The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Health Policy
BILL: SB 358
INTRODUCER: Senator Rodriguez
SUBJECT: Professional Counselors Licensure Compact
DATE: November 2, 2021
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Smith Brown HP Pre-meeting
2. AHS
3. AP
I. Summary:
SB 358 authorizes Florida to participate in the Professional Counselors Licensure Compact
(counseling compact or compact) for the licensure of mental health counselors. The compact
takes effect upon its enactment by ten states, and to date, only two states have enacted the
compact. The bill grants a licensed professional counselor who is licensed in his or her primary
state of residence (the licensee’s “home state”) the ability to apply and be granted a privilege to
practice professional counseling in another member state, both in-person and through telehealth.
The bill also:
Requires the Department of Health (DOH) to report any significant investigatory information
relating to a health care practitioner practicing under the compact to the compact’s licensure
data system.
Provides for the participation of impaired practitioners who are practicing under the compact
in impaired practitioner programs.
Requires the Board of Clinical Social Work, Marriage and Family Therapy, and Mental
Health Counseling (Board) to appoint an individual to serve as Florida’s delegate on the
counseling compact commission.
Authorizes the Board to take adverse action against a social worker’s, a marriage and family
therapist’s, or a mental health counselor’s privilege to practice under the compact and
authorizes the Board to impose grounds for discipline.
Designates the state delegate and other members or employees of the commission as state
agents for the purpose of applying waivers of sovereign immunity.
According to the DOH, the bill will have a significant fiscal impact on the department that would
require one additional full-time equivalent (FTE) position to support the workload associated
with processing applications and issuing initial and renewal licenses and privileges to practice.
The bill authorizes member states to charge a fee for granting a privilege to practice under the
REVISED: BILL: SB 358 Page 2
compact. The number of applicants for compact licensure is indeterminate and DOH indicates
that the fiscal impact cannot be calculated.
1
The commission may collect an annual assessment from each member state or impose fees on
other parties to cover the cost of operations and activities. The annual membership cost with the
Licensed Professional Counselors Compact is unknown at this time.
The bill provides an effective date of July 1, 2022.
II. Present Situation:
Occupational Licensure Compacts
Interstate compacts are authorized under the U.S. Constitution, Article I, Section 10, cl. 3.
2
Compacts that affect a power delegated to the federal government or that affect or alter the
political balance within the federal system require the consent of Congress.
3
The licensing of
professions is predominantly a state responsibility as each state has developed its own
regulations, oversight boards, and requirements for dozens of professions and occupations.
In September 2018, the Federal Trade Commission (FTC) looked at the issue of state-by-state
occupational licensure and its unintended consequences. In particular, the FTC noted that state-
by-state licensing can have a particularly hard effect on those in the military and their spouses
who are required to move frequently, those who provide services across state lines, or deliver
services through telehealth.
4
The FTC also suggested that improved licensed portability would
enhance competition, choice, and access for consumers, especially where services may be in
short supply.
5
According to the Council of State Governments (CSG), since January 2016, 170 separate pieces
of licensure compact legislation have been passed in the United States.
6
To date, 42 states and
territories have enacted occupational licensure compacts for nurses, physicians, physical
therapists, emergency medical technicians, psychologists, speech therapists, audiologists,
occupational therapists, and counselors.
7
Nurse Licensure Compact
On January 19, 2018, licensed Florida nurses became eligible to apply for a multi-state license
under the enhanced Nurse Licensure Compact (eNLC.)
8
The eNLC allows registered nurses and
1
Department of Health, 2022 Senate Bill 358 Legislative Bill Analysis (Oct. 25, 2021) (on file with the Senate Committee on
Health Policy).
2
“No state shall, without the Consent of Congress…enter into any Agreement or Compact with another State, or with a
foreign Power[.]” see U.S. CONST. art. I, s. 10, cl. 3. While the language of the provision says congressional approval is
required, not all compacts require congressional approval.
3
Virginia v. Tennessee, 148 U.S. 503 (1893).
4
Federal Trade Commission, Policy Perspectives, Options to Enhance Occupational License Portability (September 2018),
available at https://www.ftc.gov/system/files/documents/reports/options-enhance-occupational-license-
portability/license_portability_policy_paper.pdf (last visited Oct. 31, 2021).
5
Id.
6
Supra note 1.
7
Id.
8
Id. BILL: SB 358 Page 3
licensed practical nurses who hold licensure in one Compact state to practice in any of the 27
Compact states without obtaining additional state licenses. The DOH reports that the eNLC has
effectively reduced regulatory requirements by eliminating the need for nurses to obtain a
separate license to practice in different states.
9
Florida joined the Nurse Licensure Compact upon
the passage of HB 1061 during the 2016 regular Legislative Session.
10
The eNLC was officially
enacted when North Carolina Governor Roy Cooper, signed legislation to become the 26th state
to join the compact on July 20, 2017.
11
That date became the effective date for the start of the
compact commission, an agency governing the compact.
12
Interstate Compact for Licensed Professional Counselors
The Interstate Compact for Licensed Professional Counselors (counseling compact or compact)
will become effective after 10 states enact the legislation for the compact. The counseling
compact has passed and been signed into law in two states. On May 10, 2021, Georgia Governor
Brian Kemp signed HB 395 and subsequently on May 18, 2021, Maryland Gov. Larry Hogan
signed SB 571/HB 736.
13
The compact has also been introduced this year in Tennessee (SB 1027
HB 0959), Nebraska (LB 554), Ohio (SB 204), and North Carolina (HB 791).
14
Interstate Licensure Compact for Social Work
15
The National Association of Social Workers is beginning to pursue its own Interstate Licensure
Compact for Social Work. That draft compact has not yet been finalized.
Model of Marriage and Family Therapy License Portability
16
Rather than pursue a compact, the American Association for Marriage and Family Therapy has
created a Model of Marriage and Family Therapy (MFT) License Portability. This portability
model is a full endorsement model, meaning that a state will license an applicant as a licensed
marriage and family therapist the applicant has a valid and unrestricted license to practice
marriage and family therapy in another state.
9
Id.
10
Chapter 2016-139, Laws of Fla.
11
Debra Wood, RN., The Enhanced Nurse Licensure (July 28, 2017) available at
https://www.nursechoice.com/blog/profiles-and-features/the-enhanced-nurse-licensure-compact-explained/ (last visited Oct.
31, 2021).
12
Id.
13
Counseling Compact, News, available at https://counselingcompact.org/news/ (last visited Oct. 31, 2021).
14
Counseling Compact, Maps, available at https://counselingcompact.org/map/ (last visited Oct. 31, 2021).
15
National Association of Social Workers, Interstate Licensure Compact, https://www.socialworkers.org/Advocacy/Social-
Justice/Interstate-Licensure-Compact-for-Social-Work (last visited Oct. 31, 2021).
16
American Association for Marriage and Family Therapy, MFT License Portability,
https://www.aamft.org/AAMFT/ADVANCE_the_Profession/License_Portability/Advocacy/MFT%20License%20Portability
.aspx?hkey=1faeeaeb-a780-4add-ba09-9b41a144692f (last visited Oct. 31, 2021). BILL: SB 358 Page 4
Mental Health Counseling in Florida
The licensed Mental Health Counseling profession continues to expand in Florida and has
reported an average growth in recent years of more than 1,000 new licensees per year, increasing
the total licensed population to 15,518 practitioners.
17
Florida law delineates between an application by examination for initial licensure and application
by endorsement for mental health counselors who have previously held an active, unencumbered,
license in another state. The application for licensure as a mental health counselor includes a
mandatory disclosure of criminal history, but applicants are not required to submit fingerprints to
complete a criminal background check.
18
Section 456.0135, F.S., provides the DOH with
authority to mandate criminal background checks for specified professions and mental health
professions regulated by ch. 491, F.S., are not included in the list of specified professions.
Licensure of Mental Health Counselors by Examination
Pursuant to s. 491.005(4), F.S., the DOH shall license an applicant as a mental health counselor,
if he or she:
Pays the appropriate fee;
Possesses a minimum of a master’s degree from a regionally accredited program in Mental
Health Counseling or a closely related field that consists of at least 60 semester hours or 80
quarter hours and specific graduate coursework, including: Counseling Theories and Practice,
Human Growth and Development, Diagnosis and Treatment of Psychopathology, Human
Sexuality, Group Theories and Practice, Individual Evaluation and Assessment, Career and
Lifestyle Assessment, Research and Program Evaluation, Social and Cultural Foundations,
Substance Abuse, and Legal, Ethical, and Professional Standards Issues. Beginning July 1,
2025, an applicant must have a master’s degree from a program that is accredited by the
Council for Accreditation of Counseling and Related Educational Programs (CACREP)
which consists of at least 60 semester hours or 80 quarter hours to be licensed;
19
Has had at least two years of clinical experience in mental health counseling. Initial
applicants must provide documentation to demonstrate completion of a 700-hour university-
sponsored clinical practicum or internship with at least 280 hours of direct client services.
After graduation, registered mental health counselor interns are required to complete post-
graduate supervised experience conducted under the supervision of a board-approved
qualified supervisor with at least 100 hours of supervision in no less than 100 weeks.
Supervision experience hours are accrued on an hour-for-hour basis by providing face-to-
face psychotherapy with clients. Registered interns are required to meet with their qualified
supervisor every two weeks to review cases and to receive guidance;
Has passed the National Clinical Mental Health Counseling Examination (NCMHCE)
developed by the National Board for Certified Counselors (NBCC);
20
Completes a three-hour course on HIV/Aids pursuant to s. 491.0065, F.S.; and
Agrees to complete a two-hour domestic violence course within six months of licensure.
21
17
Supra note 1.
18
Id.
19
Id.
20
Id.
21
Florida Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling, Licensed Mental
Health Counselor: Requirements available at https://floridasmentalhealthprofessions.gov/licensing/licensed-mental-health-
counselor/#tab-requirements (last accessed Oct. 31, 2021). BILL: SB 358 Page 5
Licensure of Mental Health Counselors by Endorsement
Applicants by endorsement who have practiced mental health counseling in another state for at
least three out of the last five years are considered to have completed all minimum education,
practicum, and supervision requirements and are required to provide limited documentation to
become licensed.
22
As a method to streamline licensure for experienced mental health
counselors, Florida law does not require endorsement candidates to provide proof of education
nor demonstrate completion of supervised experience.
23
Pursuant to s. 491.006, F.S., the DOH
shall license an applicant as a mental health counselor if he or she:
Pays the appropriate fee;
Holds a valid license to practice in another state and have practiced for at least 3 out of the
last 5 years preceding licensure;
Demonstrates, in a manner designated by rule of the Board, knowledge of the laws and rules
governing the practice of mental health counseling in Florida. Rule 64B4-3.0035 requires
these applicants to complete an 8 hour course and obtain a passing score on a corresponding
examination;
Has passed the NCMHCE or a licensing examination substantially equivalent to the
NCMHCE in another state or in this state;
Completes a 3-hour course on HIV/Aids pursuant to s. 491.0065, F.S.;
Agrees to complete a 2-hour domestic violence course within six months of licensure;
24
and
Holds a license in good standing and is not under investigation in Florida or another
jurisdiction for an act which would constitute a violation of ch. 491, F.S.
Mental Health Counseling in Florida Through Telehealth
In 2019, the Legislature passed and the Governor approved CS/CS/HB 23, which created s.
456.47, F.S. The bill became effective on July 1, 2019.
25
It authorized Florida-licensed health
care providers, including mental health counselors who are either Florida-licensed or licensed
under a multi-state health care licensure compact of which Florida is a member state,
26
to use
telehealth to deliver health care services within their respective scopes of practice.
The bill also authorized out-of-state health care providers to use telehealth to deliver health care
services to Florida patients if they register with the DOH or the applicable board
27
and meet
certain eligibility requirements.
28
A registered out-of-state telehealth provider may use telehealth,
within the relevant scope of practice established by Florida law and rule, to provide health care
services to Florida patients but is prohibited from opening an office in Florida and from
providing in-person health care services to patients located in Florida.
22
Supra note 1.
23
Id.
24
Id. at 20.
25
Chapter 2019-137, s. 6, Laws of Fla.
26
Section 456.47(1)(b), F.S.
27
Under s. 456.001(1), F.S., the term “board” is defined as any board, commission, or other statutorily created entity, to the
extent such entity is authorized to exercise regulatory or rulemaking functions within the DOH or, in some cases, within the
DOH’s Division of Medical Quality Assurance. The
28
Section 456.47(4), F.S. BILL: SB 358 Page 6
The Legislature also passed HB 7067 in 2019 that would have required an out-of-state telehealth
provider to pay an initial registration fee of $150 and a biennial registration renewal fee of $150,
but the bill was vetoed by the Governor and did not become law.
29
On March 21, 2020, Surgeon General Scott Rivkees executed DOH Emergency Order 20-003
30
to authorize certain out-of-state clinical social workers, marriage and family therapists, mental
health counselors, and psychologists to provide telehealth in Florida without the need to register
as a telehealth provider under s. 456.47(4), F.S. These emergency orders were extended and
expired on June 26, 2021.
31
Out-of-state health care practitioners are no longer authorized to
perform telehealth services for patients in Florida unless they become licensed or registered in
Florida.
Florida-licensed providers may not provide health care services to clients located in other states
without express authorization from each state.
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.
32
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.
33
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.
III. Effect of Proposed Changes:
Section 1 of the bill creates the Professional Counseling Licensure Compact as s. 491.017, F.S.,
which enters Florida into the compact. The compact has 15 articles that establish the compact’s
administration and components and prescribe how the commission will oversee the compact and
conduct its business. The table below summarizes the new statutory language, by article, which
creates the components of the compact.
29
Transmittal Letter from Governor Ron DeSantis to Secretary of State Laurel Lee (June 27, 2019) available at
https://www.flgov.com/wp-content/uploads/2019/06/06.27.2019-Transmittal-Letter-3.pdf (last visited Feb. 14, 2021).
30
Department of Health, State of Florida, Emergency Order DOH No. 20-003 (Mar. 21, 2020) available at
https://s33330.pcdn.co/wp-content/uploads/2020/03/DOH-EO-20-003-3.21.2020.pdf (last visited Oct. 21, 2021).
31
Florida Board of Medicine, Important Updates for Health Care Providers Regarding Expiration of Emergency Orders
(July 1, 2021) available at https://r.bulkmail.flhealthsource.gov/mk/mr/JV-U0AMitwBXlP7zcFx3Djqu1KfE1B57JaGN-
nnNySmOjEY5xGSsIyII28XjOGeZ4yKv9rWQUryqAibmdrixNZdgE9Q61dmUoHRF1Rnyijg -ewyAl_rZBT8c (last visited
Oct. 18, 2021).
32
FLA. CONST. art. X, s. 13.
33
Chapter 73-313, L.O.F., codified at s. 768.28, F.S. BILL: SB 358 Page 7
Provisions of the Professional Counselors Licensure Compact
Article Title Description
I Purpose
The primary purpose of the compact is to facilitate the interstate
practice of licensed professional counselors with the goal of
improving public access to professional counselling services.
II Definitions Definitions are provided for the following terms:
“Active duty military” means full-time duty status in the
active uniformed service of the United States, including, but
not limited to, members of the National Guard and Reserve
on active duty orders pursuant to 10 U.S.C. chapters 1209
and 1211.
“Adverse action” means any administrative, civil, or criminal
action authorized by a state’s laws which is imposed by a
licensing board or other authority against a licensed
professional counselor, including actions against an
individual’s license or privilege to practice, such as
revocation, suspension, probation, monitoring of the
licensee, limitation on the licensee’s practice, issuance of a
cease and desist action, or any other encumbrance on
licensure affecting a licensed professional counselor’s
authorization to practice.
“Alternative program” means a nondisciplinary monitoring
or practice remediation process approved by a professional
counseling licensing board to address impaired practitioners.
“Continuing education” means a requirement, as a condition
of license renewal, to participate in or complete educational
and professional activities relevant to the licensee’s practice
or area of work.
“Counseling Compact Commission” or “commission” means
the national administrative body whose membership consists
of all states that have enacted the compact.
“Current significant investigative information” means:
o Investigative information that a licensing board, after a
preliminary inquiry that includes notification and an
opportunity for the licensed professional counselor 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
o Investigative information that indicates that the licensed
professional counselor represents an immediate threat
to public health and safety, regardless of whether the
licensed professional counselor has been notified and
had an opportunity to respond.
“Data system” means a repository of information about
licensees, including, but not limited to, information relating BILL: SB 358 Page 8
Provisions of the Professional Counselors Licensure Compact
Article Title Description
to continuing education, examinations, licensure statuses,
investigations, the privilege to practice, and adverse actions.
“Encumbered license” means a license in which an adverse
action restricts the practice of licensed professional
counseling by the licensee and said adverse action has been
reported to the National Practitioner Data Bank.
“Encumbrance” means a revocation or suspension of, or any
limitation on, the full and unrestricted practice of licensed
professional counseling by a licensing board.
“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.
“Home state” means the member state that is the licensee’s
primary state of residence.
“Impaired practitioner” means an individual who has a
condition that may impair his or her ability to safely practice
as a licensed professional counselor without intervention.
Such impairment may include, but is not limited to, alcohol
or drug dependence, mental health conditions, and
neurological or physical conditions.
“Investigative information” means information, records, or
documents received or generated by a professional
counseling licensing board pursuant to an investigation.
“Jurisprudence requirement,” if required by a member state,
means the assessment of an individual’s knowledge of the
laws and rules governing the practice of professional
counseling in a state.
“Licensed professional counselor” means a mental health
counselor licensed under ch. 491, F.S., or a counselor
licensed by a member state, regardless of the title used by
that state, to independently assess, diagnose, and treat
behavioral health conditions.
“Licensee” means an individual who currently holds an
authorization from the state to practice as a licensed
professional counselor.
“Licensing board” means the agency of a state, or equivalent
that is responsible for the licensing and regulation of licensed
professional counselors.
“Member state” means a state that has enacted the compact.
“Privilege to practice” means a legal authorization, which is
equivalent to a license, authorizing the practice of
professional counseling in a remote state.
“Professional counseling” means the assessment, diagnosis,
and treatment of behavioral health conditions by a licensed
professional counselor. BILL: SB 358 Page 9
Provisions of the Professional Counselors Licensure Compact
Article Title Description
“Remote state” means a member state, other than the home
state, where a licensee is exercising or seeking to exercise
the privilege to practice.
“Rule” means a regulation adopted by the commission which
has the force of law.
“Single state license” means a licensed professional
counselor license issued by a member state which authorizes
practice only within the issuing state and does not include a
privilege to practice in any other member state.
“State” means any state, commonwealth, district, or territory
of the United States of America which regulates the practice
of professional counseling.
“Telehealth” means the application of telecommunication
technology to deliver professional counseling services
remotely to assess, diagnose, and treat behavioral health
conditions.
“Unencumbered license” means a license that authorizes a
licensed professional counselor to engage in the full and
unrestricted practice of professional counseling.
III State
Participation
To participate in the compact, a state must currently do all of the
following:
License and regulate licensed professional counselors.
Require licensees to pass a nationally recognized exam.
Require licensees to have a 60 semester hour, or 90 quarter
hour, master’s degree in counseling or 60 semester hours, or
90 quarter hours, of graduate coursework in relevant areas.
Require licensees to complete a supervised postgraduate
professional experience, as defined by the commission.
Have a mechanism in place for receiving and investigating
complaints about licensees.
(Initial Florida applicants must possess a master’s degree from a
regionally accredited program in mental health counseling or a
closely related field that consists of at least 60 semester hours or 80
quarter hours and required graduate coursework. Initial Florida
applicants must also complete two years of clinical experience in
mental health counseling as a registered mental health counselor
intern.)
A member state must:
Participate fully in the compact commission’s licensure data
system.
Notify the commission of any adverse action against or of
current significant investigative information regarding a
licensee. BILL: SB 358 Page 10
Provisions of the Professional Counselors Licensure Compact
Article Title Description
Conduct criminal background checks of candidates for an
initial privilege to practice.
Comply with rules of the commission, established in article
IX.
Grant the privilege to practice professional counseling to a
licensee holding a valid, unencumbered license in another
member state.
Provide for the state’s commissioner to attend the meetings
of the commission.
A member state may charge a fee for granting a privilege to practice.
A licensed professional counselor may only utilize the compact if
their home state joins the compact.
IV Privilege to
Practice
A licensee may seek a privilege to practice within a remote state. To
exercise the privilege to practice professional counseling within a
remote state, a licensee must:
Hold a license in his or her home state which must be a
member of the compact.
Have had no encumbrance or restriction against any license
or privilege to practice within the previous two years.
Meet any continuing education and jurisprudence
requirements of the remote state and pay all applicable fees.
Report to the commission any adverse action, encumbrance,
or restriction imposed on the licensee by a non-member state
within 30 days from the date of the action.
A privilege to practice is valid until the expiration date of the
practitioner’s home state license.
A licensee providing professional counseling in a remote state under
the privilege to practice must adhere to the laws and regulations of
the remote state.
If a licensee’s home state license is encumbered, the licensee loses
the privilege to practice in any remote state for the next two years.
If a licensee’s privilege to practice is removed by a member state,
the licensee may lose their privilege to practice in member states for
the next two years.
V Obtaining a
New Home
State License
based on a
A licensee may hold a home state license in only one member state
at a time. A licensee who moves from one member state to another
member 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. BILL: SB 358 Page 11
Provisions of the Professional Counselors Licensure Compact
Article Title Description
Privilege to
Practice
The licensee will be required to complete a new FBI fingerprint-
based criminal background check if not previously performed,
complete any required state-level background check, meet any
jurisprudence requirements of the new home state, and pay all
applicable fees.
(Florida-licensed mental health counselors are not currently required
to be fingerprinted and background-screened as a condition of
licensure. See s. 456.0135, F.S. If the compact is enacted in Florida,
single-state applicants and registered interns would not be required
to submit to a criminal history check, but applicants under the
compact would be.)
If a new home state license is granted, the former home state must
convert the former home state license into a privilege to practice.
VI Active Duty
Military
Personnel and
their Spouses
Active duty military personnel, or their spouse, may designate a
home state where the individual has a current license in good
standing. This state serves as the individual’s home state for the
duration of the service member’s active duty.
VII Compact
Privilege to
Practice
Telehealth
Member states must recognize the right of a licensed professional
counselor to practice professional counseling in any member state
through telehealth under a privilege to practice.
A licensee providing telehealth services in a remote state must
adhere to the laws and regulations of that state.
VIII Adverse
Actions
Only a practitioner’s home state has the power to take adverse action
against a home state license. Home states must 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. The
home state must apply its own state laws to determine appropriate
action in such cases.
Remote states may take adverse action against a counselor’s
privilege to practice within that member state and may issue
enforceable subpoenas for witnesses and evidence from other
member states.
A member state, if authorized by state law, may recover from the
affected licensed professional counselor the costs of investigations
and dispositions of any cases resulting from adverse action taken
against that licensed professional counselor. BILL: SB 358 Page 12
Provisions of the Professional Counselors Licensure Compact
Article Title Description
Member states shall share any investigative, litigation, or
compliance materials in furtherance of any joint or individual
investigation initiated under the compact.
If a member state takes adverse action, it must promptly notify the
administrator of the data system. The administrator shall promptly
notify the licensee’s home state of any adverse actions by remote
states.
The bill maintains the right for state boards to require licensees to
participate in impaired practitioner programs.
IX Establishment
of Counseling
Compact
Commission
The Counseling Compact Commission (commission) is established
by the member states as a joint public agency.
Judicial proceedings by or against the commission must 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 that it adopts
or consents to participate in alternative dispute resolution
proceedings. Nothing in the compact may be construed as a waiver
of sovereign immunity.
Each member state is entitled to one delegate appointed by each
member state’s licensing board who must be either a licensed
professional counselor, a public member, or an administrator of the
board. Each delegate has one vote on commission affairs. The
commission is directed to establish a term of office for delegates and
may establish term limits.
The commission must meet at least once during each calendar year
and all meetings must be open to the public. The commission or the
executive committee or other committees of the commission may
convene in a closed, nonpublic meeting under certain circumstances.
(See “Public Records/Open Meetings Issues” in Section IV of this
analysis.) The commission must keep detailed minutes.
The commission may establish and maintain a code of ethics,
bylaws, rules, a budget, financial records, and may initiate or
prosecute legal proceedings or actions in the name of the
commission, in order to carry out the compact.
The commission must select an executive committee composed of
up to eleven members: seven members of the commission and up to
four ex-officio, nonvoting members from four recognized national
professional counselor organizations. The executive committee must BILL: SB 358 Page 13
Provisions of the Professional Counselors Licensure Compact
Article Title Description
meet at least annually and must, at a minimum, do all of the
following:
Make recommendations to the commission for any changes
to the rules, bylaws, compact legislation, fees paid by
member states, and fees charged to licensees for the privilege
to practice.
Prepare and recommend the budget.
Maintain financial records.
Monitor compliance of member states and provide
compliance reports to the commission.
Establish additional committees as necessary.
The commission must pay or provide for the payment of certain
reasonable expenses and may accept appropriate revenue. The
commission may not incur obligations of any kind before securing
funds adequate to meet the same. Receipts and disbursements of
funds handled by the commission must be audited annually be a
certified or licensed public accountant.
The commission may levy 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. Such
assessments and fees must 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
must be allocated based on a formula to be determined by the
commission, which must adopt a rule binding on all member states.
Commission members and employees are immune from liability
related to their positions except in cases of wanton misconduct.
X Data System The Commission must provide for the development, operation, and
maintenance of a coordinated database and reporting system (the
data system) containing licensure, adverse action, and investigative
information on all licensed professional counselors in member
states. A member state must submit a uniform data set to the data
system on all licensees to whom the compact is applicable, as
required by the rules of the commission.
Investigative information pertaining to a licensee in any member
state may be made available only to other member states. The
commission must promptly notify all member states of any adverse
action taken against a licensee or an individual applying for a
license. BILL: SB 358 Page 14
Provisions of the Professional Counselors Licensure Compact
Article Title Description
Member states reporting information to the data system may
designate information that may not be shared with the public
without the express permission of the reporting state. (See “Public
Records/Open Meetings Issues” in Section IV of this analysis.)
XI Rulemaking The Commission shall adopt reasonable rules to effectively and
efficiently achieve the purposes of the compact. If the commission
issues a rule that exceeds its authority under the compact, such a rule
is void and has no force or effect.
Rules carry the force of law in all member states. If a majority of the
legislatures of member states reject a rule by enactment of a statute
or a resolution in the same manner used to adopt the compact within
4 years after the date of the adoption of a rule, such rule does not
have further force or effect in any member state.
Before adoption of a final rule by the commission, and at least 30
days in advance of the meeting at which the rule will be considered
and voted upon, the commission must file a notice of proposed
rulemaking, which must include the text of the proposed rule, on the
commission’s website and on the website of each member state’s
professional licensing board. Interested persons may submit notice
to the commission of their intention to attend a public hearing and
may submit written comments before the commission may adopt a
proposed rule. The commission must grant an opportunity for a
public hearing if it is requested by at least 25 independent persons, a
state or federal governmental subdivision or agency, or an
association that has at least 25 members. Rules may be grouped at
public hearings for the convenience of the commission.
The commission may consider and adopt an emergency rule without
prior notice, opportunity for comment, or hearing under certain
circumstances.
XII Oversight;
Default,
Technical
Assistance, and
Termination
Dispute
Resolution; and
Enforcement
If the commission determines that a member state has defaulted in
the performance of its obligations or responsibilities under the
compact or adopted rules, the commission must provide written
notice, remedial training, and technical assistance to the state. If a
state fails to cure a default, the defaulting state may be terminated
from the compact upon an affirmative vote of a majority of the
member states and only after all other means of securing compliance
have been exhausted.
The commission shall attempt to resolve any compact-related
disputes that may arise between states.
The commission is responsible for enforcing the provisions and
rules of the compact. BILL: SB 358 Page 15
Provisions of the Professional Counselors Licensure Compact
Article Title Description
XIII Date of
Implementation
of the
Counseling
Compact
Commission
and Associated
Rules,
Withdrawal,
and
Amendment
The compact becomes effective on the date on which the compact is
enacted into law in the 10th member state. Thereafter, the
commission must met and exercise rulemaking powers necessary for
the implementation and administration of the compact.
States that join the compact after this date are subject to the rules of
the commission as they exist on the date when the compact becomes
law in that state.
Member states withdraw from the compact by enacting a statute
repealing the compact. A state’s withdrawal takes effect six months
after enactment of the repealing statute.
The member states may amend the compact, but changes do not take
effect until enacted into the laws of all member states.
XIV Binding Effect
of Compact and
Other Laws
A licensee providing professional counseling services in a remote
state under the privilege to practice must adhere to the laws and
regulations, including scope of practice, of the remote state.
All rules and bylaws properly adopted by the commission are
binding on the member states.
In the event of a conflict between a law of a member state and the
compact, the state law is superseded to the extent of the conflict.
IV Construction
and
Severability
The compact is to be liberally construed so as to effectuate its
purposes.
The compact’s provisions are severable. If a provision of the
compact is declared to conflict with the United States Constitution,
all other provisions remain valid for all member states. If a provision
is held contrary to a member state’s constitution, the compact retains
its full force in all other states, and all other provisions remain valid
in the affected state.
Section 491.004(5), F.S., requires the Board of Clinical Social Work, Marriage & Family
Therapy, and Mental Health Counseling to adopt rules to implement and enforce the provisions
of ch. 491, F.S. Section 1 of the bill creates s. 491.017, F.S., thereby requiring the Board to adopt
rules to implement and enforce the compact.
Section 2 of the bill amends s. 456.073, F.S., to require the DOH to report any significant
investigatory information relating to a health care practitioner practicing under the compact to
the data system. Investigatory information is typically gathered as the DOH investigates
complaints and assesses the need to discipline a licensee.
Section 3 of the bill amends s. 456.076, F.S., to require a consultant (who operates an approved
impaired practitioner program) entering into a participant contract with an impaired practitioner BILL: SB 358 Page 16
who is practicing under the compact, to establish terms in the monitoring contract that include
the impaired practitioner’s withdrawal from all practice under the compact.
Section 4 of the bill amends s. 491.004, F.S., to require the Board to appoint an individual to
serve as the state’s delegate on the commission.
Section 5 of the bill amends s. 495.005, F.S., to exempt a person licensed as a clinical social
worker, marriage and family therapist, or mental health counselor in another state who is
practicing under the compact pursuant to s. 491.017, F.S., and only within the scope provided
therein, from licensure by examination requirements, as applicable.
Section 6 of the bill amends s. 491.006, F.S., to exempt a person licensed as a clinical social
worker, marriage and family therapist, or mental health counselor in another state who is
practicing under the compact pursuant to s. 491.017, F.S., and only within the scope provided
therein, from licensure by endorsement requirements, as applicable.
Section 7 of the bill amends s. 491.009, F.S., to authorize the Board to take adverse action
against a social worker’s, a marriage and family therapist’s, or a mental health counselor’s
privilege to practice under the compact and authorizes the Board impose grounds for discipline if
the clinical social worker, marriage and family therapist, or mental health counselor commits an
act specified in subsection (1) of this section or in s. 456.072(1), F.S.
Section 8 of the bill amends s. 768.28, F.S., to designate as agents of the state, the individual
appointed as the state’s delegate on the commission when serving in that capacity, and any
administrator, officer, or executive director, employee, or representative of the commission when
acting within the scope of his or her employment, duties, or responsibilities in this state, for the
purpose of applying waivers of sovereign immunity. This section also requires the commission to
pay certain claims or judgments and authorizes the commission to maintain insurance coverage
to pay such claims or judgments.
Section 9 of the bill provides an effective date of July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
A counselor’s personal identifying information, other than the counselor’s name,
licensure status, or licensure number, may be entered into the system by the DOH or the
Board or may be obtained by the DOH or the Board from the data system as reported by
another state.
A meeting or a portion of a meeting of the commission, or the executive committee or
other committees of the commission may be closed if the commission’s legal counsel or
designee has certified that the meeting may be closed because the commission or BILL: SB 358 Page 17
executive committee or other committees of the commission must discuss any of the
following:
Noncompliance of a member state with its obligations under the compact.
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.
Current, threatened, or reasonably anticipated litigation.
Negotiation of contracts for the purchase, lease, or sale of goods, services, or real
estate.
Accusing any person of a crime or formally censuring any person.
Disclosure of trade secrets or commercial or financial information that is privileged or
confidential.
Disclosure of information of a personal nature if disclosure would constitute a clearly
unwarranted invasion of personal privacy.
Disclosure of investigative records compiled for law enforcement purposes.
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 responsibility of
investigation or determination of compliance issues pursuant to the compact.
Matters specifically exempted from disclosure by federal or member state law.
All minutes and documents of a closed meeting must remain under seal, subject to release
by a majority vote of the commission or order of a court of competent jurisdiction.
These issues are addressed in linked bill, SB 590.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
Article VII, Section 19, of the State Constitution requires that the imposition of, or the
authorization of, a new state tax or fee, as well as an increased state tax or fee, must be
approved by two-thirds of the membership of each house of the Legislature and must be
contained in a separate bill that contains no other subject. Article VII, Section 19(d)(1) of
the State Constitution defines “fee” to mean “any charge or payment required by law,
including any fee for service, fee or cost for licenses, and charge for service.” The bill
authorizes the counseling compact commission and the Board of Clinical Social Work,
Marriage and Family Therapy, and Mental Health Counseling to impose a new state tax
or fee.
Lines 334-335 of the bill authorize member states to charge a fee for granting a privilege
to practice in their state. Lines 365-366 of the bill require a licensee seeking to practice
under the compact to pay any applicable fees, including any state fee, for the privilege to
practice. Lines 427-433 and 457-459 of the bill require a compact counselor who changes
his or her primary state of residence by moving between two member states to pay all
applicable fees to his or her new home state.
BILL: SB 358 Page 18
Lines 734-742 of the bill authorize the commission to levy 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. Such assessments and fees
must 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
must be allocated based on a formula to be determined by the commission, which must
adopt a rule binding on all member states.
Section 491.004(5), F.S., requires the Board to adopt rules to implement and enforce the
provisions of ch. 491, F.S. Section 1 of the bill creates the Professional Counseling
Licensure Compact as s. 491.017, F.S., thereby requiring the Board to adopt rules to
implement and enforce the compact, which may include the imposition of a fee for
granting a privilege to practice in this state granting and a fee to cover the cost of the
operations and activities of the commission, pursuant to the compact.
E. Other Constitutional Issues:
The compact authorizes the commission to “adopt reasonable rules to effectively and
efficiently achieve the purposes of the compact,” and these rules carry the force of law in
member states, which is potentially an unlawful delegation of legislative authority. If
enacted into law, the state will bind itself to rules not yet promulgated and adopted by the
commission.
The Legislature delegated similar rulemaking powers to the Nurse Licensure Compact
when it adopted the compact language into statute. The rules adopted by the Nurse
Licensure Compact are now applicable to Florida without the Legislature’s subsequent
approval, similar to what the state would encounter with the counseling compact adoption
and included rulemaking provision. In the case of the counseling compact, should Florida
find that rules adopted by the commission are not acceptable, the compact provides a
mechanism for a majority of state legislatures to override commission rules. Furthermore,
the state maintains the ability to withdraw from the compact.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
Lines 734-742 of the bill authorize the commission to levy 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. Such assessments and fees
must 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
must be allocated based on a formula to be determined by the commission, which must
adopt a rule binding on all member states.
B. Private Sector Impact:
SB 358 could lead to more licensed mental health counselors practicing in Florida. It
could also lead to more Florida-licensed mental health counselors practicing through BILL: SB 358 Page 19
telehealth and providing care to patients in other member states. The fiscal result to the
private sector is indeterminate.
C. Government Sector Impact:
34
The DOH reports that its Division of Medical Quality Assurance (MQA) may experience
an increase in revenues if the compact is enacted in Florida, as the bill authorizes member
states to charge a fee for granting a privilege to practice under the compact. The number
of applicants for compact licensure is indeterminate and a fiscal impact cannot be
calculated.
MQA may experience a recurring increase in workload associated with processing
applications and issuing initial and renewal licenses to participate in the compact. The
DOH projects needing a minimum of one (1) full-time equivalent (FTE), a Regulatory
Specialist III (PG 19), with a projected cost of $71,147 ($48,963/Salary $21,878/Expense
$306/HR).
MQA may experience a recurring increase in workload associated with the additional
complaints and investigations due to the new compact license. At this time, the impact is
indeterminate.
The bill authorizes the commission to levy and collect an annual assessment from each
member state. The annual membership cost with the Licensed Professional Counselors
Compact is unknown at this time, yet the DOH anticipates that existing budget authority
is adequate to absorb this recurring cost.
If the bill is enacted if the compact becomes effective, MQA will experience a non-
recurring increase in workload and costs associated with updating the Licensing and
Enforcement Information Database System, Online Service Portal, Cognitive Virtual
Agent, Continuing Education Tracking System, License Verification Search Site, and
board website to support multistate licensing. Additionally, MQA will be required to
establish a process for sharing information with the data system and update existing data
exchange services with the Agency for Health Care Administration.
The total estimated cost for the first year is $71,147 in the following categories:
Salary- $48963/Recurring
Expense- $17,229/Recurring $4,649/Non-Recurring
Human Resources - $306/Recurring
Section 491.004(5), F.S., requires the Board of Clinical Social Work, Marriage and
Family Therapy, and Mental Health Counseling to adopt rules to implement and enforce
the provisions of ch. 491, F.S. Section 1 of the bill creates the Professional Counseling
Licensure Compact as s. 491.017, F.S., thereby requiring the Board to adopt rules to
implement and enforce the compact, once it becomes effective.
34
Supra note 1. BILL: SB 358 Page 20
VI. Technical Deficiencies:
None.
VII. Related Issues:
If enacted, the bill would take effect and be written into statute on July 1, 2022, but the changes
would not be effective until the compact takes effect on the date on which the compact is enacted
into law in the 10
th
member state. (See lines 1025-1031 of the bill.) Because the compact does
not go into effect until it is enacted into law in the 10
th
member state, then the bill should take
effect when the compact is enacted into law in the 10
th
member state.
The counseling compact model compact legislation
35
defines a “licensed professional counselor”
as a counselor licensed by a member state, regardless of the title used by that State, to
independently assess, diagnose, and treat behavioral health conditions.” Under Florida law, a
mental health counselor, clinical social worker, and a marriage and family therapist may be
interpreted to fit the definition of a licensed professional counselor. For this reason, the bill at
lines 232-236 defines a “licensed professional counselor” as “a mental health counselor licensed
under chapter 491 or a counselor licensed by a member state, regardless of the title used by that
state, to independently assess, diagnose, and treat behavioral health conditions.”
This means that in Florida, only a licensed mental health counselor may apply for and be granted
a privilege to practice in another member state. In other member states, a professional who meets
that member state’s definition of a licensed professional counselor, regardless of what title the
professional holds, may apply for and be granted a privilege to practice in another member state.
To be granted a privilege to practice under the compact, a licensed professional counselor
applicant must pass a nationally recognized exam approved by the compact commission, have 60
hours of graduate coursework in specified topic areas or have a master’s degree in counseling;
and have completed supervised postgraduate professional experience as defined by the
commission.
The bill acknowledges that a person from another member state who is granted a privilege to
practice in Florida may be licensed as a practitioner other than a mental health counselor. (See
lines 1156-1158 and 1165-1166.) If it is the intent that a licensed professional counselor be
granted a privilege to practice in this state only if he or she holds a license that is substantially
similar to that of a Florida mental health counselor, then this bill should be amended.
Statutes Affected:
This bill creates section 491.017 of the Florida Statutes.
This bill substantially amends the following sections of the Florida Statutes: 456.073, 456.076,
491.004, 491.005, 491.006, 491.009, and 768.28.
35
Counseling Compact, Model Legislation (Dec. 4, 2020) available at https://counselingcompact.org/wp-
content/uploads/2021/06/Final_Counseling_Compact_With_Cover.pdf (last accessed Oct. 31, 2021). BILL: SB 358 Page 21
VIII. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.