill shall take effect upon enactment of the Professional Counselors
Licensure Compact into law by 10 states.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The compact allows states to collect fees for granting privilege to practice under the compact. If
DOH chooses to collects such fees, a fee bill is needed.
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DATE: 2/5/2022
2. Expenditures:
DOH estimates 1 full-time equivalent (FTE) position will be needed to implement the provisions of
the bill at a total cost of $56,892 ($44,314/Salary, $12,272/Expense, and $306/Human
Resources).
30
DOH may also experience an increase in cost related to annual membership with the PCLC,
additional complaints and investigations, rulemaking, and updating licensure systems, which can be
absorbed within current resources.
31
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Applicants for the Florida Interstate Licensed Professional Counselors compact will be required to pay
a fee to participate in the compact, as well as incurring cost for a background check.
32
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
As discussed below in the section entitled, “RULE-MAKING AUTHORITY,” the bill delegates
authority to the Commission to adopt rules that facilitate and coordinate the implementation and
administration of the PCLC.
If enacted into law, the state will effectively bind itself to rules not yet adopted by the Commission.
The Florida Supreme Court has held that while it is within the province of the Legislature to adopt
federal statutes enacted by Congress and rules promulgated by federal administrative bodies that
are in existence at the time the Legislature acts, it is an unconstitutional delegation of legislative
power to prospectively adopt federal statutes not yet enacted by Congress and rules not yet
promulgated by federal administrative bodies.
3334
Under this holding, the constitutionality of the bill’s
adoption of prospective rules might be questioned, and there does not appear to be binding Florida
case law that squarely address this issue in the context of interstate compacts.
30
Department of Health Agency Analysis of 2022 House Bill 1521 (Jan. 25, 2022).
31
Id.
32
Id.
33
Freimuth v. State, 272 So.2d 473, 476 (Fla. 1972) (quoting Fla. Ind. Comm’n v. State ex rel. Orange State Oil Co., 155
Fla. 772 (1945).
34
This prohibition is based on the separation of powers doctrine, set forth in Article II, Section 3 of the Florida
Constitution, which has been construed in Florida to require the Legislature, when delegating the administration of
legislative programs, to establish the minimum standards and guidelines ascertainable by reference to the enactment
creating the program. See Avatar Development Corp. v. State, 723 So.2d 199 (Fla. 1998). STORAGE NAME: h1521b.GOS PAGE: 12
DATE: 2/5/2022
The most recent opportunity Florida courts have had to address this issue appears to be in
Department of Children and Family Services v. L.G., involving the Interstate Compact for the
Placement of Children (ICPC).
35
The First District Court of Appeal considered an argument that the
regulations adopted by the Association of Administrators of the Interstate Compact were binding and
that the lower court’s order permitting a mother and child to relocate to another state was in violation
of the ICPC. The court denied the appeal and held that the Association’s regulations did not apply as
they conflicted with the ICPC and the regulations did not apply to the facts of the case.
The court also references language in the ICPC that confers to its compact administrators the “power
to promulgate rules and regulations to carry out more effectively the terms and provisions of this
compact.”
36
The court states that “the precise legal effect of the ICPC compact administrators’
regulations in Florida is unclear,” but noted that it did not need to address the question to decide the
case.
37
However, in a footnote, the court provided:
Any regulations promulgated before Florida adopted the ICPC did not, of course,
reflect the vote of a Florida compact administrator, and no such regulations were
ever themselves enacted into law in Florida. When the Legislature did adopt the
ICPC, it did not (and could not) enact as the law of Florida or adopt prospectively
regulations then yet to be promulgated by an entity not even covered by the
Florida Administrative Procedure Act. See Freimuth v. State, 272 So.2d 473, 476
(Fla.1972); Fla. Indus. Comm'n v. State ex rel. Orange State Oil Co., 155 Fla.
772, 21 So.2d 599, 603 (1945) (“[I]t is within the province of the legislature to
approve and adopt the provisions of federal statutes, and all of the administrative
rules made by a federal administrative body, that are in existence and in effect at
the time the legislature acts, but it would be an unconstitutional delegation of
legislative power for the legislature to adopt in advance any federal act or the
ruling of any federal administrative body that Congress or such administrative
body might see fit to adopt in the future.”); Brazil v. Div. of Admin., 347 So.2d
755, 757–58 (Fla. 1st DCA 1977), disapproved on other grounds by LaPointe
Outdoor Adver. v. Fla. Dep't of Transp., 398 So.2d 1370, 1370 (Fla.1981). The
ICPC compact administrators stand on the same footing as federal government
administrators in this regard.
38
In accordance with the discussion provided by the court in this above-cited footnote, it may be
argued that the bill’s delegation of rule-making authority to the Commission is similar to the
delegation to the ICPC compact administrators, and thus, could constitute an unlawful delegation of
legislative authority. This case, however, does not appear to be binding as precedent as the court’s
footnote discussion is dicta.
39
B. RULE-MAKING AUTHORITY:
The bill authorizes the Commission to adopt rules to facilitate and coordinate the implementation and
administration of the compact. The compact specifies that the rules have the force and effect of law and
are binding in all compact states. If a compact state fails to meet its obligations under the compact or
the promulgated rules, the state may be subject to remedial training, alternative dispute resolution,
suspension, termination, or legal action.
C. DRAFTING ISSUES OR OTHER C OMMENTS:
None.
35
801 So.2d 1047 (Fla. 1
st
DCA 2001).
36
Id. at 1052.
37
Id.
38
Id.
39
Dicta are statements of a court that are not essential to the determination of the case before it and are not a part of the
law of the case. Dicta has no biding legal effect and is without force as judicial precedent. 12A FLA JUR. 2D Courts and
Judges s. 191 (2015). STORAGE NAME: h1521b.GOS PAGE: 13
DATE: 2/5/2022
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On February 2, 2022, the Professions and Public Health Subcommittee adopted two amendments and
reported the bill favorably as a committee substitute. The amendments removed a reference to ch. 491,
F.S., under the compact and created a definition for “licensed professional counselor,” in ch. 491, F.S.
This analysis is drafted to the committee substitute as passed by the Professions and Public Health
Subcommittee.